David Frank Devere v Hither Green Developments Ltd
| Jurisdiction | England & Wales |
| Judge | Lady Justice Sharp,Lady Justice Arden,Lady Justice Gloster |
| Judgment Date | 06 October 2015 |
| Neutral Citation | [2015] EWCA Civ 1365 |
| Docket Number | B2/2015/0620 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 October 2015 |
[2015] EWCA Civ 1365
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT
SITTING IN CENTRAL LONDON
(HIS HONOUR JUDGE SAGGERSON)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lady Justice Arden
Lady Justice Gloster
Lady Justice Sharp
B2/2015/0620
The Appellant appeared in person
Mr N Trompeter (instructed by Iliffes Booth Bennett) appeared on behalf of the Respondent
The Appellant, Mr David DeVere, appeals against the order of HHJ Saggerson dated 13 February 2015 by which he was committed to prison for 6 months suspended for 2 years for repeated breaches of the order of Langstaff J dated 14 January 2011 ("the Appeal Order").
For the reasons that follow, I would dismiss this appeal.
The Respondent is the freehold owner of an irregularly shaped plot of land situated at Ferry Quays at Brentford, Middlesex ("the land") which is registered at HM Land Registry under various title numbers, including AGL84832. The Respondent is successor in title to the Mayor and Burgesses of the London Borough of Hounslow ("Hounslow").
The land at its southern boundary is adjacent to the River Brent. The length of a concrete riverbank wall ("the concrete wall") between two points marked 'A' and 'B' on the title plan is not included in the title. Immediately abutting the concrete wall on the landward side is a paved or cobbled strip of land, about 4 metres wide at its widest ("the strip").
In June 2011 the Respondent erected a gate ("the gate") on the strip at a position close to the point marked 'A' on the title plan. The gate provides the only means of access to and egress from certain moorings on the River Brent which were constructed by the Respondent following a relatively recent grant of planning permission.
Mr DeVere has a connection to a Dutch barge called Ambulant which was for a time, but is no longer, moored at a wharf called Point Wharf forming part of title number AGL84832. He says he is a trustee of it. He is currently the subject of a General Civil Restraint Order made by His Honour Judge Anthony Thornton QC on 21 October 2013 which is due to expire on 21 October 2015.
Mr DeVere has for many years sought unsuccessfully to assert title and ownership of the concrete wall and the strip and continues to do so. It is unfortunately the case, as was said in different proceedings as long ago as 2008, that he has developed something of an idée fixe on this issue. Inevitably, perhaps, this has given rise to a significant amount of litigation, of which these proceedings are the latest manifestation. The earlier litigation, as summarised in the Respondent's skeleton argument at para 11, gives something of a flavour of the history.
(1) In Hounslow v DeVere (2 October 2000 unreported), Mr Jules Sher QC sitting as a Deputy High Court Judge gave judgment for Hounslow in proceedings in which it sought an order for possession of the strip. Mr Sher said:
"The London Borough is entitled to its order based upon its paper title alone. There does not appear to me to be any realistic possibility of anyone other than the London Borough of Hounslow and the British Waterways Board being the persons in whom the legal estate to the strip was vested immediately before the 1st of August 2000 when the British Waterways Board effectively conveyed and transferred all its interests, if any, in that strip to the London Borough of Hounslow."
(2) In Hither Green Developments Limited v DeVere (19 December 2002 unreported) the Respondent sought an injunction restraining Mr DeVere's use of the strip. HHJ Oppenheimer QC dismissed the Respondent's claim broadly because Mr DeVere's use of the strip was permitted under a public right of way. However the judge said:
"I therefore take it that Hither Green's paper title is no longer in issue. Suffice it for me to say that if it was still in issue, I would have held that the legal estate of the land, comprising title number AGL84832 and registered in the name of Hither Green, runs all the way down to the river wall for the reasons set out in paragraphs 2 to 6 of the first skeleton argument of Mr Bruce acting for Hither Green, with the exception of the submission at paragraph 4 that the Defendants are issue estopped from contending that Hither Green's paper title is any way defective by virtue of the judgment of Mr Sher QC. The reason for this is I have not heard argument, because I have not had to, on the question as to whether that judgment could give rise to an issue estoppel in this action."
(3) On 23 August 2004, in Graham and DeVere v British Waterways Board (unreported) DJ Allan struck out the claim by Mr Graham and Mr DeVere for possession of a stretch of the bed of the River Brent, a portion of the concrete wall and the strip. The judge said:
"Insofar as the claim relates to the strip of land on the landward side of the canal wall, it is clearly an abuse of process and an attempt to re-litigate matters previously determined both in the High Court and in this court and to run arguments in part previously unsuccessful and in part inconsistent with their previous position."
(4) On 5 June 2007 in British Waterways Board v DeVere (unreported) HHJ Oppenheimer QC granted summary judgment to the British Waterways Board in relation to its claim for a declaration that Mr DeVere was not in possession of and had no title to the canal and canal wall, the canal bed or any part of it at Point Wharf.
(5) On 26 June 2008 in DeVere v British Waterways Board [2008] EWHC 2475 (Ch) Mr John Jarvis QC sitting as a Deputy Judge of the High Court granted an extended Civil Restraint Order against Mr DeVere. At paras 65 to 67 the judge said:
"65… This sad saga reveals quite clearly a man who will not take no for an answer. I believe Mr DeVere has an idée fixe that he has a title in some way to the riverbed and the land adjoining to it and whenever a court tells him he is wrong, he will go on and on, as this saga illuminates.
66. I have also recorded how in order to support his idée fixe, he finds it necessary to make statements to the court which are not true…
67. On any basis, I consider Mr DeVere to be a vexatious litigant who has habitually made applications which have no prospect of success. They can be described as doomed to failure, misconceived or hopeless. In short, they should never have been brought. Mr DeVere should have taken no for an answer when he was first so told by His Honour Judge Oppenheimer and certainly when he was told by District Judge Allen what the true position was."
The present proceedings arise more directly out of what occurred between 2006 and 2008, when on various occasions Mr DeVere poured paint on to the strip, making what purported to be road markings or something similar, and thereby damaging the strip.
This activity led the Respondent to issue a claim against Mr DeVere in the Brent County Court in October 2008 (claim 8BFO4137) for an injunction and damages; and it was granted an interim injunction on 24 November 2008 ("the interim injunction"). The interim injunction restrained Mr DeVere from painting or interfering in any way with the land (which included the strip).
Mr DeVere then breached the interim injunction by once again pouring paint on to the strip: first, in the early hours of the morning of the 2 March 2009; and secondly, on two occasions in the early hours of the 23 April 2009. As a result, the Respondent applied for an order committing him for contempt. On 5 October 2009 the committal application came before HHJ Oppenheimer QC who found the allegations proved. He committed Mr DeVere to prison for a period of 6 months.
On 5 November 2009 Mr DeVere made a successful application to the same judge through solicitors instructed on his behalf, to purge his contempt, and he was released from custody. At that hearing the judge ordered Mr DeVere to file any defence or counterclaim to the substantive claim by 4.30 pm on 17 December 2009. Mr DeVere failed to do this; and the Respondent accordingly applied for judgment in default of defence.
On 14 June 2010, the default application came before HHJ Oppenheimer QC. Mr DeVere was present at the hearing. The judge entered judgment in default in favour of the Respondent. The judge also granted an injunction endorsed with a penal notice ("the Injunction Order"). This said:
"It is ordered and declared that:
(1) The Claimant [that is the Respondent] is the freehold proprietor of the properties listed in the schedule hereto ("the properties") and the Defendant [that is Mr DeVere] has no rights over or interest in the properties whatsoever, including any rights of adverse possession.
(2) The injunction order made by Judge Oppenheimer QC on the 24th November 2008 shall continue in full force and effect until further order of the court. For the avoidance of doubt, this means that until further order of the court the Defendant must refrain from painting or interfering in any way with the land at Ferry Quays, Brentford, Middlesex, TW8 0AG, which is edged red on the plans which appear at pages 28, 53 and 72 of the exhibit to the witness statement of Mr Michael Barnes dated the 9th October 2008 (and which also appear respectively at pages 142, 131 and 159 of the exhibit to the witness statement of Mr Ralph Banks dated 12th April 2010).
SCHEDULE
The properties are…
(2) The freehold land shown edged with red on the plan of the property registered at HM Land Registry under title number AGL84832."
Mr DeVere was subsequently given permission to appeal against the...
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