Rowena Meager's Property Law Blog

In a recent decision of the First Tier Tribunal, Property Chamber (Land Registration) (REF/2021/0571), Jones & Paddick v Hughes & Others [2025] UKFTT 00839 (PC), the scope of the concept of ‘clam‘ user was considered and applied with particular reference to user that was perpetuated through the user’s dishonest claim to have the benefit of a legal right which he knew he did not, in fact, enjoy. His repeated reliance upon an alleged legal right, said to have been created by an historic conveyance, was sufficient to deter a succession of putative servant owners from going so far as litigating their objections to his use of a way over their land.

In this case the user that formed the basis of a claimed right of way was purported to have been carried on from around the early 1960s to around the date of an application by the First Respondent (2020) to have an entry on the registered title of the dominant land removed. That entry related to an expressly granted right of way under a conveyance dating back to 1947. By the time of the trial in this case the owners of the dominant land (the personal representatives of their father upon whose use the prescriptive claim was largely based) had accepted that the 1947 conveyance did not create the legal right of way that the entry claimed.

A review of the full decision (link above) will inform the reader that the Judge found that various periods of use were, on the facts, permissive (‘precario‘) and any period of use that was not so, was punctuated by periods of use that were contentious, or ‘vi‘. There was never any period of qualifying use sufficient to meet the 20 year user requirement.

The most interesting aspect of this decision, however, was the Judge’s finding that throughout the period from 1990 to 2013 the dominant owner’s reliance upon the 1947 conveyance as having expressly granted the right he claimed, in circumstances where it was beyond any doubt that he knew it did not, was dishonest, thus rendering his use ‘clam‘.

“The question [he said] … is whether, applying existing legal principles in respect of prescriptive easements, [the dominant owner’s] dishonest use of the 1947 conveyance to justify and facilitate his user of the way has the effect of rendering his use of the way under the ‘cloak’ or ‘cover’ of the 1947 conveyance, user, which is not properly to be regarded as prescriptive, because it falls within the category of ‘clam’, or secret, user which does not give rise to prescriptive rights”.

Recognising that the argument before him was a novel one, the Judge went on “there is no doubt at all that such an approach to ‘clam’ user is a long way from the norm. The usual and well understood element of secrecy attaching to ‘clam’ user is user which is out of sight of, or obscured from, the relevant servient owner. The issue has most often arisen in cases relating to rights of support in respect of buildings and to the question as to whether particular circumstances have put the servient owner on notice, or on enquiry, as to whether the putative dominant owner’s land afforded support to the building owned by the servient owner”.

The Judge was, however, satisfied that the Court of Appeal’s decision in London Tara Hotel Ltd v Kensington Close Hotel Ltd [2012] 1 P & CR 13 expressly recognised the principle that ‘clam’ is not confined solely to secrecy as to use but can, in appropriate circumstances, extend to secrecy as to the user (ie the person using) the servient land. He referred to ¶81 of Roth J’s first instance decision and ¶37 of the Judgment of Lord Neuberger in the Court of Appeal, noting that in both courts it was accepted that if the change in the identity of the user of the way or of the ownership of the dominant land had been surreptitious or if steps had been taken to deliberately hide or conceal the change of identity or, a fortiori, to deliberately mislead or deceive the servient owner as to the change in user of the way then, as it was put, very different considerations would have arisen (in that case they did not).

The views of Roth J and Lord Neuberger were, as the Judge explained, founded on the dicta of Lord Selbourne LC in the seminal decision of the House of Lords in Dalton v Angus (1881) 6 App Cas 740, 802. He went on “… Lord Selbourne’s opinion was that all that was required was that the enjoyment of the support be enjoyed without deception or concealment and be so sufficiently open as to make it known that some support was being provided by the servient property. If, however, anything bearing upon the putative easement had been carried out secretly or surreptitiously, in order to hide material facts, or, if, in answer to any questions bearing upon the putative easement, information had been improperly withheld, or if the servient owner had received false or misleading information, as to the putative easement, then the ‘case would be different’ and, correspondingly, as I understand Lord Selbourne’s speech, the easement of support, which would otherwise have arisen, from long user, had matters been openly carried on without deception or concealment, would, on the grounds of ‘clam’, not come into being”.

The Judge concluded that Lord Selbourne’s dicta in Dalton v Angus, as discussed and adopted in London Tara Hotel, provided a principled basis, falling within the proper ambit of ‘clam’, upon which the issues arising out of the Relevant Owner’s dishonest deployment of the 1947 conveyance could be resolved. He said that “the principle to be applied is that a deliberate concealment of the basis upon which a potentially prescriptive use is carried on, or a deliberate deception as to the basis upon which that use is carried on, will disentitle the person who has perpetrated the deception, or concealment, from relying upon that user as establishing prescriptive rights. The rationale underlying the principle, as it seems to me, is that concealment of, or deception as to, the true basis, upon which the user is said to give rise to the prescriptive right in question has been carried on, will have had the effect of precluding the servient owner from challenging that user and bringing it to an end in the way that he would have done if the true basis of the relevant user had not been obscured and that, for that reason, it would be wrong for that user to give rise to prescriptive rights”.

Accordingly, the Judge concluded that between 1990, when the 1947conveyance was first deployed to fend off objection to the dominant owner’s use, and 2013, when he died, his dishonest reliance upon the 1947 conveyance as having created a legal right, which he knew it had not, rendered user ‘clam’ and was, therefore, incapable of supporting a claim to a prescriptive right.

This case explored the boundaries of what might render user ‘clam‘ and the decision certainly strays beyond that concept as traditionally characterised. It is, however, firmly rooted in principles that can be extrapolated from existing authority and provides a welcome analysis of the broader scope of what might constitute ‘clam‘ user.

I represented the successful First Respondent in this case which was concluded after a 10 day trial.