The Trustees of the Couper Collection Charitable Trust v Albion Properties Ltd

JurisdictionEngland & Wales
JudgeLord Justice Floyd
Judgment Date02 July 2015
Neutral Citation[2015] EWCA Civ 872
Date02 July 2015
CourtCourt of Appeal (Civil Division)
Docket NumberA3/2014/0259/(A)+(B)

[2015] EWCA Civ 872

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

(ARNOLD J)

Royal Courts of Justice

Strand

London, WC2

Before:

Lord Justice Floyd

A3/2014/0259/(A)+(B)

The Trustees of the Couper Collection Charitable Trust
Claimant/Applicant
and
Albion Properties Limited
Defendant/Respondent

The Applicant did not attend and was not represented

The Defendant did not attend and was not represented

Lord Justice Floyd
1

I have before me two applications. The first is dated 21st October 2014 and is an application by Ms Magdalena Couper, seeking an order that the court extends the time to request that the order of Vos LJ, dated 30th June and entered on 9th July 2014, to refuse permission to appeal be reconsidered at an oral hearing notwithstanding that such a request was not served within the seven day time limit of that decision.

2

A second application is dated 23rd October 2014 and seeks an order that Ms Massimiliana Couper, aged 7, be joined as a separate party to Magdalena Couper's appeal and that she be appointed a litigation friend and also seeks an extension of time for Ms Massimiliana Couper to seek an oral reconsideration of Vos LJ's decision.

3

In the last few days I have received and decided two applications by Magdalena Couper for adjournments of this hearing. I refused both applications. This morning, when the case was called on at the listed time Magdalena Couper, following a pattern which is not unprecedented in this litigation, has not appeared.

4

This case has a long history. I have caused enquiries to be made as to the history of the listing of this application. The applications were filed, as I have said, on 21st and 23rd October 2014. They were fixed on 17th December 2014 for a hearing on 30th April 2015. That follows what I understand to be the procedure where an extension of time for requesting an oral reconsideration of a decision refusing permission to appeal is made. On 26th February 2015 Magdalena Couper filed an adjournment request by e-mail on the basis that her pro- bono counsel was not available on 30th April 2015 and requesting an expedited hearing after 27th May 2015. On 3rd March 2015 the list office advised that before the matter could be re-listed the court needed confirmation of counsel's dates of availability after the 27th May. The office requested a response by 6th March. On 6th March Mrs Couper advised that she had been unable to contact her counsel in respect of new dates. He was apparently in Ireland on family business. She was then given until 17th March to respond substantively, failing which the matter would be referred to the Deputy Master. On 18th March the Deputy Master directed:

"Unless and until alternative availability dates for counsel are provided this matter will remain in the list on 30 April 2015. It should be noted that if the case is expedited it will not generally be fixed for counsel's convenience. If expedition is sought for an alternative date full reasons in support of the application are required."

5

On 23rd March 2015 Mrs Couper advised that counsel's clerk would be in contact with the list office shortly to provide details of counsel's availability. On 8th April 2015 counsel's clerk provided details of counsel's availability and the matter was re-listed at his convenience for today to take account of that availability.

6

I recite that history because it seems to me that every indulgence has been afforded to Mrs Couper to enable her to be represented at this hearing and in case it is suggested hereafter that it is otherwise. Normally therefore I would proceed on the basis that the application should be dismissed because it is no longer proceeded with.

7

However, given the background to this matter it is right that I should record that I would in any event have dismissed both applications and explain my reasons for doing so. I have devoted some time to considering the other papers in this case and piecing together the lengthy chronology.

8

The main part of the proceedings at first instance in this case was concluded by a judgment of Arnold J which he handed down on 8th October 2013. I will call that the main judgment. In an earlier judgement of 3rd March 2014 Lewison LJ summarised the issues in that action as follows:

"Mr Couper is an artist who has had a longstanding interest in the River Thames and other waterways. He was joined in the action by the trustees of the Couper Collection Charitable Trust, which is a charitable trust which he founded and administers. Mr Couper and the Trust own a collection of barges, other boats and pontoons referred to as the Couper Collection, which have for many years been moored off what is now known as Albion Wharf, which is on the south bank of the Thames between Battersea Bridge and Albert Bridge. The boats house an art collection which is open to the public and Mr Couper also lives there.

3. Albion Properties Limited owns the adjacent land on which there is a mixed use development called Albion Roadside. Hutchison Wampoa Properties Europe Limited, part of the Hutchison Wampoa Group, are Albion Properties' agents and the Port of London Authority is the statutory body with responsibility for the River Thames.

The judge set out the nature of the claims in paragraph 2 of his judgment as follows:

'There are a considerable number of claims and counter claims in these proceedings. The claimant's primary claims are fourfold. First, they claim the benefit of ancient mooring rights entitling them to moor the boats in pontoons where they are currently moored. Secondly, they claim to have acquired title to part of the riverbed by adverse possession. Thirdly, they claim to have acquired title to a section of river wall at Albion Wharf, referred to in these proceedings as the Couper Collection Quay, or CCQ for short, by adverse possession. Fourthly they claim to have acquired various easements by prescription. In addition, the claimants have a number of secondary claims for conspiracy, for harassment, for misfeasance in public office and the slander of title. APL counter claims for a declaration that it has title to the CCQ and for nuisance. PLA counter claims for a declaration that it is the owner of the riverbed and that it is entitled to remove the claimant's works from the river.'

5. The judge decided all of those issues against Mr Couper and the trustees."

9

Having so disposed of the action Arnold J heard an application on 29th November 2013 as to the form of the order which he would make. He made an order on that day disposing of the consequential matters but the order recites that at the hearing on 29th November Mrs Couper made an oral application to be joined as a party to the litigation for the purpose of asserting her and her daughter's right to a private and family life pursuant to Article 8 of the European Convention on Human Rights. Rather than determine that strangely tardy application summarily the judge gave detailed directions in his order that Mrs Couper should file and serve any evidence she wished to rely on by 13th December 2013 and directed that the matter should come back before him at an oral hearing.

10

In a witness statement dated 13th December 2013 Mrs Couper relied on the decline in her health over the previous 2 weeks and her lack of legal representation and requested more time. On New Year's Eve 2013 Mrs Couper made an emergency application to the Chancery Division vacation judge for the hearing to be adjourned on health and other grounds. David Richards J refused the...

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