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England and Wales Court of Appeal (Civil Division) Decisions

You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hampshire County Council v. Gillingham & Anor [2000] EWCA Civ 105 (5 April 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/105.html
Cite as: [2000] EWCA Civ 105

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Case No: CCRTF 99/1143/B3

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHAMPTON COUNTY COURT
(HH Judge Rudd)
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 5th April 2000
B e f o r e :
LORD JUSTICE BROOKE
LORD JUSTICE SEDLEY
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	HAMPSHIRE COUNTY COUNCIL	Claimant/ Respondent
	- and -
	LESLIE KEITH GILLINGHAM and ANN PATRICIA GILLINGHAM	Appellants/ Defendants

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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The Second Appellant in person on behalf of the Appellants
Ranjit Bhose (instructed by Hampshire County Council for the Respondents)

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Judgment
As Approved by the Court
Crown Copyright ©

LORD JUSTICE BROOKE:

This is an appeal by the defendants Leslie Keith Gillingham and Ann Patricia Gillingham from a judgment of Judge Rudd in the Southampton County Court on 28th September 1999 when he ordered them to remove a wooden gate and concrete hanging post located at Point A on the plan annexed to his order at or before noon on 19th October 1999. The judge also granted three restraining injunctions against the defendants. The first prohibited them from erecting any gate, fence or other obstruction on the public footpath between points B and C on the same plan or anywhere else on the path. The second prohibited them from erecting any false or misleading signs on or in the vicinity of the public footpath between those two points or anywhere else on the path as were likely to deter members of the public from using it. The third prohibited them from accosting, harassing or annoying members of the public in their lawful use of the public footpath between those two points or anywhere else on the path.

In his reserved judgment the judge explained that the claimants, the Hampshire County Council ("Hampshire"), were asserting the rights of the public over a public right of way at Spratts Down, near Calshot. Spratts Down lies in the estate of the Manor of Cadland. This estate is on the western side of Southampton Water where it joins the Solent. The public footpath in question is known as Path Number 6 in the Definitive Map and Statement prepared for the area under Section 32 of the National Parks and Access to the Countryside Act 1949: see now the Wildlife and Countryside Act 1981 ss 53-57.

Spratts Down is quiet and relatively remote. The estate roads of the manor constitute the tracks by which the settlement is reached, and the public have rights on foot only. Their rights in many cases co-exist with the rights of the tenants of the manor to use the tracks for all purposes. In other words, there are private rights and public rights over the same track.

The area has a long history of human habitation. It was allegedly populated by smugglers long ago. Although over the past few years several houses have been demolished or removed, most the houses in the settlement are made of wood and were constructed in the 1920s. Each house is situated on its own plot, which is enclosed by a low bank with a thick hedge on top. These plots are apparently let by the Manor of Cadland to the tenants by some form of licence agreement on an annual basis. Some of the occupiers and their families have lived in Spratts Down since before the Second World War.

The history of the present dispute goes back to 1985. By a conveyance made on 14th August 1985 Mr Maldwin Drummond, who is the tenant for life of the Manor of Cadland, conveyed two parcels of vacant land at Spratts Down to the defendants. In a separate transaction, he leased a much larger plot of land to them for 15 years. The two parcels were given distinctive colouring in the plan annexed to the conveyance, on which Path 6, which bisected them, was marked brown. The conveyance granted "a right of way insofar as the vendor is able to grant the same with or without vehicles for whatsoever purposes" over the brown land.

In a pre-contract inquiry the Gillinghams' solicitors referred to the track coloured brown. They said:

Mr Drummond's solicitors replied:

Hampshire told the Gillinghams' solicitors on 7th June 1985 that the brown path was Public Footpath No 6 as defined in the Definitive Footpath map. On 2nd July 1985 Mr Drummond's solicitors told the Gillinghams' solicitors that the gate should be positioned at the point where the tree screen which separated their neighbours' property from their own continued across the path to the other side of the land being conveyed to them. They were also asked to confirm that the Gillinghams would ensure that there was a pedestrian way, and that they also make provision for riders to pass.

The judge said that the Gillinghams acquired this land for four purposes. First, they wished to build a house called Ashville on the vacant eastern plot. Next, they wished to erect kennels for the Great Danes which Mrs Gillingham was breeding. So far as the lease of the adjoining land was concerned, this contained a user condition restricting the use of this field "solely and exclusively as a garden centre and nursery". More controversially, Mr Gillingham wished to use part of that land in conjunction with what the judge described as a transport business.

The judge recorded that shortly after the Gillinghams arrived in Spratts Down trouble started between them and the other residents. He mentioned by way of general background the fact that since 1985 the warfare at Spratts Down has involved the Manor of Cadland, the parish council, the district council, Hampshire as the county council and at least two Members of Parliament. It has also involved hearings at various local magistrates' courts and the Portsmouth County Court in addition to the judge's own county court at Southampton. Two of the earlier hearings deserve particular mention at this stage.

The first was in 1987 when Mr Gillingham was convicted by local magistrates of wilfully obstructing the free passage along Path No 6 without lawful authority or excuse. At the end of June 1987 he had placed two railway sleepers a foot high, end to end, across the entire width of the public footpath. The second was at the Portsmouth County Court in 1997 when the Gillinghams compromised an action brought against them by Mr Drummond in which some of the boundaries of the land conveyed to them in 1985 formed part of the subject matter of the dispute.

The judge summarised the cause of the incessant warfare at Spratts Down, and the reason for the present proceedings, in these terms:

Hampshire contended that the Definitive Plan was conclusive for all purposes connected with this footpath. Its narrative describes the route and dimensions of the path where it passes between the Gillinghams' two parcels of land in these terms:

A photograph said to have been taken in 1984 by a Mrs Tillyer (whose evidence the judge accepted), before the Gillinghams arrived, shows the gravel road and what is clearly evidence of significant vehicular use along it. Hampshire maintained that the public footpath at this point was intended to consist of a track 8 feet wide running between hedgerows which were supposed to be approximately 9-12 feet apart (see paragraph 11 of the Amended Particulars of Claim).

In the 1997 litigation with Mr Drummond, each party instructed a surveyor and the judge found on the evidence that these surveyors reached agreement as to the boundaries shown in the 1985 conveyance. That action also embraced a number of disputes relating to Mr Gillingham's transport business. So far as it related to the matters in issue in the present proceedings, it was compromised by a consent order which embraced a number of personal undertakings by Mr Drummond and the Gillinghams respectively, an eight-point order, and a schedule setting out an 18-point agreement between the parties. All further proceedings were then stayed except for the purpose of carrying these terms into effect. Liberty to apply for this purpose was reserved.

One of the orders made by consent in 1997 was to the effect that the boundaries of the blue, red and red-hatched land (referred to in that case) were as set out in a plan annexed to the court order, which included an agreed measurement of the brown land at one point. The Gillinghams gave an undertaking to remove the gate near point 8 on that plan within 28 days, together with any posts, rails or footings associated with the hanging (ie eastern) post, and not thereafter to erect any gate, fence or other obstruction on the brown and/or yellow land without the written consent of Mr Drummond or his successors in title. Mr Drummond, for his part, agreed to erect and maintain at his own expense a gate near point 29 on the plan. This gate was to be an automatic barrier, leaving a gap of no more than five feet, thereby preventing vehicular access to the brown land by the general public. We have been told that the gate and fittings near point 8 were indeed removed within the stipulated 28 days.

Mr Drummond agreed that he would provide the Gillinghams with two cards or keys for opening the gate, and that he would issue similar keys or cards only to those persons who were entitled to vehicular access to the brown land. Provision was made whereby the Gillinghams would remove their gate at point 7 on the plan (but leave the hanging post intact) within seven days of the installation by Mr Drummond of the new automatic barrier.

The agreement by which this action was settled broke down as soon as Hampshire made it clear that Mr Drummond could not obstruct a public footpath with an automatic barrier of the type he had undertaken to erect. There were also other difficulties. Mrs Gillingham, for her part, disputed the authenticity of a plan which she said had been altered from the original plan annexed to the consent order, and the judge was told that the Gillinghams were instructing solicitors to make an application of some kind to the Portsmouth County Court in relation to that consent order. Mrs Gillingham told us that no application to the court had yet been made.

Hampshire did not invite Judge Rudd to make specific findings as to the boundaries of the right of way. Part of the present difficulty in this regard arises from the fact that the Gillinghams have carried out substantial works on both their parcels of land. This means that the physical boundaries of the land, and the limits of the surface of Path No 6, are not easy to determine.

The judge, who visited the site, said in his judgment that there were enough features remaining to determine the general line of the footpath between the two parcels. He reminded himself that it appeared that in the Portsmouth action the parties' surveyors had no difficulty in agreeing the boundary of the Gillinghams' two parcels of land in the vicinity of the footpath. The Gillinghams' attitude was that that they did not dispute that Mr Drummond owned a strip of land there, or that the public have footpath rights. Their view was that provided that they left a gap of eight feet for the use of the public on the footpath, they had then done all they needed to do.

They were fortified in this respect by a letter written by Hampshire to them on 12th February 1988 at a time when the county council was trying to take the heat out of a difficult situation. Although the council knew what was written in the narrative to the Definitive Map, they appeared at that time to be willing to be satisfied if an 8 foot wide gap was provided for public use. The issue at this time was whether that gap had to be on the line of the original footpath. Their letter reads:

Notwithstanding the contents of that letter, the judge held that as a matter of law the public were entitled to the use of the full width of the footpath, that is to say, a width between 9 feet and 12 feet in this area. He said that there could be no issue between the parties as to this. Hampshire admitted to him that their conduct in the past in asserting the rights of the public over this footpath against the Gillinghams fell short of what the public could expect, but he declined to find that Hampshire were estopped from asserting the rights of the public. They had a statutory duty to assert those rights, and this duty remained in place.

The judge said that any agreements Mr Drummond might have made with the Gillinghams over the years, any acquiescence by Hampshire in unlawful obstruction of footpaths and rights of way by the manor of Cadland Estate, and any misleading information provided by Mr Drummond about the nature and extent and use of the right of way before the Gillinghams purchased their property, could not affect the position.

The evidence showed that over a number of years the defendants had obstructed the footpath at various points. At the time of the trial of the action it was said that they were obstructing it by means of a substantial gate, and its hanging post, of which we have been shown two colour photographs (R 19). This gate is at Point C on a plan annexed to the Particulars of Claim, where Path 6 first enters the space between the Gillinghams' two parcels of land, coming from the south. Hampshire asserted that this gate obstructed the full width of the footpath. The Gillinghams maintained that Mr Drummond had allowed them to have a gate at this point, and that in any event there was an 8 feet wide gap between the gate and the opposite hedge, which was sufficient for the purposes of public footpath use. We were told that the track between the hedges was 16 feet 6 inches wide at this point.

A further cause of contention related to signs erected by the Gillinghams from time to time either on or adjacent to the footpaths. Hampshire's case was that the Gillinghams erected signs with a view to deterring the public from using the footpath, and that in the past they had erected signs of a misleading nature for this purpose. We have been shown a colour photograph of one such sign, which read "Great Danes Running Loose" although it is fair to say that that sign had been taken down. Mrs Gillingham maintained that the sign was obscured for some years before it was removed. She also relied on letters written by Hampshire in 1988 and 1990 in which they said that the wording of notices was not misleading, although they reserved their position on the question whether they might have a deterrent or intimidatory effect. There was also evidence before the judge of intimidatory behaviour by Mr and Mrs Gillingham of a general kind. The judge gives some examples of the behaviour complained of on page 8 of his judgment.

Those, then, were the issues. Hampshire called in support of their case a number of local people, whose names are listed on pages 8-9 of the judgment. Four of them had lived in the area for a very long time. Mrs Gillingham was the only witness for the defendants. She disputed line by line the evidence given against her and her husband in respect of their conduct. She felt that there was a vendetta against her by the local residents, most of whom were tenants of the Cadland estate, and that this was the real source of the problem.

In the part of his judgment entitled "Findings", the judge said that the history of the relevant 50 metres of footpath was one of weak handling by Hampshire and the Manor of Cadland Estate and total confusion on the part of the Gillinghams. One of Hampshire's witnesses told the judge that "the problem is that they cannot understand that the footpath does not belong to them", and the judge said that this statement summed up the whole of the difficulty in the case.

He made an express finding that he accepted the evidence given by Hampshire's witnesses about the Gillinghams' behaviour. To the extent that Mrs Gillingham's evidence conflicted with theirs, he rejected her evidence. He was quite satisfied that the Gillinghams had behaved in the manner alleged by the witnesses with the motive of treating the strip of land between their two plots as if it was their own, and as if there were no private or public rights over the track.

The judge also found that there was a risk that, unless restrained, the Gillinghams might be tempted to erect signs of a misleading nature again with the intention of deterring the use of the footpath by the public.

As to the Gate at Point C, the judge said that the Gillinghams' argument that this allowed an 8 foot width for the passage of people using the footpath was simply a non-starter, regardless of what Hampshire might have told them in the past. Although the exact boundaries of the footpath were not defined, it was quite clear to the judge that the gate and the concrete post currently erected there obstructed the public from enjoying the full width of the footpath. He derived this conclusion from the evidence of the witnesses, an inspection of the site and the photographic material.

The judge went on to set out the terms of the three injunctions he was granting. He was sorry that he had had to leave open the question of the extent of the public footpath. He was also sorry that the Gillinghams did not consider themselves bound by the agreed plan prepared for the Portsmouth proceedings, even though there was apparently no dispute about the correctness of the plan where it showed the footpath passing between the Gillinghams' two plots. Whatever other differences the Gillinghams might have with Mr Drummond, the judge strongly urged that the boundary of the footpath as shown on that plan should be pegged out.

The judge ended his judgment in these terms:

The five-day hearing, at which the Gillinghams appeared in person, ended on 18th June 1999. In early August the judge sent a copy of his written judgment to the parties. 28th September was the date appointed for formal delivery of the judgment in court and for argument about ancillary matters. On 15th September 1999 a firm of solicitors wrote to the court on the Gillinghams' behalf complaining about Judge Rudd's failure to declare an interest. They said that it was not correct for the judge to say that the Manor of Cadland was not represented as such in the case. They asserted that the manor was represented by its estate manager, Mr Wright, who produced two statements and was questioned at length by the judge.

The Gillinghams' main concern stemmed from the fact that about three years earlier Judge Rudd had declared himself disqualified from hearing the action between the Gillinghams and Mr Drummond owing to the fact that he was acquainted with Mr Drummond. That dispute was concluded in the Portsmouth County Court. The solicitors also complained about the fact that before finalising his judgment the judge had called for the Portsmouth County Court files which he appeared to have perused and consequently allowed to influence his judgment. They added that their clients believed that Mr Drummond was the instigator of the current litigation by Hampshire.

When the court convened on 28th September, the judge ascertained that Mrs Gillingham knew the address to which she should write if she wished to make a complaint about him. He then heard argument about the terms of his order and costs.

In his short judgment on costs the judge was again critical of aspects of the behaviour of Hampshire and Mr Drummond. He was quite satisfied that on two occasions Hampshire had misled the Gillinghams, and he said that he had some sympathy for them, although not a great deal. Although Hampshire had won the action, he ordered the Gillinghams to pay only 75% of their costs.

This court granted the Gillinghams permission to appeal on the grounds that it seemed arguable that the judge's connection with Mr Drummond might have been disclosed and that if it had been, there might have been grounds for the judge to disqualify himself. There were in fact other grounds of appeal, for which the court did not expressly refuse permission. We received very full, clear, written arguments from both sides on all these issues, as well as oral argument on the "bias" point. I will consider the other issues on the appeal first.

Grounds 2 and 3 relate to the issues concerned with the court file from Portsmouth. These issues came about in the following way. On the first day of the trial Hampshire's chief witness, Mr Lawrence, produced a copy of the plan annexed to the consent order in those proceedings. The next day Mr Wright produced another copy of the plan. The judge decided that he needed to see the original plan on the court file and gave directions that the file should be sent across from Portsmouth immediately. Unhappily, the parcel was misaddressed. It went via the document exchange service to a solicitor in Wales rather than the Southampton County Court, where it eventually arrived five weeks later.

On the fifth day of the hearing the judge reverted to this question. He said that if the box from Portsmouth arrived, he would see what it was, and if he considered that it was of any importance or consequence in the proceedings and wished to hear what the parties had got to say about it, he would invite them to come back for this purpose. In his judgment he referred "for completeness" to having called for the file but he did not refer to any of its contents in his judgment, apart from the plan, of which he possessed a copy in any event.

Mrs Gillingham complained that the judge should only have asked for the plan attached to the order and not for the whole file. Once he received the whole file, he ought to have given the Gillinghams the opportunity of commenting on the contents of the file that had not been disclosed as evidence. It is also said that he should have disqualified himself after considering the contents of the file, "which could arguably be said to have influenced his decision".

In my judgment, there is nothing in this point. If the file had been at Southampton, the judge would have called for it and inspected the original plan on the day the issue arose. It would have been wrong, as well as unwise, to separate the original plan from the rest of the file, and when the file had failed to materialise by the end of the week the judge told the parties what he intended to do, and they did not object. There is no evidence that anything untoward occurred. If this very experienced judge had seen anything in the file (other than the plan he was searching for) which was not already in evidence before him, he would have disregarded it.

The Gillinghams also complain that the judge misled himself by considering this plan at all, given that counsel for Hampshire in his closing speech on 18th June told the judge, for the reasons he then gave, that for the purposes of his case he did not choose to rely on the plan. In particular, the plan lacked any clear reference to the dimensions of the brown land.

In fact, although the judge said that there had been a compromise between the Gillinghams and Mr Drummond in connection with the earlier court proceedings, and mentioned the existence of this plan in this context, he went on to describe the dispute that had now arisen and the difficulty of determining the surface of Footpath No 6 because of the substantial works the Gillinghams had done since they came to the area. He recorded the fact that Hampshire did not ask him to define the boundaries specifically. He considered, however, that there were sufficient features remaining on the ground to determine generally the line of the footpath and he also mentioned the fact, which he was fully entitled to mention, that it appeared that the parties' surveyors in the Portsmouth proceedings had had no difficulty in agreeing the boundary of the Gillinghams' two parcels of land in the vicinity of the footpath. On page 13 of his judgment, he told the Gillinghams that the best guide which both they and the Court had as to the precise boundaries of the path was the plan apparently agreed between the parties' surveyors. In those circumstances, he warned them that they would be well advised to exercise extreme caution in their dealings with any member of the public who was making lawful use of the land coloured brown on the plan agreed in the Portsmouth proceedings.

For my part, I can see nothing wrong with the judge's approach to the matter. He would have liked to have been able to identify the boundaries of the path with greater precision, but he was not given the material which would have enabled him to do so.

Next, complaint is made that the judge was wrong to order the removal of the concrete post. I have considered carefully all the points the Gillinghams have made in support of this complaint. In my judgment it was amply open to the judge on the available evidence, which Hampshire has identified in its skeleton argument, to find that the concrete post did encroach on the footpath shown on the Definitive Map, whose full enclosed width is described in the narrative to that map. The mere fact that Hampshire did not also ask the judge to order the removal of a section of the Gillinghams' close-boarded fence, where it met the gate and hanging post, cannot improve the Gillinghams' case in this regard. The question whether the concrete post obstructed the footpath shown on the Definitive Map raised an issue of fact for the judge to decide, and it is well known that this court will not readily interfere with the decision of a judge who has had the opportunity, denied to this court, of hearing the relevant witnesses.

The Gillinghams then complain that the judge ought to have considered or taken into account the evidence given by Mr Wright, who was the Estate Manager of the Manor of Cadland. Again, I have considered carefully the three points made by the Gillinghams under this head in their skeleton argument, and I have read Mr Wright's witness statements and the transcripts of his evidence at the trial with which we have been provided.

It was, in my judgment, unnecessary for the judge to refer explicitly to this evidence. This action was not concerned with a dispute over private rights as between the Gillinghams and Mr Drummond. It was an action brought by Hampshire in support of the right of the public over a public footpath. "Once a highway, always a highway", and the judge realised that nothing that was said or done as between the Gillinghams and Mr Drummond could affect those rights, which entitled the public to use the full enclosed width of the footpath. On page 7 of his judgment the judge said, correctly:

The Gillinghams' next point is that the judge was wrong to conclude that they were the persons in control of the gate. This point seems to be based on a misunderstanding of the differences between the law relating to enforcement notices and the law which the judge was bound to apply in the present case. Once he was satisfied that the Gillinghams had been responsible for erecting the gate and concrete post and that they had obstructed a public footpath then he was entitled to order them to take them down so that the public could enjoy their rights without obstruction. The judge was not concerned with any question whether civil or criminal proceedings should be brought against Mr Drummond: he was concerned to uphold the rights of the public over a public footpath.

The Gillinghams next raise an estoppel argument based primarily on the contents of Hampshire's letter of 12th February 1988: see paragraph 7 of their skeleton argument on the appeal. It is sufficient for me to say that I agree with the judge's reasons for rejecting this argument. There is ample authority to the effect that (i) the mere consent of a highway authority to an obstruction on the highway is ineffectual for the purposes of legalising it (Harvey v Truro RDC [1903] 2 Ch 638; and (ii) where a statute, like Section 130 of the Highways Act 1980, enacted for the benefit of a section of the public, imposes a duty of a positive kind, the person charged with the performance of the duty cannot by estoppel be prevented from exercising his statutory powers (Maritime Electric Ltd v General Dairies Ltd (1937) AC 610, 620).

The Gillinghams next argued that even if the judge had found that any part of their gate encroached on the public footpath, he ought to have disregarded this encroachment as de minimis, on the basis that the 5 foot gate next to the unobstructed 8 foot path did not interfere with the public's access. In making this submission they were reverting to the terms of Hampshire's letter of 12th February 1988 and to part of the evidence given by Mr Wright. The flaw in this argument is that as a matter of law members of the public are entitled to utilise the full width of any footpath over which they have rights of way, subject to a very narrow de minimis exception: see Hertfordshire CC v Bolden (The Times, 9th December 1986) and Wolverton UDC v Wills [1962] 1 All ER 243. The Gillinghams' argument takes no account of the width of the enclosures mentioned in the Definitive Map. They do not appear to understand that the public is entitled to enjoy the full width of the land between the enclosures (as the judge correctly held) even though Hampshire was not inviting the judge to grant wider relief than that sought in its pleaded case.

The Gillinghams then criticised the judge for failing to take into account the fact that no allegations of harassment had been made against them for many years, and they challenged the judge's findings of fact on the basis that no independent witness had given evidence to the judge. Once again, it is not in my judgment open to this court, which does not see witnesses, to interfere with the judge's findings, which were amply open to him to make on the evidence he received.

Finally, on this aspect of the appeal, the Gillinghams raised six issues of fact to which they complain the judge gave no weight, although they merited consideration. I have considered carefully each of the matters they raised. Mr Gillingham did not give evidence to the judge at all (although Mrs Gillingham tells us that her husband accepted her evidence), and the judge was not willing to accept Mrs Gillingham's evidence where it differed from that of Hampshire's witnesses. The judge was entitled on that evidence to find that the Gillinghams were obstructing the footpath shown on the Definitive Map and that there was a danger that unless restrained they might erect false or misleading signs to deter the public from using the footpath in future.

I now turn to the issue on which permission to appeal was expressly granted, and on which we heard oral argument from the parties. It was expressed in these terms in the Notice of Appeal:

Before turning to the law on this matter, it is first necessary to say something of the events of 1996 and the evidence we received about the preparatory hearings in the present action before going on to set out the evidence from both Mr Drummond and Judge Rudd about the extent to which they were known to each other.

In April 1996 the county court action between Mr Drummond and Mr and Mrs Gillingham was approaching trial. On 9th April 1996 the Gillinghams' solicitors wrote to Mr Drummond's solicitors and expressed their client's concerns about the venue for that trial. They understood that Mr Drummond was a JP and said that he would no doubt sit from time to time in the Southampton Crown Court on appeals from magistrates. They thought he might possibly attend other functions attended by members of the judiciary who sit at the combined court centre at Southampton. The Gillinghams' concern was that the trial would be before a judge who knew Mr Drummond personally, either through professional or social connections. They therefore sought consent to the transfer of the action to another trial centre, such as Chichester.

Mrs Gillingham has disclosed her former solicitors' copies of two letters they sent to her about this matter, on 16th and 18th April 1996 respectively. It appears that on 16th April a district judge directed that the action should be tried by Judge Rudd, provided that he first endorsed the fact that he had no knowledge of or connection with Mr Drummond. The matter was then listed before Judge Rudd himself on 18th April. The solicitor told Mrs Gillingham:

Without having the advantage of seeing these two letters, Judge Rudd has said in a Note written for this court that at the pre-trial review in that action he told the parties that he knew Mr Drummond and that he would be embarrassed to try a case in which he was a party. Since he was simply announcing his decision, he doubts if he gave any details of his knowledge of Mr Drummond. He has told us that his court was very short of circuit judges for trying civil cases, and he had to send the action to Portsmouth where it was eventually tried by a recorder (now a circuit judge).

So far as the present action is concerned, Mr Edward White, who has acted as Hampshire's solicitor in these proceedings, has told the court on affidavit that during conversations he had with Mrs Gillingham she had told him that she intended to argue that Judge Rudd should not hear the case due to his knowledge of witnesses. A hearing took place before Judge Lauriston on 22nd July 1998, when he directed a timetable for that action and ordered a pre-trial review before Judge Rudd. Mr White has produced an attendance note of this hearing which ends with these words:

Mr White explains how he decided after consultation that there was no friendship between any of the proposed witnesses and the local circuit judge. He had formed the opinion that the Gillingham's real reason for objecting to Judge Rudd was that he was known locally as a "no nonsense" judge which in the circumstances was welcomed. He has produced an extract from a letter he wrote to the relevant department of his clients on the 16th October 1998 in which he referred to the pre-trial review on 13th November and added:

Mr White has said in paragraph 6 of his second affidavit that he invited Mrs Gillingham to raise this issue in court before each of the pre-trial hearings, but she chose not to do so.

Mrs Gillingham for her part disputed that any such conversations took place. She did, however, recall a telephone conversation with Mr White some time prior to the pre-trial review when she raised her concerns with him that any judges in Hampshire might know of Mr Drummond. Mr White, however, assured her that Mr Drummond was not being called as a witness, and that her concerns were unfounded.

There was therefore a dispute on the affidavit evidence on this point, which we did not find it necessary to resolve in order to decide the appeal.

So far as the previous contacts between Mr Drummond and Judge Rudd are concerned, there are before the court an affidavit sworn by Mr Maldwin Drummond on 3rd November 1999 and a note prepared by Judge Rudd at the invitation of this court.

Mr Drummond says that he has been in the judge's company for a maximum of ten occasions in his life, and not at all during the last two years. On all but two of these occasions they were in the same room with others at various committee and other meetings to do with the New Forest, and at least one of these meetings Mr Drummond "crossed swords" with the judge over contentious matters.

On one occasion Mr Drummond delivered some papers in connection with the New Forest to the judge's house, accompanied by a member of the New Forest Committee, and he once met the judge in his chambers at Southampton County Court to discuss New Forest matters. Mr Drummond has never met the judge for a purely social purpose, and he is certainly not someone he would regard in any sense as a close personal friend. He has never mentioned the Gillinghams to him.

Judge Rudd, for his part, says that like Mr Drummond he lives and farms in the New Forest although they live at opposite ends of the Forest. The judge has lived in the Forest for 22 years and takes an interest in Forest affairs. He is a trustee of the New Forest Commoning Trust of which he was once chairman. He explains that Mr Drummond has for many years been very prominent in New Forest affairs. He was an elected Verderer, which makes him de facto Chairman of the Court of Verderers. He is also chairman of the New Forest committee, which co-ordinates the activities of a number of New Forest organisations.

All the judge's contacts with Mr Drummond have been in connection with New Forest affairs, and he confirms that he has never met Mr Drummond socially. He doubts if they have met more than two or three times in the past five years: he accepts that it is possible that they have met ten times over the last decade.

He recalls that he once visited Mr Drummond's house with his prospective co-trustees to discuss the formation of the New Forest Commoning Trust, and he says that Mr Drummond met him once in his room at the Southampton County Court. He has checked his diary, and finds that this meeting took place in June 1998. He also recalls meeting Mr Drummond alone at the offices of the New Forest Committee several years ago. He has no doubt that he met him to discuss some aspect of the affairs of the New Forest Commoning Trust, which usually meets in the offices of the New Forest Committee. He did not mention the occasion when Mr Drummond recalls that he delivered papers to his house.

He says he remembered the earlier action when he conducted the pre-trial review in the present case on 13th November 1998. He does not recall whether he told the parties again that he knew Mr Drummond, although he is sure he would have done so. He did not think there would have been any doubt in their minds about his knowing Mr Drummond, by reason of the earlier case.

He did not feel personally embarrassed in dealing with the present matter, because Mr Drummond was not a party, the Portsmouth case had been concluded by agreement, and so far as he could tell, Mr Drummond's involvement in the present case was incidental and not related to the issues at the trial. So far as he was concerned, he knew of no reason why he should not try the case. At the time of the pre-trial review, and also at the start of the trial, he was not aware that there was any prospect of the Gillinghams reopening the Portsmouth case or that the agreement by which that case was settled was legally unsatisfactory.

The judge said that at no point, either at the pre-trial review or before trial, did the Gillinghams suggest that he should not deal with the matter, even though they had been aware that he would deal with the case since July 1998, when Judge Lauriston made an order to that effect. If they had done so, or asked him for more details of his knowledge of Mr Drummond, he would have given them more details to enable them to make a proper decision. He would also have considered any objection they might make in the light of that information. If the Gillinghams had told them that they were intent on reopening the Portsmouth case, he would also have take this information into consideration when deciding whether he would deal with the present action.

Those, then, are the facts on this part of the appeal. I turn now to the law. We are assisted in this regard because in the recent case of Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 All ER 65 the Court of Appeal conducted an authoritative review of the present state of English law on issues connected with judicial bias.

This was not a case of automatic disqualification, like Dimes v Proprietors of Grand Junction Canal (1852) 3 HL Cas 759, 793-4 or R v Bow Street Metropolitan Stipendiary Magistrate ex p Pinochet Ugarte (No 2) [1999] 2 WLR 272. Nobody has ever suggested that Judge Rudd had an interest in the outcome of this litigation. What falls to be considered, therefore, is whether, having regard to the relevant circumstances which I have just outlined, there was a real danger of bias on his part, in the sense that he might have unfairly regarded Hampshire's case with favour or the Gillinghams' case with disfavour (see R v Gough [1993] AC 646).

In paragraph 21 of the Locabail judgment, Lord Bingham CJ adverted to the duty of a judge in cases in which there is a danger of bias. In automatic disqualification cases and in cases in which, for solid reasons, the judge feels personally embarrassed in hearing the case, he must recuse himself before any objection is raised. In any other case, if a judge becomes aware of any matter which could arguably be said to give rise to a real danger of bias, Lord Bingham said that it was generally desirable that disclosure should be made to the parties in advance of the hearing. He added:

In paragraph 25 Lord Bingham accepted that it would be dangerous and futile to attempt to define or list the factors which might or might not give rise to a real danger of bias. Everything would depend on the facts, which might include the nature of the issue to be decided. The court then discounted a great many features of a judge's personal life on the basis that it could not conceive of circumstances in which an objection could be soundly based on any of them:

The Gillinghams pin their argument on their contention that Mr Drummond was deeply involved in the case. His estate manager Mr Wright was a witness for Hampshire, and his solicitor, Mr Dobson, who had the conduct of the Portsmouth case, was present at the proceedings, helping Hampshire's counsel and solicitors with information and documents. They said that in these circumstances the judge was wrong when he said in the course of his judgment that the Manor of Cadland was not as represented as such in the case.

They say, in these circumstances, that because Judge Rudd had disqualified himself from hearing the earlier case in which Mr Drummond was a party, he should have disqualified himself from hearing the present action. They add that the judge ought to have known that the outcome of the Portsmouth action was still in dispute, because they had said so in paragraph 10 of the Case Summary dated 9th June 1999 which they had delivered to the court before the action started.

Mr Bhose, who appeared for Hampshire on the hearing of the appeal, took a point on waiver which we are unwilling to decide in the light of the unresolved dispute on the affidavit evidence. His principal point was that the Gillinghams had failed to make out any real danger of bias, or any sufficient uncertainty on the point to justify setting aside the judgment.

He invited us to dismiss the Gillinghams' complaint, if indeed it existed as a separate complaint, that the judge's findings were so favourable to Mr Drummond as to show that he was infected with actual bias. For my part I would accept Mr Bhose's submissions on this point. As I have shown in this judgment, the judge was disposed to be very critical of Mr Drummond and those responsible for the management of his estate when he considered the occasion warranted. The fact that the judge was disposed to believe the evidence of the estate's tenants, which was all one way, as against Mrs Gillingham's bare denials and Mr Gillingham's silence, cannot possibly provide a safe foundation for allegations of actual bias.

Turning to the case based on the existence of a real danger of bias, Mr Bhose reminded us of the principles set out by this court in the Locabail case. He also referred us to a passage in the judgment of Mason J in Re JRL, ex parte CJL (1986) 161 CLR 342 in the High Court of Australia, in which Lord Bingham (see Locabail, para 22), said that the court found great persuasive force. Mason J said at p 353:

In my judgment there is no good reason for setting aside this judgment on the basis that there was a real danger of bias arising from the fact that Judge Rudd tried the case. The fact that he took the precaution of recusing himself in connection with the action concerned with determining Mr Drummond's private rights once the Gillinghams had shown themselves sensitive to the prospect of having that case tried by any judge who had any prior knowledge of Mr Drummond, cannot possibly mean, in itself, that he should have recused himself in determining this action which was concerned not with private rights but with public rights. I am unimpressed by the argument that his judgment in the present action also touched on the private rights of tenants of the estate, who had the right to use the tracks at Spratts Down for all purposes, and not merely on foot.

As the senior resident judge of the Southampton County Court Judge Rudd was the natural member of the judiciary to try this case. As a long term local resident it would have been surprising if he had never met Mr Drummond, but the evidence shows that such previous dealings as they had had were very much business dealings connected with their mutual interest in the affairs of the New Forest, and that they could not by any stretch of the imagination be described as friends or close acquaintances. Once the judge had decided that there was no possible reason why he should not try the action he was not, in my judgment, obliged to make any kind of disclosure to the parties. Even if he had happened to read the passage in the Gillinghams' summary which would have told him that they were now disputing the outcome of the Portsmouth proceedings, there was still no good reason why he should have considered recusing himself from hearing this action, concerned as it was with public rights, and not with Mr Drummond's private rights.

For all these reasons I would dismiss this appeal.

LORD JUSTICE SEDLEY:

It is clear that Judge Rudd was fully alive to this question and to the consequent need for care. In 1996 he readily recused himself on learning that Mr Maldwin Drummond was a party to the proceedings. In the present proceedings I have no doubt he would have mentioned his acquaintance with Mr Drummond, such as it was, if Mr Drummond had been either a party or a proposed witness. But Mr Drummond was neither. He featured in the case only as part of its documented history.

In her witness statement Mrs Gillingham expressed a rather different view of Mr Drummond's role. She accused him of breaking the 1996 order and asserted that "with his influence [he] is wholly responsible for instigating this action". She concluded

I do not consider that this was sufficient, even if on the basis of it Judge Rudd had been expressly asked by the Gillinghams to recuse himself, to reveal a danger of bias. It was mere assertion. Had anything emerged in the course of the proceedings to show that it might be true, it may well be that the judge should - and I am sure would - have reconsidered whether he should be hearing the case. In the event the allegation was as unsubstantiated at the end as at the beginning of the proceedings. The worst that had emerged - and the judge was sharply critical of it - was the use of inappropriately familiar forms of address in correspondence between a county officer and Mr Drummond.

In this situation - and taking care, as one must, not to treat what this court said in the Locabail case [200] 1 All ER 65 as more than illustrative of possible instances of conflict - it is unreal to regard Mr Drummond as having been involved in the case in any sense impinging upon judicial impartiality. Nothing the judge had to decide would affect Mr Drummond's private interests; nor would it involve believing or disbelieving anything he said, or forming any view of his conduct capable of affecting the outcome. If it were otherwise, I would be prepared to accept Mrs Gillingham's submission that the judge's acquaintance with Mr Drummond, although quite distant, was sufficient to require him at least to consider recusing himself. But knowing someone in relation to whom one is not going to have to form any judgment is not enough to engage the doctrine of apparent bias.

This is so whether one applies the "real danger" test enunciated in R v Gough [1993] AC 646 or one of the arguably lower threshold standards (see paragraph 17 of the Locabail judgment) applied elsewhere in the United Kingdom and Commonwealth and by the European Court of Human Rights. I mention these because, although Mrs Gillingham has correctly based her arguments on the judgment in R v Gough, when the Human Rights Act 1998 comes into effect on 2nd October 2000 we may be asked to revisit the threshold standard in the light of the Strasbourg court's jurisprudence: see Article 6(1) of the Convention and s 2(1) of the Act. This is typically expressed in terms of "legitimate doubt" about the judge's impartiality: see Piersack v Belgium (1983) 5 EHRR 169, para 30. Whatever difference this may betoken in other cases, in the present case it would bring me to the same conclusion: no sensible person could legitimately have doubted Judge Rudd's impartiality because of the background role in the case of an individual whom he knew but whom his judgment was not going in any appreciable way to touch.

Order: Appeal dismissed; costs of the appeal to be paid by the appellants; permission for leave to appeal to the House of Lords refused.

(Order does not form part of the approved judgment)

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