ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Her Honour Judge Kirkham
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACOB
LORD JUSTICE TOMLINSON
|- and -
|Staffordshire County Council
Ian Dove QC and Nicola Preston (instructed by DLA Piper) for the Respondent
Hearing date : 12 January 2011
Crown Copyright ©
Lord Justice Tomlinson :
(1) Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice, the local planning authority may –
(a) Enter the land and take the steps; and
(b) Recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so
. . .
(3) Regulations made under this Act may provide that –
(a) section 276 of the Public Health Act 1936, (power of local authorities to sell materials removed in executing works under that Act subject to accounting for the proceeds of sale);
. . .
shall apply, subject to such adaptations and modifications as may be specified in the regulations, in relation to any steps required to be taken by an enforcement notice.
"(1) A local authority may sell any materials which have been removed by them from any premises, including any street, when executing works under, or otherwise carrying into effect the provisions of, this Act, and which are not before the expiration of three days from the date of their removal claimed by the owner and taken away by him.
(2) Where a local authority sell any materials under this section, they shall pay the proceeds to the person to whom the materials belonged after deducting the amount of any expenses recoverable by them from him.
(3) This section does not apply to refuse removed by a local authority."
"3. Paragraph 4 of the Details of Claim is denied. The Defendant is and never has been the legal owner of the Site. Since a date in or about 1949 the legal owner of the Site has been and is Francis John Challinor ("Mr Challinor Senior"), the late father of the Defendant. Mr Challinor Senior died on 4 August 1997 and his estate is currently still in probate. The Defendant is an executor of and a beneficiary under the Will of Mr Challinor Senior. In or about 1999 a tenancy of the Site was granted to Stitchacre Limited. The Defendant was not in 1999 and never has been a Director, the Company Secretary, an officer, employee or agent of, or a shareholder in Stitchacre Limited.
4. As to paragraph 5 of the Details of Claim:
4.1 From a date in or about 1949 the Defendant's parents carried on business from the Site as market gardeners;
4.2 The Defendant became involved in the family business from an early age.
4.3 Over the years the business developed and expanded and from in or about the late 1970s the Defendant and his late father carried on business including: agricultural contracting, plant hire, machinery sales, building and demolition contracting, haulage and other ancillary trades including machinery and vehicle breaking, scrap metal processing and recycling of construction demolition and organic materials and the repair and maintenance of vehicles operated by the business and the disposal of waste arising from the business activities.
4.4. From about 1967 the Defendant additionally carried on in a similar way of business as a sole trader under the name of Whitgreave Plant. Whitgreave Plant traded from the Site from time to time during the period from 1967 to 1994;
4.5 For the period from in or about 1984 to in or about 1990 a limited company, Luke Green Limited, also traded from the Site in a similar way of business; the Defendant and his wife were the directors of Luke Green Limited which went into liquidation in or about 1990;
4.6 For the period from in or about 1994 to in or about 1998 a limited company BMEC Contracts Limited traded from the Site in the recycling and trading general materials; the Defendant's wife was a director of BMEC Contracts Limited throughout this period and the Defendant became Company Secretary in or about 1994 and resigned in 1995; BMEC Contracts Limited was dissolved on 22 September 1998, having ceased trading for some time prior to that date;
4.7 From time to time during the period from in or about 1995 to in or about 1999 other companies and businesses not associated with the Defendant (including Waste not Staffs, Mc Nicholas, (LPC) Lea Porter Construction and Mikons Distribution) traded for short periods (not more than two years) from parts of the Site;
4.8 As referred to at paragraph 3 above, from a date in or about 1999 Stitchacre Limited took over the running of the Site and the Defendant's business including the machinery, equipment and stock;"
Under the rubric "Counterclaim" paragraphs 10 and 11 and the prayer to relief read:-
"10. The Defendant repeats Paragraphs 1 to 9 of the Defence.
11. If and to the extent that the activities of the Claimant under "The Direct Action" carried out by or on behalf of the Claimant at the Site on 7 April 2003 and the days following expose the Defendant to claims by third parties whose assets were removed from the Site during the Direct Action or whose businesses have been damaged curtailed or interrupted by The Direct Action or its consequences, the Defendant Counterclaims against the Claimant for an indemnity against such claims and any loss damage costs or expenses incurred by the Defendant in seeking to defend or avoid such claims.
And the defendant Counterclaims against the Defendant:
2. Interest thereon for such period and at such rate as the Court shall allow; and
"12. In or about 1999 another limited company, Stitchacre Limited, took over the Site and the business, including the machinery, equipment and stock, and was granted a tenancy of the Site. I was not in 1999 and never have been a Director, the Company Secretary, an officer, employee or agent of or a shareholder in Stitchacre Limited.
13. I have never owned the Site and have not directly controlled the business operating from the Site since about 1994.
. . .
102. I alerted the management of Stitchacre as soon as possible on 7 April about the Direct Action because although I am not associated with that company I was concerned that the Claimant in purporting to take action against me was uplifting other people's property. I pointed this out to Mr Walker, in particular, and to Mr Brian Higgins, the principal contractor retained by the Claimant for the purposes of the Direct Action but to no avail. I also pleaded with the Heavy Logistics Manager of the contractors employed by the Claimant who was rude and abrasive.
. . .
106. I understand that Stitchacre and others will be preparing a full list of their machinery, vehicles, assets, stock and materials that were removed by the Claimant from the Site during the Direct Action and making claims against the Claimant. Based on my own observations at the time I do not think that the list of items referred to by Mr Webb accurately reflects what was removed from the Site."
"8. On 7 April 2003 the Claimant commenced Direct Action and entered the Site and remained there over a period of some five and a half days. It removed from the Site those items set out in the Schedule annexed hereto.
. . .
12. Accordingly the Claimant removed materials and machinery lawfully used in accordance with the terms of the Injunction referred to above (as amended) and removed property belonging to third parties."
The Schedule to the Defence listed property removed from Woodside between 7 and 11 April 2003, including topsoil. The total value of this property was said to be £675,780.70.
"4. Paragraphs 9-14 are admitted. The Land also has the benefit of a waste management licence and has had such a licence from in or around 1985. For completeness, from about 1999 Stitchacre took over the running of the site and the First Defendant's (i.e. Mr Challinor's) business (which included the machinery, equipment and stock.)
. . .
12. It is not admitted that the Claimant was entitled to take direct action and further, in the alternative, it is not admitted that the costs incurred by the Claimant and set out in the Schedule marked "C" were reasonably incurred. Further, or in the alternative, it is averred that any claim of the Claimant against the First Defendant can only be as executor as it [is] only in that capacity that he is "owner" of the Land."
The Defence was supported by a Statement of Truth signed by Mr Challinor which stated his belief that the facts stated "in this Defence and Counterclaim are true". However there was no counterclaim. The counterclaim pleaded in the injunction action, paragraph 13 above, was not pursued. The Defence was drafted and signed by Counsel.
"It follows that any operations carried out on the CLU Area, which fell within the scope of activity permitted by the CLU were not in breach of the EN. SCC were thus not entitled to undertake direct action in respect of operations carried out on the CLU Area and which fell within the scope of the CLU."
"25. Having reached such a conclusion, it was understandable that she then turned to the scope of the CLU. On this she adopted the interpretation put forward by Mr Justice Mitting, concluding that Mr Challinor was entitled to bring onto the CLU area any materials obtained from demolition and construction sites. Of course, these conclusions did not mean that the entirety of the direct action taken by the County Council in April 2003 was necessarily ultra vires nor that Mr Challinor was not in breach in some respects of the enforcement notice, and Judge Kirkham accepted that up to the time of the direct action there had been a breach in respect of 18 instances. But because the County Council could not distinguish between the costs it had incurred in respect of its direct action found by her to be related to breaches of the enforcement notice and those costs incurred in doing work which fell outside the enforcement notice because of the CLU, the judge concluded that the County Council could not recover any of the costs of its direct action.
26. Nonetheless, she very properly went on to assess the costs which it would have been entitled to recover under section 178, had it been entitled to act as it did. After a careful and detailed analysis, she concluded that the expenses reasonably incurred would have been a total of £179,035.94.
27. Judge Kirkham also considered a number of arguments advanced by Mrs Robinson, the second defendant, about the validity of the enforcement notice, its service, the warrant of entry obtained by the County Council and issues under the European Convention on Human Rights. The judge ruled against Mrs Robinson on each of these matters.
28. So far as the County Council's claim for a permanent injunction was concerned, the judge was influenced by the fact that she had found only two breaches of the enforcement notice after the date of the direct action, largely because other alleged breaches fell within the scope of the CLU. Because, on this basis, the County Council had demonstrated "only very limited breaches" of the enforcement notice since the direct action, she concluded that there had not been "flagrant and prolonged defiance" by Mr Challinor of planning control, and she therefore refused to grant the injunction sought."
"I was for a time troubled by the contention that the judge had not properly allowed in her calculations of the County Council's expenses for the resale value of the materials removed from the site. She allowed for the resale of plant and equipment, but it is said that she failed to do so in respect of soil and other materials which were removed. Having looked with care at the judgment, I am not persuaded that the judge erred in this respect. Her analysis of the sums due to the County Council, if they were entitled to anything, is lengthy and meticulous and produces a sum about £71,000 less than had been claimed. It is right that the defendants alleged that the material removed had certain values, but it must be implicit in the judgment that the judge could find no adequate evidential basis for those values. I conclude that the eventual figure at which she arrived was the best assessment she could achieve in the light of the evidence put before her by both sides. Consequently I would accept her figure of £179,035.94 as the County Council's proper expenses under section 178."
"1. Re: paragraph 62
With respect HH Judge Kirkham did not allow for the resale of plant and equipment. Her figure of £179,035.94 was the total of each of these sections and there is a calculation error. The correct total should be £149,035.94 less the £14,000 which is in fact £135,035.94
|Para of judgment|
At paragraph 120 of her judgment Judge Kirkham had noted that SCC gave credit for £14,000 realised from the sale of machinery removed from the site. The judge had referred to this earlier in her judgment at paragraph 98 where she recorded:-
"Mr Walker decided what should be removed, making decisions on site as to what constituted "waste" as he saw it. If he designated something as waste, it was removed. Notwithstanding the number of SCC officers at site, no-one kept a record of what was removed. So far as soil and similar are concerned, SCC are now dependent upon the records of contractors; they kept no record themselves. SCC have little idea what happened to items of plant and machinery removed from site: no inventory was made of items removed. SCC instructed Northover to store plant and equipment for a short period. Thereafter it was to be sold unless proof of ownership was produced. Mr Challinor was informed that plant and equipment could be claimed back if proof of ownership was provided. None was. Northover took plant and equipment to Liverpool, and arranged from there to sell it. Mr Walker's evidence is that because of the condition of the items in question, it was difficult to sell. Only £14,000 was raised from the sale."
"Mrs Robinson and Ms Dilmitis both criticize SCC for their approach in removing and disposing of machinery from site which was, they say, useable and valuable, and not waste. . . . Mrs Robinson described SCC's approach as being to treat the exercise as a closing down sale of the Within Lane site with no concern whatever as to what would happen to what was removed. Mr Walker condemned as scrap a large number of items, and these were removed. It is understandable that that approach has given rise to concern on the part of Mrs Robinson. Those concerns appear to be justified in relation to a number of items including, for example, six Portacabins, and some buckets which had formed parts of excavators. The Portacabins looked to be in useable condition and, indeed, Mr Challinor's evidence was that one Portacabin was the subject of an agreement for sale. So far as the buckets are concerned, while these looked rusty in the photograph, one would expect that of equipment stored outside, but that is not sufficient to consider an item as scrap. It appears to me that the buckets were probably not scrap. Mrs Robinson pointed out that second-hand buckets can command high prices. It seems to me that SCC should have taken much more care over the decisions as to which items to remove from the site and in dealing with their disposal."
It is apparent that at the trial in 2006 Mrs Robinson raised concerns as there described and moreover that she cross-examined Mr Walker of SCC concerning his decision to condemn as scrap (which means in context as having no realisable value) certain items which Mrs Robinson maintained had residual value. There was however, so far as I can see, no pleaded issue to the effect that the Council had failed properly to realise the value of the materials, plant and machinery removed from site and certainly no evidence on the basis of which Judge Kirkham could have assessed what that value might have been.
"R1 (i.e. Mr Challinor the First Respondent) agrees the revised sum for the money judgment accepting that he is bound by Judge Kirkham's findings of fact at the trial and that only arithmetical errors are subject to correction at this stage."
The action brought in 2009
"1. Trespass to land and damage to the claimant's reversionary rights.
2. Trespass to the claimants goods and possessions and conversion.
4. Misuse and abuse of the defendants statutory powers amounting to misfeasance.
5. Violation of human rights article 8.
6. And that all the above were actuated by malice towards the claimant by the defendant's and their servants.
7. Used unlawful means with intent to injure the claimant and cause him financial loss."
"8. At all material times except as the contrary is stated, the Claimant has been the owner of and had a right to possession of such items as have been on the property at the time of the Direct Action."
Thereafter there follows a detailed account of the Direct Action. Essentially the claim is twofold. First, that SCC removed from the land items the removal of which was not required or authorised by the terms of the Enforcement Notice and, in any event, that SCC either failed to obtain a proper price for what they removed or, in most cases, simply failed to realise any value at all. Second, it is alleged that the manner in which the Direct Action was carried out was oppressive and motivated by malice on the part of the officers of SCC. The quantified damages in respect of the materials, plant and machinery removed from the site are set out in four schedules. Schedule 1 contains "Property removed unlawfully", Schedule 2 "Property sold at below market price", Schedule 3 "Property removed and not accounted for" and Schedule 4 "Materials removed and not accounted for". Although differently organised, these four schedules very largely reproduce the items listed in the Schedule to the Defence in the second, costs, action served by Mr Challinor in October 2004 as set out in paragraph 17 above. The total value is now put as £473,580.78, after giving credit for the £14,000 recovery for which SCC has accounted. The difference between this and the earlier value, said to be £675,780.70, is principally accounted for by a much lower value now being attributed to the topsoil allegedly removed.
The judgment of 11 December 2009
"The issues which Mr Challinor now wishes to run could and should have been dealt with in the direct action proceedings. If they are to be run now there would be a very significant rehearsal of evidence which has already been given as there would be such a substantial overlap. Mr Challinor's grievances were well aired in the direct action proceedings and indeed he had full opportunity to air those grievances. By issuing these proceedings, Mr Challinor is seeking to re-run those issues. In my judgment there is no good reason why the counterclaim, if Mr Challinor had one, was not properly brought into the direct action proceedings and pursued there."
The judge was satisfied that to require the council now to undergo the additional work necessary to deal with these proceedings would result in their suffering harassment or oppression. It would be unfair to the council to allow Mr Challinor to have another opportunity to run these claims. Turning to the seven elements or heads of claim, the judge regarded it as clear that the statement of case disclosed no reasonable grounds for bringing the claim. The claims in trespass to land and goods could not survive the Court of Appeal's finding that the Direct Action was lawful, the express power of sale of goods not claimed within three days and the confirmation by the Court of Appeal that the value of the goods removed was taken into account when the court assessed the sums due to the Council. In any event the judge was not satisfied that Mr Challinor had any standing to bring a claim in respect of the value of the goods removed. Before her it was suggested that Mr Challinor had throughout, with the exception of one item, been the owner of the materials, plant and machinery removed from the site but that he had not earlier asserted a claim in respect of them because the immediate right to possession thereof had been in Stitchacre pursuant to the lease of 18 December 1999 referred to in paragraph 3 of his Defence and Counterclaim served in August 2003 – see paragraph 13 above. The judge regarded this as inconsistent with the stance taken in the earlier action and unconvincing. At paragraph 18 of her judgment she said this:-
". . . I have already outlined the inconsistent nature of the evidence regarding title to the items in question and it seems to me that any court dealing with this matter would have little or no confidence in Mr Challinor's evidence, given the shifts in his evidence on this and the way in which his evidence has swung to suit his purpose."
The claim in negligence could not of course succeed without proof of title but the judge in any event, directing herself by reference to De Smith's Judicial Review, 6th Ed, paragraph 19-045, regarded this head of claim as unarguable. Heads 4, 6 and 7 she took together. No unlawful action had been identified and no connection established between the alleged misconduct and the office of which that misconduct was alleged to be an abuse. Finally, reliance on Article 8 of the European Convention on Human Rights had been raised at trial by Mrs Robinson but not by Mr Challinor. It had been conclusively rejected by the Court of Appeal, in the terms to which I have referred at paragraph 23 above. What the Court of Appeal said in relation to that applied as much to Mr Challinor as it did to Mrs Robinson, and it was clear that no claim by Mr Challinor under this head could succeed.
"But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised the, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances."
"The principles to be derived from the authorities, of which by far the most important is Johnson v Gore Wood & Co  1 All ER 481, can be summarised as follows:
i) Where A has brought an action against B, a later action against B or C may be struck out where the second action is an abuse of process.
ii) A later action against B is much more likely to be held to be an abuse of process than a later action against C.
iii) The burden of establishing abuse of process is on B or C or as the case may be.
iv) It is wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive.
v) The question in every case is whether, applying a broad merits based approach, A's conduct is in all the circumstances an abuse of process.
vi) The court will rarely find that the later action is an abuse of process unless the later action involves unjust harassment or oppression of B or C."
"I agree with Lloyd LJ that the decision on the question whether a second action is an abuse of process is not the exercise of a discretion. However, although the court in Aldi said that there is only one answer to the question, that statement must be read subject to the important statement of principle set out by Thomas LJ at  as follows:
"In considering the approach to be taken by this court to the decision of the judge, it was rightly accepted by Aspinwall that the decision to be made is not the exercise of a discretion; WSP were wrong in contending otherwise. It was a decision involving the assessment of a large number of factors to which there can, in such a case, only be one correct answer to whether there is or is not an abuse of process. Nonetheless an appellate court will be reluctant to interfere with the decision of the judge where the decision rests upon balancing such a number of factors; see the discussion in Assicurazioni Generali v Arab Insurance Group  EWCA Civ 1642, 1 WLR 577 and the cases cited in that decision and Mersey Care NHS Trust v Ackroyd  EWCA Civ 101 at paragraph 35. The types of case where a judge has to balance factors are very varied and the judgments of the courts as to the tests to be applied are expressed in different terms. However, it is sufficient for the purposes of this appeal to state that an appellate court will be reluctant to interfere with the decision of the judge in the judgment he reaches on abuse of process by the balance of the factors; it will generally only interfere where the judge has taken into account immaterial factors, omitted to take account of material factors, erred in principle or come to a conclusion that was impermissible or not open to him. In this case, I consider that the judge, despite the weight that must be accorded his view given his great experience in this type of litigation and the conspicuous success with which he has managed the TCC, reached a decision which was impermissible by taking into account factors which he should not have done and omitting factors which he should have taken into account."
I agree with that analysis, subject only to this. If the judge reached a conclusion that was plainly wrong, it would be the duty of the appeal court to interfere. I feel sure that in referring to the possibility that a judge might come to a conclusion that was impermissible or not open to him Thomas LJ intended to include the case where the judge is plainly wrong. In any event, I am firmly of the view that it should be included."
"This morning, however, Ms Dilmitis sought to say that since the direct action proceedings were heard the agreement between Stitchacre and Mr Challinor has somehow unravelled and that this occurred in the context of matrimonial proceedings between Mr and Mrs Challinor but there is no evidence at all to support those assertions."
The judge also remarked at paragraph 13 of her judgment that "Mr Challinor has still not provided proof that he is the owner of the items in question."
Lord Justice Jacob :
Lord Justice Rix :