Whalley v Pf Developments and Anr
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rimer,Lord Justice Lewison,Lord Justice Mummery |
| Judgment Date | 14 February 2013 |
| Neutral Citation | [2013] EWCA Civ 306 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2012/1357 |
| Date | 14 February 2013 |
[2013] EWCA Civ 306
Lord Justice Mummery
Lord Justice Rimer
and
Lord Justice Lewison
Case No: B2/2012/1357
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WARRINGTON COUNTY COURT
(DISTRICT JUDGE GILHAM)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Lawrence McDonald (instructed by Gregory Abrams Davidson LLP) appeared on behalf of the Appellant.
Mr Nicholas Davis (instructed by Albinson Napier and Co) appeared on behalf of the Respondents.
(As Approved)
This is an appeal by the claimants, Stephen Whalley, Paul Whalley and Mary Bingham. The respondents, the defendants to the claim, are PF Developments Limited ("PFD") and Christine Thomason.
The appeal is against an order made by District Judge Gilham in Warrington County Court on 1 May 2012 following an inquiry as to damages for trespass to the claimants' property. The judge awarded the claimants £1,352.35 damages and the costs of the action. By the appeal, the claimants ask this court to reassess the damages in a substantially larger sum, in excess of £37,000; alternatively, they ask for a remission of the case to the county court for a re-assessment of the recoverable damages under the claimed heads of loss. In the event, it was only the alternative relief that Mr McDonald, for the claimants, sought to achieve.
The respondents' position is that the judge was right not to award any more to the claimants than she did. They say that, to the extent that the claimants were asking for damages of a greater order, they were advancing an unpleaded claim for special damages and that is why the judge refused to consider the greater claim. In answer, the claimants confess and avoid. They admit the claims were not pleaded but they point out that they were fully explained in their evidence served in support of the inquiry in accordance with the court's directions. The defendants were in no sense taken by surprise with regard to the claims, indeed they had responded to them in their own evidence and there was therefore no sound reason why the judge should not have considered the claims on their merits.
The background
The claimants are the owners of property at 355/357 Padgate Lane, Padgate, Warrington, Cheshire ("the property"). It consists of a house and land to the side, such land lying to the rear of adjoining property at 353 Padgate Lane. They bought the property on 2 June 2010 for £180,000 with the assistance of a mortgage from Lloyds TSB Bank Plc and other borrowings. Their title as proprietors was registered on 27 July 2010. PFD is the claimant's immediate neighbour, owning the property at No. 353. Following completion of the purchase, the claimants discovered that PFD had fenced off approximately half their land at the side of the property. That land is referred to in the Particulars of Claim as "the disputed land" and adjoins what is there referred to as "the garden", which is also part of the claimants' property and is of roughly the same size as the disputed land.
The claimants received no response to their letter to PFD asking for the removal of the fence, and so they resorted to self-help and removed it themselves. They erected a new fence on what they say is the true rear boundary between the properties and took possession of the disputed land. That did not, however, mark the end of the war, because in about late October 2010 PFD removed the new fence, padlocked the gate which gave the claimants access to their land and took possession both of the disputed land and the garden.
By a letter dated 8 December 2010, largely written in upper case letters, which were presumably regarded as giving it greater emphasis, PFD "strongly refuted" the claimants' request to restore the disputed land and garden to them and asserted that it was the claimants who were trespassers. That led to the issue by the claimants of a claim form in Warrington County Court on 21 February 2011. The only defendant was PFD. The Particulars of Claim set out the story whose essence I have just summarised.
I must refer to the nature of the relief claimed. By way of "Brief details of claim" on the claim form, the claim was said to be "for a declaration and other relief as set out in the Particulars of Claim served herewith", and under the "Value" part of the claim form the claimants said that:
"This claim is primarily for possession and for a declaration and other relief."
The claim form itself made no express reference to there being any claim for damages. The only such reference in the body of the Particulars of Claim is in paragraph 9, which asserts that:
"The Defendants' said actions have caused the Claimants loss and damage."
Paragraph 13 asks for statutory interest on "the sums found due" at a rate and for a period to be assessed by the court.
The prayer for relief seeks, in paragraphs 1 to 4, declarations as to the claimants' title to the disputed land, possession of that land and the garden, a declaration that the boundary between the properties is on the line where the claimants had erected their fence, and injunctions restraining trespass and interference with the claimants' fence and gate. Paragraph 5 asks for:
"Damages to include compensation both for time and effort spent in repairing the gates"
Paragraph 6 asks for statutory interest on any damages. Paragraph 7 asks for "further or other relief", and paragraph 8 for costs.
On 28 March 2011, the claimants issued an application notice asking for judgment on their claim and costs in default of the service by PFD of a defence. The application was made under CPR Part 12.4(2)(a). Part C of the application notice said that the claimants wished to rely on the claim form and Particulars of Claim, and repeated the heads of relief set out in the prayer to the Particulars. It asserted that PFD's defence had been due on 25 March 2011 but that none had been filed.
On 1 April 2011, District Judge Cahill entered judgment for the claimants:
"for a sum to be decided by the Court and such further relief as the Court may consider appropriate."
On 15 June 2011, on an application at which the claimants were represented by Mr McDonald and PFD was represented by its sole director and shareholder, Christine Thomason, District Judge Little refused PFD's application to set the judgment aside and allocated the claim to the multi-track. The transcript of the hearing on that day discloses that in so allocating the claim, he was in part influenced by the fact that Mr McDonald informed him that it was likely that the claimants would be claiming damages to compensate them for the interest incurred in respect of the borrowings made to buy the property, being interest which it was said was wasted by reason of the bar on the prompt development of the property caused by PFD's trespass. Mr McDonald was therefore indicating that the damages that the claimants would be claiming would go beyond the limits of the damages claimed in the prayer to the Particulars of Claim.
District Judge Little directed that the claimants should, by 22 June 2011, serve any further witness statements "in relation to the damages and other relief sought". The "further" reflected that by then Stephen Whalley had already made a witness statement on 7 June 2011 in support of the claim for possession. The judge directed that PFD should, by 13 July 2011, serve any witness statements in answer. He directed that the witness statements should stand as the evidence in chief at the trial and gave further directions for such trial.
Stephen Whalley served a second witness statement in compliance with those directions on 21 June 2011. No evidence in answer was served by PFD by 13 July, and on 31 August 2011, by which stage PFD was represented by solicitors, as they thereafter continued to be, District Judge Gilham made an order debarring PFD from adducing "any evidence as to quantum at the hearing of this claim" unless it served evidence in answer by 21 September 2011. The judge also fixed 14 November 2011 as the day of the trial and directed that it was to start with a site visit. The result of that "unless" order was that Ms Thomason made a witness statement on 19 September 2011.
On 4 November 2011, His Honour Judge Hodge QC, sitting as a judge of the Chancery Division, ordered that Ms Thomason be added as a second defendant to the proceedings (he did so in a separate claim brought by the claimants in the High Court against PFD) and granted a freezing order against both defendants with an upper limit of £50,000. Those proceedings were issued in aid of the county court proceedings but were brought in the High Court as the county court had no jurisdiction to grant a freezing order. The £50,000 limit was justified by reference to the claims for damages set out in Mr Whalley's second statement, which...
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