England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
(MR JUSTICE PUMFREY)

		Royal Courts of Justice Strand London WC2A 2LL Friday 7 December 2001

1. LORD JUSTICE CHADWICK:There are listed for hearing three applications for permission to appeal against an order made by Pumfrey J in proceedings brought by Mayflower Estates Limited against four defendants, Highnorth Limited, The Containerised Storage Company Limited, Boxer Commercial Removals Plc and Mr Paul Todd, in relation to land off Second Way, Wembley, North London.
2. The claimant, Mayflower Estates is the owner of a commercial unit, Unit 4, off Second Way. It is also the owner of Unit 5, subject to a lease in favour of a charitable organisation, TRAID. The first defendant, Highnorth Limited, is the owner of Unit 6, known as Boxer House. Unit 6 is used by the third defendant, Boxer Commercial Removals Plc, a company controlled by Mr Paul Todd, the fourth defendant. Mr Todd also controls the second defendant, The Containerised Storage Company Limited. The dispute concerns vehicular access to an area used for car parking adjacent to the commercial units. Access to that area is over a strip of land owned by Highnorth.
3. The proceedings were commenced by a claim form dated 18 October 2000. Mayflower sought a declaration that it was the owner of land coloured blue on the plan annexed to the claim form on which the cars were to be parked, and that it was entitled to a right of way, with or without vehicles, over the disputed land coloured yellow on the plan for the purpose of access to and egress from the car parking spaces on the blue land.
4. The defendants served a joint defence to which each subscribed a statement of truth. Paragraphs 17, 19(1) and 20 are material to these applications. At paragraph 17 of the joint defence it is pleaded that:

"The defendants will in any event aver that these proceedings were issued prematurely and precipitately and had it not been for such premature and precipitate action the acknowledgements, agreements and/or undertakings sought would have been given notwithstanding that the matters to which they related were simply part of the background history and had ceased to be (insofar as they had ever been) a real issue between the parties."

5. Paragraph 19(1) sets out what the defendants assert was the real issue:

".... the real issue between the Claimant and the First, Third and Fourth Defendants with regard to the right of way involves and has at all material times involved the potential implications of the parking of large commercial vehicles on the blue land."

6. Paragraph 20 is in these terms:

"The Defendants deny that the Claimant is entitled to the declarations sought not because the subject-matter of such declarations is disputed but because they do not reflect the real issue in dispute between the parties and/or because they are not sought in order to resolve this issue but are sought so that they may be used for a collateral purpose namely to facilitate the grant to TRAID of a Restricted Operators Licence. In this connection the Defendants will aver that if the Claimant had sought a declaration embracing the real issue in dispute it would have run a significant risk of losing. The declarations sought by the Claimant are declarations of the undisputed obvious and as such will serve no useful purposes."

7. There was, however, no counterclaim raising what was said to be the real issue in dispute so that the court could address it. In those circumstances the claimant made application for summary judgment under CPR Part 24. It was that application which came before Pumfrey J 2001 on 1 May 2001.
8. The position as at the date when the proceedings were issued, 18 October 2000, as the judge recorded at page 28 of the transcript of his judgment, was that it was not in dispute before him, first, that the claimant had title to the blue land and, second, that the claimant was entitled to the easement which it sought over the yellow land. That is reflected in the declarations which the judge made on 1 May 2001. The judge did not think it necessary to grant injunctive relief restraining the defendants from interfering with the claimant's rights; but he gave liberty to apply for an injunction in the terms sought in the particulars of claim if there was actual or threatened interference in the future with those rights.
9. In considering what order should be made, the judge had to decide whether the proceedings were premature and whether they were, as the defendants contended, an abuse - in that they were brought for a collateral or improper motive. At page 28 of the transcript the judge said this:

"In my judgment the position stands as follows. As at the point in time immediately before the letter of 18 October, written by Ivor Levy on behalf of all defendants for the first time to Paisners, there was undoubtedly a cause of action and the activities of Mr Todd on behalf of Boxer and of Containerised Storage and the activities of Highnorth were quite sufficient to entitle the claimant to bring proceedings for the declarations which it seeks."

10. Paisners were the solicitors acting for the claimant. The judge then set out the terms of the letter of 18 October 2000, written by Ivor Levy to Paisners. Those terms included the following:

"We would make it clear that we do not accept that the sole function of Highnorth's part of the yard is to enable access to be gained to Mayflower's part of the yard and that to this end should be kept free of vehicles. Highnorth Limited and those authorised by it are perfectly entitled to park on Highnorth's part of the yard as long as this does not amount to a disturbance of your client's easement. There must be give and take on all sides with driver asking driver to move where necessary.

With regard to the remedies claimed in the draft Particulars of Claim, our client accepts that Mayflower is the owner and entitled to possession of the Mayflower part of the yard and that it has the right of way set out in paragraph (5) of the first schedule to the transfer dated 21st October 1988' - which is the right of way recited in the declarations which are now sought."

11. On the same day, however, Mr Todd had written a letter to Miss Lampert, the solicitor at Paisners who had conduct of the matter. The letter was on the headed paper of The Containerised Storage Company Limited. It was in these terms:

"We have received various documents indicating your attempt to engage in criminal acts.

Please find enclosed a copy of our formal letter of complaint to the Metropolitan Police.

Please also find a signed statement by our company secretary.

We would prefer not to engage in a long drawn-out legal battle with your clients as there are other more important issues on which we are focused. We do not understand your conduct and believe that your disinclination to write to us directly self evidently exposes the inherent weakness in any dishonest claim that you would seek to persuade the Court you may have against this company.

We would hope that you will reconsider your misconduct but in the event you do not, have completed a large body of our research and will do what we can to make it interesting for you and those you represent or those where your firm has been identified as having equity and cross directorships."

12. The judge took the view that, in the light of that letter and of earlier correspondence, the claimant was entitled: first, to assert a claim against The Containerised Storage Company Limited, as well as against the other defendants; second, to take the view that Containerised Storage Company was not a party to the letter of 18 October 2000 from Ivor Levy offering terms of settlement, and was not agreeing to the settlement proposed; third, that without the agreement of Containerised Storage Company, the precondition to a settlement with all four defendants would not be satisfied; and, fourth, that, accordingly, the claimant was entitled to commence proceedings (as Paisners did), by the issue of the claim form on that day.
13. The judge had to consider what order to make in respect of costs. By paragraph (2) of the order of 1 May 2001, he required the defendants to pay the claimant's costs subject to a detailed assessment. By paragraph (3) he ordered payment of £16,000 on account of costs by 22 May 2001. An order in that form imposes a joint and several liability on each of the four defendants.
14. The first of the applications before me, under Court of Appeal reference 2001/1439, is the application of Mr Todd. Mr Todd is not now present to advance that application, although I understand from the Court usher that he was present when these applications were first called on, at approximately 11.15 this morning. However, he had then informed the usher, who had inquired of him specifically whether he was involved in any of the applications which were called, that he was not so involved. In those circumstances, not surprisingly, he was not identified as the applicant. Nor did he say anything to the Court when the matter was called. In those circumstances, I adjourned all these applications from 11.15 am until 2 pm. I said, in open court, that I was doing so in order to give any of the applicants who wished to appear the opportunity to attend.
15. I am told by the usher that Mr Todd was present in court just before the court sat at 2 pm; and that he took the opportunity to hand to the usher a letter from Containerised Storage Company over his signature and dated 4 December 2001, in which he makes certain submissions to the court for consideration. The letter starts:

"We understand you have overturned your decision to grant us a separate appeal and thereby prevent our attending on 7 December 2001, contrary to human rights legislation."

16. Why it is suggested that Containerised Storage Company or Mr Todd have been prevented from attending a hearing, at which Mr Todd was present when the applications were called, is difficult to understand. Nevertheless he is not here. I therefore have to consider whether to continue to deal with his application.
17. In the circumstances that he has had every opportunity to be heard, but has plainly chosen not to be heard, it seems to me right to deal with his application.
18. Mr Todd seeks permission to appeal against the whole of the order made by Pumfrey J: that is to say, against the declarations as to title as well as against the costs order. The grounds of appeal, as set out in section 7 of his appellant's notice, are that the order is perverse, inconsistent with the evidence and rewards a solicitor breaching an undertaking, counselling her client to commit perjury and to commit perjury herself.
19. Secondly he asserts in his grounds of appeal that there has been a failure on the part of the claimant to adhere to pre-action protocols required by CPR 5.2. There are no relevant pre-action protocols in the present case. There is nothing in the grounds of appeal which throw any doubt upon the judge's conclusion that the claimant was entitled to the declarations as to ownership of the blue land and the right of way over the yellow land made in the order. It is difficult to see any basis in the appellant's notice upon which this court could be persuaded that those declarations were wrongly made. Certainly, I find nothing which suggests any prospect of success on an appeal against those declarations. The thrust of the application is in relation to costs.
20. The second application, 2001/1440, is an application by the Containerised Storage Company Limited also seeking permission to appeal against the whole of the order. It is reasonably clear from the documentation that that application was also prepared by Mr Todd; or at least by the same person as had prepared his application.
21. The grounds of appeal state:

"1. The Claimant had agreed with the Second Defendant prior to 27th October 2000 a settlement on the basis that there would be no Order as to costs and their solicitors had given an undertaking to attend Court and to inform the Judge of that settlement.

2. In the alternative if the Claimant was not estopped from making the representations that it did the Judgment was perverse. The Claimant's solicitor had prepared a false affidavit for David Michael Gerstler and had breached an undertaking not to commence proceedings."

22. Mr Gerstler is a director of, or the moving force in, the claimant company.
23. No-one appears on behalf of Containerised Storage Company. The court has, however, received a letter from Containerised Storage Company dated 14 November 2001 in response to notification of the date of this hearing, as well s the letter of 4 December 2001 to which I have already referred. The letter of 14 November contains this paragraph:

"We understand that the appeals of Boxer Commercial Removals Plc, Highnorth Limited and Paul Todd have been listed for the same time and date as our appeal. Our appeal is absolute. For health reasons it is not possible for us to attend the court at the same time and date as the other appellants."

24. That letter appears to have been signed by Mr Todd. It is difficult to understand what grounds of health would prevent a corporate body from attending court in circumstances in which it had made no application to be represented by any individual officer and so would normally attend through solicitors and counsel. Secondly, it is difficult to understand how health reasons would prevent the company from attending court by Mr Todd at the same time and date as his own application was due to be heard. It would have been a matter of considerable complaint if the court had chosen to fix these applications for different dates. It is plainly a case in which they should all be heard on the same date.
25. The allegation of the Containerised Storage Company is that it had entered into arrangements with Paisner & Co to settle the proceedings independently of the other three defendants. There are two difficulties in that contention.
26. The first is that there is no indication that the claimant was prepared to settle independently with some of the defendants and not the others. The second is that the correspondence provided (ie the letters of 23 October, 24 October and 27 October) do not support a contention that there was a concluded agreement to reach an independent settlement with the Containerised Storage Company. In those circumstances the application does not contain any material which suggests that this Court, on an appeal, would think it right to interfere with the judge's order as to costs.
27. The third application, 2001/1441, is a joint application by the first defendant, Highnorth, and the third defendant, Boxer. It may be noted that correspondence with the Civil Appeals Office on behalf of Boxer has been conducted by Mr Todd, who has also acted for Containerised Storage Company and himself. The appellant's notice is signed by Dr Akena Adoko, who, as I have mentioned, is described as a legal officer of the applicants. Indeed, on one page of the application he signs himself as "the appellants' solicitor". The only part of the order against which those two appellants seek to appeal is the order as to costs.
28. Dr Adoko was given permission to represent Highnorth Limited, but not Boxer Commercial Removals Plc, by Brooke LJ on 23 November 2001; but on condition that he provided a written statement to the court at the hearing of the application which complied with paragraph 5.2 of the Practice Direction in CPR 39. No such written statement has been provided, and no authority for him to represent Boxer Commercial Removals Plc has been provided.
29. The court has been sent a doctor's certificate signed by Dr Turner of the Aylesbury Health Centre, London, SE17. It records that Akena Adoko should refrain from work for one month on account of stress. In the circumstances that Dr Adoko is not a person who, on the material before the court, could represent either Highnorth or Boxer - and in the circumstances that no reason has been shown why someone else could not represent those companies if Dr Adoko is not available due to stress - I have to consider whether to proceed to deal with that application. I m satisfied that I should do so.
30. The real position is that these three applications seek to challenge the judge's exercise of discretion in relation to costs. The judge was faced with the position in which, as he found, the proceedings had been properly commenced against all four defendants, who were appearing by the same counsel and for whom the same solicitors were on the record. There is nothing in the material in the judgment - or, so far as appears from the papers before me, anything in the material that was put before the judge on 1 May 2001 - to suggest that these four defendants were not making common cause in defence of this litigation. In those circumstances the obvious order for the judge to make as to costs was the order he made. I can see no basis upon which this Court would be persuaded to interfere with his discretion.
31. The problems that have arisen - if there are problems - stem from Mr Todd's wish to correspond with Paisners behind the backs of the solicitors, Ivor Levy, who were purporting to act for all, or for at least three, of the defendants. In those circumstances, he says on his own behalf and on behalf of Containerised Storage Company and Boxer Commercial Removals Plc, that the proceedings had been settled and that there was no need for a hearing against those defendants on 1 May 2001.
32. However, for the reasons that the judge set out, it seems to me plain that, viewed from the position of Mayflower Estates Limited and its solicitors, there had been no settlement. If Mr Todd, or his companies, have a claim against the solicitors who were purporting to act for them, nothing in this judgment prevents them from proceeding with that claim. I am concerned only with the position as between the defendants and the claimant.
33. In my view, no basis has been shown upon which it could be said that there was any real prospect that appeals to this Court could succeed. In those circumstances, the applications for permission to appeal are dismissed.
Order: Permission to appeal refused in all three applications.