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 SWANSEA COUNTY COURT
(HIS HONOUR JUDGE R L DENYER)

		Royal Courts of Justice Strand London, WC2
		25 January 2005

1. LORD JUSTICE BROOKE: This is an application for permission to appeal against an order of Judge Denyer QC, in a case pending in the Haverfordwest County Court, when he dismissed the appellant's appeal against an order of District Judge Godwin dated 22 April 2004. District Judge Godwin refused the appellants permission to adduce the statement of Mrs Williams, one of the defendants, dated 27 March 2004, particularly in view of the fact that the trial was listed for the 17 and 18 May 2004.
2. Between 1997 and 1999 Mr and Mrs Roberts, the claimants, built a new home called Ty Gwyn, Craig Las, Letterston, Haverfordwest in the grounds of their existing home, Beechways. On 15 November 1999, Mr and Mrs Williams, 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.
3. 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 25 February 2003 a defence was filed denying that there had been any encroachment and counterclaiming an injunction for trespass. On 8 April 2003 District Judge Godwin made an order for the exchange of witness statements. Ultimately, in July 2003, Mr Williams made a witness statement which was filed on behalf of both himself and his wife. I have not been shown a copy of that witness statement but the judge refers to it in his judgment. He said that:

"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 smoothe 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."

4. On 10 October 2003 the defendants' solicitors wrote a letter to Mr Phillips. It has not been put before me, but the judge records that they referred to what Mr Williams had said in his witness statement and went no further than that. On 12 December 2003 there was an application to amend the defence which set out the account which Mr Williams had given in this witness statement. On 22 January 2004 District Judge Godwin refused leave to amend. I have not seen a copy of his comments, but no doubt he took the view that it did not take matters much further. Silence does not import consent.
5. With the trial date approaching, on 27 March 2004 an application was made to adduce a statement by Mrs Williams. She described the telephone call to Mr Phillips and their meeting with him. She said that later and this is significant, she phoned Mr Phillips and asked him if it was all right to do the work, to which he said "Yes". There was then a conversation between her husband and Mr Roberts about the work. She phoned Mr Phillips again and he confirmed that they could do the work so long as it was on their property. She said that they honestly believed that they could carry out their proposed plans having had the claimants' solicitor's approval on two different occasions.
6. On 22 April 2004 the matter came before District Judge Godwin on an application simply to adduce this evidence, not to re-amend the defence. There was no evidence in Mrs Williams' witness statement to the effect that she had been ill or why the statement had not been put in before. The district judge was told, however, by Mrs Williams' solicitor that she had been particularly ill, had had operations, had been in hospital on a number of occasions, and had been unable, because of health reasons, to make a statement. However, she had now recovered. There was no evidence to this effect before the district judge. In giving judgment the district judge said that a new issue had been raised in the case that did not accord with the pleaded case. There was no evidence of Mrs Williams' illness and it was just a matter of weeks before the trial. If the evidence was allowed it would jeopardise the trial proceeding which would have costs implications. She was a party and on the material before him he saw no reason why the evidence could not have been adduced at the proper time.
7. On 14 May 2004 Judge Graham Jones made an order granting permission to appeal but directed that the defendants filed evidence from Mrs Williams' medical practitioner. That was not done.
8. At the hearing before Judge Denyer, which took place in September, Mrs Williams' counsel appeared with a medical report which she was instructed she might show only to the judge and to the claimants' lawyers. Mrs Williams was extremely sensitive about what was set out in the report and she did not wish (and she gave instructions to this effect) that it should not be shown to the claimants. The judge took the view that it would be quite wrong to embark on any examination of the contents of the report. He said:

"... [The claimants] would have left this court saying, 'That was a travesty. A judge has decided the issue against us on the basis of information we are not entitled to see.' That may or may not be legitimate reasoning in connection with terrorist legislation and the threat from Al Quaida. It is not, in my judgment, relevant in the context of a civil dispute involving a right of way. So the fact remains that the clear and obvious terms of the order of His Honour Judge Graham Jones have not been complied with. In other words, there is absolutely no medical evidence to support the allegation that Mrs Williams was unfit to provide a statement at the material time in 2003."

9. He went on to form the view that the district judge was entitled to make the order that he made and he could only interfere if the district judge was wrong and had acted outside the ambit of discretion reasonably available to him.
10. When the matter came before Scott Baker LJ on paper he said that no important point of principle was raised, nor was there any compelling reason for a further appeal to be heard. At one stage I thought it might be sensible for me to direct that this hearing be on notice with the appeal to follow if permission to appeal was granted. In my judgment there are matters here which should not be determined by a single member of the court. 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? In my judgment justice would be done if I grant permission to appeal on condition.
11. This being a second appeal I grant permission on condition that the defendants pay the claimants, within 14 days, the costs which are set out in the orders of District Judge Godwin of 22 January 2004 (£297.86) and 28 April 2004 (£1,137.77), a total of just over £1,400. If that sum is not paid within 14 days to the claimants' solicitors, this permission will lapse. It may be that the sums have been paid already; Miss Coombes-Davies was unable to tell me. So long as these sums are paid, the appeal may proceed.

Order: Permission to appeal granted. Appropriate for a three-judge court, one of whom should have expertise in the CPR. The court may include a High Court judge. Estimated length half a day.