England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BIRMINGHAM COUNTY COURT
(His Honour Judge MacDuff QC)

		Royal Courts of Justice Strand London WC2
		Friday, 29th November 2002

1. LORD JUSTICE MANTELL:
2. This is an application for permission to appeal from the order of His Honour Judge James MacDuff QC dated 16th November 2001, by which he dismissed Peter Winston Fluck's claim for damages for conversion and destruction of property. Mr Fluck (whom I shall refer to as "the applicant" henceforward) also seeks an extension of time in which to make his appeal. The time involved is upwards of four months, as I understand it.
3. For many years the applicant and his family had lived in two mobile homes on land at Goscote Lane, Walsall, under the name of "The Caravan". Walsall Borough Council owned the land. It appears that the applicant did not pay any rent or consideration for the occupation of the land. At all events, that is what I understand from the papers, but, in the circumstances, it matters not.
4. At some point in the 1980s the Council became aware that they owned the land and they began possession proceedings against the applicant. Those proceedings were contested. For the purpose, the applicant had the benefit of legal aid, at any rate part way into the proceedings. There was a trial held at the High Court in Birmingham in April 1991 before His Honour Judge Micklem. The applicant's case was that he had acquired what are sometimes called "squatter's rights" by reason of adverse possession over many years. Nevertheless, the court ordered possession against the applicant.
5. The matter then came to the Court of Appeal. It was a condition of permission to appeal that the applicant pay £1,000 into court. It was ordered that, should such payment not be made, the appeal would stand dismissed. The applicant did not pay £1,000 into court. Accordingly, the appeal was dismissed.
6. From that time onwards the applicant continued to live on the land, although now, by virtue of the order for possession, he was a trespasser. He was also (as seems not to have been in dispute) in breach of planning law because he did not have planning consent for various structures erected on the site; nor did he have permission to carry on his business, which was connected with the motor trade, from the site.
7. There were a number of attempts made by the Council to remove the applicant from the site. On 18th September 1992 police and bailiffs attended. There were barricades and there were a number of people present who might be described as friends and supporters of the applicant. I think I am right in saying that the media were present on that occasion also. The attempt to obtain possession by the bailiffs was therefore thwarted.
8. During the following months the Council made secret plans to launch a second attempt to evict the applicant and, just over a year after the first attempt, on 23rd September 1993, in the very early morning, the bailiffs arrived at the site. Police officers were also present and claimed to have reason to arrest the applicant, which involved taking him into custody until early that afternoon. Whilst the applicant (accompanied by his family, as he was) was at the police station, possession was taken of the property. Cars, tools and other equipment which had been on the site were moved to a yard in Oak Park, a district of Walsall. Domestic items were taken to 71 Broad Lane, Bloxwich, near Walsall, that being a council house which the applicant and his family had been offered as rehousing. Then the Council arranged for trenches to be dug around the site and pig slurry spread on parts of it in order to discourage the applicant and his family from returning. In the matter in which the applicant seeks to appeal, the learned judge said that it was common ground that as a matter of law, the possession order having been granted and the Council owning the land, they were entitled to deal with the land as they wished.
9. In July 1996 a Mr Turner, who was acting as solicitor for the applicant, together with the applicant and a television crew, served writs on the police and the Borough Council. An action was mounted against the police for wrongful arrest and false imprisonment. That action was lost. There was a further claim against the Council. That claim fell into three categories. First of all, there was an allegation that the goods removed from Goscote Lane had been wilfully and unjustifiably damaged, smashed up and rendered worthless. Secondly, it was alleged that furniture and other items taken to the Broad Lane house had been similarly mistreated. Thirdly, it was said that goods taken to Oak Park Yard were damaged when they were taken there. There was a further claim arising out of an allegation that the Council had failed to secure Oak Park Yard, leaving it open to vandals and the like to go in and do damage and also to steal goods belonging to the applicant and his family. The claim was brought against the Borough Council, who joined the Sheriff to the action. There was then a secondary contest between those two as to who, if either, was responsible to the applicant.
10. On 8th October 1993 the Borough Council served a notice on the applicant pursuant to the Tort Interference With Goods Act. The notice required the applicant to remove his goods from Oak Park Yard by 14th October 1993 or accept that the Council would be entitled to sell them and set the proceeds of sale against the costs of the eviction. The applicant was to say that the notice had never been duly served; but, at the hearing which is the subject matter of this application, the judge held otherwise.
11. The action against the Council and Sheriff came on before His Honour Judge MacDuff. The hearing was, I am told by the applicant, interrupted on a number of occasions, which led to it becoming somewhat disjointed. There was also a very substantial adjournment in the middle of it. As I indicated in the course of discussion, it is always unsatisfactory when trials are interrupted in that way and there are lengthy adjournments. Sometimes they cannot be avoided and, from what I have seen of the papers, that appears to have been the case here.
12. A principal (if not the principal) witness for the applicant in his case before His Honour Judge MacDuff was the applicant himself. The judge held that the applicant's evidence and that of the witnesses called on his behalf was unreliable. Witness statements had been ordered to stand as evidence in chief. It appeared to the learned judge that those witness statements, when contrasted with other statements made by the applicant and his witnesses, were exaggerated and untrue. What he said in the course of his judgment (at pp.18-19) was this:

"I rarely find that I am astonished at the cavalier way in which sometimes witnesses treat their witness statements as evidence in chief. ... But I have to say that in the case of Mr Fluck this failing was multiplied many times over and above that to which judges are used."

13. In contrast, the judge found the evidence given on behalf of the defendants to be convincing and reliable. In particular, he singled out a Mr Garbett for praise. He was a police officer who oversaw the removal of the goods from Goscote Lane. Mr Garbett had said (p.41 of the judgment) that the bailiffs had done the job in a normal and acceptable way; they were well equipped and professional and any damage which occurred was unavoidable in all the circumstances.
14. The judge also rejected the allegation that the goods had been damaged on their arrival at Oak Park Yard. Concerning the duty of the Council to maintain the goods and protect them from theft and damage, the judge said that he was satisfied that, on a limited budget, the Council had identified the best site available. The request of the applicant for the Council to rent an indoor site or provide 24-hour security was well above the call of the duty of care.
15. Then, having found that the applicant and his witnesses had attempted to mislead him, the judge said that he was satisfied that nothing of any value had been lost or damaged, and that any damage caused to the applicant's vehicles or other property came about entirely through his own failure to comply with court orders.
16. He made mention of a counterclaim against the applicant for the cost of the operation against him. I have already referred to the notice under the Act stating that the receipts gained from selling the property could be set against those costs. There was an outstanding sum. It seems that a Mr Lyne, who appeared for the applicant, accepted in principle that the applicant was liable for those costs and damages; and the judge ordered that they should be assessed.
17. Now the applicant wishes to appeal the judge's orders. He says (through his wife, who has attended and spoken on behalf of her husband because, though present himself, he is recovering from illness) that the delay in serving his notice of appeal comes about principally because he intended to go to the European Court of Justice and was unaware that it was his responsibility to exhaust the domestic remedies first. I am perfectly prepared to accept that that was his state of mind, he having told me that it was. But it was his duty to make prompt enquiries as to how to go about appealing and find out the position long before the four to five months elapsed which did elapse. Accordingly, I am disinclined to allow any extension of time to make this application or to bring the appeal, which effectively disposes of it.
18. But I think it would be wrong to leave it there without making some comment on the merits of the proposed grounds of appeal, which are that the judge was - I think I do not overstate how it is put - incompetent, in that he could not manage the court properly and the time-tabling of the trial was mismanaged. That, of course, is in part a reference to the interruptions and the adjournment, but also to the fact that it originally, so I am told, had 11 days allocated to it and in the event it occupied somewhat less than that. Then, really on the same theme, it is said that the judge interrupted the trial to hear other cases, sometimes for several hours at a time. Finally, it is said that the judge was biased against the applicant.
19. I have taken a good deal of time and trouble to read not only the judgment but also the other material in the case. I can find nothing to support any of the suggestions made, other than that there were numerous interruptions to the trial and there was a long adjournment, as to which I have made sufficient comment already. I can only say that, were the matter to proceed, it would be doomed to failure and that to give permission to appeal in those circumstances would not be doing a favour to anyone, least of all to the applicant, who would have to bear the costs of the unsuccessful appeal. I hope that point is understood.
20. Accordingly, in my judgment this application both for an extension of time and for permission to appeal must be refused.
Order: application for extension of time and permission to appeal dismissed.