Richards & Anor v Somerset County Council

The power to reopen a final order refusing permission to appeal is exceptional. It is exercised only where necessary to avoid real injustice. Fresh evidence must satisfy the three requirements in Ladd v Marshall [1956] 1 WLR 1489. In this context, it must come close to showing a prima facie case of fraud or demonstrably untrue evidence. Finality, delay and an intervening decision based on the order weigh heavily. Correspondence showing only that local-government officers explored compulsory purchase, without a council resolution or decision, does not establish an indication under section 9 of the Land Compensation Act 1961.

Following confirmation of a purchase notice under the Town and Country Planning Act 1990, Mr and Mrs Richards referred their claim for compulsory-purchase compensation to the Lands Tribunal. The Tribunal decided on 19 October 2000 that there was no indication under section 9 of the Land Compensation Act 1961 and no scheme underlying the acquisition. It later assessed compensation at £100,000.

Permission to appeal against the compensation decision was refused. Mummery LJ subsequently refused out-of-time permission to appeal against the preliminary decision. The applicants made a second attempt, relying on 19 documents and a witness statement and alleging non-disclosure and untruthful evidence. The central issue was whether the fresh material satisfied the applicable test and justified reopening the earlier refusal.

1. Application refused. Scott Baker LJ held that the court had power, under Taylor v Lawrence, to reopen its earlier refusal of permission, but only where exceptional circumstances made reopening necessary to avoid real injustice. The passage of more than five years, the principle of finality, and the fact that the challenged decision formed the basis of a later compensation decision all made the hurdle particularly high.
2. The applicable fresh-evidence test was that in Ladd v Marshall [1956] 1 WLR 1489: the evidence must not have been obtainable with reasonable diligence; it must probably have had an important influence on the result, though it need not have been decisive; and it must be apparently credible.
3. The material relied on did not meet that threshold. The 1994 letter and the correspondence concerning Bisa Homes showed, at most, that officers had been asked to consider compulsory purchase and had explored possible procedures under section 226 of the Town and Country Planning Act 1990. There had been no council resolution or decision to acquire the reference land. The documents therefore fell far short of showing an indication within section 9 of the Land Compensation Act 1961, or of demonstrating that the Tribunal’s factual conclusions were seriously undermined.
4. Mr Condor’s evidence was not new for the purposes of Ladd v Marshall. He could have been asked to give evidence at the original hearing and, if necessary, compelled by subpoena. The applicants therefore failed the first limb of the fresh-evidence test.
5. The documents and witness statement did not come close to establishing a prima facie case of fraud or demonstrably untrue evidence. The applicants consequently failed to cross the exceptional threshold required to reopen the earlier decision. Sir Charles Mantell agreed. The formal order was that the application be refused.

• Court of Appeal (Civil Division): On 9 March 2006, refused the second application for permission to appeal and declined to reopen the earlier refusal.
• Court of Appeal (Civil Division): Permission to appeal against the Lands Tribunal’s later compensation decision was refused on 4 February 2003. Mummery LJ refused out-of-time permission to appeal against the preliminary decision on 9 May 2003.
• Lands Tribunal: The Tribunal decided the preliminary issues on 19 October 2000 and later assessed compensation at £100,000 on 25 July 2002.