England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM DEPUTY MASTER DI MAMBRO

		Royal Courts of Justice Strand London WC2A 2LL Friday, 30th November 2001

1. LORD JUSTICE PILL: Today's hearing in this case arises because of a query as to my jurisdiction to make the order I did on 26th July 2001, granting permission to Mrs Markos to appeal against an order of Deputy Master di Mambro. The point arose because of the contents of the practice direction to part 52 of the CPR.
2. Paragraph 4.8 of the practice direction provides:

"There is no appeal from a decision of the appeal court made at an oral hearing to allow or refuse permission to appeal to that court".

3. In present circumstances, the appeal court concerned is Mitting J, who on 11^th April 2001 purported to refuse Mrs Markos permission to appeal against the order of Judge Thompson made at the Southend County Court on 29^th January 2001. The deputy Master took the view that paragraph 4.8 was a complete bar to an appeal to this court. If that is right, the decision cannot be appealed.
4. The Court has this morning been addressed by Mr Markos on behalf of his mother the applicant and by Mr Woolf of counsel on behalf of the proposed respondents.
5. Without spelling it out, I underline the substance of what I said in paragraphs 5, 6 and 7 of my judgment on 26th July 2001. Indeed, I have again sought to emphasise to Mr Markos and his mother the risk at which she is putting herself in costs if the matter proceeds. If she wins procedural victories, it may in the end be to no good purpose and indeed may increase the bill of costs against her. I have done my best to explain to her and to Mr Markos the implications of litigation continuing.
6. Having heard Mr Woolf and Mr Markos, I consider the procedure which has been followed in this case in a little more detail. The judgment of the trial judge, HHJ Thompson, is detailed and on the facts comprehensive. He heard evidence from the parties and from expert witnesses: a chartered surveyor, Mr Pasco, giving evidence on behalf of the applicant and Mr Ray gave expert evidence on behalf of the proposed respondents. The judge stated that where there were differences, he preferred the evidence of Mr Pasco. He stated at page 28(f):

"I do find that all the measurements made by Mr Pasco are correct and that his explanation of how the ground has come to be in the position it is is correct".

7. However, the judge went on to hold that the respondents had obtained title by adverse possession to a part of the disputed area. Having regard to that, the conclusion he reached at page 28(c) was that:

"In my judgment, at the maximum, the claimant's case extends to 3 inches of encroachment over a length of possibly 15 feet".

8. He stated at page 33(a):

"On my findings, the encroachment is very limited; It is for a short distance and it is for perhaps 4 inches".

9. The judge went on to say that:

"That is a matter which falls within the categoryof matters which lawyers call de minimis, which means it is a trifle".

10. At more than one place in his judgment the judge referred to the heat which had been generated in this most unfortunate dispute between neighbours. He stated that the matter had not been dealt with in "a very civilised way". He refers to the obsessive nature, as he saw it, of the conduct of the applicant. He stated:

"Boundary disputes often give rise to huge heat without a great deal of light".

11. The judge considered the circumstances in which the builder acting for the proposed respondents had made what the judge found to have been an encroachment, albeit a small one. He stated at page 23(g):

"It was the work of doing the concrete which caused this dispute to arise. In relation to that, he [that is Mr Goodfellow] was asked why he had not First consulted Mr Markos about digging up his driveway and concreting it. His answer was he saw no need; there was no necessity for it; it did not impinge on her property and in his view he was not doing anything wrong. Indeed, on his evidence he was not trying to gain some extra land, nor did he believe that he had".

12. Having considered the evidence in detail, the judge's findings upon the position of the boundary and its consequences were brief. He did not consider whether, having found that there was an encroachment, an injunction should be made. An injunction would be the usual remedy when a continuing trespass to land is established. There are cases where it is not appropriate to make an injunction but instead to award damages to the agreed party. In his judgment there is no reference to why an injunction was not being made or to the possibility of damages instead.
13. It was in those circumstances that the application for permission to appeal came before Mitting J. Mitting J recognised that the judge had found that there had been a trespass but took a different view as to what should follow. Mitting J stated, page 2:

"He [that is the County Court judge] directed himself that that degree of trespass was de minimis and consequently gave rise to no justifiable claim on the part of the claimants. In reaching that conclusion, he was, in my view, wrong. Any degree of trespass to land, however small and for however short a period, is actionable. A claimant who provides any degree of trespass is entitled to nominal damages even though he or she sustains no real damage, which seems to me to be the fact here.

The judge found there was a minimal trespass to the extent indicated if on his findings, which he was entitled to come to, it caused no real damage to them. His findings ought, therefore, to have led to. An order first declaring that the boundary lay not along the line indicated in the formal order but along a line for an unspecified distance of 5 and 15 feet, extending 3 inches over towards the defendant's side of the apparent boundary, and further he ought to have ordered that nominal damages be paid to the claimant of £2".

14. However, as to what should be done in such circumstances, Mitting J continued as follows:

"Mr Woolf, who has appeared for the respondents and who appeared below, has undertaken on behalf of the respondents that they will apply to the Southend County Court to correct the order in the sense indicated under the slip rule, CPR part 40.12. On that undertaking, I reject this application for permission to appeal. I am satisfied it has no Real prospects of success".

15. CPR 40.12 provides:

"(1) The Court may, at any time, correct an accidental slip or omission in a judgment or order

"(2) A party may apply for a correction without notice".

16. In my judgment, this was an inappropriate case in which to apply the slip rule. This was not an accidental slip or omission on the part of the County Court judge. Mitting J found that the judge had misdirected himself as to the consequences of his findings of fact. The defect in the County Court judgment could not in my judgment properly be corrected by the application of the slip rule.
17. Mr Markos has referred me to the notes in Halsbury and in the Green Book upon the slip rule and also to the case of the Secretary of State for Trade and Industry v Rogers, 1996, 4 all ER 854, 862, where, under the former slip rule, the scope is indicated.
18. In my judgment, the judge, having taken the view he did of the County Court decision, should, or arguably should, have granted permission to appeal and determined the appeal. He may have granted permission only on limited grounds, but the applicant was in my judgment arguably entitled to be heard upon the appeal on the basis of the findings of Mitting J.
19. With the best of intentions in what was a dispute over a very small area of land, Mitting J attempted to short-circuit what in my judgment arguably was the correct procedure. He did not even indicate what corrections should be made under the slip rule, and the unsuitability of the slip rule in present circumstances is illustrated by what has happened subsequently. The order has been amended to add to the order that "the claimant's claim is dismissed", an order that "the defendant do pay to the claimant nominal damages of £2".
20. Mr Woolf, having conferred with his instructing solicitor, has told me that before the date of that amendment on 21st June 2001 his instructing solicitor had sent to the court a copy of the judgment of Mitting J. Mitting J correctly identified that the declaration in the order does not comply with the judge's own findings in that it assumes that there had been no trespass whereas in fact the judge found that there had been a trespass. Plainly on Mitting J's findings, the declaration also needs amendment. It has not been amended and on receipt of the order of 21st June 2001, the proposed respondents' solicitors have made no attempt to have it amended, as far as Mr Woolf has been informed.
21. The relevance of the order made by Mitting J is that in substance, he was, arguably, allowing the appeal in part. What purported to be a refusal of permission to appeal within the meaning of the CPR was in substance a grant of permission and an attempt thereupon to deal with the appeal and allow it on a limited basis. That being so, this in my judgment is a case where arguably the prohibition against a further appeal which emerges from 4.8 of practice direction to part 52 of the CPR does not apply.
22. The court should look at the substance of the matter and the right to a further appeal, or at least to a further application for permission to appeal cannot be defeated by a judge purporting to refuse permission when, as a matter of substance, he is dealing with the appeal. The extent of the jurisdictional bar is an important point.
23. I have dealt with the matter in some detail in the hope that it may assist the court which determines the appeal for which I give permission. The matter before the Deputy Master was in fact one for the extension of time. However, her judgment dealt with the procedural merits of what was before her. She stated:

"Since Mitting J refused permission to appeal in open court there is no further right of appeal to this court".

24. It is because that direction arguably is wrong that I confirm the grant of permission I made on 26th July 2001. Mr Woolf helpfully has said that he would have no submissions upon the extension of time which in fact was the specific issue before the Deputy Master, though in my judgment, rightly, on the matter as she saw it, she dealt not only with the application for an extension of time but with the procedure generally. Accordingly, the reasons I have given permission to appeal the order of the Deputy Master is confirmed.
25. Are there any applications?

MR WOOLF: My Lord, can we just address where we are now? That was an extension of time to appeal Mitting J. Is that the appeal that is to be progressed or is it to be the permission to appeal HHJ Thompson?

LORD JUSTICE PILL: What is your submission?

MR WOOLF: My submission is it must be to be appealing Mitting J because that is what the appeal notice says.

LORD JUSTICE PILL: It is simply appealing Deputy Master di Mambro.

MR WOOLF: It is appealing Deputy Master di Mambro's decision not to extend time so that has now been granted.

LORD JUSTICE PILL: No, I have not granted an extension of time.

MR WOOLF: You have given permission to appeal. You confirmed the granting of permission to, as I understood it, the decision of Deputy Master di Mambro not to grant an extension of time.

LORD JUSTICE PILL: No, that her decision that there cannot be a further appeal arguably is wrong. So what the court will have to consider is whether it was open to Mrs Markos to appeal to this court from the finding of Mitting J.

MR WOOLF: Right. So the matter will now have to be listed for a determination for permission to appeal the decision of Mitting J.

LORD JUSTICE PILL: If the court allows the appeal against Master di Mambro's order and grants an extension of time, the question then is whether it grants permission to appeal against the order of Mitting J.

MR WOOLF: The reason I am troubled is because --

LORD JUSTICE PILL: I am grateful that you are raising it.

MR WOOLF:-- one wants to try and avoid procedural attendances before this court if in fact, at the end of the day, we can fast-track it, as it were, to use a term, to a proper appeal whatever is to be appealed. I am somewhat troubled because I am not quite sure of the procedure, nor do I want to prevent, as it were, Mrs Markos having her day in court simply because of the procedural difficulties that may have arisen as a consequence of all that has gone on in the last few months. If we can, by hook or by crook, move matters on then that would obviously be favourable to everyone.

LORD JUSTICE PILL: What do you say follows the allowing -- I am not anticipating the result, but quite rightly, you want to anticipate it to see what might follow from that. What in your submission would following the allowing of an appeal against Deputy Master di Mambro's refusal to entertain an application for permission to appeal?

MR WOOLF: Assuming that was successful then the appellant's notice of 29th -- the previous notice -- the reason I am hesitating is because when one looks at the 29th May appellant's notice, it is appealing the decision of Deputy Master di Mambro but it also seeks to appeal the decision of Mitting J and I do not see how that notice can do both, to be perfectly frank. Therefore, all that -- it can only do one thing. It must be what my Lord has said, rightly so: giving permission to appeal Deputy Master di Mambro.

Let us assume that that is successful and Deputy Master di Mambro's decision is overturned. Where are we then? We are we left with nothing because the appellant's notice only deals with Deputy Master di Mambro and does not deal properly, I would say, with either Mr Justice Mitting's order or a second bite at the permission application for His Honour Judge Thompson's order and then we are back to extension of time in relation to those two potential appeal decisions.

It may be that the answer would be to say the defendants -- I do not have any instructions but I might be able to get instructions not to oppose if my Lord were to determine the matter of Deputy Madam di Mambro's decision. I think, to be perfectly frank, Deputy Master di Mambro's decision might be overturned on appeal in the light of all that has happened, but so what? What does that achieve?

LORD JUSTICE PILL: What could be done, conceptually -- whether it is practical we shall have to consider -- is if the court allows that appeal then considers permission to appeal against Mitting J and if it grants permission then hears the appeal, all on one day. That would be the desirable course, would it not?

MR WOOLF: That would be.

LORD JUSTICE PILL: Again repeating that it is for the court hearing to decide at each stage. But if all that could be dealt with on one day. The matter has at least been ventilated now and that is why I have done it: to set out in some detail the procedure so that consequent to this court hearing, it at least has the basic background information.

MR WOOLF: My Lord, I think that is very helpful.

LORD JUSTICE PILL: I will hear Mr Markos in a moment, but you say that his present notice does not cover an appeal against Mitting J.

MR WOOLF: It certainly makes reference to Mitting J, but if one goes to section 5, which obviously is an important part of it --

LORD JUSTICE PILL: What page of the bundle?

MR WOOLF: Page 2 of the appeal notice -- my Lord, I should just mention I asked my solicitor whether they have a copy of the bundle you have and they said they never have. Page 2 of the appeal notice, details of the order you want to appeal, which is obviously Deputy Master di Mambro.

Then also you will remember I took you to section 9 of that, which is on page 5 of the appellant's notice, and again it is solely dealing with what decision you are asking the court to make and it is solely that which my Lord has now addressed, i.e. that which Deputy Master di Mambro addressed. So I am very troubled that this appeal notice has references to what Mitting J did on what I think are the additional pages and also perhaps section 8, but in fact is an appeal notice against that which was done by Deputy Master di Mambro.

LORD JUSTICE PILL: That has been my understanding throughout and if one was going without any abbreviation, all that would happen -- I am talking about side roads and cul-de-sacs and I have been attempting to bring this home to the parties -- all that would be achieved by the Court of Appeal decision was that an application could then be made for permission to appeal against Mitting J the order of Mitting J, and ordinarily that would follow. What we are exploring is whether the whole thing could be dealt with at the same time.

MR WOOLF: It may be that with a copy of the discussion that my Lord and I having, and obviously Mr Markos' input shortly and from the transcript, a useful letter could perhaps be produced in conjunction with Mr Markos by those instructing me to the Civil Appeals Office to see whether or not the sort of things we have been discussing could materialise at the hearing, although of course, my Lord, one could necessarily bind the tribunal as and when we got to it.

LORD JUSTICE PILL: Yes, well with your cooperation, Mr Markos could put in an anticipatory application for permission to appeal against Mitting J's decision.

MR WOOLF: That would be a good idea.

LORD JUSTICE PILL: But I cannot be in the position of being a legal adviser to him. He may want it dealt with sequentially.

MR WOOLF: He may. My concerns are the obvious ones of time and cost not only of the parties but of the Court in dealing with matters. If we could, as it were, get it up before the Court on one occasion, dealing with everything, because sooner or later that is going to have to happen, it does seem to me, and so much the better.

LORD JUSTICE PILL: But I do not think I can direct Mr Markos to do that.

MR WOOLF: No. I think this discussion, as I say, may have been useful, if only, sir, that these issues have been discussed.

LORD JUSTICE PILL: Mr Markos, you have heard what counsel has said. Do you have any offers to make or suggestions as to the course that you might take?

MR MARKOS: Forgive my ignorance, my Lord, but I seem to have a brief understanding of what was just being said but I do not understand what was being said in detail. You see the problem previously, specially for Mitting J's order, was that I went into the Court of Appeal within the time limit for lodging a permission to appeal to the Court of Appeal and they would not accept the application, and after numerous letters going backwards and forwards and arguments on points of law, some -- as I could perhaps put it -- "bright spark" said: what you can do is put it to the Lord Justice at the Court of Appeal and let him decide, and that is where this appellant's notice comes from.

So as I understand it, you have given permission -- you have stated that you have jurisdiction and that the Court of Appeal has jurisdiction to consider this matter and now I am to go back to the Civil Appeals Office and ask for permission to appeal.

LORD JUSTICE PILL: I did make clear to you earlier that all I could do today was either refuse or confirm grant of permission to appeal against Master di Mambro. I have confirmed the grant of permission. That is all you asked for in your notice. So the next step rule would be that the appeal against Master di Mambro is heard by the Court of Appeal. If they allow that appeal, in the ordinary way, you then have the opportunity to pursue your application to appeal the decision to Mitting J. That is what you intend, as I understand it.

MR MARKOS: Yes.

LORD JUSTICE PILL: Is that right?

MR MARKOS: Yes, to appeal the order of Mitting J and the order of Judge Thompson.

LORD JUSTICE PILL: Yes, but what counsel is suggesting is that if his side are prepared to concede the appeal against Judge di Mambro then at the same time as that is resolved, the Court should be in a position to consider your appeal against -- at any rate your application for permission to appeal against Mitting J.

MR MARKOS: I see, so what he is saying is we can dispense with formalities; we go on to the next stage, which is asking the Court of Appeal for permission to appeal.

LORD JUSTICE PILL: Against Mitting J?

MR MARKOS: Yes, that is what he is saying.

LORD JUSTICE PILL: He is exploring the possibility, but I do not think he has instructions.

MR MARKOS: Obviously, on the face of it, it sounds an intelligent way to proceed. But obviously, not being legally qualified, I would like time to consider the position and to go down the law library and look up all the references.

LORD JUSTICE PILL: I understand that.

MR MARKOS: And obviously I must explain it to my mother in detail because it is ultimately her decision.

LORD JUSTICE PILL: I strongly encourage your explaining it to her.

MR MARKOS: Obviously, although I prepare all these submissions and suchlike, at every stage I go through it in great detail with her because it would be morally wrong if I did not.

LORD JUSTICE PILL: Thank you. Mr Woolf, I cannot say anything further to Mr Markos, but the court has to keep at arm's length on this. What is before the court is an application in relation to Judge di Mambro and I would strongly express the hope that the parties may cooperate in future procedures. But I am not prepared to give any directions.

MR WOOLF: I understand.

LORD JUSTICE PILL: What about the costs of today?

MR MARKOS: As you have seen from my --

LORD JUSTICE PILL: You are applying for costs of today?

MR MARKOS: Yes, please.

LORD JUSTICE PILL: Mr Woolf?

MR WOOLF: My Lord, I apply for costs of today. The application before you now has only arisen because Mr Markos was late in putting in the original appellant's notice back in May. Had that been in good time then this part of the procedure would have been wholly irrelevant.

LORD JUSTICE PILL: Is it not the answer costs in the appeal against Judge di Mambro's order?

MR WOOLF: My Lord, no, because it has only arisen because of the slow way which the appeal notice has been put in.

LORD JUSTICE PILL: But had it been put in promptly, Master di Mambro would have taken the same point.

MR WOOLF: My Lord does not necessarily know that.

LORD JUSTICE PILL: I do, because of the order she made. She did not say "I refuse entirely"; she said "I refuse because of the practice direction".

MR WOOLF: Certainly, it may be in the alternative; then obviously costs in the appeal would be an appropriate way forward.

MR MARKOS: I would just emphasise that all the applications I have put in to the Appeals Office, if they were not on time it is because the Appeals Office would not accept them --

LORD JUSTICE PILL: We are dealing with a narrower point now, Mr Markos. We really must bring matters to a close. The order I propose to make as to costs is that costs are in the appeal, that is the appeal against Judge di Mambro's order. The court which determines that appeal will have the power to make any order in relation to today's hearing, as it does with the hearing before it on that day.

MR MARKOS: I would like to just point out, my Lord, that it is near Christmas time and I have had to close my shop, probably, by the time I get back, for all day long, and it was not my fault that the Civil Appeals Office did not understand your judgment. I did take it to a number of --

LORD JUSTICE PILL: It may not have been their fault, but you are entitled to say that Mr Woolf did come here today with the basis of a skeleton argument to say, "I did not have jurisdiction", whereas having seen the point, the respondents could have said, "Of course, this is one of those cases where it should be given." I am not prepared today to give you costs. At the full hearing you will be able to renew your application. So be it.

MR MARKOS: Just one other small application, my Lord. In this judgment of the 26th you kindly stated a stay of enforcement of the costs order dated 29th January; I would ask that that be reaffirmed.

LORD JUSTICE PILL: Mr Woolf?

MR WOOLF: Yes.

LORD JUSTICE PILL: Yes, that must be so.

MR MARKOS: Thank you very much, my Lord.

MR WOOLF: Thank you, my Lord.

LORD JUSTICE PILL: Time estimate for the appeal?

MR WOOLF: Half a day, my Lord. The reason I hesitate is that on the one hand I am not necessarily convinced it will necessarily fight, although I make no firm observations in relation to that; but on the other hand my Lord sees that matters have to be taken -- understandably and with respect to Mr Markos; he is very able -- but matters do have to be taken firmly, comprehensively and at times slowly, and I think about half a day is probably about right.

LORD JUSTICE PILL: Yes, I am not able to see that. I do think this morning has had the advantage of clarifying the issues, whatever the outcome is, and I have in mind an hour and a half. Mr Markos?

MR MARKOS: To be honest with you, my Lord, I do not really know. At first inclination I would go along with what you are suggesting.

LORD JUSTICE PILL: Your case, in substance, is set out in my judgment. It may be that the court will at an early stage, subject to your right of reply, hear Mr Woolf or whoever appears on that occasion. Mr Woolf, I cannot see that more than an hour, an hour and a half, and of course you will be conferring with your solicitor, as you suggested. Thank you very much.