James Andrews-Tipler acts for successful appellant as judgment handed down in The Kingdom Hall Trust v Davies [2026] EWCA Civ 1377
The Court of Appeal has today handed down judgment overturning the decisions of the FTT and Upper Tribunal below and dismissing the claim to a prescriptive right of way over charity land.
James Andrews-Tipler appeared for the successful appellant in the Court of Appeal (with Andrew Williams), having obtained permission to appeal on the basis that the Tribunals erred in rejecting his “broad view” or “narrow view” theses on the law of prescription as it applies to incompetent grantors.
- The unanimous Court of Appeal decisively rejected the approach taken by the Tribunals below, on the grounds that the earliest date on which a lost modern grant or grant for the purposes of s.2 Prescription Act 1832 can be presumed may not be earlier than the start of the user proven to found the prescriptive claim (“the narrow view”).
- The Tribunals had therefore gone wrong in holding that 40+ years’ user against the appellant – whose powers of disposal were at all times throughout that user restricted by the Charities Acts, such that any express grant of an easement by it alone would have been ultra vires and void – could still give rise to a prescriptive easement by simply assuming a fictional grant by a predecessor in title who was competent to make a grant at a time when such a grant could have been made (but against whom no user had ever been established).
- The Court left open whether charities and other bodies that are not competent to make a grant of rights without more (by virtue of legislation restricting their powers of disposal in the public interest) are immune to prescription altogether because time does not run against them (“the broad view”), as a decision on this wider point was not necessary for the appellant to succeed.
The Court of Appeal's decision can be found here.
James’s write-up of the decision in the Upper Tribunal can be viewed here.
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