Thorne v Clifford George Courtier and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick,Sir Henry Brooke,Lady Justice Smith |
| Judgment Date | 19 April 2011 |
| Neutral Citation | [2011] EWCA Civ 460 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B5/2010/2009, 2010 & 2011 |
| Date | 19 April 2011 |
[2011] EWCA Civ 460
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EXETER COUNTY COURT
(Mr. Recorder Hollington Q.C.)
8EX00567
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Smith
Lord Justice Moore-Bick
and
Sir Henry Brooke
Case No: B5/2010/2009, 2010 & 2011
Mr. Stephen Jourdan Q.C. (instructed by Ebery Williams LLP) for the appellant
Mr. Steven Ball (instructed by Clarke Willmott LLP) for the respondents
Hearing date: 30 th March 2011
This appeal concerns the meaning and effect of an agreement to compromise a dispute relating to two parcels of agricultural land known as Higher Gooseford and Kings Meadow, together with some associated buildings, situated near Okehampton in Devon. In February 2008 the appellant, acting as her mother's personal representative, brought proceedings in the Exeter County Court to recover possession of the land from the defendants, who claimed a right to occupy it under an agricultural tenancy. For convenience I shall continue to refer to the appellant as "the claimant" and the respondents as "the defendants".
In her particulars of claim the claimant sought possession of the land and buildings, an injunction to restrain the first defendant from abstracting water from the springs in Kings Meadow and damages for use and occupation of the land and buildings. Near the buildings there is a farmhouse, but that was not occupied by the defendants and so did not form part of the claim for possession. There was nothing in the body of the particulars of claim or in the prayer to suggest that the claimant had suffered any loss in relation to the farmhouse as a result of the defendants' occupation of the land and buildings.
The trial of the action was fixed for 23 rd February 2009. On 19 th December 2008 the claimant's solicitors, Burges Salmon LLP, wrote to the defendants' solicitors, Clarke Willmott, informing them that they intended to instruct a rural surveyor to quantify the mesne profits claimed in respect of the defendants' use and occupation of the land. They also indicated that they intended to consult an handwriting expert in relation to a dispute over the authenticity of certain documents on which the defendants relied. That was followed on 13 th January 2009 by a letter inviting Clarke Willmott to agree to an order for directions which included permission to call both a rural surveyor and a handwriting expert. Clarke Willmott declined to do so, complaining that it was too late to be making an application to call expert evidence, the trial being only six weeks away.
On 15 th January 2009 Burges Salmon on behalf of the claimant made what was stated to be a Part 36 offer to settle the claim. The proposed terms of settlement included the following:
"Higher Gooseford
…
3 The Defendants do pay the Claimant damages for trespass in relation to their unlawful occupation of Higher Gooseford limited to the period from 1 December 2006 until vacant possession is given up.
The date of 1 December 2006 is chosen because no payments have been made since Mrs. Warden [the claimant's mother and freehold owner of the land until her death in February 2007] was admitted to hospital in November 2006.
As to fixing the damages for trespass, that shall be determined by a rural chartered surveyor acting as an expert …
…
6 The Claimant and the Defendants shall bear their respective costs of the proceedings."
In a letter dated 19 th January 2009 Clarke Willmott rejected that offer and put forward a counter-offer on behalf of the defendants. However, on 3 rd February 2009 they wrote to Burges Salmon accepting the offer contained in the letter of 15 th January 2009 expressly without any admission of liability. On the same date they wrote a separate letter marked "Without prejudice, save as to costs" reiterating that, although the defendants had not admitted liability, they had accepted the claimant's offer. They offered to pay £50 per acre in respect of the damages which the defendants had agreed to pay in order to obviate the need to instruct a surveyor.
Shortly afterwards a dispute arose between the parties over whether they had in fact entered into a binding agreement to settle the claim. At about the same time, or quite soon after, a second dispute began to emerge over the meaning of the expression "damages for trespass" in Burges Salmon's letter of 15 th January. The claimant's position was that, having unequivocally rejected her offer, the defendants could not subsequently accept it and in any event had not done so. However, she said that if she were wrong about that, they had agreed to pay damages for trespass at large, including, in particular, the loss she had suffered as a result of being unable to sell the farmhouse while the defendants remained in occupation of the land and buildings. The defendants said that the claimant's offer, having been made under Part 36 of the Civil Procedure Rules and not having been withdrawn, remained open for acceptance, that they had accepted it, and that the expression "damages for trespass" meant damages for use and occupation only.
On 18 th February 2009 the matter came before His Honour Judge Griggs on an application for directions. Although the defendants had not made any formal application for a stay of the proceedings or other relief effectively bringing them to a close, everyone was aware that they were maintaining that the claim had been settled and the hearing appears to have been treated by all concerned, including the judge, as a convenient opportunity to resolve that question. At the hearing the claimant was represented by her solicitor, who appeared by telephone, and the defendants by counsel. After hearing argument the judge held that, despite Clarke Willmott's rejection of the offer contained in Burges Salmon's letter of 15 th January 2009, it remained capable of acceptance because it had been made under CPR Part 36 and had not been formally withdrawn, thus anticipating the decision of this court in Gibbon v Manchester City Council [2010] EWCA 726, [2010] 1 W.L.R. 2081. Accordingly, the claim had been compromised on the terms set out in that letter. The judge was not asked to rule on the meaning of the expression "damages for trespass", although the point was touched on briefly in the course of argument, a matter to which I shall have to return in due course.
In order to give effect to his decision the judge made an order declaring that the claim had been settled and staying the proceedings generally, save for the purposes of implementing the terms of settlement. The dispute about the meaning of the expression "damages for trespass" had not gone away, however, and on 2 nd April 2009 Burges Salmon wrote to Clarke Willmott making it clear that the claimant considered that she was entitled to recover damages at large for trespass, including the fall in the value of the farmhouse, which she put at £85,000. Her total claim, insofar as it had by then been quantified, came to over £120,000. That was followed by some inconclusive correspondence.
Eventually, on 9 th July 2009, the defendants asked the court to give directions for the determination of the meaning of the settlement agreement. Directions were given and as a result on 15 th December 2009 the matter came on for trial before Mr. Recorder Hollington Q.C. Having heard argument, he gave a judgment in which he held that the expression "damages for trespass" meant damages for use and occupation only. However, in the course of the hearing counsel who then appeared for the claimant sought to raise a new argument, namely, that as a result of certain statements made by Judge Griggs in the course of the proceedings before him, the defendants were not entitled to contend that the expression had such a limited meaning. The point had been raised too late for the defendants to have had a proper opportunity to consider it and many judges would have excluded it for that reason. However, the Recorder was sufficiently troubled by it to adjourn the hearing in order to give the claimant an opportunity to file a supplementary skeleton argument and further evidence in support.
The trial resumed on 7 th May 2010, when counsel for the claimant submitted that in the course of the hearing before him Judge Griggs had decided that the expression "damages for trespass" meant damages at large and that his decision gave rise to an issue estoppel. Alternatively, he submitted that it was an abuse of process for the defendants to contend otherwise. The Recorder rejected that submission. He held that the meaning of the agreement did not arise for decision in the course of the hearing before Judge Griggs and that he had not in fact decided it. He therefore granted the defendants a declaration that damages for trespass were to be assessed on the basis of mesne profits only, that is, that they were limited to damages for use and occupation of the land and buildings. He ordered the claimant to pay two thirds of the defendants' costs up to and including the first hearing before him on 15 th December 2009 (apart from some specific items) and the whole of their costs thereafter.
The claimant, now represented by Mr. Stephen Jourdan Q.C. (who did not appear on her behalf below), appeals against the various orders made by the Recorder and also seeks permission to amend her notice of appeal in order to challenge the order made by Judge Griggs. It is convenient to deal with that application first.
The question Judge Griggs had to decide was whether the parties had agreed to compromise the claim. If they had, the proceedings could not continue; they had to be disposed of by one means or another. If they had...
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