England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Her Honour Judge Kirkham
9BM90108

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/02/2011

Lord Justice Tomlinson :

Introduction

1. This is an appeal by Mr Challinor against the decision made on 11 December 2009 by Her Honour Judge Kirkham, sitting as a Judge of the High Court, to strike out his claim against the respondent County Council, to which I will refer hereafter as "SCC". The judge struck out the claim made by Mr Challinor in this action begun in April 2009 under the first two limbs of CPR 3.4(2). She was satisfied both that Mr Challinor's Statement of Case is an abuse of the court's process and that it discloses no reasonable grounds for bringing or defending the claim. Either is of course a sufficient ground.
2. The judge was well-placed to reach this conclusion since in 2006 she conducted a six day trial in which SCC was Claimant and Mr Challinor and his sister were Defendants. The trial involved a lengthy examination of the facts and matters which Mr Challinor now asserts afford him six or seven distinct causes of action in respect of which he seeks in this new action damages, conventional, aggravated, punitive and exemplary. At one stage of the proceedings which came before the judge in 2006 Mr Challinor had made a counterclaim against SCC and at another stage he had indicated that claims broadly corresponding to those which he now asserts would be pursued by others. In the event his counterclaim was abandoned and claims were not made by others. The judge delivered a long and careful reserved judgment in February 2007 in which she reached many conclusions favourable to Mr Challinor and fiercely critical of SCC. In the circumstances her decision in December 2009 to the effect that pursuit by Mr Challinor of his claims by means of this action begun in April 2009 constitutes unjust harassment of SCC is entitled to considerable respect.

Background

3. The dispute between Mr Challinor and SCC has a very long and fractious history and has already resulted in one substantial reasoned judgment of this court (Rix, Keene and Hughes LJJ) delivered on 17 August 2007, on appeal from the judgment delivered by Judge Kirkham in February 2007 to which I have already referred – see [2007] EWCA 864. I propose therefore to set out the background as economically as possibly.
4. The dispute between Mr Challinor and SCC is about planning control. On 16 June 1997 SCC issued an Enforcement Notice concerning an area of land known as Woodside in Staffordshire. The land was then owned by Mr Challinor's father. He died in August 1997. Mr Challinor and his sister, Mrs Robinson, are executors of the estate. The evidence does not reveal whether a grant of probate has yet been made. However it is not in dispute that Mr Challinor has an interest in the land.
5. The Enforcement Notice alleged a breach of planning control because of an unauthorised change of use of the land from agricultural use to use as a waste transfer station. Amongst the steps required by the Notice to be taken were "(i) cease importation of all waste on the land" and "(ii) remove from the land all . . . waste . . . [and] . . . all plant and machinery which are used for the processing, sorting, screening, treatment . . . of waste".
6. Mr Challinor appealed to the Secretary of State against the making of the Enforcement Notice. The Secretary of State appointed an Inspector to determine the appeal. There was a Public Enquiry in December 1998. The Inspector substituted new wording in the Enforcement Notice which more accurately defined the proscribed activity, now "the importation, handling, sorting, screening and storage of waste materials, and the disposal of waste materials". Subject to that variation, immaterial for present purposes, the Inspector in September 1999 dismissed the appeal. That meant that, by virtue of s.285(1) of the Town and Country Planning Act 1990, the validity of the Enforcement Notice could not further be challenged in any proceedings, civil or criminal, on any ground which could have been raised before the Inspector.
7. In 2001 criminal proceedings were begun against Mr Challinor for breach of the Enforcement Notice but these were not pursued.
8. On 25 April 2002 proceedings were begun in the High Court by SCC seeking an injunction against Mr Challinor to restrain him from committing further breaches of the Enforcement Notice. On 23 July 2002 His Honour Judge Mitchell, sitting as a Judge of the High Court, granted an interim injunction restraining Mr Challinor from using the land at Woodside for importing waste, handling, sorting, screening, storage, treatment and disposal, or any of these, of waste material and soils until trial or further order.
9. The County Council also took the view that Mr Challinor had failed to carry out the requirements of the 1997 Enforcement Notice insofar as that required the removal from the land of waste materials and associated plant and machinery. On 7 April 2003 SCC took direct action pursuant to their powers under s.178 of the Town and Country Planning Act 1990. That section provides, so far as material:-

(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.

10. Appropriate regulations as provided for in sub-section (3) above were made in 1991 – see Town and Country Planning (Enforcement Notices and Appeals) Regulations 1991, SI 1991/2804.
11. S.276 of the Public Health Act 1936 provides:-

"(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."

12. The direct action undertaken by SCC occupied the period 7-12 April 2003, a warrant having been obtained from Stafford Magistrates Court to permit SCC to enter the land for that purpose. A large volume of waste material was removed, as was plant and machinery. The operation was conducted in what Judge Kirkham described as a high-handed manner. Fearful of the likely reaction of Mr Challinor and the effect on his poor health, the SCC staff arrived unannounced and accompanied by eight police officers and two paramedics. Whilst there was of course no criticism of their concerns for Mr Challinor's health, and he was in fact admitted to hospital at the end of the week in which the direct action was taken, the judge found it difficult to accept that SCC's approach to the operation was necessary.
13. On 6 August 2003 Mr Challinor served on SCC his Defence and Counterclaim in the High Court action in which the Council was seeking to make permanent the injunction granted on an interim basis by Judge Mitchell. Mr Challinor was at this time represented by solicitors. By that Defence, supported by his Statement of Truth, Mr Challinor also asserted that he had never, whether personally or by his servants or agents or through associated companies or businesses, imported waste onto the site or handled, sorted, screened, stored, treated or disposed of waste on the site. In that Defence he relied upon a Certificate of Lawful Use or Development (hereinafter "CLU") issued in June 1994 by Stafford Borough Council authorising the use of the site as a plant-hire contractor's yard and for the storage distribution and general trading of materials recovered for (sc from) demolition and construction sites for recycling, such storage of materials not exceeding four metres in height. The Defence included the following paragraphs:-

"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:

1. Damages;

2. Interest thereon for such period and at such rate as the Court shall allow; and

3. Costs."

14. Likewise on 6 August 2003 Mr Challinor made a Witness Statement in the injunction action, supported by a Statement of Truth. In it he contended that there was no basis upon which either the injunction should be made permanent or he should be committed for breach of it. The Statement contains the following paragraphs:-

"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."

15. On 14 March 2004 the injunction action came before Mitting J on an application by SCC to extend the scope of the injunction so that it encompassed an additional piece of land. Mitting J refused that application and continued the interim injunction, varying it so as to exclude from its scope the activities on the Site which he regarded as falling within those permitted by the CLU. Therein lies the first manifestation of an issue, subsequently resolved by the Court of Appeal, concerning the relationship between the 1994 CLU and the 1997 Enforcement Notice. The Court of Appeal held that existing use rights not having been raised before the inspector on the appeal against the Enforcement Notice, the Enforcement Notice must now prevail over the CLU if there is any conflict between the two.
16. On 30 July 2004 SCC issued a second action, initially in the County Court, seeking recovery from Mr Challinor of their expenses incurred in the Direct Action taken to achieve compliance with the Enforcement Notice. The claim in the sum of £243,685.12 was made pursuant to s.178(1)(b) of the Town and Country Planning Act 1990, set out above.
17. On 1 October 2004 Mr Challinor put in his Defence to this second action. It is unclear to me whether it was drafted with the benefit of legal advice. The Defence averred that as his father's estate was still in probate, any claim against Mr Challinor as owner of Woodside could only be made against him in his capacity as executor. The Defence continued:-

"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.

18. On 8 August 2005 the two actions, SCC's claim in the High Court for a permanent injunction and in the County Court for the expenses of the Direct Action, were consolidated and transferred to the High Court, specifically to the Technology and Construction Court in Birmingham. Mr Challinor and his sister, Mrs Robinson, were both made Defendants.
19. On 16 February 2006 Mr Challinor filed his "Amended Consolidated Defence" in the consolidated action. Paragraphs 4 and 12 thereof read:-

"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.

20. The consolidated action came on for trial before Judge Kirkham on 13-17 November and 18 December 2006 as I have described above. Mr Challinor was represented by Counsel and solicitors. Mrs Robinson acted in person, assisted by a Mackenzie friend, Ms Dilmitis. Ms Dilmitis was subsequently permitted to address the division of this court which heard the appeal in 2007 and impressed its members with her ability and familiarity with the documents in the case.
21. Judge Kirkham concluded that the prohibition in s.285(1) of the Town and Country Planning Act 1990 on challenging an Enforcement Notice which is in force did not suffice to "override the conclusive nature of the CLU". At paragraph 81 of her judgment she said:-

"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."

22. Keene LJ, in his judgment on the subsequent appeal, summarised the conclusions to which the judge then came as follows:-

"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."

23. As I have already indicated the Court of Appeal came to the conclusion that Judge Kirkham was wrong in her approach to s.285(1) and resolved the issue concerning the relationship between the CLU and the Enforcement Notice in the manner which I have indicated in paragraph 15 above. In the circumstances the Enforcement Notice prevails. It followed, and Keene LJ so held at paragraph 60 of his judgment, that the direct action taken by SCC was "undoubtedly lawful under our domestic law and, given the duration of the breach of the Enforcement Notice cannot be said to have been disproportionate". The latter observation was conclusive of a point taken by Mrs Robinson, although not by Mr Challinor, alleging a breach of her rights under the European Convention on Human Rights.
24. At paragraph 62 of his judgment Keene LJ said this:-

"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."

25. That paragraph, when seen by Ms Dilmitis in draft in advance of the formal handing down of the judgment, prompted her to write to the Court of Appeal on 16 August 2007 in these terms:-

"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
Waste Tipping	114,000.00	124
Security	4,588.00	126
Equipment hire	14,417.94	128
Disposal	2,020.00	129
Scrap disposal	10,480.00	130
Restoration	2,500.00	131
Miscellaneous	1.030.00	132

"

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."

26. Judge Kirkham observed at paragraph 101 of her judgment that certain items, the Portacabins and the digger buckets, appeared to her to have a value which had not been realised by SCC but she made no findings as to what that value was. Paragraph 101 of her judgment reads:-

"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.

27. At paragraph 4 of her letter to the Court of Appeal of 16 August 2007 Ms Dilmitis set out part of paragraph 101 of Judge Kirkham's judgment, which I have reproduced above, and observed "Again no deduction has been made in relation to this point".
28. In the light of Ms Dilmitis' letter of 16 August 2007 the Court of Appeal asked for written submissions about the two points raised in paragraph 1 of that letter concerning the calculation of the figure of £179,035.94 as the amount of the Council's expenditure. The Court of Appeal did not ask for further submissions on paragraph 4 of Ms Dilmitis' letter. Submissions were exchanged. It was agreed that there was an arithmetical error and that the total of the expenses reasonably incurred, assuming that direct action was lawful in relation to the whole site, should have been £30,000 less than £179,035.94, and moreover that credit needed to be given for the £14,000 realised on sale of equipment. There were also one or two other small agreed adjustments to the figures. Thus the appropriate figure for which judgment should be given was agreed to be £137,865.21.
29. In his written submissions, settled on his behalf by Counsel and solicitors, Mr Challinor said:-

"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."

30. Accordingly an Order was made by the Court of Appeal for the payment by Mr Challinor and Mrs Robinson, as executors of FJ Challinor deceased, to SCC of £137,865.24 together with interest. No alteration was made to paragraph 62 of the draft judgment of Keene LJ, with which Rix and Hughes LJJ both agreed.
31. In the result there is, as it seems to me, a judicial determination of the Court of Appeal as between SCC and Mr Challinor to the effect that against its recoverable costs incurred in carrying out the Direct Action the Council must give credit for £14,000 in respect of the resale value of the materials, plant and machinery removed from the site.

The action brought in 2009

32. It is against that background that Mr Challinor brings the present action against SCC. The brief details of claim in the Claim Form read:-

"1. Trespass to land and damage to the claimant's reversionary rights.

2. Trespass to the claimants goods and possessions and conversion.

3. Negligence.

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."

33. In the Particulars of Claim damages are claimed under these seven heads. The foundation for the claim is laid in Paragraph 8 which reads:-

"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.

34. It is said in the Particulars of Claim that Judge Kirkham found that SCC removed property and material which they were not authorised to remove. However the Particulars of Claim failed to acknowledge that those findings, with one exception, rest upon the judge's conclusion that activity permitted by the CLU did not fall within the Enforcement Notice. The exception is her finding, at paragraph 129 of her judgment, that there was no requirement in the Enforcement Notice that the Portakabins be removed. However the decision of the Court of Appeal was to the effect, as I have already set out above, that the action taken by the County Council was undoubtedly lawful. As it happens the Court of Appeal simply adopted the "disposal cost" figure which the judge had assessed at paragraph 129 of her judgment, £2020.00, which disallowed the removal of the Portakabins. This was the figure appearing in the table in the letter of Ms Dilmitis dated 16 August 2007 which I have reproduced at paragraph 25 above. I doubt however if it is consistent with the decision of the Court of Appeal to assert that any property was unlawfully removed from the site.
35. The property said in Schedule 1 to have been removed unlawfully is the six Portakabins and their contents together with the fifteen excavator buckets and a heavy goods vehicle articulated trailer. Whilst asserting that ultimately it was of no relevance, Mr Ian Dove QC for SCC conceded before us that it had been found that there was no entitlement to remove the items listed in Schedule 1, which Mr James Tindal for Mr Challinor asserted amounted to a concession that these goods had been wrongfully converted. For my part I doubt if this concession is rightly made but in any event it could only properly extend to the Portakabins and their contents, the value of which is said to have been £22,400.00.
36. Before the judge and before this court Mr Challinor sought to rely upon a Witness Statement of a Mr Colin Brown, who has since August 2003 been his next door neighbour. Apparently in July 2007 Mr Challinor issued proceedings against Mr and Mrs Brown alleging obstruction of his right of way which gives access to Woodside. Mr Tindal said that by late 2007 Mr Challinor and Mr Brown were in dispute, although according to the Witness Statement there were earlier tensions between them largely caused by Mr Brown's reluctant compliance with instructions of the County Council concerning the right of way. The dispute was settled following a mediation in March 2008. Mr Brown gives evidence of his own dealings with the County Council from late 2003 onwards which, it is said, contains material demonstrating the malice harboured by the council officials towards Mr Challinor. This evidence is of course untested although I consider that Mr Challinor is attempting to read too much into certain alleged remarks of the council officials, some of which may have related to an intention on their part to recoup their costs by recourse to Mr Challinor's property rather than to a malicious desire simply to deprive him of his property. However, whatever the value of this evidence, with the exception of its account of one or two meetings or conversation which post-date the trial before Judge Kirkham in November and December 2006, there is no reason why Mr Challinor could not have enlisted the assistance of Mr Brown to give evidence at that trial.

The judgment of 11 December 2009

37. The judge directed herself by reference to the decisions in Johnson v Gore Wood & Co [2002] 2 AC 1 (HL); Dexter Ltd (in Administration) v Vlieland-Boddy [2003] EWCA Civ 14; Stuart v Goldberg Linde (a firm) and another [2008] EWCA Civ 2; Koshy v DEG-Deutsche [2008] EWCA Civ 27. She acknowledged that Mr Challinor feels a deep sense of grievance as to his treatment by SCC. She concluded however, unhesitatingly, that the claims now sought to be made ought properly to have been made in the "previous Direct Action proceedings". At paragraph 22 she said this:-

"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, 6^th 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.

Discussion

38. The starting point of any discussion of the jurisdiction to strike out for abuse of process is undoubtedly the speech of Lord Bingham in Johnson v Gore Wood. At paragraph 31 of his speech Lord Bingham said:-

"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."

39. The subsequent decisions of this court to which the judge, and the parties before us, referred can be regarded as nothing more than exegesis of Lord Bingham's approach. However like the judge I find it helpful to refer to what she described as the "check-list" of six principles set out by Clarke LJ, as he then was, in Dexter v Vlieland-Boddy at paragraph 49 of his judgment:-

"The principles to be derived from the authorities, of which by far the most important is Johnson v Gore Wood & Co [2002] 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."

40. It is important to note that, Mr Challinor having in the earlier action counterclaimed against SCC, albeit he did not pursue that counterclaim, the present is in terms of Clarke LJ's analysis a case of A bringing a later action against B. As Clarke LJ went on to point out at paragraphs 50-53 of his judgment, it is one thing to say that A should bring all his claims against B in one action but quite another to say that he should bring all his claims against B and C (let alone B, C, D, E, F and G) in one action.
41. I mentioned at paragraph 2 above that the decision of the judge here is entitled to particular respect given her knowledge of the dispute derived from her conduct of the earlier trial. The point however goes further because in this area an appellate court must always be reluctant to interfere with the decision of the judge in the judgment he or she reaches on abuse of process by carrying out the required process of balancing all the relevant factors. In Stuart v Goldberg Linde Sir Anthony Clarke MR, as he then was, said at paragraph 81:-

"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 [16] 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 [2002] EWCA Civ 1642, [2003]1 WLR 577 and the cases cited in that decision and Mersey Care NHS Trust v Ackroyd [2007] 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."

42. In my view the decision of Judge Kirkham was not plainly wrong. On the contrary, in my view it was plainly right.
43. Mr Tindal was critical of the judge's finding that Mr Challinor had not demonstrated that he had the standing to bring a claim in respect of the property removed from the site and of her finding that his evidence regarding title to the items in question had been inconsistent. He showed to us a lease of 18 December 1999 between Mr Challinor and Whitgreave Plant and as executor of F J Challinor and Mr McAuliffe of Stitchacre. The property let was said to include Woodside "to include plant and machinery, portable buildings etc as per attached agreement". The attached agreement was a short agreement between Whitgreave Plant and Stitchacre which again reflected an agreement to lease inter alia premises at Woodside "to include use of present plant and machinery, portable buildings etc. Stocks of spares, trailers and all recycled and unrecycled materials at both premises . . ." for a period of thirty years. These same documents were shown to Judge Kirkham and in relation to them she said this, at paragraph 14:-

"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."

44. Mr Tindal submitted that there was no inconsistency between what Mr Challinor had asserted at earlier stages of the proceedings and his current assertion that he enjoyed a reversionary interest in respect of the goods. With respect to Mr Tindal that submission is simply unsustainable. The Defence and Counterclaim of August 2003 contained no hint that Stitchacre were the lessees of the machinery, equipment and stock as well as of the land. Indeed the Counterclaim was posited on these being assets belonging to third parties. Likewise in Mr Challinor's Witness Statement of 6 August 2003 and in his Defence of 1 October 2004 the allegation was that the relevant property belonged to third parties. The Amended Consolidated Defence of 16 February 2006 simply repeated the assertion that the running of the business (which included the machinery, equipment and stock) had been "taken over" by Stitchacre in 1999.
45. Had Mr Challinor owned the property removed from the site one would have expected a loud and vigorous contemporary complaint pursued on his own behalf in respect of his own property. It was suggested on his behalf that he had been confused as to the true position concerning title since at earlier times Stitchacre had controlled the machinery, equipment and stock but Mr Challinor has given no evidence of any such confusion. Indeed, his Witness Statement of 7 December 2009 prepared for use at the hearing before Judge Kirkham conspicuously falls short of asserting his ownership of the property in question and there is, as the judge observed, no documentary evidence thereof. It is no answer to say that the relevant papers were in the Portakabins and had to be recovered in a hurry in the dark and as a result ended up in a muddle. Indeed in the course of his cross-examination before Judge Kirkham in 2006 Mr Challinor had said that he had produced to SCC at the time of the direct action documentary evidence as to ownership and leasing of the machines. The suggestion that Mr Challinor asserted no claim in respect of the value of the materials removed from the site before bringing this action in 2009 because he was confused as to the ownership thereof is wholly unconvincing.
46. Equally unconvincing is the suggestion that the legal aid position was an inhibiting factor. Mr Challinor does say in his Witness Statement that at the time when he failed either to revive his counterclaim or to plead a new one he was in receipt of legal aid which "it is understood . . . would not have been granted for a counterclaim based on loss of commercial machinery and equipment." There is however no evidence as to any effort made to secure legal aid with a view to pursuing a claim in respect of the goods and no evidence to support the assertion that legal aid would not have been obtainable if these claims had been asserted as available to a person otherwise entitled to legal aid in respect of closely allied matters. There is also no evidence either that Mr Challinor would have been unable to fund this aspect of the litigation himself or that any enquiries were made or advice sought as to the possibility of including within the ambit of the action an element which did not attract public funding. The highest that the point is put in Mr Challinor's evidence is that "this would have caused conflict for the court and the management of the case if for some points he had legal representation and other (sic) he did not."
47. Ultimately Mr Tindal accepted that the reasons now put forward for failing to pursue a counterclaim in respect of the value of the property removed were not perhaps the best reasons but he nonetheless contended that the fact that the reasons were not good did not of itself indicate that the attempt now to prosecute the claim is abusive. I would agree that, were these indeed the reasons why the claim was not brought at the appropriate time, the fact that they were not good reasons would merely form one aspect of the overall balancing exercise. However, I am not satisfied that these reasons played any part in Mr Challinor's thinking.
48. Mr Dove drew our attention to correspondence exchanged between SCC and Stitchacre after the direct action had been executed. In letters written in May 2003 Stitchacre asserted that they were the lawful operators of the site with which they had been associated for over thirty years. They asserted that they were the owners of all of the equipment, materials and goods removed from the site and that it was unreasonable to expect of them production of documents proving their title as these would go back for up to twenty years. There was no mention of a lease. However in August 2003 Stitchacre asserted that the letters written in May did not originate from their office and were not signed, as purportedly they were, by Mr McAuliffe. As from that date it was asserted by Stitchacre that their only interest in the site at Woodside had been a screening plant belonging to the company. In September 2003 Stitchacre were told of Mr Challinor's assertion in his Defence and Witness Statement of August 2003 respectively that "in or about 1999" a lease had been granted to Stitchacre of the site and that Stitchacre alone had "been responsible for all business aspects associated with the importation, sorting, screening and deposit of waste materials on the land at the . . . site since that time" which SCC characterised in their letter as "the offences". Stitchacre's response of 12 September 2003 was to deny that Stitchacre had at any time been party to any agreement covering any land or operations at Woodside other than the ownership of one screening plant.
49. Whilst there may be question marks over the position of Stitchacre and the reliability of what has or may have been said in correspondence on its behalf, this further material does not support Mr Challinor's assertion of a reversionary interest in the machinery etc removed from the site. Furthermore, as pointed out by Mr Dove, Mr Challinor was asked in cross-examination at the November 2006 trial about whether he had at the time of the direct action asserted ownership or produced documents evidencing the ownership or leasing of the machines. Thus when she came to consider these issues in 2009 the judge had already seen and heard Mr Challinor give evidence about them.
50. There was in my judgment ample material upon which the judge could reach the conclusion not just that the claim now sought to be pursued ought properly to have been brought in the earlier proceedings but also that an attempt now to pursue it would amount to an abuse of the court's process, and, if this is different, harassment or oppression of SCC. The earlier counterclaim founded upon an unlawful removal of property from the site had not been pursued. That notwithstanding, the issue of the removal, its legality and the value which ought to have been realised in respect of the property removed was extensively canvassed at trial and the SCC witness, Mr Walker, was cross-examined about the matters. There was at trial no assertion^[1] that Mr Challinor had an interest in the property removed and that assertion when made before the judge in 2009 lacked any evidential support and was wholly incredible. Mr Challinor therefore lacked standing to bring the claim. Furthermore, at the first trial Mrs Robinson had pursued extensive allegations as to the improper manner in which SCC had conducted the direct action. These arguments were very largely pursued under the rubric of violation of human rights under Article 8 and Article 1 of the First Protocol, but they included allegations of deliberately acting in secret and without notice, of patronising, contemptuous and high-handed treatment and of conduct which was irrational, disproportionate and unreasonable. Except to the extent I have already indicated, the judge rejected these allegations. The Court of Appeal found that the conduct of SCC had been entirely lawful. In the light thereof, I see no scope properly to pursue allegations of misuse and abuse of power amounting to misfeasance, whether accompanied by malice or otherwise or the use of unlawful means. It is axiomatic that Mr Challinor's complaint of violation of Article 8 covers exactly the same ground as did that of Mrs Robinson. Whilst Mr Challinor had been anxious to stress the capacity in which he could properly be sued for the costs of the direct action, viz, as executor of his father's estate, he was a defendant to the injunction proceedings in his personal capacity and there would have been no difficulty in his counterclaiming also in that capacity, as indeed initially he did. This was not a case in which, as in Johnson v Gore Wood, SCC were put on notice that Mr Challinor had a claim in his personal capacity which he wished to pursue in due course. On the contrary, SCC were entitled to believe that the trial in 2006 was the forum in which all of the claims of Mr Challinor and his sister arising out of the direct action would be resolved. I can detect no error in the judge's approach, and, if I were to conduct the same balancing approach afresh myself, I would unhesitatingly reach the same conclusion. SCC are being invited to re-run litigation to which they have already devoted considerable time and resources and which they are entitled to regard as concluded. The case for striking out as an abuse of process is overwhelming.
51. I should add, although Mr Dove did not put it in this way, that insofar as the claim seeks relief in respect of the removal of property and/or its residual value, the foregoing is in my view an a fortiori conclusion. As I have set out at paragraph 31 above, there is already a binding judicial determination in respect thereof.
52. It follows that it is strictly unnecessary to consider whether the judge was right to strike out the statement of case as disclosing no reasonable grounds for bringing the claim. However in my judgment she was. I was wholly unconvinced by the suggestion that the misfeasance and Human Rights claims are "continuing claims" of "on-going animus" reliant upon acts of misfeasance or misconduct emerging after the earlier judgment. In my judgment the conduct subsequent to the direct action and the steps taken by SCC as an integral part thereof by way of disposal of the materials removed is capable of being relied upon only as indicative of the motive with which the earlier action was undertaken. It is true that there are general allegations in the Particulars of Claim of, during 2004, SCC attempting to "bury the Claimant in litigation" and, at an unspecified date "involving themselves in the Claimant's divorce proceedings," but for the most part these unparticularised and wholly unspecific allegations relate to the conduct of the litigation spawned by the direct action to implement the Enforcement Notice. No attempt is made to demonstrate how the required elements of the tort of misfeasance in public office are here satisfied. If and insofar as any conduct of the officers of SCC subsequent to the direct action and its immediate aftermath, the disposal of goods, is relied upon as investing Mr Challinor with an independent cause of action, the Particulars of Claim disclose no reasonable grounds for bringing such a claim. If and insofar as the direct action is itself alleged to amount to misfeasance or to have been actuated by malice or to have involved the use of unlawful means, the actions of SCC have already been determined to have been lawful and the statement of case discloses no unlawful action on the basis of which such a claim might reasonably be brought. The same is true, mutatis mutandis of the claims in trespass to land and goods, conversion and violation of Article 8.
53. There was criticism of the summary manner in which the judge at paragraph 19 of her judgment dealt with the head of claim in negligence. I am prepared to assume, without deciding, that in dealing with the materials removed from the site SCC owed a duty at common law to the owners thereof to obtain the best price reasonably available, or otherwise to account for the reasonable value of the materials removed. It has however been decided that the appropriate credit which SCC must give in respect of the resale value of the materials, plant and machinery removed from the site is £14,000.00. Quite apart from the difficulty caused by Mr Challinor's belated and incredible assertion of ownership consisting in reversionary rights, the judge had already observed at paragraph 17 of her judgment that so far as s.276 (of the Public Health Act 1936) is concerned, it appeared to have been confirmed by the Court of Appeal that the value was taken into account when the court assessed the sums due to the council. There is nothing in this criticism.
54. I would dismiss this appeal.

Lord Justice Jacob :

55. I agree.

Lord Justice Rix :

56. I also agree.

Note 1   It is now said that this was however a suggestion implicit in the reference to the agreement of 18 December 1999 as part of which the plant and machinery were included in the lease to Stitchacre – see paragraph 58 of Judge Kirkham’s judgment of February 2007.    [Back]