Giles (Respondent Appellant) v Tarry and Another (Appellants Respondents)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice Moore-Bick,Lord Justice Rix |
| Judgment Date | 02 October 2012 |
| Neutral Citation | [2012] EWCA Civ 1886 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2012/0655 |
| Date | 02 October 2012 |
[2012] EWCA Civ 1886
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORTHAMPTON COUNTY COURT
(HIS HONOUR JUDGE HARRIS QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Rix
Lord Justice Moore-Bick
Lord Justice Lewison
Case No: B2/2012/0655
The Appellant appeared in person.
The Respondents did not appear and were not represented.
As Norris J put it in a previous part of this litigation, since 1991 a state of virtual war has existed between Mr Giles and Mr Tarry. The principal dispute relates to the use of a right of way over part of Mr Giles' land which Mr Tarry uses in order to drive his sheep to and from a field served by the right of way. Much litigation has been conducted in the Oxford County Court, before which both Mr Giles and Mr Tarry have been self-represented. In Mr Tarry's case, he has been represented by his granddaughter, Ms Goodwin.
On 2 December 2010 HHJ Charles Harris QC made an order after hearing both parties. However, it was not drawn up until 17 January 2011. Paragraph 1 of the order related to the use by Mr Tarry of an open barn or hovel. Paragraph 3 related to the use by Mr Tarry of the right of way. With the permission of Kitchin LJ, Mr Giles appealed against those parts of the order. His appeal succeeded as regards paragraph 3, but failed as regards paragraph 1. The judgments of this court on that appeal can be found at [2012] EWCA Civ 837, [2012] 2 P&C R15.
In addition to those parts of the order, the judge made other orders as follows:
"(5) that the Claimant [Mr Giles] is to remove the stakes and sockets set into the right of way leading from the yard to the Charlwelton Road by 31 st December 2010 and is not to obstruct the said right of way in any other matter, save that any existing gates may remain so long as they are not locked;
(6) neither party, their servants or agents, tenants or animals is to trespass upon land belonging to the other"
The stakes in question were set into sockets which had been pile-driven into the driveway over which the right of way ran.
Mr Giles applied for permission to appeal on 18 January 2011. His application included an application for a stay of the order requiring removal of the stakes and sockets. That application was refused on paper on 23 June 2011, but as mentioned Kitchin LJ subsequently gave permission to appeal on two points. However the renewed application for permission to appeal which led to the grant of permission did not include that part of the order relating to the stakes and sockets. Accordingly, as from June 2011, there was no possibility of any stay of that part of the order, and Mr Giles was in breach of it in failing to remove the stakes and sockets. Kitchin LJ made his order on 30 November 2011 and judgment on the substantive appeal on those two points was given on 21 June 2012.
On 12 January 2012, while the appeal was still pending, Mr Tarry made an application to the court. It was made by an Application Notice. The Application Notice asked the court to make the following order:
"Enforcement of order 02/12/10.
Order No. 5. Claimant is to remove stakes and sockets set into right-of-way by 31/12/10 and not to obstruct right of way in any other manner…
Order No. 6. Neither party to trespass upon land belonging to the other."
The Application Notice asked for the application to be dealt with without a hearing. In answer to the question posed by the notice, "What information will you be relying on in support of your application"?, Mr Tarry set out his evidence in the box on the form. It read:
"We have delayed enforcement as claimant was appealing for permission to appeal. This was refused on 20/06/11. The stakes were not included in his second appeal of 30/11/11. The appeal court notified me that this would not be dealt with there.
It is over a year since he was ordered to remove the stakes and sockets during this time he has reset and replaced numerous stakes.
The claimant, his family, tenants and pets continually trespass across mine and my family's land.
Mr Giles has no intention of voluntarily complying with the order made against him."
On 26 January 2012 the parties were notified that the application would be heard in Northampton on 20 February. Mr Giles received notice of the application at the end of January 2012, and immediately instructed his solicitors. They wrote to Mr Tarry, saying that the stakes would be removed promptly, which they were. There was no mention of the sockets, which remained in place. The hearing duly took place on 20 February. Once again, both parties were self-represented, and once again the application was heard by HHJ Harris QC. Mr Tarry's granddaughter, Ms Goodwin, told the judge that the stakes had been removed on 12 February 2012, but that the sockets were still there. She also produced to the judge a number of photographs which she said showed Mr Giles trespassing in one of Mr Tarry's fields. Although the sockets presented no problems for vehicles or pedestrians, they were potentially dangerous for sheep.
Ms Goodwin gave oral evidence. In her oral evidence in chief, she made a number of other complaints about Mr Giles. She said that in mid-February 2012, after he had removed the stakes, he had placed tree stumps on either side of the driveway, thus restricting its width. She said that cars had been parked so as to obstruct access to Mr Tarry's field. She referred to a diary of incidents and trespass, which she also produced on the morning of the hearing.
Mr Giles cross-examined her, and then gave evidence himself. His examination in chief was conducted by the judge. Mr Giles told the judge that he had not appreciated that the order required him to remove the sockets, as opposed to the stakes, and that he thought that while he was appealing he did not need to comply with the order. He denied that he himself had trespassed on Mr Tarry's land. He was asked no questions about the tree stumps, and gave no evidence about them. In the course of his evidence, the following exchange took place:
" Judge Harris: I think I ought to make it clear to you that if I find that you have been in breach of the order which I made, one does have to consider a sanction. Clearly, this is not a case where you are going to be sent to prison.
Answer: I am relieved about that, your Honour.
Judge Harris: But there is an alternative sanction, which is to impose a fine of some sort. It is right that I should indicate to you that, if I find that I prefer the evidence by Miss Goodwin to the evidence given by yourself, particularly in relation to the trespass —the stakes speak for themselves —I shall be considering imposing a fine on you for breach of the order."
Mr Giles' response to the judge was that it would unjust and unfair.
In his judgment the judge said:
"5. As to the facts, there is really no dispute about the stakes. I conclude without any difficulty, and having heard Mr Giles, that Mr Giles would not have removed them had it not been for the Tarrys application, and he has not removed the sockets which, though flush with the ground, and no impediment to a vehicle or pedestrian, are open holes which the defendants legitimately fear might be a danger to the feet and legs of their sheep, animals which are periodically driven down the drive. I ordered the removal of the stakes and sockets because they constricted the usable width of access to less than 13 feet, a distance stipulated in an order concluding earlier litigation between the parties in 1975. Having removed the stakes, the claimant has in fact put in place on either side some substantial tree stumps, which themselves limit the width to less than 13 feet, and which are in conflict with paragraph 5 of the order of 2 December 2010.
6. Mr Giles said in evidence that he did not realise that the order of 2 December included reference to sockets. He is a capable man, with a good grasp of legal issues, as is evidenced by his conduct at the trial, and I do not believe that he was unaware of the reference to sockets, and if he was, he should not have been.
7. Ms Goodwin gave evidence to supplement the Application Notice. She put in evidence some photographs and a diary of some recent events. The photographs she took, she says, showed the defendant and his wife on the defendant's land in April 2011, and gave a clear and wholly credible account of what she saw. Coupled with the meeting with claimant near the church soon afterwards, and which he did not deny her assertion that he had been trespassing. She described other occasions in which the claimant's wife, children and dog trespassed on their land, and she became, though in my judgment she is sensible, robust and resilient, clearly distressed when recounting how the defendant and his family behaved towards her, including jumping up from behind a bush and photographing herself and her mother on the day of the Royal Wedding when they came to feed their stock.
8. Mr Giles completed denied that he had ever trespassed. As to the photograph incident, he said that he did not deny that it was his daughter playing in the tree, but he did not admit that he was there with her.
9. I am unhappy to have to conclude, though I do so beyond reasonable doubt, that Mr Giles' evidence is not truthful. I have no hesitation in preferring Ms Goodwin's accounts. I find that the claimant, and on occasions his wife, child and dog, do trespass from time to time on the defendants' fields, and are doing so in breach of the order of 2 December 2010."
Having made those findings, the judge found that he was satisfied Mr...
To continue reading
Request your trial
-
Brian Thomas Taylor v John Robinson
...he can bring an application which does not comply with the requirements of the CPR or of proper particularisation (see Giles v Tarry [2012] EWCA Civ 1886 at [15] per Lewison LJ and Barton v Wright Hassall [2018] UKSC 12 at [18] per Lord Sumption) let alone an application which is an abuse......