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Archive for May, 2016

Well worth a read

The issue raised in the Supreme Court case Lynn Shellfish Ltd and others v Loose and another [2016] UKSC 14 was the extent of an exclusive prescriptive right to take cockles and mussels from a stretch of Norfolk foreshore and is probably of little interest to anyone other than the parties.  However, the joint judgement of Lords Neuberger and Carnwath (with whom the other Lordships agreed) summarizes the often misunderstood and difficult legal principles re prescriptive rights to a profit or an easement and is well worth a read.

“Piscary is the legal name of a right to catch and take away fish, and it is an example of a right over land known as a profit a prendre (or, more simply, a profit), which is a right to go on to the land of another to remove items (e.g. gravel, timber, game).  Profits, like easements (a different category of rights over land, which include rights of way, rights of light and rights of water), are recognised in common law and statute as legal rights known as incorporeal hereditaments.”  Who would not have found that useful when studying law?

Turning to establishing a prescriptive right to a profit or easement, their Lordships said it is embodied in the expressions ““as of right” and nec vi nec clam, nec precario (i.e. not secretly, not by force, and not with permission).”   They continued to consider the period of time for which use must be enjoyed to establish a prescriptive right: “The law in that connection is a mixture of inconsistent and archaic legal fictions, practical if sometimes haphazard judge-made rules, and (in the case of easements and some profits but not profits in gross) well-meaning but ineptly drafted statutory provisions.”  They looked, too, at the extent of a prescriptive right and presumptions in prescriptive rights against the Crown.

We are always careful to underline that care should be taken before quoting from a judgement which is written not with the intention of giving a text book summary of legal principles for the reader, student or practitioner but on deciding a dispute upon the facts and circumstantces of the particular case before the judge.  There are some exceptions.  This judgement may be one of them.