JUDGMENT:
MR JUSTICE RAMSEY:
Introduction
01 This appeal concerns an order for possession made by Master Turner on 27 July 2006 under CPR Part 55 in the High Court. The claim relates to land at Stanhope Farm, Clapham,
02 The background to this claim is that the land at Stanhope Farm has been earmarked for development by the local Council and an application for outline planning permission has been submitted to the Council for development of 875 homes on the site. This, as might be anticipated, has led to local protests by people who are concerned about the environmental impact of this development.
03 on 28 May 2006, the First Claimant became aware that a group of about twenty protesters had set up camp and were building tree houses in an area called the
04 On this appeal there are three broad grounds of appeal which are relied on. The first is whether the action was properly commenced in the High Court, and that forms the original grounds 1—3 set out in the appeal notice. The second question is whether the Claimants have established title to the land at Stanhope Farm. That is original ground 4. Original ground 5 is not pursued. A new ground, ground 6, is put forward and this is as follows:
‘Further and in addition to ground 1, the Master erred, upon finding that the claim was defended on a ground which appeared to be substantial, to exercise discretion to adjourn the matter and give Directions in accordance with CPR 55.8.1 and 2, which resulted in a substantial procedural irregularity that rendered the decision unjust.’
05 Ground 7 is also added, which is that the Master erred in adjourning the question of costs generally in so far as it concerned persons who were not Defendants to the proceedings. That is a final but not major point in this appeal.
06 The order of Master Turner gave the Appellant leave to appeal, and as I read the judgment, that was limited to the first ground. Master Turner said this at para. 30:
‘As this may be regarded as a case of some significance in respect of the provisions of paras. 1.1 and 1.3 of the Practice Direction to Part 55, I will give permission to appeal’ and then set out Directions for the application to be lodged. In those circumstances, it seems to me that the only permission to appeal is one as to whether or not this action was properly commenced in the High Court. I shall therefore consider whether I should give permission under Part 52.11(5) on the other grounds when I come to consider those issues.
07 This appeal is by way of a review under Rule 52.11 of the CPR. As Lord Justice May pointed out in E I Dupont v S E Dupont [2003] EWCA Civ 1368:
‘Review is not to be equated with judicial review. It is closely akin to, although not conceptually identical, with the scope of an appeal to the Court of Appeal under the former Rules of the Supreme Court. The review will engage the merits of the appeal. It will accord appropriate respect to the decision of the lower court. Appropriate respect will be tempered by the nature of the lower court and its decision-making process. There will also be a spectrum of appropriate respect depending on the nature of the decision of the lower court which is challenged. At one end of the spectrum will be decisions of primary fact reached after an evaluation of oral evidence, where credibility is an issue, and purely discretionary decisions.. Further along the spectrum will be multi—factorial decisions often dependent on inferences and an analysis of documentary material.’ .
08 On this appeal, Mr Chariton has appeared for Mr Mutley, the Appellant, and Mr Wilson has appeared on behalf of the Respondent.
The appropriate Court
09 I turn first to consider Part 55 of the CPR and whether the High Court is the appropriate court. Part 55 of the CPR at Rule 55.3(1) states:
‘(1) The claim must be started in the County Court for the district in which the land is situated unless para.2 applies or an enactment provides otherwise.
(2) The claim may be started in the High Court if the Claimant files with his claim
form a certificate stating the reason for bringing the claim in that court verified by a Statement of Truth in accordance with Rule 22.1(1).
‘(3) The Practice Direction refers to circumstances which may justify starting the claim in the High Court.’
10 That Practice Direction under Rule 55.3 states as follows.
1.1: ‘Except where the County Court does not have jurisdiction, possession claims should normally be brought in the County Court. Only exceptional circumstances justify starting a claim in the High Court.
1.2: ‘If a Claimant starts a claim in the High Court and the court decides that it should have been started in the County Court, the court will normally either strike the claim out or transfer it to the County Court on its own initiative. This is likely to result in delay and the court will normally disallow the costs of starting the claim in the High Court and any transfer.’
1.3: ‘Circumstances which may in an appropriate case justify starting in the High Court are if … (3) the claim is against trespassers and there is a substantial risk of public disturbance or of serious harm to persons or property which properly require immediate determination.’
1.4: ‘The value of the property and the amount of any financial claim may be relevant circumstances but these factors alone will not normally justify starting the claim in the High Court.’
11 Master Turner dealt with these arguments at paras. 17-28 of his judgment. After setting out the provisions of Part 55, at para. 18 he summarised the evidence of the
First Claimant in his witness statement in the following way:
‘(1) The trespassers had made it amply clear that they intended to stay as long as it took to disrupt his plan for the development of the land. (2) The longer the trespassers remained on his land, the greater would be his financial loss both from the length of time that it would take to start the development, the repairs needed to his property, the disruption to his farming activities, and the cost of eventual eviction. (3) There was a need to complete the planning application by September.’
12 I pause here to interpose that this September time limit appears to have come from some comments made during the course of the last hearing. The current position seems to be that the application for outline planning permission has not yet been determined and is subject to further discussions as to a Section 106 agreement between the persons who have made the planning application and the local Council.
‘(4) The trespassers were damaging his fencing to the extent that he was having to repair the fences on a daily basis. (5) The trespassers had recently been bringing dogs on to his land and worrying his sheep. (6) The presence of the trespassers on the land and their constant crossing of the farmland to and from their access points was disrupting his farming activities.’
13 The Master continued at para. 19:
‘It is quite evident from the matters set out in para. 18 that all these matters are causing the Claimant serious financial loss and harm.
20: ‘The trespassers have made it clear that they do not intend to leave the land. It would seem that they have built substantial structures in the trees. I asked Mr Mutley
whether he and his colleagues would move or would they actively resist any attempts to be removed. His reply was that he would passively resist any attempt to remove him.’
21: ‘Mr Mutley pointed out on several occasions that they were peaceful people and concerned for the land. He denied that any of them had caused the damage that Mr Somerset complained of or that dogs had been brought on to the land.’
22: ‘As the Claimants had a right to have their land returned to them and have the trespassers removed, the issue was whether there was a substantial risk of public disturbance or of serious harm to persons or property as to justify this action having been issued out of the High Court. The Practice Direction is not limited simply to what has occurred to date but clearly contemplates what may happen in the future arising out of this trespass.’
23: ‘If an order for possession were to be made in the County Court, I am aware that the County Court bailiffs, though thoroughly competent in their routine work of enforcing the normal eviction and possession orders of their respective County Courts, would not have the resources or experience needed to carry out an eviction of the scale which would be necessary in this case. The County Court is subject, as indeed are all courts, to the severe budget cuts made by the DCS and the HMCS. Matters tend to take far longer in the County Court than in the High Court either in respect of the service of process, applications to judges, obtaining hearings or the enforcement of orders of the court. Bailiffs would not have the funding to carry out an enforcement on the scale as would be necessary in a case such as this. On the other hand, the four major firms of High Court enforcement officers are private organisations who are staffed with officers appointed by the court. They have had the experience of carrying out these evictions in similar circumstances such as at Newbury bypass and at
14 He then concluded, at para. 27:
‘For all these reasons, I am satisfied that there is a substantial risk of public disturbance during the eviction protest; that the past and future occupancy of this land has and will cause the Claimant serious financial loss; and that this is a risk to property; that damage will be done to their land and their livestock of a serious nature and that those involved in the eviction, be they the enforcement officers or the trespassers, will be at serious risk of harm.’
15 The grounds on which this decision was originally appealed appear at paras. 1, 2 and 3 of the Appellant’s notice. They are that:
‘(1) The Master erred in law by taking into consideration as a relevant matter as to whether or not there was a substantial risk of public disturbance or of serious harm to persons or property any circumstances surrounding any possible action that may or may not be taken by the Claimant in enforcing the judgment sought. (2) The Master’s findings of mixed fact and law that there existed a substantial risk of public disturbance or of serious harm to persons or property which properly required immediate action of the High Court was against the weight of the relevant evidence before the court. (3) The Master erred in law in accepting into evidence statements made by the Claimant’s legal representatives from the Bar table and without notice to the Defendants concerning the Claimant’s immediate plans for the development of the property.’
16 The question in this case in whether the Master was justified in the conclusion to which he came: that there was a substantial risk of public disturbance or or serious harm to persons or property which properly required immediate determination.
17 The issue is whether the Master was correct in coming to his decision on this question of the appropriate court. The Appellant submits that this is a matter which the court should determine at the hearing and the Master was wrong in coming to the conclusions which he did. The Respondents submit that the position is determined by the certificate which has to be given under Part 55.3(2) and that this should determine the position. It is attested to by a Statement of Truth and if that is not a correct Statement of Truth then various matters follow under the CPR. They also submit that the court can, under the Practice Direction para. 1.2, determine whether or not the matter proceeds in the High Court or the County Court on its own initiative. Otherwise, they submit that given the overriding objective in Rule 1 of the CPR, the court should not undertake a detailed investigation of the issue of the appropriate court. Finally, they submit, as an alternative, that if the court should undertake that detailed investigation then the Master was correct in the conclusions to which he came.
18 It seems to me that given the overriding objectives in Part 1 of the CPR, and the provisions of Part 55 of the CPR, the position can be summarised as follows. (1) The position is generally that possession matters are to be dealt with in the County Court, but that in exceptional circumstances they may be brought in the High Court. That is Practice Direction para. 1.1 and Rule 55.3 at para. 1.
(2) When proceedings are brought in the High Court, there must be a certificate. That is Rule 55.3(2). (3) If there is a certificate then the High Court proceeds on that basis, but it may decide that the County Court rather than the High Court is the appropriate forum. That is dealt with at para. 1.2 of the Practice Direction. (4) The decision whether the matter should proceed in another court is usually one which is dealt with by the court on its own initiative and would generally be made in obvious cases where the action has been brought in the wrong court. (5) Whilst the court always retains the right to transfer the action at any stage, it would normally proceed in seriously contested cases on the assumption that it was the appropriate court. (6) The grounds on which the matter can be brought in the High Court depend on there being exceptional circumstances. Those set out in para. 1.3 of Practice Direction under Part 55 are examples of such circumstances: See Rule 33.5.3
19 In my judgment, a discretion is given to the High Court in determining whether there are exceptional circumstances and, being an exercise of a discretion, this will normally be a matter with which a court will not lightly interfere on appeal.
20 In this case, under para. 1.3(3), it is clear that there is a claim against trespassers. They do not assert a right to title to any of the land or indeed a right to possession. They accept that they entered the land in order to protest against the potential development of the land.
21 The second matter is whether there was a substantial risk of public disturbance or of serious harm to property or to persons. These were findings which the Master made and in my judgment, having set out paras. 18(1), (2) and (4)-(6), they were findings to which the Master was entitled to come on the evidence. It is said that the Master was wrong to take account of matters which would occur only on enforcement. I do not consider that he was. The question is whether there is a substantial risk of disturbance. Where there are trespassers, it is a foregone conclusion that an order for possession should be made at some stage and will be likely to require enforcement. The sort of exceptional circumstances in which the High Court should have jurisdiction are those where there are substantial risks of the sort set out in para. 1.3(3) of the Practice Direction. This includes protesters who however well-intentioned would passively resist any attempt to remove them, as is accepted by Mr Mutley: see para. 20 of the judgment of Master Turner. Regrettably, however peaceful certain protesters are, as the Master observed in paras. 24 and 25, experience in carrying out evictions of protesters shows that there is a serious risk that persons involved, either the trespassers or others, or members of the public, will be injured. In any event, the Master’s conclusions on the other aspects well justify, in my judgment, the conclusion to which he came in para. 27. In particular, the matters which are set out in paras. 18(1), (2), (4), (5) and (6) . Therefore I am satisfied that the Master was right in the conclusions to which he came on that part of the case.
22 The question is then raised as to the meaning of the phrase ‘which properly require immediate determination’ in para. 1.3(3) of the Practice Direction. It is of note that in para. 55.3.3, where the Rule is summarised, that in addition to indicating that para. 1.3 contains examples, the authors of the notes have indicated that the word should be ‘requires’. It seems to me that the High Court is an appropriate place when, in particular, the claim is against trespassers and properly requires immediate determination. In this case, there was evidence before the Master that the September 2006 date was of importance, but in any event, in cases where the trespassers are present on somebody else’s land and there is no question of the determination of a right to that land, the question of possession properly requires immediate determination. I therefore consider that the decision of the Master that the matter should be dealt with in the High Court, which was essentially a matter for his discretion cannot be faulted. I do not consider that his decision can in any sense be said to be wrong. Cases such as the present are just those, in my judgment, which come within the exceptional circumstances where the High Court should accept jurisdiction.
The Claimant’s Title
23 I now turn to the next issue, which is the question of title. There is no dispute that the Claimants have good title to the land on the Castle Goring estate, which is edged in red, and that is the area which is currently occupied. The issue raised by the Appellant is whether the Claimants have good title to the land on Stanhope Farm, as the First Claimant says this is land by which those occupying Castle Goring estate have gained access. The Master decided this point in para. 15 of his judgment:
‘There was before me material as to the ownership of the land in dispute. It was suggested that the Claimants may have some defect in their title to this land. However, I am quite satisfied that they do have a good title, and certainly a better title than that which the Defendants might claim. Thus, as against the First and Second Defendants, the Claimants have a better claim to the land and as such they are entitled to seek an order for the removal of the Defendants from this land, where they are no more than trespassers.’
24 The Appellants challenge title to Stanhope Farm at para.. 5 of the Defence. They say:
‘The Claimants’ evidence as to title to Stanhope Farm is uncertain and not such as should be acceptable to the court. The Claimants exhibit a Deed of Conveyance dated 03 November 1982 the purported effect of which is to transfer title to the land from the Second Claimant to the First Claimant. However, the district in which the land is situated (
25 They then set out the background and rely on the fact that under the provisions of Section 123(a) Land Registration Act, if the matter is not registered, they say the conveyance is void and if it was registered then production of an official extract of title from HM Land Registry is the only acceptable evidence of title. On this appeal, Mr Wilson for the Respondent has pointed out that Section 123(a) Land Registration Act was substituted for the original Section 123 Land Registration Act in relation to dispositions made on or after 01 April 1998. It did not therefore apply to dispositions prior to that date, including the deed of 1982. He points out that under Section 19(1):
‘The transfer of registered estate in the land or part thereof shall be completed by the Registrar entering on the Register the transferee as the proprietor of the estate transferred, but until such entry is made, the transferor shall be deemed to remain proprietor of the registered estate, and where part only of the land is transferred, notice thereof shall be noted on the Register.
26 This means that on the evidence of the Deed and on the evidence before me, there was not registration, and the result of that is that the Second Claimant and not the First Claimant is the owner of the land. It seems to me that the Deed which has been presented, i.e. a Deed of 1982, is sufficient evidence for this court to establish that the Second Claimant had title to the land. The Second Claimant obviously derived title from a further Deed and doubtless there was an earlier Deed establishing title to the person who passed the title to that land. But the evidence I have from the First Claimant is that this land has been farmed by the family, the
27 On the present position, I consider that the Respondent has satisfied me that Stanhope Farm is in the ownership of the Second Claimant. In addition, I consider that if this ground is to be pursued by the Appellant, it would require permission to appeal on this aspect. If I were to grant it, then I can see no reason why, for the reasons I give in a moment, the Respondent should not be able to rely on the possession aspect. The reason being that the Master referred to the Claimants having a better title than that which the Defendants might claim: Thus, as against the First and Second Defendants, the Claimants have a better claim to the land and as such are entitled to an order for possession. t It seems to me that this formed an alternative basis for his decision in addition to the finding that there was title. I do not consider that the Master was therefore wrong in his decision that the Claimants, i.e. the First and Second Claimants, had better title or entitled to possession than the Defendants in respect of Stanhope Farm. I do not therefore consider that there are real prospects of success for the Defendants in respect of the title of the Claimants.
Adjourrnnent
28 The Appellants, however, raise a further point to which I now turn: the entitlement to an adjournment for further evidence. The Appellants contend that the Master should have adjourned the matter and given further case management directions. Under Part 55 at Rule 55.8(2), it provides that:
‘Where the claim is genuinely disputed on grounds which appear to be substantial, case management directions given under para. 1(b) will include the allocation of the claim to a track or directions to enable it to be allocated.’
29 I have been referred to the decision of Woolf LJ in Firemart v. Avery [19891 2 EGLR 177 where, in considering the former rules under RSC Order 113 and CCR Order 24, he said:
‘It is a summary procedure which can result in a Defendant being deprived of possession of property without the normal trial which takes place in contested proceedings. Having regard to the nature of the procedure, it is only in a limited number of cases that it is appropriate, in my view, to dispose of the matter as occurred in this case where the Defendants put forward a Defence which on its face raises a factual issue.’
30 In my judgment, Rule 55.8(2) reflects the decision of Woolf LJ in Firemart but two matters should be noted about Part 55. First of all, particularly in the case of trespassers, the application normally proceeds on the basis of written evidence only. Secondly, it requires a dispute on grounds which appear to be substantial rather than any dispute which is raised. In the present case, the grounds put forward are now those in para. 17(1) and 17(3) of the Appellants’ skeleton argument. The first is the claim being improperly issued in the High Court, and the second is lack of title to the land known as Stanhope Farm. The grounds put forward, therefore, raise the two matters with which I have already dealt. I do not consider that they can be said to be a substantial dispute on the matter as to whether or not this claim should proceed in the High Court. For the reasons I have given, the Master came to a decision which, in my judgment, was right, and in doing so indicated that a case such as this should proceed in the High Court. I do not see that any further evidence could go to that matter.
31 In relation to the title to Stanhope Farm, it seems to me that the evidence before me, as I have indicated, is sufficient to indicate that the Second Claimant has good title to Stanhope Farm. It is also clear that the First Claimant and the Second Claimant have possession of Stanhope Farm. Mr Chariton submits that the Appellants may be able to put forward some further evidence to show that other people have had possession of parts of Stanhope Farm. That evidence has not been put before me, and on the present evidence I do not consider that it can properly be said that there are substantial grounds to dispute the rights of the First and Second Claimant to possession of Stanhope Farm.
Costs
32 I now turn to the final point. That is that the Master erred in adjourning the question of costs generally in so far as it concerned persons who were not Defendants to the proceedings. The form of the order which the Master made was that the issue of costs be adjourned generally with liberty to the Claimants to restore in the event that they are able to identify one or more of the Defendants against whom a costs order might be sought and enforced. Mr Charlton submits that this type of costs order is inherently unjust and unfair in that there may be other people who will be embroiled in the question of costs who do not know about, the matter proceeding. Mr Wilson submits that this is a pragmatic order in circumstances where persons are unknown but might at some future .date become known. It seems to me that there are not the concerns which Mr Chariton puts forward. This is a case where the only way in which people could be involved in costs is if they were shown to be the people against whom this order for possession had been made, i.e. people who were trespassing on the land. In those circumstances, the proper order is one which allows an order for costs to be made at some future date if that is found to be the position.
33 In those circumstances, I find nothing wrong with the Master’s order. Therefore, despite all the matters which have been ably raised by Mr Mutley, and the persuasive submissions by Mr Charlton on behalf of Mr Mutley, the appeal against the order of Master Turner fails and is dismissed.
End of Judgment
