Holmes & Anor v Evans & Anor

An issue judicially determined by an unappealed order cannot be reopened at a later trial. The later judge is bound by the earlier ruling and may decide only matters left open by the applicable case-management order. A change of position, litigant-in-person status or adjournment does not alter that conclusion. A lengthy extension of time should be refused where proceedings are stale, the applicant chose not to appeal, and there are no realistically arguable prospects of success. Mandatory injunctions need not expressly refer to statutory or third-party consents, since an injunction cannot require unlawful conduct.

The respondents claimed a prescriptive agricultural right of way over a track and bridge adjoining their small-holding. The appellants disputed the right and the bridge’s width and condition. Before trial, the appellants’ solicitors stated that they were prepared to agree an agricultural right of way, and an order of Mr Recorder Keyser QC recorded the parties’ agreement.

On an adjournment, His Honour Graham Jones ruled that the existence of a vehicular right of way was no longer open for determination and confined the trial to specified issues. That order was not appealed. Judge Jarman QC nevertheless considered the substantive evidence and granted declarations and injunctions in the respondents’ favour. The central issue was whether the vehicular right of way remained open for determination at the later trial.

1. Appeal dismissed. Lord Justice Davis, with Lord Justices Richards and Longmore agreeing, held that the earlier orders and the unappealed ruling of His Honour Graham Jones confined the trial to the specified issues. The existence of the vehicular right of way had been judicially determined and was no longer an extant issue before Judge Jarman QC.
2. The solicitor’s letter of 21 April 2008, the recital in Mr Recorder Keyser QC’s order, the subsequent hearing and the absence of any appeal or application to correct or challenge the order established the procedural position. The defendants’ later change of stance could not reopen the issue.
3. The defendants’ status as litigants in person, their reliance on comments concerning the time for appealing, the adjournment of the trial and the possible withdrawal of an admission did not displace the effect of the unappealed judicial determination. Judge Jarman QC was empowered to deal only with the matters specified in His Honour Graham Jones’ order.
4. The application for a very lengthy extension of time to seek permission to appeal the earlier orders was refused. The proceedings had become stale, the defendants had chosen not to take legal advice or appeal, and the proposed challenge had no realistically arguable prospect of success. The conclusion that the court should not go behind the recital involved a discretion reasonably open to the judge and was not perverse, despite the absence of an express direction concerning CPR Part 14.1(5).
5. The mandatory injunctions required no express qualification concerning statutory or third-party consents. An injunction cannot require unlawful conduct. The costs order below stood, but there was no order as to the costs of the appeal, including the Respondents’ Notice.

1. Court of Appeal (Civil Division): appeal from orders of Judge Jarman QC in Swansea County Court; appeal dismissed.
2. Swansea County Court: Judge Jarman QC granted declarations and consequential injunctions concerning the agricultural right of way and bridge.
3. Swansea County Court: His Honour Graham Jones confined the later trial to specified issues. His ruling was not appealed.
4. Earlier order: Mr Recorder Keyser QC recorded the parties’ agreement concerning an agricultural right of way.