England and Wales Court of Appeal (Civil Division) Decisions

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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/374.html
Cite as: [2000] EWCA Civ 374

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		Neutral Citation Number: [2000] EWCA Civ 374
		A2/2000/3269

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
(MR JUSTICE STANLEY BURNTON)

Royal Courts of Justice
Strand
London WC2A 2LL
Wednesday 20 December 2000

B e f o r e :

SIR MURRAY STUART-SMITH
____________________

	DOREEN TIBBS	Claimant/Applicant
	- v -
	THE MAYOR AND BURGESSES OF
	THE LONDON BOROUGH OF ISLINGTON	Defendant/Respondent

____________________

(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040 Fax: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

MR THOMAS GRAHAM (Instructed by Messrs Castle & Co, London, EC1N 8SB)
appeared on behalf of the Applicant.
The Respondent did not attend and was not represented.
____________________

HTML VERSION OF JUDGMENT
____________________

SIR MURRAY STUART-SMITH: This is an application for permission to appeal from an order of Burnton J, made on 4 October 2000, to set aside an order of Astill J made on 12 November 1999. By his order, Burnton J set aside a judgment in favour of the applicant that she be granted an injunction to restrain the council from demolishing a wall, which she said is built on her property, and to transfer the matter to the Central London County Court for the issue between the parties to be determined. That issue is whether or not the wall in question, undoubtedly built at the behest of Miss Tibbs, is on her land or is on the highway as the council suggests.

The matter started with an application to restrain the council. That was heard in the absence of the council. An interlocutory order was made but the matter came before Richards J on the return date on 7 July 1999 when Richards J made no order. It appears that he made no order continuing the injunction for two reasons: (i) that he was not satisfied that the claimant necessarily had a good case; or (ii) because the council had suggested in correspondence that a sensible way of dealing with the matter was to apply to the Magistrates' Court under section 149 of the Highways Act when the issues as to whether or not the wall was built on the highway could be determined cheaply and expeditiously.

I accept that it would appear that the council had suggested that they would make that application, although I would have thought it would probably have been up to the applicant to do so. However no such application was made before Miss Tibbs applied for final judgment for an injunction against the council. Unfortunately, when that matter came to be heard by Astill J, the council did not appear and did not dispute the matter. They say they never received the documents or the notice. Astill J gave a final order in favour of the applicant.

When the matter came before Burnton J to set aside that order on the basis that council had not been there and the real issues between the parties had not been determined, it appears that the wrong form of Astill J's order was before the court. It was unsealed, but that is of no importance. It referred to permission for the applicant to enter judgment for an injunction instead of being a final order. It is now said on behalf of the applicant that that makes all the difference. If Burnton J had known that it was a final order, he would not have set the order aside. I find that most extraordinary argument. It seems to me that it makes no difference whatever whether the order was in the form which the court may have thought it was in because that was the form of the unsealed order, namely permission to enter judgment, or whether it was in fact the final judgment.

Burnton J had to decide whether an order which had been obtained in default of appearance by the council (as to which there was a dispute as to the merits) should be set aside and, if so, on what terms. He actually set it aside on terms which were very favourable to the applicant because he made the council pay all the costs which were substantial.

I simply cannot see that the fact that the wrong form of order was before the court on that occasion would make the slightest difference. I have not the slightest doubt that if this matter was before the full court they would say that this was a judgment which clearly ought to be set aside in the absence of the defendant council, there was a real issue to be tried on which the council had a substantial argument, whether or not they succeeded is neither here nor there, and it was a matter which ought to have been dealt within that way.

The matter is further complication by the fact that counsel, who appeared before Burnton J on the occasion he set aside the order, consented to the order being set aside. It is now said that he was acting in defiance of his instructions. That is not a matter into which this court is able to go. It is clear that he had ostensible authority to give consent to the matter. The only matter in issue before the Burnton J was the question of costs which he resolved that in favour of the applicant.

I can see no possible prospect whatever of the Court of Appeal allowing this appeal and therefore I refuse permission to appeal.

Order: Permission to appeal refused.

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