Markos v Goodfellow and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,LORD JUSTICE WALLER,LORD JUSTICE PETER GIBSON |
| Judgment Date | 15 April 2003 |
| Neutral Citation | [2001] EWCA Civ 2031,[2002] EWCA Civ 1542,[2003] EWCA Civ 622,[2001] EWCA Civ 1324 |
| Date | 15 April 2003 |
| Docket Number | NO: A1/2001/1175,B2/2003/0232,A1/2001/1175 |
| Court | Court of Appeal (Civil Division) |
[2001] EWCA Civ 1324
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHEND COUNTY COURT
(HIS HONOUR JUDGE THOMPSON)
Royal Courts of Justice
strand
London WC2
Lord Justice Pill
NO: A1/2001/1175
MRS MILICIA MARKOS, the Applicant in Person (accompanied by her son speaking on her behalf)
Thursday, 26th July 2001
This is an application by Mrs Markos for permission to appeal against a direction of Deputy Master Di Mambro made in April 2001. The direction was:
"Since Mr Justice Mitting refused permission to appear in open court, there is no further right of appeal to this Court: Access to Justice Act 1999 S.54(4), CPR 52.2, (3) and (4), CPR PD 52 para. 4.8 Clark v Perkes [2000] All ER 1."
Mrs Markos was seeking permission to appeal against a judgment of His Honour Judge Thompson given at Southend County Court on 29th January 2001. Mrs Markos has a boundary dispute with Mr Goodfellow. The judge's judgment is detailed. I have heard submissions this morning from Mrs Markos's son who, exceptionally, I have permitted to address the Court on his mother's behalf. Mrs Markos is a lady of mature years who is in Court and I am confident understood the proceedings.
Mitting J refused permission to appeal, as the Deputy Master noted, on 11th April. He did so in the course of a short judgment, to which Mr Markos has referred me. I do not propose to cite the passage concerned but it is at page 2 of the judgment, and page 23 of the bundle. What the judge in substance did was to accept an undertaking from counsel for Mr Goodfellow to apply to the Southend County Court to correct the order of the circuit judge in the sense which Mitting J found it to be in error. He stated that the order could be corrected, in the sense indicated, under the slip rule, CPR part 40.12. Having accepted that undertaking, Mitting J rejected the application for permission to appeal. The order of the Court following his judgment noted that:
"The Respondents/Defendants undertaking to apply pursuant to Civil Procedure Rules Part 40.12 to His Honour Judge Thompson to vary the Order dated the 29th day of January 2001."
The respect in which it is to be corrected and the variations permitted are not set out in the order. There is also reference by Mitting J awarding £2 damages to Mrs Markos. I am told that that sum has not been paid. The changes to the County Court order would be substantial.
Deputy Master Di Mambrio made an order which is entirely understandable in the circumstances. It is rare that a second appeal is permitted in circumstances such as these. Helpfully, the Deputy Master referred to the decision of this Court in Clarke v Perkes where guidance was given as to second appeals, the rarity with which permission to pursue them should be given and the circumstances in which such permission might be given. What the Deputy Master did was to adopt what would be the general approach in the circumstances.
In substance the complaint is against the judgment of Judge Thompson and the manner in which Mitting J dealt with the application for permission to appeal against it. The fact that I propose to grant permission does not involve any criticism whatsoever of the Deputy Master whose decision I have already indicated I fully understand. However, this is, in my judgment, one of those circumstances in which this Court should be prepared to consider a second appeal. I grant permission to appeal with reluctance. This is a dispute over a boundary. The amount of land involved is very slight and I know, as such advocates and with experience of county court litigation know, the costs and strong feelings which are often expended, very often to little good purpose. I am reluctant to give permission to appeal.
Before doing so I insisted that Mr Markos discuss the matter with his mother. I rose for a few minutes to enable him to do so. I wanted to be sure that she understood the possible implications in costs, in worry and in aggravation of the other side of this litigation remaining in existence, as it will, if I grant permission. I am satisfied that Mrs Markos understands that and wishes to pursue the application.
I am concerned, and that is why I grant permission about the procedure which was followed. I well understood Mitting J wishing to bring an end to matters and doing so in the manner he did to achieve proportionality. But the proper processes of the law are involved, and in my judgment it is arguable that the procedure which he followed was not as appropriate one in the circumstances. Having regard to the importance of the CPR being properly applied, it appears to me appropriate this is one of those rare cases in which the applicant ought to have the opportunity to put her points before the Court.
For those reasons I grant permission to appeal the order of the Deputy Master.
(Permission to appeal allowed; a stay on the enforcement of costs order dated 29th January 2001, pending the resolution of the appeal for further order, the condition of the stay that the appeal is pursued at all reasonable diligence)
[2001] EWCA Civ 2031
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM DEPUTY MASTER DI MAMBRO
Royal Courts of Justice
Strand
London
WC2A 2LL
Lord Justice Pill
A1/2001/1175
MR NICHOLAS MARKOS appeared on behalf of the Claimant.
MR STEPHEN WOOLF appeared on behalf of the Defendant.
Today's hearing in this case arises because of a query as to my jurisdiction to make the order I did on 26th July 2001, granting permission to Mrs Markos to appeal against an order of Deputy Master di Mambro. The point arose because of the contents of the practice direction to part 52 of the CPR.
Paragraph 4.8 of the practice direction provides:
“There is no appeal from a decision of the appeal court made at an oral hearing to allow or refuse permission to appeal to that court”.
In present circumstances, the appeal court concerned is Mitting J, who on 11 th April 2001 purported to refuse Mrs Markos permission to appeal against the order of Judge Thompson made at the Southend County Court on 29 th January 2001. The deputy Master took the view that paragraph 4.8 was a complete bar to an appeal to this court. If that is right, the decision cannot be appealed.
The Court has this morning been addressed by Mr Markos on behalf of his mother the applicant and by Mr Woolf of counsel on behalf of the proposed respondents.
Without spelling it out, I underline the substance of what I said in paragraphs 5, 6 and 7 of my judgment on 26th July 2001. Indeed, I have again sought to emphasise to Mr Markos and his mother the risk at which she is putting herself in costs if the matter proceeds. If she wins procedural victories, it may in the end be to no good purpose and indeed may increase the bill of costs against her. I have done my best to explain to her and to Mr Markos the implications of litigation continuing.
Having heard Mr Woolf and Mr Markos, I consider the procedure which has been followed in this case in a little more detail. The judgment of the trial judge, HHJ Thompson, is detailed and on the facts comprehensive. He heard evidence from the parties and from expert witnesses: a chartered surveyor, Mr Pasco, giving evidence on behalf of the applicant and Mr Ray gave expert evidence on behalf of the proposed respondents. The judge stated that where there were differences, he preferred the evidence of Mr Pasco. He stated at page 28(f):
“I do find that all the measurements made by Mr Pasco are correct and that his explanation of how the ground has come to be in the position it is is correct”.
However, the judge went on to hold that the respondents had obtained title by adverse possession to a part of the disputed area. Having regard to that, the conclusion he reached at page 28(c) was that:
“In my judgment, at the maximum, the claimant's case extends to 3 inches of encroachment over a length of possibly 15 feet”.
He stated at page 33(a):
“On my findings, the encroachment is very limited; It is for a short distance and it is for perhaps 4 inches”.
The judge went on to say that:
“That is a matter which falls within the categoryof matters which lawyers call de minimis, which means it is a trifle”.
At more than one place in his judgment the judge referred to the heat which had been generated in this most unfortunate dispute between neighbours. He stated that the matter had not been dealt with in “a very civilised way”. He refers to the obsessive nature, as he saw it, of the conduct of the applicant. He stated:
“Boundary disputes often give rise to huge heat without a great deal of light”.
The judge considered the circumstances in which the builder acting for the proposed respondents had made what the judge found to have been an encroachment, albeit a small one. He stated at page 23(g):
“It was the work of doing the concrete which caused this dispute to arise. In relation to that, he [that is Mr Goodfellow] was asked why he had not First consulted Mr Markos about digging up his driveway and concreting it. His answer was he saw
no need; there was no necessity for it; it did not impinge on her property and in his view he was not doing anything wrong. Indeed, on his...
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