B2/2001/1666
Neutral Citation Number: [2001] EWCA Civ 1840
IN THE SUPREME COURT OF JUDICATURE                               
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(Mr Justice Park)

								Royal Courts of Justice
								Strand
								London WC2

							Friday 23rd November, 2001

B e f o r e:

LORD JUSTICE ALDOUS

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FAMILY HOUSING ASSOCIATION
Claimant/Applicant

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(1) PHILLIPA DONNELLAN
(2) ANDREW CATO
(3) PERSONS UNKNOWN
Defendants/Respondents

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040
Official Shorthand Writers to the Court)
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MR N VINEALL (Instructed by Messrs Evans Butler Wade, London SE10 8JA) appeared on behalf of the Applicant

MR S KNAFLER (Instructed by Messrs Steel & Shamash, London SE1 7AA) appeared on behalf of the Respondents

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J U D G M E N T
1.	LORD JUSTICE ALDOUS: The claimants in these proceedings seek permission to appeal against the order of Park J of 12th July 2001 which allowed an appeal by the defendants. These proceedings were started in 1995 by the Family Housing Association. They sought possession of 85 Bonnington Square, London SW8, which had been occupied by squatters including the named defendants. The defence dated 27th October 1995 alleged that the plaintiff's title had been extinguished under the Limitation Act 1988 by reason of 12 years' adverse possession. A lot of time passed without the case making much progress, but I am not concerned with the reasons for that.
2.	This application arises out of an application made by the Housing Association to amend their reply and defence and counterclaim to raise a human rights point. That application came before His Honour Judge Knight in the Central London County Court and he gave leave to the Housing Association to make the amendments. 
3.	In essence what was alleged by those amendments was that Article 6 of the European Convention on Human Rights provides that in determination of a party's civil rights and obligations everyone was entitled to a fair public hearing within a reasonable time by an independent and impartial tribunal. Article 1 of the First Protocol to the Convention provided that persons are entitled to peaceful enjoyment of their possessions and no one should be deprived of their possessions except in the public interest and subject to conditions provided for by law and by general principles of international law. 
4.	The Housing Association seek to contend that the effect of the Limitation Act construed so as to extinguish title after 12 years' adverse possession resulted in deprivation of the mesne profits and title to their land. That was disproportionate, contrary to the public interest and in breach of Article 1 to the First Protocol and/or Article 6. They therefore allege that the provisions of the Limitation Act 1980 should be read and given effect to in a way which was compatible with their rights under the Convention. Alternatively, that a declaration should be made that the relevant provisions of the Limitation Act are incompatible with the Human Rights Act 1998. 
5.	As I have said, His Honour Judge Knight considered that application to amend and concluded that it was reasonably arguable, and therefore allowed the amendments to be made. The defendants sought permission to appeal that judgment from the Court of Appeal. Their application was considered by a single Lord Justice and remitted back to the High Court. The result was that it came before Park J. He gave judgment on 12th July 2001. By that time the Court of Appeal had given judgment in JA Pye (Oxford) Ltd v Graham [2001] 2 WLR 1293. Park J, relying upon the judgments of the Court of Appeal in Pye v Graham concluded that the allegations made in the amended pleading were unarguable. He disagreed with the judge's decision and concluded that the amendments were not allowable. He therefore allowed the appeal.
6.	It is against that conclusion that the Housing Association now seek permission to appeal. They contend that the statements of the Court of Appeal in Pye v Graham were obiter dicta and were therefore not binding upon this court. They accept that the statements are persuasive and as such they may have difficulties in establishing their case in this court. However, they believe that the statements that were made were per incuriam and made without reference to all the submissions that they would wish to rely upon. They submit that an appeal would have a real prospect of success, and even if the appeal should fail in this court, they have a good chance of obtaining permission to take the matter to the House of Lords and there succeeding. 
7.	The application for permission to appeal came before me on the papers. Having read the papers, I came to the conclusion that the human rights point had been decided adversely to the applicants in Pye v Graham and that the conclusion of the Court of Appeal in that case was binding. That being so, I expressed the view that there was no real prospect of the appeal succeeding. However, I was concerned that a refusal of permission would prevent the applicant seeking to take the case to the House of Lords. I was also aware at that time that Pye v Graham was going to be considered in the House of Lords. For that reason I decided to appoint an inter partes hearing to decide what to do. It is that hearing which has taken place before me today. 
8.	I have had placed before me the petition for leave to appeal to the House of Lords in Pye v Graham, in which it appears that the European human rights point was not put before their Lordships. However, Mr Vineall has shown me an extract from amendments to the statement of facts and issues which shows that the human rights issues are to be raised in their Lordships' House. However, the factual basis is different in that case; as it has to be considered whether the effect of the Human Rights Act is retrospective. That does not arise in this case. 
9.	I have been referred to passages in the judgments of Mummery and Keene LJJ which could be interpreted as suggesting that their observations were obiter. For my part, I am not certain that that is proper interpretation. However, I am conscious that this human rights point is going to be considered in the context of an adverse possession case in the House of Lords in Pye v Graham, and I do not believe it would be right to deprive the Housing Association of the opportunity of seeking to argue their case before their Lordships' House. 
10.	I raised with counsel the suggestion that it would be appropriate and the cheapest way to proceed if I granted permission to appeal and then immediately rejected that appeal. Having heard counsel's submissions and no objection being raised to that course, I believe that is the correct course to take. I therefore will give permission to appeal and at the same time dismiss the appeal. 
11.	I believe that is the correct course to take. It is right that the Housing Association should have the chance to persuade their House of Lords to consider the issues that are raised in this case at the same time as they consider Pye v Graham. I do not propose to give permission to appeal to the House of Lords, because that can be dealt with upon a petition. In that way the Housing Association can put before their Lordships' House full reasons why it should be heard at the same time as Pye v Graham and why their Lordships should be concerned with it. 
12.	I come therefore to the question of costs. On behalf of the Housing Association Mr Vineall points out that this in effect is an application for permission to appeal in which I requested an inter partes hearing to decide how the matter should proceed. Mr Knafler says he has been brought here. He in effect has succeeded and therefore he should be entitled to the costs of the hearing. 
13.	In my view this is a somewhat unique case and the appropriate course is to make no order as to costs. I am grateful to counsel for the help that they have given me into coming to this decision, and I hope that in the end it will provide justice to the parties. 
ORDER: Application for permission to appeal granted; appeal dismissed; no order for costs.
(Order not part of approved judgment)