England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EPSOM COUNTY COURT
H.H. Judge Morgan

		Royal Courts of Justice Strand, London, WC2A 2LL
		31st July 2003

Lord Justice Kennedy :

1. This is a defendant's appeal from a decision of Judge Morgan sitting at Kingston County Court who on 10^th January 2003 resolved the preliminary issue in favour of the claimants.

Irregular Appeal

2. Unfortunately, after judgment was given in the County Court the matter did not proceed as it should have done. The parties, and in particular the present appellant, clearly recognised that permission to appeal was required, but it does not seem to have been appreciated that –

(1) an application for permission to appeal can only be made to the lower court at the hearing at which the decision to be appealed was made, or to the Appeal Court (CPR 52.3(2)).

(2) an Appellant's Notice must be filed within (a) such period as may be directed by the lower court, or (b) where the court makes no such direction, 14 days after the date of the decision of the lower court that the appellant wishes to appeal (CPR 52.4(2)).

(3) where a final order is made in relation to a preliminary issue in a case assigned to the multi-track the Court of Appeal has sole appellate jurisdiction (see Access to Justice Act 1999 (Destination of Appeals) Order 2000 SI 4/1071 (as amended) Articles (1) (2) and (3)a and the judgment of Brooke LJ in Tanfern Ltd v Cameron-MacDonald [2001] 1 WLR 1131 at paragraph 17).

3. On 10^th January 2003 Judge Morgan adjourned the question of permission to appeal to the 4^th February. The appellant's solicitors then wrote to the judge's clerk on 14^th January to clarify whether the next hearing would be 'the hearing' for the purposes of CPR 52.3(2) and were informed, following consultation with the judge, that it would be. On 4^th February 2003 Judge Morgan granted permission to appeal, but, as he was never asked for any extension of time in which to serve the Appellant's Notice, the grant of permission was of no real value.
4. On 18^th February 2003 the appellant's solicitors attempted to file the Appellant's Notice at the Court of Appeal Office, and were rightly told that it was out of time, it should have been filed by 24^th January 2003 (i.e. within 14 days of the decision which the appellant wanted to appeal). An ineffective attempt was then made to proceed as though this were an appeal to the High Court, and on 26^th March 2003 Aikens J at Reading made an order which on the face of it granted permission to appeal and referred the matter to this court pursuant to CPR 52.14. As I have indicated, he had no jurisdiction to act in this case because the Court of Appeal had sole appellate jurisdiction.
5. Thus, when the matter was listed before us there was no effective appeal in existence, but 2 judges had identified a point of law they considered to be worthy of the attention of this court, and both sides had prepared in the usual way for a contested hearing. We had before us what purported to be an Appellant's Notice, a Respondent's Notice, skeleton arguments and so forth. If the appeal could not proceed the Respondents could hold on to the advantages of having succeeded in the lower court, but otherwise they were not going to be prejudiced if we made such orders as were necessary to ensure that the appeal was properly before us. Mr Humphreys, for the appellants, urged us to adopt that course, and we agreed to do so on condition that so far as the appellants are concerned the costs of the appeal should be regarded as irrecoverable. Mr Hall-Taylor rightly pointed out that in order to obtain permission to appeal from this court the appellants need an extension of time, and the application for permission must be made in the Appellant's Notice. In order to enable the Appellant's Notice to be put into proper form we extended the time for filing it to close of business on Monday 21^st July 2003. Meanwhile we granted permission to appeal, made all necessary abridgements of time, and on the basis of the existing documents proceeded to hear the appeal.

Facts

6. The appellants are a large telecommunications company, and they obtained planning permission to erect a 30-metre high lattice tower to support antennae on land adjacent to the railway track at Kingswood, Surrey. We understand that the tower replaced another tower of similar height, which had been used by Railtrack. The claimants are adjacent property owners or occupiers, and they wanted to use the provisions of the Telecommunications Act 1984 to obtain an Order that the new tower be removed. To that end they commenced proceedings on 23^rd May 2002, and on 25^th June 2002 District Judge Letts ordered the trial of 3 preliminary issues, the second of which, and the only one with which we are concerned, reads –

"whether notice of objection has been served by the Claimants within 3 months of completion of the installation of the apparatus pursuant to paragraph 17(2) of Schedule 2 to Act.".

That preliminary issue was the issue which was decided by Judge Morgan on 10^th January 2003, his conclusion being that, for reasons I will explain, time had not begun to run.

Law

7. Schedule 2 to the Act contains the Telecommunications Code, and paragraph 17 of the Schedule deals with objections to overhead apparatus, such as this tower. The relevant sub-paragraphs are (1),(2) and (5), which read –

"(1) This paragraph applies where the operator has completed the installation for the purposes of the operator's system of any telecommunication apparatus the whole or part of which is at a height of 3 metres or more above the ground.

(2) At any time before the expiration of the period of 3 months beginning with the completion of the installation of the apparatus a person who is the occupier of or owns an interest in-

(a) any land over or on which the apparatus has been installed, or

(b) any land the enjoyment of which, and any interest in which, is, because of the nearness of the land to the land on or over which the apparatus has been installed, capable of being prejudiced by the apparatus,

may give the operator notice of objection in respect of that apparatus.

(5) At any time after the expiration of the period of 2 months beginning with the giving of a notice of objection but before the expiration of the period of 4 months beginning with the giving of that notice, the person who gave the notice may apply to the court to have the objection upheld."

Paragraph 18 deals with the duty to fix notices to overhead apparatus, and sub-paragraphs 1, 2 and 3 of that paragraph are also relevant. They read –

(1) Where the operator has for the purposes of the operator's system installed any telecommunications apparatus the whole or part of which is at a height of 3 metres or more above the ground, the operator shall, before the expiration of the period 3 days beginning with the completion of the installation, in a secure endurable manner affix a notice –

(a) to every major item of apparatus installed; or

(b) if no major item of apparatus is installed to the nearest major item of telecommunications apparatus to which the apparatus that is installed is directly or indirectly connected.

(2) A notice affixed under sub-paragraph (1) above shall be fixed in a position where it is reasonably legible and shall give the name of the operator and an address in the United Kingdom at which any notice of objection may be given under paragraph 17 above in respect of the apparatus in question; and any person giving such a notice at that address in respect of that apparatus shall be deemed to have been furnished with that address for the purposes of paragraph 24(4)(a) below.

(3) If the operator contravenes the requirements of this paragraph he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 2 on the standard scale."

Dates

8. In the light of the findings of fact made by Judge Morgan certain key dates are now established.
9. On 15^th July 2001 physical installation was complete, and on 16^th July 2001 a notice purporting to comply with paragraph 18 of Schedule 2 was affixed to the fence surrounding the tower. It was legible from 2 or 3 metres away, but no member of the public could get close enough to read it without entering a builder's yard and then land owned by Railtrack.
10. On 25^th January 2002, six months after physical installation had been completed, the claimants purported to give notice pursuant to paragraph 17(2) of Schedule 2.

The Judge's decision

11. The judge held -

(1) That for the purposes of paragraph 17(2) installation was complete when physical installation was complete, and not when the apparatus was operational.

(2) That for the purposes of paragraph 17(2) time only started to run when notice was fixed as required by paragraph 18.

(3) That the notice which was fixed was not reasonably legible, as required by paragraph 18(2), because potential objectors could not as a matter of right get close enough to read it.

That must mean that when notice of objection was served for the purposes of paragraph 17(2) of Schedule 2 to the Telecommunications Act 1984 time had not yet started to run, and the preliminary issue should have been answered accordingly, not as set out in paragraph 1 of the judge's order. To correct that error we order that after the words "it is declared that" in paragraph 1 of the Order the remaining words be replaced by those italicised above. That necessary direction does highlight one of the problems which arises from the approach adopted by the judge.

Grounds of appeal

12. Mr Humphreys asked us to consider first his second ground of appeal, in which he challenged the finding of the judge that the appellants failed to comply with paragraph 18, the judge's finding being "that the notice was not affixed in a position in which it was reasonably legible within the meaning of paragraph 18 of Schedule 2".
13. Mr Humphreys accepts that the obligation to affix a notice which is imposed by paragraph 18 is intended to assist a potential objector to exercise his rights by giving notice of objection under paragraph 17 to the operator at an appropriate address (see paragraph 18(2)). That assistance became desirable once the telecommunications industry was privatised and a number of licensed operators entered the field. But Mr Humphreys submits, and this is his first ground of appeal, that there is nothing in paragraph 18 of the 1984 Act to suggest that the notice is intended to advise a potential objector that the operator has completed the installation, or that the time for giving notice pursuant to paragraph 17(2) will run from the time when the notice is affixed. In my judgment that is right, and, as Mr Humphreys submits, the potential objector is not disadvantaged, because he can usually see for himself when the installation has been completed. It is then that paragraph 17(2) gives him the right to give notice of objection, and that right is not deferred, as it could have been, until the operator affixes notice pursuant to paragraph 18(1). As was put to Mr Hall-Taylor during the course of argument, one has only to postulate a situation in which a potential objector becomes aware of completion of the installation as the workmen finish their task, and at once gives notice of objection pursuant to paragraph 17(2). Clearly that is a valid notice of objection because under paragraph 17(2) time has started to run, even if the operator has not yet complied with his obligation under paragraph 18. He has 3 days in which to do so, and it cannot be seriously suggested that for the objector time stops running if the operator fails to comply with his obligation under paragraph 18.
14. The reality, as it seems to me, is that the requirement in paragraph 18 to affix a notice, which has its own penal sanction, will in almost every case assist potential objectors who wish to give notice pursuant to paragraph 17(2). If a legible notice is affixed to the apparatus within 3 days of completion of the installation potential objectors will be able to read it and will have nearly the whole of the 3 months period in which to give notice of objection. The requirement of legibility means that the notice must be at such a height on the apparatus, not masked by part of the apparatus or other obstruction, and of such size that it can be read with reasonable comfort. It is reasonable to infer that the potential reader should not have to get on to the apparatus itself to read it, but there is nothing in Schedule 2 to suggest that he must be able to read it from land to which, as a member of the public, he has the right of access. To my mind that is not surprising because the reality is that even where, as in this case, there is no such land adjacent to the apparatus, those who want to see what the notice says can usually obtain permission from the adjacent landowner to go close enough to read it. Even where that is not possible the information conveyed by the notice can easily be obtained in other ways, for example by reference to the planning permission.
15. Mr Hall-Taylor submitted that the judge's finding of non-compliance with paragraph 18 was a decision on fact with which we should not interfere. I disagree. In relation to that finding the facts themselves are not in issue. It is in the application of the law to those facts that, in my judgment, the error lies. As Mr Humphreys submits, the correction of that error dictates the result of this appeal. If the judge were right there was no way in which these appellants could have complied with their obligations under paragraph 18 in relation to the apparatus with which we are concerned. It is unnecessary to deal with Mr Humphrey's third ground of appeal, namely that the judge was wrong to hold that the facts of this case did not warrant making an exception to the need for full compliance with the requirements of paragraph 18, because in my judgment there was full compliance.

Respondent's notice

16. In his Respondents' Notice Mr Hall-Taylor seeks to attack the judge's finding that for the purposes of paragraph 17(2) "installation means physical installation and does not require the apparatus to be operational". No leave to appeal that finding has been granted by Judge Morgan, or Aikens J or by this court, and in my judgement the attempt to attack it does require leave. It goes beyond an attempt to uphold the decision on different grounds. However, even if leave had been granted, I would uphold the finding of the judge for the reasons which he gave "which relate to the language of the statute as a whole" and also because, as Mr Humphreys pointed out, the tower itself was apparatus for the purposes of the statute, whatever might later be attached to it, so the right to give notice of objection under paragraph 17(2) existed for 3 months after completion of the installation of the tower.

Conclusion

17. Those are my reasons for the decision which we announced at the conclusion of oral argument, namely that we allowed this appeal and that the question posed by preliminary issue no 2 must be answered in the negative. We directed that the appellants do not recover their costs in this court, but they are entitled to recover their costs in the court below and the remainder of the costs of the action subject to detailed assessment.

Lord Justice Brooke:

18. I am only adding this short judgment of my own because it is clear that difficulties are still arising in relation to the destination of appeals three years after the new regime in CPR Part 52 came into force, and because there are features of the conditional order we made when we granted permission to appeal out of time to which I wish to draw attention.
19. On 25^th June 2002 District Judge Letts, sitting in the Epsom County Court, allocated this action to the multi-track pursuant to CPR 26.5 and ordered the trial of three preliminary issues, as Kennedy LJ explains in paragraph 6 of his judgment, which I have read in draft. The district judge set a procedural timetable leading up to that trial, and ordered that directions for the conduct of the remaining issues be considered upon the determination of the preliminary issues by the trial judge. This was the trial which Judge Morgan conducted on 9^th December 2002, and it is his order on one of those preliminary issues which is the subject of this appeal. The question then arises: does the appeal lie to a High Court judge or to the Court of Appeal?
20. The answer to this question lies in the Access to Justice Act 1999 (Destination of Appeals) Order 2000, the general effect of which is reproduced in paras 2A.1-2A.6 of the Practice Direction to CPR Part 52. Anyone who studies these provisions with care will see that a decision of a county court will lie to the High Court unless articles 3(2), 4 or 5 of the order apply. In this case the relevant provision is article 4 which states:

"4. An appeal shall lie to the Court of Appeal where the decision to be appealed is a final decision –

(a) in a claim allocated to the multi-track under rule … 26.5 of the Civil Procedure Rules 1998 …"

21. Article 1 provides, so far as material:

"1(2)(c) 'final decision' means a decision of a county court that would finally determine (subject to any possible appeal …) the entire proceedings whichever way the court decided the issues before it.

(3) A decision of a court shall be treated as a final decision where it –

(a) is made at the conclusion of part of … a trial which had been split into parts; and

(b) would, if made at the conclusion of that … trial, be a final decision under paragraph (2)(c)."

22. In Tanfern Ltd v Cameron-MacDonald (Practice Note) [2000] 1 WLR 1311, 1315, I explained the effect of article 1(3) in these terms (at para 17):

"… This means that if a judge makes a final decision on any aspect of a claim, such as limitation, or on part of a claim which has been directed to be heard separately, this is a final decision within the meaning of this provision. [Counsel] told us that there was concern in some quarters that parts of a final decision might be subjected to one avenue of appeal and other parts might have a different avenue of appeal, but the language of article 1(3) appears to preclude this."

23. In paragraph 18 of that judgment I went on to distinguish between decisions on issues in a trial which have been directed to be heard separately, and decisions on strike-out or summary judgment applications:

"Orders striking out the proceedings or a statement of case and orders giving summary judgment under CPR 24 are not final decisions because they are not decisions that would finally determine the entire proceedings whichever way the court decided the issues before it."

24. Practitioners who rely only on the White Book for their procedural law will not have obtained the full flavour of what I said in my judgment in Tanfern. An abbreviated summary of this passage is given in the third main paragraph on page 1256 of Part 1 of the 2003 Edition. This is why I am returning to this topic now. There is a rather fuller treatment of the topic in Volume 1 of the Civil Court Practice 2002 (the Green Book) at pp 907-8.
25. For the purposes of article 1(2)(c) and article 1(3) the relevant proceedings are the proceedings which relate to the issue whether notice of objection was served by the claimants within three months of completion of the installation of the apparatus. In the event Judge Morgan decided that issue in favour of the claimants, and he determined it finally in the sense that the defendants could not have reopened it when the eventual trial on the merits took place. If he had decided it in favour of the defendants, that would be the end of the action. In either case the dissatisfied party's only method of redress was by way of appeal.
26. The other matter to which I wish to refer is the direction we made to the effect that the appellants might be permitted to appeal (with an extension of time of five months being granted for this purpose) on condition that they should not be entitled to the costs of the appeal even if they succeeded. One of the reasons which prompted us to make this order was that the defendants (who were at mercy) are a very large corporation who regarded a decision of the Court of Appeal on this issue as so important to their business that their solicitors incurred costs of nearly £50,000 in prosecuting this relatively straightforward one day appeal, whereas the claimants were a group of individual objectors to the installation at Kingswood who had succeeded on a preliminary issue and still had to face the costs of the main trial.
27. This is the third occasion within four weeks on which this court has used its power under CPR 3.1(2)(a) to make an order subject to conditions in a manner that is out of the ordinary. In Price v Price [2003] EWCA Civ 888 a claimant was permitted to serve particulars of claim 17 months out of time on condition that he limited his case to the evidence that was available to him at the time he should have served the particulars. In Beck v Ministry of Defence [2003] EWCA Civ 1043 a defendant was permitted to rely on a second, substituted, expert in a personal injuries action on condition that he disclosed the report he had obtained from the first expert (on which the claimant would be entitled to rely if he wished: see CPR 35.11). And now we have granted permission to appeal out of time to a defendant who wished us to determine a point of law of general importance to its business on condition that it cannot recover the costs of the appeal if successful.
28. I mention these matters because this new power to make conditional orders gives a court a greater flexibility to make orders that are both proportionate and just than used to be the case when the court's powers were limited to saying "yes" or "no" in response to applications of this kind. As I said in Price v Price, an earlier example of the same trend is the decision of this court in Walsh v Misseldine [2000] CPLR 201 in which Stuart-Smith LJ and I declined to strike out a claim which had been subject to considerable delay on condition that the claimant was limited to prosecuting his claim on the basis of his case as it stood before the long period of delay commenced. This unconventional use of the court's powers to make a conditional order in the early days of the Civil Procedure Rules escaped the notice of the editors of the White Book and the Green Book. This is the reason why I am drawing attention now to the valuable weapon that CPR 3.1(2)(a) has added to the court's armoury of powers.
29. As to the main substance of the defendants' appeal, I agree with Kennedy LJ, and there is nothing I wish to add.

Mr Justice Holman:

30. I agree that this appeal should be allowed. I only add a short judgment of my own as we are differing from the judge who clearly approached this case with considerable thought and care, and because I appreciate the importance of the case to all parties.
31. The right which the claimants sought to exercise was the statutory right under paragraph 17 of Schedule 2 to the Act to object to the apparatus and to have their objection upheld by the court. As the right is purely statutory, it cannot exist or be exercised otherwise than in accordance with the terms of the statute.
32. By paragraph 17(1) the trigger for the whole paragraph and, accordingly, for exercising the statutory right is that "the operator has completed the installation …". By paragraph 17(2) the time limit for giving notice of objection is "… any time before the expiration of 3 months beginning with the completion of the installation …". Neither sub-paragraph 17(2) nor any other part of paragraph 17 makes any reference to paragraph 18, nor to the notice that has to be affixed to the apparatus under paragraph 18, nor to the date when that notice is affixed.
33. The judge made a clear finding of fact that the completion of the installation of the apparatus took place on 15^th July 2001. That should have been determinative of the case, for it meant that notice under paragraph 17 had to be given on or before 14^th October 2001 whereas the claimants only gave their notice on 25^th January 2002.
34. However the judge then turned to what he described as a "sub-issue: whether time for the purpose of the three month limit in paragraph 17 of Schedule 2 only begins to run if a notice has been affixed to the apparatus in a position where it is reasonably legible, pursuant to paragraph 18." He concluded that a notice had not been so affixed and that the three month time limit never began to run.
35. In my view, and with respect to the judge, this was a complete red herring for the following reasons.
36. First, the words in paragraphs 17(1) and 17(2) are themselves quite clear and, as I have already said, simply do not require or import any reference to the notice under paragraph 18 at all.
37. Second, Parliament could not have intended that affixing a notice to the apparatus under paragraph 18 should be the trigger for giving a notice under paragraph 17, because paragraph 18 is too imprecise as to date. It only requires the operator to affix a notice "before the expiration of the period of 3 days beginning with the completion of the installation." But a time limit for objectors to give a notice must run from a precise or specific date, not from a bracket of three days. Further, paragraph 18 does not require the paragraph 18 notice itself to be dated, nor that it should specify the date upon which the installation of the apparatus was completed. So if time were to run from the date when the notice was affixed, it would require a potential objector to be daily looking out for the moment when a notice was affixed to the apparatus, which would be absurd.
38. These conclusions mean that the issue about the legibility of the paragraph 18 notice, which was the subject of much evidence and argument, was, and is, also a red herring and irrelevant, and I will express my own views briefly. The dominant requirement of paragraph 18 is that the notice must be affixed "(a) to every major item of apparatus installed; or (b) …. to the nearest major item of telecommunication apparatus to which the apparatus that is installed is directly or indirectly connected." The word "to" is clear and is critical. Paragraph 18(2) requires the notice to be affixed in a position where it is reasonably legible, but paragraph 18(2) is only referring to "A notice affixed under sub-paragraph (1) above …."; in other words, to a notice which, by sub-paragraph (1), must be affixed to the apparatus. Further, the reference in sub-paragraph (2) is to the "position" in which the notice must be affixed. The definition of "telecommunications apparatus" in paragraph 1(1) of the Code (viz Schedule 2) clearly extends the apparatus to include a fence, wall or other "structure" within which the apparatus itself is installed and extends it, therefore, to the surrounding fence in the present case, but no further. So in my view the operator had to affix a notice to the mast itself and, on the facts of this case, to the surrounding fence. Upon those structures it had to be in a position where it was reasonably legible – ie not too high, nor too low, nor obscured by some other part of the structure. But the requirements of paragraph 18 go no further.
39. I agree that a notice so affixed may be very difficult for the public to see, or to gain access to, in some circumstances, including, on the judge's findings, the circumstances of this case. But that flows from the clear language of paragraph 18 itself and the reference to affixing "to" the apparatus. It is not a warrant for substituting completely different requirements as to notice for the statutory scheme; the more so as contravention of paragraph 18 is a criminal offence so the paragraph must be construed strictly.
40. By their respondents' notice, the claimants sought to challenge the finding of the judge that the completion of the installation had indeed been on 15^th July 2001. The argument depends, principally, on the contention that the installation cannot be said to have been completed until the apparatus is not only physically erected or installed but also connected to the network and operational. However, I agree with the judge that section 4(5) of the Act draws a clear distinction between apparatus being "installed" and being "connected for use". There is nothing in paragraph 17 of Schedule 2 to require, as a trigger, that the apparatus is not only physically installed but also connected for use or operational; and in my view the judge was indeed correct in his reasoning and conclusion on this point.
41. For these reasons, and those given by my Lord, I would allow this appeal and answer no to preliminary issue 3(b) in the order of District Judge Letts of 25^th June 2002.
Order: Appeal allowed with no recovery of costs in this court but costs below and remainder of same subject to detailed assessment. (Order does not form part of the approved judgment)