Gregory & Anor v Turner & Anor

Factual and Procedural Background

This opinion concerns a prolonged dispute between neighbours residing on Dial Hill Road, Clevedon, involving the Plaintiff and Defendant. The dispute arose after the Defendant purchased a property and undertook building works, including the construction of a garage and a brick wall near the Plaintiff's property. The Plaintiff alleged repeated trespass by the Defendant and their builders, encroachment on their land, and impairment of their property’s amenities. The Plaintiff sought injunctive relief and damages, including aggravated damages for fear and distress caused by the Defendant’s conduct.

The proceedings began in December 1999 with detailed claims supported by witness statements and expert reports. The case was allocated to the small claims track by the District Judge, who treated it as a straightforward boundary dispute. The District Judge refused to adjourn the trial despite the Plaintiff’s health issues and procedural concerns, and conducted the trial without oral evidence or cross-examination. The District Judge awarded nominal damages of £100 for trespass but rejected claims for diminution in value or aggravated damages.

The Plaintiff sought permission to appeal the District Judge’s decision to the Circuit Judge, who refused permission and ordered the Plaintiff to pay costs. The Plaintiff then applied to this Court for various permissions to appeal and to challenge previous decisions, raising issues about costs, the merits of the case, the validity of a power of attorney granted to their representative, and the refusal of the local planning authority to serve an enforcement notice on the Defendant.

Legal Issues Presented

1. Whether the decision of the appellate judge refusing permission to appeal on costs can be reopened ("the costs issue").
2. Whether there is any remedy in this Court or elsewhere to challenge the refusal of permission to appeal on the merits ("the merits issue").
3. Whether the enduring power of attorney granted to the Plaintiff’s representative confers rights to conduct litigation or advocacy on behalf of the Plaintiff ("the power of attorney issue").
4. Whether there are arguable grounds for judicial review of the local planning authority’s decision not to serve an enforcement notice ("the enforcement issue").

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Wrotham Park Estate Co Ltd v Parkside Homes Ltd [1974] 1 WLR 798	Assessment of damages in lieu of an injunction based on a negotiated price for an encroachment.	District Judge rejected its application, incorrectly limiting damages to diminution in value only.
Jaggard v Sawyer [1995] 1 WLR 269	Relevant to the application of damages principles for encroachment and nuisance.	Cited to highlight uncertainty in District Judge's legal distinction.
Rookes v Barnard [1964] AC 1129	Clarifies the nature of aggravated damages as compensation for mental distress caused by the defendant's conduct.	Used to explain that aggravated damages were a valid claim, which was overlooked by the District Judge.
Cassell v Broome [1972] AC 1027	Distinction between aggravated and punitive damages; aggravated damages reflect the manner or motive of the defendant.	Supported the view that aggravated damages were properly part of the Plaintiff’s claim.
Riniker v University College London [2001] 1 WLR 13	Discretion of judges regarding costs orders on permission to appeal applications.	Referenced in relation to costs order made by the Circuit Judge.
Jolly v Jay [2002] EWCA Civ 277	Established principles to reduce inconsistent costs awards at early appeal stages.	Discussed as part of the framework governing costs awards on permission to appeal.
Taylor v Lawrence [2002] EWCA Civ 90	Court’s residual jurisdiction to reopen proceedings in exceptional circumstances to avoid real injustice.	Considered in relation to attempts to reopen previous decisions on costs and merits.
R (Sivasubramaniam) v Wandsworth County Court [2002] EWCA Civ 1738	Limits judicial review of circuit judges’ decisions to rare cases involving jurisdictional error or denial of fair hearing.	Applied to reject the possibility of judicial review absent exceptional circumstances.
Clark v Perks [2001] 1 WLR 17	Permission to appeal costs orders by appeal courts is granted only in very clear cases.	Referenced to emphasize the high threshold for reopening costs decisions.
Paragon Finance v Noueiri [2001] EWCA Civ 1402	Discretionary nature of rights of audience and conduct of litigation under the Courts and Legal Services Act 1990.	Used to analyze the scope of powers granted under enduring power of attorney.
Izzo v Philip Ross & Co [2002] BPIR 310	Emphasizes common sense in allowing exceptions to the general rule on rights of audience.	Considered in the context of court discretion to allow lay representation.
Re Wallace (1884) 14 QBD 22	Historical case suggesting some flexibility in conduct of litigation by power of attorney.	Discussed but distinguished as uncertain and not applicable under current law.
Re Incorporated Law Society's Application [1884] 1 TLR 354	Permitted non-solicitor to issue proceedings and arrange documents where client was aware.	Considered as historical context but superseded by statutory regime.
Maharaj v Attorney-General for Trinidad and Tobago [1979] AC 385	“Mere irregularity of procedure” does not suffice to vitiate jurisdiction; fundamental breaches of natural justice are required.	Used to support requirement for fundamental procedural fairness to challenge jurisdiction.
Watson v Bluemoor Properties Ltd [2002] EWCA Civ 1875	Application of Rule 39.6 allowing company employees to represent the company with court permission.	Referenced in discussion of exceptions to general rights of audience rules.

Court's Reasoning and Analysis

The court began by acknowledging the complexity and procedural history of the dispute, emphasizing that it had only heard one side of the story. It expressed concern about the District Judge’s management of the case, particularly the allocation to the small claims track despite bitter factual disputes and the refusal to allow oral evidence or cross-examination. The District Judge’s legal approach was criticized for misunderstanding the law on damages for trespass, notably by limiting damages to diminution in value and rejecting aggravated damages claims.

The Circuit Judge’s refusal of permission to appeal was reviewed, noting that the Judge did not fully appreciate the procedural shortcomings below, but his decision did not amount to a fundamental breach of duty or natural justice.

Regarding the costs issue, the court referred to recent authority establishing a more consistent approach to costs awards at early appeal stages, but found no exceptional circumstances to reopen the costs decision made by Sedley LJ.

On the merits issue, the court held that statutory provisions precluded further appeal against the refusal of permission to appeal, and judicial review would only be available in very rare cases involving jurisdictional error or denial of fair hearing. The court found no such exceptional circumstances here.

In addressing the power of attorney issue, the court analyzed the relevant statutory framework under the Courts and Legal Services Act 1990. It concluded that the enduring power of attorney did not confer rights to conduct litigation or rights of audience on the attorney. The rights to conduct litigation and audience are personal and cannot be delegated to an unqualified agent, except by court discretion. Mr Morris, the attorney, had no inherent right to act as advocate or conduct litigation on behalf of the Plaintiffs without court permission.

Finally, on the enforcement issue, the court upheld the local planning authority’s decision not to serve an enforcement notice, agreeing with the Administrative Court’s judgment that the minor encroachment was immaterial in the planning context and enforcement action was not expedient or in the public interest.

Holding and Implications

The court DISMISSED ALL APPLICATIONS made by the Plaintiff’s representative. It held that:

• The refusal by Sedley LJ to grant permission to appeal on costs would not be reopened.
• No remedy was available to challenge the refusal of permission to appeal on the merits, absent exceptional jurisdictional error or denial of fair hearing.
• The enduring power of attorney did not confer rights to conduct litigation or rights of audience; the attorney had no right to act as advocate without court permission.
• Permission to appeal against the local planning authority’s decision not to serve an enforcement notice was refused.

The direct effect is that the Plaintiff’s attempts to prolong litigation and challenge prior rulings have been conclusively ended. No new precedent was established beyond the application of existing legal principles and statutory provisions. The court expressed sympathy for the lower court judges who faced difficult procedural challenges, but emphasized the importance of proper qualification and procedure in litigation conduct.