Devere v Hither Green Developments Ltd
| Jurisdiction | England & Wales |
| Judge | Lady Justice Hallett |
| Judgment Date | 13 June 2012 |
| Neutral Citation | [2012] EWCA Civ 856 |
| Date | 13 June 2012 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2011/0330 |
[2012] EWCA Civ 856
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE LANGSTAFF)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Hallett
Case No: A2/2011/0330
The Applicant appeared in person.
The Respondent did not appear and was not represented.
(As Approved)
This application concerns an ongoing dispute as to the title to an area of land, Ferry Quays, Brentford. The applicant, Mr Devere, who has appeared in person, has applied for permission to appeal the order of Langstaff J made on 11 February 2011 pursuant to his judgment on 14 January 2011, the effect of which is to prohibit the applicant from interfering with the land in question. Permission to appeal was refused by Hughes LJ, and Mr Devere has renewed his application before me orally this morning.
The matter came before Langstaff LJ on appeal from the decision of HHJ Oppenheimer on 14 June 2010. There were a number of grounds of appeal including grounds relating to the service of the original claim form. Langstaff J allowed the appeal, but exercised his powers to determine the matter himself as a judge of the County Court. Mr Devere must face, therefore, two different hurdles in seeking permission to appeal. In part, his application is to be treated as a first appeal, and in part the application is to be treated as a second appeal.
The background can be shortly stated. In about 1996, a Mr Graham moored his houseboat at Ferry Quay, and a year or so later Mr Devere moored his houseboat adjacent to Mr Graham. The land next to the mooring is currently registered in the proposed respondent's name at the Land Registry, and its use and its ownership are the subject of the dispute. Both Mr Graham and the appellant together began to clear the area and cultivated a garden on the land. In the year 2000, the proposed respondent's predecessor in title, the London Borough of Hounslow, brought a claim against the appellant and Mr Graham, asserting legal title to the land, and seeking vacant possession. Jules Sher QC, sitting as a deputy judge of the High Court on 2 October 2000, held that the Borough did indeed have legal title and made an order that the appellant and Mr Graham give vacant possession. However, Mr Devere informs me and insists that neither the London Borough nor the respondent as successor in title took any steps to enforce that order.
At some time prior to 2008, Mr Devere used road marking paint to paint squiggly lines on the concrete. On 28 October 2008 the respondent issued proceedings claiming that the painting amounted to an act of trespass and they sought an injunction to prohibit the appellant from damaging or otherwise trespassing on that land. Mr Devere criticises them for proceeding in this way rather than attempting to enforce the original order of Jules Sher, and of taking out proceedings essentially to enforce the same rights that they had already claimed and had already been dealt with.
The action began with a dispute about proper service. The proposed respondent attempted first to email the claim form in November 2008, an email which the appellant denied ever receiving. At a hearing in November 2008 HHJ Oppenheimer granted the injunction despite the problems with service.
The appellant was then accused of breaching the terms of the injunction by further painting on the land, and the respondent applied for an order that he be committed for contempt of court. The appellant was served personally with the application, and at a hearing on 5 October 2009 he was committed for a period of six months.
On 5 November 2009 his then solicitor applied for his contempt to be purged, but it was also argued on the applicant's behalf that the actions supporting the committal for contempt should be struck out for want of proper service. Counsel for the respondent very properly acknowledged that there was a problem with the original service of the claim form, and he sought to make an application under CPR 6.15 to regularise retrospectively the irregular service of the claim form. HHJ Oppenheimer chose instead to resolve the issue by ordering re-service of the claim form and Particulars of Claim to the appellant's email address and by post to what the judge thought was the London office of the appellant's solicitors. The judge's understanding was based on the fact that this is what Mr Jones, the applicant's solicitor told the judge during the course of the contempt hearing. Thereafter, the claim form and particulars of claim were sent to the solicitors, but to a different office from the one stated in the order. Nevertheless the solicitors acknowledged service at the same time as registering their protest at the way service had been effected.
No defence was filed, and the respondents applied for judgment in default under CPR 12. The case was heard by HHJ Oppenheimer at Brentford County Court on 14 June 2010. Mr Devere again contended at that hearing there had been no proper service and the court...
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David Frank Devere v Hither Green Developments Ltd
...effectively conveyed and transferred all its interests, if any, in that strip to the London Borough of Hounslow." 9 (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 Q......