Neutral Citation Number: [2012] EWHC 1605 (Ch)
Case No: 2BS30135
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY

Bristol Civil Justice Centre
Redcliff Street, Bristol

Date: 13/06/2012 

Before :

MR JUSTICE MORGAN
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Between :

	(1)	CHRISTOPHER CHARLES PRICE
(2)	CHARLES FREDERICK PRICE	Claimants	
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	JONATHAN JAMES NUNN	Defendant	

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Mr Guy Adams (instructed by Phoenix Legal Group) for the Claimants
Mr John Stenhouse (instructed on Direct Public Access) for the Defendant

Written submissions following judgment
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Judgment

Mr Justice Morgan: 
1.	This judgment deals with the matters which need to be considered following the judgment I handed down on 11 May 2012 with Neutral Citation Number [2012] EWHC 1251 (Ch). It appears that the parties have been unable to agree on any relevant matter.
The form of the order
2.	I have been provided with two draft orders, one put forward by the Claimants and the other by the Defendant.
3.	After the formal parts of the order, the order should contain the following declarations:
(1)	A declaration that the Defendant is bound by an issue estoppel which prevents him from asserting that Woodside Bungalow has the benefit of a private right of way over the lower track;
(2)	A declaration that there is no cause of action estoppel, nor issue estoppel, preventing the Defendant from asserting the existence of a public right of way over the lower track: (a) for the purpose of defending any claim by the Claimants that the Defendant is trespassing on the lower track when he is using the lower track otherwise than pursuant to the express right of way granted by the conveyance of 3 October 1960 (“the express grant”); and (b) for the purpose of claiming a negative declaration that he is not a trespasser when using the lower track otherwise than pursuant to the express grant; 
(3)	A declaration that it is not an abuse of the process of the court for the Defendant to assert a public right of way over the lower track for the purposes identified in (ii) above;
(4)	A declaration that the Defendant’s claims that a future interference by the Claimants with the claimed public right of way over the lower track would constitute a public nuisance ought not to be struck out.
4.	The above declarations give effect to the conclusions which I expressed in my earlier judgment.
5.	The draft order put forward by the Defendant also sought declarations in relation to the upper track and the Pitch. In my judgment, I did not determine any issue in relation to the upper track and the Pitch. It is therefore inappropriate for the order to contain declarations in relation to the upper track and the Pitch.
6.	The order should contain the following order: “that the Defendant’s pleaded claim that Woodside Bungalow has the benefit of a private right of way over the lower track be struck out”.
7.	I will also order that the Defendant do file an amended Defence and Counterclaim within 21 days of the lifting of the stay referred to in paragraph 20 of this judgment. It is desirable that the Defendant makes clear in such an amended pleading what matters remain relevant, and which matters cease to be relevant, in view of the declarations which I have made.
Costs
8.	The parties have made detailed submissions in relation to costs. The issues as to costs concern: (1) the costs of the Claimants’ strike out application; (2) the costs of a hearing on 6 December 2011; and (3) the Claimants’ costs of defending the claim that Woodside Bungalow had the benefit of a private right of way over the lower track. The first of these issues is the principal matter in dispute.
9.	As to the costs of the Claimants’ strike out application, the Claimants said that they were successful, albeit not wholly successful. They said that the Defendant ought to have conceded at an early point the issue as to an alleged private right of way over the lower track. Instead, the Defendant put forward a considerable body of material and a large number of legal authorities in an attempt to avoid a strike out of the claim to a private right of way. Further, it was said that the point on which the Defendant succeeded in relation to its claim to a public right of way over the lower track was not a point taken by the Defendant but was a point raised by the court at the hearing. In relation to this last point, the Claimants referred to Beoco Ltd v Alfa Laval Co Ltd [1995] QB 137 as to the right approach to adopt in the case of a fundamental late amendment to a pleading. In these circumstances, the Claimants contended that they should have all of their costs of the application or a substantial proportion of them.
10.	The Defendant submitted, at considerable length, that the right order as to the costs of the application was that the Defendant should pay 20% of the Claimants’ costs of the application and that the Claimants should pay 80% of the Defendant’s costs of the application, with one set of costs being set off against the other. I will refer to the more important points made by the Defendant. He contended that the “burden of proof” on the application was on the Claimants and that until the Claimants put forward a clear and comprehensible argument in support of their application, the Defendant had nothing to which he needed to respond. The Defendant was critical of the way in which the Claimants’ application, and the evidence in support of it, were expressed. The Defendant was also critical of the Claimants’ failure to respond to a request for information under CPR Part 18. It was said that the Claimants did not make clear the nature of the estoppel or the abuse of process intended to be relied upon. It was said that the application was originally all-encompassing as regards the claims to public and private rights of way over the upper track as well as the lower track. The Defendant then contended that 75% of the hearing of the application was taken up with the Claimants’ counsel reacting to the point raised by the court as to the question of privity in relation to the claim to a public right of way over the lower track. It was said that the Claimants failed in relation to the upper track and in relation to the claim to a public right of way over the lower track. The Claimants’ success in relation to the claimed private right of way over the lower track was the result of the court applying the principles of issue estoppel whereas the Claimants had contended for a cause of action estoppel.
11.	The Defendant then submitted that the court should adopt an issues-based approach. He referred to a number of well known cases as to when and how the court should approach the question of costs by reference to the degree of success or failure on separate issues.
12.	I am not able to adopt either of the approaches contended for by parties. Both parties have been able to make considerable criticisms of the other party’s conduct of the application. In relation to the Claimants’ application for their costs of the application (or a substantial part of them) I attach weight to: (1) the fact that in some of the material prepared by the Claimants in advance of the hearing, it appeared that the Claimants were seeking to strike out the Defendant’s claims to rights of way over the upper track, as well as the lower track; and (2) the fact that the Claimants failed in relation to the claim to a public right of way over the lower track and that issue took up a considerable amount of the time at the hearing.
13.	In relation to the order for costs suggested by the Defendant, I attach weight to: (1) the fact that the Defendant failed in relation to its claim to a private right of way over the lower track; (2) the fact that it should always have been apparent to the Defendant that the Claimants had a strong case for an issue estoppel in relation to that issue; (3) the fact that the Defendant unsuccessfully sought to avoid the issue estoppel by relying upon a lengthy witness statement (together with its exhibit) from the Defendant which will have resulted in a considerable amount of work and costs for both sides; (4) the fact that the decision in the Defendant’s favour in relation to the claim to a public right of way over the lower track was based on an analysis which was not put forward by the Defendant; in this regard, I do not accept the Defendant’s argument that it was not necessary for it to put forward this argument; if this argument had not been identified then the Defendant would have failed in relation to the application to strike out the claim to a public right of way over the lower track.
14.	As there are arguments on both sides in relation to the general issue as to the costs of the application, I have to balance the competing arguments and to decide on an order which properly reflects the degree of success and failure on the various issues and the other points which I consider to be relevant. In my judgment, the right order is that the Defendant should pay 1/3 of the Claimants’ costs of the strike out application. This order does not deal with the two specific points to which I will refer below.
15.	The Defendant contended that the Claimants should pay the costs wasted by the Defendant as a result of the Claimants’ insistence that the matter be heard by the court on 6 December 2011. I accept the Defendant’s submissions in this respect. I will order the Claimants to pay the Defendant’s costs of the hearing on 6 December 2011. 
16.	The third, and final matter, relates to the Claimants’ costs of defending the Defendant’s claim that Woodside Bungalow had the benefit of a private right of way over the lower track. I accept the Claimants’s submission that they should have their costs in this respect. These costs do not, of course, include the costs of the Claimants’ strike out application for which I am making separate provision. The costs of defending this part of the Defendant’s claim should be the subject of a detailed assessment, if not agreed, at the end of the proceedings and not at this stage.
Permission to appeal
17.	The Claimants seek permission to appeal, on a fairly narrow point only, in relation to my decision that it was the Claimants who put in issue the Defendant’s rights over the lower track. I dealt with that matter in paragraph 82 of my earlier judgment. I considered that it was unrealistic to hold that the Claimants were not asserting that the Defendant would be a trespasser if he used the lower track otherwise than for the purpose of gaining access to the paddock. Even if the Claimants had not so far made that assertion in clear express terms, as soon as the Defendant attempted to use the lower track as a member of the public, the Claimants would contend that there was no relevant public right of way over the lower track. Thus, even if I was wrong to conclude as I did in paragraph 82 of the earlier judgment, it seems to me virtually inevitable that the Claimants will assert that there is no relevant public right of way over the lower track and that the Defendant will wish to defend that claim by claiming the contrary. In this way, an appeal as to the reasoning in paragraph 82 of the earlier judgment is likely to be somewhat academic. For this reason, I refuse permission to the Claimants to appeal on the ground identified in their written submissions.
18.	The Defendant seeks permission to appeal on various grounds. Some of the points made by the Defendant in his written submissions, seeking permission to appeal, relate to the suggested inconsistency between holding that the Defendant is not able to advance a claim to a private right of way over the lower track but yet he is able to advance a claim to a public right of way over the lower track. I agree that there is something to be said for allowing everything to be argued about the lower track or, alternatively, preventing any argument about rights over the lower track. However, I consider if that matter were to be developed, it might well produce a result less favourable to the Defendant than the result at which I arrived; it might be argued with some force that I ought to have held, in view of the litigation history, that the Claimants were entitled to finality, in their favour, in relation to claims to the existence of rights of way over the lower track. It is also said that I did not correctly record the Defendant’s position in paragraph 103 of the earlier judgment. Even if that is right, and I do not believe that it is, I did consider the issue, which seemed to me to arise, in paragraph 103 and I gave my reasons for holding that the concept of special circumstances should be reserved for exceptional cases. Finally, it is said that my decision infringed the Defendant’s right to a fair trial of all the issues which he wished to have tried. I am quite clear that the legal principles which I applied which allow the court to strike out claims which are the subject of an issue estoppel, or are an abuse of the process of the court, do not infringe the Defendant’s right to a fair trial under the Human Rights Act 1998. Having considered all of these points, I have concluded that the Defendant does not have a real prospect of improving upon the result produced by my earlier judgment.
19.	I therefore refuse permission to appeal to both parties.
20.	When I handed down my earlier judgment on 11 May 2012, I directed (pursuant to CPR r. 52.4(2)(a)) that if a party applied within 14 days for permission to appeal (and both parties did so apply) then any Appellant’s notice to be served by any party may be filed within 21 days of my decision on that party’s application for permission to appeal. Accordingly, that period of 21 days runs from the date of this second judgment. I will order a stay of these proceedings pending the determination of any application by either party to the Court of Appeal for permission to appeal and any further stay.
21.	The parties should lodge a minute of order to give effect to this second judgment.