MYCK Djurberg v The Mayor and Burgesses of the London Borough of Richmond
| Jurisdiction | England & Wales |
| Judge | Chief Master Marsh |
| Judgment Date | 18 December 2019 |
| Neutral Citation | [2019] EWHC 3342 (Ch) |
| Date | 18 December 2019 |
| Court | Chancery Division |
| Docket Number | Case No: BL-2013-000004 |
[2019] EWHC 3342 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Rolls Building, Fetter Lane,
London EC4R 1NL
Chief Master Marsh
Case No: BL-2013-000004
The Claimant appeared in person
Francis Hoar (instructed by South London Legal Partnership) for the First Defendant
Hearing dates: 28 October 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is my judgment on the hearing of four applications, two made by the claimant and two by the first defendant in this very old claim that was commenced in 2013.
The claimant has applied for permission to amend the particulars of claim and to consolidate this claim with a claim that is proceeding in the County Court at Central London. The latter application is no longer pursued.
The first defendant applied to strike out the claim and for relief from sanctions, to the extent that relief is needed, in respect of its failure to comply with an order dated 3 September 2019.
The second defendant has not played a part in the claim since July 2014 when an order was approved containing agreed terms of settlement.
The context in which these applications were made is complex and needs to be set out in some detail.
The claimant is the owner of a freehold title of land comprised in title TGL353054 known as Hampton Riviera Boatyard, Hampton Court Road, East Molesley KT8 9BP. The land is adjacent to the River Thames upstream from Hampton Court Bridge and opposite Tagg's Island. The landward side the claimant's property is separated from Bushey Park by Hampton Court Road. As its name suggests, the claimant runs a boat building and repair yard.
The stretch of riverbank adjacent to the claimant's land is known as Terrace Gardens and the part that lies between the claimant's land and the bridge to Tagg's Island is known as St Albans Gardens. The Crown owns the freehold of Terrace Gardens. It is occupied by the first defendant for the purposes of providing a public pleasure and/or leisure ground.
The claimant issued this claim on 13 January 2013. At the time he was represented by solicitors and counsel. However, he has acted in person since the latter part of 2014. More recently, he has had some assistance from Mark Evans QC on direct access basis. Mr Evans QC, who is resident in Northern Ireland, was unable to attend the recent hearing due to health issues.
The claim in its original form was based on a complaint that access to the claimant's boatyard had been impeded and interfered with because (a) 40 metres of the riverbank at Terrace Gardens was collapsing into the river causing the riverbed to be cluttered with detritus and (b) a number of trees had grown over the river. His claim was brought in nuisance and interference with a public right of navigation.
Defences were served by the defendants following which the claim was stayed to enable a mediation to take place. On 24 July 2014, Deputy Master Cousins approved a consent order that provided terms of settlement agreed between the claimant and the second defendant. The order is not strictly in the form of a Tomlin Order because it does not provide for the claim to be stayed on the terms agreed in the schedule. There is no doubt, however, that was the intention and the claim as between the claimant ant the second defendant was resolved at that stage. The terms that were agreed between those parties are only indirectly relevant. It suffices to say that the first defendant was in occupation of the riverbank under a lease and nothing agreed between the claimant and the second defendant as freeholder could affect the first defendant's exclusive possession of the land.
The position as between the claimant and the first defendant is less straightforward and has proved to be controversial between them. On 23 September 2014 South London Legal Partnership, acting for the first defendant, wrote the court enclosing a consent order. At the hearing before me, the claimant asserted that the consent order filed with the court set out detailed terms of agreement that resolved at least some of his differences with the first defendant. He says that at a mediation terms of settlement had been agreed. This was not accepted by the first defendant. Following the hearing, it was possible to establish precisely what was filed with the court. The draft consent order was signed by Dewar Hogan on behalf of the claimant and South London Legal Partnership for the first defendant. The draft order was not in the Tomlin form and did not set out terms of settlement. It provided for the claim between the claimant and the first defendant to be adjourned pending the final determination of two planning applications that affected the claimant's land. The first related to a planning appeal before the Planning Court with reference number CO/292/2014 and the second concerned planning applications made to the first defendant (as the local planning authority) for consent to the installation of five mooring piles in the river and the fixing of boardwalks or pontoons to the piles.
I did not approve the draft order that was filed in September 2014 because it provided for an open-ended adjournment, and not a disposal, of the claim. My clerk wrote to South London Legal Partnership to say that the claim could be stayed for a limited period if there was a good reason to do so. Otherwise the claim would have to be dismissed. The claimant says he was unaware of the draft consent order being filed and the response from the court because he ceased to instruct Dewar Hogan shortly afterwards. Although the correspondence passed solely between first defendant's solicitors and the court, Mr Chesman, who was then a locum solicitor with South London Legal Partnership, has confirmed in his first witness statement made in support of the application to strike out the claim that he told Dewar Hogan about the court's response to the consent order. The claimant says Dewar Hogan did not tell him about the fate of the order but this seems to be very unlikely. In any event, the draft order was not approved and a revised version was not filed. Neither party then took any steps in the claim until 2018. It appears the parties acted upon the agreement they had reached as it was set out in the consent order despite the order not having been approved.
The claimant's planning history has been the source of much unhappiness on his part. This is illustrated by two events. First, the claimant instituted a complaint about inappropriate behaviour by a planning officer in May 2012. The complaint was rejected after a full investigation. More recently, in his draft amended particulars of claim, the claimant wishes to assert that the first defendant, acting as the local planning authority, has been activated by personal antipathy and malice.
It is not necessary to set out in this judgment full details of the planning history. The principal events that are pertinent to its modern era are:
(1) On 24 October 2012, four enforcement notices were issued requiring the removal of works undertaken by the claimant without permission.
(2) On 13 November 2013 two further enforcement notices were issued replacing two of the earlier ones.
(3) On 28 May 2014 a Planning Inspector made a decision granting retrospective consent for a number of works but upholding the requirement for the removal of posts and pontoons stationed in the river.
(4) On 15 December 2014 a Deputy High Court Judge dismissed the claimant application to quash the inspector's decision.
(5) On 26 March 2015, Sullivan LJ refused permission to appeal (CO/292/2014) on the basis that the application was totally without merit.
(6) On 27 January 2016 a further enforcement notice was issued requiring the removal of pontoons stationed in the river.
(7) On 4 October 2017 a planning inspector dismissed the claimant's appeal against the enforcement notice and upheld the notice.
(8) In July/August 2018 the first defendant exercised statutory powers to remove the posts and pontoons in default of the claimant taking this action.
In addition to this litigation having had a lengthy history and the lively planning history, the claimant has been involved in three claims that are relevant to the issues I have to determine.
On 1 September 2017 Mr Murray Rosen QC sitting as a Deputy High Court judge handed down a judgment in two conjoined claims that concerned house boats, HRB 3 and HRB 4, built by Mr Djurberg at Hampton Riviera, that the claimant had sold respectively for £1,250,000 and £850,000. In the first claim Mr Djurberg was the claimant and Mr and Mrs Small were the defendants. In the second claim, Ms Johnstone and Mr Sydney brought a claim against Mr Djurberg. The issues in the claims are of of no relevance. However, during the trial that lasted from 11 to 23 May 2017, the Deputy Judge formed clear views about Mr Djurberg. They are set out at paragraphs 50 to 53 of his judgment:
“50. … Mr Djurberg struck me as an unusual man, with a complex relationship with the truth … his oral evidence was largely evasive — circling questions or going off at tangents — and at times nonsensical.
51. … Mr Djurberg seemed to have a constant strategy for obfuscation, for turning the simple into the complicated and for constructing arguments and possibilities which seemed to have little relation to reality
52. He gave an impression of dishonesty and at least ruthlessness in wriggling away from any certainties and exploiting any perceived uncertainties. His...
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Recent Decision Suggests Sanctions Should Only Rarely Be Implied Into Court Rules And Orders Where Not Expressly Stated
...to be decided under the strict regime which applies to applications for relief from sanctions: Djurberg v London Borough of Richmond [2019] EWHC 3342 (Ch). The courts have previously held that sanctions should be implied into certain court rules and orders which do not contain express sanct......