This is an additional note to [1997] PLSCS 347.
The court heard further argument on the defendants’ appeal from the judgment of Judge Irvine given in Banbury County Court on June 7 1996, when he decided the principal issues in favour of the plaintiffs, having revised his judgment and coming to a different conclusion after hearing further submissions following the decision of the Court of Appeal in Wheeler v JJ Saunders Ltd [1995] 2 All ER 697. The Court of Appeal heard the appeal over three days in November 1997 and gave judgment on December 19 1997 allowing the appeal in part: see [1997] PLSCS 347.
The court refused the plaintiffs’ first application, namely that the Court of Appeal should depart from its decision of December 19 1997 and reach a different conclusion. It was not in doubt that an order made in open court might be recalled or varied at any time before that order had been perfected: see Pittalis v Sherefettin [1986] 1 EGLR 130 per Dillon LJ, at pp133-134. The second application, as to the effect of section 62 of the Law of Property Act 1925, was an invitation to relitigate and was also refused. If the court had been wrong, that was a matter for the House of Lords. The defendants’ application concerning their rights at X, the crossing, was also refused. The effect of the judgments was that the plaintiffs succeeded in respect of the red land and failed in respect of the green land. The topography of the case was complicated, but the judgment had made it clear that what was permitted at X was to cross and recross the track at X and not to turn either to the left or to the right on to the track.
