Howe and another v Gossop and another
| Jurisdiction | England & Wales |
| Judge | Judge Behrens |
| Judgment Date | 26 August 2016 |
| Neutral Citation | [2016] EWHC 2169 (Ch) |
| Date | 26 August 2016 |
| Court | Chancery Division |
| Docket Number | Case No: A00SC044 |
[2016] EWHC 2169 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
LEEDS DISTRICT REGISTRY
The Court House
Oxford Row
Leeds LS1 3BG
His Honour Judge Behrens
sitting as a Judge of the High Court in Leeds
Case No: A00SC044
Neil Cameron (instructed by Williamsons) for the Claimants
Christopher Moss (instructed by Stephensons) for the Defendants
Hearing date: 23 August 2016
Judgment Approved
This is an application by the Claimants for permission to appeal against a ruling by Mr Recorder Duncan Smith ("the Recorder") made on 20 May 2016 in a neighbour dispute between the parties. In the ruling the Recorder refused to recuse himself from dealing with the trial further and refused to order that the trial should recommence before a different judge.
. By the 20 May 2016 there had been a number of hearings before the Recorder. These comprised a 3 day trial on 15, 16 and 17 June 2015 following which judgment was reserved, and 3 further hearings on 20 July 2015, 16 November 2015 and 13 April 2016. It will be necessary to set out the chronology in some detail but for present purposes it is to be noted that the Recorder sent out two draft judgments to the parties – one in early July 2015 and the other on 14 October 2015. Neither of these judgments were formally handed down. Furthermore, on 16 November 2015 he granted the Defendants permission to amend the relief claimed in the Counterclaim and also made provision for further evidence in relation to that issue. Further witness statements have been filed in pursuance of his order.
. As might be expected the draft judgments contained the Recorder's assessment of the evidence he had heard in the 3 day trial. In that assessment he formed a very adverse impression of Mr Howe. He described him as tendentious in character with an overbearing personality. He concluded that Mr Howe had attempted to bribe his son (who gave evidence on behalf of the Defendants) to give evidence in accordance with his (Mr Howe's) preferred version of events. He described this as an attempt to pervert the course of justice. Unless corroborated the Recorder did not accept Mr Howe's version of events as reliable. On the other hand he found the evidence of Mr Howe's son and that of the Defendants to be reliable.
. The application for the Recorder to recuse himself was principally based on the fact that he had formed a firm view on the reliability of the witnesses at a time when, in the events that have happened, there is further contentious evidence to be called. In those circumstances it is submitted that the Recorder cannot be impartial and there is at least the appearance of bias.
. The Recorder rejected that argument. He concluded that there was no actual bias and no imputed bias against the Claimants. The Claimants seek permission to appeal against that ruling. Their principal argument was the argument raised before the Recorder. However Mr Cameron, in his helpful submissions on behalf of the Claimants, made a number of points based on the forms filled in by the Recorder as a result of refusing permission to appeal. Mr Moss sought to uphold the order of the Recorder. He submitted that this was a blatant attempt by the Claimants to obtain a second bite at the cherry where they had in effect lost and been disbelieved at the first attempt. He pointed out that the Defendants had already incurred costs of £100,000 in this dispute and they should not be compelled to incur the risks and expense of a further lengthy trial.
. On 20 June 2016 I refused permission to appeal on paper. However, I indicated that if an application was made for an oral hearing the appeal itself would follow the application in the event that permission was granted. At the hearing I directed that both the application and the appeal would be dealt with at the same time.
. Having heard the arguments, I have come to the conclusion that the appeal is arguable. I accordingly grant permission to appeal. The remainder of this judgment is concerned with the appeal itself.
The issues in the dispute.
. On 16 September 2011 the Claimants and a Company under their control transferred some land at Barton-Upon—Humber to the First Defendant ("Mrs Gossop"). The land is described as Barn 1, the Hay Barn and some surrounding land. It is shown coloured purple and yellow on Plan 1 attached to the Particulars of Claim. The Claimants retained land surrounding that which was sold to the Defendants including a house and garden known as White House Farm which they occupy as their residence.
. The proceedings were issued in the Scunthorpe County Court on 21 March 2014. In the Particulars of Claim dated 13 March 2014 settled by Mr Cameron the Claimants made 8 claims. The Defence and Counterclaim settled by Mr Moss was dated 21 April 2014. The Reply and Defence to Counterclaim settled by Mandy Anfield was dated 2 May 2014. The pleaded issues may be summarised:
Claim 1
. The Transfer contained a positive obligation on Mrs Gossop to relay the surface of the New Roadway to the satisfaction of the Claimants within 15 months. It was alleged that Mrs Gossop was in breach of this obligation.
. In the Defence it was alleged that the Defendants had complied with the covenant and that the roadway had been relayed to a very high standard.
. It was further alleged that under the terms of the covenant the Claimants were obliged to pay the Defendants £7,000 on completion of the work. A cheque for £7,000 was sent and stopped. No payment has been made.
. In the Reply and Defence to Counterclaim issue was joined as to whether Mrs Gossop had complied with the covenant.
Claim 2
. The Transfer contained a positive covenant by Mrs Gossop to construct boundary structures along all the boundaries and to erect gates at the north and south termini of the Roadway. It was alleged that Mrs Gossop had not erected boundary structures on any of the boundaries and had not constructed a gate at the northern terminus.
. In the Defence the breach was denied. The substance of the Defence was that gates were placed in the positions orally requested by Mr Howe rather than the positions specified in the Transfer. Thus there was an alternative suggestion that the Claimants are now estopped from demanding that they be placed in the positions specified in the Transfers.
. Issue is joined in the Reply.
Claim 3
. The Transfer contained a restrictive covenant restricting the use of the land to that of a private dwellinghouse save that it permitted the use of the Hay Barn for any use connected with haulage business operated by Mrs Gossop. It was alleged that Mrs Gossop was in breach in that she had permitted the land surrounding the Hay Barn to be used for purposes connected with Mr Gossop's haulage business. The surrounding land was shown hatched yellow on a plan and included land not included in the Transfer which thus belonged to the Claimants.
. In the Defence it was denied that the use was in breach of covenant. It was denied that the use was commercial. Furthermore, any alleged encroachment was with the express consent of Mr Howe.
. No additional allegations are made in the Reply.
Claim 4
. The Transfer contained a covenant by Mrs Gossop not to obstruct the New Roadway. It was alleged that Mrs Gossop had obstructed the new Roadway by erecting and storing materials on it and parking vehicles on it. It was further alleged that these acts were an excessive user of the Defendants' right of way over the New Roadway.
. In the Defence it was denied that any materials were stored on the New Roadway and that no vehicles were ever parked there. It was, however, admitted that on one occasion a digger lent by Mr Howe broke down on the New roadway when it was being returned to him.
. No additional allegations are made in the Reply.
Claim 5
. The Transfer contained a covenant by Mrs Gossop not to obstruct the Roadway. It was alleged that Mrs Gossop locked the gate at the southern end of the Roadway between 29 November 2013 and 1 December 2013. During that 3 day period the Defendants stored materials on the New Roadway and parked a large goods vehicle on it in such a way as to deny the Claimants access to White Hart Farm.
. In the Defence the allegations were described as trivia. It was pointed out that keys to the gates were provided to Mr Howe. In so far as the claims relate to the New Roadway the defence to claim 4 is repeated. The suggestion that the Claimants were entitled to "aggravated damages" was nonsense.
. In the Reply the Claimants denied that they were provided with keys to the gates.
Claims 6 and 7
. Both of these are claims in trespass. In summary it was alleged that there was an area (part of the green land) which the Defendants had incorporated into the lawn of the Barn and an area (part of the yellow land) which had been incorporated into the Hay Barn area. Neither of these areas were included in the Transfer.
. The trespasses are denied. Paragraph 25 of the Defence reads:
"the Defendants aver that any alleged trespass by them onto the Claimant's land has been with the express consent of the Claimants. Particularly the Claimants at one stage wanted to offer land ("the extra land") instead of the £7,000 payment. The Defendants carried out extensive work and returfing of the extra land with the Claimants full consent such that the Claimants are now estopped from making allegations of trespass in respect of the extra land."
. In the Reply this paragraph is denied.
Claim 8
. This was a further claim in trespass. It was alleged that the Defendants have driven vehicles up the existing track from their land for the...
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