COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WESTON-SUPER-MARE COUNTY COURT
District Judge Exton
London, WC2A 2LL
B e f o r e :
LORD JUSTICE SEDLEY
LORD JUSTICE CARNWATH
| RITA FLEURETTE GREGORY and |
JOYCE RITA GREGORY
|- and -|
|SIMON TURNER and|
THE QUEEN ON THE APPLICATION OF
JOHN MORRIS (as attorney for Joyce Rita Gregory)
|- and -|
|NORTH SOMERSET COUNCIL||Defendants/|
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR MORRIS APPEARED AS A LAY ADVOCATE FOR THE APPELLANTS IN EACH CASE
THE RESPONDENTS IN EACH CASE WERE NOT PRESENT OR REPRESENTED
Crown Copyright ©
|2 Factual and procedural background||6.|
|3 The proceedings before the District Judge||9.|
|4 The appeal to the Circuit Judge||15.|
|5 The appeal costs||21.|
|6 Issues in this Court||23.|
|7 Reopening previous decisions||25.|
|8 Jolly v Jay||26.|
|9 Taylor v Lawrence||27.|
|11 Issue (i): The costs issue||32.|
|12 Issue (ii): The merits issue||37.|
|13 Issue (iii): The power of attorney: (a) Background||47.|
|14 (b) The Courts and Legal Services Act 1990||50.|
|15 (c) Special Cases||59.|
|16 (d) Powers of Attorney||65.|
|17 (e) Rights under the 1990 Act||72.|
|Part I The factual background||83.|
|Part II The respective cases||93.|
|Part III The pre-trial proceedings before the District Judge||95.|
|Part IV The witness statements and other evidential material||105.|
|Part V The hearing on 18th September||108.|
|Appendix II Issue (iv): The enforcement issue||114.|
Lord Justice Brooke :
(i) An application for permission to appeal against an order made by Burton J in the Administrative Court on 19th July 2002 whereby he was refused permission to apply for judicial review of a decision by the North Somerset Council on 7th February 2002 not to serve an enforcement notice on the Turners in relation to matters arising out of the same dispute.
(ii) An application for permission to seek an order setting aside an order by Sedley LJ dated 7th December 2001 so as to enable them to reopen their application for permission to appeal against the costs order made against them summarily by Judge O'Malley in the Bristol County Court on 20th February 2001;
(iii) An application for permission to challenge (in this Court or elsewhere) the order made by that judge on the same occasion, whereby he refused them permission to appeal against an order made by District Judge Exton in the Weston-super-Mare County Court on 4th October 2000, following a trial in the small claims track, whereby they were awarded only £100 as damages for trespass against the defendants Mr and Mrs Turner ("the Turners");
The last two represent the intended effect, as we interpret it, of a letter to this Court from Mr Morris dated 6th August 2002. Notwithstanding the procedural informality, the general importance of the issues raised has made it convenient to treat them as applications properly before the court.
2. Factual and procedural background
3. The proceedings before the District Judge
"…that they are damages awarded for a tort as compensation for the plaintiff's mental distress, where the manner in which the defendant has committed the tort, or his motives in so doing, or his conduct subsequent to the tort, has upset or outraged the plaintiff. Such conduct or motive aggravates the injury done to the plaintiff, and therefore warrants a greater or additional compensatory sum…" (para 2.1)
(although the Commission also refers to "continuing confusion" in the case law about whether they serve "a different function, which is punitive in nature"). The same passage (para 2.10) confirms that such damages are available on a claim for trespass to land (para 2.10). In Cassell v Broome  AC 1027, 1124, Lord Diplock explained "aggravated damages" (as distinct from "punitive damages") as reflecting the clamaint's heightened sense of injury resulting from "the manner in which or motive for which" the defendant acted. Thus, this was a valid and important aspect of the claimants' case, which, because of the district judge's view of the law, was wholly overlooked.
4. The appeal to the Circuit Judge
"Diminution in land is the appropriate measure; this does not seem to be in issue. There is no claim for exemplary damages and the evidence would not have supported the same…"
This statement of the position in respect of the trespass claim does not seem to have been challenged in Mr Morris's written response, although in relation to the issue of rights to light he referred to cases cited in Gale on Easements (Carr Securities v Dick Maitland Associates  1 WLR 922; Deakins v Hookings  1 EGLR 190) as showing that, in that context, the court could take account of loss of amenity generally, and the defendant's expected profit. There is, however, a hint of the point in paragraph (6) of the substituted grounds of appeal.
"I had received two schedules of costs from the solicitors, one just over £10,000 and one just under. They in fact were not pressed to the judge for consideration, counsel for the defendants having suddenly realized he could only request costs for that day. This was confusing to me and I could not absorb his precise figures or consider what figure His Honour Judge O'Malley rounded down to £2,000. All in all I cannot be very happy about a summary assessment until I have the detail of what was finally requested."
We have seen one of these schedules, which wrongly included all the costs allegedly incurred in the proceedings before the district judge. It is obvious to us that the procedure in fact adopted on 20th February did not comply with paragraphs 13.5 and 13.7 of the Costs Practice Direction.
5. The appeal on costs
"Reading Judge O'Malley's reserved judgment, it is plain from it that he was both assisted and influenced by the submissions made by the intended respondents' counsel, and he awarded them their costs of the application before him. Presented with a bill hovering around the £10,000 mark, Judge O'Malley took it with a very large pinch of salt and made a summary assessment of £2,000."
He held that this was within the judge's discretion:
"[T]he respondent having elected to attend, it is plain from Judge O'Malley's judgment that he derived not only assistance but conclusive assistance from the submissions which the respondents' counsel made.
Even in that situation it is by no means obligatory for the permission judge to give successful respondents their costs. He may still say that their attendance was a luxury for which they themselves have to pay. But equally, where it appears to the judge that by attending the respondents' lawyers have clarified the issues and have shown the judge that it is inappropriate to make a grant of permission to appeal which the judge might otherwise have been persuaded to make but which, as he can now see, would only have resulted in a full opposed hearing with the same outcome, then the judge's discretion undoubtedly extends to giving the intended respondents their reasonable costs of, in effect, turning up and heading off an appeal which was eventually going to fail."
As to the figure of £2,000, he said that "it was of course an estimate" but -
"… it (was) not perceptibly an arbitrary or unreasonable figure. Indeed, experience suggests that it was quite realistic".
(Incidentally, he accepted, when Mr Morris pointed the matter out to him, that this application should have gone to a High Court judge and not to the Court of Appeal, but he recorded that Mr Morris consented to his having jurisdiction to hear the matter.)
6. Issues in this Court
(i) Can Sedley LJ's decision on the costs appeal be reopened? ("the costs issue")
(ii) Is there any remedy in this court (or elsewhere) in respect of the circuit judge's decision refusal of permission to appeal on the merits? ("the merits issue")
(iii) Did the grant to Mr Morris of an enduring power of attorney confer rights to conduct litigation or render advocacy services on Mrs Gregory's behalf? ("the power of attorney issue")
(iv) Are there arguable grounds for judicial review of the planning authority's decision not to take enforcement action? ("the enforcement issue")
7. Reopening previous decisions
8. Jolly v Jay
"Where the court does not request submissions from or attendance by the respondent, costs will not normally be allowed to a respondent who volunteers submissions or attendance."
(NB The second "not" is erroneously omitted from the Winter 2002 Supplement to the White Book)
9. Taylor v Lawrence
"In the case of inferior courts where the decision of the court is made final and conclusive by the statute, this may involve the survival of those subtle distinctions formerly drawn between errors of law which go to jurisdiction and errors of law which do not that did so much to confuse English administrative law before Anisminic …"
"The possibility remains that there may be very rare cases where a litigant challenges the jurisdiction of a circuit judge giving or refusing permission to appeal on the ground of jurisdictional error in the narrow, pre-Anisminic sense, or procedural irregularity of such a kind as to constitute a denial of the applicant's right to a fair hearing. If such grounds are made out we consider that a proper case for judicial review will have been established."
11. Issue (i): The costs issue
"As we see it, this matter has dragged on and been pursued with such zeal and obsession that it has cost our clients in excess of £15,000. The token award of £2,000 has been only a nominal sum, we think that it was too low and as the appeal failed, and was effectively damned as having little or no merit and the subsequent (appeal) has failed, we do not think the costs order should be challenged."
12. Issue (ii): the merits issue
"These are difficult cases in that it is sometimes hard to see what the precise point was but it may be possible to build up from them a proposition of general validity that a tribunal has no jurisdiction to make a determination if it has acted in complete disregard of its duties."
Given that Ridge v Baldwin  AC 40 was among the cases in this group, one sees why this court in Sivasubramaniam specifically added the denial of a fair hearing as a class of jurisdictional error; but Mr Templeman's characterisation of the group of pre-Anisminic decisions to which Ridge v Baldwin was assigned goes somewhat wider than the failure to hear which was the vice in that particular case.
"… only something quite exceptional occurring in the course of their proceeding to a determination can oust their jurisdiction so as to deprive them of protection from civil liability for a subsequent trespass..[An] error (whether of law or fact) in deciding a collateral issue on which jurisdiction depends will not do so. Nor will the absence of any evidence to support a conviction… It is clear, in my opinion, that no error of law committed in reaching a finding of guilt would suffice, even if it arose from a misconstruction of the particular legislative provision to be applied, so that it could be said that the justices had asked themselves the wrong question….
Justices would, of course, be acting 'without jurisdiction or in excess of jurisdiction' within the meaning of section 15 if, in the course of hearing a case within their jurisdiction, they were guilty of some gross and obvious irregularity of procedure, as for example if one justice absented himself for part of the hearing and relied on another to tell him what had happened during his absence, or of the rules of natural justice, as for example if the justices refused to allow the defendant to give evidence. But I would leave for determination if and when they arise other more subtle cases one might imagine in which it could successfully be contended in judicial review proceedings that a conviction was vitiated on some narrow technical ground involving a procedural irregularity or even a breach of the rules of natural justice. Such convictions, if followed by a potential trespass to person or goods, would not, in my opinion, necessarily expose the justices to liability in damages." (p 546D-547B)
"… [T]he error must amount to a failure to observe one of the fundamental rules of natural justice."
"[I]s it right to cling to a system that offers perfection for the few and nothing at all for the many? Perhaps: if we could really be sure that our existing system was perfect. But of course it is not. We delude ourselves if we think that it always produces the right judgment. Every system contains a percentage of error; and if by slightly increasing the percentage of error, we can substantially reduce the percentage of cost, it is only the idealist who will revolt."
Section 54 of the Access to Justice Act 1999 encapsulates part of Parliament's response to Lord Devlin's question.
13. Issue (iii) - The power of attorney: (a) Background
"(2) represent me and act in my place if the need arises in any legal matters or proceedings arising out to the matters at (1) above and any other legal processes necessary to safeguard and protect my personal proprietary interests including authority to sign and execute on my behalf any legal documents required for the causes set out above…".
14. (b) The Courts and Legal Services Act 1990
"the right to appear before and address a court including the right to call and examine witnesses";
the "right to conduct litigation" is
"the right (a) to issue proceedings before any court; and (b) to perform any ancillary functions in relation to proceedings (such as entering appearances to actions).".
"The question whether a person has a right of audience before a court or in relation to any proceedings shall be determined solely in accordance with the provisions of this Part" (see s 27(1)).
Sub-section (2) provides that a person shall have a right of audience before a court in relation to any proceedings "only in the following cases". The categories can be summarised as follows:-
(a) Appropriately qualified members of the legal professions.
(b) Rights of audience granted by a particular enactment.
(c) "A right of audience granted by that court in relation to those proceedings."
(d) "Where he is a party to those proceedings and would have had a right of audience, in his capacity as such a party, if this Act had not been passed."
(e) In certain forms of proceedings where the person is employed to assist in and is under instructions given by a qualified litigator.
Sub-section (4) provides:
"Nothing in this section affects the power of any court in any proceedings to refuse to hear a person (for reasons which apply to him as an individual) who would otherwise have a right of audience before the court in relation to those proceedings."
(Sub-section (7) makes clear that where, before the commencement of the Act appearance in any particular court or proceedings was unrestricted, that position is preserved. That needs to be read in the light of the definition of "court" which includes tribunals and statutory inquiries, in many of which there was and is no restriction on appearances. It has no relevance to the present case.)
"[The 1990] Act does give a court discretion [to grant advocacy rights]. In my view, it is quite clear from the terms in which the Act as a whole is written that it is giving a discretion which is to be exercised only in exceptional circumstances … [The grant of advocacy in specific cases] is the responsibility of the courts who have been given the rights by Parliament. Those who have rights of audience are subject to very stringent requirements … The law must be administered fairly. If the position was otherwise than I have indicated, others can do exactly the same as [X]; and that would be monstrously inappropriate having regard to the requirements that are placed upon those who have normal rights of audience."
At the same time, emphasis has been rightly laid on the need for common sense, in allowing exceptions to the general rule where this will be of genuine assistance to the court and to the course of justice (see Izzo v Philip Ross & Co  BPIR 310, 313 per Neuberger J)..
"Where he is a party to those proceedings and would have had a right to conduct the litigation, in his capacity as such a party, if this Act had not been passed."
There is no equivalent of section 27 (4), which gives the court power to nullify the right of audience in a particular case. However, where a right to conduct litigation is granted in a particular case (under s 28(2)(c)), the court also impliedly has power to take it away (see Paragon Finance (above) at para 58).
"A lay representative may not exercise any right of audience
(a) where his client does not attend the hearing;
(b) at any stage after judgment; or
(c) on any appeal brought against any decision made by the District Judge in the proceedings."
"However the Court, exercising its general discretion to hear anybody, may hear a lay representative even in circumstances excluded by the order."
It may be envisaged that in the small claims court the discretion under category (c) will be exercised more flexibly than is implied by Lord Woolf's comments in D-v-S, which were directed to courts at a higher level of the hierarchy.
15. (c) Special cases
"Rule 39.6 is intended to enable a company or other corporation to represent itself as a litigant in person. Permission under rule 39.6(b) should therefore be given unless there is some particular and sufficient reason why it should be withheld. In considering whether to grant permission the matters to be taken into account include the complexity of the issues and the experience and position in the company or corporation of the proposed representative."
Since this right of representation requires the permission of the court, it is consistent with category (c) in the 1990 Act; the only difference is that the presumption is in favour of the grant of permission rather than the reverse. (For a recent application of this provision, see Watson v Bluemoor Properties Ltd  EWCA Civ 1875).
"…doubtless would include doing anything which in the ordinary conduct of any proceedings is required or authorised by a provision of the CPR to be done by a party to the proceedings."
It is also noted that there is no requirement that a litigation friend must act by a solicitor in High Court proceedings. This contrasts with the predecessor provision, RSC 80 r2(3), which provided that a "next friend or guardian ad litem of a person under a disability must act by a solicitor."
16. (d) Powers of Attorney
"A formal instrument by which one person empowers another to represent him, or act in his stead for certain purposes" (para 2- 039, quoting Jowitt's Dictionary of English Law).
In a later passage the authors comment:-
"The term 'power of attorney' is usually applied to a formal grant of power to act made by deed or contained in a deed relating also to other matters. There was in fact no rule that agency must be created by deed, except where the agent himself is empowered to execute a deed, and it seems that such a power could at common law be granted by simple writing. However, the Powers of Attorney Act 1971 s1 requires that powers of attorney be executed under seal. The term 'power of attorney' is not defined, but presumably means a formal grant of agency powers, often of a general nature."
"extend to all or to any specified matters relating to the donor's personal welfare, health care, property or affairs, including the conduct of legal proceedings…". (emphasis added)
The reference to "conduct of proceedings" was not discussed in the text, but it seems likely that it was intended to mirror the powers which could be granted by the court under section 96 of the Mental Health Act 1983 (see above). This Bill has not yet been enacted
"Some restrictions on delegation stem from the donor's position, others from the nature of the action to be performed. There may also be practical limitations …" (1-13).
"whatever a person has a power to do himself he may do by means of an agent,"
but noted the qualifications, one of which was –
"where the competency to do the act arises by virtue of the holding of some public office or by virtue of some power authority or duty of a personal nature in requiring skill and discretion for its exercise…".
Trevor Aldridge ends this section with the following observation :-
"A question which does not seem to have been conclusively settled is whether a litigant can appoint an attorney to represent him in court, exercising the donor's right to appear in person. To allow this would be to drive a coach and horses through the traditional monopoly of the legal profession to appear on behalf of litigants. It seems unlikely that a court would accept this."
17. (e) Rights under the 1990 Act
"satisfied … that Hale knew who the man was and that he was not a solicitor, and that what he did for Hale was simply done for him in his place, and as though Hale did it".
Part I – The factual background
(i) The Turners' builders had knocked down the fence which the Gregorys had recently erected within their boundary at their own expense;
(ii) They had even drilled concrete from the bases of the Gregorys' fence posts;
(iii) Every attempt to persuade the builders to reinstate the Gregorys' fence had met with laughter and abuse;
(iv) Their workmen had trespassed onto the Gregorys' property, uprooted shrubs, removed rockery stones and trampled down plants. Complaints and requests that the builders should moderate their behaviour had met with no response.
(v) None of the notices required by the party walls legislation had been served.
They said that their clients had consulted them in despair after their own complaints had met with no response. Their letters ended with the threat of court proceedings for an injunction and damages.
Part II - The respective cases
Part III – The proceedings before the District Judge
"There is also some suggestion that witnesses will attend the hearing, and of course their statements have not yet been exchanged. But I have already expressed the view during this hearing that the witnesses are unlikely to add to anything which the expert reports had not already dealt with. The defendants' solicitor confirms my understanding that there are few, if any factual disputes… In my view the stage has been reached whereby verbal witness evidence will be unnecessary, and the matter will almost certainly proceed on the basis of expert evidence and legal argument, and therefore it is not necessary for either of the claimants to attend."
Part IV The witness statements and other evidential material
(i) Mr Harrington, a local builder, who had been employed first by the Gregorys in April 1997 to erect some temporary fencing along the boundary, to replace a side fence allegedly damaged by the Turners. In September, he had supplied and erected a more permanent fence (at a cost of nearly £850), which he placed (as he said) five centimetres inside the line of the old metal posts marking the boundary line. He revisited the site at the end of December 1997, when he found that three of his panels and posts had been removed and also saw cracks in the Gregorys' pathway; and again in April 1998, when he found that he could not re-erect the Gregorys' broken fences because there was now no room to do so between their concrete path and the wall of the Turners' new garage.
(ii) PC Cornish, who had visited the site with another officer on the evening of 23rd December 1997, in response to the Gregorys' complaint that their neighbours' foundation work was damaging their fence. He could see that two fence panels had cracked at the edges, and that a third panel had fallen over because their concrete bases had been undermined. In his note-book a sergeant, now dead, had recorded that he received a promise from the Turners that they would reinstate the fence as soon as possible after the footings had been completed (a promise which was not apparently fulfilled).
(iii) Mrs Powell, of No 92, (a widow then in her early 90s, who died in November 2000), gave evidence of having witnessed the knocking down of the Gregorys' woven fence in December 1997 and the subsequent work in laying concrete foundations along their boundary for a wall.
(iv) Mr Snook of No 98, a retired civil engineer who had acted as an expert witness in boundary disputes in the past, gave factual evidence as to the extent of the encroachment. Mr Snook also deposed to an unhappy incident in which Mr Turner had sounded his van's horn loudly and continuously at Miss Gregory, called her a stupid old cow, and threatened to knock Mr Snook's block off when he remonstrated with him.
(i) There was a line of trees and overgrown shrubs on the boundary line to the north of the old shed behind their bungalow. One tree in particular was very tall and took away all the light Miss Gregory might otherwise have enjoyed through her back window. In July 1997 a Mr Beard had measured exactly where the boundary was, and the Turners had decided to build an inch or two within that boundary line, because they did not wish to trespass.
(ii) The Gregorys had erected their interwoven panel fence in 1997 when the Turners were away on holiday. Although the Turners thought its foundations trespassed on their property, they did not object because relationships were now so bad that they were glad to see a boundary go up. They decided to build the garage, as advised, in December 1997, with no foundations underspilling the Gregorys' property, and with the new garage wall completely within land in their ownership. Their garage was completed in January 1998. Everything they did accorded with approvals given by the planning authority and the building inspectorate, where necessary;
(iii) It was simply not true that they had damaged the Gregorys' fence. All the abuse had come from the Gregorys' side, and the police had eventually warned the Gregorys for wasting their time. The Gregorys had no right to light, and in any event they now enjoyed a greater amount of light than before, as a result of the work done by the Turners in clearing the trees, the old shed, and the bushes. They had been unable to engage in any meaningful dialogue with the Gregorys. They would have been happy to accommodate any suggestions they might have made about the facing of the garage wall or the composition of the new wall separating their gardens, "be it larch fencing or the like".
Mrs Turner also included some of the correspondence as an exhibit to her statement, whose accuracy was confirmed by her husband.
Part V The hearing on 18th September
(i) The Turners had accepted the conclusion of Mr Davy's report as to the extent of the encroachment. The question for her was what, if any, damages should be awarded to the Gregorys to compensate them for any diminution in the value of their property caused by the encroachment. She added:
"I reject any other approach to the measure of damages. As I have said previously, this is not a Wrotham Park type of case. That was a case involving developers, quite unlike the situation here. So, in my view, this is not a case where exemplary damages are appropriate to punish any wrong done by the defendants as to compensating the Claimants."
On this basis, and in the light of Mr Dunscombe's report, there was no diminution in value, and therefore no award of damages for encroachment;
(ii) Despite Mr Dunscombe's report, she was not satisfied that the Gregorys had acquired an easement of light, so that there could be no entitlement to damages for the loss of light. Further, the wall would have looked the same even if there had been no encroachment. The Gregorys would have had no cause of action in such a case, and there could be no award of damages based on the unattractive appearance of the encroaching wall, when the encroachment itself had not led to any diminution in value.
(iii) Trespass was actionable of itself, and the Gregorys should be entitled to recover £100 nominal damages;
(iv) There was a technical defect in the procedure adopted by Mr Morris under the party walls legislation, which had vitiated the whole of that procedure in any event;
(v) The Gregorys had not satisfied the burden of proof that lay upon them to prove that the Turners had been responsible for the damage to their fencing;
(vi) The council appeared to have no present intention of taking any enforcement action, and she could only deal with the case on the basis that there had been no planning breach.
Issue (iv) The enforcement issue
"It appears quite clear to me that the crucial question before the committee was whether the fact that this garage was four inches on the wrong side of the line, and that in breach of planning permission, should give rise to an enforcement notice requiring the Turners to pull down the whole structure. The contents of PPG 18, paragraph 5, have already been drawn to my attention and I have already recited them in this judgment. They were plainly in the minds of the officers, and put before the committee in their report. It is usually inappropriate to take formal enforcement action against a trivial or technical breach of control which causes no harm to amenity in the locality of the site and, as they cited in their report:
'Planning authorities should not normally take enforcement action solely to remedy a slight variation in excess of what would have been permitted by virtue of the General Permitted Development Order provisions.'
It seems to me that the question the committee was asking itself was: what difference did the four inches make, apart from rendering the building in breach of planning? It seems to me, as indeed Mr Morris accepted in argument, that the fact that this three-metre structure was four inches nearer the kitchen window than it would otherwise have been made no material difference to the Gregorys, whose real complaint was that the wall had been built at all opposite their window, and that even four inches back it would have been just as distressing to them. In those circumstances, it seems to me that the question that there had previously been a structure there is much less material than the fact that if a structure had been built in accordance with the General Permitted Development Order, it would still have had exactly the same ill effects, so far as the Gregorys are concerned. That, in my judgment, renders the error, if error there was, in relation to the old garage immaterial so far as the considerations of the committee are concerned.
In those circumstances, therefore, argued well though it has been by Mr Morris, I am not satisfied that it is arguable that the decision not to issue an enforcement notice is unlawful, and I consequently dismiss the application for permission."