LORD JUSTICE RIX: There are before the court two applications arising out of proceedings by Mr Robert Dearnley against the National Trust (“the Trust”) as first defendant and Guildford Borough Council (“the council”) as second defendant which came to trial before HHJ Reid QC on 20 June 2005. Both applications are for permission to appeal against each of those defendants separately. The application against the council has been adjourned to this court by Gage LJ, with an appeal to follow if permission is given. The application against the Trust is simply at present an application for permission to appeal.

These applications arise out of Mr Dearnley’s claim against the Trust and the council arising out of the constant flooding of his tenancy at Burpham Court Farm near Guildford, flooding caused by the river Wey, and the circumstances in which that tenancy was let to him under a tenancy agreement from the council of 9 December 1991. On 20 June 2005, on the opening day of what had been set down for a five day trial, the first thing that happened before the judge was that a number of applications were made by each of the parties concerned. The judge dealt first of all with applications from the Trust and the council (principally from the Trust), but there was also hovering in the wings an application from Mr Dearnley to amend his case against the council. In essence, up to that time his case against the two defendants had been: in negligence and nuisance against the Trust on the basis of what was alleged to be their negligent misoperation of two weirs, which misoperation Mr Dearnley alleged was causing the constant flooding of his farm; but in misrepresentation against the council, leading to his taking his tenancy.

The Trust had brought in the Environment Agency as a part 20 defendant. Experts had been appointed by Mr Dearnley, the Trust and the Agency, but not by the council. Their reports were exchanged in late May 2005, about one month before trial, including a joint report arising out of agreements made at a joint meeting of those three experts. That joint report, which I think was drawn up on 24 May arising out of meetings of 12 and 20 May and which I think was served on the parties on 25 May, included these two paragraphs, amongst other agreements.

As a result of those documents, the council appreciated that for the first time there was the possibility that it, as well as the Trust, was being blamed for flooding, indeed for flooding carrying with it pollution, as well as, or apart from, allegations of negligence and nuisance against the Trust. The council drew up and served its own formal application notice dated 8 June 2005 in consequence, asking for permission to file and serve further evidence:

Thus, even before an application on the part of Mr Dearnley to amend his statement of case against the council, the council had on its own side appreciated, as a result of the service of those expert reports to which I have referred, that there was a new point and a new case being raised against it. In this respect Mr Dearnley was second in the field. He made a less formal, but written, application to the court dated 15 June 2005 in which he stated that, in the light of disclosure and the reports of the three expert witnesses, he wished to add that the council be held liable for damages (in addition to his case of misrepresentation against it) -

On the first morning of the trial, when the existence of Mr Dearnley’s application was introduced to the judge by counsel for the council, Mr Lewsley, and when the judge turned to Mr Dearnley and invited him to make any applications he had, Mr Dearnley as a litigant in person sought to make his application to amend, but ended up agreeing with the judge in effect that his case against the council was in misrepresentation only. The question which arises under the first of the applications before us, that against the council with appeal to follow if that application is granted, is whether the judge was wrong to find that the only case being made against the council was in misrepresentation. He went on that day to consider a preliminary issue as to whether any case in misrepresentation could survive the fact that the tenancy agreement, the subject matter of which it was said had been misrepresented to Mr Dearnley, had been made as long ago as 1991, and therefore whether all the claims in misrepresentation were wholly time-barred. The judge so found on the preliminary issue. This court, through Gage LJ, has already considered Mr Dearnley’s application for permission to appeal from that preliminary issue, and permission has been declined. So Mr Dearnley’s misrepresentation case against the council failed at trial, and in these appellate proceedings. Gage LJ however separated out the argument in Mr Dearnley’s notice of appeal that the judge had failed to take account of a case outside misrepresentation, namely his intended new case against the council based on flooding and pollution.

At any rate, so far as the trial before the judge was concerned, the council bowed out on the first day following the preliminary issue and took no further part in the trial. The judge went on to consider the case for negligence and nuisance against the Trust. The trial proceeded for the five days which were set aside for it. There were further hearings in December 2005 and February 2006. In all, the trial took ten days and the judge handed down his lengthy judgment on the claim against the Trust on 3 April 2006. That is the subject matter of the second application before us.

In order to prepare the ground for both those applications a little further, let me say something about the nature of the difficulties in the area of Burpham Court Farm. The River Wey contains a statutory navigation which goes back at least to the 17^th century, and the navigable part of the river proceeds in an area near to the farm between two weirs both of which are operated by the Trust. What I will call the upper weir, because it is the upstream weir, is a weir not only operated by the Trust but also owned by it. It is also called in these papers for that reason the Trust’s Weir, and its name is Old Bucks Weir. The downstream weir, which I will call the lower weir, operated by the Trust but owned by the Agency and therefore also called the Agency’s Weir, or Bowers Weir, is only I think some 500 metres or so downstream from the upper weir. The channel or navigation between the two weirs is in effect a canalised river, sometimes referred to as the new river. The old river, however, had gone on a detour of a mile and a quarter or more, in a loop first through Mr Dearnley’s farm and then into other territory before it rejoins the canalised new river at or just below the lower weir.

A problem that has arisen apparently increasingly over the last ten or fifteen years is that water passing through the upper weir, when its gates are opened, and down the loop, as I shall call the old river’s detour, has given rise to repeated flooding of the farm. Mr Dearnley’s case was that this flooding was not inevitable, but was caused by the negligent operation of the two weirs and their gates. His case was that if the gates of the lower weir were opened before the gates of the upper weir were opened, or at any rate were opened closely contemporaneously with the opening of the upper weir, then sufficient water would pass down the navigation directly to and through the lower weir so as to spare the loop of that amount of water otherwise diverted into it by a full channel in the navigation so as to spare the farm from flooding.

With that introduction I think I can return to the first application with which I will deal, which is that concerning the council and the dispute which has arisen over Mr Dearnley’s application to amend in the immediate run-up to trial. In the course of hearing applications from the Trust and discussing those applications, to which the judge was amenable, Mr Lewsley on behalf of the council introduced to the judge the subject matter of the application to amend which he was anticipating from Mr Dearnley. I have already stated above the essential background to Mr Lewsley’s anticipation of that application. In essence he and his clients had already anticipated it even before it arrived, by their own application of 8 June; and it came along on 15 June. Thus Mr Lewsley said at page 6 of the transcript of proceedings on that morning on 20 June 2005:

There was then some discussion as to whether the Trust could extend its case by application without prejudicing the council’s position vis-à-vis any such anticipated application from Mr Dearnley. In that context the judge did raise the question of whether there was in any event available to the council an argument that it was too late for Mr Dearnley to raise a case of flooding against the council in circumstances where, as the council was informing the judge, it had not considered it necessary to appoint an expert witness for itself on the subject matter of flooding. I will come back to that question in a moment. There came a point, on page 16 of the transcript, when the judge turned to Mr Dearnley and said:

I should explain that, unfortunately, Mr Dearnley’s application of 15 June arrived at the Trust’s solicitors just too late for them to include it in the bundles which they had the carriage of preparing for trial in the light of the fact that the claimant Mr Dearnley was a litigant in person. Therefore Mr Dearnley’s application was never included in the court bundles. There is no sign in the transcript before us that the judge had ever seen that application, presumably as a result of it not getting into the bundles. Mr Dearnley may or may not have been aware of that fact. But in any event, the unfortunate position is that he did not seek to ensure that, when he was addressing the judge on the subject matter of his application to amend, the judge had squarely in front of him his application and the basis of it, namely the experts’ joint report. Looking at the passage which I have just cited from the transcript at page 16 of the manner in which Mr Dearnley introduced his application, it is with hindsight easy to see that Mr Dearnley was intending to introduce his application to amend. But I do not think that the true nature of that application would have been clear to the judge, in the absence of being taken to the documents in question.

In the end, as matters continued to be discussed between the judge and the parties in front of him, the question arose as to whether, despite the manner in which Mr Lewsley had sought to anticipate Mr Dearnley’s application to the judge, it looked to the judge as though Mr Dearnley’s case against the council remained essentially, if not exclusively, in misrepresentation. The reason for this may have been that, in Mr Dearnley’s own mind, as he has demonstrated again today in his submissions to this court, his new case in flooding against the council was tied up as well in a new case of misrepresentation which he was anxious to put before the judge. This was because there had already been discussion in court as to whether his claims in misrepresentation were time-barred, and were liable to be struck out at the beginning of the trial if the judge ordered a preliminary issue on the question of limitation in claims of misrepresentation. Even though the misrepresentations of which he was complaining (such as that there was nothing to worry about flooding at the farm, that the farm was suitable for use as an organic farm, and other such misrepresentations) went back of course to 1991 and the time of his tenancy agreement, nevertheless Mr Dearnley believed that if his knowledge of the falsity of the misrepresentations that he was complaining about only came to him within six years of his claim, which was brought on 19 August 2004, he had nothing to fear from limitation.

With that in mind, and his anxiety to make the point that in respect of his claim against the council about flooding there was a new case in misrepresentation as well, which he did not know about until very recently, Mr Dearnley as a litigant in person found himself riding two horses at the same time. The fact is that, instead of seeking to explain to the judge with clarity that whatever might be the case in misrepresentations old or new, there was a separate case in flooding and pollution brought against the council, he got himself into a muddle between the two points instead of keeping them separate. As a result of that muddle, and the judge’s ignorance of the documentary basis of Mr Dearnley’s application to amend, the judge formed the view in the course of submissions that Mr Dearnley’s case against the council remained in misrepresentation. That appears, for instance, in discussion between the judge and Mr Lewsley at page 19 of the transcript.

There comes a point, at page 23 of the transcript, when the judge turns back to Mr Dearnley and says this:

Then a little later, at page 28, Mr Dearnley said this to the judge:

The upshot of all this was that the judge formed the view that Mr Dearnley’s case remained a case in misrepresentation and not otherwise, and that therefore it would be sensible to hear a preliminary issue on the question of whether such a case in misrepresentation could survive the time bar. The judge went on to consider that preliminary point and, as I have already indicated, decided it against Mr Dearnley.

Mr Dearnley now submits, very much with the help of Gage LJ at the earlier hearing of this application, and also, it may be said, with the help of pressing questions which we have put to Mr Lewsley representing the council, that this was all very unfortunate and that the judge had erred in thinking that Mr Dearnley’s only case was in misrepresentation and had overlooked that there was a claim to amend otherwise. Mr Lewsley has faced close questioning in the court on that point, the court seeking to assist Mr Dearnley in putting to Mr Lewsley the points that he would wish to have put on his behalf on this issue.

Ultimately Mr Lewsley’s submissions come to this. It was certainly not the council’s fault that there was any misapprehension on the part of the judge about this matter. The council had sought through Mr Lewsley to tell the judge about the anticipated application to amend. It had repeatedly tried to steer the judge to appreciate the existence of that application, and it was ultimately Mr Dearnley’s own responsibility, with that preliminary assistance from Mr Lewsley, that if he had an application to amend it was one that he must then advance and make clear to the judge. For reasons which I have sought to explain, Mr Dearnley both tried to make it clear to the judge and also discussed his intentions. I think that that is unfortunate, because I think that at the end of the day there was a misapprehension, but it was in no way the fault of the council. Mr Lewsley in my judgment had acted in the best traditions of counsel facing the responsibility of acting against a litigant in person, in seeking to draw to the judge’s attention the existence of this application to amend in the wings. If the judge did misapprehend what was potentially there to understand about an application to amend, it was ultimately Mr Dearnley’s own responsibility.

Speaking for myself, I am wholly willing to extend to Mr Dearnley as a litigant in person a great deal of leeway, but the question remains, what is the proper course for this court to take in the circumstances which I have sought to describe above; a misapprehension of the judge, not caused by the council, which Mr Dearnley was not an experienced or flexible enough advocate to realise was happening, at a time when he had been invited, as he knew, to make the application which he was there to make. In these circumstances, the court is of course concerned above all to do justice between the parties. There has been a misapprehension, but the ultimate responsibility for it is Mr Dearnley’s. But Mr Dearnley is a litigant in person.

In the meantime, the opportunity for trial that was there on 20 June has been lost. In the meantime, the argument which would have been addressed to the judge, if the judge had appreciated that there was a case in nuisance to be made outside misrepresentation, has been lost. Mr Lewsley would have submitted, as there had already been some discussion before the judge even before Mr Dearnley made his application, that if such an application was made there would be irredeemable prejudice to the council because it would find itself with a flooding case made against it in circumstances where it had no expert witness. The indication is that the judge might well in his discretion for that reason have disallowed such an amendment on the very first day of trial. With hindsight one can debate about that matter. I have in mind that it was the council’s own choice to employ no expert witness. It decided to run its defence, that there had been no relevant representations, and that if there had been any such relevant representations there had been a reasonable belief in the truth of them, without an expert dealing with the subject matter of the flooding.

It seems to me that that might have been a risky strategy even upon the basis that there was only a case in misrepresentation. But it may be that the council calculated that two experts, gunning, as it were, against Mr Dearnley’s position on flooding, in the form of the Agency’s and the Trust’s experts, were enough. At any rate, that was the decision it took. It could possibly have gone against it. Moreover, if the judge had been able to anticipate that the trial could not have been finished within the five days at his disposal (not much more than four and a half days, when these preliminary matters had been dealt with) the judge might have concluded that, late as it was, the council could get up to speed in time. The judge might also consider that the expert witness that the council had already prepared (although the judge did not get as far as learning about this) in the form of its general manager responsible for relevant affairs would have sufficed, or at any rate would have held the fort pending the employment of a further independent expert. All those matters would have been argued before the judge, but in the event, because of the misunderstanding which occurred, they were not. If the judge had understood the application in all its ramifications, and had decided in his discretion as a matter of case and trial management that it was too late and too prejudicial to the council for Mr Dearnley to introduce an amendment in nuisance, then I suspect that there would have been nothing whatsoever that Mr Dearnley could have said about that in appellate proceedings. He would have been dealing with the judge’s exercise of discretion, not with a matter of law.

On the other hand I bear in mind that, as things have fallen out, the trial against the Trust is at an end. There is nothing that can be done now if Mr Dearnley’s case against the council is to be reinstated for the purposes of hearing a claim in nuisance, and therefore it is not a question of, as it were, keeping up with a trial timetable. There would be time for the council to instruct any expert which it wanted to instruct. I bear in mind all these considerations. But ultimately I have been persuaded by Mr Lewsley’s submission that it would not be just to throw this litigation against the council back into the melting pot of a trial as of 20 June last year, in circumstances where there is nothing to stop Mr Dearnley commencing new proceedings, if he wishes to do so, based upon a case of nuisance against the council. It is true that for these purposes limitation would start as of now, but for these purposes Mr Lewsley accepts, and I regard his acceptance of this matter in the form of a stipulation, that Mr Dearnley would have at least six years backwards from the issue of fresh proceedings for him to complain about nuisance against the council.

I also bear in mind for these purposes, for reasons which I will explain in a moment, that Mr Dearnley’s application for permission to appeal against the Trust from the lengthy trial against it has, as the court has already indicated in outline without giving reasons for the moment, been dismissed. So there is no possibility, if Mr Dearnley’s case against the council is put back to the position it was in on 20 June 2005, of that case being joined up in any way again with a case against the Trust. Mr Lewsley also accepts on behalf of the council, and again I regard his acceptance of this matter in the form of a stipulation, that there is no question whatsoever of the council hereafter saying against Mr Dearnley in any new proceedings which he brings against it on the basis of nuisance that that was a matter which ought to have been raised in the August 2004 proceedings, so that an attempt to do so in subsequent proceedings is an abuse of court or falls foul in some way of the Henderson v Henderson principle.

So, the position is that Mr Dearnley has his remedy of bringing fresh proceedings. It takes him back certainly six years. If it takes him back no further than six years, the only consequence of him not being able to resurrect the earlier proceedings is in all probability the loss of a year between June 2005 and June 2006. It may be that if the former proceedings were resurrected and taken back to the position as of 20 June 2005, Mr Dearnley would also have had an argument that, if he were permitted to amend in those proceedings, his amendment would relate back to the beginning of those proceedings, a further ten months earlier. At most that would give him another ten months, but in all probability he would have a difficult argument to extend his freedom from time bar back that extra period.

Therefore, it seems to me that in circumstances where the unfortunate misunderstanding of the judge is in no respect the responsibility of the council or Mr Lewsley, but is ultimately the responsibility of Mr Dearnley, albeit a litigant in person, in circumstances where there is no chance of joining a claim against the council with the former claim against the Trust, in circumstances where Mr Dearnley can bring new proceedings and take them back six years at least for the purposes of limitation, the fair way to proceed, given the unfortunate misunderstanding that has occurred, is to leave Mr Dearnley to his new proceedings if he chooses to bring them. In any event, even if the old proceedings had been put back on foot as they were on 20 June last year, Mr Dearnley’s case would have had to have been properly pleaded. It would have been a matter for the judge to whom the case would have been remitted (presumably HHJ Reid) to consider whether the pleadings which ultimately came forth were to be allowed – although the principle of a claim in flooding or nuisance would have been dealt with by this court – and therefore in truth no time would have been gained. No preparations in the old case would have been recovered. It was a new case which had barely got off its feet. Inasmuch as Mr Dearnley, in any fresh proceedings, seeks to rely upon the joint report of the experts in the last proceedings, he has that available to him. So it seems to me that the fair result is to remit him to new proceedings.

I have said enough to indicate that our view is, if my Lord agrees with me in the disposition which in my judgment should take place, that there has been enough in this application to merit Mr Dearnley permission to appeal, so that we have been treating this as his appeal, and not a mere application to appeal; but for the reasons which I have sought to give, the appeal fails.

MR JUSTICE PETER SMITH: I agree.

LORD JUSTICE RIX: I turn therefore to Mr Dearnley’s application for permission to appeal against the Trust. In this respect we have Mr Dearnley’s grounds of appeal, which are supplemented by detailed written submissions and also by his oral submissions in court today. His oral submissions have concentrated on essentially two points. One is the height of the new gates of the lower weir, which were installed in 1996 and which he submits prevented water flowing down the navigation to an extent which the old gates (pre-1996) did not do, and this because of their new and greater height. His second point was really a wrapped-up plea that it was negligent of the Trust to pass water around the loop, rather than down the navigation towards and through the lower weir. His written grounds and submissions, however, go further than that, and it is necessary that I should say something about them. But before I do so I should say something about the judge’s judgment. I have already said that the essential issue against the Trust was a complaint that they negligently misoperated the two weirs by failing to open the lower weir gates before, or at least contemporaneously with, opening the upper weir gates. Allied with that was the complaint that they opened the upper weir gates more fully than they need have done. All of this led to water being diverted around the loop.

The judge considered this case in his detailed judgment, running to just over 200 paragraphs. He considered with care all the material that had been put before him in the lengthy trial. In an early passage he considered the witnesses of fact one by one. He referred to Mr Dearnley as his own principal witness of fact. He said that his evidence had been coloured by his perception of being unfairly treated by the council. He found him, perhaps for that reason, prone to exaggeration and on occasions simply wrong. He referred to the witnesses of fact tendered by the Trust, for instance to Mr Maiklem who had been the previous tenant of the farm prior to 1991 and who did not suffer, the judge found, from flooding in the way that Mr Dearnley complained of doing, but who the judge found had maintained the farm to a degree that was better than Mr Dearnley’s maintenance. The judge also heard from a Mr Parkes who had until recently been the weir keeper and lengthsman responsible for the relevant stretch of the river; from a Mr Locatelli who was the maintenance foreman of the navigation; and from other weir keepers and other managers of the navigation. He also heard from a Mr van Beesten who was the Operations Team Leader for the Agency.

The judge referred to the expert witnesses. He described in detail the areas of agreement, but where they disagreed he preferred the evidence of the Trust’s and the Agency’s witnesses to that of Mr Mackey, Mr Dearnley’s expert witness. He said that Mr Jameson, the Agency’s witness, had the great advantage of having known the area of the Wey with which the case was concerned for some 37 years. He said that Mr Reilly’s approach was perhaps more academic, but that it was a useful complement to Mr Jameson’s more practically-based approach. He found their slightly different approaches equally valid and that they came effectively to the same conclusions. Mr Mackey, on the other hand, was by professional experience less qualified than the other two in the areas with which the case was concerned, and Mr Mackey also accepted that this was the first occasion on which he had dealt with a navigation. The judge found that Mr Mackey also suffered the disadvantage that, in part, his evidence was based on factual instructions or deductions from Mr Dearnley which the judge found to be inaccurate.

The judge went stage by stage through the argument. He had chapter headings, as it were, describing the farm, describing the Wey navigation historically and contemporaneously. He described what I have called the upper weir and the lower weir. He rejected Mr Dearnley’s case that the new gates installed in the lower weir in 1996 remained materially higher than they had previously been. He found that the new gates installed had been higher, but that this had been noticed at the time of their installation and that they had been cut down to within one inch of their old height. He said that there was no substantive evidence to support Mr Dearnley’s case to the contrary and that the contemporaneous correspondence relating to the new gates was inconsistent with Mr Dearnley’s case. Mr Dearnley had also submitted that there had been a flood relief sluice which had been closed up, but he rejected that case despite the evidence of the admittedly patently honest Mr Slater (relied upon by Mr Dearnley) who had cast his mind back to his childhood swimming days.

The judge had a chapter on river and ditch maintenance in which he gave detailed findings about the superior maintenance that Mr Maiklem had performed to that of Mr Dearnley. He then had a chapter on the capacity of the loop, in which he found that the capacity had declined during the period of Mr Dearnley’s tenancy from 14.3 cubic metres per second to 10 cubic metres per second. He then considered the operating procedure which the weir keepers used, the 1992 agreement made between the Agency or its predecessors and the Trust, and the guidelines which flowed from that 1992 agreement, and to the extent that there were disagreements about what the agreement and the guidelines required, or how they should properly be interpreted, he found in favour of the Trust rather than in favour of Mr Dearnley’s submissions.Indeed, in the course of this chapter he recited the fact that Mr Mackey, Mr Dearnley’s expert, had accepted in cross-examination that the practice of fully opening the upper weir gates before opening the lower weir gates was best practice. So that was the agreement on that subject of all the experts.

He then had a chapter headed “The Trust’s Water Management System” in which he found that the Trust operated a proper system in all respects. He then turned to describe the extent of the experts’ agreement, which included agreement that lack of maintenance of ditches inhibited the evacuation of water after an inundation event, that there were no known complaints concerning regular flooding from minor events as opposed to major events until after Mr Dearnley’s arrival in 1991, and that the problems now arising were because of changes in maintenance as well as through increased urbanisation leading to greater and faster run-off. He recited the experts’ agreement that there were relatively simple measures, such as clearing the river channel and reinstating the elevated river bank flap valves on outfalls and clearing ditches and streams, which would greatly reduce the frequency of inundation. The Trust, of course, was not concerned in any aspect of maintenance. The case against the Trust related to the operation of the weir gates. The judge dealt at paragraph 124 of his judgment with a provisional solution that the Trust was willing to institute for some three months to give Mr Dearnley a good opportunity to carry out maintenance on his farm and clear his ditches and thus increase the capacity of the loop. There were further chapters about the possibility that was raised of decreasing the depth of the navigation.

The judge dealt at length with the relevant law which he held to be essentially found in Leakey v National Trust[1981] QB 485 and in Allen v Gulf Oil Limited[1981] AC 1001 as well as in the older cases referred to in those leading modern decisions. He concluded from this consideration of the law that at the end of the day the case both in negligence and in nuisance against the Trust came down to a question of negligence. Were the Trust negligent in the operation of the gates? If they were negligent, then they would be liable both in negligence and in nuisance. But if they were not negligent, then they could not be liable in either negligence or in nuisance, because in the absence of negligence they had a statutory immunity for creating any nuisance that occurred.

The judge then applied that law to the facts by asking himself the question whether there was negligence on the part of the Trust and in that critical section of his judgment, from paragraph 161 to paragraph 175, the judge found that Mr Dearnley’s case failed. If I cite the last few of those paragraphs, from 168 to 173, the substance of his decision is there contained. As I have indicated, there was a great deal of detail and care that lay behind these final conclusions. The judge said:

In the light of that judgment, what are Mr Dearnley’s submissions in support of his grounds? His first ground is a ground of law. He submits that the judge applied the wrong standard of care in this case and that the proper standard of care is that set out in the Allen v Gulf Oil decision. The answer to that is that that is exactly the standard of care that the judge utilised. He cited the Allen case and the Leakey case. He indicated that from opposite ends of the same problem the answer was to be found in negligence, in the sense that a defendant was not liable in nuisance if he had done all that he reasonably could and should do on a non-negligent basis.

The second ground of appeal that I will take is one of law, again. That is that the judge erred in his remark in paragraph 168 of the judgment about the common enemy rule in any event entitling the Trust to move excess water downstream by opening its weir gates. It seems to me that the judge might be wrong in saying that the common enemy rule would provide a defence if the Trust had been negligent, but if the Trust had not been negligent it seems to me that the common enemy rule ultimately is another way of reaching the same answer. In any event, the judge’s reference to the common enemy rule was just a passing remark in a single sentence in paragraph 168, in the course of dealing with Mr Dearnley’s claim essentially on the Allen/Leakey basis of negligence.

I turn then to all the other grounds of appeal, which without exception are grounds of appeal based on fact. The position in the case of an application for permission to appeal sought on a basis of error of fact is that it is necessary to show a realistic case that the judge has erred in fact. The ultimate test at an appeal would be that the judge was shown to have erred, in the sense that it could plainly be shown that he was wrong.

The first ground of fact raised is that the judge had failed to consider whether the Trust should have diverted flood waters away from the loop. The judge did not fail to consider that question. Inasmuch as that was a reference to the temporary expedient which the Trust had indicated it would be prepared to put into place over some three months or so to give Mr Dearnley a chance to put his house in order, the judge expressly dealt with that and rejected it as a long-term solution. He pointed out, in my judgment entirely correctly, that the Trust in performing its statutory duties had no obligation on a permanent basis, or any other basis than that of seeking to help Mr Dearnley, to impose upon their statutory obligations connected with the navigation of the River Wey or to prefer Mr Dearnley’s interests over all the other interests that it had to consider, such as keeping the navigation safely open.

Mr Dearnley’s next ground of fact was that the Trust had been negligent, and therefore had committed a nuisance, because the capacity of the loop was simply too small. That raised all the general factual issues which were answered by the judge, and in any event glossed over the important findings that the judge made in respect of Mr Dearnley’s lack of maintenance and the manner in which that had caused the capacity of the loop to fall from 14 to 10 cubic metres per second over the relevant period.

Mr Dearnley’s next ground of appeal based on fact was that connected with the height of the new 1996 lower weir gates. That is the one point on which Mr Dearnley has addressed most of his oral submissions today. He has sought to show, by reference to plans relating to the 1996 changes, and indeed to the original plans for the weir back in the 1930s, that the new weir gates installed in 1996 were in truth much higher than anyone had possibly imagined, and that this could be inferred and proved from the calculations to be drawn from a close reading of the 1930s and 1996 plans. The argument was developed in a most sophisticated way (with the assistance of Mrs Dearnley, who has some accomplishments as a mathematician) by reference to the plans in a way that had not been put before the judge, although the preliminaries of the argument had been attempted to be put before the judge by reference to two manuscript documents which Mr Dearnley showed us, and which he had sought to use, after the first adjournment during the December 2005 hearing, to develop this argument that the new 1996 gates were much higher than anyone had thought they were, so that even after they had been reduced – as they were, and as Mr Dearnley accepts they were, in 1996 after their first installation – they still remained massively higher than they had been prior to 1996. However, the judge declined to accept new documents put before him for this purpose or to hear the new argument, on the basis that that was a case which, if it was going to be made, should have been addressed in June and could no longer be made in December. This was no doubt tied up with the fact that the opportunity to deal with these matters with the relevant witnesses had passed by.

So, quite apart from the judge’s holdings on this subject, which go entirely against Mr Dearnley, there is buried in this ground of appeal a case management decision made in the judge’s discretion which would make it, in my judgment, entirely inappropriate for Mr Dearnley now, in this court, to seek to build still further upon his new case which the judge declined to permit to be brought into the trial in December 2005. It seems to me that in any event it is highly improbable that, whatever errors may originally have been made in scaling or defining the height of the new gates installed in 1996, there could possibly have been an outstanding error remaining after those new gates were reduced in size, which could have left the gates materially higher than they had been before their installation in 1996. These were, after all, new gates in an established weir, and it seems to me in the highest degree improbable that those gates could have been – as Mr Dearnley suggests – some nine or ten inches higher, even after they had been reduced in height, than they had been before the 1996 change. This would have been obvious to everyone.

Mr Dearnley’s next ground of appeal in fact was that the judge was wrong to find that Mr Dearnley could have prevented the flooding by his own better maintenance of his ditches. It seems to me that there is no basis upon which the judge’s detailed findings on this subject, contained at paragraphs 116 to 119 of his judgment, which are after all based upon the experts’ agreement, could be challenged at appeal.

Mr Dearnley’s next ground of appeal is that the judge was wrong to say that flooding could not be prevented by the Trust. That goes into the question of whether the judge was justified in saying that the Trust was entitled to operate the opening of the gates in their non-negligent way, giving effect to competing interests and not simply to Mr Dearnley’s interests. It seems to me that, for all the reasons he gave, the judge was entirely justified in coming to the conclusion that he did and that there is nothing in Mr Dearnley’s grounds of appeal to show that there is a realistic prospect that the judge had erred in that respect.

Mr Dearnley’s next ground of appeal was that the Trust were negligent in opening the gates of the upper weir all at once; but there he again runs into the judge’s clear findings in this respect at paragraphs 104 and onwards, in particular paragraph 105, where the judge finds that he is satisfied that in general the weir keepers do operate in accordance with the written document and when they depart from it, it is because in their judgment at the time it is necessary for them to do so. The guidance given is that first half a gate and then one full gate, then two full gates, of the Trust’s Weir should be opened, and only after that should the Agency Weir gates be opened. So the judge’s finding was that, save on rare occasions, the weir keepers did follow the written documentary guidance which they had, which was for a gradual opening of the upper weir gates. It seems to me that there is no realistic prospect of success of appeal on that ground of fact either.

The next ground of appeal is that the judge should not have accepted the previous tenant, Mr Maiklam’s, evidence about clearing the ditches in his time. But that again runs up against the judge’s clear findings to the contrary.

There is finally an application to admit new evidence. This was tied in to that ground of appeal which was concerned with the height of the new lower weir gates installed in 1996. The new evidence that Mr Dearnley seeks to adduce in that respect is evidence of people living in the area that in times gone by the lower weir was a roaring weir, always having water pouring over it, and that in modern times because of the higher weir gates, as Mr Dearnley submits, the roaring weir has fallen silent and has no or next to no water passing over it. It seems to me that there was no reason whatsoever why such evidence could not have been obtained at trial, therefore it fails the first of the three Ladd v Marshall tests. The evidence is essentially anecdotal. The inferences to be drawn from a roaring weir at one time and a non-roaring weir at another time are in no way obvious. One comes back to the critical aspect for which this new evidence is sought to be used, which is to show by a matter of inference that the new 1996 lower weir gates must be higher than the old gates, thus leading to the fact that water no longer pours over them. But, for reasons which I have already sought to explain, there is no prospect of success on that ground.

For all these reasons, into which, out of deference to Mr Dearnley, I have gone at some considerable length, it seems to me that there is no prospect of success on an appeal against the Trust. Mr Dearnley should understand (and it is something which I might have mentioned earlier in this judgment) that I am not permitted to give permission to appeal unless there is a realistic prospect of success on appeal on the grounds indicated, or some other compelling reason why permission should be given. For the reasons which I have sought to explain, it seems to me that there is no realistic prospect of success on an appeal against the Trust and there is no other compelling reason why permission to appeal should be given.

Therefore this application for permission to appeal against the Trust must be refused.

MR JUSTICE PETER SMITH: I agree.