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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 >> CDC2020 Plc v Ferreira  EWCA Civ 611 (05 May 2005)
Cite as:  EWCA Civ 611
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE RICH QC)
B e f o r e :
(Vice President of the Court of Appeal, Civil Division)
LORD JUSTICE LATHAM
LORD JUSTICE LLOYD
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR R BANWELL (instructed by Messrs Laytons) appeared on behalf of the Respondent
Crown Copyright ©
Thursday, 5th May 2005
"However, I doubt whether any excessive user, at least of a discontinuous easement, in whatever respect the user may be excessive, will ever of itself bring to an end or indeed suspend such an easement."
"The owner of the servient tenement on which, ex hypothesi, the excessive burden is placed is entitled to have that excessive user restrained. The fact that a court may grant an appropriate injunction or make a declaration to this end does not in my judgment either extinguish or suspend the easement. Provided that the owner of the dominant tenement subsequently reverts to lawful use of the easement, his prior excessive use of it is then irrelevant."
The judge did not expressly refer to that case, but it had been cited to him and it must have been in his mind as the basis of paragraph 8 of his judgment in which he makes a very similar point.
"31. It will have become evident that the judges of the Court of Appeal attach great importance to the need for all the papers for an appeal to be filed at least seven days before the hearing. Except in relation to very heavy cases, the judges are likely to do their own pre-reading for an appeal on any day within that seven-day period, and they cannot do this usefully if future papers are likely to meander in to the Civil Appeals Office after they have completed their pre-reading. This is why all the skeleton arguments must now be filed at least seven days before the hearing (see para 27 above) and the agreed bundle(s) of authorities must be lodged at least seven days before the hearing (see para 29 above). The great importance which the judges will attach to strict compliance with this timetable is underscored by para 15.11B (entitled 'Papers for the appeal hearing' which provides:
'(1) All the documents which are needed for the appeal hearing must be filed at least 7 days before the hearing. Where a document has not been filed 10 days before the hearing a reminder will be sent by the Civil Appeals Office.
'(2) Any party who fails to comply with the provisions of paragraph (1) may be required to attend before the Presiding Lord Justice to seek permission to proceed with, or to oppose, the appeal.'
Practitioners who receive a summons to attend before a presiding lord justice during this final week would do well to ensure that all their documents have been filed before the encounter takes place. This rule will mean what it says."
ORDER: appeal dismissed; £1,500 to be paid on account within 14 days; balance of respondent's costs to go to detailed assessment if not agreed; date of 13th May 2005 to be substituted in order of court below; liberty to claimants thereafter to enter the land for the purposes of removing all obstructions currently still on the first defendant's land, with the assistance of the court's bailiffs if necessary; action transferred to Brighton County Court.