© 2025 by Michael Firth KC, Gray's Inn Tax Chambers
Contact: michael.firth@taxbar.com
Laches
GENERAL
- Laches bars the (equitable) remedy not the right
"[79] The argument based on laches faces two problems. The first is that, as pointed out by David Richards J, laches only can bar equitable relief, and a declaration as to the existence of a long term property right, recognised as such by statute, is not equitable relief. It is arguable that a declaration should be refused on the ground of laches if it was sought solely for the purpose of seeking an injunction or other purely equitable relief. However, as already mentioned, that argument does not apply in this case..." (Fisher v. Brooker [2009] UKHL 41)
- Unjustified delay resulting in prejudice or an irretrievable change of position
"[170]...Whether or not there is a statutory limitation period, the court in addressing an application under section 994 of the CA 2006 may take account of unjustified delay by the claimant which has an adverse effect on a respondent or other persons when exercising its discretion to grant or refuse a particular remedy or any remedy. See Re Edwardian Group Ltd, Fancourt J at paras 571, 602–609; Cherry Hill Skip Hire, Andrews LJ at para 36; and Smith v Royal Bank of Scotland, Lord Leggatt at paras 54–60, Lord Hodge at para 89." (THG Plc v. Zedra Trust Company (Jersey) Ltd [2026] UKSC 6, Lord Hodge and Lord Richards)
"[61]...Equally, however, I can see no reason in principle why, in a case where a limitation period does apply, unjustified delay coupled with an adverse effect of some kind on the defendant or a third party should not be capable of providing a defence in the form of laches even before the expiration of the limitation period. The question for the court in each case is simply whether, having regard to the delay, its extent, the reasons for it and its consequences, it would be inequitable to grant the claimant the relief he seeks..." (P&O Nedlloyd BV v. Arab Metals Co [2006] EWCA Civ 1717)
"[571] In my judgment, the right approach is to consider how the delay in question should affect the exercise of the court's discretion under section 996 to make such order as it thinks fit. There is no statutory time limit for issuing a petition, nor does the equitable doctrine of laches strictly apply where the relief sought is not equitable relief. However, unjustified delay resulting in prejudice or an irretrievable change of position (the essential ingredients of a defence of laches) are likely to be significant factors in the exercise of the court's discretion to grant or refuse a particular remedy. So too is any evidence that the Petitioners have previously acquiesced in the state of affairs of which they now complain, which is the basis of a number of the authorities to which I was referred. If, in view of the delay and the reasons for the delay, it is unfair or inappropriate in all the circumstances for the Petitioners to obtain the relief that they seek, the Court will exercise its discretion to refuse it." (Estera Trust (Jersey) Limited v. Singh [2018] EWHC 1715 (Ch), Fancourt J)
- Query whether delay alone might be sufficient
"[231] The distinctions between laches in its rare sense of mere delay, laches in its usual sense of delay plus prejudice, and acquiescence are crucial in understanding the relationship between laches and the LA..." (THG Plc v. Zedra Trust Company (Jersey) Ltd [2026] UKSC 6, Lord Burrows, dissenting)
"[31] According to Snell's Equity (32nd Edn, para 5.016) mere delay, however lengthy, is not sufficient to bar a remedy (referencing Burroughs v Abbott [1922] 1 Ch 86 and Weld v Petrie [1929] 1 Ch 33). Mr George disputes this (but referencing Wright v Vanderplank (1856) 2 K & J 1, 8 De GM & G 133, where there was an express finding of acquiescence, and RB Policies at Lloyd's v Butler [1950] 1 KB 76, which was a limitation case turning on the date when the cause of action accrued, so scarcely giving strong support for his position). This is not the place definitively to resolve that debate, as we are concerned with analogies rather than the direct application of the doctrine. Nevertheless, the general principle is that there must be something which makes it inequitable to enforce the claim. This might be reasonable and detrimental reliance by others on, or some sort of prejudice arising from, the fact that no remedy has been sought for a period of time; or it might be evidence of acquiescence by the landowner in the current state of affairs. In Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221,..." (Paddico (267) Limited v. Adamson [2014] UKSC 7)
"[61] It is unnecessary for present purposes to decide whether, leaving aside the application of a limitation period, simple delay, however long, can give rise to a defence in equity. Although dicta in some of the cases suggest that it cannot, others indicate the contrary and I would not wish to rule out the possibility that the court would regard it as inequitable to allow a claim to be pursued after a very long period of delay, even in the absence of evidence that the defendant or any third party had altered his position in the meantime. However, if and to the extent that a limitation period is applicable to the claim, it is difficult to see why mere delay should defeat the claim until the limitation period has expired. I think Mr. Rainey's submission was right, therefore, being confined, as it was, to cases of that kind. I also think that the distinction between mere delay and delay which has an adverse effect on the position of the defendant or others is sufficient to explain the dicta in the cases on which he relied..." (P&O Nedlloyd BV v. Arab Metals Co [2006] EWCA Civ 1717)
- Some detrimental reliance/prejudice usually an essential ingredient
"[31] Counsel for the appellants also relied on the long delay in completion of the contract between the Smiths and Mr Hedrick. However, in order to resist a claim for specific performance on the ground of delay, it is necessary to show that prejudice has resulted from the delay. The trial judge made no such finding. This argument also fails." (Cenac v. Schafer [2016] UKPC 25)
"[64] Fifthly, laches is an equitable doctrine, under which delay can bar a claim to equitable relief. In the Court of Appeal, Mummery LJ said that there was “no requirement of detrimental reliance for the application of acquiescence or laches” - [2008] EWCA Civ 287, para 85. Although I would not suggest that it is an immutable requirement, some sort of detrimental reliance is usually an essential ingredient of laches, in my opinion. In Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221, 239, the Lord Chancellor, Lord Selborne, giving the opinion of the Board, said that laches applied where “it would be practically unjust to give a remedy", and that, in every case where a defence “is founded upon mere delay … the validity of that defence must be tried upon principles substantially equitable.” He went on to state that what had to be considered were “the length of the delay and the nature of the acts done during the interval, which might affect either party, and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.” (Fisher v. Brooker [2009] UKHL 41)
"[29] Reliance on the principle of laches will usually require some detrimental reliance on the delay (such as a change of position). Delay on its own is unlikely to be enough: Fisher v Brooker [2009] UKHL 41, [2009] 1 WLR 1764 at [64]." (Habberfield v. Habberfield [2019] EWCA Civ 890, Lewison LJ)
[875] That said, it is necessary to identify some consequence of the delay which justifies a refusal to grant the relief. Snell at paragraph 5-011 states as follows:
“That doctrine is not based, however, on the mere fact of delay. Something more than mere delay, more even than extremely lengthy delay, is required before B will be denied equitable rights under the doctrine of laches, as the question is whether the lapse of time has given rise to circumstances that now mean it would not be inequitable to deny relief to B. The principal example occurs where, perhaps as a result of having relied on a mistaken belief that B has no relevant right, A would now suffer an irreversible detriment, as a result of B’s delay, if B were permitted relief.” (Avonwick Holdings Limited [2020] EWHC 1844 (Comm), Picken J)
- Acquiescence alone not sufficient
"[879] Consistent with this, it seems to me that acquiescence is not a sufficient basis for engaging the doctrine of laches. When a party fails to assert or enforce a right for many years, it will almost invariably be the case that they may be taken to have ‘acquiesced’ in the face of the other party’s failure to perform. However, it cannot follow that the claimant will be denied their rights irrespective of whether this acquiescence has caused prejudice. As Sir Kim Lewison, sitting in the Privy Council, put it in Cenac v Shafer [2016] UKPC 25 at [31], “in order to resist a claim for specific performance on the ground of delay, it is necessary to show that prejudice has resulted from the delay.”" (Avonwick Holdings Limited [2020] EWHC 1844 (Comm), Picken J)
- Culpably excessive delay or prejudice arising from delay
"[201] For the remedy of rescission to be barred in equity, there would therefore need to be either culpably excessive delay, or a particular benefit thereby obtained by the representee that cannot be restored, or prejudice to the representor arising from the delay, as a consequence of any of which the grant of rescission was inequitable. No particular prejudice is pleaded or asserted in this case relating to the delay from October 2020 to May 2021. Though the Claimants did continue to live in the house during that period, that is not the kind of benefit that would make it unconscionable to grant rescission: the Court can make an adjustment for the use of the house in the meantime, when settling the terms of the order for rescission." (Patarkatsishvili v. Woodward-fisher [2025] EWHC 265 (Ch), Fancourt J)
UNJUSTIFIED DELAY
- Delay after the point at which the person was/should have been aware that the could seek the remedy
"[45] In Adam v Newbiggin (1888) 13 App. Cas. 308, the respondent agreed in February 1883 to take a share in the appellant's existing manufacturing business. That agreement was induced by serious misrepresentations contained in a report given to the respondent concerning the value and condition of the machinery and the profitability of the business. However, there was no suggestion of fraud, the respondent had little commercial experience and it was only in August 1884 that he became suspicious and began investigations, which led to him to discover the true position and make a claim for rescission. The House of Lords held that the respondent was entitled to rescind the agreement. Lord Watson stated, at 320:
"It cannot be reasonably suggested that he ought to have known these facts before his suspicions were awakened in August 1884; and he then made a searching investigation of the affairs of the partnership, which resulted in his bringing suit against the appellants in November 1884."
And Lord Herschell, in discussing the various grounds on which it was contended that rescission should not be granted, said at 330-331:
"I am, of course, putting aside any question of laches, for there is no pretence in the present case for saying that the discovery would have been made earlier had there been due diligence on the part of the respondent." (Salt v. Stratstone Specialist Limited [2015] EWCA Civ 745)
"[65] First, given that Brian only discovered in 2003 that Anthony died intestate, I do not think that by 2005, which is when Albert died, Brian was already guilty of delay." (Fernandes v. Fernandes [2015] EWHC 814 (Ch), Kevin Prosser QC)
"[320] Further and in addition, in my judgment, the claim for fees is subject to the doctrine of laches/acquiescence. In my judgment, Forester's evidence that he did not understand the contents of the many documents he signed in which the fees were referred to, is highly implausible. In cross examination he added that: "They just showed me that and got me to sign it because of taxation. They always said that to me." I have already rejected his evidence that he was too frightened to ask questions. Furthermore, it seems to me that the manner in which fees were charged in relation to all of the legal entities used to hold Olga's assets was explained in the letter of 20 April 1999 to Forester's Geneva attorney. In the circumstances, therefore, in my judgment on the balance of probabilities, he had the knowledge and the means of obtaining detailed knowledge of the fees over a long period and certainly back to 1999 if not 1983. In those circumstances, I consider that it is too late to contend that the fees were improper." (Labrouche v. Frey [2016] EWHC 268 (Ch), Asplin J)
- Reasonable diligence/not sleeping on rights
"[30] Finally, therefore, there is the analogy of actions to vindicate private property rights, for which no limitation period has been prescribed by Parliament. Here the equitable doctrine of laches may provide the answer: inaccurately summed up in the Latin tag, vigilantibus, non dormientibus, jura subvenient (the law supports the watchful not the sleeping). Sullivan LJ's reference to sleeping on his rights comes from the words of Lord Camden LC in Smith v Clay (1767) 3 Bro CC 639n, at 640n:
"A Court of Equity has always refused its aid to stale demands, where a party has slept upon his right and acquiesced for a great length of time. Nothing can call forth this Court into activity, but conscience, good faith, and reasonable diligence; where these are wanting, the Court is passive, and does nothing." (Paddico (267) Limited v. Adamson [2014] UKSC 7)
- There must be sufficient knowledge of the facts giving rise to the relief before delay can constitute a bar
"[32]...Later in Lindsay Petroleum (p 241) Lord Selbourne said this:
"In order that the remedy should be lost by laches or delay, it is, if not universally at all events ordinarily . . . necessary that there should be sufficient knowledge of the facts constituting the title to relief." (p 241)
It is for this reason that Mr George accepts that there must be knowledge of the facts before delay can constitute a bar to relief.
...
[34]... The better analogy would therefore appear to be with the equitable doctrine of laches, which generally requires (a) knowledge of the facts, and (b) acquiescence, or (c) detriment or prejudice." (Paddico (267) Limited v. Adamson [2014] UKSC 7)
"In order that the remedy should be lost by laches or delay, it is, if not universally at all events ordinarily - and certainly when the delay has been only such as in the present case - necessary that there should be sufficient knowledge of the facts constituting the title to relief." (Lindsay Petroleum Company v. Hurd (1874) LR 5 PC 221 at 241, UKPC)
- Measure from when C probably knew of their right to, e.g., rescind
"[202] The Defendant is therefore left only with the 7½ months that elapsed from the time when the Claimants probably knew of their right to rescind until their solicitors' letter electing to do so. That is not, in my judgment, the kind of long delay that could, of itself, make it inequitable to grant rescission for fraudulent misrepresentation..." (Patarkatsishvili v. Woodward-fisher [2025] EWHC 265 (Ch), Fancourt J)
- Or knowledge of rights is one factor
"[66] Mr George emphasised that there was no evidence that the appellant had actual knowledge of a right to rescind either the management agreement or the settlement agreement for undue influence before the point was finally raised. That was a relevant factor, but there is no hard and fast rule that ignorance of a legal right is a bar to laches or acquiescence. The authorities show that ultimately the court has to look at the whole of the circumstances and decide whether on balance it is just that the agreement should be set aside: see John v James [1991] FSR 397, 459 (Nicholls J) and Goldsworthy v Brickell [1987] Ch 378, 411-412 (Nourse LJ) and 416-417 (Parker LJ)." (Samual v. Wadlow [2007] EWCA Civ 155)
"[61] Similarly, in the case of laches, there is an issue between the parties whether, where the cause of action is based on fraud, delay at a time before the relevant party knows of his legal rights arising from that fraud can be material. Counsel for Capcon submits that it cannot. Counsel for the claimants submits that it can. In connection with that issue, I have been referred to a substantial body of authority, namely (in chronological order) Clough v London & North West Railway Company [1871] LR 7 Ex 26; Moxom v Payne [1873] LR 8 Ch App 881 at 885; Lindsey Petroleum v Herd [1874] LR 5 PC 221; Armstrong v Jackson [1917] 2 KB 822 at 828 and 829; Holder v Holder [1968] 2 WLR 237 at 251; Goldworthy v Prakel [1987] 1 Ch 378 at 411; Frawley v Neil CA 1st March 1999, unreported; and T v T [1996] FLR at 640. In addition, I was referred to passages in Spry on Equitable Remedies, 7th Ed pages 225 to 228 and Halsbury's Laws of England, 4th Ed re-issue Vol 16 para 927.
[62] This is not an issue the Master addressed, but it is another issue on which the decided cases do not speak with one clear voice. This is not the occasion on which to consider the issue for it is unnecessary to do so." (Capcon Holdings plc v. Edwards [2007] EWHC 2662 (Ch))
- No good explanation for the delay
"[54] No explanation for the delay was proffered by the defendants until they were cross-examined. At that point, their explanation was that they thought it was for Malcolm to make the next move after the caveats were in place (presumably a reference to his not having warned them or brought his own proceedings). That is plausible enough for me not to be driven to the conclusion urged upon me on behalf of the claimants, that they had deliberately waited until after Malcolm died in order to obtain a tactical advantage from his not being able to give evidence. I am prepared to accept that explanation. But it is not a good explanation for the delay, and does not justify it. I reject the further suggestion that they were under the impression that they could not bring proceedings themselves: that cannot be right, since they were in receipt of legal advice which will certainly not have suggested that." (Stephenson v. Daley [2026] EWHC 53 (Ch), HHJ Cadwallader)
- Entitled to time to investigate
"[36]...(2) I am also of the view that the remedy of rescission has probably not been lost by delay or other acts. As for delay, I agree with Mr Flaux QC that the Claimants were entitled to await the outcome of their inquiries of an expert whose task was to review the commercial terms of the charterparties in question and the options granted in relation to them. In my judgment the court will not, in such circumstances, deprive a party otherwise entitled to the remedy of rescission. The loss of the right to elect will, as a matter of law, I think, only arise where the relevant facts are or ought to be known to the party who has such a right. In this case, the claimants were entitled to await the outcome of their expert's investigation before exercising their right to elect. As it was put in the eighth witness statement of Stuart Shepherd, the partner responsible for the case on behalf of the Claimants:
"Without waiving privilege, I can also indicate that, as regard the timing of the rescission of the charters, it was not considered that an election could properly be made until my firm and Counsel considered that we were in a position to put our name to a pleading containing an allegation that the charters had been procured by fraud and our clients were completely satisfied that this was the case. Although my clients considered from as long ago as October 2005 that the charters were very probably tainted by fraud involving Mr Nikitin, and my firm considered that it was likely that that was the case, the distinguishing feature in relation to the time charters was that Mr Privalov had no involvement in that aspect of Sovcomflot's business."
I conclude, therefore, that the Claimants have a good case for saying that they had a right to elect the rescind the charters and have exercised that right timeously." (Fiona Trust & Holding Corporation v. Privalov [2006] EWHC 2583 (Ch), Morison J)
- Attempting to resolve the situation through other means (for 4 years)
"The more difficult question is that of laches. The writ in this action was issued on February 27, 1953, and there is no doubt that the plaintiff had been aware of the objections to the validity of the settlement since the year 1949. I have been referred to Allcard v. Skinner,8 in which a majority of the Court of Appeal held that acquiescence had in that case operated as a bar to the plaintiff's right. I have felt a great deal of difficulty about this. No doubt the plaintiff tried to be relieved from the embarrassments of the settlement by means of the power contained in the settlement itself, and for some four years she tried to secure the end which she seeks in this action by endeavouring to induce the defendant bank to revoke the trusts and to allow herto receive the funds for herself. That seems to me to involve an inconsistency of attitude on the plaintiff's part which has little real substance, and on the whole, though with hesitation, I think that the action should succeed and the plaintiff should be granted the relief which she seeks." (Bullock v. Lloyds Bank Ltd [1955] Ch 317 at 327, Vaisey J)
- Delay after commencing proceedings may be relevant
"It is not, in my view, open to me to take into account the great delay since the issue of the writ. Where the court is asked to exercise a discretionary remedy, such as granting an injunction or specific performance, delay since the writ may be as important as the delay before the writ. I am not being asked, however, to exercise any discretionary remedy but to enforce the plaintiff's right as a beneficiary under a constructive trust. If the plaintiff establishes her rights as at the date of the writ, she is entitled to enforce them. I may add that I am not dealing with the case where the action has gone to sleep for so many years that the delay may itself be evidence of abandonment. I called for evidence on this point as I was so shocked at the delay; but I am satisfied that the action did more or less continuously progress, though at the pace of a snail. I cannot regard the delay in this case as sufficient to defeat the plaintiff's claim." (Re Jarvis [1985] 1 WLR 815 at 819, Upjohn J)
Examples
- 7 months not that long - understandable C would wish to consider carefully
"[202] ...
i) First, the delay is not of itself very long or excessive, merely somewhat longer than one might have expected. It would not have been remotely surprising if the Claimants had considered their position and taken further advice for a period of up to 4 months before making their election, possibly longer.
ii) Second, the length of the delay had no particular consequences, either adversely to WWF or in favour of the Claimants.
iii) Third, it is not suggested that the Claimants delayed in order to gain some advantage, or to make WWF's position worse, nor does WWF say that in fact the delay did worsen his position.
iv) Fourth, it is understandable that the Claimants would have wished to consider carefully their rights and their options before electing to rescind and bring a claim for fraudulent misrepresentation, both because it is a serious claim to bring and because it would have consequences for the Claimants' family's living arrangements. Electing to rescind would preclude the Claimants from changing their minds and could require them to remove from their family home at short notice, if the rescission were accepted.
v) Fifth, the process of deciding what to do would have involved seeking specialist legal advice, perhaps from more than one source, before making an irrevocable election.
vi) Sixth, it would also have involved discussions between each of the Claimants and Mr Ershikov or others at BILI. Mr Seitler, noting that the First Claimant, Ms Patarkatsishvili was not an active participant in the litigation, suggested to Dr Hunyak that she did not support the claim that was brought. Although Dr Hunyak disputed the suggestion, it is easy to see in a case like this that differences of view between the Claimants and their advisers may have needed to be addressed.
vii) Seventh, and in summary, although the Claimants took a substantial time to make up their minds, there is nothing in the length of time taken alone that makes it inequitable for them to choose in May 2021 to rescind the contract." (Patarkatsishvili v. Woodward-fisher [2025] EWHC 265 (Ch), Fancourt J)
- Not applied where difficult to identify correct position and, in any event, no detrimental reliance
"[64] I have touched on the doctrine of laches. It simply does not arise in this case. I cannot begin to imagine the complexity of trying to unravel the background to this case without full disclosure and full documentation. There has been no delay between discovering the mistake and bringing the claim to court in my view. Even if I am wrong on that, then I accept the point that Mr Sykes QC makes about the need for detrimental reliance for the doctrine of laches really to bite. There is no detrimental reliance stemming from any delay and I am not satisfied, even on the factual background, that there has been any delay." (Abadir v. Credit Suisse Trust Ltd [2021] EWHC 2573 (Ch), Chief Master Shuman)
PREJUDICE
- Acts during the course of the delay which justify a refusal of relief
"[79] ... Secondly, in order to defeat Mr Fisher’s claims on the ground of laches, the respondents must demonstrate some “acts” during the course of the delay period which result in “a balance of justice” justifying the refusal of the relief to which Mr Fisher would otherwise be entitled. For reasons already discussed, the respondents are unable to do that. They cannot show any prejudice resulting from the delay, and, even if they could have done so, they have no answer to the judge’s finding at [2006] EWHC 3239 (Ch), para 81, that the benefit they obtained from the delay would outweigh any such prejudice." (Fisher v. Brooker [2009] UKHL 41)
Effect on evidence
- Relevant but not to speculate
"(iv) Prejudice to the fair hearing of the case
[41] The longer the lapse of time since the original registration, the more difficult it may be to have a fair trial of the issues relating to registration, perhaps in particular as to the length and nature of the use to which the land was put in the twenty years previously and to whether it was contentious or as of right. As this is a full hearing, evidence of those matters will be necessary, but the people who could give such evidence may have died or moved away or otherwise be unavailable. This is perhaps a species of prejudice to the local inhabitants, who may find it much more difficult many years later to adduce evidence of their use of the land than they would have done had the challenge been made earlier.
[42] There is a further point about prejudice. Mr Laurence on behalf of Betterment and Paddico objected in particular to the view of the majority in the Court of Appeal that after a certain lapse of time prejudice could be inferred without evidence. The correct view, as it seems to me, is that there must be some solid material from which such inferences can be drawn. Speculation or assumptions are not enough. But the longer the delay, the easier it will be to draw such inferences. In general I would agree with the approach of Patten LJ in the Betterment case, that there should be "material before the court to show that other public or private decisions are likely to have been taken on the basis of the existing register which have operated to the significant prejudice of the respondents or other relevant interests"." (Paddico (267) Limited v. Adamson [2014] UKSC 7 - applying laches by analogy to rectification of a statutory register)
- No prejudice where it is pure speculation whether deceased witness would have had relevant evidence
"[67] Thirdly, none of the witnesses even mentioned Thomasina or Appolonia, let alone suggested that they might know something of relevance about the case. Whether they might possibly have given relevant evidence if these proceedings had been commenced earlier is therefore pure speculation. Moreover, I have already found that Anthony did not tell any members of his family that he had made a gift of the Property to Mervyn." (Fernandes v. Fernandes [2015] EWHC 814 (Ch), Kevin Prosser QC)
- Delay denying the court evidence that would have been of considerable assistance
"[53] The period of delay from the end of 2017 until 28 November 2024 has deprived the court of the evidence of Malcolm himself, which would have been of considerable assistance to the court and the parties. The passage of time has inevitably weakened the memory of Mr Davies and Ms Sadler, important witnesses. The quality of the evidence of all the witnesses must have been diminished. The state of the will file cannot be better ascertained since Mr Davies' firm was closed down on 21 May 2023. Not only has this prejudiced the parties, including the claimants, it has rendered the task of this court in determining the facts substantially more difficult than it might otherwise have been." (Stephenson v. Daley [2026] EWHC 53 (Ch), HHJ Cadwallader)
Effect on third parties
- Potential effect of rectifying public register on public authorities taken into account
"(iii) Prejudice to public authorities and the public they serve
[40] The authorities too may have made decisions in reliance on the registration which they would not have made without it. For example, the local planning authority may have granted planning permission for residential development on other land because the green is not available for development. On the other hand, maintaining the registration of a village green which ought not to have been registered may be damaging to such interests, as where the land is allocated for much needed local housing." (Paddico (267) Limited v. Adamson [2014] UKSC 7 - applying laches by analogy to rectification of a statutory register)
- Potential effect of rectifying public register on third parties taken into account
[37] As to (c), detriment or prejudice, this, it seems to me, will usually be the crux of the matter. Because this is a public register and there are public as well as private interests involved I would not limit the potential prejudice caused by rectification to the prejudice to the local inhabitants who will no longer be entitled to use the land for lawful sports and pastimes. There are at least four categories of prejudice which might be relevant and no doubt more might be imagined:
...
(ii) Prejudice to other individuals
[39] There may be people who have made decisions which they would not otherwise have made on the basis that the land is a registered town or village green. People may have bought houses because of it or they may have refrained from selling houses because of it. It is worth bearing in mind, as Lord Sumption pointed out in the course of the hearing, that the right which is protected by registration is not the right to a view, but the right to use the land for lawful sports and pastimes. But many people are attracted to properties near a village green because of the recreational opportunities it offers and the community spirit which these engender – anyone who grew up with a traditional village green can understand the focus it brings to village life which would not be there if the green were not there. (Paddico (267) Limited v. Adamson [2014] UKSC 7 - applying laches by analogy to rectification of a statutory register)
- Query the relevance of prejudice caused to HMRC by delay
"[55] As an equitable remedy, rescission is subject to the doctrine of laches. HMRC refer to Lewin on Trusts, 20th edn at 5-089:
'A claim to rescission or rectification is not within the Limitation Act 1980 but is subject to the equitable doctrine of laches. And so delay and acquiescence may bar a claim to rescission or rectification, certainly where relief is opposed on such grounds. It has been said that the doctrine of laches applies to a party seeking relief "where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material". There must have been some form of detrimental reliance on the part of the person relying on the defence, or a relevant third party, in order for it to succeed.'
[56] In Pitt v Holt, Lord Walker at [142] indicated that HMRC took no point on delay, despite the fact that there had been considerable delay before the claim was issued. The applicability of delay was therefore not considered. It is not self-evident to me that detrimental reliance by HMRC on delay is capable of leading to the refusal of relief on the grounds of laches, in circumstances where the delay does not affect the position as between the disponor and those who benefit or might in future benefit under the disposition. As I have noted above, I consider that the question of unconscionability is to be determined in relation to those affected in this way, separate from public policy considerations. If relief were to be refused because of prejudice to the body of taxpayers more generally, this would seem to be an argument squarely based on public policy.
[57] That issue is, however, a matter for another case in which it is properly before the court. If HMRC wish to rely on prejudice to taxpayers generally as a ground for the refusal of relief, I consider that they must become a party to the claim, and file evidence explaining their position and, of course, affording the other parties to the claim the opportunity to respond by filing evidence themselves. Writing a letter at the eleventh hour and making this sort of point in elliptical terms is not an appropriate way for it to be raised." (JTC Employer Solutions Trustee Limited v. Garnett [2024] EWHC 3128 (Ch), Master Brightwell)