Colin Hall v Gerald Harris and Others

JurisdictionEngland & Wales
JudgeLord Justice Rimer,Lord Justice Maurice Kay
Judgment Date25 October 2011
Neutral Citation[2011] EWCA Civ 1828
Date25 October 2011
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: B2/2011/1244

[2011] EWCA Civ 1828

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM WORCESTER COUNTY COURT

(HIS HONOUR JUDGE PEARCE-HIGGINS QC)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Maurice Kay

and

Lord Justice Rimer

Case No: B2/2011/1244

Between:
Colin Hall
Applicant
and
(1) Gerald Harris
(2) Cynthia Harris and
(3) Shirley Moore
Respondents

The Applicant appeared in person.

Mr Giles Harrison-Hall (instructed by Stallard March & Edwards Solicitors) appeared on behalf of the Respondents.

Lord Justice Rimer
1

The proposing appellant is Colin Hall, who has represented himself at all stages of these proceedings. He appears before us in person. He is a farmer and his farm is Moat Farm at Callow End, Worcestershire. In January 2007 he commenced two sets of proceedings in Worcester County Court, using CPR Part 8 claim forms. In one claim he sued a neighbour, Shirley Moore; in the other he sued other neighbours, Gerald and Cynthia Harris. The three defendants respectively own land at Luckwards Hill, Powick, Worcestershire. That land is common land and is subject to rights of common of pasture registered under the Commons Registration Act 1965. Mr Hall asserted in his claims that, as the tenant of his farm, he was entitled to exercise such rights and he brought his claims with a view to asserting and establishing them and restraining the defendants by injunction from obstructing his enjoyment of them.

2

The defendants disputed that Mr Hall was entitled to the rights he claimed and indeed Mr and Mrs Harris started their own Part 7 claim against Mr Hall. A preliminary issue in Mr Hall's actions was tried before His Honour Judge Geddes as to whether he was entitled to the rights. Judge Geddes held that he was not. He made declarations accordingly and granted injunctions restraining Mr Hall from entering Luckwards Hill.

3

Mr Hall sought permission from the Court of Appeal to appeal in each of his two cases against that ruling. A single Lord Justice refused permission on the papers but I granted it on a renewed application at an oral hearing. Mr Hall's appeals were then heard by a full court comprising Rix and Toulson LJJ and myself. Mr Hall represented himself and the respondents were represented by Mr Giles Harrison-Hall of counsel, instructed by two separate firms of solicitors for the three respondents.

4

The outcome was that the court allowed Mr Hall's appeals. The judgment, of which the neutral citation number is [2009] EWCA Civ 201, is dated 18 March 2009. By its orders the court set aside the orders made by Judge Geddes and declared that Mr Hall was entitled in his capacity as a tenant of Moat Farm to exercise over the relevant land the rights of common of pasture registered in Worcestershire County Council's register as attached to Moat Farm. The orders, however, included a proviso to the effect that the precise nature and extent of the rights were to be determined by the county court, to which the court remitted the proceedings so that Mr Hall's claims could be finally heard and disposed of.

5

The remitted claims, and also Mr and Mrs Harris's separate claim, came on for trial before His Honour Judge Pearce-Higgins QC. His Honour Judge Rundell had, in the meantime, directed on 15 March 2010 that all three claims should be consolidated. Mr Hall appeared in person and Mr Harrison-Hall again appeared for the defendants. We have a draft judgment dated 16 December 2010 that the judge delivered, his subsequent order being dated 4 April 2011. The main issue before the judge was as to the nature of Mr Hall's claimed rights, the principal dispute being whether, as the defendants claimed, the rights were exercisable only one year in three or whether, as Mr Hall claimed, they were exercisable annually. The judge held that the former was the answer, a conclusion to which he came by considering the factual evidence relating to the exercise of the rights prior to their registration under the 1965 Act. Mr Hall had contended that that method of answering the issue was not open to the judge, on the basis, so he asserted, that the extent of his rights was exclusively to be determined by what appeared on the Register, which said nothing about the rights being exercisable only one year in three. The judge also made certain ancillary declarations as to the manner in which the rights may be exercised.

6

By two Appellant's Notices, each filed with the Court of Appeal on 9 May 2011 and so 14 days late, Mr Hall asks for permission to appeal against the judge's orders and for an extension of time for appealing. His main ground is a challenge to the "one year in three" holding, but he also challenges the various ancillary declarations that the judge made.

7

There is, or was perceived by the Court Office to be, a preliminary difficulty in dealing with Mr Hall's proposed appeals, which is why Maurice Kay LJ directed this oral hearing on notice to the respondents, who have again appeared by Mr Harrison-Hall. The difficulty — or apparent difficulty — is that, as Mr Hall's claims in the county court were brought by way of claims made under CPR Part 8, the effect of paragraph 4 of the Access to Justice Act 1999 (Destination of Appeals) Order ( SI 2000/1071) is that any appeal against Judge Pearce-Higgins' order lies not to the Court of Appeal but to the High Court. On the face of it this court, therefore, has no jurisdiction to deal with the permission applications or with the extension of time for appealing that Mr Hall seeks in them. These matters would have to be dealt with, so it appeared, by the High Court. I add that for like reasons it follows that there is — or may be — a question as to the jurisdiction under which this court heard Mr Hall's appeals in 2009. All I need say about that is that the point about the court's...

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