England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF COUNTY COURT
HHJ MILWYN JARMAN QC
6CF06768

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/07/2011

Sir Stephen Sedley:

1. This is an application for enlargement of the time limited for appealing and, if this is granted, for permission to appeal against the making by Judge Milwyn Jarman QC on 6 January 2009 of a declaration to the effect that the respondent, Mr Jones, holds an agricultural tenancy from year to year of land owned by the applicant, Miss Ganley. By direction of Rimer LJ, if time is enlarged and permission given the appeal is to follow immediately.
2. The declaration, together with an order for possession and a further order for the trial of damages, was made following a hearing on 6 January 2009 at which Miss Ganley was permitted only to test the case against her, having been debarred from defending by reason of breach of an 'unless' order for service of a procedural checklist.
3. There are two initial issues. One, raised by the court, is whether s.2 (4) of the Agricultural Holdings Act 1986 took away the jurisdiction of the Cardiff County Court in favour of arbitration. The other is whether by reason of mental incapacity said to have been brought about by severe depression it was necessary for the applicant to be represented by a litigation friend. Although, for reasons I will come to, I consider that neither was the case, and although I would decline to enlarge the time for appealing, I want to deal first with the submission of Josephine Hayes for Miss Ganley that, had the judge adjourned the hearing to enable Miss Ganley to present her defence in full, she might well have succeeded in resisting the declaration and the heavy costs order that went with it.

The letting

4. The late Dennis Smith was Miss Ganley's partner. He negotiated with Mr Jones and his father in 1989 their use of four hectares of what was then his and Miss Ganley's land. He also kept a narrative diary which proved a valuable source of evidence. The judge said this about it:

"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 9^th 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."

5. Ms Hayes has submitted that there was a good deal in the diaries that went the other way, but which the defendant, Miss Ganley, had been denied the opportunity to present and rely on. By way of example, Ms Hayes has shown us Mr Smith's entry for 23 September 1991:

"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.

6. I regret to say that such material comes nowhere near to qualifying, much less rebutting, the compelling evidence from the diary itself that at the inception of the arrangement, which is all that matters in law, Mr Smith had agreed with Mr Jones senior that in return for a payment of £300 the latter was to have the right from year to year, to the exclusion of others, to graze his sheep on a defined area of Miss Ganley's and Mr Smith's land. The suggestion that all that was being given was a revocable non-exclusive licence is not sustainable. Mr Smith's periodic entry on to the land to maintain or clear it was perfectly consistent with this. So, in my view, was the periodic removal of the sheep from the land for a few days at a time. These things no more diminished the legal character of the holding than does the entry of the lessor of a dwelling-house to do repairs or the tenant's going on holiday.

Jurisdiction

7. It followed that there was an agricultural tenancy within the meaning of s.1 of the 1986 Act. If, as I think, it was a tenancy from year to year, it needed no help from s.2:

"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."

8. If, contrary to my view, the breaks in occupancy made the agreement something less than a tenancy from year to year, s.2(2) will have deemed it to be a tenancy from year to year unless – see s.2(3) – it was only for some specified period of the year. I fear that Mr Griffiths' advice to evict the sheep for a couple of days a year was not going to bring the letting within s.2 (3). But if it was capable of doing so, then Serena Gowling for the claimant has satisfied me that the dispute as to whether it did so would not be a "dispute as to the operation" of s.2 requiring arbitration under subsection (4); it would be a dispute about the application of the section by virtue of subsection (3) and as such justiciable in the courts: see Goldsack v Shore [1950] 1 KB 708 per Lord Evershed MR at 712.

Mental capacity

9. The second issue affecting the competence of the county court proceedings is whether Miss Ganley was or had at a material time been mentally incapacitated by depression and so was in need of a litigation friend. I accept for the purposes of this application that if it was so, and even if the outcome of the case was all but inevitable, the requirements of a fair trial would not have been met.
10. The Mental Capacity Act 2005 provides:

"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."

11. The principal evidence before the judge consisted of a letter dated 24 December 2008 from Miss Ganley's GP, Dr Rowlands, which it is necessary to set out in full:

"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."

12. If the issue turned on the question whether paralysis of the will brought about by depression is capable of coming within the statutory definition of mental incapacity, I would regard it as arguable and grant permission to appeal. But I propose to assume that it comes, as Ms Hayes submits it does, within s.3(1)(c) – an inability to use or weigh information – and will consider whether the evidence was sufficient to bring Miss Ganley within the protection of the statute.
13. The claim had been served in December 2006 at a time when Mr Smith was terminally ill and Miss Ganley deeply distressed. Mr Smith died in April 2007. By then judgment had been entered in default of defence, and in June on an unopposed hearing Mr Jones obtained an order for possession of the land, an injunction against further interference, substantial damages for trespass and costs. Mr Jones asserts that the order was personally served on her in mid-June. Miss Ganley says that she knew nothing of the proceedings until late that month.
14. On 2 July 2007 solicitors, Williams and Bourne, who had been instructed on Miss Ganley's behalf by a friend, wrote to Mr Jones asking for a copy of any court order that he "allegedly" had. His solicitor, Hugh James, sent a strongly-worded reply but failed to enclose a copy of the court's order. In August, however, he obtained a charging order on Miss Ganley's property. In mid-October Williams and Bourne applied on Miss Ganley's behalf to have the judgment set aside "because the Defendant was unaware of the proceedings against her and the Estate …". A letter from Dr Rowlands dated 7 November 2007 said:

"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."

15. On 11 December 2007 District Judge North adjourned both Miss Ganley's application to set aside the judgment and Mr Jones' application to enforce it, directing that the parties should jointly instruct Dr Rowlands to report on Miss Ganley's mental capacity since November 2004. The embarrassingly mistyped order goes on to direct that "The fellow of Intention shall be agreed and disputed by 10 December …" – meaning presumably that the letter of instruction was to be agreed and dispatched by that date. Reflecting the typographical muddle, neither side has been able to produce the letter of instruction to this court. But a draft defence was filed, and Dr Rowlands wrote to both solicitors on 2 January 2008 to say that he had seen Miss Ganley in June 2007 and then in October with "more evident depressive bereavement reaction". On those occasions he had not focused on her mental capacity, but his impression in retrospect was that "she had awareness of issues, though she was not responding to them in an appropriately proactive way. To that extent her mental capacity was disordered."
16. This was followed by a more formal report dated 23 January 2008, written after a consultation on 9 January:

"I am responding to letters from both of you dated 18 January 2008.

Miss Ganley came to see me on the 9^th 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."

17. The upshot of Dr Rowlands' diagnosis seems to me to have been that Miss Ganley had been incapable managing her life and affairs for a period after her partner's death, but that by the beginning of 2008, with help and support, she had largely though not entirely recovered. On this showing there was no call at all for the court to require or anticipate the appointment of a litigation friend. But on the strength of it the default judgment was very fairly set aside by Judge Bidder QC in February 2008, and a case management conference directed. The action proceeded until, in August, Williams and Bourne, who were no longer in funds, came off the record shortly before District Judge John set directions for trial. These included an order that "The Defendant's evidence must include diary entries by Mr Dennis Smith 1987-2007". Trial was set for 6-7 January 2009.
18. From this point the conduct of the defence again became mired in delay. Miss Ganley understood disclosure of all Mr Smith's diaries to be required, and Mr Jones' solicitors seem to have done nothing to reduce what was clearly a physically and emotionally heavy burden for her by offering to modify the unnecessary order they had obtained. The problems culminated in an order, in November 2008, that unless the pre-trial checklist was filed by the 17^th the defence was to be struck out. No checklist, it seems, was filed. Instead two lever arch files of copied extracts from the diaries were served. The result was that by the time the trial date arrived Miss Ganley was debarred from defending, and at trial the judge, without opposition, permitted her only to test the claimant's case.
19. Miss Ganley had, however, obtained and submitted the further report from Dr Rowlands which is set out in §11 above.
20. Ms Gowling has advanced a very different picture, basing herself on a letter sent by Miss Ganley in June 2007 to the local planning authority to support a neighbour's application which relied on his and his wife's incapacity. "As you can imagine," Miss Ganley wrote, "on some days they are both practically incapable of movement and are unable to look after themselves, let alone each other. On such days, and unfortunately with increasing regularity, I spend several hours a day at [their home], cooking for them and helping with essential tasks." While this certainly does not help the applicant's case, I do not consider that it destroys it. Assuming it to be her own unvarnished account, we do not know, and would need expert evidence to tell us, whether a person may be disabled by depression from managing her own life but able nonetheless to relate efficiently and positively to others. For my part I am unwilling to set much store by this letter.
21. But I am also unable to find that the history culminating in the report of 24 December 2008 should have alerted the court on 6 January to the need for Miss Ganley's case to be conducted through a litigation friend, whether at the point of trial or in the preceding months during which she had failed to comply with the directions for trial. Without doubt the litigation had got on top of her, as it does a good many litigants in person. That is greatly to be regretted; but the test to be met is that contained in ss 2 and 3 of the 2005 Act. The medical evidence, while supportive of the case for a measure of procedural indulgence, did not in my judgment show that Miss Ganley was in the period from mid-2008 to January 2009 unable to make decisions for herself about the litigation because of an impairment or disturbance in the functioning of her mind.
22. Taking the material s.3 tests in turn, she was not unable to understand and retain the information that was coming to her about the case and her part in it, and to use or weigh this in deciding what to do. That she did not always use or weigh it well – for example in allowing the copying of the diaries to eclipse the simple process of completing the pre-trial checklist – is a misfortune (and one, as I have said, for which the claimant's lawyers bear some responsibility) but it is not proof of a lack of capacity such as the 2005 Act addresses. Nor does the subsequent appointment of a litigation friend in both the remaining county court proceedings and in this court establish a want of statutory capacity at the material times.

Adjournment

23. I turn next to the question whether Judge Milwyn Jarman ought nevertheless, on the evidence before him, to have adjourned the trial, not necessarily for very long, and to have restored Miss Ganley's permission to defend the claim.
24. The judge took Miss Ganley's application for an adjournment seriously and gave a separate judgment on it. In it he quoted a letter from Miss Ganley enclosing a further doctor's letter which we have not seen. Her letter read:

"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."

25. The judge accepted that there appeared to be reasonable grounds for defending the action but also that since none of Miss Ganley's witnesses were present an adjournment would be required for that purpose. He went on:

"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 24^th 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."

26. Ms Hayes submits that this decision falls short of the requirements of CPR 3.9. I will not set these out in full, but they include the effect of an adjournment on the trial date and on the respective parties, and the effect of the material non-compliance.
27. Taking the last of these (the effect on each party of Miss Ganley's failure to complete the checklist) the judge seems to have overlooked the need to evaluate it. Had he done so, I doubt whether he could have given it much weight. The pre-trial checklist is designed to concentrate minds on procedure: by itself it has no substantive effect. Had he looked into the reasons why Miss Ganley had been in no position to tick all the boxes, he might have been troubled by the unnecessarily onerous disclosure order and the clogging effect it seemed to have had on the conduct of the defence. (It emerged later that Miss Ganley believed that it was for failure to disclose all the diaries that her defence had been struck out.) The judge might also then have inquired into the possibility of an adjournment – say of 4 weeks – to enable a defence to be mounted; but he concluded instead that no further latitude was called for.
28. If the refusal of an adjournment had stood alone, therefore, I would have been minded to grant permission to appeal in relation to it. But in this regard, in contrast to the issues of jurisdiction and capacity which might well have had to be addressed regardless, it is necessary to give serious consideration to the question of delay.

Delay

29. When he adjourned the present application into open court, Rimer LJ wrote:

"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."

30. The solicitors, Lowless and Lowless, took on the conduct of her case on the instructions of a friend of hers in May 2009. This was already 5 months after judgment had been given, and one would have expected the firm to put in an immediate appellant's notice using what materials they had to formulate grounds and with an explanation of why time had been allowed to elapse. The solicitors did not obtain public funding for an appeal until October 2009, but there is nothing to suggest that Miss Ganley, with or without help from her friends, could not have put up the modest sum needed for a holding notice meanwhile. Moreover, no notice was served when public funding was secured. Instead Ms Pagett, the member of the firm who had conduct of the case, set about taking instructions from a visibly distressed client. This process was in turn sidetracked by the damages hearing, which was itself held up by an ultimately successful application for the appointment of a litigation friend. It was not until 6 July 2010 that a copy of the trial bundle was obtained from the other side, and not until September 2010 that Ms Pagett finished reading the diaries. The appellant's notice was lodged the following month, about a year and nine months after judgment and over three months after receipt of the trial bundle. Since April 2011 or thereabouts Miss Ganley has been represented by another firm of solicitors, Robertsons.
31. While there can be no doubt about Ms Pagett's concern for her client and her assiduity in preparing her case, there is equally little doubt, in my judgment, that the very great delay in filing an appellant's notice, for which the ordinary time is 21 days, is neither excused nor even really explained by the evidence before us. Given in addition the high degree of unlikelihood that a trial could produce a different result, I do not consider that this court would be justified in enlarging the time set by law for appealing, not by days or by weeks but by some 20 months.
32. Since receiving its judgment the court has received further materials and submissions from the parties. They are not capable of affecting the foregoing reasoning and so are not referred to above.

Conclusions

33. I would accordingly conclude that:

(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.

34. I would therefore refuse this application.

Lord Justice Rimer:

35. I agree

Lord Justice Ward:

36. I also agree