Gregory v Turner [2003] EWCA Civ 183

Neighbours disputed trespass and encroachment from building works. After a small claims trial awarded only £100, the Court of Appeal considered whether earlier refusals of permission to appeal could be reopened and whether a power of attorney holder could conduct litigation and advocacy on a party's behalf.

Facts

The claimants, Mrs and Miss Gregory, were neighbours of the defendants, the Turners, in Dial Hill Road, Clevedon. The Turners undertook extensive building works at their property, including the construction of a new garage and a long brick wall along the boundary. The Gregorys alleged repeated trespasses by the Turners and their builders, encroachment by the garage and wall onto their land, damage to their fencing, and significant impairment of the amenity of their property. They issued proceedings in December 1999 claiming injunctive relief and damages for trespass, including aggravated damages, limited to £5,000.

District Judge Exton allocated the claim to the small claims track and directed a jointly instructed surveyor and valuer. At trial on 18 September 2000, no oral evidence was heard, cross-examination was refused, and the Gregorys were awarded only £100 nominal damages. Mrs Gregory, aged 82, had recently undergone two heart operations and could not attend. Judge O’Malley refused permission to appeal on 20 February 2001 and summarily assessed costs at £2,000 against the Gregorys. Sedley LJ refused permission to appeal the costs order on 7 December 2001. Mr Morris, holder of an enduring power of attorney granted by Mrs Gregory, sought to reopen these decisions and also challenged the local planning authority’s refusal to take enforcement action.

Issues

The Court identified four issues: (i) whether Sedley LJ’s decision on the costs appeal could be reopened; (ii) whether any remedy existed in respect of Judge O’Malley’s refusal of permission to appeal on the merits; (iii) whether the grant of an enduring power of attorney to Mr Morris conferred rights to conduct litigation or render advocacy services on Mrs Gregory’s behalf; and (iv) whether there were arguable grounds for judicial review of the planning authority’s refusal to take enforcement action.

Arguments

Mr Morris, acting as lay advocate and attorney, argued that the earlier decisions should be reopened under the exceptional jurisdiction in Taylor v Lawrence, that the power of attorney entitled him to stand in Mrs Gregory’s shoes and exercise her rights under the Courts and Legal Services Act 1990, and that the council’s refusal to serve an enforcement notice was unlawful. Miss Lee, appearing as advocate to the court, assisted on the legal issues. The Turners, through their solicitors, submitted in writing that the costs order should not be disturbed given the expense they had incurred.

Judgment

The costs issue

The Court held that neither the changes introduced following Jolly v Jay nor a more detailed review of the case undermined Sedley LJ’s decision or amounted to exceptional circumstances justifying reopening under Taylor v Lawrence. The test applied by Sedley LJ did not differ significantly from the new Practice Direction, and there was no power to order detailed assessment in a small claims track appeal.

The merits issue

Section 54(4) of the Access to Justice Act 1999 precluded any further appeal against Judge O’Malley’s refusal of permission. Taylor v Lawrence provided no assistance. The only possible route, judicial review under the narrow exception left open in R (Sivasubramaniam) v Wandsworth County Court, was not available because the errors fell short of a jurisdictional error in the narrow pre-Anisminic sense or a denial of a fair hearing amounting to a complete disregard of duty. Although the Court expressed serious concerns about the district judge’s conduct of the trial, including her refusal to hear oral evidence, her rejection of the Wrotham Park measure of damages, and her failure to address the claim for aggravated damages, these errors did not meet the exceptional threshold.

The power of attorney issue

The Court analysed sections 27 and 28 of the Courts and Legal Services Act 1990, which provide that rights of audience and rights to conduct litigation are to be determined solely in accordance with the Act. Category (d) in each section preserves rights that a party would have had in his capacity as such a party before the 1990 Act. The Court held that this is a personal right which cannot be delegated to an agent, whether under a power of attorney or otherwise. To hold otherwise would, in the words of Trevor Aldridge cited by the Court, drive a coach and horses through the statutory scheme. Neither the Powers of Attorney Act 1971 nor the Enduring Powers of Attorney Act 1985 conferred rights of audience or rights to conduct litigation. Mr Morris could therefore act only by permission of the court under sections 27(2)(c) and 28(2)(c).

The enforcement issue

The Court upheld Burton J’s decision that the council’s refusal to serve an enforcement notice was not arguably unlawful. The four-inch encroachment made no material difference and enforcement would in any event now be time-barred.

Implications

The decision clarifies that an enduring power of attorney does not confer rights of audience or rights to conduct litigation on the attorney. The personal right preserved by sections 27(2)(d) and 28(2)(d) of the 1990 Act to appear or conduct litigation as a party cannot be delegated. Any unqualified person acting for a party may do so only with the court’s permission under the discretionary categories in sections 27(2)(c) and 28(2)(c), which, in accordance with D v S and Paragon Finance v Noueiri, should generally be exercised only in exceptional circumstances, although common sense and flexibility apply at small claims level.

The judgment also reinforces the narrow scope for reopening final decisions under Taylor v Lawrence and for challenging a circuit judge’s refusal of permission to appeal by judicial review under Sivasubramaniam. A mere error of law is insufficient; what is required is a jurisdictional error in the narrow pre-Anisminic sense or a fundamental procedural unfairness amounting to complete disregard of judicial duties. Section 54(4) of the Access to Justice Act 1999 is a deliberate statutory limitation on appeals, reflecting the balance between perfection of justice and accessibility highlighted by Lord Woolf and Lord Devlin.

The case is a cautionary illustration of the difficulties that arise when complex disputes are allocated to the small claims track and conducted by unqualified lay representatives. Although the Court expressed sympathy for the Gregorys and concern about the handling of the trial, it concluded that they had reached the end of the road. The decision matters particularly to litigants in person, attorneys under enduring or lasting powers, and those advising on rights of representation in civil proceedings.

Verdict: All applications dismissed. Permission to appeal against Burton J’s judgment refused. The Court held that Mr Morris had no right to conduct litigation or to appear in court, either in the Court of Appeal or below, save with the permission of the court.

Source: Gregory v Turner [2003] EWCA Civ 183