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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Cartwright v Staffordshire Moorlands District Council [1996] EWCA Civ 1122 (5th December, 1996)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/1996/1122.html
Cite as: [1996] EWCA Civ 1122

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RONALD CARTWRIGHT v. STAFFORDSHIRE MOORLANDS DISTRICT COUNCIL [1996] EWCA Civ 1122 (5th December, 1996)

IN THE SUPREME COURT OF JUDICATURE LTA 96/5991/E

COURT OF APPEAL (CIVIL DIVISION )
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
STOKE ON TRENT DISTRICT REGISTRY

Royal Courts of Justice
Strand
London WC2

Thursday, 5th December 1996

B e f o r e :


LORD JUSTICE HIRST

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RONALD CARTWRIGHT


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STAFFORDSHIRE MOORLANDS DISTRICT COUNCIL

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(Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Telephone No: 0171-831 3183/0171-404 1400
Fax No: 0171-404 1424
Official Shorthand Writers to the Court)

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THE APPLICANT'S WIFE, MRS. CARTWRIGHT appeared on behalf of the Applicant.

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J U D G M E N T
(As approved by the Court)
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Crown Copyright

LORD JUSTICE HIRST: This is an application by the plaintiff, Mr. Ronald Cartwright, who has been represented here, as he has on other occasions, by Mrs Cartwright -- sadly, he is unable to attend because of ill health -- for leave to appeal against the order made by Mr. Wolton QC sitting as a deputy judge of the High Court in Stoke on Trent on 28th March 1996 dismissing the plaintiff's appeal from the order of District Judge Ilsley dated 17th January 1996, whereby the District Judge had struck out the statement of claim on the ground that it was vexatious and an abuse of the process of the court.

The main issue in the court below was whether the action was an abuse of process because the questions raised therein were res judicata or because there was an issue estoppel.

The present proceedings were issued on 2nd March 1984 with a statement of claim indorsed on the writ, in which the plaintiff sought damages amounting to £3,488,000 from the defendants on the basis of their failure to issue a site licence in respect of a property of the plaintiffs. The pleading is as follows:- "The plaintiff claims for loss of development rights of the caravan site on the Sharpcliffe Estate [in the sum I have just mentioned]. On 11th May 1956 planning permission for a caravan site was given by the defendant's predecessors in title, the Cheadle Rural District Council. In 1960 the Caravan Sites and Control of Development Act required all caravan sites to be licensed, whereon the site licence for Sharpcliffe Estate was applied for. Agreement was reached between the plaintiff and the Cheadle Rural District Council that the issue of a site licence should be deferred until the plaintiff was ready to proceed with the development. On 27th January 1973 the Caravan Company Limited submitted plans on behalf of the plaintiff and the site licence was requested. Delay and/or refusal by the defendants caused the developers to lose interest in the site. On 19th April 1983, at the request of the defendants, the plans were resubmitted with a further request for the site licence. The defendants have failed to issue the site licence and are in breach of their statutory duty to do so, thereby causing a loss of ten years' income from rental in the sum of £1,341,600."

Based on an annual return of £218,000, the plaintiff claims an overall loss on development of £3,488,000.

The basis of the striking out application was that the matter was res judicata in another action in 1984, the reference of which is 1984/S/247, where the present defendants as plaintiffs obtained declarations against the present plaintiffs as defendants going to the self-same issues as in the present case. That declaration, which was made by Judge Blennerhassett sitting as a deputy High Court judge at Stafford, and which, as will appear in more detail later in this judgment, was upheld by the Court of Appeal, was as follows:
"1. It is declared that the planning permission granted on 11th May 1956 by Cheadle Rural District Council for the use of land as a caravan site at Sharpcliffe Hall ... was in respect of no more than 30 caravans on the area of land shown coloured pink . . . and the permission, the plan and the letter should be read together.

2. It is declared that no valid application for a caravan site licence was made during the period of validity of the said planning permission of 11th May 1996.

3. It is declared that no development of the site referred to in the said permission of 11th May 1956 was begun before 1st April 1974 and that the said planning permission ceased to have effect from that date."
That was a plain declaration, firstly, that no valid application for a caravan site licence was made during the period of validity of the planning permission, i.e. between 1956 and April 1974, and, secondly, that as from 1st April 1974, the 1956 planning permission ceased to have effect. Deputy Judge Wolton held that this declaration resulted in a res judicata of the issues presently raised in this action in which an application for leave to appeal is brought.

The judgment of Judge Blennerhassett is before the court, as is the judgment of the Court of Appeal, in which his judgment was upheld by Purchas L.J., Mustill L.J. and Butler-Sloss L.J. It is convenient to identify the relevant passages of Judge Blennerhassett's judgment and of his order via the Court of Appeal judgment which was delivered by Purchas L.J., Mustill LJ and Butler-Sloss LJ agreeing with that judgment. I start at page 21 where Purchas L.J. embarks upon a section of his judgment under the heading "Current Litigation." I regard this passage as important, as indeed are a number of other passages which I shall read. The significance of this passage is that there is copious reference to the present proceedings which had by then already been started, and which are numbered 319. Just to clarify the numbers, the Judge Blennerhassett/Court of Appeal action in which the council were plaintiffs is numbered 247, and the present action in which Mr. Cartwright is plaintiff and the district council are defendants is numbered 319. I shall interpose the numbers to make it clear when it is convenient to do so. This is what Purchas L.J. said:
"It is now possible to come to the present situation. On 2nd March 1984 Mr. Cartwright issued a writ claiming damages from Moorlands caused by an alleged failure on their part to carry out their statutory functions under the planning and caravans legislation [that is 319 of the present action]. Independently, on 5th March, Moorlands issued and served on each of the appellants writs seeking, inter alia, the declarations which are the subject matter of this appeal [that is 247]. Mr. Cartwright's defence [in 247] was delivered on 6th April 1984. Mrs Cartwright's defence [247] was delivered on 25th April 1984. In the meanwhile Mr. Cartwright had issued a summons dated 17th April 1984 seeking an order striking out Moorlands' claim on the grounds that Moorlands were not ´an aggrieved party' and therefore had no locus standi. Alternatively, he alleged that the action was frivolous, vexatious and an abuse of the process of the court. This application was dismissed by District Registrar Dunne... His appeal . . . was dismissed by McCowan J on 21st January 1985. Although Mrs Cartwright had at this time not challenged the issue of proceedings by the district council she attended the hearing of her husband's appeal and during the course of the presentation of the appeal by her husband with the consent of McCowan J, she appears to have taken over the argument of her husband's appeal. McCowan J had already indicated that he was not impressed by the locus standi point made by Mr. Cartwright; but he listened to a further argument presented by Mrs. Cartwright. Mrs. Cartwright argued that it was too late for Moorlands to seek a declaratory judgment and that they should have long since proceeded under the powers granted to them under the 1971 Act."
That is exactly the point that she is making before me this morning:
"In any event" -- this is a very interesting sentence -- "she submitted that, instead of initiating their own action, [247] they should have counterclaimed in the action brought by Mr. Cartwright [319]. McCowan J referred to the letter from Mrs Cartwright, which I have already cited in this judgment, and commented upon the fact that in bringing these proceedings Moorlands were acting upon a suggestion made by Mrs Cartwright. He summarised his view thus:

´I am not in any way surprised that the plaintiffs have come to the conclusion in the end that only by an action through declaration can it be resolved.'"
There was then abundant reference to 319 in the Court of Appeal judgment, including the astonishing fact that Mrs Cartwright at that stage was saying that the council should have counterclaimed in 319. It is therefore almost beyond belief that in the notice of appeal, paragraph five, it is said that:
"There is nothing in any of the documents to couple the two actions. In fact No. 247 was dealt with without any reference to this action. The transcript will show there is no reference in that action to this action No. 319."
That is palpably untrue. A little later in the judgment, Purchas L.J. goes on:
"Mrs Cartwright has continued to argue both the position of locus standi and, in the alternative, the merits of the planning issues" -- that is the very point she is taking here -- "in support of her appeal. There is one matter of procedural history to which I should refer before coming to deal with the separate issues raised. Although Moorlands did not counterclaim in the action for damages brought by Mr. Cartwright [319] for the obvious reason that if they did so Mrs. Cartwright would have had to be joined as a third party defendant to the counterclaim, they did apply to consolidate their action and the action brought by Mr. Cartwright. This application was resisted by the Cartwrights.
That is another explicit reference to 319 and the other astonishing feature that the two actions could have been consolidated years ago, as the council requested, but that request was unsuccessful because it was opposed by the Cartwrights.

I now go on to page 28C where the issues presently under consideration are considered by the Court of Appeal. This is Purchas L.J.:
"It remains only, on this aspect of the appeal, to consider the impact of the Town and Country Planning Act 1968 . . . and Schedule 24 to the 1971 Act upon the 1956 permission. Mrs Cartwright deployed the same submissions in this court as she made before His Honour Judge Blennerhassett, namely that as section 41 of the 1971 Act which provided that planning permissions should be subject to a five year limit unless implemented within that period and as Schedule 24, paragraph 18, provided that this section should not apply to permissions granted before 1st April 1969, therefore there was no time limit to be implied in the 1956 permission. This submission by Mrs Cartwright is, I regret to have to say, entirely misconceived. The effect of the 1968 Act and Schedule 24, paragraph 19, to the 1971 Act is to import into every planning permission granted . . . a term that, if the development to which the provision related was not implemented before 1st April 1974, the planning permission would lapse."
Then a very important section:
"The 1956 permission provided that no development should be commenced until details of the proposed layout of the site had been submitted to and approved by the local planning authority. After a careful review of the evidence both documentary and oral given before him, the judge came to the following conclusion as to whether adequate plans had been submitted as was alleged by the Cartwrights in January 1973 in the following terms."
Here he quotes the heart of Judge Blennerhassett's judgment:
"It follows from what I have said that I think Mr Smith and Mr. Cartwright are wrong in believing that they submitted plans and certainly no adequate plans were submitted in January 1973. It follows that the planning permission is no longer valid and that a site licence could not have been issued before the expiration of the planning permission . It seems to me that the whole extraordinary saga results from the fact that the Cartwrights were reliant upon others to finance such a prospect and that it became financially impractical for a site limited to 30 caravans if adequate facilities had to be provided."
Purchas LJ goes on:
"From what I have earlier said in this judgment, it must be clear that I wholly endorse the judge's findings as set out in this paragraph."
So there is a plain statement, firstly, that the planning permission had never become effective because the condition of submitting plans of the layout of the site had never been met -- Mrs Cartwright still disputes that but she realistically recognizes that that point has been finally decided against her in 247 -- and, secondly, that because there was no valid planning permission, no site licence could have been issued -- I emphasise the past tense -- before the expiration of the planning permission. In other words, there is a plain finding by the Court of Appeal, since they adopted Judge Blennerhassett on that point, which is binding upon me, as is the one about planning permission, that at no stage up to 1974, when the planning permission expired, could a site licence have been issued. Both those points are clearly stated.

Before I leave the judgment I would refer to another point which Mrs Cartwright made, which again was unfortunately without foundation, as to what was said or not said in the Court of Appeal judgment. She said that there was no reference to the Act of 1960. In fact, Purchas L.J. said this page at 16D:
"It is to be noted that at the time of this exchange" -- that was the correspondence -- "it was Mr. Cartwright's position that, there being planning permission for a caravan site in existence under section 3(4) of the Act of 1960, Cheadle were obliged to issue a licence. I regret to say that on both aspects Mr. Cartwright was wholly misinformed."
What Mrs Cartwright has said before me this morning is that the council were obliged to issue a site licence after 1960 because of the existence of planning permission at that juncture, and that statute obliged them to do so. She refers to the appendix to Circular 42/60, where it says:
"There is no power to refuse a licence if a site has planning permission."
Of course that is right, but it does not avail her here for sound reasons: firstly, because there was no planning permission, as the Court of Appeal held; secondly, because there being no valid planning permission no valid site licence could have been issued during the period of planning permission between 1956 and 1974. I would go still further than that. It is Mrs Cartwright's firm position today that the council were obliged by law, at any time immediately after 1960, to issue the site licence, but that point is expressly rejected by the Court of Appeal as part of their ratio decidendi on page 16:
"It is to be noted that at the time of this exchange it was Mr. Cartwright's position that, there being planning permission for a caravan site in existence under section 3(4) of the Act of 1960, Cheadle were obliged to issue a licence. I regret to say that on both aspects Mr. Cartwright was wholly misinformed."
There the Court of Appeal explicitly rejects, in clear and unequivocal terms, the very point which Mrs Cartwright has raised before me this morning and which she mistakenly suggests has never been canvassed before. It was canvassed in terms before Judge Blannerhassett and before the Court of Appeal. As I have shown, it fails.

I admire Mrs. Cartwright's pertinacity and the courtesy and skill with which she advanced her appeal, but I am afraid that a proper scrutiny of the Court of Appeal judgment, such as I have carried out extensively in this judgment, shows that her position is misconceived, and, for all those reasons, I dismiss this application.


© 1996 Crown Copyright


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URL: http://www.bailii.org/ew/cases/EWCA/Civ/1996/1122.html