Max Couper the Trustees of the Couper Collection Charitable Trust v Albion Properties Ltd Port of London Authority Hutchison Whampoa Properties (Europe) Ltd Magdelena Couper

JurisdictionEngland & Wales
JudgeMr Justice Arnold
Judgment Date07 January 2014
Neutral Citation[2014] EWHC 265 (Ch)
Date07 January 2014
CourtChancery Division
Docket NumberCase No: HC06C04432

[2014] EWHC 265 (Ch)



The Rolls Building

7 Rolls Buildings

Fetter Lane

London EC4A 1NL


Mr Justice Arnold

Case No: HC06C04432

Max Couper the Trustees of the Couper Collection Charitable Trust
Albion Properties Ltd Port of London Authority Hutchison Whampoa Properties (Europe) Ltd


Magdelena Couper

Mr S Jourdan QC & Miss C Fairley (instructed by Hogan Lovells International LLP) appeared on behalf of the First and Third Defendants

Mr J Ollech (instructed by Sally Mashiter of the Port of London Authority) appeared on behalf of the Second Defendant

The Applicant did not appear and was not represented

Mr Justice Arnold

I gave judgment in this matter on 8 October 2013, Couper & Ors v Albion Properties Ltd & Ors [2013] EWHC 2993 (Ch). I will not attempt to summarise that rather lengthy judgment, which I will for present purposes take as read. The upshot, as indicated in paragraph 701 of the judgment, was that the claimants' claims were all dismissed. I upheld the counterclaims by APL for a declaration that it had title to the Couper Collection Quay and was entitled to relief for nuisance and by the PLA for declarations that it is the owner of the relevant section of riverbed and is entitled to remove the claimants' works from the river.


As I also indicated in that paragraph, I said that I would hear counsel as to the precise form of the relief to be granted. In accordance with that indication, a hearing to consider all matters arising out of the judgment was arranged for 29 November 2013. At that hearing, I heard from counsel from the claimants and counsel acting for the respective defendants and I duly made the order of that date, which was sealed on 9 December 2013.


As is indicated in recital C to that order, at the hearing the first claimant's wife, Magdalena Couper, made an oral application to be joined as a party to the claim for the purpose of assessing her right to respect for her and her daughter's private and family life and their home under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.


In paragraphs 15 to 19 of the order, I made directions for the determination of Mrs Couper's application. In particular, by paragraph 17 I directed that Mrs Couper should file and serve any evidence she wished to rely on by 13 December 2013 and by paragraph 15 I directed that the application should be heard by me on a date to be fixed in the week commencing 6 January 2014.


On 13 December 2013, Mrs Couper duly filed and served a witness statement which she had made on the previous day, setting out briefly the matters that she relies upon in support of her Article 8 claim and exhibiting supporting documentation. I will return to the contents of that statement later in this judgment. It is relevant to note at this stage, however, that in the course of that statement Mrs Couper referred to the dramatic decline in her health over the previous two weeks and, on that ground and other grounds, requested more time to deal with the application. Included within the documents exhibited to her witness statement was some medical evidence, but it is not necessary for present purposes to describe that evidence.


On 31 December 2013, Mrs Couper made an application without notice to the defendants to David Richards J sitting in the vacation applications court for the present hearing to be adjourned on health grounds. David Richards J declined to make any order without notice to the defendants and directed that Mrs Couper make her application on notice to the defendants at today's hearing. I understand that Mrs Couper did not personally appear at that hearing. Instead, her husband, Mr Couper, appeared on her behalf.


In accordance with David Richards J's direction, on the same day Mrs Couper issued an application notice seeking an adjournment of the present hearing and supplied, exhibited to that application notice, further medical evidence. Since that application notice was issued and served, Mrs Couper has also supplied further medical evidence in support of her application for an adjournment. Furthermore, she has written to the court a letter with today's date saying that she is very unwell and, accordingly, has not appeared. Nor has Mr Couper appeared.


In those circumstances, the first matter for me to consider is whether to grant Mrs Couper's application for an adjournment of the hearing. As I have indicated, the basis upon which an adjournment is sought by the application notice is on medical grounds. I take into account, however, that in various of the materials filed with the court and in particular her witness statement of 12 December 2013 Mrs Couper also relies upon other grounds, and in particular her need to obtain legal advice and representation. Accordingly, I will consider those grounds as well.


So far as the medical evidence is concerned, it seems to me that the key pieces of medical evidence are threefold. First, there is a letter addressed to whom it may concern, dated 16 December 2013, from Dr James Watson of the Battersea Junction Community Mental Health Team. In his letter, he says:

"I have met with Mrs Couper on 13 December 2013. She presents as extremely anxious and stressed. She was in floods of tears throughout most of my consultation with her and described symptoms of panic attacks. She has lost a significant amount of weight in the last month — 10 kilograms — and she is not sleeping. She presents as severely depressed and also is experiencing anxiety attacks. She also described psychotic symptoms of three external voices discussing the case. She has experienced these auditory hallucinations for two weeks. It is my opinion, as a psychiatrist, that the stress of representing herself during this case is having a deleterious effect on her mental health. Please can you consider delaying the hearing due in January 2014 until she is mentally fit and able to represent herself?"


Secondly, there is a letter from Dr Watson to Mrs Couper's GP, Dr Pugh, dated 23 December 2013. In this letter, she states:

"I met with Mrs Couper at Springfield Hospital outpatients on Monday, 23 December 2013. She presented as very anxious and tearful. She complained of diarrhoea, excessive nocturnal sweating and muscular aches in her arms. It is possible that these are side-effects of the citalopram. Also, she complained of insomnia. After speaking with Dr Al-Falahe(?), consultant psychiatrist, the plan is to reduce and stop the citalopram and start mirtazapine at 15 milligrams for one week, increasing to 30 milligrams in week two.

Management plan:

1) I provided a prescription for citalopram at 20 milligrams with a view to stopping in one week's time.

2) Please prescribe mirtazapine, 15 milligrams one week.

3) Please increase the mirtazapine to 30 milligrams from week two onwards.

4) I also prescribed two weeks' worth of zopiclone, 7.5 milligrams, for insomnia and diazepam, 2 milligrams BP, to treat excessive anxiety levels.

5) I will see Mrs Couper again on 8 January 2014."


Thirdly, there is a letter dated 6 January 2014, addressed to whom it may concern, from Dr Uchenna Amaechi of Mrs Couper's GP practice, which states as follows:

"I am writing to you with verbal consent from the above patient to notify you of her consultation with me on 3 January 2014. Mrs Couper presented as extremely anxious and tearful. She also complained of insomnia. She is currently under the care of a psychiatrist at the Battersea Junction Community Mental Health Team. There has been a recent change to her medication. Her current treatment is being titrated. She remains(?) to follow up with the community mental health team and has an appointment for review on 8 January 2014. Unfortunately, she has also been experiencing side-effects from her medication including diarrhoea, excessive nocturnal sweating and muscle aches. Under these circumstances, she feels that she would be unable to attend her court hearing, which I believe is scheduled for 7 January. I hope it will be possible to take her current medical history into account and would like to thank you for remaining sensitive to her needs at this difficult time."


The proper approach to an application for an adjournment of a hearing on medical grounds was considered by Norris J in Levy v Ellis-Carr [2012] EWHC 63 (Ch). Part of his judgment in that case was cited with approval by Lewison LJ in Forrester Ketley & Co v Brent [2012] EWCA Civ 324 at paragraph 26. The passage cited reads as follows, referring to evidence in that case:

"In my judgment it falls far short of the medical evidence required to demonstrate that the party is unable to attend a hearing and participate in the trial. Such evidence should identify the medical attendant and give details of his familiarity with the party's medical condition (detailing all recent consultations), should identify with particularity what the patient's medical condition is and the features of that condition which (in the medical attendant's opinion) prevent participation in the trial process, should provide a reasoned prognosis and should give the court some confidence that what is being expressed is an independent opinion after a proper examination. It is being tendered as expert evidence. The court can then consider what weight to attach to that opinion, and what arrangements might be made (short of an adjournment) to accommodate a party's difficulties. No judge is bound to accept expert evidence: even a proper...

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