Robert Gelley and Others v Raymond Anthony Shepherd and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Sales,Lord Justice Floyd,Lord Justice Richards |
| Judgment Date | 07 October 2013 |
| Neutral Citation | [2013] EWCA Civ 1172 |
| Docket Number | Case No: A2/2012/2980 + 2980(D) + 2980 (C) |
| Court | Court of Appeal (Civil Division) |
| Date | 07 October 2013 |
[2013] EWCA Civ 1172
Lord Justice Richards
Lord Justice Floyd
and
Mr Justice Sales
Case No: A2/2012/2980 + 2980(D) + 2980 (C)
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
NEWCASTLE UPON TYNE DISTRICT REGISTRY
His Honour Judge Walton
0NE90046
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Susan Gelley, as litigant in person appearing for the Appellants with the permission of the Court
Mr Richard Stubbs (instructed by Punch Robson Solicitors) for the Respondents
Hearing dates: 24/7/13–25/7/13
Introduction
This is an appeal from an order made by His Honour Judge Walton, sitting as a Judge of the High Court, on 2 November 2012 after a four day trial in April 2012 of two preliminary issues and resumption of the hearing on those issues on 10 September 2012 and 2 November 2012. The appeal is brought by Robert Gelley, the First Defendant ("Mr Gelley"), Collect Investments Limited, a company incorporated in the British Virgin Islands and the First Part 20 Claimant ("CILBVI"), and Comvecs Intell Limited, the Second Part 20 Claimant ("Comvecs"). Mr Gelley's wife, Susan Gelley ("Mrs Gelley"), is a director of Comvecs with authority to manage its affairs and also claims to be entitled to act on behalf of CILBVI. The Respondents are the Claimants in the action ("Mr Shepherd" and "Albert Hill Skip Hire", respectively). The proceedings concern land at 630 Whessoe Road, Darlington, County Durham ("the Land").
Although the Appellants were represented by Counsel below and had the assistance of (different) Counsel in drafting their grounds of appeal, they were not so represented at the hearing in this Court. Instead, Mrs Gelley presented the argument for them on the appeal. It was clear that she had devoted a lot of care and effort to preparing for the appeal, and it is right to record that she presented the argument for the Appellants in an articulate and measured way.
The Respondents are in occupation of the Land. The two preliminary issues determined by the judge were directed to resolving rival claims in respect of the Land by Mr Shepherd (who claimed to have a tenancy of the land, alternatively a superior right to be in possession of the land by comparison with the rights of other parties) and by CILBVI and Comvecs (who, acting by Mrs Gelley, claimed to be owners of the Land and entitled to possession of it). Another part of the proceedings relates to a claim in conversion (wrongful interference with goods) by the Second Respondent against Mr Gelley and a company acting on his instructions, the Second Defendant ("Nor-Dem", which is not a party to this appeal). In large part, the outcome of the claim in conversion will depend upon whether Mr Gelley and Nor-Dem were properly authorised by CILBVI to take possession of the Land from the Respondents on about 14 April 2010. In the course of doing so they seized and removed goods of the Second Respondent, comprising a significant number of skips and industrial bins located on the Land.
Factual Background
Mrs Gelley's father, Mr Blair, was a businessman with various interests. He set up a number of English and offshore companies as vehicles for his business activities, several of them with the name Collect Investments Limited. These included a Panamanian company ("CIL Panama", incorporated in 2002) and CILBVI. In the 1960s he acquired the Land, which had an office located on it and a large open area which came to be used for breaking up building waste known as hardcore.
The judge found (para. [61]) that CILBVI became owner of the Land in 1996 and that it was the entity registered by the Land Registry as the proprietor of the Land at that time. There is no appeal in relation to this.
However, as emerged in the course of the trial, in 2001 CILBVI was dissolved, having been struck off the register of companies in the British Virgin Islands ("the BVI") in 1991, presumably because it appeared to have become dormant and failed to comply with local reporting and regulatory requirements.
Mr Blair continued to use the Land. However, he relocated his main residence to Portugal and had less direct oversight of what was happening in relation to his business interests in the United Kingdom.
In 2007 Mr Blair and Mr Shepherd entered into an arrangement whereby Mr Shepherd (and his company Albert Hill Skip Hire) would have use of the Land in return for providing assistance to Mr Blair in respect to certain planning issues he had with the local authority, Darlington Borough Council ("the Council"). An important issue at trial was whether the arrangement involved the grant of a lease or only a licence to Mr Shepherd. Mr Shepherd claimed that Mr Blair had agreed that he should have a five year lease, but the judge found (paras. [64]–[74]) that it was only agreed he should have a licence. The agreement was that he could remove the existing hardcore on the Land and use it to level the site and sell any not so used.
The judge found that Mr Shepherd began using the Land in ways going outside what he was entitled to do under the licence. In breach of the agreement with Mr Blair, he used the Land as a general landfill site, dumping waste on it (para. [71]).
Mr Blair, acting through solicitors, Row and Scott, sent a letter dated 15 December 2008 terminating the licence and requiring Mr Shepherd to quit the Land within seven days ("the termination letter"). There was some confusion regarding the entity on behalf of which the letter was sent. Mr Blair seems by this stage to have lost sight of the fact that the Land was owned by CILBVI, which had been dissolved, and thought it was owned by CIL Panama. Despite this, the judge found that the termination letter was effective to terminate the licence (paras. [75]–[76]). There is no appeal in respect of this. From about 22 December 2008, therefore, Mr Shepherd and Albert Hill Skip Hire were trespassers on the Land.
However, they did not leave the Land. They went on in occupation and continued to use it as a waste disposal site, in breach of planning controls. Very large quantities of waste have been dumped there.
On 25 August 2009, the Council issued an enforcement notice under the Town and Country Planning Act 1990 in relation to the Land, which included a requirement that the Land be reinstated to its condition immediately before the breaches of planning control took place. That obligation could be very expensive to comply with, since it would require removal of all the landfill waste dumped on the Land by Mr Shepherd. The notice was served on Mr Shepherd and also on Mr Blair, for the owner of the Land. On 27 August 2009, the Council issued a temporary stop notice under the 1990 Act, addressed to Mr Shepherd, requiring him to cease this activity. On 13 November 2009, the Council issued a final stop notice.
The Respondents' activities on the Land still did not cease. Eventually, the Environment Agency brought criminal prosecutions against them in relation to their operation of an unauthorised waste disposal site at the Land. On 21 August 2012, Mr Shepherd and Albert Hill Skip Hire were convicted at Teesside Crown Court of eight counts of offences of acting contrary to environmental regulations. They have entered appeals against their convictions.
Meanwhile, Mr Blair, who was very elderly, tried to take steps to recover the Land from Mr Shepherd. On 7 September 2009 he commenced possession proceedings in the name of CIL Panama, but they were not ultimately pursued and were struck out. In the course of researches for the purposes of this action, it emerged that CILBVI (now dissolved) was likely to be the true owner of the Land.
Mr Blair died on 13 November 2009, leaving his two daughters, Mrs Gelley and Mrs Cail, to inherit his estate under an intestacy. This complicated the steps to be taken in seeking to remove the Respondents from the Land.
Mrs Gelley was originally appointed as sole administrator of Mr Blair's estate under a grant of probate in a letter of administration dated 10 January 2011. However, on 27 October 2011 new letters of administration were issued appointing Mrs Gelley and Mrs Cail as joint administrators of Mr Blair's estate.
Before these events, however, Mrs Gelley was concerned that steps should be taken to remove the Respondents from the Land, so as to stop them from continuing to use it as a waste disposal site and thereby increasing the possible eventual cost to the true owner of the site of restoring it in compliance with the enforcement notice issued by the Council. What the judge described as "something of a wrestling match over possession of the Land" took place (paras. [22]–[27]). On about 7 April 2010 a letter in the name of Mrs Cail, but not signed by her, was sent by Mr and Mrs Gelley to the Respondents on behalf of CILBVI (para. [22]). The judge found that Mrs Cail had not authorised the sending of this letter and had not agreed that Mr Shepherd should be given notice to leave the Land (para. [56]). There is no appeal in relation to these findings.
On 14 April 2010, Mr Gelley, acting on instructions from Mrs Gelley, refused Mr Shepherd access to the Land, save to remove equipment there (para. [23]). On 19 April 2010 Nor-Dem removed items of the Respondents' property from the Land (a number of skips and industrial bins) to take them into storage elsewhere (para. [24]). However, the same day Mr Shepherd managed to gain access to the Land again and continued using it as a waste disposal site as before.
With a view to assisting in removing the Respondents from the Land, Mrs Gelley arranged for Comvecs...
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