Richards v Somerset County Council [2005] EWCA Civ 1528

Case No C3/2005/1635[2005] EWCA Civ 1528
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
THE LANDS TRIBUNAL
Venue Royal Courts of JusticeDate Thursday, 10 November 2005
Strand
London, WC2A 2LL
B E F O R E:
LORD JUSTICE MUMMERY
Between
JOSEPH ROLAND RICHARDSApplicant-v-
Between
SOMERSET COUNTY COUNCILDefendant
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
The Applicant appeared in person for in person for The Defendant did not attend and was not represented
J U D G M E N T

LORD JUSTICE MUMMERY:

[1]The court has before it today three applications from Mr Richards. There is an application for permission to appeal against a decision of the Lands Tribunal on preliminary issues of 25 September 2000; there is an application for an extension of time in which to appeal and there is an application for leave to adduce new evidence on the appeal in the form of documents, including documents obtained by Mr Richards from the respondents, Somerset County Council, under the Freedom of Information Act and oral evidence from a Mr Conder and a Mr Dodgson.[2]Mr Richards appears in person. This matter has been before the court twice before when Mr Richards made unsuccessful applications for permission to appeal and for related orders. The first was heard by Pill LJ and myself on 4 February 2002. A further application was heard by me on 9 May 2003 when I refused an application for permission for extension of time and for permission to adduce fresh evidence. Transcripts of those judgments are available in the papers. I do not propose to repeat the background to the dispute between Mr Richards and the Council or the details of the hearings that took place in February and May 2003.[3]The basis of the applications is summarised in Mr Richard's appellant's notice and has been developed by him at this oral hearing. He has referred to a number of passages in the bundle of documents in order to support his contention that he has a strong case for showing that the Council concealed from him, from the Lands Tribunal and even from their own legal representatives, evidence which, in his view, falsify the conclusions reached on the preliminary issues. He says that this new evidence is fundamental to his dispute about compensation for compulsory purchase.[4]The grounds of appeal are stated in section 7 of his notice. He says he appeals the decision of the Lands Tribunal because:
"i) New evidence has recently been discovered that shows the evidence put for Somerset in the Lands Tribunal in July 2000 by Mr Juniper and Mr Betty (on planning and highway matters respectively) was untrue on the material issues or seriously misleading in that regard; ii) the extent of the new evidence, its pivotal relevance to the preliminary issues and the direct involvement of Mr Juniper and Mr Betty in the matters disclosed indicate that it was withheld from the claimants, the Lands Tribunal (and from Somerset's own Counsel it seems) by Somerset, Mr Juniper and Mr Betty by intent, not by oversight; iii) Somerset failed to disclose, as required by CPR 31.6, highly material evidence that adversely effected its case and supported the claimant's case; iv) Mr Juniper and Mr Betty similarly failed to disclose that evidence and failed in their primary duty to the Lands Tribunal to disclose matters which detracted from their evidence; v) the Tribunal made findings of fact and based its decision on the preliminary issues upon the evidence of Somerset given by Mr Juniper and Mr Betty, as a consequence of which vi) those findings of fact and decision are unsafe."
[5]On the basis of those submissions and of the documents which he has referred to he asks that the court grants permission to lodge an appeal out of time against the decision of the Lands Tribunal of 25 September 2000; grants permission to appeal that decision; grants permission to admit the new evidence to the hearing of an appeal; and grants permission to admit the planning state of Mr John Conder of 15 March 2002, the letter from Mr David Dodgson of 2 July 2005, the disclosure letter from Sedgmore District Judge dated 17 April 2005 and SSAF4 to the hearing of that appeal.[6]The position is that all these applications are made ex parte. The notice and the supporting documents have not been served on the Somerset County Council, so they are not present, and I have no idea what their position is on these applications. I have asked Mr Richards a number of questions which I think are relevant to the way in which I should deal with this matter today. I first asked him whether he had paid the costs which he was ordered to pay on the conclusion of the hearing on 9 May 2003. That was an inter partes hearing. Mr Richards appeared in person and the Council instructed Mr Roots QC and Mr Walton to appear for them. The applications were refused. I granted the application of the Council that Mr Richards should pay within 28 days the costs of the Council summarily assessed in the sum of £7,232.12. Mr Richards tells me that there has been correspondence between him and the Council on the question of costs. He says that the costs order has been suspended and he has not paid for that reason. I have pointed out to Mr Richards that the effect of him pursuing these applications may be, first, to reactivate the costs which were ordered to be paid on the earlier occasion and have not been paid; and secondly, he might incur a further liability for costs if he is unsuccessful in these applications at a hearing at which the Council are represented.[7]I have also pointed out to Mr Richards that it is not right, in my view, for me to refuse or grant his applications without hearing what the Council have to say. First, I should not grant them without hearing the Council because they may have highly relevant submissions to make to the court which would lead me to refuse leave to adduce new evidence and to refuse the extension of time and permission. On the other hand, I do not think it would be right for me to refuse Mr Richards' applications outright. He is making serious allegations against the Council in relation to the way that evidence was given to the Lands Tribunal. He has obtained documents and has obtained oral statements from people who will give oral evidence which may be relevant to the decision whether to grant permission to appeal, whether to allow this further evidence in and whether to extend the time.[8]The course I propose to take today is to adjourn these three applications for them to be heard between the parties so that the Council have an opportunity to state their response to the allegations made by Mr Richards. I think that in view of the seriousness of what he is alleging, this inter partes hearing should take place before two Lords Justices. It is obviously going to take more than the normal 30 to 45 minutes which are allowed. The appellant's notice and the supporting documents must be served on the Council, and the Council should lodge with the court and serve with the Civil Appeals Office and serve on Mr Richards at least two weeks before the date fixed for the hearing a skeleton argument responding to the applications which Mr Richards is making. I say that in the hope that that will enable the hearing to be conducted in a more orderly manner and to keep it within the time limit which I have estimated at 1½ hours. It will also give Mr Richards (who is doing his case without the benefit of legal representation) an opportunity to consider in advance of the hearing the points which the Council are proposing to make against him.[9]I have also pointed out to Mr Richards that, in addition to the risk which he runs on costs at this adjourned hearing, if he is unsuccessful, even if he is successful at that hearing it is by no means a foregone conclusion that he will succeed on the appeal, because permission to appeal is granted on the basis of the prospects of an appeal, not under any guarantee that an appeal will succeed. That means that Mr Richards with be running a risk, even if he is successful in his applications, that he may not succeed in any appeal for which permission is given and he will therefore run the risk of yet further costs.[10]Mr Richards tells me that he is fully aware of the risks that are being run, but he feels that these matters are really fundamental to his criticism of the Lands Tribunal's decision and of the way in which the Somerset County Council have handled his claim for compensation. He feels he has a strong case. I have told him that that may not be a view shared by the court, but I am not willing to express any view one way or the other without observing the basic tenet of justice, that decisions should not be made without hearing what each party has to say on the relevant issues. So I am making those orders adjourning this to an inter partes hearing for an hour and a half before two Lords Justices. (Applications adjourned; to be heard inter partes by two Lords Justices; time estimate 1½ hours).