Welford v Transport for London
| Jurisdiction | England & Wales |
| Judge | Lord Justice Tomlinson,Lord Justice Carnwath,Lord Justice Ward |
| Judgment Date | 18 February 2011 |
| Neutral Citation | [2011] EWCA Civ 129 |
| Docket Number | Case No: C3/2010/1285 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 February 2011 |
[2011] EWCA Civ 129
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (Lands Chamber)
Mr P R Francis Frics
Before: Lord Justice Ward
Lord Justice Carnwath
and
Lord Justice Tomlinson
Case No: C3/2010/1285
Christiaan Zwart (instructed by Hughmans Solicitors) for the Appellant
Richard Honey (instructed by Eversheds LLP) for the Respondent
Hearing date: 2 February 2011
Lord Justice Tomlinson:
This is an appeal from a decision of the Upper Tribunal (Lands Chamber) made by Mr PR Francis on 9 April 2010. By that decision it was determined that the compensation payable by the Respondent acquiring authority to Mr Terence Welford, the Claimant below and the Appellant here, in respect of losses alleged to have occurred as a result of the compulsory acquisition of his freehold interest in a piece of land in East London was £8,641.50. His claim had been for some £136,000 odd. It related to the acquisition of a very small piece (20 square metres) of forecourt and access yard to the front of office, warehouse and showroom premises at Worldwide House, Lanrick Road, London E14 together with half of the road width (about 134 square metres) of Lanrick Road. The road width was agreed to have no monetary value and no claim was made by the Appellant in respect of the value of the forecourt and access yard. The claim was therefore very largely for loss of rent and injurious affection and was made under the Rules contained in s.5 of the Land Compensation Act 1961, particularly Rule 5(6) and s.7 of the Compulsory Purchase Act 1965 which provide, respectively, as follows:—
Part II
Provisions determining amount of compensation
General provisions
5 Rules for assessing compensation
Compensation in respect of any compulsory acquisition shall be assessed in accordance with the following rules:
…
(6) The provisions of rule (2) shall not affect the assessment of compensation for disturbance or any other matter not directly based on the value of land:
…
Measure of compensation in case of severence
In assessing the compensation to be paid by the acquiring authority under this Act regard shall be had only to the value of the land to be purchased by the acquiring authority, but also to the damage, if any, to be sustained by the owner of the land by reason of the severing of the land purchased from the other land of the owner, or otherwise injuriously affecting that other land by the exercise of the powers conferred by this or the special Act."
Determination of this straightforward claim involved the resolution of some factual issues and a relatively routine assessment of loss. It was no doubt for this reason that Mr Christiaan Zwart for the Claimant in his opening skeleton argument to the tribunal said:
"No points of law arise in this reference, and the claimant relies on trite law."
Mr Francis records at paragraph 52 of the decision that Mr Richard Honey for his part, for the Respondent Transport for London, to which I will refer hereafter as "TfL" agreed that the claim did not raise any novel point of law, but said it did raise legal issues relating to the compensation code. So it did, but these issues were familiar and well-travelled territory. At the end of two days of oral evidence Mr Francis directed that closing submissions should be put into writing rather than adjourning for oral submissions. It is not I think said that at the time either counsel suggested that this was an inappropriate course. Indeed, it must have appeared to be the appropriate and the proportionate course. It is right to record that Mr Honey's Closing Submissions, which arrived first, ran to 54 pages, with reference to 16 authorities, but this consisted of a commentary on the evidence and an attempt to summarise the largely uncontroversial principles which should inform the tribunal when assessing compensation as enunciated in the various authorities. I doubt if anything said in this document came as a surprise either to Mr Francis or to Mr Welford and his advisers in the light of the manner in which the authority had presented its case at the hearing. It evidently was a surprise to Mr Francis to receive thereafter from Mr Zwart a document 89 pages in length accompanied by 49 authorities, to which reference was therein made. Mr Francis was undaunted by this approach, simply recording:—
"54. It has to be said, I think, that the length and detail of the claimant's submissions were out of all proportion to the nature, extent and quantum of the dispute between the parties, and also, in part, sought to advance arguments that were clearly contrary to the agreed statement. It would equally be disproportionate for me to make any attempt [to] summarise those submissions at any length. I simply refer to them, as far as is necessary within my conclusions below."
However he felt moved to make some more general observations, drawing on what has recently been said in this court about a pernicious modern tendency. Thus he went on:—
"55. The closing submissions were, of course, in addition to full and lengthy skeleton arguments that had been received from both parties prior to the hearing. The nature of skeleton arguments, and volumes of papers generally before the court have been the subject of critical comment in two recent judgments of the Court of Appeal: see Tombstone Ltd v Raja and Another [2008] All ER (D) 180 (paragraphs 122 – 128) and Midgulf International Ltd v Groupe Chimique Tunisien [2010] EWCA Civ 66 (paragraphs 71 – 75). In Midgulf, Toulson LJ said, after summarising the extent of Midgulf's documentation:
"72 I am afraid that this case is a grotesque example of a tendency to burden the court with documents of grossly disproportionate quantity and length. It is a practice which must stop. Far from assisting the court, it makes the work of the court infinitely harder. Hours had to be spent reading through Midgulf's voluminous skeleton arguments, and they were largely wasted hours. It will no doubt have added greatly and unnecessarily to the costs of the appeal."
At para 73, after pointing out that the issue before the court was a very short one, he said:
"… The ordinary principles of contract law in this area are so well known there was no need for reference to authorities, let alone well over 100 authorities."
He went on to refer to Tombstone and set out paras 125 – 128 of that judgment before concluding:
"75 The problem has not lessened, and the present is a particularly egregious example… That [the burdening of the court] may accord with the practice in other jurisdictions, where it is customary for appellate courts to limit the time allowed for oral argument to a short period, but it is emphatically not the proper practice in this jurisdiction."
56. Although the criticisms in those cases were aimed particularly towards skeleton arguments and other documentation placed before the court, I think that those preparing closing submissions should be mindful of what was said. Whilst reference to authorities, and inclusion of those that are particularly relevant to the particular case before the Tribunal, are of course to be encouraged, it is clear to me that what I received here was, as I have said, totally disproportionate to the matter in hand."
I sympathise with Mr Francis, of whom it is now said by Mr Zwart in his Grounds of Appeal that in making his determination he came to a "hasty" decision, acted contrary to the principles of natural justice and furthermore that his "criticisms" suggest that he failed to comprehend the parties' submissions.
Mr Zwart's Closing Submissions are fortunately not before us and so I shall be circumspect in my language. However it cannot be said too strongly that it is simply unacceptable to burden a tribunal in the manner which apparently occurred here. It is unhelpful, wasteful and disproportionate. It is also self-defeating. It could well lead to a tribunal losing sight of the wood for the trees, although to his credit Mr Francis was not led astray. The particular vice here however was that the principal arguments presented apparently flew in the face of facts which were agreed and were inconsistent with the Claimant's own evidence. Of course in fairness to Mr Zwart when he put in his closing submissions to the tribunal he did not know how certain issues of fact would be resolved. However I regret to say that his written submissions to this court suffered from the same vice and were also for the most part upon analysis irrelevant to anything which the tribunal had to decide, and, therefore, irrelevant to anything which this court has to decide.
I can take from the decision the facts, the claim and the issues:—
" Facts
6. The parties produced a statement of agreed facts and issues remaining to be determined by the Tribunal from which, together with the evidence, I find the following facts. The subject premises comprised a post-war two storey brick and flat roofed showroom/office building together with an adjacent single storey steel framed and metal clad warehouse located on the north west side of Lanrick Road, E14 on the inside of a point where the road performed a 90 degree turn to the left (approaching from the west). The office building comprised ground floor showroom, office and kitchen of 122.9 sq m (1,323 sq ft) with offices and kitchen above of 79.5 sq m (856 sq ft) and further offices of 26.2 sq m (281 sq ft). The front elevation of this building,...
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