Who has to prove what? Prescriptive rights and evidential presumptions
Lina Mattsson, Hardwicke Chambers
The fundamental question of the burden of proof is often overlooked in civil litigation; with all parties seeking to call evidence to support their version of events. In cases involving prescriptive rights, this often becomes much more difficult as there are inherent difficulties in proving facts which span more than two decades, and often relate to use of the land by predecessors in title. Evidential presumptions, shifting the burden of proof, will often win (or lose) cases. The decision in Welford v Graham  UKUT 297 (TCC) confirms that, when an easement has been used openly for two decades, there is a rebuttable presumption that it has been enjoyed as of right.
Presumptions and legal fiction
The law of the acquisition of easements and profits is founded on a presumption; namely that when a right has been enjoyed for over two decades, such right must surely have a lawful origin. This, of course, is the basis of the doctrine of ‘the lost modern grant’, where the court will presume, on proof of the fact of long enjoyment, that there once was an actual grant of the right. As J Fry put is as far back as 1879 in Moody v Steggles (1879) 12 Ch D 261 at 265, “the habit, and in my view, the duty, of the court, so far as it lawfully can, to clothe the fact with right”. The presumption of a lost grant is however not a rebuttable presumption. Once 20 years of user has been established, the presumption cannot be rebutted by proving that there had not been an actual grant prior to the commencement of the use. It is therefore more of a legal fiction than a presumption.
The legal burden of proof
Rebuttable legal presumptions are however a helpful tool in litigation, particularly when a party has the legal burden of proving a negative state of affairs. A party claiming a prescriptive right has to prove not only long user, i.e. that the right has been exercised for 20 years or more, but also that the use has been “as of right”. “As of right” means, in Latin, nec vi, nec clam, nec precario. That is to say, that the user was neither by force, nor secretly, nor by permission. The House of Lord’s decision in Gardner v Hodgson’s Kingston Brewery Co  AC 229 is often cited by the party disputing the easement in support of the proposition that the burden of proving that the use was “as of right” is on the party claiming the easement.
Gardner v Hodgson’s contains a number of statements to the effect that the burden of proving the use was without permission is on the party claiming the prescriptive easement. In that case, the claimant had proved use of a way across a yard for a sufficient period of time. The servient owner however had adduced evidence that a payment had been made regularly by the user. There was a dispute as to why the payment was being made. The servient owner contended that the payment was a rent or a licence fee for the use of the way; if so, the use would have been permissive and could not be relied upon for the purpose of prescription. The claimant contended that the payment was in the nature of a perpetual payment attached to some original grant of the right of way. Some members of the House of Lords took the view that the payment was clearly a rent or licence fee and thus the claim to prescription failed. Other members of the House of Lords held that held that, at best from the claimant’s standpoint, the position was ambiguous. It followed that the claimant had failed to discharge the burden on her of explaining the reason for the payment and showing that the use of the way had been made without the permission of the owner of the yard.
So far so good. As is the norm in civil litigation, the claimant bears the legal burden of proof, which includes that the use relied on was use “as of right”. This is the position even though the claimant has the legal burden of proving a negative state of affairs, i.e. that the use was nec vi and nec precario i.e. without force and without permission. The difficulties immediately become apparent. How do you prove that no consent was granted or that the servient owner did not object to the use for more than two decades?
Rebuttable presumptions of nec precario and nec vi
Having the legal burden of proof does not always, however, equate to a burden of adducing evidence. A party can be assisted in discharging the legal burden by relying on an evidential presumption. The Upper Tribunal in Welford v Graham  UKUT 297 (TCC) has recently confirmed that there are two important evidential presumptions in the contexts of prescriptive rights, namely the rebuttable presumptions of nec precario and nec vi.
In Welford v Graham, the owners of a workshop appealed against a decision refusing their application to register a right of way over an adjoining yard owned by the respondents. The First-Tier Tribunal had rejected the claim on the basis that the owners of the workshop could not prove that there had been 20 years user without permission. The judge had found that the workshop owners could only prove 10 years use without permission, as there was no evidence of any permission or lack thereof relating to any other period.
Mr Justice Morgan reversed the decision. He accepted the proposition that if the putative easement was used for the necessary period of time in the requisite manner, i.e. openly and so as to bring home to a reasonable owner of the servient tenement that a right was being asserted, then there was a rebuttable presumption that the easement had been enjoyed as of right and, in particular, without permission. It was then open to the servient owner to call evidence that there had been permission, or that the use was contentious, to rebut that presumption. If such evidence were given, the court would then decide on the evidence whether the presumption had been rebutted. He held, obiter, that in his opinion the same legal requirements that apply to nec precario, must also apply to nec vi.
Mr Justice Morgan reached his decision on two grounds. First, he held that the existence of these evidential presumptions make “very good practical sense and the absence of such an evidential presumption would make little sense”. If there were not such evidential presumption, then a party claiming a prescriptive easement would have to adduce evidence that there was no permission at any point during the period of use. This would render prescriptive claims almost impossible to prove.
Secondly, Mr Justice Morgan considered a number of authorities. He cited Campbell v Wilson (1803) 3 East 294, 102 ER 610 in which Lord Ellenborough CJ held at pages 300-301 that the case was like “the common case of adverse enjoyment of a way for upwards of 20 years, without any thing to qualify that adverse enjoyment” and that there was “no reason why the jury should not make the presumption, as in other cases, that the defendant acted by right“. Turning to more modern times, Mr Justice Morgan cited the way the matter was described by Lord Hope in R (Lewis) v Redcar & Cleveland BC (No. 2)  2 AC 70 at  (a case concerning whether use of land as a town or village green was “as of right”), namely:
” … they must have been doing so “as of right”: that is to say, openly and in the manner that a person rightfully entitled would have used it. If the user for at least 20 years was of such amount and in such manner as would reasonably be regarded as being the assertion of a public right (see R (Beresford) v Sunderland City Council  1 AC 889, paras 6, 77), the owner will be taken to have acquiesced in it—unless he can claim that one of the three vitiating circumstances applied in his case. If he does, the second question is whether that claim can be made out. Once the second question is out of the way— either because it has not been asked, or because it has been answered against the owner—that is an end of the matter.”
Mr Justice Morgan concluded that these comments and the way in which a number of other cases had been reported would only make sense if there were evidential presumptions of nec precario and nec vi once 20 years of user had been established.
What evidence to call?
The welcome clarification in Welford v Graham makes a lot of practical sense. It also makes it less onerous to prove a prescriptive claim. A party claiming a prescriptive right will therefore be required to call evidence that there has been use for the necessary period of time and that such use has been open so as to bring home to a reasonable owner of the servient tenement that a right was being asserted. If these facts are proved to the satisfaction of the court, the claim will succeed. It must however be kept firmly in mind that these evidential presumptions are rebuttable and, as clearly seen in Gardner v Hodgson, where facts are open to two explanations, the burden remains on the claimant to establish the explanation which is consistent with the use being as of right.
Finally, to win a prescriptive easement case it is crucial that the court understands the topography of the land. This is not only essential for the court to understand and evaluate the evidence of user, but also in order to be able to determine the meaning or scope of the grant, express or implied, for deciding whether the right in question has been substantially interfered with or exceeded and for determining what relief is appropriate. It is important that plans, maps, diagrams and photographs are clear not just to people who are fully familiar with the case, but also to a judge coming to the case for the first time. The easy steps of ensuring that photographs are in colour and that plans have compass points are too often overlooked. If there are a number of photographs it is helpful to give each photo a number and then mark on a plan with an arrow indicating the direction in which the photograph was taken, referring to the number of the photograph. These are easy steps to increase the chances of successfully proving a prescriptive claim.
The decision in Welford v Graham will no doubt assist parties claiming prescriptive easements; it is now clear that a party does not have to call evidence to disprove the existence of an express permission or force at any time during the period of two decades, and also to disprove the existence of any facts from which a permission or force could be implied during the same period. The burden of proof still rests upon the claimant though, and Welford v Graham will not assist claimants of poorly-evidenced claims.