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 SWANSEA
(HIS HONOUR JUDGE DENYER)

		Royal Courts of Justice Strand London, WC2
		18th May 2005

1. LORD JUSTICE CLARKE: This interlocutory it arises in the course of a dispute between neighbours. This interlocutory appeal arises originally from a decision of District Judge Godwin made on 22nd April 2004. At that time the trial of the action was listed for 16th to 18th May 2004. One of the orders made by the District Judge was to dismiss part of an application dated 1st April 2004 made by the defendants, in which they sought permission to adduce in evidence the statement of Mrs Peggy Williams dated 27th March. The reason given in the application notice was that:

"The statement of Mrs Peggy Williams disclosed nothing that has not previously been communicated to the claimants and their solicitors and its contents, to a degree, only expand upon the fact that Rex David Williams stated in his witness statement that was exchanged in March 2003."

Mrs Williams is one of the defendants in the action, the other being her husband. The claimants resisted the application, which was refused on the ground that it was made too late and would jeopardize the trial date, which (as the judge put it). had costs implications, as the judge put it.

2. The defendants filed an appellant's notice, together with a second statement of Mrs Williams dated 11th May 2004. On 13th May, in the absence of the parties, His Honour Judge Graham Jones ordered the trial to be adjourned. On 14th May, in the absence of the parties, he gave the defendants permission to appeal on the ground that there were reasons to review what evidence was to be adduced and what the issues in the case were. He directed that the appeal be heard on 23rd July. He also ordered the defendants to file and serve, before the hearing of the appeal, evidence from Mrs Williams' GP as to the state of her health in the period material to the production of a statement by her. He no doubt made that order because the District Judge had been told that she suffered from ill health, but no medical evidence had been produced before the District Judge.
3. The appeal did not take place in July but was heard by His Honour Judge Denyer QC in the Swansea County Court on 21st September 2004. The defendants had not complied with the order to produce evidence from the GP. On the day of the hearing Miss Coombes-Davies offered to show Mr Philip Marshall, who appeared for the claimant, some medical records relevant to her state of health. However, because Mrs Williams wanted them to remain confidential, she offered to show them to Mr Marshall on terms that he would not show them to his instructing solicitors or to the claimants. He, entirely understandably, declined to look at them on those terms. Miss Coombes-Davies asked the judge to look at the records on a similar basis, namely that he kept the information to himself. He refused. He heard argument on the appeal and dismissed the appeal on the ground that the District Judge was not only not wrong but clearly right.
4. The defendants sought permission to appeal to this court. Their application was refused on paper by Scott Baker LJ on the ground that no important point of principle or practice arose and that there was no other compelling reason for a further appeal to be heard. The defendants renewed their application orally to Brooke LJ. He granted permission to appeal on 25th January 2005. As I read his judgment, he identified two grounds for granting permission to appeal. He said this in paragraph 10 of his judgment:

"It raises an important point of practice as to what approach a judge should take if a claimant is so sensitive about her state of health that she does not wish her next door neighbour to know. Given that the trial date had been lost when permission to appeal was sought, should, in the circumstances of this case the judge have allowed Mr and Mrs Williams, on appropriate sanctions as to costs, to adduce the evidence at the trial which they wished to adduce?"

5. In those circumstances, it appears to me that the appeal potentially raises those two issues. It also raises the question whether the District Judge erred in principle in reaching the conclusion that he did. A consideration of these issues involves some consideration of the background facts and the proceedings.

The background facts and the proceedings

6. Between 1997 and 1999 Mr and Mrs Roberts built a new home called Ty Gwyn, Craig Las, Letterston, Haverfordwest in the grounds of their existing home, Beechways. On 15th November 1999 Mr and Mrs William, who had retired to Pembrokeshire, bought Beechways from Mr and Mrs Roberts. The transfer reserved to the vendors the right of way over the access drive to Beechways. Their complaint in this action is that in June 2002 Mr and Mrs Williams placed boulders and building materials which interfered with the right of way. In September 2002 they built a wall over part of the relevant area. Proceedings were issued in November 2002. In the particulars of claim the claimants sought an order that the wall be removed and an injunction be granted restraining the defendants from interfering with the right of way. On 25th February 2003 a defence was filed denying that there had been any encroachment and counterclaiming damages for trespass.
7. On 8th April 2003 District Judge Godwin made an order for the exchange of witness statementsin June 2003 although that date was amended to 8th September 2003. Ultimately, Mr Williams made a witness statement, dated 4th July, which was filed on behalf of both himself and his wife. We have now seen a copy of that witness statement. In paragraph 8 Mr Williams said this:

"Due to what appeared to my wife and I to be errors on the plot plan we made an appointment to see Mr Isaac Phillips of Johns & Son, solicitors who acted for the claimants in the sale of Beechways to ourselves. We showed Mr Phillips on a plan what we intended to do. We explained the work. We pointed out to Mr Phillips the minimum width of the right of way would not be less than 10 foot 4 inches. Mr Phillips' comments were 10 foot 4 inches would be more than adequate for a driveway. He took two copies of the plan and 'would try to smooth things over with his clients.' He did not raise an objection. We were given the impression we could proceed. As he said all along the work was done within our boundaries, there would be no problem."

As the judge observed, that was the extent of the contact alleged by the defendants between themselves and the solicitors for the claimants.

8. On 7th October 2003 the solicitors acting for the defendants wrote to the claimants' solicitors a letter which included the following:

"Our clients maintain that in May of 2002 they made an appointment to see yourself showing you what work they intended to carry out, referring to a plan. (Document not available; (reads to the words) The writer hopes it will not come to this."

9. The judge said that that letter goes no further than Mr Williams' statement. However, it seems to me that it may go further because it expressly states:

"Our clients were given to understand that unless they heard from you to the contrary they could carry out the work."

10. However, the judge was right to say that the matter rested there, subject to this. We have been shown this afternoon a letter dated 16th October 2003 from the claimants' solicitors to the defendants' solicitors, signed by Mr I.L. Phillips, in which he writes in response to the letter of 7th October. He refers to the events of 2001. He says that he reluctantly agreed to meet Mr and Mrs Williams and did so on 2nd May 2002. He says that he recalls that during the course of the meeting the defendants produced some plans, indicating the work they were minded to do, and added this:

"I note the comment ascribed to me regarding the width of the proposed new driveway and also that it is suggested that I would 'try to smooth things over with (my) client. This does not accord with my recollection. I had absolutely no authority to agree anything on Mr and Mrs Roberts' behalf and I am quite certain that I did not do so. I am quite certain, also, that I did not employ words that could have caused your clients to think that an agreement had been reached. I utterly refute the suggestion that I gave any hint that this work could be conducted without Mr and Mrs Roberts' express agreement.

I was inundated with work at the time of my meeting with your clients and omitted to send the plans on to Mr and Mrs Roberts. I understand, however, that your client and Mr Roberts actually spoke about the matter in June or July 2002. I understand that at that time no work had been done on the land over which Mr and Mrs Roberts have a right of way and when your client asked if such work could be done, Mr Roberts said, quite emphatically, that it could not.

It follows from the above that whatever understanding your clients may have taken from our meeting on 2nd May 2002, they were not under any misapprehension about the fact that Mr and Mrs Roberts would not agree to the work which they proposed and subsequently began, which work is now the subject matter of this dispute. Please confirm, in due course, that the above position is accepted by your clients and that they do not now wish me to attend court."

11. I should also say that in the course of today we have been shown a statement of Mr Roberts, in which he says in paragraph 14 that in April 2002 Mr Williams deposited a letter with an accompanying plan with his, Mr Roberts', solicitors. He says that, due to an oversight, the letter and plan were not forwarded to him by his solicitor. The first he knew of the plans was when he approached him in early June 2002. He added:

"Mr Williams started to explain the work that he was proposing to do and I made it clear to him that whilst any work that he elected to do on his own property was a matter for him, we would not consent to any work that encroached upon our designated right of way and would take action to prevent such work being done.

15. Mr and Mrs Williams were well aware of my stance in the matter and elected to wait until we were away on holiday at the end of September 2002 before starting the work."

12. On 12th December 2003 the defendants filed an application for permission to amend the defence and counterclaim to include this plea in paragraph 3(A):

"In or about May 2002 the defendants visited the offices of the claimants' solicitors VJG Johns and Son in Fishguard where they deposited a plan showing the works that they intended to carry out. The defendants spoke with a Mr Ifor Phillips the claimants' solicitor and told him of their proposals. Mr Phillips indicated he would speak to his clients in respect of the said proposals. The defendants indicated that they would proceed with the works unless they heard anything to the contrary from the claimants or their solicitors which they did not, and consequently they carried out their proposed works which for the avoidance of doubt are constructed on their own land."

It appears to me that that plea may not have gone quite so far as the assertion in the letter of 7th October 2003. However that may be, on 12th January 2004 that application was refused by District Judge Godwin, having been resisted on behalf of the claimants. As I understand it from Mr Marshall, who has taken instructions on the point, it was refused because it added nothing to the legal issues between the parties. No attempt was made to appeal that decision. On the same day arrangements were made for the fixing of the trial date.

13. On 27th March 2004 Mrs Williams made the statement which has caused all the trouble. It is a short statement. In paragraph 2 she said that she telephoned Mr Ifor Phillips of VJG Johns and Son, the solicitor who acted for the claimants, and she explained that she and her husband did not have a solicitor in the area. Mr Phillips suggested that she contact his secretary in order to arrange a meeting. In paragraph 3 she referred to the meeting, which is the meeting of 2nd May 2002, which it is common ground took place. There after Then paragraph 3 of her statement and paragraph 8 of Mr Williams' statement, to which I have referred, are in almost the same terms, although she added at the end of paragraph 3 that he [that is Mr Phillips] said that:

"as long as all the work done was within our boundaries and on our property there would be no problem and that we were perfectly entitled to carry out the work."

14. Her statement contains only two other paragraphs of substance as follows:

4."Approximately one month after that meeting we had not heard from Mr Ifor Phillips and so I telephoned him to ask him if it was alright for us to do the work. He said that it was. Notwithstanding that after the passage of another month and after my husband had had a conversation with Mr Roberts relating to the work that he intended doing I telephoned Mr Phillips once again and he once again confirmed that we could carry out the work provided that it was on our property. At the time when my husband went to speak with Mr Roberts regarding the work that we intended to carry out work had already started. My husband had taken down part of the wall and had laid out blocks where my husband and I understood from the plans of our property to be outside the area of the right of way. The blocks were set out in a loose fashion in front of the middle pillar in front of our house.

5. On the basis of what Mr Phillips told myself my husband and I honestly believed that we were entitled to carry out the work."

It is those paragraphs, especially paragraph 4, which have caused the problem.

The decision of the District Judge

15. Before the District Judge on 28th April Miss Coombes-Davies told him that Mrs Williams had been ill, had been in hospital and was unable, for health reasons, to give or make a statement earlier, but now felt well enough to do so. She submitted that it would be just and equitable to allow her to be heard as one of the defendants. There was no statement from Mrs Williams as to her medical condition until after the District Judge's order. The claimants were represented by Mr Potter. He resisted the application. He pointed to the order for the exchange of statements and said that Mr Phillips denied that he had ever authorised Mr Roberts to carry out the work. What he called this "new element" had been introduced, namely that Mrs Williams had a subsequent telephone conversation with Mr Phillips. He further submitted that paragraph 2 was incredible. He added that Mr Phillips denied that the second telephone conversation had taken place. He said and that if the statement were allowed in he would apply for an adjournment, principally because it would be necessary to consult his firms' insurers and because of a concern about a potential conflict of interest between the claimants and his firm. He said in the course of his submissions: .

"But if this statement is allowed in I will have to ask for an adjournment", principally, as I understand it, to consult his firm's insurers. (reads to the words (respondent's bundle, 38, p 7) and it should be dismissed." (Document unavailable for checking)

Miss Coombes-Davies observed that Mr Potter recognized that Mr Williams' statement raised material matters and submitted that the court should have all material matters before it at the trial. She further observed that Mrs Williams could be cross-examined on behalf of the claimants.

16. In refusing the application District Judge Godwin said this:

"Well when statements were exchanged, they were exchanged simultaneously. And they were exchanged simultaneously for the purpose of ensuring that no party had the advantage of the other in seeing the evidence of the other prior to the exchange. Now, that was effected many months ago and now we have a statement which is material in the sense that it introduces completely new evidence of which your clients were at the time of the exchange of statements should have taken place. And it would have been open to Mr Williams to have referred in his statement to these matters, but he chose not to do so. Now, it is material in the sense that I believe Mr Potter intended that, that the use of that word in that it puts an, an entirely different complexion on the case. Which does not accord with the pleaded case. And consequently we have here what could amount to, does mount to, a new case. At least a new issue in the case. Now, there is not any evidence of your client's illness. It has not been mentioned previously, although there has been much mention of Mr Williams' illness, as I recollect, on more than one occasion. But it does not seem to be equitable that this statement should be allowed in at this stage. This evidence is evidence which is quite important to the case, and should have been adduced at the proper time. And even if Mrs Williams were unable to attend to give evidence, the statement could have been tendered under the rules of evidence for that reason. But no attempt was made to do that. Now, given the fact that the statements were exchanged many months ago and this application comes before the court just a matter of weeks before the trial, the admission of this statement in to evidence seems to me to jeopardise the trial being able to proceed. Which consequently has costs implications. And given the fact that this potential witness is a party to the case, there is to my mind no reason why this evidence should not have been adduced at the proper time. And certainly long before its appearance six weeks before trial. And for that reason the application to admit this particular statement is dismissed."

17. The essential question before the judge on appeal was whether, in reaching that conclusion, the District Judge erred in principle or exercised his discretion in a way that was plainly wrong, in the sense that he made a decision that exceeded the generous ambit in which a reasonable disagreement is possible; see G v G [1985] 1 WLR 647, per Lord Fraser of Tullybelton at 652C, and Tanfern Ltd v Cameron-Macdonald [2002] EWCA Civ 152, per Brooke LJ, giving the judgment of the court, at paragraph 72. Miss Coombes-Davies submits that the judge erred in principle in refusing to allow Mrs Williams to give the evidence in her statement. She submits that the evidence is material to the underlying issues and that, if necessary, the judge should have adjourned the trial date, on appropriate terms as to costs.
18. There are a number of competing considerations to bear in mind. Both parties are entitled to a fair trial under article 6 of the European Convention on Human Rights. That involves a consideration, not only of the rights of the defendants, but also of those of the claimants. It is important to have in mind the reluctance that should be shown by an appellate court to interfere with any management decision see eg Royal & Sun Alliance Insurers plc v T & N Ltd [2002] EWCA Civ 1964, paragraphs 37 and 38. Mr Marshall stresses the fact that the District Judge was familiar with the case, having made a number of previous case management decisions.
19. I recognize that very many case management decisions involve questions of balance between the interests of the parties. It is, however, important for judges, making case management decisions, to have in mind the overriding objective of the CPR to deal with the cases justly. In Cobbold v London Borough of Greenford, August 9th, 1999, Peter Gibson LJ put the general principle thus, in a decision which has been much cited since:

"The overriding objective (of the CPR) is that the court should deal with cases justly. That includes, so far as practicable, ensuring that each case is dealt with not only expeditiously but also fairly. Ammendments in general ought to be allowed so that the real dispute between the parties can be adjudicated upon provided that any prejudice to the other party or parties caused by the ammendment can be compensated for in costs, and the public interest in the efficient administration of justice is not significantly harmed."

I note that Sedley LJ agreed with Peter Gibson LJ.

20. The submission advanced on behalf of the defendants is that the judge failed to apply the principle set out by Peter Gibson LJ. It appears to me that on the pleadings as they stand the issues are really these: 1. Did the defendants put the boulders and other materials in the area hatched green on the plan in June 2002 so as to limit or interfere with the claimants' right of way? 2. Did the defendants build a wall in the same area in September 2002 so as to limit or interfere with the claimants' right of way? As I see it, those issues in part depend upon the true construction of the relevant conveyance and the plans forming part of it, as to the extent of the right of way and in part upon what the defendants did. Curiously, each side appears to rely upon a different plan. There is some expert evidence relating to the plan and indeed a further document signed by both parties. The third issue is: Did the claimants trespass on the defendants' land? The fourth issue is: Have the claimants failed to contribute to the cost of maintenance of the right of way in breach of covenant?
21. In the pleadings as they stand, the defendants have not alleged that the claimants consented to what they did or permitted them to do what they did. Nor do the pleas contain any allegation of estoppel.
22. As already indicated, an attempt to amend the defence to plead the contents of paragraph 8 of Mrs Williams' statement failed in January 2004. When the application for permission to adduce Mrs Williams' statement in evidence came before the District Judge, no application was made to amend the defence. It is only now in this court that the defendants seek permission to amend their defence and counterclaim to include the following paragraph 3A:

"On 2nd May 2002 the defendants visited the offices of the claimants' solicitors VJC Johns and Son in Fishguard where they deposited a plan showing the works that they intended to carry out to their driveway. The defendants spoke with Mr Ifor Phillips, the claimants' solicitor, and told him of their proposals. Mr Phillips indicated he would speak to the claimants in respect of the said proposals and the proposals would be no problem. Mr Phillips did not raise any objections to the defendants' plan and the defendants were given the impression by him that they could proceed with the works."

23. As Sedley LJ pointed out in the course of the argument, there is no express allegation of estoppel in that plea, but it appears to me that that is the intention and thrust of the proposed allegation. It also appears to me that in essence, that what is being said is that, in the light of the facts there alleged, the claimants consented to the works carried out by the defendants. It is I think of some importance, notwithstanding the absence of a pleading alleging estoppel or consent, that it was not suggested before the District Judge that Mr Williams could not give evidence in accordance with his statement. On the contrary, it is implicit, if not explicit, in what Mr Potter told the District Judge, that there would be evidence before the trial judge of what Mr Williams said he was told by Mr Phillips and of what Mr Roberts said that he was told by Mr Williams. Indeed, so far as I can see, it would be difficult to prevent Mrs Williams giving evidence of the meeting of 2nd May, should she wish to do so. Whether Mrs Williams can give that evidence or not, it is clear that there is going to be evidence at the trial which focuses on whether or not Mr and Mrs Williams had permission, in one way or another, to do the work.
24. Mr Potter's objection was that there would have to be an adjournment in fairness to the claimants and their solicitors. I can see that might be so in order for the solicitors' position to be clarified. However, the only question would be whether to call Mr Phillips to give evidence at the trial. Obtaining Mr Phillips' evidence would not be a difficult or time consuming task. It appears that Mr Potter had already taken instructions from Mr Phillips. If an adjournment were required, it would be for a short time while the claimants' solicitors considered their position and decided what best to do. It is difficult to see what conflict of evidence there could be, given the fact that the evidence of Mr Phillips, as reported by Mr Potter to the District Judge, was entirely consistent with the claimants' case and the evidence of Mr Roberts.
25. However, I can see that it might take some time to resolve the position. Certainly, any further evidence relating to the issues raised by Mrs Williams' statement could not add significantly to the length of the trial. Mrs Williams would take a short time to give the evidence in paragraphs 4 and 5 of her statement. If Mr Phillips were called to give evidence, he would take a short time to deny that the alleged telephone calls had taken place.
26. The thrust of Miss Coombes-Davies' submission is that, in these circumstances, the District Judge should have admitted the statement because it was wrong in principle to exclude it. Any problem could be met, if necessary, by an adjournment and an appropriate order for costs. As to the points made by the District Judge, the defendants' response can be stated in this way. It is true that the statement should have been disclosed earlier, although there were problems with Mrs Williams' health. It is wrong to say that Mr Williams could have referred to the telephone conversation in his statement because he was not party to it. It is true that this is new evidence and in one sense a new case, but the background to it case is that put in the letter of 7th October 2003.
27. It appears to me that the whole question of the circumstances in which the work came to be done and what, if any, permission the defendants had to do the work is going to be before the trial judge in any event. It would be unsatisfactory for the trial judge to hear some of the evidence, namely the evidence of Mr Williams and Mr Roberts, without the evidence of Mrs Williams. In these circumstances, it appears to me that the District Judge should have been slow to exclude this evidence. Of course, timetables must be kept and court orders must be observed, and if there was prejudice to the claimants which could not be dealt with by an appropriate order as to costs, then it would be right and permissible to refuse the application. But in the circumstances which I have outlined, it appears to me that the District Judge erred in principle in failing to apply the principle so concisely summarised by Peter Gibson LJ in the case to which I have referred.
28. I would only add this. Even if I were to take a different view about that, it appears to me that, at the time the matter came before Judge Denyer, it was appropriate to revisit the question whether it would be right to admit Mrs Williams' statement. By that time the trial date had already been adjourned. A new trial date had not been fixed. The just course now is, subject to the precise terms of an amendment, to permit the defendants to amend their pleading to make the case which depends upon Mrs Williams' evidence and to permit them to adduce her evidence before the trial judge.
29. I would add that it does appear to me that the defendants have brought this matter upon themselves. They failed to plead their case as it should have been pleaded long ago. They did not put a pleading before the District Judge. Judge Graham Jones appreciated that it was important to review the issues and the evidence. As he made clear when he gave permission to appeal to a circuit judge, he anticipated that any such appeal would come before him in the event, it came before Judge Denyer. No application was made for permission to amend the defence before Judge Denyer and, unfortunately, there was no review of the issues as contemplated by Judge Graham Jones. By contrast we have had the considerable benefit of argument and have been able to conduct a review of the issues. In all the circumstances I have reached the conclusion that the appeal must be allowed, although in doing so I have sympathy for the respondents.
30. LORD JUSTICE SEDLEY: I agree. The defendants' lawyers were obliged by their new instructions to seek the admission of this new material, late though it came. It was not self-evidently in the claimants' interest to postpone it. They were better off letting it in than suggesting that the defendants were being inventive in putting forward their case. Had the claimants taken this somewhat more practical position, none of what has followed, expensively and time consumingly, would have been necessary. In the circumstances, the question of the production or disclosure of medical evidence, which influenced Brooke LJ in granting permission for a second appeal, if it arises at all, will arise at trial. I agree with the entirety of my Lord's reasons.
31. LORD JUSTICE RIX: I agree. I add any impetus of my own words to Clarke LJ's suggestion that the parties seek mediation of their dispute. Litigation of this kind is very damaging to the parties' health, to their peace of mind and to their pockets. For them it is no doubt a matter of high emotion and principle. If they saw, as in these courts very unfortunately we repeatedly see, how ruinous such neighbour disputes are to the parties, they would shrink from drawing any nearer to the precipice. I agree with my Lord's suggestion that a skilled mediator would assist the parties in one day to find a solution to their dispute which both parties will be able to live with. I would urge them both to think very deeply about mediation. Their refusal to undertake it might affect their right to costs hereafter.
32. LORD JUSTICE CLARKE: I add my endorsement to everything being said my Rix LJ.