Campbell & Anor v William Banks & Ors

On a renewed application for permission to appeal, a difficult point may proceed to a full hearing where it is sufficiently arguable and requires fuller examination, including the opposing party’s response. A new point or fresh evidence must be admitted only where it is just to do so. Grounds that merely challenge trial findings of fact will generally fail the real prospect of success threshold. Limited permission does not indicate that the appeal will succeed.

The applicants sought permission to appeal from an order made by David Richards J after a five-day trial concerning alleged private and public rights of way over two lanes near Southport. Their claims included vehicular and equine access, a public pedestrian right of way, injunctions and damages for alleged obstruction and harassment of customers of a stables business. Thomas LJ had refused permission on the papers. On renewal, the applicants also sought an extension of time and a stay. The central issues were whether an arguable right of way arose expressly or under section 62 of the Law of Property Act 1925, and whether new maps and other documents could support a public right of way claim.

The court granted the applications for an extension of time and a stay. It granted limited permission to appeal on two issues, while refusing permission on the remaining grounds.

1. Private right of way. The trial judge had rejected reliance on earlier title deeds as establishing an express grant. The Court of Appeal considered the sale particulars of the Scarisbrook estate and the possible application of section 62 of the Law of Property Act 1925 sufficiently arguable to require consideration by the full court. The relevant documents were incomplete, and the full court would have the benefit of the respondents’ submissions. Permission was subject to any objection that the statutory point was new and that it would be unjust to raise it for the first time on appeal.
2. Public right of way. The applicants relied on new maps and documents relating to the Surveyor of Highways and on the asserted principle that a highway remains a highway. Permission was granted on this issue, subject to the applicants persuading the full court that it was just to admit the new evidence.
3. Remaining grounds. Permission was refused for challenges to factual findings, including the rejection of the private right based on long use, alleged deception concerning DEFRA permissive footpaths, alleged witness interference and the damages claim. Those grounds had no real prospect of success on appeal. The argument that the judge had decided the wrong issue was misconceived because the claim included an equine right of way and that claim had not been abandoned.

The court stressed that limited permission did not mean the appeal would succeed and that further substantial costs might be incurred and ordered against the losing party. The Civil Appeals Office was directed to provide mediation details.

1. Court of Appeal (Civil Division): On renewal, limited permission to appeal was granted concerning the alleged express or statutory grant of a right of way and the public pedestrian right of way. Permission was refused on the remaining grounds, and an extension of time and a stay were granted.
2. Court of Appeal (Civil Division): Thomas LJ refused permission to appeal on the papers on 29 December 2009.
3. High Court (Chancery Division): David Richards J made an order on 22 May 2009 after a five-day trial, rejecting the applicants’ claims concerning the rights of way and damages.