England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AND AN EXTENSION OF TIME

		Royal Courts of Justice Strand London WC2 Friday, 30th November 2001

1. LORD JUSTICE THORPE: Mr Brian Harris issued an application in the Romford County Court for an order against his sister, Christine Harris. I have not seen the application but it resulted in an order on a hearing without notice which provided that Christine should not obstruct Brian or interfere with Brian's occupation of the home at 45 Field Way and must not encourage any one else to do so. That order was effective until 19th September when the court set up a hearing on notice.
2. On 19th September both parties were represented. The judge, having before him only the written statements of Brian of 22nd August and Christine's of 17th September, came to the conclusion that there was plainly an implied agreement that the purchase by Brian of Christine's council house at a discounted price was intended to provide each with a shared home. There was a trust deed which did not deal with that interim but which showed that the legal estate was to remain with Christine until her demise when it would pass to Brian. The evidence in Brian's statement is to be found at paragraph 2 where he said:

"As a result of this the respondent and I agreed that I would purchase as a home for myself her property at 45 Field Way ..... "

3. In her statement in answer Christine dealt with the purchase and made plain her understanding that she was to be the sole owner during her lifetime whereupon the property would pass absolutely to her brother. She did not deal with his assertion that it was in the interim to be a shared home.
4. On 19th September the judge initially formed the view that absent any term in the deed Brian could not establish his right to a shared home in the interim. But having thought about the case over the luncheon adjournment the judge came back to say that he had changed his mind and, looking to the whole course of conduct, it was plain as a pikestaff that the implied intention was for a shared home. On that basis he continued the order he had made on 22nd August but in slightly restricted terms. He set over the cross application which Christine had issued at some stage between the two hearings. Again, I have not seen the application which she issued. Mr Maitland-Jones said it was for the same relief as was sought by Brian in his application. It is perfectly plain that the order of 19th September was only a holding order.
5. Mr Maitland-Jones said at page 4 of the transcript, after the judge had given his ruling:

"I would seek to call her evidence and for your Honour to consider her evidence in relation to that, her evidence being really set out in paragraphs 7 and onwards in her statement."

6. The judge said:

"I think that if there is going to be an extended hearing here we may need to put this over for a day on which the matter can be argued at length on both sides and I can hear evidence from both sides."

7. It was then agreed between the judge and Mr Maitland-Jones that two hours would be necessary for that oral evidence hearing and a date was then fixed for 2nd November. That date was written into the order of 19th September.
8. On that basis when an application for permission was issued on 4th October I said in my reasons for provisional refusal that the order of 19th September was essentially a holding order pending further hearing on 2nd November. In the circumstances any renewed application or any further application must await the outcome of the next hearing. Subsequent events have confirmed the relevance of those observations because on 2nd November the parties appeared before the judge and Mr Maitland-Jones tells me that they compromised the issue between brother and sister. The order as drawn does not apparently reflect precisely what was agreed nor does it indicate that it was reached by consent. The basic deal required the brother to get out on or before 15th January, and apparently the sister is then guaranteed at least 12 months of exclusive occupation.
9. In those circumstances I am somewhat mystified to find Mr Maitland-Jones renewing his application. The judge was only holding the ring on 19th September. If there had been a trial on 2nd November and, having heard oral evidence, he had delivered a judgment then of course Mr Maitland-Jones could have issued a fresh application seeking leave to appeal against that. That never happened because the parties compromised. The order of 19th September is therefore simply a holding order made during the course of proceedings brought for trial and compromised at trial. Manifestly, this court has no business to interfere with an order which is now of purely historic interest. In any event, I am firmly of the view that on the paper evidence before him His Honour Judge Paynter-Reece was absolutely right to reach the conclusion he did. That is a firm view to express. If I were not going that far I would say it was manifestly open to him to reach that conclusion on the brother's averment in his written statement and the absence of any clear or categorical denial in the sister's statement.
10. For all those reasons this application is, in my view, hopeless. I confirm that the application for permission is refused.
Order: Application refused