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 HIGH COURT OF JUSTICE
(MR JUSTICE NEUBERGER)

		Royal Courts of Justice The Strand London, WC2A 2LL
		17 February 2004

Tuesday, 17 February 2004

1. LORD JUSTICE BROOKE: There are three matters before the court today. The first is an application for permission to appeal against the judgment of Neuberger J on a first appeal when he refused to interfere with a decision by Judge Jones when that judge had refused to allocate the underlying litigation to the multi-track. The second is an application for permission to appeal against an order of Neuberger J on 14 July 2003 when, following an oral hearing on notice, he refused an application by Mr Hutchings under the Taylor v Lawrence jurisdiction to re-open an application for permission to appeal against an order made by Judge Jones at the substantive hearing of this matter in 2000. Thirdly, Mr Hutchings seeks permission to appeal against a direction of Neuberger J in the form of a Grepe v Loam order to the effect that any further applications by Mr Hutchings should be issued only after permission has been granted consistently with the judge's order.
2. This matter has a very long history going back to 1997, when District Judge Batcup made an arbitration award under the county court procedure in relation to a boundary dispute between Mr Parker and his wife (who own the Great Barn, Redways Road at Bonvilston) and Mr Hutchings (who owns Lillypot Farm at Bonvilston). The district judge made an order on his award which was subsequently revised. It was sent back to him for reconsideration by Judge Price and it was revised in terms that the southern boundary of the Great Barn with the adjoining property, Lillypot Farm, lies along "the line of an existing wire fence (from point E to an existing coppiced sycamore tree) and the straight line extension thereof in the position more particularly delineated on the plan annexed hereto by a red line between the points marked F and E."
3. Mr Hutchings sought permission to appeal to this court from Judge Price's refusal of permission to appeal. This court (in those days) had very limited jurisdiction in relation to small claims, and Morritt LJ, who was sitting with Phillips LJ, said that he could see no grounds at all for saying that there was an error of law or misconduct (which were the only permitted grounds of challenge) because the form of order which the judge made was impossible to carry out on the ground.
4. At all events the matter came back to court. There were further disputes between the parties. Judge Price made an interim order in which he found Mr Hutchings guilty of contempt of court, and made a suspended order for his imprisonment. The Court of Appeal dismissed that appeal. That shows how high feelings were running even five years ago.
5. Mr Parker and Mr Hutchings were the parties to a four-day hearing before Judge Jones in Cardiff in 2000. The central issue in those proceedings was the location of the boundary as found by the district judge. The judge visited the site and he found in favour of Mr Parker. Mr Hutchings then sought permission to appeal. The matter had not been assigned to the multi-track and, in accordance with the Destination of Appeals Order since it was a final decision by a circuit judge in a case which had not been assigned to the multi-track, the matter came before Jacob J, as a High Court Judge sitting as a first appeal court. After a substantial hearing he gave a very short judgment in which he said he considered that there was no prospect of success on the appeal and that, in any event, an appeal would be disproportionate.
6. Mr Hutchings then applied to Judge Jones to have the matter allocated under the slip rule to the multi-track. Judge Jones considered that he had no jurisdiction to entertain that application, but that even if he had jurisdiction he would not exercise it, and he said why. Mr Hutchings sought permission to appeal against Judge Jones' ruling. Neuberger J granted permission to appeal. He considered that the appeal had a real prospect of success, but on the substantive hearing he held that although the judge was wrong in considering that he no jurisdiction under the slip rule, he had been entitled to determine that the allocation should not be made. In a very long judgment, which this court has had the opportunity to consider, Neuberger J dismissed the appeal on two bases. He said:

"The first is that the only way in which the appeal could succeed is on the basis of the slip rule and there are two objections to applying the slip rule. The first is that I am by no means satisfied, any more than Judge Jones was, that he would have allocated to multi-track if he had been asked. The second reason is that in the light of the history of this matter and the fact that there has been one bona fide attempt to appeal in writing and orally, and the amount of time and money spent on this case already, mean that it would be inappropriate to invoke the slip rule."

The judge expressed very considerable sympathy for Mr Hutchings, but said there has to be an end to litigation.

7. Mr Hutchings then sought permission to appeal from Neuberger J's ruling. The matter came before Judge LJ in this court on 28 November 2002 when he adjourned the application and said that Mr Hutchings should have the opportunity to have the question of permission to appeal from Judge Jones' order reconsidered, in effect under the Taylor v Lawrence jurisdiction. Mr Hutchings duly made such an application in writing. Neuberger J explained, in a letter that he wrote in June 2003, why he considered that justice required on oral hearing. He said that he would put out of his mind events which had occurred since 29 June 2000.
8. The judge then gave a very long, reasoned judgment in which he decided, after hearing Mr Hutchings and hearing the solicitor for Mr Parker, that he would not allow the matter to be re-opened. He identified certain unsatisfactory features of the order made by the district judge, even in its final form, but he considered that the proper way to approach the dispute between the parties was to interpret the order which said that the line was "more particularly delineated" on the plan attached to the order; it was not just a matter of identification. He said that the only way to resolve the matter once and for all was to look at Judge Batcup's order to see that he had decided that the line started at point E, went to a readily ascertainable sycamore tree, and it was then a straight line extension after that. This would avoid the difficulties which were much canvassed before him that the fence was not necessarily a straight line. There were disputes about whether the fence had been moved or not. He considered, after taking into account all the matters which were before him, that the matter should not be re-opened because he could not fault the conclusion that Judge Jones had come to on all the material.
9. He said that the district judge's decision and order may not have been satisfactory, but that Judge Jones did the best he could and reached the right conclusion, and he refused permission to appeal. He added that he was also influenced by the fact that what was at stake was small.
10. Mr Hutchings has taken great umbrage about that because he says that there are important issues at stake, and one of the most important, as he has submitted to us, is that Mr Parker lied at the hearing and there ought to be some way of correcting a matter in which one of the litigants had lied.
11. As I have said, there are three matters before us today. The first is the attempt to challenge the Taylor v Lawrence order. In my judgment there is no right of recourse to a further appeal court after a lower appeal court, in this case Neuberger J, has refused to re-open the matter. In paragraph 56 of his judgment in Taylor v Lawrence [2002] EWCA Civ 90, [2003] QB 528, Lord Woolf, giving the judgment of a five-judge court, made it clear that a Taylor v Lawrence application would be considered on paper, that there would be no right to an oral hearing of the application unless the court so directed (as Neuberger J did), and that the court should exercise strong control over any such application so as to protect those who are entitled reasonably to believe that litigation is already at an end. There is no suggestion that there is a right to go on challenging a refusal to re-open a decision of an appeal court.
12. Accordingly, I am satisfied that Mr Hutchings' first application is doomed to failure for want of jurisdiction in this court.
13. I turn now to the proposed appeal against Neuberger J's order on 20 May 2002, consideration of which was adjourned by Judge LJ when it came before him later that year. I have explained to Mr Hutchings that this court only has jurisdiction to consider a second appeal if there is an important point of principle or practice, or if there is some other compelling reason to allow a second appeal to go forward. Mr Hutchings again submits that there is a compelling reason because Mr Parker told lies, and that there has been a miscarriage of justice. Unhappily, boundary disputes do raise strong passions, but I have explained to Mr Hutchings the way in which a first appeal court will consider any substantive issue relating to the credibility of a witness against the background that the trial judge has had the opportunity of seeing the witness give evidence and assessing his credibility in a way that an appeal court can never do. There is plenty of authority both in this court and in the House of Lords to that effect.
14. Mr Hutchings was unfortunate in that the matter came before the courts in the transitional days of the new CPR appellate regime. However, he went the appeal route to Jacob J, and no doubt if Jacob J had allowed his appeal he would not be raising allocation points now. I have considered Neuberger J's judgment with care and I consider there is nothing in that judgment which raises any matter which could justify this court granting permission for a second appeal.
15. Accordingly, I would refuse permission to appeal.
16. Finally, there is the application out of time to challenge the Grepe v Loam order made by Neuberger J. What happened was that Judge LJ warned Mr Hutchings quite clearly that the courts might wish to control his litigation by way of a Grepe v Loam order if he continued with it. At the end of the hearing before him in July, Neuberger J said that although he thought conditions were appropriate for a Grepe v Loam order he wanted to give Mr Hutchings the opportunity to make written submissions to him. He gave Mr Hutchings that opportunity, and he then decided that he should make the order and he gave his reasons for it.
17. Mr Hutchings challenges this on a number of grounds. He says that there are some ancillary matters still to be resolved in relation to costs and matters of that kind. The new CPR regime, however, makes it clear that the time runs from the time an order is made. Appeals do not now get delayed in the way that they used to before the new appeal regime was introduced by delays over drawing up orders in relation to other matters. He then says that although he now understands the effect of a Grepe v Loam order he does not trust the court, because Neuberger J dealt in correspondence rather brusquely with matters which he had sought to raise with him. The Grepe v Loam order, if it stands, will be policed by some other judge. Neuberger J has now been promoted to the Court of Appeal, and no doubt any new judge will consider any application carefully as to whether the matter should be allowed to proceed. He will also consider whether it does not simply represent the relitigating of matters that have already been decided in the litigation.
18. Finally, Mr Hutchings complains that there was no time limit placed on the Grepe v Loam order. A Grepe v Loam order is different from the types of order this court was recently discussing in the leading case of Bhamjee v Forsdick (No.2) [2003] EWCA Civ 1113 because it is concerned only with the particular litigation, whereas in the other types of order the orders go wider, and this court explained why such orders should only be made for a limited period in the first instance. No doubt if for any reason the need for control is no longer apparent, Mr Hutchings can apply to the judge who is policing the Grepe v Loam order for him to be released from its constraint. But I do not consider the mere fact that Neuberger J drew up the Grepe v Loam order in traditional style is any reason why this court should permit an appeal from it.
19. For these reasons I would dismiss this application.
20. Before I leave it I would say this. I am not disposed to consider imposing any form of control over Mr Hutchings' access to this court if he seeks permission to appeal. But if in due course he seeks permission to appeal unmeritoriously the court may very well take the view that it will need to exercise some kind of restraint, such as imposing a condition that Mr Hutchings' applications for permission to appeal will be considered only on paper. However, we have not reached that stage yet, and I hope the time will never come that we may have to.
21. LORD JUSTICE SCOTT BAKER: I agree.
(Applications dismissed; no order for costs).