Kitzing v Fuller
| Jurisdiction | England & Wales |
| Judge | Judge Hodge |
| Judgment Date | 31 March 2016 |
| Neutral Citation | [2016] EWHC 804 (Ch) |
| Date | 31 March 2016 |
| Court | Chancery Division |
| Docket Number | Case No. C30MA228 |
[2016] EWHC 804 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MANCHESTER DISTRICT REGISTRY
Manchester Civil Justice Centre,
1 Bridge Street West,
Manchester, M60 9DJ.
His Honour Judge Hodge QC
sitting as a Judge of the High Court
Case No. C30MA228
Mr Adam Rosenthal (instructed by Messrs Loxley, Gloucestershire) appeared as counsel on behalf of the claimant.
Mr Thomas Grant QC and Mr Christopher Newman (instructed by Metis Law LLP, Leeds) appeared as counsel on behalf of the defendant.
APPROVED JUDGMENT
Judge Hodge QC:
This is my extemporary judgment in a claim by Diana Carolyn Kitzing against Jason Victor Fuller, claim number C30MA228. This is the adjourned hearing of the claimant's application, issued on 1st March 2016, for an interim injunction to restrain the defendant from interfering with the claimant's sporting rights over freehold and (in part) concurrent leasehold land owned by the defendant known as Winsley Hurst Hall and situated at Burnt Yates, Harrogate in the County of North Yorkshire. The claimant's application first came before the court in the interim applications list in Manchester on 4th March 2016. On that occasion the claimant was represented by Mr Duncan Heath (of counsel) and the defendant was represented by Mr Christopher Newman (also of counsel). The application had been estimated at only an hour. It soon became quite apparent that that time estimate was wholly inadequate and, indeed, that the matter should be stood over as an application by order. For the reasons that I gave in an extemporary judgment delivered that morning (and a transcript of which has since been obtained and approved), I refused to grant any interim injunctive relief over to the effective hearing of the application. My order recorded that the defendant had agreed not to carry out any further tree felling or clearance of laurel and rhododendron bushes in an area marked red on the first three unnumbered pages of exhibit MK1 attached to the supporting witness statement of Mr Mark Kitzing (the son of the claimant) dated 25th February 2016 until the return date of the application. On the basis of that assurance, the order provided: (1) that the application was adjourned to be heard on 29th and 30th March 2016, with a time estimate of two days, and that the following directions should apply to the application; (2) the defendant was to file and serve any evidence in opposition to the application by 4 o'clock on Monday 14th March; (3) the claimant was to file and serve any evidence in response by 4 o'clock on Monday 21st March; (4) in the event that the respondent did not act in accordance with the respondent's assurance, the applicant had permission to reinstate the application prior to the return date upon 24 hours' notice to the respondent's solicitors by email; (5) the costs of the application were reserved.
The evidence filed in support of the application took the form of a single witness statement dated 25th February 2016 from the claimant's son, Mr Mark Eberhard Kitzing, who is also the manager of the shoot organised on a non-commercial basis by the claimant, together with exhibit MK1, which extended to some 290 pages of documents and photographs. Evidence in answer to the application was filed by and on behalf of the defendant in accordance with the terms of my order. There were three witness statements. The first was that of the defendant himself, Mr Jason Victor Fuller. That witness statement runs to some 106 paragraphs and exhibits various photographs as exhibit JVF1 and various documents as exhibit JVF2. Secondly, there was a witness statement from the defendant's social partner, Miss Katy Van Pagh. Thirdly, there was a witness statement from the defendant's estate manager, Mr Robin Hardcastle. All of those witness statements were dated 14th March 2016. Evidence in response from the defendant took the form of four witness statements, all dated 18th March 2016. First, there was a second witness statement of Mr Kitzing, together with exhibit MK2. Secondly, there was a witness statement from the claimant herself, together with exhibit DK1. Thirdly, there was a short witness statement from Mrs Bethany Kitzing (who is the wife of Mark Kitzing and thus the daughter-in-law of the claimant). Fourthly, and finally, there was a witness statement from Mr Richard Baldwin, who is a chartered surveyor and a member of the Winsley shoot managed by Mr Mark Kitzing on behalf of his mother, the claimant.
Prior to the service of the claimant's responsive evidence, there was an exchange of letters between the parties' solicitors: Loxley, for the claimant, and Metis Law, for the defendant. That exchange of correspondence is dated 16th March 2016 and can be found at divider 14 of the application bundle. The letter from Loxley stated that the writer had reviewed the defendant's witness statements and, as to Mr Fuller's future intentions, it was said to appear from his witness statement that he had completed all the felling and clearing works he had planned. However, the writer did note that Mr Fuller had said that he had some replanting and spreading of woodland mix to be done when the weather was right. In the light of that, Loxley saw no reason why the defendant could not agree to extend the assurance he had given not to carry out further tree felling or clearance of laurel and rhododendron bushes pending the trial of the action. If the defendant was prepared to agree to that, the claimant was prepared to agree to an order suspending her application until trial on the same terms as the order made on Friday 4th March. In other words, the defendant's assurance would be recorded in the recital to any order and the claimant would be at liberty to apply to reinstate her application if the assurance was breached. It was said that that would give the claimant comfort that the status quo would be preserved until trial, whilst the defendant would not be subjected to any injunction and attendant penal notice, the prospect of which clearly exercised him. Loxley inferred that that might be why the defendant was reluctant to give an undertaking but was prepared to give an assurance. The letter continued:
"In respect of the proposed replanting works and spreading of woodland mix that your client refers to in his witness statement, our client recognises that between now and trial there may be certain works on the ground that become necessary for perfectly sound estate management reasons. Subject to being provided with full details of any works that are proposed, she will be entirely sensible about any such works and, during the period to trial and upon reasonable notice, she will be willing to consent to any necessary works being carried out on a case by case basis. We invite you to seek instructions on our client's proposal. If it is rejected, please provide reasons as to why your client is not prepared to extend the assurance. In light of the significant costs that we are about to incur in replying to your client's lengthy witness statements, we would ask for a response by 5 p.m. today."
In the letter in response, Metis Law made it clear that the defendant did not agree to the claimant's proposal for the following reasons: First, it was said to be clear from the defendant's evidence that, quite apart from the underlying lack of legal merit of the claimant's application, the defendant did not in fact intend to carry out the acts which the claimant sought to enjoin. He had stated that through counsel at the hearing on 4th March and in correspondence from Metis Law to Loxley before that date. Nonetheless, the claimant had persisted in seeking to have a substantive hearing listed. The defendant had now repeated his position in a witness statement verified by a statement of truth. The law was said to be set out in Gee on Commercial Injunctions at paragraph 2.029 and Metis Law did not intend to repeat it in their letter. The defendant did not need to give the claimant any form of assurance recorded as a recital in an order. He had stated his position clearly in a witness statement and, as a result, Metis Law did not believe that the court would or should order an injunction against him. Indeed, it was said now to be clear from Loxley's letter that it had realised that it would be inappropriate and improper to seek an injunction against the defendant — a point which Metis Law said they had been making since Loxley had first intimated their application. Secondly, the proposal from Loxley was said to be in marked contrast to the position adopted by Mr Heath at the hearing on 4th March — and reference was made, by way of example, to paragraph 7 of his skeleton argument. Thirdly, it was said to be clear from Loxley's letter that the consequence of the form of order that Loxley sought would be that the defendant would have to seek the claimant's consent, upon reasonable notice being given, to take any steps of felling or clearance at all on the vast bulk of his land. Indeed, it was said to be clear that the claimant now went further and expected to be given reasonable notice of any works proposed to be carried out on the property by the defendant, including replanting works, and to have a right to withhold consent, subject to being "entirely sensible about any such works". Quite apart from whether the claimant would be "entirely sensible" about that, which the defendant seriously doubted, the proposition that the defendant should be required to seek the claimant's consent to how he managed his estate only needed to be stated to be revealed as misconceived. Fourthly, it was also said to be clear that by accepting, in Loxley's letter, that the defendant was entitled...
To continue reading
Request your trial
-
Jason Victor Fuller (Part 20 Claimant) v Diana Carolyn Kitzing and Another (Part 20 Defendants)
...Mr Fuller which was dismissed by me in an extemporary judgment delivered on 31 st March 2016 which bears the neutral citation number [2016] EWHC 804 (Ch). Essentially I held that there was just about an arguable case of interference with Mrs Kitzing's sporting rights but that there was no ......
-
Rafael Advanced Defense Systems Ltd v Mectron Engenharia, Industria E Comercio SA
...to do something which it appears to be willing to do without the imposition of an order of this court." 27 Reference was also made to Kitzing v Fuller [2016] EWHC 804 (Ch) where HHJ Hodge QC, sitting as a judge of the Chancery Division, said at paragraph 30: "In all cases where injunctive r......