A2/2004/2727, A2/2004/274, A2/2004/2745(C)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(MR JUSTICE HART)
Royal Courts of Justice
Strand
London, WC2A 2LL
B E F O R E:
LORD JUSTICE WALLER
LORD JUSTICE JONATHAN PARKER
LORD JUSTICE MOSES
FEAKINS AND ANR
Appellants
-v-
DEPARTMENT FOR ENVIRONMENT FOOD AND RURAL AFFAIRS
Respondents
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MR NICHOLAS DOWDING QC and STEPHEN JOURDAN (instructed by Burges Salmon) appeared on behalf of the Appellants on the Claim and STEPHEN JOURDAN (instructed by Burges Salmon) on the Counterclaim
MR NICHOLAS CADDICK AND SARAH LEE (instructed by DEFRA Legal Department ) appeared on behalf of the Respondents on the Claim
MR NEIL GARNHAM QC, SARAH LEE, PAUL HARRIS and SARAH STEVENS (instructed by DEFRA Legal Department) appeared on behalf of the Respondents on the Counterclaim
J U D G M E N T
LORD JUSTICE WALLER: For the reasons given in the judgments handed down, the order made by Hart J, dated 26 November 2004, will be varied so as to reinstate the tenancy as reflected in paragraph 1 of a draft order produced by the parties. There is a point on the date for reinstatement which will need resolution, and that aspect could be dealt with when we deal with the question of costs, to which I shall refer in a minute. But save for that variation, the appeal by the defendants against the order on the claim is dismissed.
So far as the counterclaim is concerned for the reasons given the appeal is allowed to a limited extent, so that the claimants, DEFRA, will pay to the second defendant the sum of £1,000 as damages for trespass committed by the permanent burial of material in the raised area referred to in the judgments. Save to that extent, the defendant's appeal against the order on the counterclaim is dismissed. So far as the claimant's appeal against the order on the counterclaim is concerned that appeal is dismissed.
The issue as to what the appropriate costs order should be in the circumstances I will adjourn, and a date should be fixed for argument in relation to that. Unless the matter is resolved as between the parties, it may need something in the region of two hours to argue that point. If the parties when they get a transcript of what I am saying disagree with that assessment of the time then they should communicate with the listing office so as to fix an appropriate time.
There is also an application for permission to appeal to the House of Lords. The parties may have the impression that that too would be adjourned. But the difficulty is that time for applying for permission to appeal to the House of Lords actually runs from the date of the handing down of the judgment and this court has no power to grant an extension of time for permission to appeal. I am thus going to refuse permission to appeal to the House of Lords so that time running as from today, there is no complication in issuing any application that the parties may wish to make for permission to their Lordships. I will give liberty to apply, and I would direct that a copy of the transcript of what I have said today should be provided to the parties.