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Following conversation with his wife in the kitchen in May 2016, began George Hepburne-Scott’s involvement in a case that was set to last almost four and a half years’ and involve hearings in the First Tier Tribunal (Property Chamber), the Upper Tier Tribunal, the High Court, the Court of Appeal (Civil Division), and the Supreme Court.
George’s wife, commenting on various media reports (see links below), said that it seemed unfair that a man (Mr Keith Best) had asserted ‘squatter’s’ rights to take legal possession of an 80-year-old man’s (Mr Colin Curtis’) family home. “You should get in touch and see if you can help..”
Mr Curtis had grown up in 35 Church Road, Romford which his parents had purchased in the 1940’s, however, he had moved out after his parents died and the house fell into disrepair. Mr Best had asserted adverse possession over the property in question on 27 November 2012. He claimed to have been ‘in occupation’ there since November 2002. The claim was made shortly after the new legal provision in s.144 Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO 2012”) had come into effect (making squatting a criminal offence) and the Land Registrar objected on the basis of the legal principle ex turpi causa (a litigant should not benefit from a crime). Mr Best judicially reviewed the decision and won before Ouseley J in the High Court – see Best v Chief Land Registrar  EWHC 1370 (Admin).
The Chief Land Registrar then appealed and the Court of Appeal delivered what was to become a landmark legal ruling in R (ex parte Best) v Chief Land Registrar  EWCA Civ 17 (Arden LJ, McCombe LJ, & Sales LJ) essentially to the effect that although squatting had become illegal pursuant to s.144 LASPO 2012, a squatter could nonetheless successfully assert his rights to adverse possession under Schedule 6 of the Land Registration Act 2002 (“LRA 2002”).
The publicity surrounding this case alerted Mr Curtis to the fact that it was his house that was on the TV news as he watched it! He immediately challenged the adverse possession claim on the basis that this was his family home. At the subsequent hearing before Judge Elizabeth Cooke at the First Tier Tribunal (Property Chamber) (“FTT”) on 11 April 2016, Mr Curtis was unsuccessful. He had unfortunately not asserted that Mr Best had not been in possession for the requisite period of time (10 years under the LRA 2002) but instead endeavoured to establish that a trust existed over the property – this would have defeated any claim for adverse possession under Schedule 6 of the LRA 2002. A complicating feature was that Mr Curtis’ mother was still the registered proprietor although she had died some years earlier and probate had not been undertaken (although this was her only asset and Mr Curtis the only beneficiary). This made it very difficult for Mr Curtis to establish a trust and fend off Mr Best’s claim for adverse possession using this argument.
Having made contact with Mr Curtis and having been instructed on his behalf (initially entirely pro bono on a Direct Access basis), George began to try to recover the property or its value on his behalf.
First of all an application to the FTT for leave to appeal. This was refused by Judge Cooke.
Then an application for permission to appeal to the Upper Tier Tribunal. Importantly, as later reported Curtis v Best UT/2016/0104, by then George had obtained witness statements from four separate witnesses on Church Road who all stated that Mr Best had lied about how long he had been at the property. If this was right it meant that the landmark cases of Best v Chief Land Registrar  EWHC 1370 (Admin) & R (ex parte Best) v Chief Land Registrar  EWCA Civ 17 (Arden LJ, McCombe LJ, & Sales LJ) and indeed the FTT case, had all been based on a dishonest foundation.
However, the application was refused on the papers by Morgan J on the basis that fresh evidence on appeal could not be brought where it was available with ‘reasonable due diligence’ at first instance (the ‘due diligence rule’ – see Ladd v Marshall  EWCA Civ). Morgan J pointed out that the witnesses in question could had been contacted by Mr Curtis’ original Solicitors (NB this ‘reasonably due diligence’ rule protects the important policy of finality of litigation and prevents parties from continually re-litigating the same point purely because they did not like the result).
Following this refusal, undeterred, George made a renewed application for permission to appeal before Morgan J, this time the hearing was in person before the Upper Tribunal at the Rolls Building. Advocacy was to play a key role at this hearing and it was to prove an important turning point in the case.
George relied on the principle set out in the Duchess of Kingston’s Case (1776) 1 Leach 146 (King’s Bench) and reiterated by Denning LJ in Lazarus Estates  1 QB 702,  1 All ER 341,  2 WLR 502 that ‘fraud unravels all’. He had also unearthed a High Court authority (Newey J in Takhar v Gracefield Developments  EWHC 1276 (Ch)) to the effect that the ‘due diligence rule’ for adducing fresh evidence on appeal could be disapplied where fraud had initially obscured the evidence. This was the sole authority that went in George’s favour on this particular point.
The application was fiercely defended, however, following a hotly contested hearing and as can be seen from the Judgment of Morgan J, George prevailed and permission to appeal was granted.
However, this was by no means the end of the story. Following the hearing, Mr Best’s team had notified the UTT and George that Takhar had been overturned on appeal. This was unfortunate as it was the only authority to the effect that the ‘due diligence rule’ did not apply to adducing fresh evidence where fraud was involved and consequently the only authority that George could rely upon!
However, George made contact with the QC in Takhar and discovered that he was petitioning the Supreme Court for leave to appeal and he was ultimately granted leave.
The UTT case was then held in abeyance until the outcome of the Supreme Court proceedings in Takhar as their Lordships and Ladyships were deciding on precisely the point that George was relying on.
It was then decided that the stage had been reached when it would be best for George to be assisted by Solicitors. George had worked with the property law expert Ben Colenutt, Director at specialist property firm, Jamieson Alexander on another case and Ben came on board and was instructed by Mr Curtis to assist.
Sadly whilst awaiting the Supreme Court decision, Mr Curtis passed away but not having lost any hope and not losing the flat that he was living in to pay the other side’s legal fees which, prior to George’s involvement had seemed a distinct possibility (see media reports below).
On, 20 March 2019, Takhar succeeded in overturning the Court of Appeal (Civil Division) – see Takhar v Gracefield Developments  UKSC 13, in what is another landmark ruling which essentially ruled that where fraud had not been initially litigated but evidence subsequently came to light that had been concealed by fraud, this ‘fresh evidence’ could be adduced on appeal notwithstanding that it was available at first instance to the party now seeking to adduce it at the appeal.
By then, George and Ben were instructed by the executrix of Mr Curtis’s estate. An action had also been launched by the now late Mr Curtis against his original Solicitors.
Following the Judgment in Takhar, in February this year a settlement was reached between the former Solicitors and Mr Curtis’ Estate.
Following negotiations, in August 2020, the case against Mr Best also was finally settled.
The details of each settlement are confidential. So ended the saga of the squatter of Church Road!
George is very proud to have assisted Mr Curtis and, now his granddaughter who is the beneficiary of his estate.
George is hugely grateful to Ben Colenutt for his skill, expertise and calm confidence throughout.
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