‘Copyright in a photograph’

The following post appears on the ‘Mediation of Art & Cultural heritage Disputes’ page at www.carlislam.co.uk

Copyright subsists in original artistic works,s.1(1)(a) of the Copyright Designs and Patents Act 1988 [‘CDPA’]. ‘Artistic work’ includes a ‘photograph’. ‘Photograph’ means a ‘recording of light or other radiation on any medium on which an image is produced or from which an image made by any means be produced and which is not part of a film’ (s.4(2) CDPA).

In Temple Island v. New English Teas [2012] WSPCC 1 the claimant claimed infringement of copyright. Judge Birss KC in finding in in favour of the Claimant stated: ‘This superficially simple question involves a tricky area of law, i.e. copyright in photographs; and, in the end, turns on a disputed qualitative judgment. … A photograph of an object found in nature or for that matter a building, which although not natural is something found by the creator and not created by him, can have the character of an artistic work in terms of copyright law if the task of taking the photograph leaves ample room for an individual arrangement. What is decisive are the arrangements (motif, visual angle, illumination etc) selected by the photographer. … What then is the scope of photographic copyright? The question is answered by drawing attention to 3 aspects in which there is room for originality in photography:

  1. Residing in specialities of angle of shot, light and shade, exposure and effects achieved with filters, developing techniques and so on;
  2. Residing in the creation of the scene to be photographed;
  3. Deriving from being in the right place at the right time .

[The] composition of a photograph is capable of being a source of originality. The composition of an image will … derive from the “angle shot” … but also from the field of view … elements which the photographer may have created and … elements arising from being in the right place at the right time. The resulting composition is capable of being the aggregate result of all these factors … Ultimately … the composition of the image can be the product of the skill and labour (or intellectual creation) of a photographer and … skill and labour/intellectual creation directed to that end can give rise to copyright.

Copyright is infringed by reproducing the whole or a substantial part of the work in a material form (s.16  and s.17 CDPA). [A] “substantial part” is a matter of quality not quantity. … Copying a photograph does not require a facsimile reproduction, it is enough to recreate the scene or a substantial part of it.  … As a matter of principle photographs, as one species of artistic work in s.4 of the Act, are not to be treated differently from other artistic works and  one consequence must be that s.17 cannot be construed as referring only to facsimile reproductions of a photograph itself. … Visual significance must also be relevant to infringement and to the question of whether a substantial part of an artistic work has been taken. What falls to be considered, in order to decide if a substantial part of an artistic work has been reproduced, are elements of the work which had visual significance. What is visually significant in an artistic work is not the skill and labour (or intellectual creative effort) which led up to the work, it is the product of that activity. The fact that the artist may have used commonplace techniques to produce his work is not the issue. What is important is that he or she has used them under the guidance of their own aesthetic sense to create the visual effect in question. Just because the Act provides for copyright in these original artistic works irrespective of their artistic quality (s.41(a) does not mean that one ignores what they look like and focuses only on the work which went into creating them.  … On the question of copying, I find the common elements between the defendants work and the claimant’s work are causally related. In other words, they have been copied.’

Other posts available to view (toward the end of the ‘Mediation of Art & Cultural Heritage Disputes’ page at www.carlislam.co.uk, above the ‘Bibliography’ include:

Mediation of tax disputes

It is not all about economic growth – The hole in the public finances = £40 Billion. Uncollected tax (i.e. frozen in legal disputes) = £36 Billion, i.e. 5%+ of the total annual tax take. ‘In 2019/20, the corporation tax gap was estimated at 7.2% … The overall tax gap was estimated at 5.2% of total tax liabilities.’ [Unpaid taxes: the ‘tax gap’ – House of Lords Library (parliament.uk)].

What can the Government do to enhance the use of Mediation in order to: (i) unfreeze and collect unpaid tax locked in legal disputes; and (ii) avoid the incurrence of continuing and exponential litigation risks and costs (ultimately funded by all taxpayers)?

The 1st and 2nd Parts of a 3 Part article I have been commissioned by Taxation (Tolley) to write entitled, ‘Follow the Yellow Brick Road – Off to Mediation with HMRC’, was submitted to my editor on Friday for publication over Christmas and New Year. Mediation is available in almost any kind of tax dispute and HMRC are keen to encourage tax-payers to enter into the process. ADR in tax disputes may not be perfect but it works. The number of cases resolved through ADR was 78% in 2020/2021. However, the total number of tax disputes that entered into Mediation was only around 1000, which is a fraction of the total number of tax disputes that remain unresolved and could benefit from ADR.

In the 1st Part, I discuss what the Mediation process involves in the context and dimension of a tax dispute, and HMRC’s ‘ground-rules’ for the conduct of a Mediation. In the 2nd Part, I discuss what happens during the process. In the 3rd Part, to be written in 2023, I will focus on Mediator ‘challenges’ and ‘tools’.

In order to make taxpayers more aware and comfortable about how the process works, and thereby to increase the use of Mediation, the author understands that in the New Year, HMRC are planning to publish a new Factsheet about ADR and updated internal guidance. These developments in the ongoing evolution of Mediation in tax disputes will be discussed in Part 3.
The use of Mediation in tax disputes is also linked to the possible development of a hybrid form of ADR which involves a combination of ‘Early Neutral Evaluation’/’Expert Determination’ and Mediation which I will devlop as a concept and discuss in Part 3, i.e. as method for breaking ‘deadlock’ where HMRC adopts a rigid stance about a technical tax issue, i.e. because until the FTT decides otherwise, HMRC are under a compulsion to be fair to all taxpayers, and in following the LSS, HMRC conclude that they cannot deviate.
I understand there has been a recent initiative by Government Ministers to increase Mediation, and evaluation of possible ‘mandatory’ or ‘automatic’ Mediation in tax cases. The reduction of the £40 Billion hole in public finances using Mediation to collect £35 Billion in unpaid tax ought therefore be high up on the agenda of the Government. However it does not appear to be on the radar of politicians and political journalists. Why?

What ‘systemic’, i.e.’ institutional’, ‘policy’ and ‘management’ changes, need to be made to enhance the collection of unpaid tax through Mediation? To catalyse debate and test the institutional resilience of the ‘system’, I pose two questions.
(i)           While the contents of the Record (which is not a minute of meeting and is essentially a summary of: (a) issues that have been agreed; (b) issues which remain to be agreed; and (c) proposals for continuing the Mediation conversation going forward toward final overall resolution), must be agreed,  what legal justification is there for any concern by a TP or their legal representatives, that anything said in the course of Mediation may subsequently be relied upon by HMRC as being a new and significant tax fact.
(ii)         What contract terms need to be agreed by a COM with a TP in order to both comply with HMRC’s overriding ‘Principles,’ and the:
(a) Code of Professional Conduct of the COM’s professional regulator.
(b) Code of Ethics, of any Mediation organisation, to which the COM belongs.
(c) Terms of the COM’s professional indemnity cover.

Mediating ship-conversion disputes

Disputes tend to arise because of: 
·       Limited detailed design information about the condition of the vessel available prior to delivery. 
·       Limited opportunity to thoroughly identify the existence and condition of structures within the hull and the condition of the vessel during pre-contract inspections of the vessel, and, unseen:  
–      obstructions; and
–      deterioration e.g. pipework or steelwork requiring renewal and modification which at the time of inspection was hidden from view behind sheet metal cladding. 
·       Undefined ancillary work obligations implicit in broad work scope obligations. 
·       Fast track re-delivery programmes which compel Yards to develop design in parallel with construction, and the problem of continuously monitoring the overall impact of the implementation of designs on the meta-centric height, tonnage, and the stability of the vessel. 
·       The often unprecedented work required to convert a vessel. 
·       Inevitable integration of old and new designs, material and equipment to form an integrated working system, and the problem of new materials affecting the balance of stresses and forces in non-renewed sections of the vessel, resulting in damage to non-renewed structures inside the vessel [‘V’]. 
·       The performance of unspecified design work to implement the requirements of the vessel’s Classification Society, and of regulatory authorities, which were not published or notified prior to contracting in respect of both the existing vessel design and the conversion.   
In principle there is a design element in the whole spectrum of ship-conversion activities ranging from concept design to appearance, functional criteria, detailed design, choice of materials and methods of work. Unspecified design work inevitably results in consequences which are only realised following construction. The combined impact of unspecified design work in aggregate can result in radical changes in the:  
·      Planned and priced volume of steelwork incorporated in V. 
·      Specified deadweight tonnage of V. 
·      Specified speed and fuel consumption of V.
·      Specified meta-centric height of V.
·      Stability and trim of V. 
Consequently the vessel presented to Owners at re-delivery may be materially non-compliant with the Contract. The performance of unspecified design work inevitably results in the incurrence by the Yard of extra man-hours and materials in carrying out the unspecified work, and subject to critical path impact and programmed float, in delay and disruption. For a commercial overview, see my International Conference Paper presented to the Royal Institute of Naval Architects in London about the ‘Legal and Commercial Consequences of Performing Unspecified Design Work in Ship-Conversion Projects’. You can download this on the ‘Publications’ page at www.carlislam.co.uk . I may update the legal analysis and case law in 2023.

Using mediation to facilitate the structuring and agreement of contract terms for major projects

Before I entered private practice as a Barrister, I worked in house for Rolls Royce and Alstom, structuring, drafting, and negotiating contracts for major projects around the world. Following the award of a major contract in Malaysia, I undertook the Rolls Royce Industrial Power Group internal one year Project Management training course for the company’s elite cadre of Project Managers of major power projects around the world. This equipped me with insights and skills which I use today for planning. Looking back I wonder if there is a role for a mediator to facilitate contract negotiations, in order to enable each party’s commercial objectives, expected outcome, needs, concerns about risk, and priorities to be clearly understood, so that instead of competing about price and specification, they can focus upon how to maximise the planned commercial outcome to their mutual benefit. While a mediator cannot devlop a creative commercial solution, he can steer the parties toward that end by facilitatating clear communication. I am currently writing an article for Taxation (Tolley) for publication before Christmas. In the article I present a methodological formula for mediating a tax dispute. Extrapolating from this idea, and bearing in mind that mediation can be used for estate planning (see my article for Taxation – ‘Mediation and Estate/Business Succession Planning’, Taxation (Tolley) 08.03.2022), perhaps a methodological approach could be developed for the mediation of a contract negotiation as follows:

Based upon S, input CPA into WBS = P.
Adjust P to account for: F; LD (insurance premiums); PB (cost); and RA = expected and planned Net profit (‘NP’).
Identify the gap between P and EURCO = ‘PEG’.
Adjust the PEG to account for V = Adjusted commercial outcome (‘ACO’).
The gap between ACO and NP is the deal-making zone [‘DMZ’].
The question then, is how to close the gap, e.g. by enhancing EURCO through specification (including time, design and materials changes), and project management efficiency/savings.

‘CPA’ = Critical Path Analysis.
‘F’ = Float.
‘ERUCO’ = Expected revenue following commercial operation.
‘LD’ = Liquidated damages.
‘M’ = Margin (calculated by reference to project costs – which may be reduced if the time and money incurred in negotiating contracts can be reduced through mediation).
‘P’ = Price.
‘PB’ = Performance bond.
‘S’ = Technical specification (including completion date).

‘S&T’ = Suspension (i.e. to avoid LD’s and for non-payment) and Termination for (RA and non-payment).
‘RA’ = Risk analysis (including political risk; force majeure [‘FM’]; liability for latent defects; liability for unlimited consequential loss; and taxation e.g. if a permanent establishment is created onshore).
‘V’ = Variations (entitlement to extra time and costs e.g. for a change in specification; FM etc).
‘WBS’ = Work Breakdown Structure.

Tax Fraud – A representation in the legal sense need not be a statement at all!

‘Tax fraud usually involves either positive deception of the tax authorities or breach of duties of disclosure imposed by the tax legislation. It will usually, therefore, involve the commission of fraud by false representation, fraud by failing to disclose information or both. Often the particular form of deception adopted will give rise to liability for false accounting, forgery or the making of false statements contrary to the Perjury Act 1911 section 5(b).’ (Arlidge And Parry on Fraud, Sixth Edition (2020), by Jonathan Fisher KC, HHJ Alexander Milne KC, Jane Bewsey KC, and Andrew Herd, Sweet & Maxwell, paragraph 14-001). See also chapter 4 – ‘False representations and deception.’ Note, that section 2(3) of the Fraud Act 2006 (‘FA 2006’) provides that, ‘Representation’ means ‘any representation’ but does not say what a representation is. Section 2 of FA 2006 provides:

‘Fraud by false representation

(1)     A person is in breach of this section if he—

(a)     dishonestly makes a false representation, and

(b) intends, by making the representation—

  • to make a gain for himself or another, or

(ii)     to cause loss to another or to expose another to a risk of loss.

(2)     A representation is false if—

(a)     it is untrue or misleading, and

(b)     the person making it knows that it is, or might be, untrue or misleading.

(3)     “Representation” means any representation as to fact or law, including a representation as to the state of mind of—

(a)     the person making the representation, or

(b)     any other person.

(4)     A representation may be express or implied.

(5)     For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention).’

Therefore, the ‘legal meaning of the word representation is wider than its ordinary meaning. … In the civil law of misrepresentation … A representation can certainly be implied rather than express. Less obviously, a representation in the legal sense need not be a statement at all. It is sufficient that D has led V to believe that something is true, without in any real sense asserting it to be true.’ (Arlidge And Parry, paragraph 4-008).

My new article for Trusts & Trustees (Oxford University Press)

My new ‘in-depth’ article for Trusts & Trustees (Oxford University Press) –
Title: ‘Mediating probate & trust disputes – process challenges & tools’ – Part 1.
Abstract:
‘While it is not the function of a mediator to speak truth to power, a mediator can facilitate the re-framing of a dispute as an opportunity, by enabling each participant to think about what is important to them, so that the participants can jointly agree upon a ‘methodology’ i.e. a ‘road map’ for convergence and consensus. This requires a ‘paradigm shift’, i.e. acceptance by each participant that there is a better way of resolving their dispute than proceeding to trial. In Part 1 the author discusses the benefits of mediation, the process, ground-rules, and how best to prepare for the mediation day. In Part 2 (to be written in 2023), the author will discuss the challenges throughout each phase of the mediation day, and the tools available to a mediator to help engineer a sudden outbreak of common sense in a probate and trust dispute.’

The article is now in production and scheduled for publication on line in December, and in the journal worldwide, in February. Following publication I will post details for where a link to the article can be found on my website www.carlislam.co.uk. Part 2 of the article is on schedule to be written before May next year.
I am also completing the writing of an article for Taxation (Tolley) about the mediation of tax disputes. I am planning to submit this for final editorial approval and proof-reading at the end of November, for publication before Christmas. The title of the article is, ‘Follow the Yellow Brick Road – Off to Mediation with HMRC.’

‘Mediating a Boundary Dispute’

Enable the joint development by the participants of a bespoke practical framework to be used as a road-map for the amicable and practical resolution of the dispute:

(i) What are each participant’s conclusions about the facts on the ground following inspection & investigation – Draft a chronology.

(ii) What legal remedies/defences are claimed – i.e. what is each participant’s postion about the applicable legal principles?

(iii) What are the litigation risks?

(iv) What do you want? – i.e what are each participant’s primary concerns, needs & priorities?

(v) Is there a practical solution?

(vi) What do you need? – i.e. what needs to be done e.g. an application to HM Land Registry following settlement to regulate the situation and avoid a future dispute.

(vii) Are the participants ready and willing to collaborate as ‘neighbours’ in the development of a ‘road-map’ for settlement, by isolating and agreeing the ‘key issues’ and ‘principles’ which need to be aired, discussed, and agreed, in order to unlock the dispute, and thereby establish/create ‘building-blocks’ for an overall settlement that works, because it is practical, and sustainable?

General principles

What follows is a summary of general principles in an ‘Adverse Possession’ / ‘Prescription’ claim.

Rules of prescription perform the important function of preventing ‘the disturbance of long-established de facto enjoyment.’ (R v. Oxfordshire CC Ex P. Sunningwell PC [2000] 1 A.C. 335 at 349 per Lord Hoffman).

Prescription and limitation are in many ways similar principles, but as the law has developed they have become quite distinct.

Whereas prescription is acquisitive, limitation is prescriptive, i.e. adverse possession of land for 12 years extinguishes the previous owner’s title, leaving the adverse possessor with a title based on his or her own actual possession.

Adverse possession arises from the law of limitation of actions.

Limitation is a rule of litigation that prevents the recovery of land from a trespasser after a certain period of time has elapsed.

By limitation a person [‘P’] may acquire the land of another by adverse possession for a period of 12 years.

A person who has been adverse possession of unregistered land for the limitation period does not just bar the right of action for its recovery. He or she extinguishes the landowner’s title.

Land Registry Practice Guide 4 states:

‘Adverse possession requires factual possession of the land, with the necessary intention to possess and without the owner’s consent. You must show … adverse possession for at least 10 years … ending on the date of the application (Schedule 6, paragraph 1(1) of the Land Registration Act 2002).’

The LRA 2002 came into force on 13 October 2003.

As a result of LRA 2002 Schedule 12, paragraph 18(1), the rights of a claimant who has completed 12 years of adverse possession (so that the section 75(1) trust had come into existence) on or before 12 October 2003 are preserved. The trust is removed by the repeal of section 75 of the 1925 Act, and the adverse possessor retains the right (originally conferred by section 75(2)) to be registered as proprietor. The entitlement to be registered as proprietor ‘of the estate’ confirms that a statutory transfer takes place.

In other words, where title to land is registered, and P is able to demonstrate that as at 13 October 2003, i.e. the date when the Land Registration Act 2002 came into force, he/she had been in adverse possession for 12 years or more, then P is entitled to be registered as the proprietor of the land.

This right of registration subsists indefinitely against the registered proprietor who is holding on trust.

The right of registration also operates as an overriding interest, and will bind a purchaser for value provided P was in actual occupation of the land, but not if the occupation ‘would not have been obvious on a reasonably careful inspection of the land at the time of the disposition ’and the purchaser ‘does not have actual knowledge’ of that person’s interest (LRA 2002, schedule 3, paragraph 2).

The register can be altered to correct a mistake arising from pre-registration adverse possession.

In relation to boundary disputes, LRA 20002, Schedule 6, paragraph 5(4) provides:

‘The third condition is that—

(a)       the land to which the application relates is adjacent to land belonging to the applicant,

(b)       the exact line of the boundary between the two has not been determined under rules under section 60,

(c)        for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him, and

(d)       the estate to which the application relates was registered more than one year prior to the date of the application.’

Prescription acts or operates positively, so as to create a new title. This is brought about by presuming a grant, as ‘all prescription presupposes a grant.’ (Gardner v. Hodgson’s Kingston Brewery Co Ltd [1903] A.C. 229 at 239 per Lord Lindley).

The court may presume, on proof of the fact of long enjoyment, that there once was an actual grant of the right, even though it is impossible to produce any direct evidence of such a grant. It is then ‘the habit, and in my view, the duty of the court, so far as it lawfully can do, to clothe the fact with a right.’ (Moody v. Streggles [1879] 12 Ch. D 261 at 265 per Fry J). Please also note reversal of the burden of proof in a claim based upon prescription, see paragraph 4-119 of ‘Gale on Easements’, 21st Edition, by Jonathan Gaunt QC and The Honourable Mr Justice Morgan (who is a High Court Judge) (2020), Sweet & Maxwell.

By prescription one person may acquire rights such as easements over the land of another.

‘Prescription is another way in which an easement … can come into existence even though there has been no express grant. If the landowner makes use of a neighbour’s land for a long period without permission, openly and peaceably, in a way that could amount to an easement, the law of prescription may create an easement, appurtenant to the user’s freehold estate in land. … The fiction of grant determines the quality of use required in order to found a claim to a prescriptive easement. The claimant’s use of the neighbouring land must have been  “as of right” or, more helpfully, “as if of right”, in other words, the claimant must have used the land as if he or she was entitled to do so by virtue of an easement already granted to him or her. [“That is to say, openly and in the manner that a person rightfully entitled would have used it.” (R (Lewis) v. Redcar and Cleveland Borough Council (No.2) [2010] UKSC 11, [2010] 2 AC 70 at [67] by Lord Hope]. The English courts have taken the definition of use as of right from Roman law and so have taken it to mean that the use must not be by force, nor by stealth, nor by permission.’ (The Law Commission Report – Making Land Work: Easements, Covenants And Profits A Prendre’, 07 June 2011 (Law Com No.327), paragraphs 3.71 and 3.89).

Paragraph 1-01 of ‘Gale on Easements’ states, ‘An easement is a right over the land of another. … it is a proprietary, not a personal, right and will therefore bind successors to the servient land [i.e. the land which is subject to the easement] and enure for the benefit of successors to the dominant land.’

While the right must be within the general nature of rights capable of being created as an easement, there is no precise definition, and the list is not closed.

Paragraph 4-01 of ‘Gale on Easements’, states:

‘Prescription may be defined as: a title acquired by use or enjoyment had during the time and in the manner fixed by law.’  Land Registry Practice Guide 52 states:

There is no requirement for register entries to be made in respect of prescriptive easements. The benefit of all interests subsisting for the benefit of an estate vests in the registered proprietor on first registration (sections 11(3) and 12(3) of the Land Registration Act 2002) and will then pass on a transfer of the registered estate. Easements arising by common law prescription or the doctrine of lost modern grant will be legal interests. The purchaser of unregistered burdened land is bound by legal interests. Following first registration of the burdened land most legal easements are overriding interests (section 29 and Schedule 3 of the Land Registration Act 2002) and so capable of binding successive registered proprietors of the burdened land. The use must be without force, without secrecy and without permission (nec vi, nec clam, nec precario). Use while the same person is in possession of the benefitting and the burdened land cannot be use as of right. A registered proprietor may apply to be registered as proprietor of a legal easement appurtenant to their registered estate. In other words, they may apply to register the benefit of the easement. If the application is in order and, from the evidence we have seen, we consider it to be more likely than not that the claimant is entitled to apply to be so registered, we serve notice of the application on the registered proprietor of the burdened land and on other persons, such as registered charges, who appear from the register to be interested in the land. Provided we receive no objection to the notice or notices, we make an entry in the property register for the benefitting land to the effect that this land has the benefit of the easement. If the benefitting land is only part of the land in the title, the entry specifies the part of the registered title that has the benefit of the easement. Such an entry guarantees the existence of the right for the purpose of the indemnity provisions of the Land Registration Act 2002. At the same time, we enter a notice in the charges register for the burdened land. If the burdened land is only part of the land in the title, the entry specifies the part of the registered title that is subject to the easement.’

Interference with an easement, gives rise to an action in the tort of nuisance.

A land obligation is an interest in land. Therefore, the primary remedy for breach is an injunction, as confirmed by the Court of Appeal in Watson v. Croft Promo-Sport Ltd [2009] EWCA Civ 15, where Sir Andrew Morritt VC reiterated that an injunction should be refused only in exceptional cases.

Evidence

‘Although the register is conclusive as to title, it is not normally conclusive as to boundaries, because, except in the rare cases where the boundary has been determined, the register does not determine the exact line of the boundary. In relation to boundaries, therefore, acquisition of title by adverse possession can be justified for much the same reasons as it can in relation to unregistered land, and, in particular, it quiets title. The Land Registration Act 2002 permits a person to acquire title solely on the ground of adverse possession where [P] can establish the following:

(i) The land to which the application relates is adjacent to land belonging to the applicant. This requirement restricts the condition to boundary disputes. [LRA 2002, Schedule 6, paragraph 5(4)(a)].

(ii) The exact line of the boundary between the two properties has not been determined under the procedure provided for In the Act And the Rules. [LRA 2002, Schedule 6, paragraph 5(4)(b)]. In other words, the condition applies only to a general boundary. Once a boundary has been determined in accordance with the statutory procedure [under LRA 2002 s.60(3), (4) LRR 2003 rr. 118-122], The register is conclusive and the justification for the third condition no longer exists.

(iii) That [P] or a predecessor in title has not only been in adverse possession for at least 10 years ending on the date of the application, but for at least 10 years of that period, [P] or her predecessor in title reasonably believed that the land to which the application related belonged to her. This mental element is the most important requirement of this condition and it means that the period of adverse possession necessary to support the condition will in fact have to be longer than 10 years. The period of reasonable belief as to ownership must last for 10 years. That period of reasonable belief will come to an end once [P] becomes aware that she does not own the land. Only then will [P] realise that an application for registration must be made, and she must remain in adverse possession until she makes an application, unless she is evicted by the registered proprietor otherwise than pursuant to a judgement for possession, and on the day before the eviction [P] satisfied this mental element.

(iv) The estate to which the application relates must have been registered more than one year prior to the date of the application. This requirement is intended to meet the situation which would arise where title to unregistered land was first registered at a time when [P] had been in adverse possession of that land for more than 10 years but less than 12 years. But for this provision, [P] could apply to be registered as proprietor as soon as the title was registered even though she had not extinguished the unregistered title by adverse possession prior to 1st registration. In that situation, by reason of this requirement, the registered proprietor has a period of one year after first registration to terminate [P‘s] adverse possession, whether by seeking possession or by granting [P] a lease or licence. … The third condition will commonly apply in cases where the legal and physical boundaries of land do not coincide. Sometimes this happens because, e.g. on the construction of new housing, the fences or walls between the different lots are constructed in the wrong place. It can also happen, where the legal boundary does not follow the natural features of the land.’ (‘Megarry & Wade – The Law of Property’, 9th edition, by Stuart Bridge, Elizabeth Cooke and Martin Dixon, Sweet & Maxwell (2019), paragrpah 7-097).

Practical principles to be agreed in relattion to the land in dispute

The following are examples:

  • In a dispute about adverse possession and prescription, that the age of a line of trees located along/within the line of the disputed boundary, is evidence of the the length of time that they have been planted in the ground, and possibly of maintenance, as logically, they would be higher unless they had been maintained.
  • In a dispute about the ownership and preservation of a tree, because of the need for there to be a minimum distance between the tree and the erection of a boundary fence in order to protect the roots, and prevent the tree from becoming unstable, that a sufficient space needs to be left and agreed e.g. of 1-10 feet.

‘The General Boundary Rule.’

Even where land is shown on the file plan, this is subject to the General Boundaries Rule in s.60 of the 2002 Act.

S.60 provides as follows:

“(1) the boundary of a registered estate as shown for the purposes of the register is a general boundary, unless shown as determined under this section. (2) a general boundary does not determine the exact line of the boundary”.

‘Boundary agreements’

‘Registration with general boundaries is sufficient for the majority of titles. However, there are occasions where an owner might require something more precise. There are 2 main ways to achieve this: entering into a boundary agreement or having a determined boundary.

Two or more sets of owners may come to an agreement about the boundary between their properties. The agreement can deal with the position of the legal boundary, or the maintenance of a boundary feature (such as a hedge), or both. This supplement is concerned only with boundary agreements in so far as they deal with the position of the legal boundary.

For example, neighbours may agree that the legal boundary between their properties is the middle of a hedge (and that each will keep their side of the hedge below a certain height). Or there may be a post and rail fence and a brick wall running close together between 2 properties and the owners agree which of the 2 possible boundary features marks the legal boundary.

It is for legal advisers to advise their clients, in the particular circumstances, as to (i) whether or not a boundary agreement is appropriate for them, (ii) the form the agreement should take and (iii) whether or not to apply to have it recorded in the register. However, you may find the following comments helpful.

There is a rebuttable presumption that a boundary agreement does not involve the transfer of any land, and that the agreed position coincides with the true position of the legal boundary. The presumption will not be rebutted merely because of “circumstances of doubt or uncertainty” as to whether or not the transfer of any land is actually involved. See Neilson v Poole (1969) 20 P&CR 909 at 918 and 919. However, it must be the case that where the agreed position differs from what is shown in a title plan, the agreement can only have identified the current position of the legal boundary if the agreed position is within the scope of the general boundaries rule: see practice guide 77: altering the register by removing land from a title plan.

Where, on the other hand, it is established that there is in fact a transfer of land involved then, subject to the possible requirement to be in writing (see A simple boundary agreement), the boundary agreement gives rise to an obligation on a party to transfer any of their land falling on the other party’s side of the agreed boundary, if called upon to do so: Neilson v Poole (1969) 20 P&CR 909 at 918 and 919.

In circumstances where there is clearly a transfer of land involved, the neighbours may wish instead (or following the boundary agreement) to ‘formally’ transfer or convey the land. Only then, on registration, will the transfer be effective at law – and this is so even if only a small or trivial amount of land is involved. This approach may be most appropriate where there has been a dispute between the neighbours and there is a desire to resolve the matter once and for all. It is almost certainly appropriate, whatever the relationship, where the agreed boundary involves the transfer of a substantial amount of land.

It seems settled that an “agreement to demarcate an unclear boundary is binding on the parties and binds successors”: Haycock v Neville [2007] EWCA Civ 78 at [25] and Neilson v Poole (1969) 20 P&CR 909. But whether a boundary agreement will bind successors in title in all circumstances (in particular, in the absence of their knowledge of the agreement) does not appear to have yet been established.

A boundary agreement which does not involve the conscious transfer of land, or in other words does not have a “disposing purpose”, falls outside the scope of section 2(1) of the Law of Property (Miscellaneous Provisions) Act 1989 – which is concerned with “a contract for the sale or other disposition of an interest in land”. As a result, such a boundary agreement does not need to be in writing in order to be enforceable: Haycock v Neville [2007] EWCA Civ 78 at [25]; Yeates v Line [2012] EWHC 3085 (Ch) at [29]. This is also the case where only “trivial transfers of land [are] consciously involved” and the de minimis principle applies: Joyce v Rigolli [2004] EWCA Civ 79 at [32]; [45]; Yeates v Line [2012] EWHC 3085 (Ch) at [30]. But it is obviously sensible to put the agreement into writing and for the parties to sign the document. The registrar is unlikely to proceed with an application to alter the register by recording a boundary agreement (see Recording a boundary agreement in the register) unless the applicant produces a copy of a signed agreement.

Where neighbours agree on the position of the legal boundary, there is no particular reason to doubt that this was the position of the legal boundary, and they want to try to stop any going-back on the agreement, particularly when one of the properties is sold, then it might be appropriate to have the agreement put into writing and recorded in the individual registers.

There is no prescribed form for a written boundary agreement, even where the land concerned is registered. The following shows the form that a simple boundary agreement might take where the properties concerned are both registered.

It would be sensible for both parties, and any witnesses, to sign and date the plan attached to the agreement. Generally speaking, the better the quality of the plan – and, in particular, the more precisely it shows the position of the legal boundary – the more helpful the agreement is likely to be to the parties and their successors in title. You may, therefore, wish to ensure that the plan complies with the guidelines in practice guide 40 supplement 2: guidance for preparing plans for HM Land Registry applications. But there will be cases where the particular circumstances mean that a more basic plan is sufficient.

This is not to suggest that a plan of some sort will always be necessary. In some cases it may be thought enough to identify the boundary in words alone. For example, the agreement might include a clause along the following lines:

“The parties agree that the legal boundary between the land within their respective registered titles is the centre line of the wall running between their properties.”

It would seem that a mortgagee will not generally need to be a party to a boundary agreement. Assuming that the presumption mentioned earlier in this section is not rebutted, then the agreed boundary will be taken to be the legal boundary of the mortgagor’s estate from the start – and so at the time the estate was charged. But the mortgagee’s involvement is a matter that you would need to advise your clients on, bearing in mind the clients’ particular circumstances.

Where neighbours agree on the position of the legal boundary, they want to try to stop any going back on the agreement (particularly when one of the properties is sold) and there is no particular reason to doubt that the agreed position is the position of the legal boundary, then it might be appropriate to have the agreement put into writing and recorded in the individual registers.

Where the position is the same but there is thought to be a transfer of a small piece of land involved, then the neighbours may again simply want to apply for the boundary agreement to be recorded in the register. They would be relying on their ability to enforce, if necessary, the obligation to transfer created by the boundary agreement.

The registrar has power to alter the register of title for a number of purposes, one of which is ‘bringing the register up to date’: paragraph 5 of Schedule 4 to the Land Registration Act 2002. So, unless all the property concerned is unregistered, a boundary agreement can be noted in the register. An application must be made in form AP1 for the register(s) of the relevant title(s) to be altered. Applicants should lodge a copy of the boundary agreement. The prescribed fee for applying to alter the register must be paid.

If the application is in order, an entry along the following lines will be made in the property registers of the registered titles involved:

“An agreement dated

[date]

made between [the parties to the agreement] relates to [the boundary concerned – eg the south western boundary] of the land in this title.

NOTE: Copy filed.”

If a registered chargee is not a party to a boundary agreement and its consent to the alteration is not lodged, we shall serve on the chargee notice that the entry has been made.

Unless determined under section 60 of the Land Registration Act 2002, the boundary of a registered estate as shown for the purposes of the register is a general boundary. Note that this is so even if there is a boundary agreement and it has been recorded in the register. The registrar is not in any way guaranteeing that the legal boundary is where the parties have identified it as being in the boundary agreement. If the parties want to ensure that the exact line of the legal boundary is shown for the purposes of the register, they should apply for a determined boundary.’

(HM Land Registry Practice Guide 40 – HM Land Registry Plans, Supplement 4 boundary agreements and determined boundaries). Practice guide 40: HM Land Registry plans, supplement 4, boundary agreements and determined boundaries – GOV.UK (www.gov.uk)

Determined boundaries

‘The boundary of a registered estate as shown for the purposes of the register is a general boundary, unless shown as determined under section 60 of the Land Registration Act 2002. Unlike a general boundary, a determined boundary shows “the exact line of the boundary of a registered estate”. The Act does not define “exact”.

HM Land Registry does not determine a boundary in the sense of resolving a disagreement as to where the exact line of the boundary is located. Instead, with the exact line having been identified, HM Land Registry will then make it apparent from the register that the boundary has been determined. Reference to the boundary concerned being a determined boundary is made in the property register of each affected title. The general position of the boundary will be marked on the title plan of each affected registered title, often with lettered points showing the extent of the boundary which is determined. A filed copy of the determined boundary plan (see below) is retained and can be referred to in order to identify the exact line.

It is not always possible for the owner to apply for a boundary to be shown in the register as determined. In particular, the applicant may be unable to produce the necessary evidence to establish the exact line of the boundary.

The application must be made on form DB. Only one application form is required, irrespective of the number of adjoining boundaries. A fixed fee is payable. Please see HM Land Registry: Registration Services fees.

On receipt of the application or after further enquiries under rule 17 of the Land Registration Rules 2003, the registrar must decide whether they are satisfied that: (i) the plan identifies, or the plan and verbal description identify, the exact line of the boundary claimed, (ii) the applicant has shown an arguable case that the exact line of the boundary is in the position shown, and (iii) they (the registrar) can identify all the owners of the land adjoining the boundary and has an address at which each owner may be given notice. If so satisfied, the registrar must give the adjoining owner(s) notice of the application, unless the evidence relied on and lodged with the application includes an agreement in writing with the adjoining owner as to the line of the boundary or a court order determining the line of the boundary. Panel 9 of form DB should be completed where there is agreement by the adjoining owner. The registrar must cancel the application if not satisfied as to (i), (ii) and (iii).

The evidence lodged to satisfy the registrar that the exact line of the boundary is in the position shown might include plans or provisions within pre-registration deeds, statutory declarations, statements of truth or other signed statements. Where an applicant is relying on an expert’s report, a copy of that report should be lodged. It should be noted that an expert’s finding as to the position of the legal boundary is not conclusive on the point, even though it may bind the parties instructing the expert. The registrar still needs to be satisfied that an arguable case has been shown for the exact line of the boundary being where the expert has assessed it to be, hence the need for a copy of the expert’s report to be lodged. If there is particular reason to think that the registrar might not be satisfied about an arguable case being shown, it may be better to consider taking the transfer approach explained in Transfers and determined boundaries without an application.

If there is an objection to the application and the objection is not found to be groundless, the matter will have to be referred to the Land Registration division of the Property Chamber, First-tier Tribunal, unless the parties can reach agreement.

It will be seen below that a chartered land surveyor or other suitably qualified professional will normally have to endorse a determined boundary plan with a certificate. But even where this is not necessary, it is recommended that such a professional should prepare the plan.

A surveyor will normally survey the boundary to be determined in one of 2 ways.

  • By the use of measurements from permanent features.
  • By the use of Ordnance Survey National Grid co-ordinates.

Using National Grid co-ordinates would only be appropriate in areas where there is little in the way of suitable permanent features or where taped measurements would be excessively long. Using co-ordinates requires specialist surveying equipment and is likely to be the more expensive option when determining the boundary or attempting to reconstitute it.

The position of the boundary to be determined may be marked on the ground by a feature such as a fence or wall. However, this is not a requirement and may not always be possible. For example, some housing developments with open garden frontages contain covenants preventing the erection of fences. An alternative way of marking a boundary can be the use of “permanent ground markers”: see Use of permanent ground markers. Their position will need to be marked on any determined boundary plan lodged with the application.’

(HM Land Registry Practice Guide 40 – HM Land Registry Plans, Supplement 4 boundary agreements and determined boundaries). Practice guide 40: HM Land Registry plans, supplement 4, boundary agreements and determined boundaries – GOV.UK (www.gov.uk)

Application to alter or rectify the register

P may apply under Schedule 4 of the Land Registration Act 2002. The strict criteria for alteration include:

  • the correction of a mistake;
  • the bringing of the register up to date; or
  • to give effect to any estate, legal right or interest that is not affected by registration (because the land has been registered with good leasehold, possessory or qualified title).

Rectification is defined by paragraph 1 of Scheduel 4 as being an alteration which involves the correction of a mistake, and prejudicially affects the title of a registered proprietor. Not every alteration will constitute a rectification. The fact that the rectification of the register may cause a person prejudice, e.g. because he has purchased land from someone who lacked good title or that is subject to an interest that he was unaware of, means a registered proprietor is generally entitled to an indemnity where he suffers loss as a result of the ‘rectification’.

The relationship between: (i) preserving the Union; and (ii) re-joining the EU.

A Tory MP and arch critic of Boris Johnson has sparked a backlash from Brexiters after suggesting Britain re-join the EU’s single market to help ease the cost of living crisis.’ (02.06.2022 – the ‘Guardian’).
‘Rishi Sunak’s first job is to admit to Brexit ‘lies’ and strike a new deal with EU, says ex-Tory donor Guy Hands … The boss of private equity firm Terra Firma said he will not donate to the Conservative Party until it moves on from ‘internal destructive battles.’ (the ‘I’ 24.10.2022).
Assume that:
·        Labour, under the leadership of Sir Keir Starmer take seats from the SNP in the next general election.
·        This weakens the political resolve of the Scottish people to vote for independence [‘A’].
·        [‘A’] has a political knock-on effect in Northern Ireland [‘NI’].
·        Labour announce a referendum to decide upon re-joining the EU Single Market [‘B’].
·        The result of B is that the people of NI vote to re-join the EU, because:
–      Sinn Féin (‘SF’) supporters want to obtain the economic and service benefits enjoyed by their neighbours south of the border.
–       For Ulster Unionist Party [‘DUP’] supporters, the issue is a no-brainer as their party would cease to exist as a political force following Irish Unification, i.e. B is existential.
Then B will have the following consequences:
·      Labour will have preserved the Union because:
–      In Scotland it will have diluted the political power of the SNP.
–      In NI, by supporting B, the DUP will have pinned their colours to Labour’s mast.
·        People throughout the Union will ask – ‘what was the point of Brexit?’, i.e. because the UK will no longer be free to sign up to FTA’s.
Therefore, a strategic question for Prime Minister Rishi Sunak is how he can design a path for restoration of the UK’s economic fortunes following Brexit and the Mini-Budget, by engaging in a discussion with the EU about the NI Protocol (which is not working and has not conferred the benefits promised)/re-negotiation of the entire Brexit deal, without his Government being toppled by the ERG (i.e. the right wing European Research Group of MP’s in Westminister).
Since those within his own party have questioned the political mandate of Prime Minister Rishi Sunak, see:
All hell will break loose: General election impossible to avoid when Rishi Sunak made PM, says Dorries’ (the ‘Independent’ 25.10.2022), 
and he himself has said that his party is facing an existential threat – ‘Incoming prime minister says Tories must “unite or die” and rules out early general election’ (Guardian 24.10.2022), then at some point in the coming months he will have to make a decision about when to ‘take the bull by the horns’ and confront the ESG with economic reality, i.e. hard facts v. wishful thinking and the unorthodox/radical economic theory of a ‘cult’. In other words, Rishi Sunak is sitting on a political time-bomb and the clock for a general election is ticking! Can he square the circle?

See also:

Rishi Sunak could be forced out in six months, says Labour as ‘fuming’ Tories cancel membership (msn.com)

Australia fears UK trade deal could be scuppered (msn.com)

https://www.theguardian.com/commentisfree/2022/oct/25/rishi-sunak-prime-minister-system

A wary Europe greets Sunak’s premiership with relief | Financial Times (ft.com)

Rishi Sunak should bin the EU law bill | Letters | The Guardian

The vindication of Rishi Sunak – POLITICO

UK and EU must work together, bloc’s chairman tells new PM Sunak | Reuters

‘Probate/Trust Disputes – Pre-Mediation ADR [‘PMA’]’

Where e.g. there is a dispute about the construction of a home made will, costs can be saved and a tax-efficient settlement obtained, by having a conversation before mediation is proposed/proceedings issued.
The parties solicitors will still need to undertake preliminary due diligence about the existence of documentary evidence, e.g. diary entries and correspondence; to take proofs of evidence from key witnesses; and to obtain office copies.
These disputes are fact specific, and the armchair questions to ask at this stage may typically include:

·        If T drafted the will, then what did he intend?

·        If someone else drafted and typed the will, did T understand the scheme of gifting under the will as drafted? i.e. is the will valid?

·        Did T know the full extent of his estate, i.e. did  T have mental capacity?

In such disputes, the ‘big ticket’ asset is likely to be the family home (‘P’).
A logical analytical starting point is that if the will is valid, the gift of P (or of an equitable interest in P) may fail because of a defect in drafting, in which event, T’s beneficial interest in P will fall into residue for distribution in accordance with the terms of the will.

Where T is survived by S, I do not think a judge is going to remove the roof from over his/her head, so what is the point of litigation?

S may also have a claim under the Inheritance Act for lack of provision, and other claims in equity (which could be funded on a CFA basis).

Depending upon the date of T’s death, the re-structuring options potentially include:
·        Disclaimer of the devise.
·        Deed of Variation.
·        Rectification – which is an ‘eye of the needle’ exercise, and is therefore the most expensive option.

To head a probate claim off at the pass, PMA involves:
·        Executors instructing counsel to provide an opinion about construction of the will, and the options available for re-structuring, see my article – Back to the future’ – Part 1 – Mediation and the tax-efficient settlement of probate disputes. Taxation (Tolley) 01.03.2022 (and you will find a link on the ‘Publications’ page at www.carlislam.co.uk).
·        Having a round table WP Zoom call between Counsel [C’], the executors, beneficiaries and their legal advisors so that C:

(i)          As ‘Counsel’, can state his/her conclusions and reasons.
(ii)         As a ‘Mediator’, can start and facilitate a conversation between the B’s and the E’s about the options for solving the problem on mutually satisfactory and tax-efficient terms without incurring litigation risks and costs, i.e. so that estate money is spent on fixing the problem instead of fighting each other.

Provided the value of the claim is within my PI cover, and after scoping the work involved, I can quote a fixed fee for this two-stage: (i) written advice; and (ii) mediation service. To enquire please send an email to clerks@1ec.co.uk.
See also ‘Mediation of Probate Trust & Tax Disputes’ at www.carlislam.co.uk).

Video hearings in the FTT

Video hearings in the FTT – Davies v. HMRC [2022] UKFTT 369 (TC) is a recent example. The decision of the judges states:

‘With the consent of the parties, the form of the hearing was V (video). All parties attended remotely. The remote platform was the Tribunal’s Video Hearing System. A face to face hearing was not held because of the ongoing effects of the Covid-19 pandemic and it was considered in the interests of justice to hold the meeting remotely. The documents to which we were referred are a Hearing bundle of 588 pages, an Authorities Bundle of 284 pages, a second witness statement and exhibits of … The HMRC officer who been dealing with the enquiry and had issues the information notices, … an additional authority drawn to the party’s attention by the tribunal, the skeleton arguments of the appellants … and the respondents … and an extract from a book admitted in the course of the hearing. It was not possible to complete the hearing in the time allotted and it was agreed, and the tribunal gave directions accordingly, that the parties closing submissions should be made in writing. We also have before us the respondents’ written closing submissions  … The appellants written closing submissions  … And the respondents’ written reply. For the applicable PD – Google, ‘ Pilot Practice Direction: Video/Audio Hearings in the First-Tier Tribunal and the Upper Tribunal.’  Paragraph 4 of the PD stets;

‘Where a tribunal decides that: a) a hearing in a particular case should take place; b) the proceedings are to be conducted wholly as video or audio proceedings; and c) it is not practicable for the hearing to be broadcast in a court or tribunal building the tribunal may direct that the hearing will take place in private, where this is necessary to secure the proper administration of justice.’

A Mediation with HMRC may also be conducted online using Teams. I am currently writing an article for Taxation (Tolley) about the ‘Mediation of Tax Disputes’ which is planned for publication in December.