Dearnley v National Trust & Ors

A litigant in person should receive substantial procedural latitude, but remains responsible for clearly identifying a proposed amendment. Where a trial judge misunderstands the case, fresh proceedings may be preferable to reviving the earlier action if they provide a fair and effective remedy. In flooding litigation, a statutory weir operator is not liable in negligence or nuisance where it has acted non-negligently while balancing competing duties and interests. A factual appeal requires a realistic prospect that the judge was plainly wrong. Fresh evidence must satisfy the applicable appellate test, including why it was not obtained at trial.

Mr Robert Dearnley’s tenancy at Burpham Court Farm was repeatedly affected by flooding from the River Wey. He claimed that the National Trust had negligently operated two weirs, causing negligence and nuisance, and that Guildford Borough Council had made misrepresentations concerning the tenancy. Shortly before trial, he sought to add a claim against the council concerning flooding and pollution allegedly arising from its drainage system and former landfill.

The county court treated the council claim as one of misrepresentation and held it time-barred. Permission to challenge that limitation ruling had already been refused by Gage LJ. Following a ten-day trial, the judge rejected the claims against the Trust. The Court of Appeal considered whether the council proceedings should be revived and whether there was a realistic basis for an appeal against the Trust.

Lord Justice Rix delivered the judgment, with Mr Justice Peter Smith agreeing.

1. Council appeal. Permission to appeal was granted, but the appeal was dismissed. The trial judge had misunderstood the proposed amendment and therefore had not considered the intended nuisance claim against the council. Although a litigant in person was entitled to considerable latitude, the ultimate responsibility for explaining the proposed case remained with Mr Dearnley. The council was not responsible for the misunderstanding.
2. The fair remedy was to leave Mr Dearnley to fresh proceedings rather than restore the earlier litigation. The old trial against the Trust had ended, the proposed council claim had barely been developed, and revival would not recover the lost preparation. The council stipulated that a fresh nuisance claim could look back at least six years from issue and that it would not rely on abuse of process or the Henderson v Henderson principle. Those matters made fresh proceedings an adequate and fair remedy.
3. Trust application. Permission to appeal was refused. The judge had applied the correct standard derived from Leakey v National Trust [1981] QB 485 and Allen v Gulf Oil Limited [1981] AC 1001. The issue was whether the Trust had acted negligently. A defendant that had done all that it reasonably could and should do on a non-negligent basis was not liable in nuisance. The judge was entitled to find that the Trust’s weir operation was proper and that the flooding was not caused by breach of duty.
4. The Trust was entitled to balance the claimant’s interests against its statutory duty to maintain the navigation. It was not required permanently to alter the discharge of its statutory obligations simply to suit one claimant. The reference to the common enemy rule was a passing observation: it might not protect negligent conduct, but added nothing where the operation was found non-negligent. The statutory authorisation under the Act of 1670 provided an alternative basis for immunity from nuisance liability.
5. An appeal based on factual error requires a realistic case that the judge was wrong; at the appeal itself, the judge must be shown plainly wrong. The proposed new evidence failed the first Ladd v Marshall test because it could have been obtained at trial, and its anecdotal character did not create a realistic prospect of success.

Orders: permission to appeal against the Trust refused; permission to rely on further evidence, extension of time and stay of execution: no order. Permission to appeal against the council granted; appeal dismissed; permission to rely on further evidence: no order.

1. Court of Appeal (Civil Division). In [2006] EWCA Civ 995, permission to appeal against the council was granted but the appeal was dismissed. Permission to appeal against the Trust was refused. An earlier permission application concerning the limitation ruling had been refused by Gage LJ.
2. Guildford County Court. HHJ Reid held the misrepresentation claim against the council time-barred. Following a ten-day trial, his judgment of 3 April 2006 rejected the negligence and nuisance claims against the Trust.