Henriksen v Pires
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pitchford,Lord Justice Etherton,Lord Justice Ward |
| Judgment Date | 19 October 2011 |
| Neutral Citation | [2011] EWCA Civ 1720 |
| Docket Number | Case No: A2/2011/0709 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 October 2011 |
[2011] EWCA Civ 1720
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE HICKINBOTTOM)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Etherton
Lord Justice Pitchford
Case No: A2/2011/0709
Mr Waritay (instructed by Hodders Solicitors) appeared on behalf of the Appellant.
Mr Jonathan Price (instructed by Bathurst Brown Downie & Airey LLP) appeared on behalf of the Respondent.
This is an appeal from the order of Hickinbottom J dismissing an application to set aside default judgment under CPR 13. The dispute concerns a two-storey house at 428 Upper Richmond Road in Sheen. The appellant defendant, Mrs Barbara Pires, and the respondent claimants, Mr and Mrs Henriksen, are joint freeholders of the property. Mrs Pires is the lessee of the ground floor of the property, together with the front and back gardens; Mr and Mrs Henriksen are lessees of the first floor flat. There was and is reserved by paragraph 3, schedule 2 to the original lease dated 10 June 1986:
"The right of the occupier of the upper Flat to park one motor car at the front of the property in the area hatched brown and cross-hatched black on the plan annexed hereto subject to the occupier of the upper Flat paying a fair proportion of the costs of the upkeep of the said area hatched black and subject also to the occupier of the upper Flat causing no obstruction to the garage access."
I should add in parenthesis that the garage is no longer in situ.
It is common ground that in about May 2009 Mrs Pires erected a fence across the entrance to number 428 which had the effect of preventing anyone from using the driveway and in particular the sub-lessees of the first-floor flat were prevented from parking a car off the road. The claimants also allege that over a period of time between 2006 and 2008 they had been bombarded by Mrs Pires with unjustifiable demands for the payment of money which they contended amounted to harassment within the meaning given to that term by the Protection from Harassment Act 1997. Mrs Pires' response was that she is due considerable sums of money from the claimants in respect of payments due under their covenants to the landlord.
A claim form was issued in the Kingston County Court in which Mr and Mrs Henriksen sought an injunction and damages. On 13 July 2009 they sought interim orders in the following terms:
"the Defendant (i) remove a fence from in front of the forecourt at 428 Upper Richmond Road, TW10 5DY ('the Property') and allow the Claimants to park one vehicle there; (ii) allow the Claimants to place a rubbish bin and recycling receptacles on the forecourt at the front of the Property; and (iii) desist from communicating with the Claimants and/or the Claimants' tenants for the time being at the Property save through solicitors because (i) the Claimants have a right to park one vehicle on the forecourt of the property and (ii) the Defendant has behaved and unless injuncted continues to behave in a manner which amounts to harassment of the Claimants and their tenants."
The hearing for interim relief took place at the Kingston County Court on notice to Mrs Pires on 26 August 2009. Mr Jonathan Price appeared for the claimants. Mrs Pires appeared in person assisted by Mr Arnold Tarling of BETA Litigation Surveyors who acted as her McKenzie Friend. HHJ Williams was provided with witness statements and exhibits on behalf of the claimants. Mrs Pires sought an adjournment, which was refused, and gave evidence on oath. Included among the documents handed to the judge was an affidavit of service from a process server, Mr Kenneth Donovan, dated 21 August 2009. In its relevant parts it read as follows:
"1. Acting under the instructions of Bathurst Brown Downie & Airey LLP 6, The Mews, Bridge Road, Twickenham, Middlesex TW1 1RE, solicitors acting on behalf of the claimants. I duly attended at 426, Upper Richmond Road West, Richmond, Surrey TW10 5DY at 0750 hours on Thursday 20 th August 2009.
2. At this property I met with a lady who identified herself to me as the defendant Barbara Pires. I personally served the following documentation upon Barbara Pires which she accepted from me:—
(i) Notice of Hearing at the Kingston-Upon-Thames County Court listed for 26 August 2009 at 10.30am;
(ii) Application notice;
(iii) Draft injunction order;
(iv) Claim form;
(v) Witness statement of Per Henriksen;
(vi) Witness statement of Alison Henriksen;
(vii) Witness statement of Jonathan Mills.
3. I exhibit hereto a copy of the aforementioned documentation and this is marked 'A'."
At the conclusion of the hearing HHJ Williams made an order in the following terms:
"Barbara Pires must at her own expense remove or cause to be removed the fence in the forecourt at the front of 428 Upper Richmond Road, TW10 5DY on or before 4.00pm on 3 rd September 2009
and is forbidden (whether by herself or by instruction or encouraging or permitting any other person) to obstruct or in any way interfere or threaten to interfere with the Claimant's rights of way over the forecourt at the front of 428 Upper Richmond Road, TW10 5DY, which for the avoidance of doubt includes the right to park one motor vehicle on the said forecourt and to leave rubbish bins (including recycling bins provided by the London Borough of Richmond) on the said forecourt; and contact the Claimants or their tenants for the time being save through solicitors acting for the claimants namely Messrs Bathurst Brown Downie & Airey."
It is noteworthy that the order did not require a cross-undertaking in damages from the claimants, nor did it contain any cross-undertaking for example that the claimants would not exceed the use of the forecourt to which they were entitled under the covenants to which I have referred.
On 14 October the order was amended upon the application of the claimants to extend the period for compliance with the order to remove the fence until 4pm on 28 October 2008. The reason for the extension was the inability of the claimant's solicitors to effect service of the injunction. Mrs Pires again attended the hearing so she was aware of the amendment. A copy of the order, the application notice and the amendment were personally served by Mr Donovan on Mrs Pires on 22 October 2009.
In the meantime, on 4 September 2009, the claimants' solicitors filed the particulars of claim dated 3 September 2009, a day late, in the county court. They served a copy of the particulars of claim by email on Mrs Pires' nominated representative, Mr Tarling, and sent a further copy by post on the same day, 4 September, to his place of business. Mr Tarling responded on 9 September 2009 saying that "the pleadings" were served out of time. In a witness statement dated 19 October 2010, filed in these appeal proceedings, Mrs Pires says the email was forwarded to her by Mr Tarling on 7 September 2009 but she could not open the attachment. Mrs Pires claims that she remained unaware of the contents of the particulars of claim until she was provided with a copy by her solicitors, Cubism Law, in January 2010. In the same letter Mr Tarling informed the claimants' solicitors that the injunction was the subject of appeal and a skeleton argument would be forwarded within 14 days. It would seem that Mrs Pires attempted to lodge her appeal at the Kingston County Court. No skeleton argument was forthcoming. At the hearing on 14 October HHJ Williams pointed out to Mrs Pires that her appeal should have been lodged at the High Court. On the following day Mrs Pires' notice of appeal was properly filed at the High Court.
On 27 October 2009 the claimants' solicitors lodged a request in writing at the Kingston County Court for judgment in default of an acknowledgement of service and defence. On 5 November 2009 the court entered judgment for the claimants for an amount to be decided by the court. The disposal hearing was listed before DJ Stewart on 19 January 2010. At that hearing he awarded to the claimants damages in the sum of £2000, a continuing injunction until 19 October 2011 and costs summarily assessed at £7086.55.
A month later, on 19 February 2010, Mr Waritay, counsel now representing Mrs Pires, appeared before Sweeney J. Mrs Pires was in breach of requirements to file documents in support of her appeal to the High Court. Part of the problem was the inability of Mrs Pires' solicitors to obtain transcripts of the proceedings on 26 August and 14 October 2009. Sweeney J gave permission to file (i) amended grounds of appeal, (ii) a skeleton argument, (iii) a defence and counterclaim, and (iv) transcripts of the judgments of HHJ Williams and DJ Stewart. On 16 April 2010 Mackay J extended time to 28 May 2010. At a further hearing before Kenneth Parker J the appellant's renewed application for permission to appeal was adjourned with liberty to restore in order to enable the respondents to file evidence. The defence and counterclaim was in fact never filed and remained in draft. It was subsequently appended to the skeleton argument in support of the appeal. I should make clear that by the time of the application to Sweeney J in February 2010 Mrs Pires had changed her solicitors. She was now instructing Messrs Hodders Law of 11 Station Road in Harlesdon.
The matter next came before Burnett J on 12 July 2010 for a permission decision. He pointed out that the hearing which led to the interim injunction was of academic interest only. What was now at stake was the judgment entered on 5 November 2009. There was an absence of information before the...
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