Sammut & Anor v Catchpole

Permission to appeal is discretionary. Although the court has a broad and flexible power to grant declaratory relief, there should generally be a real and present dispute concerning legal rights, and each party should ordinarily be affected by the determination. A strong interest in the outcome as a neighbouring landowner is insufficient where the proposed appeal cannot affect the appellants’ proprietary or possessory rights. The permission jurisdiction under CPR 52.6 remains discretionary even where there is a real prospect of success or another compelling reason. An appeal should not be permitted where it would serve no useful purpose and would cause disproportionate expense and delay.

The appellants applied for permission to appeal and permission to adduce further evidence against an order made after a county court trial. The county court had determined the boundary between neighbouring farms, rejected the appellants’ claim to own or possess the land over which the respondent accessed a public lane, and declared that the respondent had acquired a right of way by lost modern grant.

The proposed appeal challenged the declaration of the right of way and the consequential costs order. The central issue was whether the appellants had standing, in legal terms, to appeal a declaration concerning land which they neither owned nor possessed.

1. Permission refused. The appellants’ applications concerned an order declaring a right of way and permitting its use for all purposes, including with animals and vehicles. The county court’s unchallenged findings established that the appellants neither owned nor possessed the relevant strip of land and had no legal right affected by the declaration (paras 23–30).
2. Prescription presupposes a grant by the absolute owner of the servient tenement to the absolute owner of the dominant tenement. The existence and extent of the easement were therefore matters between the respondent and the owner of the unregistered land, not matters affecting the appellants’ legal rights (para 23).
3. The power to grant declaratory relief is broad and flexible, but it is ordinarily necessary that there be a real and present dispute between the parties as to the existence or extent of a legal right and that each party be affected by its determination. The county court had been entitled to declare the right of way because the respondent had a legitimate interest and the parties’ legal rights had been disputed there. The position on appeal was different because the appellants’ legal rights were no longer engaged (paras 30–36).
4. The appellants had procedural standing as defendants under CPR 52, but CPR 52.6 conferred a discretion. The court was not required to grant permission merely because a real prospect of success or another compelling reason might be shown. The discretion had to be exercised consistently with the overriding objective, proportionality and the useful-purpose requirement (paras 37–41).
5. The appellants would retain protection against substantial interference with their own land or access. Their neighbourly interest, and the possibility that future events might alter their proprietary or possessory position, did not justify an appeal on the facts as found. The court therefore refused permission, without deciding the further-evidence application or the merits of the proposed grounds (paras 26, 29, 38–43).

• High Court (Chancery Division): refused permission to appeal from the order of HHJ Berkley in the Winchester county court, and did not determine the application to adduce further evidence or the merits of the proposed grounds.
• Winchester county court: after a trial, determined the boundary, rejected the appellants’ claim to own or possess the relevant land, and declared that the respondent had a right of way.