Strand, London, WC2A 2LL
B e f o r e :
| BOCARDO SA
|- and -
|(1) STAR ENERGY UK ONSHORE LTD
(2) STAR ENERGY WEALD BASIN LTD
Laurance Rabinowitz QC & Elizabeth Fitzgerald (instructed by Norton Rose) for the Defendants
Hearing dates: 23, 24, 25, 26, 27 and 30 June and 1 & 2 July 2008
Crown Copyright ©
Peter Smith J:
INVESTIGATION BY BOCARDO
COMMENCEMENT OF PROCEEDINGS
A NUMBER OF OBSERVATIONS
THE STATUTORY REGIME
"A right of airway, shaft way or surface or underground wayleave or other right for the purpose of access to or conveyance of minerals or the ventilation or drainage of the mines."
"(2) the compensation or consideration in respect of any right, including a right to enforce restrictions, shall be assessed by the Court on the basis of what would be fair and reasonable between a willing grantor and a willing grantee, having regard to the conditions subject to which the right is or is to be granted."
THE HYPOTHETICAL NEGOTIATIONS
ASSESSMENT OF PRINCIPLE OF COMPENSATION
THE RYDER DECISION
"32 postponement of limitation period in case of fraud, concealment or mistake
(1) subject to subsection (3) and subsection (4 A) below, where in the case of any action which a period of limitation is prescribed by this Act either:-
(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the Defendant;………….
The period of limitation shall not have begun to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or with reasonable diligence have discovered it.
Reference in this subsection to the Defendant include references to the Defendant's agent and to any person through whom the Defendant claims and his agent
(2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstance in which it is unlikely to be discovered for sometime amounts to deliberate concealment of the facts in breach of that duty"
"For myself, I do not find it absurd that the effect of section 32 (1) is to afford to the plaintiff a full six-year period of limitation from the date of the discovery of the concealment. In such a case, the plaintiff must have been ignorant of the relevant facts during the period preceding the concealment; if he knew of them, no subsequent act of the defendant can have concealed them from him. If the defendant then deliberately take a step to conceal relevant facts ( a step which is by ordinary standards morally unconscionable if not necessarily legally fraudulent) it does not seem to be absurd that a plaintiff who has bee prevented by the dishonourable conduct of the defendant from learning of the facts on the basis of which to found his action should be afforded the full six-year period from the date of the discovery of such concealment to bring his action. Certainly, that consequence is far less bizarre that the result of the construction favoured by the majority of the Court of Appeal  2 WLR 999 under which a plaintiff's right of action can become time barred before he even becomes aware of the relevant facts, his ignorance being due to the deliberate concealment of such facts by the defendant."
"I do not consider that the expression "breach of duty" includes any legal wrong doing whatsoever. In my judgment there must be a legal wrong doing of a kind that can be properly raised in action to which section 32 applies. I will call this the "wider meaning" of "breach of duty". Thus the expression "breach of duty" would not cover legal wrongs which are not justiciable, for example target duties. But may also not cover breach of duty owed by a public authority which can be the subject of judicial review proceedings at the instance of a person who is not directly affected thereby but who has a sufficient interest for the purpose of standing in public law. I would not wish to be taken to proving the view that any such actions fall within section 32, at least without further argument"
QUANTIFICATION OF THE CLAIM