Hampshire County Council v Gillingham & Anor

A public right of way extends over the full width identified by the relevant definitive map, subject only to a very narrow de minimis exception. Private agreements, misleading information, acquiescence or an authority’s earlier consent cannot legalise an obstruction or prevent a highway authority performing its statutory duty.

For apparent bias, the question is whether the relevant circumstances create a real danger that the judge might unfairly favour one party or disfavour another. A judge’s ordinary local acquaintance with a person who is neither a party nor a witness will not ordinarily suffice where the person’s private interests are not affected.

Hampshire County Council brought proceedings in the Southampton County Court to protect public rights over Footpath No 6 at Spratts Down. Judge Rudd ordered Leslie and Ann Gillingham to remove a gate and concrete post and granted injunctions restraining obstruction, misleading signs and harassment.

The defendants appealed, challenging the judge’s reliance on material from earlier proceedings, the finding that the gate obstructed the full width of the path, the injunctions, the rejection of estoppel and de minimis arguments, and the judge’s failure to recuse himself because of his acquaintance with Maldwin Drummond, a person involved in earlier private litigation concerning the land.

The central issues were the extent and protection of the public footpath and whether the circumstances gave rise to a real danger of judicial bias.

1. Appeal dismissed. The order requiring removal of the gate and concrete post, the restraining injunctions and the costs order were upheld. The appeal costs were payable by the appellants and permission to appeal to the House of Lords was refused.
2. The public were entitled to use the full enclosed width of Footpath No 6 described in the definitive map. The existence of an eight-foot gap did not answer the claim where the path was described as between hedges nine to twelve feet apart. The obstruction was a factual matter which the trial judge was entitled to resolve on the evidence, site inspection and photographs. The Court of Appeal would not readily interfere with those findings.
3. Agreements between the defendants and Mr Drummond, alleged misinformation, or Hampshire’s earlier tolerance of a narrower passage could not affect public highway rights. Under Highways Act 1980, section 130, Hampshire had a positive statutory duty to assert those rights, and estoppel could not prevent it exercising its statutory powers. The de minimis exception was very narrow.
4. Once Judge Rudd was satisfied that the defendants had erected the gate and post and that they obstructed the footpath, he could order their removal. The proceedings concerned public rights, not the enforcement of private arrangements or the allocation of responsibility between other landowners.
5. Applying Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 All ER 65 and the real-danger test in R v Gough [1993] AC 646, there was no real danger of bias. Judge Rudd’s previous dealings with Mr Drummond were business contacts concerning New Forest affairs. Mr Drummond was neither a party nor a witness, and the judgment did not determine his private interests. His earlier recusal in litigation to which Mr Drummond was a party did not require recusal in these proceedings.
6. Sedley LJ additionally observed that local judges must take care that private contacts do not affect their judicial work. The possible development of a lower apparent-bias threshold under Article 6 of the Convention was unnecessary to decide, since the appeal would fail under either approach.

• Court of Appeal (Civil Division): Judge Rudd’s judgment in the Southampton County Court was upheld. The appeal was dismissed; costs were awarded against the appellants and permission to appeal to the House of Lords was refused.