The Secretary of State for Transport v Elliott Cuciurean
| Jurisdiction | England & Wales |
| Judge | Mr Justice Marcus Smith |
| Judgment Date | 13 October 2020 |
| Neutral Citation | [2020] EWHC 2614 (Ch) |
| Date | 13 October 2020 |
| Docket Number | Case No PT-2020-BHM-000017 |
| Court | Chancery Division |
[2020] EWHC 2614 (Ch)
THE HONOURABLE Mr Justice Marcus Smith
Case No PT-2020-BHM-000017
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BIRMINGHAM
PROPERTY, TRUSTS AND PROBATE LIST
The Birmingham Civil Justice Centre
33 Bull Street
Birmingham B4 6DS
Mr Michael Fry (instructed by DLA Piper UK LLP) for the Applicants
Mr Adam Wagner (instructed by Robert Lizar Solicitors) for the Respondent
Hearing dates: 30 and 31 July, 17 September and 13 October 2020
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.
| CONTENTS | ||
| A. | INTRODUCTION | §1 |
| (1) | The Order | §1 |
| (2) | This Application | §7 |
| (3) | The hearing of the Application | §12 |
| B. | THE RELEVANT LEGAL PRINCIPLES IN GENERAL TERMS | §18 |
| (1) | Introduction | §18 |
| (2) | The standard of proof | §20 |
| (3) | Requirements regarding the application for committal itself | §21 |
| (4) | Procedural pre-conditions regarding the order said to have been breached | §24 |
| (5) | Substantive requirements | §26 |
| C. | PROCEDURAL REQUIREMENTS IN RELATION TO THE APPLICATION | §28 |
| D. | PROCEDURAL PRE-CONDITIONS REGARDING THE ORDER SAID TO HAVE BEEN BREACHED | §30 |
| (1) | The pre-conditions | §30 |
| (2) | The first pre-condition | §31 |
| (3) | The second pre-condition | §33 |
| (a) | The issue stated | §33 |
| (b) | Procedural guidelines | §40 |
| (c) | The Canada Goose guidelines and service in this case | §47 |
| (d) | The service requirements contained in the Order | §55 |
| (i) | Compliance | §55 |
| (ii) | The provisions regarding notice of the Order | §57 |
| (e) | Further points taken by Mr Cuciurean | §58 |
| (i) | Introduction | §58 |
| (ii) | An additional requirement of knowledge | §61 |
| (iii) | The penal notice | §65 |
| (iv) | A continuing requirement that the service provisions in the Order be complied with | §68 |
| (4) | The third pre-condition | §74 |
| E. | SUBSTANTIVE REQUIREMENTS | §75 |
| (1) | Introduction | §75 |
| (2) | Clear and unambiguous | §76 |
| (3) | Breach of the Order | §81 |
| (a) | Approach | §81 |
| (b) | The Crackley Land | §83 |
| (i) | The Crackley Land generally | §83 |
| (ii) | Crackley Land (East) | §85 |
| (iii) | The physical nature of the perimeter of Crackley Land (East) | §86 |
| (iv) | Footpaths | §91 |
| (v) | Gaps in the perimeter | §96 |
| (c) | The Incidents | §100 |
| (d) | Points taken by Mr Cuciurean | §103 |
| (i) | Introduction | §103 |
| (ii) | The boundaries of the Crackley Land were wrongly demarcated | §104 |
| (iii) | The boundaries of the Crackley Land were unclear | §110 |
| (iv) | A licence was granted to Mr Cuciurean to cross the Crackley Land | §114 |
| (e) | Conclusion on breach | §119 |
| (4) | Deliberation | §120 |
| ANNEXES | ||
| Annex 1 Terms used in the judgment | ||
| Annex 2 “Plan B”: the plan of the Crackley Land attached to the Order | ||
| Annex 3 “Plan B” marked up for the purpose of this judgment | ||
| Annex 4 The plan showing the intended diversion of PROW165X to a TPROW |
A. INTRODUCTION
(1) The Order
. By an order dated 17 March 2020, sealed on 23 March 2020, Andrews J made various orders consequential upon her decision in these proceedings dated 20 March 2020, published under Neutral Citation Number [2020] EWHC 671 (Ch) (respectively, the Order and the Judgment 1).
. The Order, obtained on the application of the above-named Claimants/Applicants (together either the Claimants or HS2), was directed at four (groups of) defendants ( Defendants). The second (group of) Defendants, the Second Defendants, were defined and identified in the Order as follows:
“Persons Unknown entering or remaining without the consent of the Claimants on Land at Crackley Wood, Birches Wood and Broadwells Wood, Kenilworth, Warwickshire shown coloured green, blue and pink and edged red on Plan B annexed to the Particulars of Claim.”
. I shall refer to the land described in this definition of the Second Defendants as the Crackley Land or the Land and the plan identifying this land as Plan B. A copy of Plan B, which formed part of the Order and was appended to it, is appended to this Judgment as Annex 2. Thus, the Second Defendants are persons defined by reference to their entering upon or remaining on the Land without the Claimants' consent. It appears to be perfectly possible – in these circumstances – to become one of the Second Defendants simply by entering upon the Land absent consent.
. The other (groups of) Defendants identified in the Order are not relevant to this Judgment, and I consider them no further.
. The Order contained a penal notice (the Penal Notice), headed as such in bold capital letters, in the following terms:
“ Penal Notice
If you the within named Defendants or any of you disobey this order you may be held to be in contempt of court and may be imprisoned, fined or have your assets seized.
Important Notice to the Defendants
This Order prohibits you from doing the acts set out in this Order. You should read it very carefully. You are advised to consult a solicitor as soon as possible. You have the right to ask the Court to vary or discharge this Order.”
. The Order contains a number of recitals, and then, provides:
(1) By paragraph 1, that the steps taken by the Claimants “to serve the Claim, the Application and the evidence in support on the Defendants shall amount to good and proper service of the proceedings on the Defendants and each of them. The proceedings shall be deemed served on 4 March 2020.”
(2) By paragraphs 8, 9 and 10, service of the Order on (amongst others) the Second Defendants is provided for. These paragraphs provide:
“8. Pursuant to CPR 6.27 and 81.8, service of this Order on the…Second Defendants shall be dealt with as follows:
8.1 The Claimants shall affix sealed copies of this Order in transparent envelopes to posts, gates, fences and hedges at conspicuous locations around…the Crackley Land.
8.2 The Claimants shall position signs, no smaller than A3 in size, advertising the existence of this Order and providing the Claimants' solicitors contact details in case of requests for a copy of the Order or further information in relation to it.
8.3. The Claimants shall email a copy of the Order to the email address helpstophs2@gmail.com.
8.4 The Claimants shall further advertise the existence of this Order in a prominent location on the websites: (i) https://hs2warwicks.commonplace.is/; and https:/www.gov.uk/government/organisations/high-speed-two-limited, together with a link to download an electronic copy of this Order.
9. The taking of the steps set out in paragraph 8 shall be good and sufficient service of this Order on the…Second Defendants and each of them. This Order shall be deemed served on those Defendants the date that the last of the above steps is taken, and shall be verified by a certificate of service.
10. The Claimants shall from time-to-time (and no less frequently than every 28 days) confirm that copies of the orders and signs referred to at paragraphs [8.1] and [8.2] 2 remain in place and legible, and, if not, shall replace them as soon as practicable.”
(3) By paragraph 3, the Second Defendants (amongst others) were obliged forthwith to give the Claimants vacant possession of all the Crackley Land. By paragraph 7.2, the court declared that “[t]he Claimants are entitled to possession of the Crackley Land and the Defendants have no right to dispossess them and where the Defendants or any of them enter the said land the Claimants shall be entitled to possession of the same.”
(4) By paragraph 4, from 4pm on 24 March 2020 – and subject to a “carve-out” in paragraph 5 of the Order considered below – the Second Defendants and each of them were forbidden from entering or remaining upon the Crackley Land.
(5) Paragraph 5 – the “carve-out” – provided that:
“Nothing in paragraph 4 of this Order:
5.1 Shall prevent any person from exercising their rights over any open public right of way over the Land. These public rights of way shall, for the purposes of this Order, include the “unofficial footpath” between two points of the public footbath “PROW130” in the location indicated on Plan C annexted to the Particulars of Claim and reproduced as an annexe to this Order;
5.2 Shall affect any private rights of access over the Land held by any neighbouring landowner.”
(6) The injunction in paragraph 4 of the Order is explicitly an interim injunction, as is made clear by paragraph 6 of the Order, which provides:
“The order at paragraph 4 above shall:
6.1 remain in effect until trial or further order or, if earlier, a long-stop date of 17 December 2020.”
(2) This Application
. This is the application, dated 9 June 2020, of the Claimants to commit the Respondent, Mr Cuciurean, for various breaches of the Order (the Application). The Application is supported by a statement of case (the Statement of Case) and by an affidavit sworn by a Mr Gary Bovan ( Bovan 1). The Statement of Case provides as follows:
“18. It is the [Claimants'] case that [Mr Cuciurean] has on at least 17 separate occasions between 4 April 2020 and 26 April 2020 acted in contempt of the Order, by wilfully breaching paragraph 4.2 of the Order by entering on to and remaining on the Crackley...
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