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 NORWICH COUNTY COURT
(HIS HONOUR JUDGE WORSLEY)

		Royal Courts of Justice Strand London WC2A 2LL Thursday 15 February 2001

1. LORD JUSTICE KENNEDY: This is a claimant's appeal from a decision of His Honour Judge Worsley, sitting in the county court at Norwich on 30 July 1999, when he ordered that both of the claimant's claims be dismissed. The judge refused permission to appeal, but permission to appeal was granted by another division of this court on 4 April 2000.
2. Mr and Mrs Hadingham owned land at St Nicholas, Harleston, where they farm in partnership with their son-in-law, the defendant/respondent, Mr Sprake. Church Cottage, which is a grade II listed building, stands on the Hadingham land. In 1981 it was let by Mr and Mrs Hadingham to Mrs Z R Greville for a period of one year, renewable thereafter at six monthly intervals. Mrs Z R Greville is the sister-in-law of the appellant, Mr René Greville. In 1981 he and his wife, Mrs Miriam Greville, took up residence at Church Cottage together with his sister-in-law. Mrs Miriam Greville died in 1998 but Mr Greville and Mrs Zarina Greville, still live there. Until the middle of the 1990s the relationship between the owners and occupiers of Church Cottage was satisfactory but for the last six years or so there have been problems which have led to this very unfortunate litigation.
3. In 1995 and 1996 repairs were required to Church Cottage, and they were being undertaken. On Friday 8 March 1996 there was a meeting of the St Elmham, All Saints and St Nicholas, St Michael and St Peters Parish Council. On the agenda was an application for listed building consent in relation to a particular aspect of the work which was being undertaken at Church Cottage. The Parish Council had no power to grant or to refuse listed building consent, but it was entitled to make its views known to the Waveney District Council which did have that power. The respondent, Mr Sprake, was a member of the Parish Council. He properly declared an interest and remained silent. At 8.24 pm the meeting, which had been going for some time, was closed to allow Mr Sprake to speak and to explain what was happening outside the Parish Council. The essence of what he said was that some of the work for which listed building consent was being sought had been started already without the prior permission of the landlords. At least some of those who heard what he said were angry at the news of such work having been undertaken without prior permission. At 8.45 pm, after an interval of some 26 minutes, the Parish Council meeting was resumed. Mr Sprake resumed his silence and the Parish Council registered its objection to the application on the basis that the application was retrospective, it related to work part of which had already been carried out.
4. The procedure of closing the meeting in order to obtain information from someone who would not otherwise feel able to speak and then reopening the meeting does sound strange. One of the things that Mr Greville has said to us is that it is totally illegal and that it has been shown to be so by further inquiries that he has made since the hearing of this matter before the judge. The judge described it as artificial and a charade, but he accepted (and this is at the heart of his decision and of this appeal) that it was done by those who took part in it in good faith and had been done many times before.
5. Mr Greville complains that Mr Sprake's version of the work at Church Cottage was untrue. The judge accepted that no repair had been done which required listed building consent. Mr Sprake was at fault because he lumped together that work which required listed building consent and other work which did not and which had already been done. Mr Greville complains that, as a result of Mr Sprake's intervention, he became a victim of the tort of misfeasance in public office. That resulted in loss to him and he claimed damages, which at the time of the trial before Judge Worsley he was not able to assess precisely, but it would appear that they amounted to about £200.
6. Misfeasance in public office is, as the judge said, an unusual cause of action. To succeed Mr Greville had to show, on a balance of probabilities, that, (i) Mr Sprake made the statements complained of; (ii) they were false; and (iii) that he made them in his capacity as a parish councillor. As to each of those essential elements Mr Greville succeeded, but the judge said there was a further essential element. Mr Greville had to show what the judge described as malice, that the false statement was made deliberately out of spite or ill-will or with the intention of causing injury to Mr Greville. As to that essential ingredient Mr Greville failed. The judge said:

"The evidence falls far short of that. It is a serious allegation and it is not made out."

7. When dealing with what had to be proved to constitute the tort of misfeasance in public office, the judge said:

".... it is possible for this cause of action to be made out without proof of malice if there is action or there are words by the defendant unlawful to the defendant's knowledge in a manner which may foreseeably injure the claimant. That is an alternative way of proving this cause of action, alternative to proving malice. It does not arise this alternative way here."

8. It is that passage which seems to have been instrumental in persuading the full court on the last occasion to grant permission to appeal. At paragraph 11 of the judgment delivered by Holman J he said:

".... it seems to me at least arguable that it is not a sufficient defence to Mr Greville's claim that, as the judge found, Mr Sprake acted in good faith. If he acted unlawfully and, whilst acting unlawfully, said something that was incorrect or untrue, it is arguable that good faith alone does not protect him. In view of the finding which he later made that there was one continuous parish council meeting, the judge may have been wrong to conclude that the 'alternative way' of establishing the cause of action did not arise in this case.

For that reason I, for my part, consider that we should give permission to Mr Greville to appeal from that part of the judge's judgment and order which dismissed the claim based on misfeasance in public office."

9. Mantell LJ agreed.
10. About one month after the appellant was given permission to appeal in this case, the House of Lords gave judgment in Three Rivers District Council v The Governor of the Bank of England (No 3) [2000] 2 WLR 1220. That decision gave a definitive answer to the question which Mantell LJ and Holman J considered to be arguable. The action arose out of the BCCI collapse and concerned the role of the Bank of England as supervisor of banking activities in the United Kingdom. The cause of action was misfeasance in public office. At 1231 Lord Steyn said:

"The case law reveals two different forms of liability for misfeasance in public office. First there is the case of targeted malice by a public officer, ie conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful."

11. So, whichever way the cause of action is presented, bad faith has to be proved. Lord Hope agreed and at page 1266 Lord Hutton said:

"I consider that dishonesty is a necessary ingredient of the tort, and it is clear from the authorities that in this context dishonesty means acting in bad faith....

However, as the term 'dishonesty' in some contexts implies a financial motive, I consider that the term 'in bad faith' is a preferable term to use and, as I have stated, I consider that it is an essential ingredient in the tort."

12. There are similar observations from Lord Hobhouse and Lord Millett which, for present purposes, it is unnecessary to quote. When permission to appeal was given, the appellant formulated his principal ground of appeal in relation to this aspect of the matter thus:

"The learned judge was wrong in law in holding that it is a sufficient defence for a public servant sued for misfeasance to say that he had acted in good faith when it had been proved that he had acted unlawfully and had said things which were untrue."

13. In my judgment, having regard to what was said by the House of Lords in the Three Rivers case, it is now clear that, having regard to the findings of fact made by the judge, the judge was right to decide as he did.
14. Mr Greville has pointed out that he believes that other councils never did act in this way, that the judge should not have accepted, as he unquestionably did, that this council acted in this way on previous occasions and that the judge should have found on the relevant occasion that the council, and in particular Mr Sprake, were acting in bad faith. The judge heard the evidence and on the evidence he was plainly entitled to decide as he did.
15. Mr Greville further submitted to us that he believed, and undoubtedly he did believe, that it was only necessary for him to prove on the part of Mr Sprake reckless indifference. I have no doubt that at one stage that was Mr Greville's state of mind but, in the light of the decision of the House of Lords, as to that he is now shown to be mistaken. He cannot in the circumstances demonstrate that those who were involved in this Parish Council meeting knew that what they were doing was wrong because the judge has found otherwise. It is insufficient to say that a public servant (meaning a parish councillor) cannot behave as those parish councillors did on this occasion and yet have a defence to an action in misfeasance. The fact is, for the reasons which I have attempted to explain, that they can.
16. I turn, therefore, to the second action which was heard at the same time. Mr Greville claims that from October 1997 onwards Mr Sprake trespassed on his land depositing there farm machinery, wood and earth. Mr Sprake does not dispute that the farm partnership in which he was involved made use of the particular piece of land clearly identified adjacent to Church Cottage in the way that was alleged by Mr Greville. But it was the case for Mr Sprake at the trial that the land in question had never formed part of the tenancy enjoyed by Mrs Zarina Greville and the judge so found. As to that aspect of the matter, the judge said:
17. "I am not satisfied, as Mr Greville claims, that the disputed land has ever been part of this tenancy", which the judge traced back to 1981. It is plain that, having considered all the material before him, oral and written, the judge was entitled so to find.
18. Before this court on the last occasion Mr Greville contended that the judge would have decided otherwise if material had not been removed from his papers which should have been before him. Hence, there appears in his grounds of appeal which came into existence after permission to appeal was granted, ground 2 which reads:

"The learned judge was wrong in law in holding that the disputed land was not part of the tenancy when the curtilage of the property had been drawn by the solicitors of the Waveney District Council and showed the disputed land as part of the curtilage. The learned judge was confused because of the removal of the correct maps by the defendant's solicitors who prepared the bundles."

19. On the last occasion the court referred to this court the possibility of admitting fresh evidence in relation to this aspect of the matter. To some extent, that was mistakenly taken by Mr Greville to be an invitation to lay before this court a quantity of additional material not originally placed before the trial judge and to invite us to consider such material.
20. Ground 3, in the grounds which were drafted after permission was granted, reads:

"The learned judge was wrong in law in holding that a landlord's statutory declaration to a District Council that a named party was a legal tenant confers no right of tenancy on that named party even when the landlord has benefited by payment of public money in return for the statutory declaration."

21. In my judgment it is wholly misconceived. The argument was deployed before and fully dealt with by the trial judge. If a tenancy exists and is found to exist, it cannot be altered by a statutory declaration or a receipt of rent. It can only be altered either by expiration or by an agreement between the parties to the tenancy agreement. Neither Mr Greville, nor Mr Sprake, were ever, on the judge's findings, a party to the tenancy agreement.
22. As to the fresh evidence, there are serious considerations which this court has to bear in mind when looking at any information not laid before the court below. They have been set out in the decision of Ladd v Marshall as long ago as [1954] 1 WLR 1489. This court will not look at fresh evidence unless it is evidence which could not, with reasonable diligence, have been obtained for use at the trial. Even if that criterion is satisfied, the court will not look at it unless it is evidence of such weight that if it were admitted, it would probably have an important influence on the result of the case and is apparently credible.
23. In order not to shut out Mr Greville in any way we have attempted to pursue what he has said in relation to the documentation which was not before the judge and which he submits should have been and had it been would have had an important effect on the trial. He invited our attention to a letter, which was placed before Mantell LJ and Holman J, and which was written by the solicitors acting on behalf of Mr Sprake in the form of a facsimile message. It came into existence on 26 July 1999, three days before the hearing before Judge Worsley. It concerned the contents of the bundle which was to go before Judge Worsley. Paragraph 3 of that fax reads:

"We advised you when we re-submitted the bundle to the Court that certain of your documents would not be included, as these were not included in your list of documents. There is a Court process which has been followed giving sufficient time to allow the parties to disclose documentation and statements. To endeavour to submit further evidence a week before the trial will obviously be opposed.

4. It is apparent that you have obviously spent some considerable time in assessing and should, therefore, have a note of all documents where pages are missing and all the documents you would wish to include which are not inserted in the bundle.

5. We would, therefore, suggest that you attend at our offices with this documentation and we will endeavour to insert it in the bundle. Naturally, it will need to be copied so that it can be inserted in your bundle, ours and that to go to the court."

24. In my view that was a perfectly sensible stance for the solicitors to take. It called for a positive response from Mr Greville to attend at their offices with documents he wished to have in the bundle, which were not there, so that they could be looked at and inserted.
25. We questioned him about it and it seems that he simply did not go. He had already known for some time those documents which apparently were to be excluded because the fax of 26 July, when it refers to the advice previously given, refers, as Mr Greville pointed out to us, to an earlier letter from the solicitors dated 29 June. In that earlier letter, they say:

"We have removed certain documents largely because they were included in the bundle."

26. In other words, they were duplicates. In paragraph 5:

"We have already a copy of the site location plan from the ordnance survey included in the bundle."

27. Again, an indication that there was a document already there and there was no need to have more than one copy of it.
28. Mr Greville's complaint is that the judge was misled because the correct plan annexed to an enforcement, notice which appears in the core bundle for the purposes of this appeal at page 80, was not in the judge's bundle. The plan which was shown to be annexed to that notice now is at page 89 and he submits that, wrongly, the judge had annexed to it a plan which is in our bundle at page 95 or 96. As far as one can see, those two plans are more or less identical.
29. Certainly the learned judge had the issue which arises in relation to the enforcement notice before him because he deals with it in his judgment. The submission being made by Mr Greville was that, because the District Council issued an enforcement notice which embraced not only Church Cottage but also the disputed piece of land, and Mr Sprake (or those acting for him) or Mr and Mrs Hadingham (or those acting for them) did not choose to dispute the way in which the District Council had drawn the boundary of the curtilage, that in some way or another constituted either the grant of a new tenancy or an alteration to an existing tenancy. Plainly, as the judge said, it did neither. It may be some evidence as to the state of relations between the various parties, but the evidence which the judge chose to accept, and was entitled to accept, was that in 1981 a tenancy was granted by Mr and Mrs Hadingham to Mrs Zarina Greville, that the parties to the tenancy remained the same thereafter and that the extent of the curtilage which formed the subject matter of the tenancies did not include the disputed piece of land, either in 1981 or at any time thereafter.
30. In those circumstances the fresh evidence which Mr Greville wishes to place before us, seems to me to be of no significant impact whatsoever. It is plainly evidence which could, with reasonable diligence, have been obtained for use at the trial simply by going to the solicitor's office and making sure that the bundle contained all he wished to have in it. Secondly, it does not on the face of it have any significant influence on the result of the case, although I would accept that it meets the third criteria of Ladd v Marshall in that, on the face of it, it is apparently credible. For what it is worth, it is apparent what it says.
31. Accordingly, in my judgment grounds 2 and 3 of the grounds of appeal, drafted following the grant of permission to appeal, are of no substance and cannot succeed.
32. Mr Greville laid before us at the beginning of this hearing, indeed they were placed before the court relatively recently, some additional grounds of appeal. They simply do not address the issues which were considered by the learned judge in the county court on 30 July 1999. The principal issue of which Mr Greville wishes to complain is the way in which he says the action was financed. That is not a matter with which we in this court at this stage could properly be in any way concerned.
33. In those circumstances, no ground of appeal having been substantiated, I would dismiss the appeal in relation to each of these actions.
34. LORD JUSTICE JONATHAN PARKER: I agree.
35. LORD JUSTICE DYSON: I agree.
JUDGMENT ON COSTS
36. LORD JUSTICE KENNEDY: So far as costs are concerned, it may be helpful if we say that the Civil Procedure Rules provide for the situation which now faces this court. If a litigant in person cannot prove financial loss, then he is limited by Part 48.6(4) to the hourly specified rate in the practice direction, which at present is £9.25 per hour. If he can prove financial loss, he is not so limited.
37. Mr Sprake's position, dealing with the matter entirely frankly this morning, is that he is not in a position to prove financial loss because he is part of a farming partnership and, in a sense, his absence is covered; what is not done today will have to be done another day.
38. Either way a litigant in person is limited to the time which would reasonably have been spent by a solicitor on the preparation of his or her case (CPR 48.6(3)(a)). In any event, the litigant in person cannot get more than two-thirds of what a solicitor would obtain if the solicitor were making the application for costs (see CPR 48.6(2)).
39. Applying those principles to the present situation, it seems to us that the number of hours upon which we should work in the case of Mr Sprake is 20 hours' preparation. We apply to that the multiplier of £9.25 per hour. That produces a figure of £185, which is the amount he receives for his preparatory work. In addition he has demonstrable expenditure in that he has travelled here today at a cost of £53 return, a disbursement which we add, making a total of £238. The order for costs which we make in his favour as a successful respondent is £238.
40. There is a decision of this court in HM Customs and Excise v Chitolie (30 November 1999) in which the issue of costs was touched upon in the leading judgment. The point had not been argued and at that stage the rule may have been misunderstood, so in relation to what a litigant in person can recover that decision should not in future be regarded as a useful guide.
41. LORD JUSTICE JONATHAN PARKER: I agree.
42. LORD JUSTICE DYSON: I also agree.
Order: Appeal dismissed with costs assessed in the sum of £238. (Order does not form part of approved Judgment)