England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		1 July 2014

HH Judge Anthony Thornton QC:

Introduction

1. The parties. The claimants to this judicial review, who were the first two defendants in the underlying county court action are Mr and Mrs Parkin senior. Their son Mr Andrew Parkin who is now deceased was the third claimant in this judicial review and was the third defendant in the county court action. He died on 22 July 2013 and I have ordered that his name be removed as a claimant to this claim. I will refer in this judgment to these three family members as Gerald, Fay and Andrew respectively. They are the registered joint proprietors of a property close to Brands Hatch motor racing circuit in Kent, 1 Brands Hatch Cottages, Gallows Wood.
2. The defendant to this claim is the Dartford County Court ("DCC") and three of its orders issued in the underlying county court action to this claim are being challenged. The two interested parties to the judicial review claim are Ms Kirsten Handley and Mr Mark Andrews ("the IPs") who were the claimants in the underlying county court action. They were, at all material times the registered proprietors of 3 Brands Hatch Cottages, Gallows Wood until they sold it until they sold it in December 2011.
3. The judicial review application. This judgment is concerned with both the renewed application for permission to apply for judicial review and the substantive judicial review. The decisions being challenged are stated in the claim form to be two orders of the DCC, being those of Judge Simpkiss made on 19 December 2011 and dated 22 December 2011 and Deputy District Judge Wright made on and dated 25 March 2011. Although not expressly referred to in the claim form, it is clear that a third order is also being challenged, being that of Judge Simpkiss made on 6 October 2011 and dated 12 October 2011. This judgment and the consequent order is concerned with all three orders. The principle order that is being challenged is the order dated 12 October 2011 which refused the claimants ("Mr and Mrs Parkin") permission to appeal the procedural costs order of Deputy District Judge Wright dated 25 March 2011. These three orders were made in a claim, 8DA01645 that was issued in the DCC on 3 April 2008 in which the IPs were claimants and Gerald, Fay and Andrew were defendants and which claimed damages for the alleged interference with their right of way over the rear garden of No 1 Brands Hatch Cottages and a declaration and an injunction concerned that claimed right of way.
4. This judicial review. A refusal by a judge at circuit judge level of permission to make a first appeal against a procedural order made by a judge at district judge level is a final order from which there is no further appeal. Gerald and Fay in consequence now seek challenge the order dated 12 October 2011 and the consequential orders dated 22 December 2011 and 28 March 2012 in this claim for judicial review.
5. Structure of the judgment. This judgment is divided into the following parts:

(1) Brief factual overview.

(2) Applicable law.

(3) Underlying dispute.

(4) County court proceedings.

(5) Decisions under challenge.

(6) Judicial review claim.

(7) Extension of time application for filing the claim.

(8) Issues and the claimants' and interested parties' contentions.

(9) Renewed permission application – discussion and conclusion.

(10) Substantive hearing and decision.

(11) Transfer to the Central London County Court - Rolled up hearing.

(12) Costs enforcement proceedings.

(13) Third claimant.

(14) Costs of the judicial review.

(15) Conclusion and consequential order.

Part (1): Brief factual overview

6. Relevant conveyancing history. Gerald, Fay and Andrew became joint registered proprietors of 1 Brands Hatch Cottages, Gallows Wood Road, Fawkham, Kent on 16 March 1990. The cottage is located at one end of a terrace of 5 cottages which are located adjacent to Gallows Wood which is a cul-de-sac off Brands Hatch Road in Fawkham on the site of what had historically been a farm. These cottages appear to have been originally constructed as cottages in the early 19^th Century for farm workers and their families. The cottages, being nos. 1 – 5 Brands Hatch Cottages, were sold as a single parcel of land by a conveyance dated 30 July 1951 and the purchaser, a Mr Brakefield sold off the individual cottages nos. 1 – 5 on various dates in 1956. At that time, the land in that area was unregistered and these conveyances were effected by deed and transfer of the title deeds.
7. The conveyance to the purchaser of no. 3, which was subsequently conveyed to the IPs in March 1998, contained a right of way across no. 2 and through the garden and the space to the side of no. 1 onto Gallows Wood Road. in these terms:

"… a right of way (in common with all others entitled to the like right) over the land coloured brown on the said plan subject to the payment by the purchaser of a proportionate part of the expense of making up repairing and maintaining the said right of way … ."

An equivalent right of way appears to have been granted to nos. 2 and 4 albeit that the line of the right of way, when subsequently registered on first registration, appears to be slightly different in each grant from the other two grants. No doubt the conveyance to no. 1 included an encumbrance in similar terms.

8. This right of way was clearly solely available for use on foot and was granted at a time when the gardens were not fenced off. It is thought that the right of way was along an informal and unmade up pathway running along the end of each garden and alongside the fence along the edge of the garden and to the side of no 1. It would appear to have been intended for use for the delivery of coal, building materials and other tradesmen's deliveries. In consequence, no doubt, the simple wording did not provide for an express obligation to keep the right of way free from obstructions, any more detailed terms of user or use or what was covered by the repairing and maintenance provisions or who was to arrange for their use.
9. No. 5 was granted its own rear access to Gallows Wood across land adjacent to the side of that property and has therefore neither been granted nor used any access across the plots of nos. 1 – 4. No. 4 was granted use of this right of way in addition to its grant of the use of the longer right of way across nos. 1 – 3.
10. In 1974, the M20 was constructed close to the rear of nos. 1 – 4. Associated with this construction, old farm buildings in or adjacent to the rear garden of no 1 were demolished and the garden extended over and beyond the site of these demolished buildings.
11. The garden of no 1 was also, in the early 1980s, extended to the north or side of the property over what was part of a plot of unregistered and derelict land so as to widen the open space between the end of the terrace of cottages and the northern boundary of no 1. This area to the side of no. 1 was paved over and a new fence erected along the new northern boundary and a further fence with a gate was erected across the space so as to enclose the gap between the rear corner of no. 1 and that new fence. This stretch of fence had a gate installed in it at a point close to the side wall of no. 1. A double storey extension to the rear of no 1 was granted planning permission in 1987 and this was constructed soon afterwards.
12. By the time that Gerald, Fay and Andrew acquired the freehold of no. 1 on 16 March 1990, the right of way had long since ceased to be used. It would appear that this was because the precise line of the right of way was not identical on the respective plans attached to the registered right for each of the cottages 2 - 4, because of the changed boundaries of no. 1 and other boundary changes to the other three cottages and because the owners of nos. 1 – 4 had perfectly lawfully constructed sheds, extensions, conservatories garden fences and other obstructions thereby making it impossible for the right of way to be used. Furthermore, the informal path along which the right of way had been provided had disappeared completely and the area to the side of no. 1 had been paved over in the early 1980s and a fence with a gate constructed across the space between no. 1 and its northern boundary fence.
13. Prior to their completing the conveyance to them of no. 1, Gerald and Fay had detailed discussions with their vendors, Mr and Mrs Armstrong who informed them that the original right of way had ceased to be used many years previously and had been abandoned by the owners of nos. 2 – 4, it would seem at the time of the construction of the then new adjacent M20 and it had disappeared completely when the garden to no. 1 was extended to the north in the early 1980s when the space between Gallows Wood and the garden was paved over and fenced in. They also learnt that, on occasion, the occupiers of nos. 2 – 4 had used a path to obtain access to their respective cottages along an informal track or pathway crossing the motorway land and passing alongside but beyond the northern perimeter of no. 1 and that that access had been used on an occasional basis since the motorway had been constructed in 1974.
14. Gerald and Fay were also informed that in the early 1980s, an informal arrangement was made between the Armstrongs and the owners of nos. 2, 3 and 4 that the Armstrongs had made it known to those owners that occasional access would be permitted along a route adjacent to the rear of nos. 1 – 3 and through gates in the fence between nos. 1 - 2, 2 - 3 and 3 - 4 close to the rear of these respective cottages and the gate in the fence to the side of no 1. Use would not be by right but on prior arrangement with the owners concerned and would be for the purpose of removing garden waste, rubble, furniture or large garden implements and that this had been taken up on a very limited number of occasions since the early 1980s.
15. These arrangements, mismatches of the route of the path along which the right of way was to be exercised, topographical changes and changed use requirements concerning the originally granted right of way were not reflected in the registered right of way on the registered title in the Land Registry for any of nos. 2 - 4 cottages and the original right of way was registered in each case on first registration in the 1960s and that registration was not altered or deleted on subsequent registration of new ownership.
16. However, no. 1 did not have the right of way registered against the title when Gerald, Fay and Andrew's title of no. 1 was registered in March 1990 even though it remained registered against Mr and Mrs Pilcher's title of no. 2 when this was registered in May 1996 and against Ms Handley and Mr Andrews title of no. 3 when this was registered in March 1998. The documents filed for the judicial review do not indicate when the owners of no. 4 acquired their title and it was not possible to identify whether that registered title also retained the registration of the original right of way when title was registered for those owners.
17. The owners - no. 1. Gerald and Fay are a retired couple with two adult children. Gerald has been in poor health for some years and in the early part of 2013 had a life-threatening illness from which he has gradually recovered. When Gerald and Fay acquired no. 1 in March 1990, they did so for themselves and both their children who were then adults. Andrew was by then in a relationship but, as he described in a witness statement filed in the county court action and dated 15 May 2009, his lifestyle at that time was such that he moved into no. 1 with his parents. He was a joint registered proprietor because he was a guarantor of his parents' mortgage of no. 1 and he was also living there. In April 1994, he moved in with his partner although he returned periodically to live with his parents. He and his partner had four children, the younger two were born in 1996 and 1998 and were aged 11 and 13 in 2009. His partner died in February 2003 and since September 2003, he had lived in Swanley, Kent with his 4 children. He, and more particularly his children, were frequent visitors with frequent sleepovers with Gerald and Fay. However, Andrew died on 22 July 2013 and the two older children moved into accommodation on their own near to their paternal grandparents and the two younger children moved in with their paternal grandparents.
18. The owners - nos. 2 and 3. Until about 2006, the owners of nos. 2 and 3 had made no complaint of which Gerald and Fay were aware about the continuing existence or inability to use the right of way or that the alternative way was both a right of way and was blocked up. Mrs Pilcher in a witness statement filed in the county court action in November 2008 and Mr Andrews and Mr Pilcher in witness statements filed in April 2009 accepted that they were aware from the moment that they moved into their respective cottages that the right of way remained registered on their respective titles but that it had not been used and had been unusable for many years and that the alternative way was only available with the permission of Gerald and Fay but did nothing about this for many years after they had moved in until 2 December 2006 when Mr Pilcher wrote to Gerald and Fay and requested their agreement to keep clear the legal access through their property and his solicitors wrote to them on 19 April 2007 alleging that the registered right of way should not be obstructed by parked cars or locked gates.
19. The witness statements disclosed a significant dispute between Gerald and Fay on the one hand and the owners of nos. 2 and 3 on the other with regard to the frequency with which the alternative way was used. Neither Gerald nor Fay could ever remember any of the four owners using the alternative way in the years prior to 2007 whereas Mrs Pilcher state that the Pilchers used it 12 times a year and the IPs about 8 times a year, in neither case were the purposes for this use identified.
20. The owners - no 4. The present owner Mr Cullinan of no. 4 have never used any access through nos. 3, 2 and 1. Mr Cullinan however was supportive of the IPs' claim and has now joined in with the compromise and the consequent registration of a new right of way across nos. 2 – 1.

Part (2): Applicable law

21. Relevant substantive law. The underlying claim involved a claim for injunctive relief seeking the re-opening of the registered right of way or, in the alternative, of the legal easement along the alternative way arising from a grant as an adjunct to the closing or extinction of the right or way.
22. The right of way was registered on first registration of each of the 4 cottages, in each case on various dates in the 1960s. An understanding of the claim made by the IPs requires a consideration of the alteration in conveyancing practice since the Land Registration Act 2002 came into force. This Act built on the scheme for land registration that was initiated in 1925 by simplifying and making compulsory throughout England and Wales the registration of title and charges such as easements and rights of way coupled with the establishment of an adjudicator scheme which has now been transformed into a first-tier tribunal in the Tribunal structure. The effect of this scheme is that any legal right of way has to be registered and, if not registered, is not enforceable against the servient owner. If the legal right of way was created before 2002, it overreaches what was registered on first registration but it has to be registered once its existence becomes known. Furthermore, any amended overreached right of way must be registered. Registration is achieved on application to the land registrar who must refer the application to the adjudicator – know the relevant first-tier tribunal judge who must either decide whether the relevant application should be registered or, in cases of particular difficulty, refer the dispute as to registration to the court – the Chancery Division or a specialist chancery circuit judge in a specialist county court.
23. In this case, the claim as originally framed and pleaded was not one that involved land registration since the IPs were contending that the original right of way as evidenced in the plan filed and registered in the land registry, was still in existence and should be enforced by way of injunction or declaration. However, the claim also pleaded as an alternative, a right of way that had not been registered, being the alternative way. It was obvious that this right of way was challenged by Gerald and Fay from the outset. Thus, the IPs could only enforce its use as such by first registering it and then, if necessary, seeking injunctive relief. The registrar would not have considered registering the application unless all affected parties – the owners of nos. 1 – 4 – all agreed to the application. It is clear that both Gerald and Fay and the Pilchers did not agree so that the registrar would have referred the application to the adjudicator. An alternative and much more expensive and cumbrous way forward would have been to seek a declaration from the court in a claim in which all the other owners of nos. 1, 2 and 4 were joined and, if a declaration binding all four sets of owners was obtained which declared the existence, precise route and terms of a right of way along the alternative way was made, that could be lodged with the land registry instead of a signed agreement and it would then have been registered as a right of way. The court would not have granted a declaration unless all four sets of owners were before the court.
24. In short, the IPs had one of two choices: to apply for registration of an agreed amended right of way in substitution for the existing registered right of way which was agreed to by all four sets of owners or which could be decided upon by the adjudicator or to apply for a declaration from a chancery court in a claim in which all four sets of owners were parties. If, and this was a big if, there was no existing agreed right of way whose existence and precise path and terms of use were also agreed, neither the court nor the adjudicator could assist since both only have the power to define existing right not to create new ones. In other words, the IPs would have been well-advised to attempt to agree with all four sets of owners that there should for the future be a right of way – whatever was the present position – and also agree the line and terms of use and then, if agreement could be achieved, obtain a signed agreed document recording that right of way and lodge that for registration with the land registry.
25. Judicial review. Judicial review will only lie in a case such as this where (a) there has been some fundamental departure from correct procedures; or (b) the judge refusing permission has acted in complete disregard of his duty^[1]. Since 2011, it is also necessary to consider the decision of the Supreme Court in relation to the analogous case of a refusal of permission by a judge of the Upper Tribunal to appeal to the Upper Tribunal a decision of the First-tier Tribunal^[2]. This decision has led to a new CPR, being CPR 54.7A(7). The decision and CPR 54.7A(7) both provide that permission to proceed will only be given if it is considered that there is an arguable case which has a reasonable prospect of success, that both the decision of the Upper Tribunal refusing leave to appeal and the decision of the First-tier Tribunal against which permission to appeal is sought were wrong and either the claim raises an important point of principle or there is some other compelling reason to hear the appeal.
26. It is clear that both strands, being those provided for in Sivasubramaniam and in Cart should be followed and I can summarise the effect of these decisions as they should apply to this case as follows:

(1) Both the costs decision of 25 March 2011 and the decisions refusing permission to appeal and to allow an oral reconsideration of that decision dated 12 October and 22 December 2011 were arguably wrong and the review of those decisions has reasonable prospects of success;

(2) In the original decision and the refusal decision there has been some fundamental departure from correct procedures or the judge refusing permission has acted in complete disregard of his duty^[3] such as to give rise to a compelling reason to hear the appeal or alternatively;

(3) The claim or substantive decision under appeal raises an important point of principle.

27. The IPs' claim. For the IPs' claim to succeed they had to show that:

(1) The original right of way had not been abandoned or discharged and that it was still be enforced despite the lack of clarity as to the changes that had occurred to its possible route and to the circumstances under which it would have to be used;

(2) The necessary changes that had occurred which had to be accommodated in a variation to the terms or conditions of use of the original right of way had been agreed by both the owners of the dominant and any servient land or were otherwise enforceable by way of waiver, estoppel or other means; and

(3) The original right of way remained sufficiently certain in its original, varied or amended state that it was enforceable by way of injunction; or

(4) The alternative way has been the subject of a grant, whether directly, by prescription or by way of a lost modern grant and that it is sufficiently certain that it is enforceable by way of an injunction; and

(5) The alternative way is enforceable by way of injunction even though it had not been registered as an overriding interest or legal right of way.

It will be seen that the IPs would have had a difficult, if not an impossible, task to succeed in their claim as originally formulated.

Part (3): Underlying dispute

28. The origins of the county court claim occurred in 2004 when Gerald started to park a small hay trailer close to the side wall of no. 1. The trailer was used to transport feed and hay for the goats that he and Fay kept. This occurred well over 20 years after what Gerald and Fay regard as the abandonment or extinction of the right of way and the initiation of the use of the alternative way and for at least 2 years after this, there was no complaint from Mr Andrews although on his case he had used the alternative way on a monthly basis. However, on 16 September 2006, Mr Andrews arrived in Fay's garden unannounced whilst she was field feeding her goats and aggressively demanded that she moved the trailer which he claimed was blocking his right of way. There were two or three similar incidents which caused Gerald and Fay upset and they fitted a padlock on the back gate into the garden from the road for security. The padlock was locked at night but kept unlocked during the day. Gerald ceased to lock the padlock once the dispute crystallised in 2007. The IPs do not dispute the dates or the incidents but contend that they had been subjected to a series of harassing incidents by Gerald and Fay involving name-calling and similar acts of unsatisfactory neighbourliness. Gerald and Fay denied these suggestions and complained of aggressive and anxiety-making acts directed against them and their two youngest grandchildren. Their evidence was that they felt compelled to report the most aggressive incident to the police.
29. The dispute was crystallised by an unannounced letter before action from a firm of solicitors, DWF based in Liverpool, dated 21 June 2007 which asserted that Gerald and Fay were blocking and interfering with the IPs' use of what was asserted to be the right of way – namely the alternative way – running along the rear of nos. 2 - 5 close to their rear walls. This was noted to be a change of position from the original right of way. The letter called for the reinstatement of the original right of way, the unlocking of the side gate and the removal of the obstruction caused by the hay trailer. Gerald and Fay consulted solicitors and a response was sent denying that there was any existing right of way and explaining that the alternative way was provided on application and was not a right. It was also stated that the padlock was now left unlocked and that the trailer was not parked so as to block any voluntarily provided access to the rear access way.

Part (4): County court proceedings

30. The claim. The IPs then instructed their current solicitors, Fleet Solicitors in Bristol. It is now apparent from the assessment of costs that this firm were instructed pursuant to the IPs legal expenses insurance policy on a conditional fee basis. The claim that Fleet were instructed to start was essentially a claim for an injunction requiring the opening up of the original right of way or, in the alternative, the opening up of the alternative way since that was a legal right of way granted in lieu of the original right of way. Damages estimated at being no greater than £15,000 were also claimed for the alleged nuisance caused by the blocking up and interference with whichever of these two rights of way were found to be the operative right of way.
31. A claim of this kind was a Chancery claim which could be brought in the county court. If brought in the county court, it would usually have been considered as one that should be transferred to one of the trial centres where a specialist circuit judge with Chancery experience would be assigned to the claim for both case management and trial. However, the claim would have failed unless the IPs could show that the original right of way was still capable of being enforced since, otherwise, the claim would have had to have had all four sets of owners to be joined to the claim and be bound by the judgment.
32. The pleadings. The claim was issued in the DCC on 3 April 2008. There does not appear to have been any detailed pre-action protocol letter that preceded it other than the somewhat rudimentary letter before action sent by DWF on 21 June 2007. The claim was simply pleaded. It claimed that the original right of way was still preserved albeit not in use and that the alternative way had been established as an alternative right of way. The IPs were, in consequence, entitled to injunctive and declaratory relief to enforce either of these rights of way and to declare the IPs' entitlement to them. Damages limited to £15,000 were also claimed for the nuisance arising from the obstruction of these rights of way.
33. The defence, drafted by Gerald and Fay's solicitors Brachers of Maidstone, was served on 15 May 2008. It contended that the original right of way was no longer in existence, was not registered against their title in the land registry, had been extinguished or abandoned, its obstruction had been acquiesced in by the IPs, it was insufficiently certain in its line and extent to be enforceable although registered and they were barred by laches to enforce it. The alternative way was not a right of way and had not, in any event and on the facts, been blocked up or interfered with.
34. The IPs' Part 36 offer. On 5 December 2008, the IPs' solicitors sent Gerald and Fay's solicitors a Part 36 offer which suggested that the IPs were will to be flexible in respect of the exact route of the route taken by the part of the path that links the right of way at the bottom of the gardens to the road. The offer was to the effect that a settlement should be reached in which Gerald, Fay and Andrew confirmed that a right of way subsisted at the bottom of the gardens of nos. 1 – 4, that they removed all obstructions along the route of this right of way, in return the IPs would abandon the use of the alternative right of way and that they would agree to any reasonable deviation in the part of the right of way that linked the path along the bottom of the gardens with the road. Finally, the parties were to prepare a joint statement to be submitted to the land registry confirming the existence and route of the right of way.
35. Gerald and Fay's solicitors replied on 8 December 2008 refusing the offer of settlement on the grounds that the IPs had no case for establishing the continuing existence of the existing right of way, that the owners of nos. 2 and 4 had not been joined into the proceedings, that the giving up of the alternative right of way had to be by deed to which the owners of nos. 2 and 4 were signatories, that the owners of no. 2 needed to co-operate with the proposed re-lined right of way and that there were no details of the negotiations if any that had already taken place with the owners of nos. 2 and 4.
36. The IPs' solicitors replied on 19 December 2008 that there was no need for a deed, that the original right of way should be brought back into use and that its width and route should be agreed. There was no need to bring the owners of nos. 2 and 4 into the proceedings since the IPs' dispute was solely with the owners of no. 1.
37. No thought had been given by the IPs or their solicitors of the need to join the owners of nos. 2 and 4 into the claim, of the difficulties that they would have of establishing an on-going entitlement to use the existing right of way and the alleged alternative right of way, of the advantage of applying to the land registry to register the varied right of way or the alleged alternative right of way rather than attempting to prove either of these in a 4-way claim in a chancery court, of the real likelihood that they could not prove the continuing existence of either right of way and that they would lose their claim entirely or of the desirability of seeking and obtaining the agreement of all four sets of parties to a joint application to the land registry. Equally, no thought appears to have been given to the powerful contentions made in the defence which were ones that the IPs would have difficulty in overcoming.
38. Following service by the parties of their allocation questionnaires, the claim was initially allocated to a district judge to be allocated to the appropriate track and for case management directions. The district judge, at the request of the IPs, on 17 March 2009, directed that a jointly instructed surveyor should prepare a survey plan of the topology of the properties and the line of the original right of way. The report of that surveyor, Mr Jackson of Glen Surveys Ltd, prepared 4 separate plans showing the actual or presumed line of the right of way drawn from the registered plans of nos. 2, 3 and 4 and the conveyance plan of no. 3. The survey concluded that there were large discrepancies between the present ground features and those shown on the historic documents that were mainly due to cottage extensions, possible movements of the rear garden fences into the neighbouring field and mapping anomalies. This survey report led to the claimants serving an amended particulars of claim which merely added a claim that the court should order Gerald and Fay to remove any existing obstructions preventing the use of the right of way. No amendment was made that dealt with the other obstructions on the other three properties along the route of the right of way, the changed topography of the gardens, the obliteration of the path some twenty five years previously or with the other difficulties referred to in the survey report.
39. On 16 June 2009, a trial window was set and further directions were given. The case then came before District Judge Glover at a CMC. Not long before the hearing, Gerald, Fay and Andrew had had to dispense with the services of their solicitors, having already incurred billed costs of £20,152.07 because they could no longer afford to instruct solicitors. As a result, Gerald and Fay took over the case and Fay represented them at the hearing with a McKenzie friend making a note for her.
40. The intervention of District Judge Glover. The PTR was then listed for hearing by District Judge Glover on 1 October 2009. The district judge had available to him the witness statements that had been served from Gerald, Fay and Andrew, from Ms Handley and Mr Andrews and from Mr and Mrs Pilcher, the joint survey report and the other disclosed documents including many of the relevant conveyancing documents. District Judge Glover had had considerable conveyancing experience whilst in practice and was an experienced district judge, immediately realised the problems confronting the parties. He realised that the IPs were contending for the enforcement of the original right of way that had very arguably been abandoned and were also contending for and seeking to establish an enforceable right to the alternative way as a right of way.
41. His initial view after his inevitably cursory view of the papers was that the IPs were unlikely to enforce the original right of way, had good prospects of proving that the alternative way was a legal but unregistered right of way but which the IPs would be unable to register as a right of way following the presently constituted litigation so that any victory by them would be a pyrrhic one achieved at great cost to themselves. He also realised the problem confronting Gerald and Fay of establishing that the original right of way had been abandoned without an alternative right of way being established. Overall, he realised that this was a small value dispute which neither party could afford in which the costs would swamp the benefits to both parties.
42. District Judge Glover informed the parties that it would be madness for the case to proceed further and he proposed that the surveyor should be jointly instructed with the cost of instruction split 50/50. The surveyor should be instructed to identify a possible right of way which would be as unobtrusive and as close to the original route as possible given all the uncertainties, altered boundaries and topography of that route. The route would then have to be acceptable as a new right of way to all four sets of affected parties. It would be shown on a plan which would be presented jointly by all those parties to the land registry and registered against the title of all four properties and the existing registration removed from the titles of nos. 2, 3 and 4. This proposal was put forward as a way of compromising the existing litigation and of achieving certainty for all affected parties.
43. District Judge Glover clearly explained to both parties, in the IPs' case through their legal representative at the hearing, that his proposed way forward was intended to enable the claim to be settled on terms that would enable a right of way to be registered with by the land registry and in a way that would mean that neither party had won or lost. He also made it clear that there could be no winner of the present action since it was not one that all relevant parties were party to or which could lead to a winner since although a right of way could be established, it could only be established with the consent of the affected parties. He then directed that the case should be stood out of the trial window list and adjourned the PTR to enable the parties to consider his suggestion and, hopefully, implement it.
44. Gerald described his and Fay's reaction to what they regarded as the wisdom displayed by District Judge Glover at that hearing in this letter which he sent to the IPs' solicitors on 10 October 2009. Gerald and Fay were, by then acting in person since they could no longer afford to instruct their solicitors. The letter contained this passage:

"From the pre-trial hearing on 1^st October 2009 which my son and I attended, it was quite clear that the directions given by District Judge Glover were that "a right of way" be provided for your client to use and we will abide by this ruling. It was also very clear from the directions District Judge Glover gave that the "right of way provided should deviate (where necessary) round any obstacles that may now be permanent fixtures on the ground in an effort to cause the least disruption."

The letter made it clear that the original path was a narrow unmade dirt track used mainly by coalmen, logmen and those ferrying large items, that the newly established right of way should be of a similar kind and used in a similar way and that its route should be drawn up by a surveyor to ensure that there were no future disputes.

45. The IPs' solicitors replied by identifying the IPs' costs to date as being £47,000, that Gerald and Fay should respond to a detailed notice to admit facts which accompanied the letter which, if admitted, should avoid an on-going dispute as to the conditions of use of the newly established right of way and that Mr Jackson should be appointed with the agreement of all four affected parties to advise on a sensible and practical route. The letter envisaged that a settlement could result from Mr Jackson's further report but only if agreement could be reached on the removal of restrictions as to its future use.
46. The IPs' solicitors then issued an application that Gerald, Fay and Andrew should answer the notice to admit facts. This application came before District Judge Glover as part of his box work. He did not deal with the application but instead issued directions to implement his previous proposal which the parties had received favourably which was intended to provide the means of enabling the parties to compromise the present proceedings.
47. He therefore issued directions on his own motion which did not address the notice to admit facts but which instead required the parties by 31 January 2010 to instruct jointly a land surveyor to provide expert evidence and that the instructions should be limited to:

"1(a) Liaising with the parties (and if possible) with the occupiers of nos. 2 and 4 Brands Hatch Cottages with regard to a mutually acceptable route for the existing right of way across the rear gardens of numbers 1 – 4 Brands Hatch cottages providing access to the road frontage.

(b) Identifying such route (if agreed) of the Right of Way on a measured plan suitable for eventual Land Registry registration.

(c) In the event that no single route can be identified that is acceptable to all entitled occupiers of Numbers 1 – 4 Brands Hatch Cottages, to provide an illustrated report setting out the issues that remain outstanding and to recommend the best possible route by way of compromise to be based as closely as practicable to the route shown on the original legal grant by conveyance. …

48. The cost of the expert land surveyor's fee shall be payable in the first instance by the Claimants and the Defendants on a 50/50 basis but thereafter to be costs in the action.
49. This order was made of the District Judge's own initiative."
50. The IPs' solicitors then arranged for Mr Jackson to be jointly instructed by all four sets of owners. He visited the site, discussed the matter with each of the affected sets of owners and produced a survey report and survey plan dated 24 February 2010. This informed all parties:

"I attended the site on Tuesday 9^th February 2010 at 3-5pm to liaise with all the parties concerned. The two claimants (at no. 3) and the three defendants (at no. 1) were in attendance during the negotiations, as were the occupants of no. 2 and no. 4 Brands Hatch Cottages.

The plan, which is numbered S0948A/1, shows the right of way route in red hatching across the rear gardens of nos. 1-4 Brands Hatch Cottages, which was discussed and mutually agreed with the occupants during my visit. The right of way was chosen as the best choice in favour of an alternative route along the rear of the cottages themselves, for the reason of privacy from their respective windows. The route was designed as a compromise to avoid existing obstacles in the Defendants' garden and hence it is not as straight as shown on the original grant by conveyance.

It is therefore my professional opinion that the agreed route is the most practical choice for the right of way because the gates for the eventual access between rear gardens already exist. However, the gates need to be left unlocked (although not necessarily left open) for reasons of free access and the route needs to be kept clear of vegetation and ground conditions suitable for pedestrian use."

51. The CMC then resumed on 10 March 2010. Unfortunately, there was a dispute about what District Judge Glover said might be the costs order if the case had to go forward to trial because it had not been compromised. This dispute was compounded by it being discovered subsequently that the recording facilities had failed to record the proceedings. However, this dispute not in fact relevant to what District Judge Glover had decided and directed. At the hearing, the IPs' solicitors informed the district judge that the proposed compromise right of way route had been set out on a plan which was suitable for registration in the land registry and that the owners of nos. 2, 3 and 4 had signed the plan to signify their agreement to it being registered as a right of way. However, although Fay had signified agreement to the original proposal at the previous PTR, Gerald, Fay and Andrew had not signed the proposed plan. Fay then explained that they agreed to the proposed route of the new proposed right of way but had not signed the plan because they had concerns about two matters. Firstly, the plan did not as such provide that the route should remain and kept open by all four sets of owners. Secondly, they considered that the route should only be available for use during the daytime and that the access gates could be locked at other times. This was for security reasons and because the use of the right of way was intended to be confined, as its historic predecessor was, to use for deliveries and removals of heavy items and other items such as waste and rubbish.
52. District Judge Glover showed understanding to Gerald, Fay and Andrew's position and said that he would give them a short period of further time to formulate their reservations in writing if they wished to pursue them. Otherwise the action would have to proceed. He therefore made the following order:

"1. If the defendants or any of them wish to object to the path of the new right of way proposed by Mr Jackson and shown on his plan and agreed by all other persons whom it may effect, he, she or they shall file at court and serve upon the claimant's solicitors written statements of their reasons for objecting for consideration b the Judge. The statements shall be filed and served by 4pm on Friday 23 April 2010. In default, the defence herein dated 15 May 2008 shall be struck out and the claimants may seek a declaration from the Judge that the rights of way recorded either upon the parties deeds or following an amended path and which may be in force by virtue of prescriptive rights have been superseded and replaced by the right of way shown on Mr Jackson's plan."

53. It can be seen that this order deals with two situations. The first was if Gerald, Fay and Andrew provided written objections to their agreement to the proposed plan. If they did so, these would be considered by the judge – by inference himself – and he would then give further directions for the future conduct of the action. The second was if Gerald, Fay and Andrew defaulted and did nothing. In that event, the defence would be struck out and the matter would have to proceed to trial to enable the trial judge to decide whether and if so what declaration of rights could be given. The order did not, however, deal with the third possible situation which was that all parties, including Gerald, Fay and Andrew, signed the agree plan. That was an understandable and correct omission since, if that happened, the claim would be compromised and the parties would not, strictly speaking, require an order at all.
54. There then followed a hiatus caused by Andrew submitting objections in time which stated that he had signed the plan and then submitting revised objections out of time which stated that he had not signed the plan (which was the case) and explaining his concerns at the lack of agreed detail with regard to keeping the right of way open and to limiting its possible use to daytime hours. Meanwhile, the IPs solicitors issued an application for summary judgment which they arranged to be listed with the adjourned PTR before a circuit judge. The application was issued on the basis that Gerald, Fay and Andrew had defaulted and had neither served objections nor signed the plan so that their defence had been struck out. This application was served so late that Gerald, Fay and Andrew had not had a chance to consider it so that the hearing before Judge Roberts on 19 July 2010 was adjourned on the day by Judge Roberts.
55. The adjourned hearing was, regrettably, not listed for hearing by District Judge Glover. Instead, it was heard by Deputy District Judge Wright. It was attended by Gerald, Fay and Andrew and by Ms Handley and Mr Andrews and their counsel Mr Mullis. At the outset of the hearing, the deputy district judge invited all present to go outside and see whether the dispute could be compromised since it appeared to her that there was a consensus that the proposed new right of way was acceptable. The parties went outside and Gerald, Fay and Andrew immediately stated to Mr Mullis that they were prepared to sign the plan and withdraw their objections. This was acceptable to Ms Handley and Mr Andrews. The original plan produced by Mr Jackson showing the proposed route of the new right of way signed by the other affected parties was in court and Gerald, Fay and Andrew signed it there and then.
56. Counsel then told Gerald, Fay and Andrew that he would prepare a draft of the order that would be needed to give effect to this compromise. He took a little time to draft it and he gave the draft to the three defendants to consider. The draft order was in the form of a consent order which provided for the defence to be struck out and for there to be summary judgment for the claimants "on their claim". However, the draft then recited a declaration that the claimants were entitled to a right of way as shown on the plan signed by the affected parties which was to be registered forthwith at the land registry along with the measured drawing. All obstructions on the line of the route of this right of way were to be removed and pending their removal, the "alternative right of way" could continue to be used. Those provisions were stated to be given by consent.
57. The draft and the consequent order also addressed the question of costs of the case to date and of the costs of the hearings on 10 March and 19 July 2010 which had been reserved by District Judge Glover and Judge Roberts respectively. These costs were to be dealt with by way of written submissions. These costs provisions were stated to be not by consent.
58. The order as drafted, signed by the parties and entered and issued by the court appears to envisage that there were some costs that the respective parties had incurred which were not covered by the compromise which included some of the costs incurred prior to District Judge Glover's hearing and order dated 10 March 2010 and the costs of both that hearing and the hearing on 19 July 2010. It did not occur to Gerald, Fay and Andrew at the hearing and when they were considering the terms of the proposed order and were consenting to it that what was being proposed by the IPs was that the IPs should recover the entirety of their costs of the action from the outset to its conclusion on an indemnity basis and that they should recover nothing for their costs both when their solicitors were instructed or subsequently. They thought that the IPs were contending that there was a small residue of costs not covered by the compromise that the IPs could recover from them. It was that contention that they objected to. The great bulk of both sides' costs they considered were covered by the consent order giving effect to the compromise and that their costs would be borne by themselves and the IPs costs would be borne by the IPs.
59. The parties returned to the deputy district judge with the signed consent order and its additional provisions as to costs. The order was dated 9 October 2010.
60. The IPs solicitors then arranged for a costs hearing although it was envisaged by the order dated 9 October 2010 that outstanding questions of costs would be dealt with on paper. The costs hearing was listed for hearing in front of Deputy District Judge Wright on 21 March 2011. To the considerable surprise of Gerald, Fay and Andrew, the IPs' counsel provided the deputy district judge during the hearing with a copy of the Part 36 offer without making copies available for Gerald, Fay and Andrew. It seemed to them that only the original offer letter and not the following two letters were provided to the deputy district judge. Counsel also informed the deputy district judge, without any evidence, supporting documents or attendance notes, that the IPs' solicitors had suggested a mediation to Gerald, Fay and Andrew's solicitors at the time of the part 36 offer and that that offer had been summarily dismissed by their solicitors. He then asked for an order for indemnity costs of the entire action from the date of the expiry of the Part 36 offer on the grounds that the IPs had succeeded in their claims, had recovered what they were claiming in its entirety and had bettered their Part 36 offer. He made little reference to the compromise or to the fact that the claim on which summary judgment had been granted was a different claim to the claim as pleaded since the latter claim was to enforce the new compromise right of way that had not previously been claimed whereas the pleaded claim was for the enforcement of a different abandoned historic right of way or a different more recently acquired right of way which had never been registered and whose existence was disputed. The deputy district judge was not prepared to listen to any objections to the costs order proposed by counsel from Gerald, Fay or Andrew, announced the order granting the IPs their costs in the terms proposed by counsel and stated that she would arrange for her detailed reasons to be sent to the parties subsequently.
61. The order as issued read as follows:

"1. The defendants shall pay the claimants costs including those reserved on 10 March 2010 and 25 August 2010 as follows:

a) On the standard basis from 3 April 2008 to 5 January 2009 inclusive.

b) On the indemnity basis from 6 January 2009 to 27 September 2010 (in light of the Part 36 offer made on 5 December 2008).

2. The costs shall be subject to a detailed assessment to enable the Defendants to have sufficient information to obtain advice upon them. …

5. The sum of £51,415 (being 60% of the base costs plus 50% of the claimed additional element) shall be paid by the defendants pursuant to CPR 44.3(8)."

62. It is that order and the subsequent refusal of permission to appeal that are now challenged in this judicial review.

Part (5): Decisions under challenge

63. Gerald and Fay are now seeking to challenge both the order of Deputy District Judge Wright dated 25 March 2011 and the two refusal orders of Judge Simpkins. Both of the latter orders are unreasoned. The first, dated 12 October 2011 read:

"Permission to appeal is refused. There was plenty of material for the deputy district judge to make the costs order she did and the appeal has no real prospects of success."

This decision does not address any of the contentions put forward by Gerald in his application for permission to appeal, in particular the contention that the claim had been compromised on the basis that both parties would pay their own costs and that the IPs had failed on their claim and had only been able to obtain a new right of way because all affected parties had agreed to that proposal outside the framework of the proceedings.

64. Gerald sought an oral hearing to enable him to renew his application for permission. For some inexplicable reason, the papers that he filed at the court were mislaid and he relodged a copy of his application. Despite lodging the papers on two occasions, Judge Simpkins ordered on 22 December 2011 that:

"I refuse (sic) permission to appeal by my order dated 6 October 2011. The order was dated 12 October 2011 and sent out on that date. The appellant has not requested a reconsideration and is now too late."

65. Although the claim seeks to challenge Deputy District Judge Wright's order, that is not the order that is actually being challenged since the claim correctly challenges the refusal of permission to appeal that order. If the latter challenge succeeds, the refusal decision will be set aside and the matter must then be returned to the county court for the permission application to be reconsidered. However, in deciding whether to grant permission to proceed to a judicial review and in deciding that judicial review, I must consider whether the proposed appeal in the county court against the decision of Deputy District Judge Wright's order has any prospects of success.

Part (6): Judicial review claim

66. This judicial review claim, which if successful is restricted to an order setting aside the refusal decision and directing that it be retaken by a judge at circuit judge level, is only available in exceptional circumstances. Judicial review procedure involves a two-stage process. Initially, a judge of the Administrative Court considers the claim and grounds of claim and the defendant's and any interested parties' acknowledgement of service and summary grounds of defence in order to decide whether to grant permission to apply for judicial review at a substantive hearing. If the judge refuses permission, the claimant is shut out unless he obtains permission in a renewed application which is made and decided at an oral renewed permission hearing by a judge of the Administrative Court. In both stages of the consideration of permission, the same test is applied. That is whether the claimant has reasonable prospects of success. Only those cases which are granted permission can then proceed to the second stage, being a determination of the application at a substantive hearing. This application is a renewed application for permission to apply for judicial review although, as explained later in this judgment, it has been turned into the substantive hearing so that this judgment is concerned with both the renewed permission application and the substantive hearing.

Part (7): Extension of time for filing the claim

67. I must first deal with the need to extend time for filing this claim. The claim for judicial review had to be filed, at the latest, within 3 months of Judge Simpkins' second refusal order dated 22 December 2011 but was in fact filed on 16 August 2011. Collins J in the paper refusal of permission refused to extend time from 22 March 2012 to 16 August 2012 but he had not been provided with a full picture of the background explanation for this delay.
68. There were three successive difficulties which Gerald and Fay cannot be blamed for. These were:

(1) Gerald was informed by the DCC counter staff that Judge Simpkins had refused an oral hearing because he had not been provided with a copy of Gerald's application for an oral hearing which had been filed in time with the court and that the application would be dealt with at the costs hearing listed on 25 March 2011. This was incorrect.

(2) On 25 March 2011, Deputy District Judge Wright informed Gerald that his correct course was to apply for permission from the Court of Appeal to appeal to the Court of Appeal and she stayed the costs proceedings pending that application being made. This advice was incorrect and the stay order was incorrectly made.

(3) The Court of Appeal declined to accept Gerald's application because it was one that the Court of Appeal had no jurisdiction to grant.

(4) In a letter dated 22 June 2012, DCC communicated the views of Judge Hammerton to whom the problems created by the erroneous advice received by Gerald had been referred. This made it clear that there was no question of either the application for permission being further considered by a circuit judge in DCC or for Judge Simpkiss's orders being appealed to the Court of Appeal.

(5) Gerald arranged for the filing of this judicial review within 2 months of receiving Judge Hammerton's conclusion or order which finally and conclusively stated that there could be no appeal from the original order of 25 March 2011.

69. In those circumstances, I will extend the time for filing this judicial review claim until 16 August 2012.

Part (8): Issues and claimants' and interested parties' contentions

70. On behalf of the IPs it was contended that the refusal decision was correct in upholding the reasoned decision of the deputy district judge which was also correct.

Part (9): Renewed permission application – discussion and conclusion

71. The judgment of Deputy District Judge Wright. This judgment was dated 21 March 2011 although it was a reserved judgment which was handed down after the hearing. The judgment, in summary, supported the costs order that had been made on the following basis:

(1) The judgment accepted and confirmed that the dispute was compromised and that the compromise was effected by the order made on 27 September 2010.

(2) The costs of the entire action were stated to be in the discretion of the deputy district judge. The judgment also concluded that the IPs had succeeded in the action and that the had only not been resolved without costs expenditure and the prosecution of the claim due to the intransigence of Gerald, Fay and Andrew. As a result, the IPs had to make all the running and they ultimately succeeded in their claim after a large sum in costs had been incurred.

(3) In consequence, the IPs were entitled to their costs for the entire action up to the date of the compromise.

(4) Furthermore, the claimants' part 36 offer had been unreasonably rejected by Gerald, Fay and Andrew and the IPs had succeeded in bettering the terms of that offer. In consequence, indemnity costs should be awarded from 5 December 2008 when the offer expired.

72. Fundamental errors in the judgment. The judgment suffers from the following apparent and obvious errors:

(1) It took no account of fact that the claim as presented in the particulars of claim was a very different claim from that for which summary judgment had been given by consent. The claim as pleaded sought to enforce the historic right of way against Gerald, Fay and Andrew in the form that had been granted in 1956 or as an alternative, the alternative right of way in the form that it was alleged to have been in at the date of the issue of the claim. The claimants contended that the historic right of way had been abandoned, destroyed or was unusable and that the alternative right of way was not a right of way at all but was a passage way that could only be used with their permission. The historic right of way remained registered, the alternative right of way had never been registered. The claim for which summary judgment was given was a claim to give effect to the terms of the compromise of the claim. This was to the effect that the agreement for a new and different right of way that had been reached with all four cottage owners would be registered in the land registry and would bind all four cottages and that the new right of way would discharge any permission or right to use the alternative right of way and would remove the registration of the abandoned, destroyed and unusable historic right of way.

(2) It took no account of the existence or terms of the compromise set out in the order dated 9 October 2010 and which was the foundation for the order of 21 March 2011. When those terms were construed against the factual background known to each of the five parties bound by the compromise, it was clear that its meaning was to the effect that no costs of the proceedings, whether incurred by the IPs or Gerald, Fay and Andrew, would be recoverable and that the only recoverable costs would be the reserved costs of two particular hearings. Those costs alone would be the subject-matter of a subsequent costs order and a judge would determine whether they were recoverable by either set of parties from the other set of parties.

(3) The Part 36 offer, in terms, did not cover the claim for which judgment was entered, it covered a different claim which had been abandoned and was no longer being pursued once the compromise had been entered. Moreover, the Part 36 offer was rejected on reasonable grounds that were articulated at the time it was made and which had not been answered.

(4) The conduct of Gerald, Fay and Andrew was not, from a close analysis of the history of the proceedings, other than reasonable and responsive. From an early stage, they had agreed to the principle of a new right of way, had co-operated fully with its ascertainment and had reservations, subsequently withdrawn, only as to whether the new right of way should be expressly limited on security grounds to deliveries and similar uses and to daytime hours.

(5) The defences advanced by Gerald, Fay and Andrew had good prospects of success. Moreover, the IPs' claim had been advanced on the basis that it had been precipitated by the unreasonable conduct of Gerald, Fay and Andrew and of their grandchildren even though there was no satisfactory evidence of any such conduct. Instead, there was good evidence of unreasonable conduct by the IPs in relation to their assertion of their claim over a lengthy period of time prior to proceedings being started.

(6) The most that the IPs could have achieved was a pyrrhic victory since they could not have obtained the injunction, declaration or damages that were claimed. This was because, the historic right of way had been abandoned or was no longer enforceable and the alternative right of way could not have been enforced because they had not joined the owners of nos. 2 and 4 into the proceedings, they could not have obtained a registrable right of way and the court would not have enforced an unregistered right of way.

73. Conclusion – Order dated 25 March 2011. Gerald, Fay and Andrew had good prospects of succeeding in having the order dated 25 March 2011 set aside and quashed and had and still have good prospects of obtaining an order to the effect that there should be no order as to costs if that appeal was to take place.
74. Order dated 12 October 2011. The decision refusing permission was solely based on the unparticularised assertion by Judge Simpkins that the Deputy District Judge's reasons were justified. These reasons were wholly inadequate and the refusal of permission was plainly wrong.
75. Order dated 22 December 2011. The decision refusing an oral review of the refusal decision was wholly unjustified and was based on the erroneous assertion that Gerald had not applied in time for an oral hearing of his application for permission. In fact, he had applied in time but his application was not provided to Judge Simpkins. Had the judge been aware of that application, he would inevitably have directed an oral hearing. At that hearing, permission to appeal would, or certainly should, have been granted.
76. The decision of the deputy district judge. The decision was taken in excess of jurisdiction, it fundamentally departed from correct procedures and it was taken in complete disregard of the deputy district judge's duty to take account of the claimant's contentions and the relevant facts of the case including the compromise agreement and the consequent order dated 9 October 2010.
77. Point of principle. This case also raises the important principle of what should be the effect of a compromise on a party's liability in costs where the compromise was facilitated and encouraged by the court in exercising its case management powers.
78. Overall conclusion. Permission to apply for a judicial review of the orders dated 12 October 2011 and 22 December 2011 should be granted.

Part (11): Substantive hearing and decision

79. There is no good reason to direct a substantive hearing. This is for three related reasons. Firstly the defendant DCC has not entered an acknowledgment of service or served summary grounds of defence, secondly in the analogous procedure in a Cart case there is never in practice a substantive hearing once permission has been granted^[4] and thirdly the court has the power to decide the substantive judicial review without a hearing where all participating parties agree^[5]. Since the DCC has no intention of participating in this judicial review and Gerald, Fay and Andrew have agreed to dispense with an oral hearing, I will here and now decide the substantive hearing. This is because there is nothing further that needs to be considered and the inevitable result of the hearing must be that the judicial review claim should succeed and the decisions of 12 October 2011 and 22 December 2011 should be quashed.
80. In consequence, the application to appeal the decision of 25 March 2011 must be redecided by a circuit judge sitting in the County Court.

Part (12): Transfer to Central London County Court - rolled up hearing

81. The parties should now endeavour to agree all outstanding questions of costs. Clearly, if the appeal succeeds, the costs order dated 25 March 2011 must be reconsidered. If the judge reconsidering that decision concludes that the compromise agreement included an agreement that each side should pay its own costs, the resulting costs order would provide for no order as to costs. If there was no such agreed compromise, the parties could claim their costs. Thus, Gerald, Fay and Andrew would seek to recover their claim for costs in excess of £20,000 and the IPs would seek to recover their claim for costs in excess of £60,000.
82. Gerald and Fay and the IPs should now consider and seek to agree that all cost claims should now be compromised and the overall dispute finally brought to a conclusion.
83. If the costs claims cannot be compromised, the county court claim and the charging order proceedings should be transferred to the Central London County Court and referred to a specialist Chancery judge who should hear the permission hearing with the appeal as a rolled up hearing. The assigned judge may first wish to hold CMC hearing but it will be for the assigned judge to decide that.
84. The DCC should forthwith transfer the papers, the claim and the charging order proceedings to the Central London County Court.

Part (13): Costs enforcement proceedings

85. I directed at the hearing on 3 December 2013 that there should be a stay of all enforcement proceedings including the charging order proceedings pending the ultimate resolution of the dispute about the costs order dated 25 March 2011. That stay should remain in place. It is clear that the proposed hearing in the DCC, on a date in July 2014, in relation to the charging order over Gerald and Fay's property is covered by that stay so that that hearing should not take place. The application that has been listed to be heard in DCC should be adjourned and transferred to the Central London County Court with the charging order proceedings to be heard by the assigned judge.

Part (14): Third claimant

86. Since Andrew is unhappily now deceased, his name is to be removed from the judicial review claim.

Part (15): Costs of the judicial review

87. Although the DCC took a conscious decision not to serve an acknowledgment of service or to participate in or be represented at the oral permission hearings, it is the defendant to the judicial review. It can in principle be liable for costs where one of its decisions has been impugned. However, a court or tribunal should not usually be held liable in costs where one of its decisions is set aside and certainly not when the error is not one which the judge or tribunal has not deliberately or maliciously erred. In this case, the judicial errors that occurred in refusing permission to appeal arose because of the erroneous way that the IPs put their case for costs to the deputy district judge. There shall therefore be no order as to costs against the DCC.
88. It is also possible to make an order as to costs against the IPs. Somewhat belatedly, but prior to the last and significant hearing, they served an acknowledgement of service and a witness statement setting out their case in support of the decisions being challenged and the costs decision of the deputy district judge from which these stemmed. These proceedings have arisen principally because of the way in which they and their legal representatives conducted those proceedings in the county court and I would have considered whether to make a costs order against them.
89. However, since the costs that Gerald and Fay might seek are as litigants in person, although significant in size, they would be a much less significant sum than would be sought had they been represented by solicitors and counsel. Moreover, the IPs were not represented and were therefore unable to respond to the costs application.
90. I propose to reserve the costs and direct that any application for costs in these proceedings by the first and second claimants against the interested parties should be made in writing within 21 days of the service of this order. The application and any supporting details should be served on the Administrative Court and on the interested parties' solicitors. The interested parties to have a further 21 days to serve any response on the Administrative Court and on the first and second claimants. The application is then to be decided by Judge Anthony Thornton QC..

Part (16): Conclusion and consequential order

91. The order will be as follows:

(1) The time for filing the claim form is extended until 16 August 2012;

(2) The first and second claimants be granted permission to apply for judicial review;

(3) The procedure that should be followed following the grant of permission should be analogous to the procedure now adopted for Cart applications;

(4) In consequence, the substantive hearing of this judicial review should take place and be decided forthwith;

(5) The decision following that substantive hearing is that the orders of the Dartford County Court in Case Number 8D01645 dated 6 October 2011 and 22 December 2011 should be set aside;

(6) Case Number 8DO1645 including any enforcement and charging order proceedings should be transferred by Dartford County Court forthwith from Dartford County Court to the Central London County Court located in the Royal Courts of Justice, Strand, London;

(7) The case should, if possible, be referred to a specialist Chancery judge of the Central London County Court. The judge to whom this case is referred should hear the application for permission to appeal the order dated 25 March 2011 as part of a rolled up hearing with the appeal against that order;

(8) The stay of execution of the costs order of Master Rowland dated 15 November 2013 ordered by the Administrative Court on 3 December 2013 should remain in place until discharged or varied by a judge of the Central London County Court on that judge's own motion or on application on notice to the first and second claimants;

(9) The stay of execution of the costs order extends to any outstanding or future applications in charging order proceedings relating to the said costs order;

(10) The name of the third claimant, Andrew Parkin, being the son of Mr and Mrs Parkin, who died on 22 July 2013, should be removed from the judicial review proceedings;

(11) As between the first and second claimants on the one hand and the defendant on the other hand, there be no order as to costs in this judicial review;

(12) As between the first and second claimants on the one hand and the interested parties on the other hand, costs are reserved; and

(13) Any application for costs in these proceedings by the first and second claimants against the interested parties should be made in writing within 21 days of the service of this order as follows:

(i) The application and any supporting details should be served on the Administrative Court and on the interested parties' solicitors within 21 days of the service of his order;

(ii) The interested parties to have a further 21 days to serve any response on the Administrative Court and on the first and second claimants; and

(iii) The application for costs is then to be referred to and decided by Judge Anthony Thornton QC.

HH Judge Anthony Thornton QC

1 July 2014

Note 1    See Sivasubramaniam v Wandsworth County Court [202] EWCA Civ 1355 and Gregory v Turner [2003] EWCA Civ 183 at paras. 38 – 45.    [Back]

Note 2    See R(Cart) v The Upper Tribunal [2011] UKSC 28; SC and CPR 54.7A(7).    [Back]

Note 3    See Sivasubramaniam v Wandsworth County Court [202] EWCA Civ 1355 and Gregory v Turner [2003] EWCA Civ 183 at paras. 38 – 45.    [Back]

Note 4    CPR 547A(9).    [Back]

Note 5    CPR54.18.    [Back]