Case No: B2/2010/2659
Neutral Citation Number: [2012] EWCA Civ 941
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SWANSEA COUNTY COURT
HHJ JARMAN QC
7LI00090
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 11/07/2012
Before :

LORD JUSTICE LONGMORE
LORD JUSTICE RICHARDS
and
LORD JUSTICE DAVIS
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Between :

	(1)	ERIK ALFRED JOHN HOLMES
(2)	AMANDA GAIL DAVIES	Appellants/
Defendants	
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	(1)	TRACEY ANN EVANS
(2)	DAVID ANTHONY EVANS	Respondents/Claimants	

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ANDREW WALKER QC (instructed by Shelter Cymru, acting pro bono) for the Appellants.
PHILIPPA ASHWORTH (instructed by Brinley Morris Rees & Jones) for the Respondents.

Hearing date: 26th June 2012
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Judgment
Lord Justice Davis : 
Introduction
1.	At the conclusion of the hearing of this appeal, heard in Cardiff, the Court announced that the appeal would be dismissed, with further consequential orders, for reasons which it was indicated would be given in writing at a later date.  These are my reasons for having reached such a conclusion.
2.	The appeal itself was against an order of His Honour Judge Jarman QC, made as long ago as January 2009, sitting in the Swansea County Court.  By that order he declared that the claimants, Mr and Mrs Evans, had a right to pass and repass at all times for agricultural purposes with or without animals and with or without tractors or other agricultural vehicles over a track and bridge marked brown and blue respectively on the annexed plan; and granted various injunctions restraining the defendants, Mr Holmes and Mrs Davies, from obstructing the claimants in the exercise of that right and requiring certain works of reinstatement of the track and bridge by the defendants; and granted other consequential relief.  The defendants were ordered to pay the claimants’ costs.
3.	Arden LJ granted the necessary (very lengthy) extension of time and permission to appeal on 8 July 2011.  Subsequently she dismissed (with costs payable on an indemnity basis) an application by the claimants to set aside the extension of time and grant of permission to appeal.  In due course, this court, at the hearing of the appeal, granted the claimants an extension of time to lodge a Respondents’ Notice; and, in the result, the outcome of this appeal is primarily based on the Respondents’ Notice.
Background
4.	Given the way in which it falls to dispose of this appeal I do not think a very lengthy recitation of the facts and of all the points in issue at trial is needed.
5.	The position was this.  The claimants have since 5 August 2004 been owners of a small-holding, formerly part of Glan Morlais Uchaf farm at Trimsaran, near Kidwelly (“the small-holding”).  They have registered title.  Since 21 September 1998 the defendants, who are brother and sister, have been owners and registered proprietors of an adjoining farm known as Glan Morlais Isaf (“the farm”).
6.	There was and is no dispute that a public footpath, running from the public highway and giving eventual access to the small-holding, runs over the farm.  The position of the claimants was that they also had the right to use that path, and the bridge over a stream on the farm over which the path went, to gain access for agricultural purposes to the small-holding with vehicles; and that there has openly been such use of the track and bridge for very many years, without objection or interruption by the owners of the farm.  However the title documents, as was accepted, make no reference to any such right of way.
7.	After the claimants acquired the small-holding, disputes as to this access arose. The claimants were provided with a letter from Mrs Thomas (a previous owner of the small-holding) dated 29 September 2006, marked “To whom it may concern”.  Among other things, that states that she and her then partner Mr Nunnen had farmed the property (she acquiring it in 1979 and he having tenanted it before then) and he regularly used a tractor over the track, in summer and winter, for various agricultural purposes.  She said it had also been used from time to time by a JCB, visiting vets and officials from the Ministry of Agriculture.  She further states: “In previous decades local farmers used to use the lane to take their grain to the old mill, which now [sic] derelict”. The letter also explains that, when the then occupier of the farm needed to upgrade his own access for a milk tanker, he put in a new bridge adjoining the old bridge over the stream (called at trial “the sleeper bridge”).
8.	The defendants disputed the existence of such a right and proceedings were commenced on 1 March 2007.  By their re-amended Particulars of Claim, the claimants asserted that they had a prescriptive right of way, through open and uninterrupted use of 20 years or more, over the track (and bridge) for agricultural purposes with or without animals and with or without vehicles.  It was further alleged that the defendants had wrongfully removed the bridge over which the track went in around 2004, thereby obstructing the claimants in their use of the track, and had since erected a new bridge on the site of the old bridge, constructed to a different method and to a narrower width than the former bridge: again hindering them from their use of the track, in particular by vehicle.  They claimed declarations, injunctions and damages accordingly.
9.	By their defence, the defendants disputed that there had ever been any vehicular access over the track or bridge to the small-holding (although accepting the right of pedestrian access over the public footpath with or without animals).  As to the old sleeper bridge, it was said that it was old and dilapidated and not even used by pedestrians.
10.	By statutory declaration dated 16th February 2007 Mrs Thomas (now resident in France) among other things stated this:
“2.	Access to the property was obtained over a laneway coloured brown on the plan and over the old bridge marked in blue on the plan during the time we owned the property and for a period of at least 25 years or so.  The property adjacent to our farm, known as Glanmorlais Isaf Farm, over which the bridge and lane lies was previously tenanted by Les Morgan who moved to Ty Swyn y Nant, Trimsaran and he was well aware of the access over and along the laneway and over the bridge both vehicular and pedestrian during the period of his tenancy of the farm.  I understand that Mr Phil Young of Delfryn, Trimsaran will recall that hay has been taken down the laneway on vehicles to the farm for over 30 years.  I understand that on the land which we sold to Tracy Evans there are the remains of an old mill.  The mill was, I believe, very many years ago [sic] and access would have been required along the lane and over the bridge to the said mill.
3.	I and my family together with friends and visitors have used the Accessway and bridge continuously since we acquired the property in 1979 and without the consent of any person and without any interruption or payment or acknowledgement to any person.
4.	The use of the Accessway referred to in the preceding paragraph has been to pass and repass over the Accessway and bridge at all times of the day and night both vehicular and on foot and with animals.”
11.	A witness statement was made by Mr Nunnen (Mrs Thomas’ then partner).  He described how the old sleeper bridge over the stream forming part of the track started to deteriorate and he replaced it with an iron girder and concrete sleeper bridge in the mid-eighties.  He said he used the bridge regularly (before and after its reconstruction by him) for purposes of gaining access to the small-holding with and without vehicles and machinery: and indeed spoke of the first defendant complaining of the frequency of the use.  
12.	The matter was originally listed for trial in the Cardiff County Court before Mr Recorder Keyser QC on 28 April 2008.  The claimants were then represented by Mrs Marshall of counsel.  The defendants appeared in person (although they previously had had solicitors).  The matter was adjourned.  No transcript of the hearing is available, but the indications are that at least one reason was the perceived need for a site visit (and hence consequential transfer to the Swansea County Court: as was duly ordered).
13.	Shortly before that trial date, the solicitors then on the record for the defendants wrote a letter dated 21 April 2008 to the claimants’ solicitors.  It is an open letter and reads as follows:
“We write further to our telephone conversation on the 21st April 2008 during which we confirmed that our clients are prepared to agree the agricultural right of way across the track concerned with or without animals and with or without vehicles, such right of way for agricultural purposes only.
The issue that however remains between the parties relates to the width of the bridge, this is a point in respect which our clients are not prepared to reach an agreement that the same is wider then six feet.”
In subsequent evidence, the defendants accepted they would have known of that letter at the time.
14.	That letter was shown to Mr Recorder Keyser QC.  His order – carefully drawn and which sets out the various orders made and directions given – recites that he has heard counsel for the claimants and the defendants in person.  Among other recitals, there is this fourth recital:
“AND UPON the claimants and the defendants having agreed that the claimants as registered proprietors of the land comprised in title number CYM199087 have over the track mentioned in the claim form a right of way to pass and repass at all times for agricultural purposes with or without animals and with or without vehicles.”
15.	The adjourned trial was listed before His Honour Graham Jones in Swansea County Court on 19 September 2008.  There had been a site visit.  The defendants’ current legal team understandably had sought a transcript of that hearing and (it having relatively recently been obtained) very properly provided a copy to the claimants’ legal advisers.  It will be necessary to revert further to what happened before His Honour Graham Jones.  Suffice it to say the trial was adjourned yet again for various reasons.  The order of His Honour Graham Jones of that date among other things provided as follows:
“2.	The adjourned trial shall deal with the following issues:
(a)	the width of the right of way referred to in the 4th recital of the order of Mr Recorder Keyser QC dated 28th April 2008;
(b)	whether the sleeper bridge was destroyed, removed or otherwise interfered with by the defendants, servants or agents, or it collapsed because of want of repair before the defendants removed the remnants;
(c)	width of the sleeper bridge;
(d)	whether any issue arises as to the existence or use of a private right of way for vehicles and animals over or along a public footpath;
(e)	any other matters necessary for determination of the issue of the nature and extent of the right recorded in Mr Recorder Keyser QC’s order.
…..
4.		If either party wishes to raise any further issues or seek any further relief, notice in writing to that effect must be filed and served by 16.00 on 17th October 2008 and in the absence of the same the trial shall be limited to the issues set out in paragraph 2 above.”
(Paragraph 2(d), I add, seems to have reflected a concern raised by the defendants as to whether it was possible to have a private vehicular right of way over a public footpath: a point in due course dealt with at the subsequent trial).  Various other directions were given, including permission to instruct expert surveyors.  Mrs Marshall had again appeared for the claimants and the defendants were again in person.
16.	Thus it was that the matter came before Judge Jarman QC on 23 February 2009.  No notice in accordance with paragraph 4 of the previous order had been given.  On that occasion, Miss Ashworth appeared for the claimants (as she does before us on the appeal), Mrs Marshall being unavailable for personal reasons; and the defendants continued to be in person.
17.	As the judge records in his judgment, the defendants shortly before trial had indicated that they had not agreed and did not agree to a vehicular right of way in favour of the claimants, notwithstanding the recital to the Order of Mr Recorder Keyser QC.  The judge decided that rather than have a “sub-issue” on whether they had agreed or not, it was more appropriate to hear, and then assess, the evidence.  That he did.
18.	The judge assessed the evidence of the various witnesses (written and oral) carefully and fully.  He reminded himself of the limitations of the Statutory Declaration and letter of Mrs Thomas (put in under the Civil Evidence Act), but in the result gave weight to them.  He found Mr Nunnen to be an honest and reliable witness, although unsure on dates.  He accepted other evidence adduced by the claimants as to the existence and use of the old bridge, and its reconstruction in 1980 or 1981 by Mr Nunnen with iron girders and concrete sleepers.  The judge found as a fact that “up until 1998 there was use of this track and of the bridge in the way described by Mr Nunnen and Mrs Thomas….”.  He found that that use continued thereafter.  He rejected the defendants’ evidence, describing them as “combative, argumentative and somewhat evasive.”  He accepted the essence of the claimants’ own evidence.
19.	The judge went on to find that works were undertaken by the defendants in 2005 which “it must have been obvious…may well have had some damaging effect on the banks where the bridge lay, which services the track.”  Until then, as he found, the sleeper bridge was sound.  He found that the defendants then removed that bridge in 2006: “…and in my judgment the reason this was done was to defeat the exercise of the right.”  Until then, as he found, there was use with vehicles along the bridge.  Indeed, having undertaken a site visit, he recorded his impression that the track had all the appearance of a farm track, usable by vehicles (although not suitable for large lorries).  As to the dispute as to the width, he again preferred the evidence of the claimants and their witnesses and found that the width of the bridge was 8 feet, which the defendants were required to achieve by reinstatement.  He also rejected an argument that the existence of a prescriptive private vehicular right (over a public footpath) was impermissible under s.34 of the Road Traffic Act 1988.
20.	On the face of it, on all material points the claimants’ evidence had been preferred and there could be no viable challenge to the judge’s findings of fact and conclusions.  The present appeal, indeed, rests on a point which the defendants had never pleaded and which was raised by the judge himself, albeit only after the evidence had been concluded.
21.	The point was this.  There was some indication in the papers – if not in the formal evidence – that in fact the farm was tenanted by Mr Morgan from 1951 to 1996.  On that basis, the judge had concerns as to the claim to a prescriptive easement as claimed: since, of course, the general rule is that user at a time when the servient tenement is let does not ordinarily operate to bind the freehold owner, unless the owner has consented to that user.  Perhaps because the point had never been pleaded by the defendants there was no evidence as to the state of knowledge of the previous freehold owners of the farm.
22.	In the event the judge, having raised the point, proceeded to reject it.  He did so on two principal (and alternative) bases: first, there was no evidence that the tenancy to Mr Morgan included the track and bridge in question; second, the statements of Mrs Thomas indicated that such user predated Mr Morgan’s tenancy.  He further said that a like conclusion could be reached by the application of the doctrine of lost modern grant.
23.	Accordingly, judgment was given for the claimants.
The appeal
24.	Mr Walker QC, who did not represent the defendants at any stage below and who has commendably, with his solicitors, appeared pro bono on the appeal (legal aid having previously been withdrawn), sought to rely on those very points which the defendants had never previously taken but which the judge did take.  He submitted that the judge reached an erroneous conclusion.  He acknowledges however that, if that be so, a retrial might well be needed given that potential relevant points were not fully explored in evidence.
25.	In this regard, Mr Walker referred to the principles helpfully set out in Williams v Sandy Lane (Chester) Ltd [2006] EWCA Civ 1738.  He submitted that the judge had no proper basis for concluding that the track (and bridge) was not part of Mr Morgan’s tenancy: on the contrary, Mrs Thomas’ Statutory Declaration was to the opposite effect.  Further, the reference – seemingly based on hearsay – to “previous decades” in Mrs Thomas’ letter and references to the old mill gave insufficient basis, he submitted, for finding that any such user antedated 1951; and the evidence of Mr Morgan’s daughter took the matter no further.  If that was so, then there was also no basis for an alternative finding that such a right could be established under the doctrine of lost modern grant.
26.	For her part Miss Ashworth – while contending that the judge was entitled to assess the evidence as he did and that this court could not properly interfere – took, by her Respondents’ Notice, what in effect was a preliminary point.  She ably and forcefully submitted that, notwithstanding Judge Jarman’s adoption of an approach of substantively addressing the question of whether or not there was an established vehicular right of way, in truth the point was no longer open to be decided by him.  This was because, by reason of the orders of Mr Recorder Keyser QC and His Honour Graham Jones (neither of which had been appealed) the issues at trial had to be confined to those contained in His Honour Graham Jones’ order.  This point, indeed, reflected part of the basis of the application to set aside made to Arden LJ.  But it understandably acquires more focus now that the transcript of the hearing before His Honour Graham Jones has been obtained.
Discussion and Disposition
27.	I can see no valid answer to Miss Ashworth’s objections.
28.	I have already referred to the letter of the defendants’ solicitors dated 21 April 2008.  It is, on its face, quite clear and is plainly designed to delimit the issues at trial.  That letter was before Mr Recorder Keyser QC and was considered in the presence of the defendants.  The recital in the order as drawn up reflects that letter.  It is rather difficult to credit the defendants’ present stance that they had never so agreed to a vehicular right of way or had somehow misunderstood the position.  There are, in fact, some indications that the defendants may rather have had a change of mind after subsequent further contact with the Local Authority.
29.	Be that as it may, the issue is, in my judgement, put beyond doubt by what transpired before His Honour Graham Jones.  We have seen the skeleton argument of Mrs Marshall dated 16 September 2008 prepared for that hearing.  In it, she indicated awareness that the defendants may still be disputing whether there was a vehicular right of way.  She submitted that, by reason of the letter of 21 April 2008 and the order of Mr Recorder Keyser QC, that should not be left as an issue.
30.	This matter was (with other preliminary matters such as the service of some documents) debated before His Honour Graham Jones.  At one stage Mr Holmes suggested that they had been told by the court that “we had to agree, we had no choice over it…” but he then retracted any such criticism of the Recorder.  He then said “well, we have spoken to the Council since and we can’t agree to that….”.  The judge pointed out that they had agreed it and had not appealed the Recorder’s order (to which Mr Holmes replied “we will be doing that, Your Honour”) and that it was too late.  The judge heard further submissions, including submissions from Mrs Marshall.
31.	He then gave a formal ruling.  He referred to the letter dated 21 April 2008.  He referred to the hearing before Mr Recorder Keyser QC and to the recital in his order.  He observed that no subsequent application was made to contend the order was inaccurate or to appeal its terms or otherwise to call it into question.  He then said this:
“I conclude that I should not go behind that recital.  It is there.  It is clear and plain on the face of the court’s order.  It seems to me that so far as I am concerned I am bound by that recital.  Consequently the only issue for me now is in relation to the bridge and the width of the bridge.”
32.	The terms of his subsequent order, of course, in substance reflect that.  There has been no appeal against that order.
33.	It was unfortunate that this ruling was not drawn to Judge Jarman’s attention.  One can understand his desire to avoid a “sub-issue” developing, as he put it.  But in truth, had he been made aware of this ruling, he would have appreciated that this very point had been debated before and decided by a judge of coordinate jurisdiction (His Honour Graham Jones): thus it would have appeared that there was no extant “sub-issue” left to debate.
34.	Miss Ashworth, on our enquiry, told us that she had not herself been made aware of this ruling (she not having been present), although of course she knew of – and relied on – the terms of the orders of Mr Recorder Keyser QC and His Honour Graham Jones.  Her solicitors were the same; but it may be that their representative at the trial before Judge Jarman QC (if the same as the one present before His Honour Graham Jones) had not appreciated the significance of that express ruling.  There can at all events be no criticism of Judge Jarman QC himself in this regard in approaching matters as he did in ignorance of this ruling.
35.	Mr Walker – acknowledging, I think, the potential difficulties this previous ruling posed for him – submitted that procedural complexities should not displace a substantive appeal hearing on the merits.  If necessary, the defendants should have been – and if necessary now should be – permitted to withdraw any concession made to Mr Recorder Keyser QC.  He further said that the letter of 21 April 2008 only indicated what the defendants were “prepared to agree” and at the hearing before Mr Recorder Keyser QC the defendants were in person; nor did they draft or draw up the order themselves.
36.	In my view, none of these points can provide an answer.  Absent an appeal from the order of His Honour Graham Jones, the matter had been judicially determined.  The trial was thus directed to be heard on certain limited issues; and that is the way in which the claimants had prepared themselves for trial.
37.	This legal conclusion is not overcome by certain other observations made by Mr Walker.  He said that the defendants, as litigants in person, relied on His Honour Graham Jones’ observations in argument that it was too late for them now to appeal from Mr Recorder Keyser’s order.  Nor did His Honour Graham Jones tell them that they could appeal against his own ruling.  He further submitted that, since the trial was adjourned anyway by His Honour Graham Jones, there was no reason why the defendants should not have been left free to dispute whether there was a vehicular access: especially when (so he asserted) the evidence would have had to come out anyway on all the issues which were the subject of His Honour Graham Jones’ order.  Yet further, he complained that His Honour Graham Jones had not really exercised any discretion as to whether such admission should be permitted to be withdrawn (see CPR Part 14.1(5)).
38.	Again, none of these submissions meet the point that, as matters stood before Judge Jarman QC, the issue had been judicially determined. Judge Jarman QC was only empowered to deal with the matters set out in paragraph 2 of His Honour Graham Jones’ order.
39.	I should, nevertheless, make clear that I do not accept Mr Walker’s further submission that the claimants’ evidence would inevitably have been the same had the issue as to a vehicular right of way been expressed to be live prior to the trial before Judge Jarman QC.  It may be that the claimants’ evidence at that trial corresponded to what they had prepared prior to the trial scheduled before Mr Recorder Keyser QC: and Miss Ashworth sought no adjournment before Judge Jarman QC (understandably, given that it was the third hearing date).  But it may well be that – as Miss Ashworth herself said – the claimants, with Miss Ashworth now acting, may have re-evaluated the need for more evidence on that issue had it been considered still a live issue.
40.	I thus would accede to the points made in the Respondents’ Notice and dismiss this appeal.
Permission to appeal
41.	The Court having indicated its conclusion, Mr Walker (as presaged by his previous submissions) then formally sought to apply for an extension of time for permission to appeal against the order of Mr Recorder Keyser QC and (more pertinently) the order of His Honour Graham Jones. He acknowledged the (by now) very great lapse of time; but he observed that, given the course the proceedings took before Judge Jarman QC, the defendants had had no reason to seek to appeal from those orders; and as to the implications of the Respondents’ Notice, leave to pursue that Notice was only given by this court at the appeal hearing itself.
42.	I think I have already summarised the basis of the criticisms by Mr Walker of His Honour Graham Jones’ ruling.  Mr Walker suggested, in fact, that His Honour Graham Jones should have tried an issue as to whether there had indeed been any agreement before ruling as he did.
43.	In my view there is no proper basis for granting so lengthy an extension of time as is sought.  The fact is that years have gone by since the orders in question in respect of a matter which had already been becoming stale.  The defendants chose not to take legal advice after these two orders were made (in contrast to their stance after they lost at trial).  It is also clear from the transcript that the defendants would not have been deterred from appealing had they thought it in their interests to do so.  It would be contrary to the good administration of justice now to permit so long an extension.
44.	In any event, I see no realistically arguable prospects of success in a challenge to His Honour Graham Jones’ order.  This was a matter of discretion.  It is true the judge did not in terms direct himself as to the power to permit the withdrawal of an admission and at one stage indicated that he regarded himself as “bound” by the recital to the order of Mr Recorder Keyser QC.  But so experienced a judge as His Honour Graham Jones would have been well aware of the Rules.  Further, he did not simply rely on the recital to the previous order; he also reviewed the background, including the letter of 21 April 2008 and the lack of subsequent challenge to the order of Mr Recorder Keyser QC.  The judge concluded that he “should not go behind” the recital.  That is the language of discretion.  The ruling reached a conclusion which was reasonably open to a judge and which cannot possibly be described as perverse.
45.	Thus I would refuse an extension of time for permission to appeal against either the order of 28 April 2008 (if relevant) or the order of 19 September 2008.
Form of order
46.	Mr Walker took exception in one respect to the form of order made by Judge Jarman QC.  He said that the various mandatory injunctions made could have implications under highways law or planning law: and thus the injunctions should, at the least, be subject to an express requirement as to any necessary statutory or third party consents.
47.	I do not agree.  It is a given that injunctions cannot require a person to do something which is unlawful.  It does not need spelling out; and I would be concerned that to write in any such words as Mr Walker suggests might operate to cause the defendants to further drag their feet in complying with the order of Judge Jarman QC.
Conclusion
48.	I would dismiss the appeal.  The costs order in the court below should stand.  As indicated at the hearing, there will be no order as to the costs of the appeal (including Respondents’ Notice), given the way matters developed: but the order as to costs of Arden LJ will of course continue to stand.  There will be the appropriate order for Community Legal Service funding assessment for the appropriate period.  Counsel have agreed to prepare a Minute of Order accordingly.
49.	I would pay tribute to the careful and attractive way in which Mr Walker presented his arguments (both written and oral).  He said all that could be said on the defendants’ behalf.  I would not, however, like the defendants to think that they have lost on a technicality.  First, what happened here is not a technicality.  Second, while some aspects of Mr Walker’s substantive arguments on the appeal seemed to me to have prima facie force, others were by no means assured of success – although of course, there not having been full argument on those points, no concluded view can be expressed.  It is also unfortunate, to say the least, that the defendants’ appeal – their own evidence at trial having been roundly rejected – was based on a point which was never pleaded and to which the claimants’ evidence as filed before trial in consequence was not specifically directed.
Lord Justice Richards:
50.	I agree.
Lord Justice Longmore:
51.	I also agree.