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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hampshire County Council v. Gillingham & Anor  EWCA Civ 105 (5 April 2000)
Cite as:  EWCA Civ 105
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HAMPSHIRE COUNTY COUNCIL
"We understand that this is used by the Public and in particular by the properties at the southern end. Your client has stated that ours may erect a gate across the track but of course if there is a Public right of way for vehicles this may not be possible. If it is not a Public right of way then our clients must be granted appropriate rights in respect of it."
"The status of this trackway is a private estate road and a public footpath. This restricts what may be done. A gate and a gap may be permitted."
"The basic cause of all the problems at Spratts Down is obvious and hardly in dispute. The Gillinghams are uncomfortable with a right of way running between their two parcels of land and thus bringing visitors and residents very close to their house and premises. I think they have come to view the footpath as an intrusion into `their' land and emotionally, at least, have lost sight of the fact that the two properties are separated by land belonging to a third party. They have made several attempts to stop up the right of way and re-route it around the edge of their property but without success. It is the County Council's case that these proceedings have been brought and have become necessary because of the conduct of the Gillinghams in attempting to block the footpath and to frighten off those members of the public who might wish to use it. That is what this case is all about."
"Northwards along gravel road 8 feet wide, enclosed 9 feet to 12 feet wide between hedges."
"Officers from the County Recreation Department have inspected Footpath 6 and they have confirmed to me that there is an 8 foot wide gap next to your gate. It would appear that the 8 foot width is not fully on the original line of the public footpath, but since the full eight foot width is now available for public use the County Council have decided not to take any further action. I should, however, remind you that the 8 foot width must remain unobstructed."
"I would express the wish that as between the Gillinghams, the Hampshire County Council, and the public lawfully using this footpath, this matter can now be laid to rest. The history of the Gillinghams' behaviour in this case does them no credit; I regret to say that the way in which the Hampshire County Council has handled the case in the past does no credit to the council and has allowed this unfortunate matter to drift on for nearly a decade. I would however note, that the current handling of the case is crisp and effective. Finally, whilst I bear in mind that the Manor of Cadland is not represented as such in this case, I would observe, that a certain weakness and indecisiveness in handling the problem generated by the Gillinghams has provided a fertile climate for this matter to have caused difficulties over the last decade. Over two years after the action between the Gillinghams and Maldwin Drummond was settled in Portsmouth, the Estate has taken no steps to return to court to produce a final resolution to the issues which were then being litigated: it has been left ultimately to the rate payers of Hampshire to pay for the resolution of a problem in part created by the Manor of Cadland."
"To the extent that Mr Drummond has made various agreements with the Gillinghams over the years, those agreements are of no effect as against [Hampshire] which is asserting rights of the public to use the full width of the footpath ... To the extent that the Gillinghams allege that they were misled by Mr Maldwin Drummond as to the nature and extent and use of the right of way prior to the purchase of the two plots of land either side of it, that is a matter between the Gillinghams and Mr Maldwin Drummond and does not give them any assistance in these proceedings."
"His Honour Judge Rudd failed to disqualify himself from hearing this case when he readily accepted that he could not hear a previous related case. The Portsmouth case was transferred from Southampton Court in 1996 by Judge Rudd in view of his knowledge and acquaintance with Mr Drummond."
"His Honour Judge Rudd readily accepted that he could not try this case in view of his knowledge and acquaintance with Mr Drummond and was very sympathetic to my suggestion that the matter be heard in the Chichester County Court."
"Note that although the matter is reserved to Rudd, Gillingham is intent upon having him disqualified from hearing the matter - an application she must make to Rudd himself"
"It is anticipated that the Defendants will make various interesting applications, particularly arguing that the Judge should disallow himself from trying the matter."
"If objection is then made, it will be the duty of the judge to consider the objection and exercise his judgment upon it. He would be as wrong to yield to a tenuous or frivolous objections as he would to ignore an objection of substance."
"By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case ..."
"Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."
LORD JUSTICE SEDLEY:
"It is my belief that none of the actions taken against us would have arisen if Mr Drummond had not reneged on his agreements and abused his position to instigate the actions taken by HCC."
90. For these reasons, as well as those set out in the judgment of Brooke LJ, I too would dismiss this appeal.