COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF COUNTY COURT
HHJ MILWYN JARMAN QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIMER
SIR STEPHEN SEDLEY
| JANE GANLEY
|- and -
Ms Serena GOWLING (instructed by Hugh James) for the Respondent
Hearing date: 17 May 2011
Crown Copyright ©
Sir Stephen Sedley:
"5. What Mr Smith's diary says for that day in relation to the letting of the land or the occupation of the land is this. There is reference to other neighbours and then the entry follows thus:
'As soon as they departed I rang up Mr Jones,' that is the present Mr Jones's father, 'and told him he could bring his sheep any time. This evening he turned up with his son's family. They came in, had tea and cake and chat and insisted on paying for a full year although I offered the grazing free until Christmas. Not only that, he wrote a cheque for £300, £100 more than was necessary. However they were happy with it and we can certainly do with it'.
There are other significant entries. In November of the following year there is a reference to the grass money being paid. Mr Smith refers to the writing out of a cheque for £300 for grass keep until next November. There are other references over the years. In 1990 there was reference to Mr Jones paying his rent. In 1992 there was reference to Mr Jones using creosote to coat the trunks of trees from which Mr Jones's sheep were nibbling the bark. There was conversation recorded with Mr Will Jones. Mr Dennis Smith records in his diary that he went across and had a chat about the damage to the trees. Mr Smith says that he told Mr Will Jones that if things got worse they may have to revert to the summer grazing and knock £100 off the rent. The entry continues, 'Will looked a bit worried and said he would get Stanley to phone the vet for advice.' Then there is a reference on the same day to Mr Smith going moling with smoke bombs.
6. Later on that year in November 1992 there is further reference to Stanley coming to pay the rent and likewise in the year 1995. I accept Miss Ganley's submission in that these diaries were made for personal and not public consumption. There are different references to the monies paid. It seems clear to me that Mr Smith did not pay too much attention to the precise wording in as to how these monies were referred to and it seems to me neither should I on the basis of those diaries. The crux of the mater is what was agreed on November 9th 1989 and what Mr Stanley Jones has told me in evidence is not too far removed from what Mr Smith has recorded.
9. From the evidence, the subsequent events did not take the matter very much further and each side drew some comfort from what each of them did. ...
10. I come back to what was agreed in November 1989. It does appear to me from the diary entry that initially at least Mr Smith may have had an indication or contemplation of letting the land on summer grazing only, or at least grazing for a part of the year, as he had done before. Indeed he records in his diary that he offered the grazing free until Christmas. He also records that they insisted that they would pay for a full year and that they paid more for that and they were happy with it. Now I take Miss Ganley's point that I must be slow about placing too much reliance upon diary entries but it does seem to me that that is a very important entry. Whatever Mr Smith may have had in contemplation initially in phoning the Joneses and asking them to come up and discuss matters, they insisted on paying for a full year and that is what they wanted and because that meant £100 more than was expected Mr Smith and Miss Ganley were happy with that money.
11. Accordingly, I find that the contemplation of the parties at the time was that the letting would be upon the terms mentioned by Mr Jones; that there would be a letting from year to year, that the contemplation was that the money would be paid for a full year and that further monies would be paid in November of each year."
"Sheep cleared for 2 days till Thursday Will and Stanley [Jones] fetched away the 15 remaining sheep this morning and will leave the land completely clear of sheep for 2 days till Thursday. I was advised to insist on this break by Mr Griffiths to ensure that a tenancy is not created."
An earlier entry, for 14 July 1990, records Mr Smith embarking on clearing the field of thistles, and Mr Jones senior coming over to say that his son Stanley would do it, as in due course he did. Miss Ganley for her part had a number of witnesses who could testify that the sheep had been moved from the land for short periods.
"Restriction on letting agricultural land for less than from year to year.
(1) An agreement to which this section applies shall take effect, with the necessary modifications, as if it were an agreement for the letting of land for a tenancy from year to year unless the agreement was approved by the Minister before it was entered into.
(2) Subject to subsection (3) below, this section applies to an agreement under which
(a) any land is let to a person for use as agricultural land for an interest less than a tenancy from year to year, or
(b) a person is granted a licence to occupy land for use as agricultural land,
if the circumstances are such that if his interest were a tenancy from year to year he would in respect of that land be the tenant of an agricultural holding.
(3) This section does not apply to an agreement for the letting of land, or the granting of a licence to occupy land
(a) made (whether or not it expressly so provides) in contemplation of the use of the land only for grazing or mowing (or both) during some specified period of the year, or
(b) by a person whose interest in the land is less than a tenancy from year to year and has not taken effect as such a tenancy by virtue of this section.
(4) Any dispute arising as to the operation of this section in relation to any agreement shall be determined by arbitration under this Act."
"2(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
2(2) It does not matter whether the impairment or disturbance is permanent or temporary.
3(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate this decision (whether by talking, using sign language or any other means).
(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of
(a) deciding one way or another, or
(b) failing to make the decision."
"I am writing about the above who I understand is involved in litigation, and has failed to meet court deadlines. I understand that she has planned to undertake her own defence because she does not have money to pay for professional help.
She is suffering from depressive illness. Her partner Dennis died in April 2007. She has remained distraught since this time and very dysfunctional in her daily life. Her personality has led her to avoid contacts with doctors to an extreme degree, so that medical problems often present to us late.
Her current problems of depressive bereavement reaction came to my notice about a year ago and she made some temporary improvement in her condition after that time.
I last saw her on 9 January 2008. She has returned to me again today and it is apparent that she is much less well than before. Her bereavement reaction and mental state have left her unable to undertake many simple and everyday actions. Care of her home environment has been neglected to an absolute degree. She has found it very difficult to concentrate on the minutiae of preparation of her case. Her attention to the fine detail of her life with Dennis has brought flashbacks of his life that have made it more difficult for her to move forward. This mental state has put her somewhat in a psychological state of 'denial' which has made it difficult for her even to open correspondence.
Today we are starting to address her problems again and I am today making a referral to the Ceredigion Primary Care Mental Health Team for their assistance.
In view of her difficulties above I would ask the court to reconsider its recent decision, allowing time for her recovery, so that she can properly present details of her case which would allow the court to come to a balanced and informed decision."
"I can confirm your information that Ms Ganley has been suffering from significant depressive illness through much of this year. Her partner Dennis Valentine Smith had chronic illness from which he died at the end of April 2007. During the time leading up to that Jane was in a distressed and dysfunctional state, and this has continued in the months following that time. Patients suffering depressive illness quite commonly find great difficulty ordering the little things in life, as evidenced by the neglect of her home environment. and I believe this to have been the case for her. That she ignored correspondence is entirely consistent with that.
She only sought medical advice last month, believing that there was nothing that could be done to help her. I am glad that she does seem to be making significant steps of improvement now that she has started some therapy."
"I am responding to letters from both of you dated 18 January 2008.
Miss Ganley came to see me on the 9th of January for further consultation. She is now clearly better in herself from a mental health point of view and able to talk about past events in a more constructive and structured way. She is still clearly dysfunctional in managing correspondence, but now has built social networks of people who support her to comprehend issues and take appropriate actions. I believe this fulfils the standards of the Mental Capacity Act and at this time therefore she has Capacity to take actions in relation to her affairs. It is nonetheless clear that without the active support of her friends her thinking is muddled and she is not able to come to consistent decisions.
My understanding of the Mental Capacity Act is that Capacity is shown if people are able to make their own decisions with whatever support, and taking whatever time, is needed both to comprehend the issues and to reach whatever decisions are necessary. The corollary of this is that if the support or time is not provided to someone who needs them, Capacity is not at that time present
Based upon the above, it is my view that, on the balance of probabilities, her disturbed mental state in the period prior to and following on from the death of Dennis in April 2007 was such that she did not at the time have Capacity for such activities as the opening of post and comprehension of the contents specifically including technical legal language, and implication of deadlines stated within the body of such text."
"Please find enclosed a copy of a letter from Dr Rose supporting my respectful request to the Court for the postponement of this claim. As I am on a very small income I am unable to afford to employ either a solicitor or barrister and therefore must reluctantly represent myself as I have been told that I didn't qualify for legal aid. In my present mental state this task is quite simply beyond me at this time. I realise that I need help for my mental condition and my doctor has kindly promised to see that this is available."
"8. Ms Gowling on behalf of the claimant objects to that application. She refers me to order rule 3.9 of the Civil Procedure Rules and in particular draws my attention to the following matters which I have to take into account: firstly, whether there is a good explanation; secondly, whether the failure is intentional; thirdly, the extent of previous failure to comply; and fourthly, whether the trial date can be met.
9. As regards the first I do accept Miss Ganley and the evidence that she produces in relation to her depressive illness and the debilities that leads to. I do find on the information before me that that is not wholly explicable of the situation which we now find ourselves in. It is clear that Miss Ganley did very late in the day attend her general practitioner, obtained a letter and wrote to the court in lucid and reasoned terms and, if I may say so, she has done the same by addressing the court today. Although there is some explanation I do not accept that that wholly explains the fact that Miss Ganley left it until the 24th December when she knew in February 2008 of the difficulties which her inability to deal with matters had caused. I do not take the view that there is sufficient evidence before me to say that any of this was intentional on her part I accept that a large measure was due to her illness.
10. The next matter I have to take into account is the extent of past failures to comply. In my judgment that is an important matter. I have to have regard of course not only to the fairness to her but also to the claimant. He has been kept out of what he says is his entitlement to occupy and possess this land now for some years and despite obtaining a judgment in June 2007, which is now over 18 months ago, he is still out of possession of that land. Next it is pointed out, as already indicated, that if this application is granted it would mean that this trial, which is due to start today, and listed for tomorrow, would not take place. It does seem that the court should be very loath indeed to shut out a defendant who does have an illness which has led to some disability in dealing with the proceedings and I must take into account of course all of the disabilities, as I do, because I have indicated I do have to weigh that up with the fairness to the claimant. In view of the fact that Miss Ganley has left it very late in the day to make this application despite the fact that she has already had one judgment set aside and solicitors acting for her she, by her own admission, was aware of this trial date and left it, in my judgment, to late and accordingly I refuse the application to be allowed to defend this matter."
"Extension of time. I am not satisfied that a sufficient case is made out for an extension of time. The most favourable view of the timetable is that time for appealing should, for practical purposes, be regarded as having started to run against the applicant on 6 July 2010, when her solicitors had all they needed in order to prepare the appellant's notice. Yet it still took until 22 October 2010 for the notice to be filed. That is 107 days when the time for appealing is 21. There is no explanation of why it took so long or why, given that the notice was already so long overdue (by some 17 months), its preparation and filing after 6 July 2010 was not expedited. Given the opposition by the respondent's solicitors by their letter of 10 November 2010 to an extension, I am not prepared at this stage to grant one. That is a matter for the full court to consider."
(a) the county court had jurisdiction to hear the claim;
(b) Miss Ganley did not lack the mental capacity to conduct her own defence;
(c) her application for an adjournment and permission to defend was not adequately adjudicated on;
(d) however, her defence would have failed;
(e) there is in all the circumstances no sufficient reason to extend the time for appealing to this court.
Lord Justice Rimer:
Lord Justice Ward: