Campbell & Anor v William Banks & Ors

This is the judgment of the court on a renewed application for permission to appeal against the order made by David Richards J on 22 May 2009 after a 5 day trial of a right of way dispute affecting properties near Southport, Lancashire. There are also applications for an extension of time and for a stay pending appeal, which we grant. We refer only to the applicant, Mr Campbell, but record that at the hearing he spoke for his wife, as well as for himself.

Thomas LJ refused permission on the papers on 29 December 2009

The renewed application hearing, for which the applicant had sought a late listing time, lasted an hour and a half. It started later in the afternoon than was anticipated due to heavy listing of 2 other applications and a substantive appeal. The applicant did not want to miss his 6.30 pm train back to Lancashire, but was very concerned that he had not had enough time in which to develop all his points. As an unrepresented person with quite a complicated case on rights of way the applicant was under a disadvantage. He was assured, however, that the court would consider all his written submissions, as well as his oral arguments, before deciding the application. He was informed that he would be notified of the decision in a written judgment of the court. After arriving home safely the applicant sent to the court three more letters and enclosures (16, 17 and 19 April 2010).

We are satisfied that permission to appeal should be granted, though not on all of the grounds advanced as some of them have no real prospect of success.

The applicant claims a vehicular and equine right of way over two lanes - Headbolt Lane and Carr Lane – across neighbouring farmland owned by the defendants to and from properties acquired by them in June 1986 (16 Headbolt Lane, sold subsequently in 1996) and August 1988 (98 New Cut Lane). The lanes have been used as a means of access to the roads at New Cut Lane and Heathfield Road. The applicant used the premises for a stables business (The Alamo Stables). The proceedings were for injunctions and damages for alleged obstruction of the rights of way claimed.

We grant permission to appeal on two points. Though they are not without difficulties, they should not be finally decided at this stage. The applicant has persuaded us that the matter should go before the full court, which will have the benefit, which we have not had, of hearing the defendants’ response to them. It has not been possible for the court to work out for itself unaided the factual and legal position about express or implied grants of a right of way or the position about a public right of way.

The first point relates to the claim to a grant of a vehicular and equine right of way over the lanes. This will involve an examination of the documents, which are not complete. The judge rejected the applicants’ reliance on earlier title deeds for an express grant. He concluded that none was granted (paragraph 24). The applicant appeared to him and to us to rely not so much on words of grant in the 1953 conveyance as on the wording of the exception to the vendors. That argument would not assist the applicant.

We were more impressed by the reference to the sale particulars of the Scarisbrook estate of which the dominant tenement and the servient tenement were part, until there was subdivision on sale. The applicant raised the potential application of s 62 of the Law of Property Act 1925. The point may not have been raised at trial or considered by the judge because the applicant said that he did not have time to prepare for it before the trial started. He may be able to persuade the court that it can be raised on appeal, if no further evidence is required.

We give permission to appeal on the issue of the grant of a right of way either expressly or by virtue of s62, subject to the defendants’ possible objection that it is a new point, which it would not be just to raise for the first time on appeal.

Secondly, we give permission to appeal on the claim to a public pedestrian right of way over the lanes. The applicant claims to have unearthed new evidence, in maps and documents relating to the Surveyor of Highways, of a public right of way over the lanes. He says he relies on the maxim “once a highway, always a highway”. If the defendants object, the applicant will have to persuade the full court that it is just to admit it on appeal.

As for the other points raised by the applicant we decline to grant permission to appeal, principally because they involve challenges to findings of fact by the judge which there is no real prospect of overturning on appeal. The rejection of the claim to a private right of way based on long use resulted from the judge’s findings of fact. A related point that the judge had decided the wrong issue, as the claim was only to a pedestrian prescriptive right is misconceived for the reasons given by the judge. The case which the defendants had to meet was a claim for an equine right of way and the applicants had not dropped that claim (paragraphs 21 and 23 of the judgment).

The judge’s findings of fact leading him to reject the claim for damages for loss of business for alleged harassment of clients of the Stables is also very difficult to upset on appeal.

There were other factual disputes that the applicant seeks to argue on appeal, such as that the judge had been deceived by the defendants on the matter of the creation and position of the DEFRA permissive footpaths by a witness statement by Mr Bennett, whose evidence was relevant to the issue of permission in relation to the private right of way claim, and that Ann Ormerod, whose evidence was relevant to damages, had resiled from an earlier statement and changed her evidence as a result of witness interference. We have not been persuaded to grant permission to appeal on purely factual disputes.

We were told by the applicant that, although he and his wife had used solicitors on the purchase of the properties, they could not afford legal representation. They and the court are disadvantaged by the lack of professional representation. It appears that they have consulted a property lawyer since the hearing. In case it helps we draw to their attention the possibility of pro bono advice and representation via the Bar Pro Bono unit details of which are obtainable from the Civil Appeals Office and the CAB at the Royal Courts of Justice.

We also hope that it is not too late to explore the possibility of a settlement of this dispute and therefore direct the Civil Appeals Office to send to the parties details of the court’s mediation scheme. We point out that the granting of limited permission does not mean that the applicant will succeed at the hearing and that there is the prospect that further substantial costs will be incurred and may be ordered against the losing party.