England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(Mr Justice Ferris)

		Royal Courts of Justice Strand London WC2 Thursday, 18th April 2002

1. LORD JUSTICE KEENE: This is an application for permission to appeal against the judgment of Ferris J given on 12th December 2001 whereby he gave summary judgment for the defendants under CPR 24.2(a)(i); that is to say, that the claimants had no real prospect of succeeding on their claim against either defendant. The appellant's notice was not filed until 13th March 2002, so that it was some two and a half months out of time. Mr. Shirley and his wife are litigants in person, but it is fair to say that they have been involved in a considerable amount of litigation over the years, and in my judgment must have been aware that there are generally time limits in litigation, including time limits for appeals.
2. On this aspect Mr. Shirley tells me that he wrote, after Ferris J's decision, to the Legal Services Commission but obtained no response. He then approached other solicitors in early February, and it was only at the beginning of this week, on 15th April, that he heard from his solicitors that the Legal Services Commission was not going to produce an emergency certificate to assist him. He also refers to the fact that he has considerable personal disability and is on constant analgesics. His wife, who is the second claimant, is a semi-invalid.
3. I bear all those matters in mind, though I have to say that it is clear that Mr. Shirley is still able to represent himself, as he did at the trial of this matter before Ferris J and as he has done this morning. Clearly, it was not outwith his physical or mental abilities to lodge the appellant's notice in time. In addition, he did in fact lodge the appellant's notice before hearing from the Legal Services Commission that no emergency certificate would be forthcoming. Clearly, he could have done it even earlier than the date at which he did. I propose to defer ruling on whether any extension of time should be granted until I have dealt with the merits of the proposed appeal. If those merits were strong I would not regard the delay which has occurred in this case as such as to warrant refusing an extension of time.
4. I turn to the merits. The defendants are respectively the solicitors and counsel who acted for the claimants in certain legal proceedings. Mr. and Mrs Shirley were the principal shareholders and directors in the third claimant, Goodpark. The proceedings brought by the claimants were for professional negligence in the conduct of the legal proceedings in question.
5. The facts leading up to those proceedings are complex and are fully set out in the judgment of Ferris J in this action and in a judgment that he gave in negligence proceedings brought unsuccessfully by the claimants against another member of the Bar, Mr. Matthew Caswell. Moreover, the facts are well known to Mr. Shirley who is present today. I therefore propose to give only a brief summary in this judgment.
6. Mr and Mrs Shirley have for some time owned two parcels of land on the north side of the A252 at Challock in Kent. On one of those parcels stands and has stood a house where they live. The other was used by Goodpark as a nursery garden business. It has been known, for reasons I need not go into, as the KCN site. In this vicinity the A252 runs across an area of generally open land known as The Lees. For some time, since about 1973, that has been owned by the Parish Council. The greater part of The Lees lies to the south of the A road but a strip of it, which has often been called the verge, lies between the parcels of land owned by Mr. and Mrs Shirley and the carriageway of the A252. According to the judgment of Chadwick LJ in the Caswell proceedings, the verge is some eight to ten metres in width, although it no doubt varies from place to place. Prior to the Parish Council owning it the District Council were the owners and before them the Church Commissioners. During the ownership of the District Council The Lees, including the verge on the north side of the A road, was registered as common land under the Commons Registration Act 1965. By a lease dated 1st June 1971 the District Council leased the verge between the road and the claimants' two parcels of land to a predecessor of Goodpark for the purposes of a car park. The lease was surrendered in 1986.
7. In the mid and late 1980s Mr. and Mrs Shirley wanted to develop the nursery site as a small business park. For that purpose they wished to obtain planning permission. The problem in planning terms was that improved access was going to be required. That gave rise to a conflict with the Parish Council as the then owners of the land between the nursery site and the A road. The Parish Council were resisting improved rights of access as they saw it, and certainly were holding out for some substantial sum of money, were rights to be granted. At that stage the claimants were being advised by Mr. Caswell. His advice was that the site enjoyed the necessary easements of rights of way across the Parish Council's land. Litigation began between the Parish Council and the present claimants. While it was pending there was a change in the claimants' legal advisers. D J Freeman & Co became their solicitors. In 1990 they instructed fresh counsel, Mr. Anthony Mann. His advice about the claimed easements was pessimistic. The claimants then sought a second opinion which was obtained from Mr. Burgess in May 1990. His advice as to the action to which I have referred was that the present claimants would lose. That action, together with a similar dispute about some other land, were compromised by a Tomlin order in February 1991. The key terms were that Mr. and Mrs Shirley admitted the non-existence of the easements claimed and the Parish Council agreed to grant new easements for the properties in question in return for 30 per cent of the development gain.
8. Also in 1991 the claimants brought negligence proceedings against Mr. Caswell, alleging negligence in a number of respects. One of those was that he had wrongly brushed aside a suggestion that the land between the A road and the claimants' premises was part of the highway, so that no private rights of way across it to the carriageway were needed. Those proceedings in negligence were heard by Ferris J in 1998 and were in part successful, but not on this highways point. The judge concluded that Mr. Caswell was entitled to take the view that the highways argument was not worth pursuing. On appeal the Court of Appeal upheld that part of the judgment (see page 214).
9. In 1995 these proceedings were begun against D J Freeman and Mr. Burgess, alleging negligence by both parties in failing to plead and pursue this highways point. Damages are claimed on the basis that the outcome of the litigation to which I have referred, and other litigation, would have been different if the point had been pleaded, either because the argument would ultimately have succeeded, or because it would have brought about a more favourable settlement.
10. In his judgment of 12th December 2001 Ferris J held that there was nothing of particular cogency to support the highways point. He noted in particular that the verge was registered as common and that if this registration was correct the verge could not be part of the highway. This explained why no one in the earlier proceedings had thought that the verge might be part of the highway. He also noted that neither of the other counsel involved in the original proceedings had thought that the highways point was worth pursuing. The judge concluded that Mr and Mrs Shirley had no real prospect of succeeding in a negligence claim against Mr. Burgess. For the same reasons he entered summary judgment on the claim against the solicitors, D J Freeman & Co., with the additional point that he could see no reason why they should have questioned the advice given by counsel who had been someone of appropriate qualifications and experience.
11. The claimants now seek permission to challenge that decision. Mr. Shirley, who appears in person and who I have allowed to speak on behalf of all the claimants in this matter, focuses principally on the merits of the highways argument. He has clearly done a considerable amount of research into that topic. His submission is that Ferris J failed properly to interpret the law on this. He contends that there is ample evidence that this land does form part of the highway. He refers to the fact that the defendant lawyers had the deeds. They had the documents dealing with the planning history of the site and they had various other documents, including correspondence. Mr. Shirley relies upon the presumption that, where there are fences on either side of a highway, prima facie the whole width between the fences is to be regarded as highway; that is to say, as a public right of way. He tells me that in the past delivery vehicles have driven along part of this verge to effect their deliveries. Consequently, he contends that the claimants did have a reasonable prospect of success in the highways argument and that this claim should not have been one where summary judgment was given for the defendants.
12. In dealing with these various arguments, both those in the written skeletons from the claimants and those advanced orally today, I remind myself that this case concerns a claim in professional negligence. The test to be applied in such cases was dealt by Ferris J by reference to the relatively recent decision in McFarlane v Wilkinson [1997] PNLR 578, part of the headnote of which states:

"A barrister was expected to exercise independent judgment, and would only be liable for negligence in the event of a course of action which no reasonably competent barrister would have taken. Even if a point might be characterised as arguable, he was not bound to plead it if in his judgment it was likely to fail."

13. Ferris J went on to say that a barrister is not to be held liable for taking or failing to take a particular course if his action falls within the range of decisions that a reasonably careful and skilled barrister might take in the circumstances. In my judgment, that is an appropriate formulation of the legal test to be applied in such situations.
14. Mr. Shirley is very convinced of the merits of the highways argument. It is one which has not been judicially decided and I am in no position to decide it definitively today any more than would the full Court of Appeal be were this matter to proceed further. Some observations on it, however, are pertinent as background to the decision which I have to make.
15. The width of a highway is a question of fact, the issue being what has been dedicated as a public right of way, or what can be presumed to have been so dedicated from the evidence available. In some circumstances, where a highway runs between fences the whole area between the fences is presumed to be dedicated, but that presumption only arises where the existence of the fences is itself shown to be referable to the highway; in other words, that is why the fences are there, to delineate the boundary between the highway and other land. The Court of Appeal has recently made it clear in Hale v Norfolk County Council, a decision reported in The Times, 19th December 2000, the judgment itself being dated 17th November 2000, that there is no presumption of law that fences were put up to separate highway land from non-highway land. It is a question of fact. They may have been put up to separate, for example, private enclosed land from manorial waste or common land. Even where the presumption arises it is readily rebuttable by evidence to the contrary (see Neeld v Hendon Urban District Council (1899) 81 LT 405. So the mere existence of fences does not take the matter very far. One has to look at all the other circumstances that may a have a bearing on the status of the land in question. In the present case it does seem that there was substantial evidence inconsistent with the so-called verge being part of the highway. It was not owned by the highway authority and never had been. Very significantly, there seems to have been no evidence that it had been maintained by the highway authority in any way. Indeed, this morning Mr. Shirley has told me that when he and his wife purchased their properties, the verge was gravelled as a result of actions by their predecessors in title, the owners of the claimants' properties. Insofar as the gravelled area has since been maintained, it has been maintained apparently by the claimants rather than by the highway authority. In part, indeed, the claimants have concreted part of this verge.
16. Moreover, the verge has been registered as common land, and while the mere fact of registration is not conclusive of it not being a highway (see section 21 of the Commons Registration Act 1965), the fact that it was regarded as common land was and is a relevant consideration. Common land cannot be a highway (see section 22(1) of the 1965 Act). In addition, the letting of the part of this land for the parking of vehicles, to which I have referred earlier, was wholly inconsistent with any presumed dedication as a public right of way. The parking of those vehicles would have constituted an obstruction to that public right of way.
17. There seems to have been scant evidence of any public user of this verge as a right of way beyond the oral comments made to me by Mr Shirley this morning. It is right that there are two letters in the bundle, indicating that at one time in the early 1960s the county surveyor thought that the verge was part of the highway, but there is also a letter dated 18th December 1987 from the County Council Highways Department stating that the limit of the publicly maintained highway was the back edge of the footway on the north side of the road, and that the verge between the footway and the southern boundary of the claimants' land was not part of such highway.
18. It seems to me that Ferris J was broadly right in saying that there was not any particularly cogent evidence to support the highways argument. In those circumstances it would have been understandable if counsel took the view that that argument should not be run. Mr. Burgess, as I have indicated, had to exercise his judgment. Even if the point had been arguable, as a matter of law he would not have been negligent in deciding that it should not be pursued in the circumstances that I have described. In fact, at least two other counsel, Mr. Caswell and Mr. Mann, had not sought to raise that argument on behalf of the claimants. It is significant that Mr. Caswell had been held not to have been negligent in this respect and that that finding was not disturbed by the Court of Appeal. If Mr Caswell was not negligent in this respect, then how could it be successfully argued that Mr. Burgess was? How could it be said that he was acting in a way that no competent counsel would have acted when Mr Caswell had acted in the same way and had been found not to have been negligent?
19. I conclude therefore that there was no real prospect of the claimants establishing that Mr. Burgess had been negligent. The same conclusion must be reached in respect of D J Freeman who, in the situation which existed here, were entitled to rely on counsel's judgment. This was not a particularly straightforward matter. Although solicitors cannot always simply rely, with no more, on the advice of counsel, in the circumstances of this case I am satisfied that they were entitled to rely upon the judgment which counsel had reached.
20. I would add that the inherent weakness of the highways argument not only goes to the negligence issue; it also has an impact on the prospects of the claimants showing that counsel's decision had caused them loss. The chances of succeeding on the highways point were very slight indeed, and yet only had it succeeded would the alleged loss have been avoided. In short, therefore, for the reasons I have indicated, I can see no reasonable chance, on the merits, of an appeal against Ferris J's decision succeeding. He was right in the conclusion which he reached. This application must be dismissed, as must the application for an extension of time. Nonetheless, I am grateful to Mr. Shirley for the courteous and coherent way in which he has presented his arguments, both in writing and orally today.
Order: Application refused.