Rights of light — Prescription Act 1832 — Obstruction notice registered under Rights of Light Act 1959 — Whether one-year period of notional obstruction commences on date of registration of notice accompanied by temporary certificate or date when definitive certificate granted — Whether custom of London precluded acquisition of right of light by presumption of lost modern grant — Whether validity of certificates challengeable in private or public law
The plaintiff
was a tenant under a long lease of a building and issued the proceedings
claiming it was entitled on the basis of the Prescription Act 1832,
prescription at common law and the presumption of a lost modern grant to rights
of light to the windows in the building over an adjoining site owned by the
defendant on which there now stands a further building. On August 12 1991 the
defendant registered a temporary obstruction notice under section 2 of the Rights
of Light Act 1959 accompanied by a certificate issued by the Lands Tribunal
under subsection (3) to the effect that by reasons of urgency no prior notice
could be given to adjoining landowners likely to be affected. The temporary
notice and certificate were expressed to expire within four months unless a
definitive certificate was lodged (which it was) within that time. The
plaintiff issued its writ in October 1992, more than 12 months after the
initial registration of the obstruction notice, but within 12 months of the
issue of the definitive certificate. The defendant applied to strike out the
action as an abuse of the process of the court or as disclosing no cause of
action on, inter alia, the ground that the writ had been issued more
than 12 months after the commencement of the notional obstruction, that
obstruction had been acquiesced in for more than a year without protest and
therefore rights of light could not be acquired under the Prescription Act
1832. The plaintiff contended that the certificates were defective and
therefore null and void.
out. Section 3(2) of the Rights of Light Act 1959 provides that where an
obstruction notice is registered accompanied by a temporary certificate, and a
definitive certificate is provided within the time specified, the notice has
effect for one year beginning with the date of its original registration, in
the present case August 12 1991, and not from some later date, such as the
registering of the definitive certificate. Accordingly, there had been a
notional obstruction of the rights of light for a period exceeding 12 months
and this defeated the claim under the 1832 Act. The claim at common law failed
because the building did not exist from the beginning of legal memory in 1189.
The claim under the presumption of a lost modern grant failed because of the
custom of London that a man may rebuild his house upon ancient foundations to
what height he pleased, even though ancient lights were stopped. The validity
of the certificates could only be challenged by judicial review proceedings
under RSC Ord 53.
The following
cases are referred to in this report.
An Bord
Bainne Co-operative (Irish Dairy Board) Ltd v Milk
Marketing Board [1984] 2 CMLR 584, CA
Angus v Dalton (1877) 3 QBD 85
Cocks v Thanet District Council [1983] 2 AC 286; [1982] 3 WLR 1121; [1982] 3 All ER 1135; (1982) 81 LGR 81, HL
Davy v Spelthorne Borough Council [1984] AC 262; [1983] 3 WLR 742; [1983] 3 All ER 278; (1983) 82 LGR 193, HL
Doyle v Northumbria Probation Committee [1991] 1 WLR 1340; [1991] 4 All ER 294
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112; [1985] 2 WLR 413; [1985] 1 All ER 533, CA
Lonrho
plc v Tebbit [1991] 4 All ER 973; [1992] 4 All ER 280, CA
O’Reilly v Mackman [1983] 2 AC 237; [1982] 3 WLR 1096; [1982] 3 All ER 1124, HL
Penwarden v Ching (1829) M&M 400
Perry v Eames [1891] 1 Ch 658; [1891–4] All ER 1100
Plummer v Bentham (1757) 1 Burr 248
Roy v Kensington and Chelsea and Westminster Family Practitioner
Committee [1992] 1 AC 624; [1992] 2 WLR 239; [1992] 1 All ER 705, HL
Wandsworth
London Borough Council v Winder [1985] AC 461; [1984] 3 WLR 1254; [1984] 3 All ER 976; 83 LGR 143, HL
Wynstanley v Lee (1818) 2 Swan 333
This was an
application by the defendant, Scottish Widows’ Fund & Life Assurance
Society, to strike out the claim by the plaintiff, Bowring Services Ltd, that
the defendant had obstructed rights of light to the plaintiff’s building.
Andrew Francis
(instructed by Freshfields) appeared for the applicant defendant; Stephen
Bickford-Smith (instructed by Alsop Wilkinson) represented the respondent
plaintiff.
Giving
judgment, Mr Timothy Lloyd QC
said: This action is brought by the plaintiff as tenant under a long lease of a
building known as Bowring Building and Bowring Tower, Lower Thames Street,
London EC3 (the ‘Bowring Building’). It claims to be entitled to rights of
light to the windows in that building over a site owned by the defendant on
which stands a building called Three Quays House, immediately to the south of
Bowring Building. Both buildings are within the City of London and just to the
west of the Tower of London.
Bowring
asserts its entitlement to rights of light alternatively on the basis of the
Prescription Act 1832, prescription at common law and the presumption of a lost
modern grant. A defence has not yet been served and the defendant applies to
strike the action out as an abuse of the process of the court or as disclosing
no cause of action.
I wish to
record my appreciation of the very clear and succinct way in which both counsel
presented their submissions in a case in which the subject-matter of the debate
ranged more than usually widely. Although the cases to which I will refer were
not all cited to me, those not cited are really of peripheral importance only.
As a result of counsel’s economy of argument, the hearing was concluded within
less than one day.
Rights of
light — the origin and scheme of the Rights of Light Act 1959
Under the
Prescription Act 1832, section 3, rights of light may be acquired by 20 years’
use, to which the only exception provided for by the section is the case where
the use of the light is by express consent by deed or writing. Significantly
for the present case, section 3 prevails notwithstanding any local custom to
the contrary.
By virtue of
section 4 of the 1832 Act however, one year’s interruption of the use at any
time, if acquiesced in, is sufficient to bar the right to light even if there
has been more than 20 years’ previous enjoyment up to that time. If, therefore,
there is a significant obstruction to light, which has been enjoyed in the
past, it is necessary for the person claiming the right of light to bring
proceedings before the end of 12 months of obstruction. Of course if, prior to
the obstruction, the person wishing to assert the right of light has had less
than 19 years’ use of the right, he will not be able to assert a prescriptive
right in an action brought before the end of a year of interruption. If before
the obstruction begins he has had a full 20 years of use, he can bring his
action at any time after the obstruction has begun. A special position arises
if, at the outset of the period of obstruction, there has been just over 19
years’ enjoyment of the light. At the moment when the obstruction begins the
person wishing to assert the right cannot successfully establish it because he
has not had 20 years’ use. However, immediately after the 20th anniversary of
the date when the building first started to enjoy the light, he can issue a
writ, so long as he does so before the expiry of a full year from the beginning
of the period of obstruction. Although he will not have enjoyed the right for
the last few months of the 20-year period, the obstruction which has, ex
hypothesi, lasted for less than a year before the issue of his writ, does
not count against his 20-year period.
If the person
who wishes to deny the right to light, or prevent it arising, is in a position
to put up a building, then, subject to practicalities, including, since 1947,
obtaining planning permission there is nothing to stop him doing so, unless
there is a legal remedy enforceable against him in respect of the right to
light. However, parties in that position came to wish to be able to establish
the position, and to see whether the obstruction would be acquiesced in,
without going to the expense of putting up an entire building. For that reason,
a practice arose of erecting a screen which would block out the access to
light, but which would not require the substantial expenditure and effort of
putting up an entire building. After 1947, however, planning permission was
required even for putting up such a screen. The need to obtain such permission
might delay the putting up of a screen until it was too late to prevent the
potential right to light maturing into a full prescriptive right and of course
there was always the possibility that the necessary permission might not be
obtained at all.
In the light
of these practical difficulties, as well as of the exacerbation of the problem
following bomb damage during the Second World War in London and elsewhere, a
committee was convened, presided over by the late Harman LJ, whose
recommendations led, in due course, to the passing of the Rights of Light Act
1959.
This Act
provides, relevantly, for a procedure for the registration of an obstruction
notice as a local land charge instead of the erection of a physical screen. The
obstruction notice constitutes a notional obstruction of light which, if
submitted to for 12 months, prevents a right to light from arising for the
following 20 years. It thus enables a party who is concerned to obstruct light
and to prevent a right to light arising, or to bar an existing right by
obstruction, to put in place an obstruction without the effort and expense, and
indeed the unsightliness, of a physical screen and without being dependent on
the vagaries of planning permission.
While a local
land charge will normally be discovered by a person who is interested in taking
a disposition of an interest in the relevant land by virtue of the usual
search, it will not normally be discovered, except by chance, by those who
already have interests in the relevant land. Accordingly, the Act provides
that, before an obstruction notice is registered, in the normal case, the
intention to register such a notice must be drawn to the attention of those
likely to be affected. In order to have a degree of independent supervision of
this, the Lands
certificate before the obstruction notice can be registered.
This
procedure, however, could give rise to difficulty in the situation in which the
dominant or potentially dominant owner is about to complete 19 years of use.
Once the 19 years has elapsed the person seeking to challenge the right will
not be able to rely on interrupting the use for a whole year even by an
obstruction notice, for reasons already indicated. To meet this difficulty, the
Act provides for the possibility of a temporary notice, which can be registered
without prior notice being given to those affected. In this case the Lands
Tribunal must be persuaded to issue a certificate certifying that in its
opinion the case is one of exceptional urgency and that accordingly a notice
should be registered forthwith as a temporary notice for such period as may be
specified in the certificate. If the tribunal issues such a certificate a
temporary notice can be registered, but this will expire unless a definitive
certificate is also lodged within a period specified by the tribunal in its
first, temporary certificate, which must not exceed six months. Thus, the
parties likely to be affected should receive notice of the existence of the
obstruction notice within at most six months, in time to take action to protest
the interruption by the issue of a writ. In this type of case, there may be no
prior notice before the registration of the obstruction notice, but this lack
is made good in time for action to be taken.
The issue in
this case, as regards the plaintiff’s claim under the Prescription Act 1832, is
whether, on the true construction of the Act, in a case where a temporary
notice has been registered which is to expire within four months unless a
definitive certificate is lodged within that time, and where the ordinary
certificate is lodged within that time, the plaintiff has 12 months from the
registration of the original temporary notice in which to bring his action or
has 12 months from a later date, whether the lodging of the permanent
certificate, the bringing of the notice to the attention of the plaintiff or
some other date. As a matter of construction, this issue is to be resolved by
reference to facts which are clear and not in dispute and it is therefore
capable of being resolved on this application.
If the
plaintiff’s contention on the construction of the Act is wrong, its writ was
issued too late. It was in fact issued just under 12 months after actual notice
to the plaintiff of the obstruction notice, but more than 12 months after the
registration, then on a temporary basis, of the obstruction notice. In that
case, the plaintiff has an alternative contention. This is that the
registration of the original temporary notice was vitiated by the fact that the
temporary certificate issued by the Lands Tribunal was fundamentally flawed.
The point is put in a number of different ways in the pleading in reliance on
which it is said that the issue of the temporary certificate should be regarded
as an act without any legal consequences or alternatively is liable to be set
aside or disregarded. It is then said that, if that position is reached, the
temporary notice was invalidly registered and there would have been no
obstruction, and nothing against which a writ needed to be issued.
Clearly, the
issues of fact arising on that allegation are not susceptible of being
determined on a striking out application. However, the defendant says that it
is not open to the plaintiff to challenge the certificate of the Lands Tribunal
in these ordinary civil proceedings and that, if there was to be such a
challenge, it would have to have been brought by way of judicial review, or
alternatively by an appeal by case stated under the Lands Tribunal Act 1949.
For that reason it is said that this action is an abuse of the process in so
far as it seeks to challenge the certificate.
In the further
alternative, in case the plaintiff’s reliance on the Prescription Act is
unsuccessful for the reasons described above, the plaintiff has, by amendment
to the statement of claim, introduced claims under common law prescription and
lost modern grant. The defendant asserts that each of these is bound to fail
and that these aspects of the claim may also be struck out on this application.
Both of these last two claims can be dealt with shortly and I will turn to them
at once before going to the construction of the 1959 Act and the issues
concerning the administrative law challenge.
Common law
prescription
Under the
common law, an easement is acquired by prescription only by enjoyment during
the time whereof the memory of man runneth not to the contrary. In 1275 this
period was fixed as beginning in the first year of the reign of Richard I,
1189, and it has never since been altered. The difficulty of proving such
enjoyment has been alleviated by a convenient holding that evidence of
enjoyment for so long as anyone could remember raises a presumption that such
enjoyment has existed for the period of legal memory. Thus, it was said, in Angus
v Dalton (1877) 3 QBD 85 at pp89–90 that:
Theoretically
an ancient house at this period was a house which had existed from the time of
Richard I. Practically, it was a house which had been erected before the time
of living memory, and the origin of which could not be proved.
Where however
the actual origin of the enjoyment was shown to have been of more recent date
than the time of legal memory the fight was held to be defeated. In the present
case it is quite clear and not disputed that the Bowring Building was not in
existence before some date in the 1960s and accordingly no claim can possibly
be made out to prove a right of light by way of common law prescription.
Lost
modern grant
The
difficulties of establishing prescription at common law were further alleviated
by the device of presuming a grant of the right claimed which had been made and
lost in modern times and which was presumed as the origin of lengthy enjoyment
apparently of right. In practice, in due course, it was held that a lost modern
grant could be presumed as the basis of enjoyment of right for a period of 20
years. Thus, where windows to which light had passed for 20 years were proved
not to have existed 22 years before the obstruction, this was insufficient to
defeat the claim based on a prescriptive right of light: Penwarden v Ching
(1829) M&M 400.
To this
alternative claim, the defendant has an entirely different answer, namely
reliance on the custom of London. This custom is summarised, in Gale on
Easements 15th ed at p279 as being that a man might rebuild his house or
other edifice upon the ancient foundations to what height he pleased, even
though thereby the ancient windows or lights of an adjoining house were
stopped, if there were no agreement in writing to the contrary. It is this
custom which, relevantly, is overridden by the words mentioned above in section
3 of the 1832 Act.
The basis of
this statement of the custom is given as Wynstanley v Lee (1818)
2 Swan 333. That case has a short headnote which includes the proposition that
the presumption of a right from 20 years undisturbed enjoyment of light is
excluded by the custom of London. Reference to the case, however, shows that
the statement of the custom goes back to Plummer v Bentham (1757)
1 Burr 248. In that report it is stated that the Recorder of London came to the
Bar to give evidence as to two customs which were alleged to be customs of the
City. The matters arose in the context of an action for obstruction of ancient
lights by a new erection or building by the defendant, to which the defendant
raised separate customs as justification. The recorder certified there was an
ancient custom in the City to the effect summarised in the passage from Gale
that I have read, if one confines the statement to messages or houses. He
refused to certify the custom more widely in relation to any erection or
building. Wynstanley v Lee was undoubtedly concerned with houses
and therefore was well within the custom as certified by the recorder and it
was on that basis that the action failed, Sir Thomas Plumer MR, stating that to
admit the argument for the presumption of a grant would be to abolish the
custom which would no longer be applicable to any case. If the matter rested
there, it would seem to me doubtful to what extent the custom was a sufficient
answer to the plaintiff’s claim. However, in Perry v Eames [1891]
1 Ch 658, Chitty J held expressly, at p667, that the custom precluded the
acquisition of a prescriptive right by presumption of lost modern grant in
respect of the site of the late Bankruptcy Court in Basinghall Street, which
was clearly not a mere house, but a building or other edifice. It seems to me
that I should not depart from the decision of that judge made over 100 years
nearer to
and I should therefore hold that the claim based on lost modern grant is also
bound to fall as a matter of law.
I therefore
conclude that both these formulations of the plaintiff’s case are bound to fall
and ought to be struck out.
Effect of
the Rights of Light Act 1959
I have
described already the general scheme of the provisions of the 1959 Act relating
to obstruction notices. I now have to turn to the issues of construction in
detail. Section 2(1) is the general provision for a person, whom I may
conveniently call the servient owner to apply to the local authority in whose
area the building of the dominant owner is situated for the registration of an
obstruction notice. By subsection (2) the application is, among other things,
to identify by location and dimensions (which may include unlimited height) the
notional opaque structure, the effect of erecting which is to be achieved by
registering the notice. Subsection (3) provides for the application to be
accompanied by one or other of the two kinds of certificate issued by the Lands
Tribunal that I have already mentioned. A definitive certificate is to the
effect that adequate notice of a proposed application has been given to all
persons who, in the circumstances existing at the time when the certificate is
issued appear to the Lands Tribunal to be persons likely to be affected by the
registration of the notice in pursuance of the application. The exceptional
temporary type of certificate is one which certifies that in the opinion of the
Lands Tribunal the case is one of exceptional urgency and that accordingly a
notice should be registered forthwith as a temporary notice, for a period
specified in the certificate. By virtue of subsection (4), on application to a
local authority for the registration of the notice, it is then to be registered
in the prescribed manner in the register of local land charges. Subsection (5)
provides for rules under the Lands Tribunal Act 1949 to regulate proceedings
with respect to the issue of certificates; such rules are to include provision
for requiring applicants for definitive certificates to give notices by
advertisement or otherwise, and to produce documents and provide information;
second, for determining the period to be specified in a temporary certificate;
and, third, in connection with a temporary certificate once issued, for
enabling a further certificate to be issued in accordance, subject to the
necessary modifications, with the definitive certificate procedure.
Rules have
been made to this effect, currently rr27 to 30 of the Lands Tribunal Rules
1975. They prescribe the form in which application for a certificate is to be
made, they provide for the president to determine, on receiving an application,
what notices are to be given, and in what way, to persons appearing to have an
interest in the dominant building, and for the applicant to notify the
registrar in due course setting out full particulars of the steps taken by him
to comply with the directions. They provide, by r29(1), that where the tribunal
is satisfied that matters of exceptional urgency require the registration
forthwith of a temporary notice in the register of land charges it shall issue
a temporary certificate in a particular form and, by r29(2), that the period
specified in the certificate is not to exceed six months. They also provide, by
r30, that the tribunal, on being satisfied that the notices directed to be
given by the president have been duly given, is to issue a certificate in one
particular prescribed form or, where a temporary certificate has already been
issued under r29, in a different form. Nothing turns on those forms themselves.
Section 3 of
the Act deals with the effect of a notice registered following the procedure
provided for by section 2. In summary, by subsection (1) the access of light to
the dominant building across the servient land is to be treated as obstructed
to the same extent and with the like consequences as if the notional opaque
structure described in the application had been erected, by the servient owner,
on the date of registration of the notice, had remained in position during the
period for which the notice has effect, and had been removed at the end of that
period.
Then
subsection (2) gives the answer to the question: what is the period for which
the notice has effect? A notice registered under section 2 is to be taken to
have effect until either: (a) the registration is cancelled, or (b) the period
of one year, beginning with the date of registration of the notice, expires, or
(c) in the case of a notice registered in the pursuance of an application
accompanied by a temporary certificate, the period specified in the certificate
expires without a further definitive certificate having before the end of that
period been lodged with the local authority, and the notice ceases to have
effect on the occurrence of any one of those events.
For the
plaintiff, Mr Stephen Bickford-Smith submits that subpara (c) applies to
all cases of notices registered accompanied by a temporary certificate so that,
even if the definitive certificate is lodged within the period, let us say four
months as in the present case, prescribed in the temporary certificate, the
period during which the notice has effect after the lodging of the definitive
certificate is the period prescribed by subpara (b), namely the period
of one year from the lodging of the definitive certificate.
I cannot
accept that submission. It seems to me that the natural reading of subsection
(2) is that, leaving aside the case of the cancellation of the registration,
the period of the effect of the notice is in all cases one year except in the
specific case provided for by subpara (c) where a notice is registered
in pursuance of a temporary certificate and the period specified in that
certificate does expire without a definitive certificate having been lodged. In
the latter case, the obstruction will have been in place for less than one year
and will therefore have no effect on the rights, if any, of the dominant owner.
In any other case, it seems to me as a matter of the natural reading of
subsection (2) that the period in question is the single period of one year
beginning with the date of registration of the notice.
Moreover, Mr
Bickford-Smith’s submission is fallacious in treating what happens upon the lodging
of the supplemental certificate as being the registration of a new notice. It
seems to me clear, from the terms and structure of the Act, that there only
ever is one notice. The notice is registered either following the normal
procedure, in which case it will in all events have effect for a full period of
12 months, or following the emergency procedure, in which case it will have
effect in the first instance as a temporary notice. That temporary effect is
provided for by section 3(2)(c), but the effect of the notice is not
necessarily temporary; it may well be that within the period specified in the
certificate a further certificate will be lodged with the local authority and,
if that happens, the effect of the notice is extended so that it is then governed
by section 3(2)(b) and runs for the period of one year beginning with
the date of the original registration of the notice.
That seems to
me to be reinforced by other provisions of the Act, by the consequences of Mr
Bickford-Smith’s submissions if right, and by the provisions of the Local Land
Charges Rules.
So far as
other provisions of the Act are concerned, section 3(3) gives a right of action
in respect of the registration of an obstruction notice to any person who, if
the notional structure had in fact been erected, would have had a right of
action in respect of that structure on the grounds of a right of light. By
section 3(4), the case where the access of light has been enjoyed for 19 years
but not for a full period of 20 years is dealt with, by adding on a notional
extra year of enjoyment. A dominant owner who has had 19.5 years of actual
enjoyment may bring his action in respect of the obstruction notice as soon as
the obstruction notice has been registered. He need not wait until the 20th
anniversary of the beginning of his enjoyment. By section 3(6), for the
purposes of section 4 of the 1832 Act, all persons interested in the dominant
building or any part thereof are deemed to have notice of the registration of
the notice and of the person applying for it to be registered as from the date
of registration of the notice. Further, until such time as an action is brought
in respect of the registration of such a notice, all persons interested in the
dominant building are deemed to acquiesce in the notional obstruction. Mr
Bickford-Smith submits that these provisions can only properly be construed as
applying in the case where efforts will have been made to give actual notice to
the persons in question but it seems to me that these provisions are doing no
more than adapting the provisions of
obstruction notice. It seems to me that Mr Bickford-Smith’s submissions would
only have force if the likelihood was that the full period of 12 months might
go by without the persons affected getting actual notice. I agree that, if the
Act is read in the way that the defendant submits that it should be read, there
will be a period, forming part of the 12-month period, during which, in some
circumstances, the persons interested in the dominant building may not know of
the obstruction. However, the procedure for requiring a definitive certificate
to be issued by the Lands Tribunal, if the temporary notice is to be extended
so as to have effect for a full period of 12 months, is reasonably designed to
ensure that those affected will have actual notice within the first half of the
12-month period so that they have ample time in which to begin their action for
obstruction.
If Mr
Bickford-Smith’s construction were correct, there would be no point in
registering a temporary notice at all. If the dominant building has been in
existence for 18 years and 11 months, in order to prevent the acquisition of
rights of light in its favour, the servient owner has to get his obstruction
notice registered within one month, before the period of 19 years has run. By
virtue of section 3(4), once 19 years have gone by it is too late for the
servient owner to be able to rely on preventing the rights being acquired. The
temporary notice procedure is designed to deal with this problem and to get an
obstruction in place with a minimum of formality, but on an expressly temporary
basis so that, before a period of not more than six months has gone by, and in
the present case four months, those affected do get actual notice and can start
their proceedings as soon as they wish. If the period of one year, during which
the dominant owner has to submit to the obstruction, were only to start to run
from the date when the definitive certificate is lodged, or alternatively from
the date, which might be wholly uncertain for some time, when the persons
affected got actual notice of the registration of the obstruction notice, there
would be no way in which the servient owner could take the benefit of the early
registration provided for under the temporary procedure and there would be no
point in providing for it at all.
Although it
seems to me that the true construction of the Act is entirely clear from its
own terms and from the context in which it operates, it is worth noting in
addition the provisions of r10 of the Local Land Charges Rules 1977 which deal
with light obstruction notices. I need not go into all the details of that
rule, but it provides a form in which the registering authority is to register
the notice, having received the application and certificate and filed them, and
by r10(3) it provides that where, after a temporary certificate has been filed
and before the period for which it operates has expired a definitive
certificate is lodged with the registering authority, it is to file the
definitive certificate with the application and amend the registration
accordingly. Thus, there is no question of a new registration at that stage;
all that happens is that the definitive certificate is filed and the existing
registration is amended to note that the definitive certificate has indeed been
filed. The form of the register provides for the entry of various relevant
information including the date of the temporary Lands Tribunal certificate (if
any) and of its expiration, the date of the definitive Lands Tribunal
certificate, the list of documents filed (which would include one or both
certificates as the case may be) and the date of registration. I was shown the
actual registration in the present case and, not surprisingly, only one date is
given as the date of registration, namely the date in August 1991 when the
notice was registered on the basis of the temporary certificate. However, it
was clear that the register had been amended upon the definitive certificate
being lodged, if only by showing the date of its lodging and by showing it as
one of the documents filed.
I am clearly
of the view that the defendant’s contentions are correct, that there is one
notice registered and only one, and that it has effect from the date of
registration, which was in the present case August 12 1991. What happens if the
notice is originally registered pursuant to a temporary certificate and a
definitive certificate is later lodged within the prescribed time, is not that
a new notice comes into effect but that the effect of the notice, which was
originally temporary, becomes that of a definitive notice so as to expire at
the end of the 12-month period. Accordingly, the plaintiff’s action, commenced
in October 1992, was too late and is barred by the concluding words of section
3(3), which provide that an action shall not be begun by virtue of this
subsection after the notice in question has ceased to have effect.
The conclusion
that there only ever is one notice, rather than a temporary notice superseded
or followed by a definitive notice, disposes of certain other arguments put
forward by Mr Bickford-Smith, including one based on a supposed overlap between
the two notional obstructions. He also submitted that, even on the basis of a
continuous effect of the notice, the starting date for the period of 12 months
should be when actual notice of the existence of the notice is received, which
was on October 8 1991. The trouble with that submission is that there is no conceivable
basis in the Act for holding that to be the case. He says that any other
conclusion would be an affront to justice but, again, it seems to me that while
in the nature of things a temporary notice may not be known about at the moment
when it is registered, it will be known about within a fairly short time and
within plenty of time for the dominant owner to take his action if he is so
minded. It seems to me quite clear that the procedure for temporary
certificates does indeed deprive the plaintiff of an advantage that he would
otherwise have, namely of seeing an actual screen being put up as and when it
is put up. The Act, however, ensures that he does have notice of the
obstruction notice in good time to take such action as he may be advised and for
it to be legally effective. Accordingly, I reject the plaintiff’s arguments on
the construction of the 1959 Act. To the extent of the plaintiff’s reliance on
these arguments I would strike the action out.
Challenge
to the certificates
I therefore
turn to the plaintiff’s challenge to the issue in the present case of the two
certificates by the Lands Tribunal and I do so on the basis that, for the
reasons already given, the plaintiff has no cause of action based on common law
prescription or lost modern grant and, on the construction of the Prescription
Act and the Rights of Light Act, the plaintiff would be unable to succeed in
objecting to the obstruction because its writ was issued too late. It follows,
as it seems to me, that the plaintiff’s remedy has to be to set aside one or
both of the certificates and also to set aside the registration of the local
land charge based on them.
The
plaintiff’s challenge to the temporary certificate is set out in para 6 of the
amended statement of claim. It asserts that the certificate was invalid and of
no effect because the case was not of exceptional urgency. It gives reasons for
saying that that is the case. It relies on the fact that the application for
the certificate, which was the only material on which the decision was based,
gave as grounds for seeking the certificate that ‘the case is one of
exceptional urgency because the building in question has been erected for
several years and may be on the point of acquiring rights of light by
prescription’. It is then said that this gave no material on which the Lands
Tribunal could reach the conclusion that this was a case of exceptional
urgency. Simply as a matter of comment it seems to me that there is something
to be said for that proposition and that the material on which the Lands
Tribunal acted was distinctly thin.
In para 8 of
the amended statement of claim the plaintiff challenges the definitive
certificate and alleges that it was invalid and of no effect because adequate
notice of the proposed application had not been given to all persons who in the
relevant circumstances were likely to be affected by the registration of the
notice. It is then said in para 9 that by reason of those various matters the
registration of the notice is null and void.
For reasons
mentioned above, and which are obvious, I do not go into the merits of the
plaintiff’s allegations in this respect. The question is whether those
allegations can be raised in these proceedings. Mr Bickford-Smith said that,
although the issue of the certificates could have been challenged by way of
proceedings for judicial review, the validity of the certificates and
consequently of the obstruction notice was so intimately bound up with the
assertion and
was no abuse of the process of the court in putting forward the challenge that
I have just described in the form of ordinary civil proceedings to which only
Scottish Widows is a defendant. It necessarily follows from the position that I
have reached that he has to establish, and he would indeed assert, that this is
correct even if this is his only way of avoiding what would otherwise be the
effect of the notice under the 1959 Act and therefore his only way of asserting
that he has an existing prescriptive right of light unaffected by an
obstruction notice.
In order to
determine this point I must move away from the ancient learning, which had to
be considered in relation to the lost modern grant claim and from the statutory
construction which arose on the 1959 Act, and examine a series of cases decided
over the last 12 years, most of them at House of Lords level. This is the line
of cases, which starts with O’Reilly v Mackman [1983] 2 AC 237
and ends, for present purposes and in terms of citation to me, with Roy
v Kensington and Chelsea and Westminster Family Practitioner Committee [1992]
1 AC 624, in which the question has been considered whether, and if so when, it
is permissible for what may be called public law issues to be raised in
ordinary civil proceedings rather than in proceedings under Ord 53 by way of
judicial review.
In O’Reilly
v Mackman the plaintiffs were prisoners in Hull prison, who were
complaining of the conduct of inquiries concerning disciplinary offences
alleged to have been committed by them in the course of a prison riot, and
seeking to avoid the consequences of the penalties imposed on them as a result
of those inquiries. The proceedings were commenced in some cases by writ and in
another by originating summons. The defendants, the board of visitors of the
prison and the Home Office, applied to strike the proceedings out as being an
abuse of the process of the court, on the footing that the matters alleged and
the issues raised could only properly be brought before the courts by way of
proceedings for judicial review. That application was ultimately upheld by the
Court of Appeal and the House of Lords. It was material to the decision adverse
to the plaintiffs that there was no possible claim for damages against the
defendants and that therefore the only relief claimable was directed towards
the validity or otherwise of the decisions in the disciplinary inquiries, and
that such relief was, on any footing, discretionary. It was also clear that it
did not involve an allegation that the acts of the defendants had in any way
infringed or threatened to infringe any right of the plaintiffs derived from
private law of any kind. The matters in issue in the proceedings were wholly
within the ambit of public law. It was highly material to the decision of the
House of Lords that, by adopting ordinary civil proceedings, the plaintiffs had
been able to evade protections against groundless unmeritorious or tardy
harassment which are afforded to statutory tribunals and decision-making public
authorities by Ord 53 with its insistence on promptness and its requirement of
leave.
Lord Diplock
observed that to delay until the trial of the action the judge’s decision as to
how to exercise his discretion would defeat the public policy that underlies the
grant of those protections, that is to say the need, in the interest of good
administration and of third parties who may be indirectly affected by the
decision, for speedy certainty as to whether the decision has the effect of
being valid in public law: see p284E. A little later he pointed out that Ord 53
does not provide that judicial review is the exclusive procedure for the
obtaining of remedies in respect of rights entitled to protection under public
law and that there may be a great variation among cases that fall within the
scope of Ord 53. He observed that the secondary and indeed primary legislation
had left it to be determined in pursuance of the express and inherent powers of
the High Court, on a case-to-case basis, whether abuse of the process of the
court had arisen in any given case and for those powers to be used to prevent
such abuse whatever form it might take. He said that the case was not an
occasion to lay down categories of cases in which it would necessarily always
be an abuse to seek a remedy in an ordinary civil action against the
infringement of rights entitled to protection in public law. However, he did
say, at p285D, the following:
… it would in
my view as a general rule be contrary to public policy, and as such an abuse of
the process of the court, to permit a person seeking to establish that a
decision of a public authority infringed rights to which he was entitled to
protection under public law to proceed by way of an ordinary action and by this
means to evade the provisions of Order 53 for the protection of such
authorities.
My Lords, I
have described this as a general rule; for though it may normally be
appropriate to apply it by the summary process of striking out the action,
there may be exceptions, particularly where the invalidity of the decision
arises as a collateral issue in a claim for infringement of a right of the
plaintiff arising under private law, or where none of the parties objects to
the adoption of the procedure by writ or originating summons. Whether there should
be other exceptions should, in my view, at this stage in the development of
procedural public law, be left to be decided on a case to case basis.
In another
case in which speeches were delivered on the same day, Cocks v Thanet
District Council [1983] 2 AC 286, the principles so set out were applied to
strike out a claim brought against a council which was a local housing
authority, to assert a duty under the Housing (Homeless Persons) Act 1977 which
it was accepted was a public law duty and which therefore required protection
as matter of public law before any private right could be established, the
infringement of which might have been appropriate for ordinary civil
proceedings. Those two cases have been followed by a large number of others in
which the case-by-case development of procedural public law envisaged by Lord
Diplock has been undertaken.
The next case
in point of time was Davy v Spelthorne Borough Council [1984] AC
262 in which the action was not struck out, it being an action for damages in
tort in respect of negligent advice alleged to have been given to the plaintiff
by officers of the defendant council. The fact that the claim would involve a
consideration of statutory procedures in respect of planning and enforcement
notices was not regarded as a sufficient reason for requiring the plaintiff to
proceed by way of judicial review especially since he could not, by judicial
review proceedings, establish a claim to damages.
There was also
cited to me An Bord Bainne Co-operative (Irish Dairy Board) Ltd v Milk
Marketing Board [1984] 2 CMLR 584, a decision of the Court of Appeal. There
the case concerned a claim for damages based on alleged private law rights
although also involving a consideration of public law rights. The claim for
damages was not one which, if pursued in civil proceedings (as it would
inevitably have been pursued at the end of the day) afforded the court any
discretion whether or not to grant relief if the breach of private law was established.
Although the case involved public law issues they were inextricably mixed up
with the private law issues and it was accordingly held that it could not
possibly be regarded as an abuse of the process of the court to pursue the
claim by way of ordinary civil proceedings.
The next case,
which was cited to me extensively, was Wandsworth London Borough Council
v Winder [1985] AC 461. In that case the challenge to an act arising in
public law and on public law grounds was raised by way of defence to an action
for possession of a council flat, the tenant alleging that rent increases
imposed in 1981 and 1982 were void as being wholly unreasonable. He accordingly
asserted that the arrears alleged against him were not due and that there was
no ground for possession. The Court of Appeal, by a majority, and the House of
Lords, unanimously, held that it was quite inappropriate to require the
defendant, in those circumstances, to make his challenge by way of judicial
review and that there was no possible abuse of the process in his raising the
issue simply by way of a defence to the claim that he was indebted to the
plaintiff council in a particular amount. It was accepted that judicial review
would have been available to challenge the relevant decisions, if proceedings
had been taken in time, but it was held that there was no onus on the defendant
to take that course and that he could perfectly well wait to see whether the
plaintiff sought to enforce what they claimed to be their legal rights as
landlord and raise the issue by way of a defence. Lord Fraser said that the
case did not fall within the exception expressly mentioned by Lord Diplock in
the passage cited above, where the question of invalidity arises as a
collateral issue in a claim for infringement of private rights, because the
question of validity or invalidity was not merely collateral: it lay at the
heart of the respondent’s defence and was the central and indeed possibly the
only issue which fell to be decided. Lord Fraser said that it would have been a
very strange use of language to describe the tenant’s behaviour defending the
litigation as an abuse or misuse by him of the process of the court since he
was merely seeking to defend proceedings brought against him and in so doing
merely to exercise the ordinary right of an individual to defend an action on
the ground that he is not liable for the whole sum claimed, a defence which is
put forward as a matter of right.
Following
those decisions, the procedural issue has been touched on in quite a number of
cases, some of which I will mention. One was Gillick v West Norfolk
and Wisbech Area Health Authority [1986] AC 112 where the proceedings had
been commenced before the O’Reilly decision and no party took a
procedural point at any stage. Lord Scarman referred at pp177 to 178 to the
question whether an ordinary civil action for a declaration was appropriate and
observed that although the relief could have been claimed by judicial review
the private content of the claim was so great as to justify proceeding in the
ordinary way.
In Doyle
v Northumbria Probation Committee [1991] 1 WLR 1340 Henry J had to
consider a summons to strike out ordinary civil proceedings in which damages
were claimed for breach of contracts of employment together with a declaration
as to the plaintiff’s entitlement to be paid a mileage allowance. The defence
raised was a public law defence. The judge reviewed the cases from O’Reilly onwards
of which eight had been cited to him. He made the comment at pp1347–8 that:
The
principles that Lord Diplock expected would emerge from the decisions in O’Reilly
v Mackman have clearly not yet fully been worked out, and the reason for
this seems to me to be clear, namely that the circumstances in which there may
be such a mixture of private and public law claims are infinitely various and
can arise in very disparate situations. But the wealth of authority on this point
and the potential for extensive appeals on it leads one to conclude that, until
the principles are worked out, there is potentially a formidable extra hurdle
for plaintiffs in litigation where public law and private law mix. It seems to
me that this is at present an area of the law where the forms of action
abolished by the Common Law Procedure Act 1854 in the 19th century appear to be
in danger of returning to rule us from their graves.
After
consideration of the various cases and the particular circumstances of that
case he held that it was not an abuse in that case for the plaintiffs to
proceed by way of ordinary civil action.
A similar
submission was made, again unsuccessfully, in the course of the striking out
application in Lonrho plc v Tebbit [1991] 4 All ER 973 and on
appeal at [1992] 4 All ER 280. In that case, somewhat like the Davy case,
the proceedings were essentially for negligence and for damages and it was held
inappropriate to require the plaintiff to proceed by way of judicial review.
Most recently,
in the Roy case, a similar conclusion was reached where the plaintiff, a
doctor, brought an action against the family practitioner committee seeking
payment of part of his basic practice allowance which had been withheld by the
committee on the basis of a particular decision under the relevant regulations
which he sought to establish had been wrongly or invalidly reached. One issue
in the proceedings was whether the plaintiff had a contract for services or
merely rights to payment by virtue of the relevant regulations and the
performance of functions by virtue of his appointment. The House of Lords took
the view that, whether or not he had a contract, he had in any event private
law rights to remuneration in accordance with statutory terms of service and
that the bringing of an ordinary action to enforce the right to receive that
remuneration could not constitute an abuse of process. It was highly material
to their decision that he would in any event have needed to sue for his money
even if he had been able to challenge the decision successfully by way of
judicial review. Lord Lowry at p650 pointed out that the court clearly had
jurisdiction to entertain the doctor’s action and that, even accepting the full
rigour of O’Reilly v Mackman, there was plenty of scope
for holding that the case fell within the exceptions allowed for by Lord
Diplock. In particular it was concerned with a private law right, it involved a
question which could in some circumstances give rise to a dispute of fact, and
one object of the plaintiff was to obtain an order for the payment of an
ascertained sum of money.
Later in his
judgment Lord Lowry referred to a debate as to the true analysis of the rule
stated in O’Reilly v Mackman. Two alternative approaches were
mentioned. The first is that the rule in O’Reilly does not apply
generally against bringing actions to vindicate private rights in circumstances
in which those actions involve a challenge to a public law act or decision, but
that it requires the aggrieved person to proceed by judicial review only when
private law rights were not at stake. The alternative or narrow approach
assumes that the rule applies generally to all proceedings in which public law
acts or decisions are challenged subject to some exceptions where private law
rights are involved. The court did not pronounce on which is the correct
analysis, although it is clear that Lord Diplock seems to have considered
himself to be stating a general rule with exceptions whereas Lord Lowry
preferred the broad approach which would regard judicial review as a compulsory
procedure only when private law rights are not at stake. At the end of his
judgment Lord Lowry also makes the observation that, unless the procedure
adopted by the moving party is ill suited to dispose of the question at issue,
there is much to be said in favour of the proposition that a court having
jurisdiction ought to let a case be heard rather than entertain a debate
concerning the form of the proceedings.
I should
mention that, of the cases which I have mentioned, those cited to me were O’Reilly,
Wandsworth and Roy. Both counsel submitted that the essential
principles were to be found in those three decisions. I consider that they were
justified in that submission. However, having regard to Lord Diplock’s
reference to case-by-case development of the approach of the court, I found it
helpful to inform myself by reading more widely among the cases in which the
point has been considered over the last 12 years.
The defendant
contends before me that, because the plaintiff’s case, in this respect,
involves asserting the invalidity of the decisions of the Lands Tribunal to
issue the certificates, it is wholly a matter of public law. Accordingly, Mr
Francis argues, the only proper remedy is judicial review. He points out also
that the certificate does not in any way infringe or affect the plaintiff’s
rights. It is not that, but the registration of the notice by the local
authority, that affects the plaintiff’s rights. That is true, but it seems to
me that the registration of the notice is a merely ministerial act, so long as
the right form is filled in, and therefore the procedure of certificate and
notice are so intimately bound up that a challenge to the certificate is also a
challenge to the notice.
The defendant
further points out that even the registration of the notice does not do
anything irrevocably to affect the plaintiff’s rights. It is no more than the
equivalent of putting up the screen for which it is a notional substitute, as a
provocation to the plaintiff to issue its writ. It is indeed a curiosity of the
case that, given that the plaintiff got to hear of the registration of the
notice, and therefore indirectly of the issue of the temporary certificate,
within less than three months of the issue of the certificate and of the
registration of the notice, it was in time to start judicial review proceedings
without any extension of time, but that if it had considered, at that stage,
taking steps to challenge the defendant’s position by proceedings, the easiest
and simplest thing for it to do, and the most obvious thing, would have been to
issue the writ in ordinary civil proceedings that it eventually issued 12
months later.
Thus, the
defendant’s attack on this aspect of the plaintiff’s case is that, reduced to
its essentials and to this part of the case, the plaintiff is directly
challenging the public law act of the Lands Tribunal and the consequential act
of the local authority and is not challenging anything which, if valid, at the
time directly affected the plaintiff’s own private
for such a proceeding and, despite the very different subject-matter, it
contends that the case is in line with O’Reilly and Cocks and not
with Wandsworth Borough Council or Roy.
By contrast Mr
Bickford-Smith for the plaintiff says that the defendant’s right to erect the
notional obstruction depends on it going through the statutory steps in a
correct and proper manner and that if it does so the effect of the procedure is
to interfere with private rights. He says that the public law issues arise as a
collateral issue in a challenge in respect of private rights so as to be within
the exception that Lord Diplock expressly recognised. He drew the contrast between
a case in which the primary relief is something which the party is only
entitled to as a matter of public law, where judicial review is the appropriate
procedure, and on the other hand, one where the relief sought is to protect
private rights, in which case private law procedure can be used even if the
proceedings also assert for example, the invalidity of a public law act. Here,
he submitted, the primary claim was for infringement of the plaintiff’s private
law rights, namely its easement of light. He accepted that the certificate was
an act which could have been challenged by judicial review although he pointed
out that that would have been subject to the requirement of leave, giving the
court a discretion, and to the question of delay. In the present case, as I
have mentioned, the plaintiff did get to know of the relevant facts within the
three-month period. It could well have been that it did not come to know of the
registration of the temporary notice until after three months had gone by, but
it seems to me that, in such a case, if judicial review was an appropriate
course to take and the plaintiff sought to take it, then subject to his acting
promptly upon getting to know of the relevant facts it is highly likely that
the court would extend time or permit him to apply out of time, precisely
because he was unaware of the events at the relevant time. As regards other
reasons than delay for the refusal of judicial review or of leave to apply on
the grounds of the court’s discretion, Mr Bickford-Smith identified that one
might have been that the plaintiff had an alternative remedy available to him
at that time, of issuing his writ which would have been well within time. He
could not identify any other likely reasons, nor have any occurred to me. He
submitted that the plaintiff’s rights in question are absolute and not relative
or discretionary so that judicial review is not an appropriate remedy and he
said that the administrative decision in question arose only as an incidental
part of the matter in issue.
He further
submitted that, as regards the test on a striking out application, it must be
plain and obvious to the court that the procedure is wrong and an abuse if the
action is to be struck out on that basis. So far as that is concerned, I accept
the plain and obvious test as regards striking out on a substantive issue, such
as those with which I have already dealt. Clearly, also, the court seeks to
reach a clear conclusion on preliminary issues such as jurisdictional or
procedural matters. However it seems to me that there is a material distinction
between a striking out application whose basis is that the action cannot
possibly succeed on its merits, where the matter must be plain and obvious for
the court to pre-empt the trial, and, on the other hand, a case where it is
said that, whatever the merits, the case cannot proceed because the wrong
procedure has been used or for some other procedural and preliminary reason. In
such a case it seems to me that the court has to make up its mind as to whether
the plaintiff or the defendant is right and that it cannot properly abdicate
its responsibility by leaving the decision to a later stage or to the trial
judge.
Having
considered the various submissions made to me on this aspect, which I have
summarised over briefly, and the authorities referred to above, and taking due
note of the comments which I have referred to as to the unsatisfactoriness of
the way in which this sort of procedural issue arises or has to be resolved,
and in particular of Lord Lowry’s suggestion that, unless there is some
compelling reason to the contrary, a proceeding once begun ought to be allowed
to continue, I have nevertheless come to the conclusion that this is a case in
which, once it is confined to a challenge to the validity of the certificates
and consequently of the notice, it is not at all appropriate for the action to
be brought or to be allowed to continue by way of ordinary civil proceedings
rather than by way of judicial review.
I do not
accept the submission that, viewed in that light, the case is really a case for
the establishment of private rights to which the challenge to an administrative
decision is bound up as part of the assertion of a private claim. On the
conclusions already reached on other aspects of the case, the plaintiff has no
private right of light at present. It is, therefore, essential for him to
challenge the decision of the Lands Tribunal and the consequential registration
of the local land charge by the local authority. It is also significant that
neither the tribunal certificate, not the local land charge when registered,
infringes any private right and that, if the plaintiff’s challenge were to
succeed, the result would be that there neither was nor had been any
infringement of private rights at all, so that there would be nothing for it to
complain about in an action begun by writ.
On that basis
it seems to me that, on either analysis of the O’Reilly decision itself,
this case falls within that decision itself, rather than elsewhere, whether
that decision is regarded, on the broad approach, as an exception to a general
rule, the exception being limited to pure public law cases, or rather on the
narrow view as the laying down of a general rule concerning cases involving
public law issues, to which there are exceptions where private law issues are
also involved.
I think that
some light may be cast on the issue by testing it by reference to hypothetical
circumstances in which judicial review would be the only practical remedy.
Suppose that, for some reason, whether because of lack of the appropriate
procedure on the part of the servient owner or because of some major procedural
failure on the part of the Lands Tribunal, a notice is registered following the
issue of a definitive certificate, and runs its course for a year, and that
throughout that time the dominant owner, in circumstances which are not in any
way his fault, simply fails to hear about the intention to register the notice
or the fact of the notice being registered. After the notice has been registered
for a year, on the face of it the dominant owner’s right has been barred. Let
it be assumed that he accepts that that is the case and that there is no point
in issuing a writ to protest the obstruction. Equally he does not assert a
right based on anything other than the Prescription Act. In such a case it
seems to me that, in order to challenge what had happened, he would have to
challenge directly the issue of the certificate or certificates and the
consequential registration of the notice by the local authority. To do so, as I
understand it, he would bring proceedings for judicial review against the Lands
Tribunal and possibly against the local authority as well, and he would no
doubt give notice to the servient owner who had been the applicant for the
certificates and the notice. He would seek the quashing of the certificates and
the cancellation of the notice as if it had never been registered. If he were
able to obtain such relief, then nothing would have happened to affect his
rights.
Clearly, he would
have to act promptly upon getting to know of what had happened. But, assuming
there was a serious case for saying that he had been in ignorance of the
circumstances, not due to his own fault, despite all the provisions for notice
under the Rights of Light Act, it seems to me likely that the court would grant
leave to apply despite the fact that a long time had elapsed after the act
sought to be challenged.
That seems to
me to be a situation, albeit no doubt highly unlikely to arise in practice, in
which one could see that the only remedy available to the plaintiff would be a
public law remedy, that that is a remedy which he would correctly seek by
judicial review, and that establishment of that remedy would give him all that
he needed, or sought to be entitled to.
Stripped of
the matters which I have already ruled on, it seems to me that the facts of the
present case are identical to those of the hypothetical case that I have just
postulated, apart from the fact that the plaintiff was aware of the relevant
circumstances before two months of the 12-month period had gone by. If the
plaintiff had sought judicial review at that time of the issue of the temporary
certificate it is quite possible that the court would have rejected that
application on the ground that he had an alternative easy remedy, namely the
issue of
would not be available, and it would not have been available at any time when
the plaintiff was aware of the relevant facts.
It seems to me
that in such a case, the plaintiff would not issue a writ, and that the only
appropriate procedure would be judicial review, both because of the nature of
the acts challenged, and their lying entirely in the realm of public law without
any effects, of themselves, in private law, and also because of the need to
have the Lands Tribunal, and probably also the local authority, as parties, and
more generally because the discretionary elements in the judicial review
procedure would be appropriate to the case, rather than allowing the matter to
be challenged by writ, with, in particular, no sanction for delay in bringing
or prosecuting the proceedings. In the light of this and of the other reasons
given above, I consider that to pursue this aspect of this claim by writ is
indeed an abuse of the process.
I should
record that the defendant had an alternative submission as to the plaintiff’s
appropriate remedy, namely that the plaintiff could have appealed against the
issue of a certificate by way of an appeal by case stated under the Lands
Tribunal Act 1949. I need say no more about that than it seems to me quite
clear that the issue of a certificate was not a decision such as is
challengeable by way of such an appeal.
Conclusion
Thus in
conclusion, for the various reasons that I have given, I have come to the clear
view that all the various different aspects of the claim put forward in the
plaintiff’s amended statement of claim are either matters which fail to
disclose a cause of action or matters which for one reason or another it would
be an abuse of the process of the court for the plaintiff to pursue either at
all or by this action. Accordingly, I will accede to the defendant’s
application to strike out the writ and statement of claim.
