Based on extensive legal advice, the options being proposed by the Senators would further complicate matters for all concerned, be likely to incur litigation and increase legal costs, and bring little benefit, if any, compared with the legal rules already set out in the Bill. I will give a number of reasons for this.
It is worth recalling that, before the Land and Conveyancing Law Reform Act 2009, there were effectively three different and parallel sets of rules under which a person could claim a prescriptive easement or profit over another person's land, those being, the doctrine of lost modern grant, the provisions of the Prescription Act 1832 and the old common law rule of showing use as of right since time immemorial. Each of these sets of rules differs from the other, with different requirements and conditions. Claimants often claim under all three sets of rules in the alternative. That is one of the main reasons for the law in this area being needlessly complicated and confusing.
The approach taken by the Bill is already to preserve the pre-2009 law, including the provisions of the Prescription Act 1832, for two groups of transitional cases, those being, all cases that are already pending before the courts or the Property Registration Authority on 30 November 2021 and all cases where the claimant had already completed a prescription period required under the pre-2009 law before that year's Act came into force in December 2009. This is provided for in section 6(2)(a) of the Bill. The intention is to ensure that any right that might have already accrued is fully respected.
The Bill provides that, after 30 November 2021, new non-transitional claims will be made under just one of the three sets of pre-2009 rules, namely, the doctrine of lost modern grant. The other two sets of pre-2009 rules were abolished by the 2009 Act for all but transitional claims and are not revived by the Bill. The reason for choosing the doctrine of lost modern grant is simple, in that it is not sustainable or desirable to maintain all three sets of rules into the future. That would be a recipe for confusion and needless complexity and would add considerably to delays and legal costs. After detailed analysis and legal advice, it was evident that the doctrine of lost modern grant was the simplest, clearest and most favourable of the three sets of rules and, importantly, there were few, if any, cases where a right to prescriptive easement or profit could be more successfully acquired under the 1832 Act than under the doctrine of lost modern grant. It is worth noting that the stakeholders with the widest experience of prescriptive rights in practice - the Law Society and the Bar Council - expressed a strong preference for this choice when consulted. The Bill is seeking to put in place an interim set of rules that are as clear and familiar as possible. This area of the law will now be examined by an expert review, which will consider whether any further or more detailed changes are desirable.
The rules under the 1832 Act are generally considered to be particularly badly drafted and unclear. As someone who practised law for 14 years and dealt with the Prescription Act, I heartily endorse this view. The English law reform committee described it in 1966 as having the "unenviable reputation of being one of the worst drafted Acts on the Statute Book." The English Law Commission repeated this opinion recently. In 1969, the Ontario Law Reform Commission stated that it was "a mystery to many a practising lawyer". Our Law Reform Commission stated in 2002 that the Act was designed to reduce the difficulties and uncertainties of prescription but had instead added complications to the process of establishing the rights belonging to users. The main Irish authorities variously describe it as "the spectacularly botched Prescription Act 1832" in an article by Mr. Peter Bland, SC, in 2011, the badly drafted Prescription Act 1832 by Professor John Mee in 2021, notorious and creating its own difficulties by Professor J. C. W. Wylie in 2021, etc.
It may be useful to give some concrete examples of how the Prescription Act's rules compare in practice with the rules proposed by the Bill under the doctrine of lost modern grant.
The rules on prescription periods are more complicated under the Prescription Act and can be significantly longer. For example, 20 years' use as of right is generally sufficient under lost modern grant for either an easement or profit à prendre. However, the Prescription Act requires at least 30 years for profits à prendre. The Prescription Act expressly refers to a claimant who has applied to court to validate a prescriptive right. Some authorities argue that it only applies in that context. That creates an incentive to litigate, adding to legal costs and creating uncertainty and unnecessary stress between neighbours.
Under the Prescription Act, claimants must show not only that they have completed the required prescription period, but also that their prescription period continued right up to the date that they asserted their claim by bringing legal proceedings, the next before suit condition. Any gap or interruption at this point creates problems for the claim. As the Law Reform Commission pointed out, this is not required under the lost modern grant. Altogether, I think it is clear that there are good reasons the proposed amendments are not necessary or desirable in connection with the Prescription Act. Given the gravity of the concerns that have been raised consistently throughout history since this Act was passed, there is little or no justification for raising it from its deathbed and bringing it back into Irish law.
Those are my general comments about the issues, particularly amendment No. 4, which refers to section 2(b), one of the most important provisions of the Bill. That subsection essentially sets out the legal rules to apply following the coming into operation of the Bill to claim to a prescriptive easement or profit à prendre, saving the two groups of cases covered by section 2(a) and section 6(2), as mentioned previously. The rules to apply are those of the doctrine of the lost modern grant, following the strong preference expressed by the stakeholders who consider the most familiar and satisfactory set of rules, pending the proposed detail review. However, the effect of proposed amendment No. 4 is that rules under the Prescription Act of 1832 would also be revived and would apply to claims made after 30 November 2021, alongside the doctrine of the lost modern grant. The Minister and Department are firmly opposed to this amendment for all the reasons I outlined. My views on the matter are clear.