Jeffries v Robb

An injunction regulating a right of way may prohibit lingering, loitering and recording where the way is being used for persistent surveillance. It need not prevent ordinary passage. A requirement to travel at a reasonable speed is fact-sensitive and may be justified by the proven misuse of the way. A challenge to an agreed order faces a high threshold. Post-trial changes should be raised before the judge who made the order under the liberty to apply, supported by evidence. A material change in an appeal case or circumstances after permission should be notified promptly to the appeal court. An obvious defect in a penal notice is ordinarily corrected under the slip rule, but may be corrected by the appellate court when before it.

The parties owned neighbouring agricultural land. The applicant claimed that the respondent had obstructed a right of way granted for all purposes. The respondent counterclaimed for harassment, relying on complaints, solicitors’ letters, allegations of assault and surveillance.

On 15 July 2011, Chelmsford County Court dismissed the obstruction claim and allowed the harassment counterclaim on the surveillance ground. It granted an injunction restricting lingering, loitering and recording on the respondent’s land, and requiring passage at a reasonable speed. The applicant appealed against the latter wording and renewed an application for permission to challenge the prohibition on using a CCTV camera. The central issues concerned the proper scope of the injunction, the effect of the agreed form of order, and the appropriate remedy for later changes or a defective penal notice.

1. Disposition. The renewed application for permission to appeal was refused. The appeal was dismissed, but the penal notice was struck out and replaced with a warning that non-compliance with paragraph 4 was a criminal offence under the Harassment Act 1997.
2. Injunction concerning the right of way. Since the order had effectively been agreed, the applicant faced a high threshold and had to show something very wrong with the wording before the court would delete it. The phrase at a reasonable speed did not prevent ordinary use, including walking a dog. What was reasonable depended on all the circumstances, including the companions or animal involved. The wording directly addressed the evidence that the right of way had been used to conduct surveillance, and was justified: paras [13]-[16].
3. Recording and changed circumstances. There was no evidence that the applicant had been threatened or attacked. The proposed proviso to permit CCTV recording would have enabled the conduct found to constitute harassment. Disputed post-trial conduct was not an appropriate basis for challenging the order on appeal. A change of circumstances should instead be raised before the judge who made the order, under the implicit liberty to apply and supported by evidence: paras [9]-[10].
4. Penal notice. The notice was plainly defective. Such a defect should ordinarily be corrected by the judge who made the order under the slip rule, rather than by appeal. Because the issue was before the court, it corrected the notice itself: paras [18]-[20].
5. Appeal administration. Lady Justice Arden emphasised that a material change in the appellant’s case or circumstances after permission must be promptly notified in writing to the appeal court and the other party. This enables the court to reconsider permission or the admission of new grounds. The guidance was supported by Shire v Secretary of State for Work & Pensions [2003] EWCA Civ 1465, Walbrook Trustee (Jersey) Ltd v Fattal [2008] EWCA Civ 427 and R (A Child) [2010] EWCA Civ 303. Failure to provide full information may waste court time and costs and lead to adverse costs consequences: paras [24]-[26].

1. Court of Appeal (Civil Division): In [2012] EWCA Civ 1149, permission to appeal against paragraph 4(ii) was refused and the appeal was dismissed. The penal notice was nevertheless struck out and substituted.
2. Chelmsford County Court (sitting at Southend): On 15 July 2011, HHJ Maloney QC dismissed the obstruction claim, allowed the harassment counterclaim on the surveillance ground and granted the injunction.