In London Tara Hotel Ltd v Kensington Close Hotels Ltd ([2011] EWCA Civ 1356, CA (Eng)) Tara and KCH were the owners of adjoining hotels. KCH’s predecessors in title had had the benefit of a licence to use a private access road on Tara’s land. This licence had ended on a change of ownership of KCH’s hotel in 1980. The question was whether KCH had acquired a right of way by prescription. The English Court of Appeal emphasised that the only questions were whether the post-1980 use was nec vi, nec clam, nec precario (peaceful, open and not based on any permission). It was common ground that the use was peaceful (no element of force was alleged).
The use was not the result of a permission. The licence had ended in 1980 and there was no evidence of a later express or implied licence.
The English Court of Appeal found the question as to whether the user was secret more difficult. Tara failed in this respect too. Lord Neuberger MR said:
’36. It was inherent in the Licence that it would determine on a change in the ownership of the KC Hotel, and that should have been (and maybe was) appreciated by Tara when the Licence was granted. When the change of ownership of the KC Hotel occurred in 1980, there was no question of any secrecy, or even of a deliberate intention to keep quiet, on the part of KCL or THF, as is shown by the fact that the change was known to junior employees at the KC Hotel. Accordingly, it appears to me that Tara’s case on clam fails for very much the same reasons as Tara’s case on precario fails.
37. Of course, whether the case is put on clam or precario, very different considerations would apply if it could have been shown that KCL or THF had deliberately concealed the change of ownership of the KC Hotel from Tara, or, a fortiori, if it could have been shown that KCL or THF had deliberately misled Tara about the change of ownership. But there is no such suggestion in this case.’
