Lewis v Altaf [2003] EWCA Civ 1229

Case No B1/2002/2139

[2003] EWCA Civ 1229

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE WORCESTER COUNTY COURT

(MR RECORDER EVANS)

Venue Royal Courts of Justice

Date Friday, 15th August 2003

Strand

London, WC2

B E F O R E:

LORD JUSTICE ALDOUS

Between

KESS THOMAS LEWISApplicant

-v-

Between

MOHAMMED ALTAFRespondent

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for The Applicant did not appear and was not represented

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J U D G M E N T

(As approved by the Court)

LORD JUSTICE ALDOUS:

[1]This is an application for permission to appeal an order of Mr Recorder Evans dated 16th August 2002 sitting at Worcester County Court. By that order Mr Recorder Evans dismissed Mr Lewis' appeal against a decision of District Judge McKenzie dated 29th April 2002, by which he dismissed Mr Lewis' claim against Mr Altaf.

[2]Earlier in the week I received a request from Mr Lewis for this case to be heard in the afternoon which would enable him to travel from Worcester. At 1.15 today a fax was received from Mr Lewis by the Civil Appeals Office which said this:

"I am writing this letter today to send to you because I will not be able to attend this Court at 2.00pm for today's hearing, as I have been taking photocopies of various cases and other essential documents which I wanted to bring along with me to Court for today's hearing, but unfortunately it has taken me a long time to do this, and the next train to leave Worcester Foregate Street Station is the 13.41 which arrives at London Paddington at 15.48. Please can you adjourn today's hearing to another date."

I have refused the application for an adjournment because there is no good reason for Mr Lewis' failure to attend.

[3]The background facts to this application are these. Mr Lewis issued a claim in the Worcester County Court claiming damages for unlawful trespass on his land. He alleged that Mr Altaf had cut down trees on his land and had allowed those trees to fall onto Mr Lewis' property causing a lot of mess. It was further alleged that this constituted a statutory nuisance. Mr Lewis also alleged that Mr Altaf had been negligent as he had "failed to clean all the mess up". He sought aggravated damages for loss of quiet enjoyment of his land and for distress, inconvenience, harassment and discomfort.

[4]The particulars of claim filed by Mr Lewis was in this form:

"In October 2000, the Defendant, Mr Altaf cut down several trees on his land and at the same time allowed those trees to fall on the Claimant's land. The Defendant then soon afterwards allowed his tenants to trespass on the Claimant's land to pick up the mess this caused. You also trespassed on the Claimant's land, and you did these acts without the consent or permission of either the Claimant or the Claimant's landlord, who is Mr James Bennt."

[5]In the further particulars of claim filed Mr Lewis he said that Mr Altaf had damaged and knocked down the wooden fences which stood as the partitions between the property. That had caused an awful lot of mess and the cutting down of the branches and other debris had been scattered all over his land. He said that Mr Altaf had cleared most of this mess up, but had left two branches of trees on top of the claimant's garden shed at the far back end of the claimant's garden.

[6]In the bundle that has been placed before me there are no witness statements or other evidence. The defence merely stated that the defendant had not unlawfully trespassed on the claimant's land.

[7]As would be apparent, the claim was of minor proportion and was allocated to the small claims track and was set down for hearing on 29th April 2002. On that day it came before District Judge McKenzie. His brief judgment was in these terms:

"The claim is going to be dismissed. I am perfectly satisfied from what I have heard that Mr Lewis is in no position to satisfy me, or even begin to satisfy me, that he has suffered any loss as a result of any trespass. 2. What clearly has happened, and what Mr Altaf accepts has happened, is that trees overhanging number 40 Teme Road have been cut back in the normal course of events of pruning and keeping them under control. That they would have fallen down onto 40 Teme Road and caused some mess is inevitable, but unless that causes an exceptional mess that cannot amount to a trespass as such. It might amount to a nuisance, but I am not satisfied from what I have heard from Mr Lewis there is any prospect of him satisfying me that a real nuisance has occurred as a result of cutting down these branches. 3. Mr Lewis has no claim that has any prospect of succeeding and I am going to dismiss the claim without hearing anything further. The claim is dismissed."

From there Mr Lewis appealed. His appeal came before Mr Recorder Evans on 16th August 2002 and was dismissed.

[8]It follows that this is a second-tier appeal and pursuant to CPR 52.13 no appeal will be allowed before this court unless it be established that the appeal would raise an important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear it.

[9]The grounds of appeal in the bundle contend, firstly, that the Recorder's decision was obtained by perjury and fraud because Miss Sampson gave evidence on oath which she knew to be false or which she did not believe to be true. There is nothing before me to suggest there is any foundation for any such allegation. There would be no real chance of that allegation succeeding in this court.

[10]The grounds of appeal go on to contend that Miss Sampson stated on oath that the landlord Mr Bennett gave her exclusive possession and occupation of the land, namely the garden at the back of the premises, and that was untrue. However, that did not and could not have played any part in the proceedings between Mr Lewis and Mr Altaf. It follows that that ground of appeal could not succeed.

[11]The notice of appeal also seeks an extension of time for filing the appeal which was out of time. It was filed on 16th October 2002, whereas the Recorder's judgment was handed down on 16th August 2002. In the notice of appeal Mr Lewis says:

"I can offer no reasonable excuse or explanation for failing to send the appeal papers to the Civil Appeals Office other than the fact that I do have a very large volume of other civil cases I have [been] preparing for trial in other court cases."

[12]Upon that basis I come to the decision of the Recorder. The Recorder's judgment has not been produced and therefore there is nothing upon which comment has been made by Mr Lewis, nor any comment that I can make. However, I believe that this application should be refused on three grounds. First, the application was out of time and no reasonable excuse has been put forward. In cases where litigants are in person indulgence is often given, but there needs to be some reasonable excuse. Second, this is an application for a second-tier appeal. There is no important point of principle or practice or other compelling reason to allow this dispute between neighbours to be aired again in this court. Third, it has no merit at all. The grounds of appeal raise no grounds which could succeed in this court. They are grounds which are purely speculative and there is nothing in the bundle to support them.

[13]For those reasons, I refuse this application. I order that a copy of this judgment be provided to the applicant at public expense.

ORDER

Applications for permission to appeal and an extension of time refused; a copy of the judgment to be provided to the applicant at public expense. (Order not part of approved judgment) ______________________________