Wallace & Anor v Crossley & Anor

Permission to appeal should be refused where the proposed grounds disclose no real prospect of success. An appellate court will not interfere with factual findings that were reasonably open on the evidence merely because a party prefers different witnesses or expert opinions. Apparent bias is assessed from the standpoint of a fair-minded and informed observer; ordinary trial-management decisions do not establish it when within reasonable discretion. An easement to discharge effluent does not authorise nuisance, and a prescriptive right to cause nuisance requires evidence of nuisance during the relevant earlier period. Pre-proceedings settlement offers may be considered in the same way as Part 36 offers for costs. Repeated instalment applications require a material change of circumstances, and an unpaid, ascertained judgment debt may be secured by a charging order.

Adjacent landowners disputed the discharge of sewage through a septic tank, settlement tanks and reed bed system. The Worcester County Court found that the defendants’ easement was subject to a qualification against causing nuisance, found nuisance by appearance and smell, rejected arguments based on prescription, interference with the reed beds and estoppel, awarded damages and made costs and access orders.

The defendants applied for permission to appeal against the substantive order, the striking out of a repeated application to pay costs by instalments, and a charging order securing the unpaid costs sum. The central issues were whether the factual findings and trial conduct disclosed appealable error, and whether the subsequent costs and enforcement orders were sustainable.

Permission refused in all three applications. Lord Justice Richards concluded that none of the proposed grounds had a real prospect of success.

1. Evidence and nuisance. The trial judge had considered the relevant factual and expert evidence and was entitled to prefer the evidence of particular witnesses. The findings that the effluent caused nuisance by appearance and smell were reasonably open on the evidence. The applicants’ disagreement with the assessment of competing expert evidence did not justify appellate intervention.
2. Bias and trial management. The relevant test for apparent bias was the perspective of a fair-minded and informed observer. The judge’s interruptions, decisions about the order of evidence, limits on examination and cross-examination, and requirement for written closing submissions remained within reasonable case-management discretion. They did not establish actual bias, apparent bias or unfairness, notwithstanding that the applicants were litigants in person.
3. Prescription and estoppel. The evidence did not support a finding of nuisance before 1994 and therefore did not establish a prescriptive right to cause nuisance. The easement to discharge effluent was qualified by the requirement that it not cause nuisance. Any consent by the claimants was properly understood as being given on that basis, so the estoppel argument failed. The written agreement added nothing material in light of those findings.
4. Financial orders. The judge was entitled to take pre-proceedings settlement correspondence into account when making an indemnity costs order. The approach was supported by Huck v Robson [2002] 3 All ER 263, which treated such an offer as capable of consideration in the same way as a Part 36 offer. The award of interest was also within the judge’s discretion.
5. Instalments and charging order. The repeated application to pay £50,000 on account of costs by instalments was properly struck out because there had been no change of circumstances. The evidence allowed the court to conclude that the applicants could raise the money, including by a loan. Since the sum was precisely ascertained, due under a valid order and unpaid, there was no arguable basis for challenging the charging order.

• Court of Appeal (Civil Division): On 2 November 2005, Lord Justice Richards refused permission to appeal against the substantive order, the strike-out order and the charging order: [2005] EWCA Civ 1463.
• Worcester County Court: HHJ Geddes found for the claimants in a judgment handed down on 4 May 2005 and made the substantive order dated 20 June 2005, including nuisance relief, damages, costs and access restrictions. Subsequent county court orders addressed payment by instalments and security for the unpaid judgment debt.