The Queen v Exeter Consistory Court ex parte Mrs Violet Cornish

JurisdictionEngland & Wales
JudgeLADY JUSTICE BUTLER-SLOSS,LORD JUSTICE WALLER,LORD JUSTICE AULD
Judgment Date24 June 1998
Judgment citation (vLex)[1998] EWCA Civ J0624-4
CourtCourt of Appeal (Civil Division)
Date24 June 1998
Docket NumberFC3 98/5690/4

[1998] EWCA Civ J0624-4

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

CROWN OFFICE LIST

Royal Courts of Justice

Strand

London WC2

Before:

Lady Justice Butler-Sloss

Lord Justice Auld

Lord Justice Waller

FC3 98/5690/4

The Queen
and
Exeter Consistory Court
Respondent
Ex Parte Mrs Violet Cornish
Applicant

The Applicant appeared in person

The Respondent did not appear and was not represented

LADY JUSTICE BUTLER-SLOSS
1

I will ask Waller LJ to give the first judgment.

LORD JUSTICE WALLER
2

Mrs Cornish has appeared before us today to renew her application for leave to move for judicial review of a decision of Sir David Calcutt sitting as Diocesan Chancellor of the Exeter Consistory Court. That decision was given on 1 July 1997. Mrs Cornish's original application for leave to move for judicial review was refused by Carnworth J on 5 December 1997. She is in fact out of time for renewing her application before this court, but that is not a point to be taken against her. It is right to consider the merits of her application in considering whether she should be given leave to move.

3

At the outset let me say this, Carnworth J took the point that there is a Court of Appeal decision which decides that judicial review or certiorari, as it was called at that time, will not lie in relation to a decision of a Consistory Court, but he then went on to look at the merits. Mrs Cornish before us has said that Carnworth J was wrong to suggest that this court does not have jurisdiction. In my judgment, we should look at this matter on its merits and not consider questions of jurisdiction. Carnworth J having raised jurisdiction was right to consider the matter on the merits and that is the appropriate course.

4

Mrs Cornish clearly feels a very serious injustice has been done to her. She has supported this application by three affidavits and many exhibits and she produced prior to the hearing a full and detailed submission and she has presented her application before us with fortitude, showing the depth of feeling that she has. We have of course read fully those affidavits and exhibits and read carefully her submissions.

5

The case concerns the Churchyard of St Mary's Church, Mary Tavy. It concerns the carrying out of certain works by a Mr Hutchins to the boundary between his property, which is named Kirkside, and the churchyard. What Mr Hutchins did obviously gave cause for concern not just to Mrs Cornish but to other parishioners, including Mrs Cornish's sisters. Mrs Cornish was a neighbour and her property is close to the churchyard. Mr Hutchins after he had purchased Kirkside sought permission of the then incumbent of the church to rebuild a wall retaining the churchyard which had collapsed into Kirkside; he also sought permission to carry out works to retain the bank, and to extend the wall and the ditch. There was an issue before Sir David Calcutt as to whether Mr Hutchins had made clear precisely what he wanted to do and there was an issue as to whether the vicar had given any form of approval. There are letters in the bundle and indeed an affidavit in the bundle demonstrating the two aspects of that particular issue, the vicar maintaining quite clearly that he was not asked for permission to do all the things that Mr Hutchins wanted to do and Mr Hutchins maintaining quite clearly on affidavit that he had asked for permission. Mrs Cornish says that demonstrates perjury on the part of Mr Hutchins. It is doubtful whether it suggests perjury but it certainly shows that there was an issue. However, that was an issue that was before Sir David Calcutt. What Sir David Calcutt found was that some form of informal permission was granted by the vicar but the vicar would not have known the full extent of the works intended. But the most important thing that he found was that whatever permission the vicar had given that permission could not be lawful permission for carrying out the works that Mr Hutchins was carrying out. There needed to be the grant of a faculty. Of course, everyone by the time the matter came before Sir David Calcutt appreciated that there needed to be a faculty. That is why there had been an application for a faculty. Thus the vicar's approval, whether informal or otherwise, was not effective for any purpose.

6

Mrs Cornish is of course...

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