Campbell v Banks & Ors [2015] EWHC 3701 (Ch)

Case No B30LV129[2015] EWHC 3701 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/12/2015
Before
MR JUSTICE NORRISVICE-CHANCELLOR OF THE COUNTY PALATINE
Between
Alan Eric Campbell & Maureen CampbellClaimantWilliam Thomas Banks & OrsDefendant
Mr Campbell appeared in person for Applicants for The Proposed Respondents did not appear.Hearing Hearing dates: 19 May and 7 June 2015(with subsequent further written submissions)
JUDGMENTMr Justice Norris :
[1]In April 2015 Mr Campbell and his wife made an urgent without notice application for an order to set aside an earlier order of the Court on the grounds that it was procured by fraud and by the commission of perjury. The application sought an order that a specialist “rights of way” judge be appointed to hear their complaints that two officers of the Court had seriously had mislead the Vice-Chancellor (David Richards J), the Court of Appeal and the Supreme Court in the obtaining of a judgment which was in favour of the Defendants in the original proceedings. Those original Defendants were Mr and Mrs Banks and Mr and Mrs Baybutt. But the application sought relief against “divers others”.[2]There is a very short answer to this application: no such order could possibly be made on an application of that sort. But Mr Campbell has devoted 6 years to pursuing his enquiries, has unsuccessfully appealed the judgment against him, has unsuccessfully commenced proceedings against a variety of other defendants (all of which have been summarily dismissed), is now threatening to commence further proceedings against the lawyers involved in the original case, and in engaged in extensive correspondence with his Member of Parliament, the Chief Constable of Lancashire, the Director of the Legal Aid Agency, the Solicitors Regulatory Authority, the Bar Standards Board and the Treasury Solicitor making the most serious allegations. I have decided to give greater consideration to the Campbell’s case than the form of the proceedings would appear to warrant so that those to whom these letters have been addressed and allegations made may see that a judge has considered the detail of the case. I am not concerned on this application to consider whether it is likely that Mr Campbell could prove fraud at a trial. I am concerned with the lower threshold of whether Mr Campbell could plead a case in fraud (with the degree of particularity that such a serious allegation requires) that could withstand a challenge under CPR 3.4(2).[3]The present application arises out of litigation relating to a right of way over Headbolt Lane and Carr Lane at Birkdale near Southport. These tracks are at right angles to one another and form two sides of a square. Carr Lane emerges into Guildford Road (a highway) and Headbolt Lane emerges into New Cut Lane (another highway), and these two roads form the other two sides of the square. Within the square enclosed by these four tracks or roads is the Campbell’s property known as 98 New Cut Lane. The original action concerned what rights of way the Campbells (as owners of 98 New Cut Lane) had over Carr Lane and Headbolt Lane. The Campbells lost that litigation both at first instance before David Richards J and on appeal: and an appeal to the Supreme Court was declined.[4]The only basis upon which the Vice Chancellor’s judgment can be impeached is if it was obtained by fraud. So the Campbells now say that they are victims of fraud, frauds which are the responsibility not only of the Banks and the Baybutts but also of the Solicitor and Counsel representing them: frauds which the Campbells say are horrendous in that they have been cunning and devious and perpetrated both against themselves and the highest courts in the land. In a letter to his MP Mr Campbell says that the case:- “…represents probably the worst deception on the courts you could ever imagine committed not only by the Defendants but both of their lawyers. It does not get any bigger”. But the stridency of the tone does not add to the cogency of the argument.[5]I explained at the outset of hearing the application that I could not grant substantive relief (even on a temporary basis) in the absence of the other parties: but that I would listen to the case presented by Mr Campbell to consider what (if any) directions to give for a hearing attended by all parties, but without at this stage putting the other parties to any expense.[6]The area in question used to belong to the Scarisbrick Estate, but was sold in 1921 to a consortium of investors. In 1986 the Campbells bought the house and curtilage known as 98 New Cut Lane, onto which road it fronted. In 1988 they bought a contiguous field at the rear of No. 98, the eastern boundary of which ran alongside Headbolt Lane. They developed the entire property as livery stables. One of the attractions was that riders would ride along New Cut Lane, turn right into Headbolt Lane (which for part of its length ran alongside the Campbells’ land) and then right again along Carr Lane: at the end of Carr Lane riders would turn right again along Guildford Road until it joined New Cut Lane again to complete the circuit.[7]Most of the land adjoining Headbolt Lane and Carr Lane belonged to Mr and Mrs Banks who were the tenants and later owners of Boundary Farm. In 1999 the Banks created a new gate across Carr Lane which prevented the circuit being completed, but allowed return journeys along Headbolt Lane and Carr Lane. In 2003 the Banks erected a gate across Headbolt Lane (at a point away from the Campbells’ land), but the Campbells took it down. That gate was re-erected in 2008 at which stage the Campbells commenced the original proceedings claiming they had a right of way for horses which was obstructed by the gates.[8]Mr Campbell prepared and conducted the proceedings himself. The nature of the case advanced was set out in the re-amended Particulars of Claim in this way:- “The Defendants have both individually and/or acting in a joint enterprise with a common purpose attempted to prevent and/or prevented the public and/or horse riders from passing and/or re-passing along Headbolt Lane and Carr Lane by harassing and/or intimidating said persons without lawful justification… any such action would in any reasonable person’s mind impact, obstruct, restrain and/or prevent the Claimants from enjoying the lawful and/or peaceful running and/or profitability of their business… the actions above stated having caused loss and damage to the Claimants’ business by causing existing livery customers to leave the Claimants’ yard and prospective customers to avoid placing their horses there… [and the Claimants claim] a declaration that Headbolt Lane from the entry position New Cut Lane to and beyond the dog’s leg bend to the entry of Carr Lane and/or Carr Lane or both are public rights of way as of right or by presumed dedication … a declaration that the term Occupation Lane used within the legal proviso stated within the several property transactions hither to legally provides access too and egress from all the registered farms situated on and bordered by Headbolt Lane in both directions…” Favourably read those were claims that the tracks were public rights of way: or alternatively that 98 New Cut Lane enjoyed a private right of way by virtue of the use of the particular expression “occupation road” within “the several property transactions hitherto”.[9]There was a five day trial before the Vice-Chancellor in January 2009. In their written argument the Campbells told the trial judge:- “The Claimants shall establish that by a series of deeds/conveyances executed by divers vendors and dated 1932, the Claimants, as successors in title, enjoyed the same rights as the Defendants over Headbolt Lane and Carr Lane…”. For their part, the Defendants accepted at trial that the Campbells had the benefit of an express right of way for vehicles, horses and pedestrians over the part of Headbolt Lane running alongside 98 New Cut Lane from to New Cut Lane itself to the end of the Campbells’ property: but they denied any right (public, express or acquired by user) over the remainder of Headbolt Lane and Carr Lane.[10]To understand the arguments it is necessary to refer briefly to the conveyancing history. I deal first with the house on the plot. I have noted that this originally formed part of the Scarisbrick Estate purchased by a consortium of investors in 1921. According to recital in later conveyances this 1921 Conveyance had reserved to the Marquis de Casteja (the vendor to the consortium trustees) and to his successors in title “all privileges ….in the nature of ways roads and passages….of a continuous nature hitherto and then used and enjoyed” over the property thereby conveyed by the 1921 Conveyance.[11]On the 18 June 1932 the trustees for the consortium sold the site of what was to become number 98 New Cut Lane to Mr Woodeson. This conveyance contained no express grant of a right of way over Headbolt Lane because the plot had a direct frontage onto New Cut Lane (which was a highway). From Mr Woodeson No.98 passed (through an intermediate owner) to Mrs Hillier.[12]The 1932 Conveyance excepted and reserved out of the conveyance of the freehold of No.98 and in favour of:- “the vendors… and their successors in title all privileges in the nature of … ways roads passages and other like privileges of a continuous nature hitherto and now used… over or in respect of the hereditaments hereby assured…”.[13]At the original trial Mr Campbell addressed a brief argument to the Vice Chancellor that because he was a “successor in title” to the trustees (and, he argued, also to the Marquis) he was entitled to benefit from the reserved rights because the original estate owner had kept the rights back and had effectively said “but I’m going to share them with you if you buy my property”.[14]I now turn to the accommodation land. This was a plot of 1.78 acres which had previously formed part of Boundary Farm on the Scarisbrick Estate and lay behind the properties fronting onto New Cut Lane. It was offered in an auction in 1953 as Lot 116, and sold by private treaty prior to auction. The purchaser (who also bought other land) conveyed it on to Mrs Hillier (who was the tenant of Lot 116) by a Conveyance dated the 31 July 1953. The 1953 Conveyance contained an express grant of way in the following terms:- “All such rights of way as have hitherto been enjoyed by the owner and occupiers of the property hereby conveyed over and along Headbolt Lane aforesaid the Purchaser paying 20% of the cost of maintaining Headbolt Lane aforesaid so far as the same is coextensive with the property hereby conveyed…”.[15]The 1953 Conveyance was also expressed to be:- “SUBJECT to… (b) (but with the benefit of) all the vendors liabilities and rights in any private or occupation road… leading to or adjoining the property hereby conveyed”. This provision was drawn to the attention of the Vice Chancellor by Mr Campbell: and the reference to the “occupation road” had featured in his pleaded case.[16]At the original trial it appears that the Campbells wanted to abandon their claim to an equine right of way and to argue only for a pedestrian right of way: but the Vice Chancellor held that they were not entitled to change their case. He then held:- “There can in my judgment be no doubt that the express right of way enjoyed by 98 New Cut Lane over Headbolt Lane which is contained in the Conveyance dated 31 July 1953 is restricted to the northern section of the lane bounded by 98 New Cut Lane to the west. … It is consistent with the obligation of owner and occupier of 98 New Cut Lane under the conveyance of lot 116 dated 31 July 1953 to pay “20% of the cost of maintaining Headbolt Lane aforesaid so far as the same is coextensive with the property hereby conveyed”. It meets the need for the occupiers of lot 116 to have access to New Cut Lane. The easement granted was “all such rights of way as have hither to have been enjoyed by the owners and occupiers” of lot 116 but, despite Mr Campbell’s suggestions to the contrary, there is no reliable evidence that Mrs Hillier or any other occupiers before the Campbells used anything but the northern section of Headbolt Lane”. So that determined the scope of the express right of way that the Campbells claimed.[17]The Vice-Chancellor dismissed the claim to an equine right of way based on 20 years user. He also held that their claim that there was a public right to use Headbolt Lane and Carr Lane as a bridleway must also fail, saying that the evidence on which the Campbells relied “comes nowhere near persuading me that there are public rights of way over either lane”.[18]The Campbells appealed these adverse determinations. On appeal (when they were represented by Counsel) they were permitted to argue an additional point, namely, that they had acquired an equine right to use Headbolt Lane and Carr Lane by the operation of section 62 of the Law of Property Act 1925. The Court rejected the argument in these terms:- “… the appellants’ difficulty is the lack of relevant evidence showing that either Headbolt Lane… or Carr Lane… were ever used as bridleways for the benefit of the appellants’ land. Having raised the point it was for the appellants to produce evidence showing that, prior to the 1953 sales by the Scarisbrick trustees, there was bridleway use of the lanes for the benefit of that part of their land sold by those trustees to their predecessor in title, Mrs Hillier. They did not do that… The appellants had their chance to bring forward relevant evidence at the trial, but, on the judge’s findings, they were unable to show any bridleway use of the lane before their acquisition”.[19]The Campbells attempted to put the matter before the Supreme Court: but the Supreme Court would not entertain the appeal.[20]The Campbells now wish to make an application that these judgments were obtained by fraud and perjury and must be set aside. I have carefully considered all of the points which Mr Campbell has made: it is plain that they were not so obtained, and the points do not have sufficient merit to warrant giving directions for an inter partes hearing to be attended by the prospective Defendants.[21]Mr Campbell brings his submissions before me under eight headings. I will address each in turn.[22]The first is what he describes as “the DEFRA fraud”. Mr and Mrs Banks are the owners of the bed of the track called Headbolt Lane (apart from a small bit where ownership is doubtful) and of the land along one side of it. In about 1998 they entered into a Countryside Stewardship Scheme with DEFRA in relation to 2 metre wide grass strip alongside Headbolt Lane (“the Strip”). Only walkers were allowed to use the Strip. DEFRA paid for a “kissing gate” on the Strip to limit access to it. At about the same time Mr and Mrs Banks put up a gate across Headbolt Lane itself. Mr Banks gave evidence that they had been planning with DEFRA a long time before the big gate went up about the stewardship and how it was going to go into action and what to do about it “and we were taking instructions from DEFRA”. He said that DEFRA had instructed them to put up the large gate. The DEFRA agreement was not included in the trial bundle. In 2013 Mr Campbell obtained from DEFRA confirmation that the stewardship agreement did not itself provide a capital payment for the installation of large gates across Headbolt Lane (though the writer noted that it would not be unreasonable to link the erection of the gates to the stewardship agreement because it was a solution to the requirement to limit access to the Strip to walkers only).[23]Mr Campbell alleges that the failure to include the DEFRA agreement in the trial bundle amounts to fraudulent concealment in relation to what “the entire trial was about”. I disagree. The trial was principally about whether the Campbells had any rights at all. The erection of the gates was not in issue. Why the gates were erected (whether it was in some sense because of the stewardship agreement or whether it was on a whim of the owners of the bed of the track) was legally irrelevant. The only mention in the judgment to these events at all was:- “Mr and Mrs Banks have not objected to the use of the lanes by the public as a footpath and, as required by the terms of the Countryside Stewardship Scheme, included pedestrian access features in the gates which they erected”. The Vice Chancellor did not find, hold or assume that the gates themselves were erected because of some obligation in the DEFRA Agreement imposed upon the Banks: and the whole issue was irrelevant to the question whether by the time the gates were erected the Campbells had (by one means or another) acquired an equine right of way. If the DEFRA Agreement was not in the trial bundle it is because it was irrelevant to the real issues (not because of fraudulent concealment of a central piece of evidence).[24]The second fraud is what Mr Campbell calls “the Conveyance Fraud”. The trial bundle apparently did not obtain a full copy of the Campbells’ registered title: in particular, the Charges Register (which set out the burdens to which the Campbells’ land was subject) was omitted. If included, it would have contained an excerpt from the 1953 Conveyance of Lot 116 which would have shown that the land had been sold to Mrs Hillier “subject to … but with the benefit of all the Vendors liabilities and rights in any private or occupation road”. The term “occupation road” had also been used in a subsequent conveyance of the nearby piece of land (a 1954 conveyance of West Crantum Farm) that was nothing to do with title to the Campbells’ land. In the 1954 Conveyance that reference was to a right of way for the purchaser of West Crantum Farm “over and along such part of the said occupation roadways known as Head Bolt Lane … as is not included in the property hereby conveyed”. This would have supported an argument, says Mr Campbell, that the 1953 Conveyance gave him a right of way over “the occupation road” and the “occupation road” meant Headbolt Lane.[25]This argument is not sustainable. Although the excerpt from the Charges Register may not have been the trial bundle the 1953 Conveyance itself containing the vital provision plainly was. When I put this point to Mr Campbell he said:
“The judge and I completely missed them: but I would not have missed them if the Land Registry pages had been in there”
. Quite plainly the defendants, their solicitors and Counsel did not conceal the vital material on which Mr Campbell wanted to found his argument. Moreover the point was not missed: the Vice Chancellor specifically referred to these very words in paragraph [36] of his judgment. So there was no concealment, let alone fraud.[26]Further, I agree with David Richards J that the quoted words do not grant some independent right-of-way over Headbolt Lane. The words are part of a limitation, not part of a grant. All that the words do is to say that Lot 116 is conveyed subject to any existing liabilities relating to the stated matters, but that if there are liabilities then any rights associated with undertaking the liabilities also pass. So if (as part of the grant of a conditional drainage easement) there was an existing liability to pay part of the costs of clearing a ditch then that liability passed to the owner of Lot 116; and any associated rights to drain into the ditch which the owner of Lot 116 was paying to clear also passed. But Lot 116 was not subject to any existing liabilities in respect of any right of way (though it became subject to such a liability by the terms of the 1953 Conveyance itself).[27]The third fraud which Mr Campbell alleges to have occurred is “the Auction Particulars Fraud”. The trial bundles used at the original trial contained the auction particulars for Lot 116. These describe the 1.78 acres as “an arable plot of ground approached from New Cut Lane by a farm track”. Mr Campbell argues that this focused attention on the then current use of Lot 116 and upon the then the current access (which was eventually included in the 1953 Conveyance as the express right-of-way) and distracted attention from what he says was the former use of Lot 116 as pasture and what were the other means of access to Lot 116 over Carr Lane and the whole length of Headbolt Lane. Indeed Mr Campbell goes so far as to say that the Defendants “fabricated a false identity of the [Campbells’] land in order to conceal the true identity”.[28]In 2014 Mr Campbell found in the local Records Office a copy of the General and Special Conditions relating to the sale of the Scarisbrick Estate. General Condition 6 said that lots were sold “subject to and with the benefit of” all rights of way and all outgoings or charges connected with or chargeable upon the property whether mentioned in the Particulars or not. Special Condition 7 said that each lot was sold and would be conveyed subject to all such easements, quasi-easements, privileges and advantages for the benefit of any other lots as the owners, tenants or occupiers thereof then used or had been accustomed to use or enjoy. Special Condition 8 said that purchasers of lots which were granted right of way over adjoining land should in the conveyance covenant to contribute to the repair and upkeep in accordance with the proportions referred to in the particulars. The particulars of Lot 116 directed attention to the particulars of Lot 111. The particulars of Lot 111 said:- “The freehold of the occupation road known as Headbolt Lane is included with lots 111 and 112 … The purchasers of lots 111 and 112 shall each covenant to give to the other and to the purchaser of Lot 116 all such rights of way as have hitherto been enjoyed over the roadway subject to the purchaser of Lot 116 paying 20% of the cost of maintenance of that part of the roadway adjoining lot 116.” Mr Campbell says that these Particulars added weight to his argument that he had an express right-of-way over Headbolt Lane: and that the Banks fraudulently concealed these Particulars and deliberately omitted them from the trial bundle.[29]This argument is not sustainable. The auction contract (to which these Particulars were relevant) merged in 1953 Conveyance. Subject to rectification, it was the 1953 Conveyance that fell to be construed according to its terms. Even if admissible as an aid to construction, the Particulars did not strengthen the Campbells’ argument that they had been granted a general right of way over the whole length of Headbolt Lane and Carr Lane. First, the provisions on which Mr Campbell places reliance principally relate to burdens to which Lot 116 was to be subject. Second, even as supposed grants, one is led back to the question: what evidence did the Campbells adduce at trial of the use being made by Mrs Hillier (as tenant of Lot 116) in 1953 of Carr Lane and the bits of Headbolt Lane over which no right-of-way had been expressly granted? Mr Campbell did not point to any. The trial judge held that such evidence of user as was adduced fell well short of what was required.[30]The fourth of fraud which Mr Campbell alleges to have occurred is “the Subdivision Fraud”. No. 98 New Cut Lane and Lot 116 had both previously been part of OS1391 which itself had formed part of Boundary Farm. Mr Campbell complains that Counsel for the Banks and the Baybutts never mentioned that the Campbells’ land had in the distant past formed part of Boundary Farm, from which it was separated in two stages, although in subsequent proceedings brought by the Campbells in the Birmingham District Registry the solicitors and Counsel acknowledged this to be the case. Mr Campbell himself did mention it (he told the judge “Betty Hillier bought part of Boundary Farm”), but he did not make much of the point: and he acknowledges that he missed other evidence which also showed Lot 116 as previously being part of OS1391 (in particular, a statement to that very effect in the description of Lot 116 in the Auction Particulars). The reason why he did not make much of the point and “missed” the other evidence is that at trial he did not know about “the subdivision rule”. By this he means the principle that if land that has the benefit of an easement is subdivided then each part of the subdivided land has the benefit of that easement. He says that No.98 was subdivided from OS No.1391 in 1932 and then Lot 116 subdivided from OS1391 in 1953. So if Boundary Farm (of which OS 1391 formed part) had an easement over Carr Lane and Headbolt Lane then No. 98 and Lot 116 were each also entitled to the same right. Mr Campbell says that Counsel and the solicitors for the Banks and the Baybutts knew that Boundary Farm had an easement over Headbolt Lane and Carr Lane and that they knew the easement was attached to the Campbells’ land when they bought two sections of OS 1391, but that they and their lawyers fraudulently concealed this from the Court.[31]This argument is not maintainable. First, the task of Counsel and the solicitors for the Banks and the Baybutts was to meet the case that was being brought by the Campbells: the Campbells were not relying on “the subdivision rule” so their opponents did not have to address evidence or argument to the issue. Any absence of emphasis upon the former extent of Boundary Farm is not evidence of “fraudulent concealment”, but rather a demonstration of a proper focus upon the issues relevant to the case. Counsel and solicitors were not being paid by the Banks and the Baybutts to advise the Campbells to argue some speculative point the Campbells themselves might have overlooked. (I describe it as “speculative” because the “subdivision” point was taken by Counsel for the Campbells in his argument to the Court of Appeal seeking permission top appeal (see paragraph 32 of his skeleton argument). But the argument did not succeed and permission to appeal on that ground was not granted). It was for Mr Campbell to take the “subdivision” point and to adduce whatever evidence was necessary to prove the point: the fact that he failed to do so does not mean that the judgment was acquired by fraud.[32]Second, whilst the principle is undoubted, its application to this case is extremely doubtful. The Campbells’ predecessors in title both bought freehold estates in No.98 and Lot 116. In each case the vendors to them would not have had easements over Carr Lane and Headbolt Lane because those vendors themselves owned both of those tracks: you cannot have an easement over your own land. The vendors used the tracks in the right of their ownership, not as grantees of rights of way.[33]An easement is annexed to an estate in the land not to the physical piece of land itself. (Mr Campbell says this view is heretical and out of line with the views of every other judge: but I regard the proposition that “appurtenance” is to an estate in the land as fundamental orthodoxy to which only “merger” is a possible exception: see the much discussed decision Wall v Collins [2007] EWCA Civ 444). So the tenants of the vendors might have had rights of way as part of their tenancy agreements. Mr Campbell says that there was evidence (either from Mr Brooksbank or by a process of deduction from what Mr Brooksbank said available someone who knew the landscape intimately) that the occupiers of Boundary Farm had used Carr Lane and Headbolt Lane up until 1953 for the purpose of moving cattle. But that was user by a tenant; this may have helped an argument based on section 62 (an argument which the Court of Appeal rejected) but cannot prove that the vendor as freehold owner had express grant or an established prescriptive right over the tracks the benefit of which passed with the 1932 Conveyance or the 1953 Conveyance.[34]Third, as the Court of Appeal held, in any event the evidence of user was insufficient. They referred to the judge’s finding that was no suggestion of use by Mrs Hillier of Carr Lane: and to the judge’s finding that there was no evidence of use before 1986 of any part of Headbolt Lane save that over which an express right had been granted. In short, there was no “fraudulent concealment”.[35]The fifth fraud which Mr Campbell alleges occurred is “the Interruption Fraud”. It was common ground at trial that sometime in the early 1970s a cattle gate was erected across Carr Lane by the then tenant of Boundary Farm. This was well before the Campbells’ ownership: but Mr Campbell had to demonstrate “user as of right” of Carr Lane for a period of 20 years prior to 1999 (when the gate to which he objected was erected), and the “cattle gate” presented an obstacle to his doing so. Mr Campbell said that at trial he accepted that because of the “cattle gate” he could not ask the judge to look at the Prescription Act 1832. Mr Campbell says he has now discovered that a “cattle gate” is not an interruption to the use of a way, and that he had available evidence of 335 years uninterrupted usage. When faced with the difficulty that the trial was the place to argue such a legal point and to adduce that evidence Mr Campbell submits “It was extremely subtle way they did it. It was subtle. It convinced me that I could not go beyond [the 1970s]. But Chancery Counsel would have known that a cattle gate was not an interruption.”[36]This is an entirely groundless allegation of fraud. It was for Mr Campbell to research and to argue whatever points he wanted at trial. His failure to argue a point does not turn his opposing Counsel into a dishonest fraudster.[37]The sixth of fraud that Mr Campbell alleges is “the Fabricated Identity fraud”. This is associated with the failure to identify the Campbells’ land as previously part of Boundary Farm, but is concerned with the conduct of the case on behalf of the Banks and the Baybutts in the Court of Appeal and the Supreme Court. As I understand the argument it is that Counsel for the Banks and the Baybutts deliberately and dishonestly misled the Court of Appeal into the belief that Lot 116 was merely “an arable plot of ground approached from New Cut Lane by a farm track”, that there was no reliable evidence of user, and that a vacuum existed between past and present use.[38]Mr Campbell says it is important to ignore the reference to Lot 116 being “arable land” and to remember that it had been pasture. Mr Campbell says the evidence of the user is to be found in the witness statement of Mr Brooksbank. He said that until 1948 his father used Boundary Farm as a dairy farm and that he recalled two fields were used as dairy pasture (one of which Mr Campbell can identify as OS1391). He said that Carr Lane could not be used by vehicles or horses because it was obstructed by a wire fence; and he said that his father did not have any need to use Headbolt Lane as they could access the whole of Boundary Farm from their own entrance onto New Cut Lane. He confirmed this in oral evidence. Mr Campbell says that the evidence about the use of OS1391 as pasture forming part of Boundary Farm is important: but that Mr Brooksbank’s memory about Carr Lane and Headbolt Lane not being used must be wrong because if you look at the layout of the land and take account of the drainage ditches the cattle could not have accessed OS1391 without using part of Headbolt Lane. However he accepts that he did not cross-examine Mr Brooksbank about this and frankly acknowledges that he “missed it completely”. He says that this is because of the subtlety of Counsel:
“It was so subtle the way he did it. I did not advance any arguments to the judge on the matter. Nobody connected Brooksbank’s evidence to our land as part of Boundary Farm.”
[39]Allied to this point is a complaint that in the Grounds of Objection which Counsel prepared for the pending appeal to the Supreme Court Counsel asserted that at no point thus far had the Campbells sought to found their case upon 1932 Conveyance, but had hitherto relied on the 1953 Conveyance. In fact in the course of debate Mr Campbell had briefly run his argument that the reservation by the Marquis of rights of way in favour of the Scarisbrick Estate had amounted to a grant or right-of-way over Headbolt Lane to Mr Campbell’s predecessor in title. But that was not in the context of the “subdivision” argument, because Mr Campbell was not then advancing it. Mr Campbell says that any honest barrister would have said to any tribunal: “The Campbell’s bought part of Boundary Farm”.[40]This is no basis for an allegation of fraud. Mr Campbell chose what points to argue at trial and what evidence to produce and what evidence to challenge. The fact that Counsel referred in his Skeleton Argument for the Court of Appeal and in his Grounds of Objection to the Supreme Court to the course Mr Campbell took and the findings of the judge consequent upon it cannot possibly suggest dishonesty. Furthermore, the fact that the Campbells bought land which had previously been part of Boundary Farm is essentially significant only to the “subdivision” argument: and it is only since the conclusion of the appeal proceedings that Mr Campbell wants to concentrate attention on that point (though as I have observed the principle was canvassed before the Court of Appeal).[41]The seventh fraud that Mr Campbell alleges is “the Suppression Fraud”. A week before the oral application for permission to appeal to the Court of Appeal Mr Campbell produced a history which he says demonstrates that for over 1000 years Headbolt Lane had connected the villages of Halsall and Birkdale. He showed me some 18 items of evidence which (as I understood their import) were designed to demonstrate that Headbolt Lane was an ancient highway. Mr Campbell accepts that he did argue that Headbolt Lane was a highway, but that he did not adduce any of this material at trial, and that the Court of Appeal refused him permission to rely on any of it. But he says that Counsel for the Banks and the Baybutts should have referred to the Court of Appeal to it himself:
“It is unbelievable that lawyers should thwart an individual trying to establish his rights: it beggars my understanding. It is not ethical. They stopped me getting it before the Court.”
It is right to note that Mummery LJ was not satisfied that even if the material had been deployed trial it would probably have altered the decision of the judge that the Campbells were not entitled to the bridleways they claimed.[42]I regard the argument that Mr Campbell is the victim of fraud by Counsel and solicitors as hopeless. Mr Campbell is a desperate man in a difficult situation facing the loss of his house to meet the costs of those whom he unsuccessfully sued, pursued on appeal and sought to pursue on a further appeal. But these allegations of fraud ought never to have been made.[43]Mr Campbell’s eighth “fraud” is not a fraud at all: it is an allegation that he Court of Appealed made a mistake in recounting the conveyancing history of Boundary Farm (which led them to misunderstand the argument under section 62). I am not at all sure the Court did make any mistake: but any mistake had no bearing on the argument under section 62. The section had operative effect at the time when the freehold interest in No.98 and then in Lot 116 was acquired by the Campbells’ predecessors in title: and the question for decision on the evidence was what the user of Headbolt Lane and Carr Lane was at that point. That was the issue examined by the Court of Appeal. In any event, even if a mistake was made that does not enable the Campbells to set aside the judgment against them on the grounds that it was procured by fraud. The respondents to the appeals were not fraudulent for the reasons set out above.[44]Nearly 5 years after their defeat in the Court of Appeal the Campbells still want the gates taken down so that they can operate their business and they want £1.5 million in damages from somebody. They understand that the only means open to them is to allege that the original judgment was obtained by fraud. But quite plainly it was not so obtained.[45]Mr Campbell wants some support from me so that he can go to a barrister and say:
“A judge has said there may be something in this”
. But that would be a great cruelty. It would foster hope of reversing the 2009 decision of the Vice Chancellor when there is no real hope of that coming to pass. It would encourage the Campbells to spend money pursuing a will-o’-the-wisp, and to cause others to incur expense which they would ultimately seek to recover from the Campbells, thereby exacerbating the disastrous loss that this litigation has already engendered. It would hinder the Campbells from facing up to the reality that in adversarial litigation a party has one opportunity to present a case, and that afterwards thinking of better arguments or uncovering additional evidence is of no avail.[46]I hope the book can now be regarded as closed. My present view is that if the Campbells seek to start fresh proceedings in an endeavour to reverse the 2009 decision of the Vice Chancellor or to allege that others have behaved dishonestly they are at real risk of having a civil restraint order made. That observation does not, of course, apply to any attempt to appeal my ruling, nor to any opposition by the Campbells to any enforcement steps that others may take in respect of costs orders made in the litigation (provided that that opposition does not consist of an attempt to re-open the case).