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 BURNLEY COUNTY COURT
(Mr Recorder Williams)

		Royal Courts of Justice Strand London WC2A 2LL Thursday, 5th September 2002

Thursday, 5th September 2002

1. LORD JUSTICE PETER GIBSON: The claimants, Gibbons (a firm), renew their application for permission to appeal from the order made on 2nd May 2002 by Mr Recorder Williams in the Burnley County Court whereby he dismissed with costs the claimants' claim for possession of two plots of land extending to 27 acres in Great Harwood, Lancashire. Sir Philip Otton refused permission to appeal on paper.
2. The land has been owned by the claimants since 1969. From about 1984 until the end of 1998 the defendant, John Pickard, has by agreement with the claimants cut the grass on the land for hay-making and silage. The claimants' case was that by agreement the defendant was allowed to cut the grass, keep half for his own use and bale the balance for them and that by a separate agreement with Mrs Gibbons, the wife of one of the partners but not herself a partner, the defendant was allowed by her to use buildings on her own property for a periodic sum. The defendant's case was that the land was let to him for an annual sum and 150 bales of hay. The claimants told the defendant that he could not use the land after 1998, but he continued to do so. Further he used part of the land for grazing cattle, the claimants say without their consent. They commenced proceedings on 6th June 2001 for possession. The defendant claimed an agricultural tenancy.
3. The dispute came before the Recorder unhappily without pleadings. The sole issue for him at the two-day hearing in March of this year was whether the defendant had an agricultural tenancy. It was argued for the claimants that he did not because:

(1) the agreement was only for a seasonal, and not an all-year, use of the land; and

(2) the defendant did not have the exclusive possession of the land, that being necessary for a tenancy.

4. The Recorder gave a reserved judgment. It is extremely brief, both in its findings of fact and its reasons. He referred to a fundamental conflict of evidence. He said that the evidence of the claimants was rejected. He accepted the defendant's evidence that he farmed the land on an all-year-round basis. He accepted evidence for the defendant that the defendant farmed the land as if it were his own. He found that, whatever agreement there may have been, the reality of the defendant's year-round use converted the initial agreement into an agricultural tenancy.
5. He rightly asked the question what was the defendant entitled to do rather than what he did. He answered that by simply saying that he was satisfied the defendant was entitled to farm the land on a year-round basis. That appears to be a reference to what he had found the defendant actually did rather than what he was entitled to do. The Recorder said nothing about the defendant's second argument, based on the lack of exclusive possession, though he recorded that it had been presented.
6. The claimants wish to appeal on the ground that the Recorder has failed to deal with that argument supported as it was, we are told, by evidence which was not seriously challenged that the claimants were using the land regularly for the grazing and exercising of horses. A number of witnesses appear to have given evidence to that effect. Ms Hargreaves for the claimants submits that the judgment is defective in failing to deal with this important point.
7. The defendant through his counsel has supplied us with a skeleton argument opposing permission to appeal. Two points are taken.
8. The first is that permission to appeal should be refused because the claimants did not invite the Recorder to restore the case for further hearing and to ask him to make further findings. I do not accept that a party wishing to appeal should be refused permission on that ground. It is one thing to ask the court to correct plain errors of fact made in the judgment. It is quite another to ask for a further hearing to enable the court to correct a significant omission in a defective judgment.
9. The second point taken by the defendant is that the judge was entitled to prefer the defendant's evidence to that of the claimants and to find that the defendant had exclusive possession either on the basis of a minimal use by the claimants without the defendant's knowledge or on the basis that the limited use was either permitted by the defendant or was not inconsistent with the defendant's own use. The difficulty with that is that it is not apparent from the judgment that the Recorder ever applied his mind to the necessity for exclusive possession and to the evidence in support of the proposition that exclusive possession was not enjoyed by the defendant. Still less if he did reject the claimants' argument, is it apparent from the judgment on what basis he did so. In my judgment where a judgment fails to deal with a significant argument going to the basis of the decision and it is not possible to say with confidence what the judge's views were on the point, it is well arguable that the judgment is so defective that an appeal should be allowed.
10. Ms Hargreaves had a number of other criticisms of the judgment, such as the judge's treatment of the question of rent which she says was dealt with by the judge in an un satisfactory way. It is sufficient that I should say that the shortcomings of the judgment lead me to conclude that permission to appeal should be given.
11. LORD JUSTICE TUCKEY: I agree.
Order: Application allowed. Time estimate of one day. The case should come on before three judges, one of whom may be a High Court Judge.