England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHELMSFORD COUNTY COURT
(SITTING AT SOUTHEND)
(HIS HONOUR JUDGE MALONEY QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		28th June 2012

Lord Justice Sullivan:

1. The appellant and the respondent are the owners of neighbouring agricultural land at Blind Lane, West Hanningfield in Essex. The appellant is entitled to a right of way "for all purposes" across the respondent's land to the lane. The appellant brought a claim against the respondent for obstruction of the right of way. The respondent counterclaimed against the appellant for harassment.
2. In a judgment handed down on 15 July 2011, HHJ Maloney QC dismissed the obstruction claim and allowed the harassment counterclaim. The counterclaim had been put forward on four bases: firstly that the appellant had made unwarranted complaints about the respondent and her husband to public bodies; secondly that the appellant had caused solicitors' letters to be sent to the respondent; thirdly that the appellant had made unwarranted allegations of assault against the respondent's husband; and fourthly that the appellant had engaged in photography and what the judge described as "intrusive snooping" upon the respondent and her husband.
3. The judge allowed the harassment on the fourth of those grounds. He said in paragraphs 3.11 and 3.12 of his judgment:

"3.11 Finally there is the question of intrusive photography, spying and eavesdropping by the Claimant on the Defendant's land, in particular from the right of way or the footpath through the field, though occasionally from her own land or while trespassing off the right of way. It is perfectly clear that from the outset she has persistently behaved in this way; for example, her complaints to the authorities appear often to be based on it. It has reached the point where she now has a video camera fitted to her tractor from which she can continually film the activities on the Defendant's farm as she drives by. Attempts have been made to obtain disclosure of the fruits of this surveillance but without success.

3.12 I remind myself that the purpose of a right of way, and indeed of a public footpath over private land, is to permit travel along the route and access to the far side; it is not a park or place to loiter, nor should it be misused to diminish the landowner's enjoyment of his own land more than is inevitable given the right of way's existence. It is not reasonable to use a right of way to conduct persistent surveillance of one's neighbour, and her persistence in such conduct is in my view plainly a campaign of unlawful harassment."

4. In respect of the assault allegations, the judge concluded in paragraph 3.9 of his judgment that the allegations of assault by the respondent's husband were false and were made by the appellant at a time when she knew them to be false.
5. There is no challenge in this appeal to the judge's factual conclusions and indeed no challenge to his order insofar as it dismisses the obstruction claim and allows the harassment counterclaim. The challenge is simply to the terms of the injunction that was granted by the judge in paragraph 4 of his order dated 15 July 2011. Paragraph 4 is in these terms:

"4. The First Claimant be restrained, whether by herself, her servants or agents or otherwise howsoever from:

i. Lingering or loitering on the right of way or any footpath over the land edged in black on the plan attached hereto ("the Defendant's Land") or using the same for any purpose other than passing along at a reasonable speed;

ii. Without prejudice to the generality of (i) above, using any part of the Defendant's Land, including the right of way and any footpath over the same, to make any photograph, film, video or other audio or visual record or image of the Defendant's Land or any person, animal, thing or activity upon it."

6. The appellant was granted permission to appeal on the papers by Patten LJ against the inclusion of the words "at a reasonable speed" at the end of paragraph 4.i of the order. The appellant also sought permission to appeal against paragraph 4.ii insofar as it prevented her from having a CCTV on her tractor. That application was refused on the papers and it is renewed by Mr Leigh at this hearing.
7. The appellant had explained why she objected to these two aspects of the judge's order in her own grounds of appeal. In those grounds she contended that the terms of the injunction were unduly restrictive and open to misinterpretation and other difficulties of practical application. She said:

"I WISH TO BE PERMITTED TO USE THE RIGHT OF WAY LIKE ANYONE ELSE AND REQUEST THAT THE WORDS 'AT A REASONABLE SPEED' AT THE END OF PARA 4(i) ARE DELETED SO THAT, FOR EXAMPLE, I CAN WALK MY DOGS WHO NATURALLY MIGHT DAWDLE. I ALSO WISH TO BE ABLE TO PROTECT MYSELF AND FOR THAT PURPOSE WISH TO USE A CCTV CAMERA ON MY TRACTOR IN THE EVENT OF BEING THREATENED. I THEREFORE REQUEST THAT THE FOLLOWING (OR SIMILAR IN EFFECT WORDS ARE ADDED TO THE END OF PARA 4(ii):
SAVE IN THE EVENT THAT THE CLAIMANT, HER SERVANT OR AGENT IS THREATENED OR ATTACKED."

8. In paragraph 22 of his skeleton argument, Mr Leigh submits that the wording requested by the appellant should be added to the end of paragraph 4.ii of the judge's order.
9. Dealing first of all with the application for permission to appeal in respect of paragraph 4.ii of the judge's order, the judge's finding that the appellant had made false allegations of assault against the respondent's husband is not challenged. It seems to me therefore that on the material that was before the judge there was no need for the proviso that is sought by the appellant because there was simply no evidence that she had been threatened or attacked. On the basis of the judge's findings, her attempt to add this qualification is simply a thinly-disguised attempt to enable the appellant to persist in precisely the kind of conduct that the judge found to be harassment and which the order seeks to prohibit.
10. In support of his application for permission to appeal, Mr Leigh sought to rely on certain disputed conduct post-trial. In my judgment that is a wholly inappropriate basis on which to seek permission to appeal against the terms of this order. If circumstances have changed post-trial, the proper remedy is to go back to the judge with an application made in a proper form supported by evidence under the implicit liberty to apply. The remedy is most certainly not to seek to argue about the terms of the order in this court.
11. I turn therefore to the challenge to paragraph 4.i of the order, for which permission to appeal was granted by Patten LJ on the papers. Neither Mr Leigh nor Mr Vickers, who appears on behalf of the respondent, appeared before the judge below. In his skeleton argument, Mr Vickers submitted that the judge had sent a draft version of his judgment to the parties and invited counsel to agree a form of wording for the order which he indicated that he was minded to grant. This morning Mr Vickers provided us with copies of the chain of email correspondence between the judge and counsel who appeared before him, Mr Attridge and Ms Spratt-Dawson for the claimant and respondent respectively. The judge sent the draft judgment to the parties' legal representatives and said that there could be an additional hearing if necessary:

"…but if, as I hope, the parties can now reach agreement on the form of order, then it could be handed down at an earlier hearing elsewhere without need for the parties to attend."

12. In response to that, counsel then representing the appellant said:

"Dear Judge

Please find attached a draft order in the above matter. This has been agreed between myself and Miss Spratt-Dawson, save for the recital in square brackets [which is irrelevant for present purposes]."

13. It is most disturbing that this exchange of correspondence was not before Patten LJ when he was asked to give permission to appeal. It seems to me that in these circumstances, where there is effectively an agreed order, Mr Leigh has an uphill task in persuading this court that the words now complained of in the agreed text should be deleted. He would have to demonstrate that there was something very wrong indeed with the judge's order to persuade us to take such a course. Mr Leigh submits that the right of way was granted for all purposes. It includes such things as walking dogs and, given the past history of the dispute between the parties, it is desirable to avoid further potential disputes about the speed at which the appellant is using the right of way.
14. In his skeleton argument, Mr Vickers has submitted that the deletion of the words is unnecessary because what is reasonable will depend on the circumstances, so the appellant will be perfectly well entitled to use the right of way provided she continues to use it as such rather than as a means of surveillance upon the respondent.
15. For my part, I accept Mr Vickers' submissions in his skeleton argument. Given the history of this matter and the use of the right of way for intrusive snooping, the judge was entitled to frame the terms of paragraph 4.1 of his order as he did. At the very worst, it might be said that the words "at a reasonable speed" are unnecessary surplusage. If that is the case, it might be asked: what possible harm could they do and why should the appellant wish to use the right of way at anything other than a reasonable speed given that what is a reasonable speed will depend on all the circumstances. If one is walking with a child or elderly person, one may walk faster or slower than one would walk on one's own. If one is walking with a large energetic dog, one may walk faster than with a small and elderly dog. It all depends on the circumstances.
16. If the appellant genuinely uses the footpath to walk her dog and not as a disguised snooping operation, then she has nothing to fear, in my judgment, from the terms of the judge's order. In response to the proposition that it does not really add anything, it seems to me that the words used by the judge are a direct response to the evidence about the manner in which the appellant had been using the right of way. She had not been passing along it at a reasonable speed, simply using it for the purpose of passing to and fro; she had been using it in the course of her surveillance operation, adjusting her speed to enable her to carry out that exercise. Thus it seems to me that the words are not unnecessary and insofar as they add anything, they add something that is entirely justified.
17. I have considered this matter on the merits notwithstanding the fact that in my judgment it is most unlikely that permission to appeal would have been granted if Patten LJ had been put properly in the picture as to the fact that the terms of the order had been agreed.
18. That leaves only one matter. At the end of the order there is a penal notice in these terms:

"If you the within named Linda Jeffries do not comply with paragraph 4 of this Order you may be held in contempt of court and imprisoned or fined or your assets may be seized."

19. It is common ground that a penal notice in those terms should not have been included. Equally it is plain that insofar as that is an obvious defect on the face of the notice, it could and should have been remedied not by way of appeal to this court but by applying to the judge himself for correction under the slip rule.
20. It seems to me that since the matter is before us, we should strike out the penal notice and substitute a notice which warns the appellant that failure to comply with the terms of paragraph 4 of the order is a criminal offence under the Harassment Act 1997. I will leave counsel to agree the precise wording of that amended appeal notice, but to that extent only I would vary the terms of the judge's order.
21. For those reasons I would dismiss this appeal.

Lady Justice Arden:

22. I agree with the judgment of my Lord, Lord Justice Sullivan. I wish to add on one point that he has made. On 21 May 2012, I indeed saw the correspondence between the judge below, HHJ Maloney QC, and counsel then acting for the parties, including the passage cited by Sullivan LJ. By that stage limited permission to appeal had already been given by Patten LJ and the appeal had already been listed for hearing. What was before me was a renewed application for permission to appeal against paragraph 4.ii of the order and also against the order that the judge made as to costs. I stood the application over to come on with this appeal, save in relation to costs. I dismissed that part of the application.
23. I agree with what Sullivan LJ has said: that if Patten LJ had seen that email exchange with the judge before he had considered the application for permission to appeal, he would have seen that the order had been made in an agreed form, and he would probably not have given permission to appeal.
24. I draw attention to page 1709 of volume 1 of the 2012 White Book, which is headed "Change in appellant's case or change in circumstances after grant of permission". The point I wish to make is amply covered by the second and third paragraphs, which state:

"Where the appellant's case changes after the grant of permission, the appellant's representatives should write to the appeal court and to the other party, indicating the proposed nature of the case.  The court should be asked to indicate whether it will deal with the matter at the beginning of the hearing of the appeal or whether it will give directions on an earlier date.  After being informed of the respondent's attitude, the court can decide whether to shut out the new grounds or allow them to be argued: see Shire v Secretary of State for Work & Pensions [2003] EWCA Civ 1465 at [6]-[7].  See also the commentary following r.52.8.

Where there is a material change in circumstances after the grant of permission, which would affect the question of whether permission should have been given, the applicant should inform the court in writing: Walbrook Trustee (Jersey) Ltd v Fattal [2008] EWCA Civ 427 at [49]."

If the guidance in this paragraph is not followed, both court costs and court time may be wasted with possible adverse costs of the orders deposed: see my judgment in R (A Child) [2010] EWCA Civ 303 at paragraphs 14 to 16.

25. I wish to repeat that this is an important paragraph in the White Book. What happened here was that counsel who did not appear at the trial became aware that the form of order, against which Patten LJ had given permission to appeal, had been made by consent. That matter should have been specifically drawn to the court's attention so that the court could consider whether permission should have been granted in those circumstances. That should have been done ahead of appeal so that that matter could have been considered on paper, and, if that had been done, it might have led to a saving in costs and time.
26. It is important in the interests of the efficiency of this court that the court is promptly informed if an application for permission to appeal has been made without the court being given full and proper information. Sometimes this happens in circumstances where no one is to blame, but the course of action is quite clear: that the Court of Appeal must be informed so it can consider whether or not the permission should be set aside.
27. With those observations I wish to agree with the order which my Lord proposes.

President of the Family Division:

28. I also agree with both judgments, so the application for permission to appeal will be refused and the appeal will be dismissed.

Order: Application refused; appeal dismissed.