ON APPEAL FROM Preston County Court
District Judge Anson
Claim No: 7ZP01482
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE HOOPER
LADY JUSTICE RAFFERTY
| RICHARD ALAN HARDY
|Claimants / Respondents
|- and -
|JOHN EDMUND HASELDEN
(by his personal representatives, IRIS HASELDEN and JILL HASELDEN)
JILL ELIZABETH HASELDEN (OTHERWISE OLLERTON)
|Defendants / Appellants
Elisabeth Tythcott (instructed by Lomax Geddes & Co) for the Respondents
Hearing date : 10 November 2011
Crown Copyright ©
The Chancellor :
"(i) that the Claimants move to the [Farm] and occupy a mobile home situate at the property for the purpose of securing it from trespassers;
(ii) that the Claimants could live at the [Farm] for so long as they wished to in the expectation that the Claimants would move into the farm within a very short time;
(iii) that the Claimants could keep livestock, including horses, sheep and pigs at the Farm;
(iv) that the claimants pay rent to the Defendants in the sum of £200 per month and discharge all bills;
(v) that the Claimants renovate and refurbish the farmhouse located at the [Farm];
(vi) that the Defendants would reimburse the Claimants for the cost of the aforesaid renovation and refurbishment."
"By reason of the matters aforesaid it is alleged and averred that the Claimants have a tenancy of the property for their lives at a rent of £200.00 per month. By reason of s.149(6) Law of Property Act 1925 it is averred that the said tenancy takes effect as for a term of 90 years."
"As I hope is clear, I was so unwell that I could not have coped. Given my father's nature, his habits of intercepting and secreting post away in his room, and then leaving it unopened, I genuinely doubt how much even father knew about the proceedings at the time."
She then made observations on what she considered were the prospects of success in their defences if she and her mother were able to defend the action and exhibited a draft defence.
"…in respect of that first head, I do not find that the third defendant has acted promptly. I also bear in mind that the second defendant again could have made this application, could have picked up the phone and telephoned solicitors, as it is accepted that she was receiving correspondence and documents separately from the other defendant."
"..it is accepted by implication in the pleadings that the claimants had some form of interest in the property, the issue is the extent in terms in terms of area and in terms of length of tenancy. There was and remains a great dispute over the interpretation of the limited documentation that is available, some of which has only just come to light, but also in the oral evidence that would have had to have been given to the court."
"42. Where a defendant seeks to appeal against the trial judge's order after making a failed CPR 39.3 application, I do not consider that, in the light of the discrete and interlocutory nature of a CPR 39.3 application, strict issue estoppel would apply on any question of fact so far as the appellate court is concerned. However, the appellate court considering an appeal or an application to appeal should take a great deal of persuading before departing from a conclusion expressed by the judge who heard the application to set aside; to do so, in the absence of good reason would be invidious, as Gross LJ said in argument.
44. Fifthly, where the defendant's CPR 39.3 application fails, she will normally be in severe difficulties in seeking to contend, by way of appeal against the trial judge's order, that she should be entitled to rely on evidence which was not before the trial Judge, or that she should have a retrial. In such cases, the appellate court's approach must depend to some extent on the facts. In general, the appellate court will bear in mind not only the requirements of CPR 39.3, but also the post-CPR application of the Ladd v Marshall principles (as discussed in Hertfordshire Investments Ltd v Bubb  1 WLR 2318, 2325, and Sharab v Al-Saud  EWCA Civ 353, para 52).
45. Where the new evidence could not reasonably have been available to the defendant even if she had properly prepared for and attended the trial, it seems to me that the defendant's position should normally be no different from a defendant who had attended at trial. So too where her application for a retrial is not dependent upon the fact that she did not attend the trial. In such circumstances, her application to adduce and rely on new evidence or for a retrial would not be related to her position as a defendant who did not attend the trial.
46. However, it would be very different where the defendant's application to adduce new evidence, or to have a retrial, is essentially based on the fact that she did not attend the trial. If she has already failed in her CPR 39.3 application, it seems to me that to allow her to appeal against the trial judge's order on such a ground would involve letting her in through the back door after having firmly locked the front door. The policy behind CPR 39.3, as interpreted in Regency Rolls  EWCA Civ 379, is to prevent a defendant from seeking a retrial if she did not attend the trial, unless the three requirements in CPR 39.3.5 are satisfied. Where her CPR 39.3 application has been refused because she has failed to satisfy one or more of those requirements, it seems to me that it would be wrong in principle for an appellate court to grant her a retrial on grounds which, in reality, amount to no more than her having been absent from, and therefore not having given evidence at, the trial."
(1) the dismissal of an application under CPR Rule 39.3 does not, of itself, give rise to an issue estoppel so as to preclude an appeal from the judgment which has not been set aside;
(2) the fact that an application under CPR rule 39.3 has failed is a weighty, though not conclusive, consideration in determining an application for permission to adduce fresh evidence on appeal or for a retrial.
(1) extend the time of the defendants for filing the appellants' notice,
(2) give them permission to appeal,
(3) allow the appeal, set aside the order of District Judge Anson and order a retrial of the claim,
(4) remit the claim to the County Court in Manchester and direct that it be tried by one of the specialist Chancery Circuit Judges,
(5) require the Hardys to issue an application returnable before one of those judges seeking directions as to the future conduct of the claim.
Lord Justice Hooper
Lady Justice Rafferty