QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|(1) Gerald Gordon Parkin
|(2) Fay Pamela Parkin
|Dartford County Court
|- and -
|(1) Kirsten Ann Handley
|(2) Mark Stephen Andrews
The defendant was served with the claim but has not filed an acknowledgment of service and was not represented
The Interested Parties were served with the claim, have filed an acknowledgement of service, were notified of the hearing but were not represented
Hearing dates: 22 May and 3 December 2013 and 12 March 2014
Crown Copyright ©
HH Judge Anthony Thornton QC:
(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
"… 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.
Part (2): Applicable law
(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 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.
(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
Part (4): County court proceedings
"From the pre-trial hearing on 1st 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.
"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. …
"I attended the site on Tuesday 9th 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."
"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."
"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)."
Part (5): Decisions under challenge
"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.
"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."
Part (6): Judicial review claim
Part (7): Extension of time for filing the claim
(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.
Part (8): Issues and claimants' and interested parties' contentions
Part (9): Renewed permission application – discussion and conclusion
(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.
(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.
Part (11): Substantive hearing and decision
Part (12): Transfer to Central London County Court - rolled up hearing
Part (13): Costs enforcement proceedings
Part (14): Third claimant
Part (15): Costs of the judicial review
Part (16): Conclusion and consequential order
(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