MILICA MARKOS v (1) ALAN LEONARD GOODFELLOW [2002] EWCA Civ 1542

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE MITTING
AND DEPUTY MASTER DI MAMBRO)
[2002] EWCA Civ 1542Case No Case No.: A1/2001/1175Venue Royal Courts of Justice, Strand, London, WC2
Between
MILICA MARKOSClaimant/Appellant(1) ALAN LEONARD GOODFELLOW(2) JAMES CHRISTIAN BARKE(3) OLIVER DAVID BARKEDefendants/Respondents
Before
Lord Justice PillLord Justice WallerMR MARKOS appeared on behalf of the Appellant (his mother)MR S WOOLF (instructed by Messrs Newman & Maxwell, Canvey Island, Essex SS8 9PA) appeared on behalf of the RespondentsDate 11 October 2002

LORD JUSTICE PILL:

This

[1]is an appeal against the order of Deputy Master di Mambro dated 21st May 2001 whereby the Deputy Master refused permission to appeal against a judgment of Mitting J given in open court on 11th April 2001. Mitting J had, on the face of it, refused permission to appeal against the judgment of His Honour Judge Thompson given in the Southend County Court on 31st January 2001. If that appeal is allowed, the parties invite the court to consider an appeal against the judgment of Mitting J.[2]The Deputy Master referred to CPR Part 52 and to paragraph 4.8 of the Practice Direction. The paragraph provides:
"There is no appeal from a decision of the appeal court [in this case Mitting J] made at an oral hearing to allow or refuse permission to appeal to that court: see section 54(4) of the Access to Justice Act 1999 and Rule 52.3(3) and (4)."
[3]For reasons which will appear, I granted permission to appeal against the order of the Deputy Master on 26th July 2001, and having heard further submissions from the parties, confirmed that grant on 30th November 2001.[4]The underlying dispute is a most unfortunate dispute between neighbours, Mrs Milica Markos, the appellant, who lives at 44 Glenbervie Drive, Leigh-on-Sea, Essex and Mr AL Goodfellow, the respondent, the former owner of 44 Grange Park Drive which adjoins Glenbervie Drive. There is a dispute as to where the boundary between the two properties should run. The appellant claimed that there had been an encroachment on her land. She also claimed damages for trespass, distress and for damage to her property, including fencing and glass roofing. She claimed an injunction restraining further trespass on her land.[5]The issues were bitterly contested. In the course of interlocutory proceedings the appellant successfully appealed to this court against an order refusing permission for her son, Mr Nicholas Markos, to represent her at the hearing.[6]Judge Thompson made a declaration as to the line of the boundary between the properties and dismissed the appellant's claim with costs. Permission to appeal was refused by Mitting J upon the respondent's:
"... undertaking to apply pursuant to Civil Procedure Rules Part 40.12 to His Honour Judge Thompson to vary the order dated 29th January 2001."
The manner in which Judge Thompson's order was to be varied is not set out in the order made by Mitting J. CPR 40.12 provides:
"(1) The court may at any time correct an accidental slip or omission in a judgment or order. (2) A party may apply for a correction without notice."
Judge Thompson's judgment was comprehensive and decisive. On the issue of boundaries he preferred the evidence of the appellant's expert witness, Mr Plaskow, to that of the respondent's expert, Mr Ray. He accepted the measurements made by Mr Plaskow, but concluded that the respondent had title by adverse possession to a substantial part of the disputed area.

The judge held that in his judgment:

"At maximum the [appellant's] case extends to three inches of encroachment over a length of possibly 15 feet."
He later stated that on his findings:
"... the encroachment is very limited; it is for a short distance and it is perhaps for 4 inches."

The judge concluded:

"In my judgment that is a matter which falls within the category of matters which lawyers call de minimis, which means it is a trifle."

The judge stated that:

"On the facts of this case Mr Markos and his mother did not behave as rationally and sensibly as they should have."
He described the attitude of Mr Markos and Mrs Markos as:
"... unbending and intractable."
However, having held that there was an encroachment, the judge did not consider whether an injunction should be granted and did not consider the award of damages instead of an injunction. He simply dismissed the claim.[7]On the application for permission to appeal, Mitting J stated that there was no real prospect of successfully appealing the County Court judge's finding of fact. However, he took a different view as to what should follow from them. Mitting J stated:
"In reaching that conclusion he [that is Judge Thompson] was in my view wrong. Any degree of trespass to land however small and for however short a period is actionable. A claimant who proves any degree of trespass is entitled to nominal damages, even though he or she sustains no real damage. That seems to me to be the fact here. As the judge found there was a minimal trespass to the extent indicated. It, on his findings, which he was entitled to come to, caused no real damage to them. His findings ought therefore to have led to an order, first, declaring that the boundary lay not along the line indicated in the formal order but along a line for a unspecified distance of 5 and 15 feet, extended 3 inches over towards the defendant's side of the apparent boundary, and further he ought to have ordered that nominal damages be paid by the defendants to the claimant of £2."
As to what should be done in the circumstances, Mitting J continued:
"Mr Woolf, who has appeared for the respondents and who appeared below, has undertaken on behalf of the respondents that they will apply to the Southend County Court to correct the order in the sense indicated under the slip rule, CPR Part 40.12. On that undertaking, I reject this application for permission to appeal. I am satisfied it has no real prospect of success."

The judge concluded his judgment in this way:

"Subject to correcting the order under the slip rule, that is now an end of the matter. You do not have any further right to apply for permission to appeal to any court."
The suggestion that the slip rule should be employed, and employed by way of the undertaking, was (we are told by counsel) the suggestion of the judge.[8]It is accepted that the declaration in the order of Judge Thompson did not comply with the judge's own findings in that the respondent's delineation of the boundary was confirmed. In furtherance of the undertaking, the respondent's solicitor secured the amendment of the order of Judge Thompson so as to add to the provision that:
"The claimant's claim is dismissed", a further provision that: "
The defendant do pay to the claimant nominal damages of £2."[9]The County Court order was altered in that way on 21st June, 2001. We have a sealed order including the addition to which I have referred. It is also stated on the face of the order that it is amended "pursuant to Rule 40.12 CPR on His Honour Judge Thompson's direction."[10]Mr Woolf is not able to help the court as to precisely how the amendment came to be made. Mr Markos has told us that neither he nor his mother had any indication of proceedings on 21st June 2001. As of the hearing on 30th November 2001, no attempt had been made to correct the declaration. That is still the case, though it is fairly pointed out to us that once permission to appeal had been given any further alteration of the written order of the County Court may well not have been appropriate.[11]The correction which Mitting J sought to be achieved was not recorded in his judgment. I well understand the wish of Mitting J to bring this litigation to an end. He rightly stated that it was a dispute over a very small area of land. He was aware of the finding of Judge Thompson that the matter had not been dealt with "in a very civilised way", and that "boundary disputes give rise to huge heat without a great deal of light." I also well understand the fact that the Deputy Master gave the direction she did, confronted as she was, by an order of a High Court judge which on its face refused permission to appeal, so that no further appeal was possible. My conclusion in the present case involves no criticism of the Deputy Master.[12]By letter dated 2nd April 2002 (since permission was granted) solicitors for the respondent have stated that they do not oppose the appeal against the decision of the Deputy Master, and do not oppose the appeal consequently made against the decision of Mitting J. However, they submit that they should not bear the costs of the appeals. They further submit that the issue of costs should not be determined until the dispute between the parties has finally been resolved by order of the court. The question of costs, submits Mr Woolf, should be looked at globally in due course.[13]My conclusions are:[14](1) What purported to be a refusal of permission by Mitting J was in substance a grant of permission and an attempt upon the grant to deal with the appeal and allow it in part. This conclusion follows from Mitting J's findings and order. The court looks to the substance and should approach Mitting J's judgment on the basis that he had granted permission. Allowing an appeal in part is inconsistent with a refusal of permission. That being so, the appeal against the direction of the Deputy Master must be allowed.[15](2) What Mitting J did was, with respect, a misuse of the slip rule which applies only to "an accidental slip or omission in a judgment or order." The approach of Sir Richard Scott V-C in Secretary of State for Trade and Industry v Rogers [1996] 4 All ER 854 at 862 applies equally to the present rule:
"In my opinion, what has happened in the present case cannot lead to or be remedied by any use of the slip rule. Harman J's addition to his judgment as delivered of the sentences, 'He clearly acted for his own benefit and to the harm of the companies of which he was a director. That was dishonest', was not done in error, or by oversight or inadvertence. It was a deliberate and intended addition. A judge can be asked to correct under the slip rule a particular sentence in a judgment or a particular part of an order. But if, from the response to such a request or otherwise, it appears that the sentence was deliberate and intended, that is the end of any use that can be made of the slip rule. Nor, in my judgment, can the Court of Appeal apply the slip rule in a manner contrary to the intentions of the first instance judge. It is for the judge to decide what to say in his judgment and what order to make. The Court of Appeal can say that he was wrong in law or that there was no evidence to justify a particular finding, but it cannot apply the slip rule to correct a sentence in the judgment that the judge intended to include."
[16]The editors of the White Book , Spring 2002 edition, stated at paragraph 40.12.1:
"The rule is limited to genuine slips and cannot be used to correct an error of substance nor an attempt to get the court to add to its original order, e.g. to add a money judgment when none was sought and none given at trial."
There is no doubt that Judge Thompson dismissed the claim and intended to do so. Mitting J held that his conclusion was wrong.[17](3) Not only was the use of the slip rule inappropriate, but the procedure whereby one party was required to go to the County Court to amend a County Court order in a manner not specified in the High Court order was inappropriate. The High Court order was deficient for lack of particulars. In any event, the procedure followed to achieve it, so far as we have been made aware of it, was unsatisfactory.[18](4) It is appropriate to give permission for a second appeal in this case having regard to the important points of practice which arise: CPR 52.13(2).[19](5) The judge having correctly found that the County Court judge had reached the wrong conclusion, the order of Mitting J cannot stand and the appeal against it in my judgment succeeds. Tempting as it may be to leave in place Mitting J's attempt to terminate this troublesome case, it involves an approach to the consideration of applications for permission to appeal and to the slip rule which in my judgment cannot be allowed to stand.[20]Mr Woolf has tentatively argued that in those circumstances this court should itself determine the application for permission to appeal from the County Court to the High Court. I am not prepared to accede to that application. This is a matter which should appropriately be resolved in the High Court. It is important that cases be decided at the appropriate level.[21]Having rightly found that the County Court judge's conclusion was wrong, Mitting J should have given permission to appeal, at least to a limited extent, and made an appropriate order. It is, in any event, conceded on behalf of the respondent that the appeal should be allowed.[22]I would remit the case to a different judge in the High Court for the determination of the application for permission to appeal from the County Court. Permission to appeal should in my view be given on the question of what should follow from the judge's findings of fact on the boundary issue. As to the further grounds of appeal, fresh consideration should in my judgment be given to them and to the entire application for permission to appeal. The application for permission should be listed on notice .[23]I would award the costs of these appeals to the appellant. The turn of events was unfortunate. Mr Woolf has made the point that the respondent cannot be blamed for the deficiencies in procedure and substance which occurred. However, what the appellant has achieved is a fresh application to the High Court for permission to appeal. It was necessary in order to achieve that end for her to follow the course which she has. As between the parties, justice can only be done, in my judgment, by granting the appellant the costs of these appeals.

LORD JUSTICE WALLER: I agree. ( Discussion regarding directions )

LORD JUSTICE PILL: I will just add this to the judgment.

[26]This court is reluctant to make directions as to how matters should be conducted in the High Court. However, with our knowledge of the case and its background, we do give an indication that, if possible, the case should so be listed that the appeal itself should follow immediately after the application for permission. We also indicate that, in view of the protracted nature of the dispute, the matter be listed by the High Court as soon as possible. ( Discussion continued )

LORD JUSTICE PILL: Application is made by Mrs Markos for the detailed assessment of costs, if not agreed, and their immediate payment. There is subsisting a substantial costs order against Mrs Markos and in our judgment it would be unfair if the present order in her favour were to be enforceable when there is a subsisting order, which we appreciate she seeks to reverse, against her.

[28]Accordingly, while we are prepared to order the detailed assessment of the costs order in her favour, in the absence of agreement, we also order that the sum so assessed should not be payable without further order of the court.

ORDER

Appeal allowed with costs; directions as per judgment. (Order not part of approved judgment)

Cited in 8 later judgments