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You are here: BAILII >> Databases >> England and Wales Lands Tribunal >> Rees-Davies v City of Westminster [2001] EWLands LRA_18_1994 (28 September 2001) URL: http://www.bailii.org/ew/cases/EWLands/2001/LRA_18_1994.html Cite as: [2001] EWLands LRA_18_1994 |
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[2001] EWLands LRA_18_1994 (28 September 2001)
LRA/18/94
PRACTICE - leasehold enfranchisement -application for extension of time and adjournment of hearing - appellants required to show cause why appeal should not be dismissed - whether appellants failed to pursue the appeal with due diligence - whether appellants failed to comply with any provisions of Lands Tribunal Rules - Lands Tribunal Rules 1996, rules 3(4), 45(2) and 46(2)(b)
BETWEEN PERSONAL REPRESENTATIVES
OF W R REES-DAVIES DECEASED Appellants
CITY OF WESTMINSTER Respondents
The following cases are referred to in the decision:
Hytec Information Systems Ltd v Coventry City Council (1996) The Times 31 December 1996
Re Jokai Tea Holdings Ltd [1992]1 WLR 1196
R G Carter (West Norfolk) Ltd v Ham Gray Associates Ltd ...1996) unreported
Grand Metropolitan Nominee (No. 2) Co Ltd v Evans [1993] 1 All ER 642
Beachley Property Ltd v Edgar (1996) The Times 18 July 1996
S Gallagher instructed by Franks, Charlesly & Co, solicitors of Fleet Street EC4, for the appellants
R Mullis instructed by City Solicitor and Secretary, Westminster City Council, for the respondents
This is a decision under rule 45 (2) of the Lands Tribunal Rules 1996 dismissing an appeal by the tenants of a long leasehold house from the decision of a leasehold valuation tribunal fixing the purchase price under the Leasehold Reform Act 1967.
S Gallagher of Counsel appeared for the appellants; R Mullis of Counsel appeared for the respondents.
The house which is the subject of this appeal is 5 Lord North Street, Westminster SW1 ("the appeal property"). On 24 February 1961 the former London County Council granted a lease of this house to Sir Neill Cooper-Key for a term of 29 years and nine months from 24 June 1960 at a rent of £150 per annum. The lease expired on 25 March 1990. The landlords are now Westminster City Council ("the Council"), the respondents in this appeal. The lease was assigned to the late William Rees-Davies QC in 1978. Mr Rees-Davies died on 12 January 1992 and the tenants are now his personal representatives, the appellants in this appeal.
Chronology
On 22 February 1988 Mr Rees-Davies applied under the Leasehold Reform Act 1967 ("the 1967 Act") for an extension to the lease of the appeal property. This was accepted and a new lease was granted on 14 March 1990. On 22 March 1990 Mr Rees-Davies served notice on the Council under the 1967 Act that he required to have the freehold of the appeal property. This notice was accepted but the price could not be agreed. Application was made on 21 September 1993 by the Council to a leasehold valuation tribunal to determine the price. Following two adjourned hearings, one because the tenants' expert witness was not available and the other to enable the Council to consider late evidence from the tenants' expert, the application was heard on 21 June 1994. By a decision dated 23 November 1994 the tribunal determined the price.
On 16 December 1994 Mrs Rees-Davies appealed to this Tribunal against that decision on the grounds that the price determined was excessive. The Council served notice of intention to appear on 16 January 1995.
The next procedural steps under the Lands Tribunal Rules are service of a statement of case by the appellants and of a reply by the respondents. The appellants failed to serve their statement of case within 28 days and, following a hearing before the Registrar on 28 April 1995, an order was made requiring, inter alia, the filing of statement of case, reply and expert reports within the time limits specified in the order. It contained a warning that the appeal would be struck out if the appellants' statement of case was not filed by 12 May 1995. The appellants lodged their statement on this day. Delay then arose through the failure of the Council to file a reply, which should have been lodged on 8 June. Various extensions of time were granted until 13 September 1995 when the appellants applied to debar the Council from defending the appeal. On 6 October, following a hearing before the Registrar, the application was refused and new directions were issued for the filing of a reply (by 20 October 1995) and expert reports (by 24 November 1995). The Council lodged their reply on 17 October. The parties later agreed to extend the dates for the filing of expert reports, with the consent of the Registrar, to 12 December 1995 and then to 7 January 1996. The Council lodged their reports on 6 February 1996; the appellants have not yet filed their reports.
On 9 February 1996 the appellants' solicitors advised the Tribunal by letter that they were considering an application for certain matters to be dealt with as preliminary points of law. On 14 May 1996 the Registrar notified the parties of a hearing before him on 3 June for the appellants to show cause why they should not be debarred from calling expert witnesses at the hearing due to their failure to lodge expert reports. On 31 May the appellants applied for seven points of law (with several subsidiary points) to be disposed of as preliminary issues at a preliminary hearing of the Tribunal.
Following the hearing before the Registrar on 3 June 1996 (for the appellants to show cause) an order was made adjourning the hearing pending the outcome of the appellants' application for the disposal of points of law at a preliminary hearing. On 5 July the Council made an objection to this application on the grounds that the matters referred to as preliminary issues were entirely inappropriate to be dealt with at a preliminary hearing. On 3 and 24 July the Council sought leave to amend their reply.
The case was then allocated by the President to a member. His review of the documents revealed a conflict of interest and the appeal was reallocated to me. I appointed a pre-trial review which was held on 3 December 1996. Both parties were represented by Counsel. At this hearing I considered the application for a preliminary hearing and the future conduct of the case. An order was made on 3 December refusing the application for a preliminary hearing and requiring the appellants to lodge expert reports within six weeks, that is to say by 14 January 1997. If the appellants wished to adduce evidence of the personal circumstances of Mrs Rees-Davies, then a witness statement was required to be served within six weeks, ie by 14 January 1997. The direction as to the filing of expert reports was in peremptory terms, stating that 'on failure to comply with this direction the Appellants will be required to show cause why this appeal should not be dismissed'. The order also listed the appeal for hearing on 5 to 7 March 1997, dates agreed with the parties, and leave was given for the Council to amend its reply.
On 13 January 1997 the appellants' solicitors applied for an order that the time for service of expert reports be extended for six weeks and/or that the hearing be adjourned to May. On 24 January the Council objected to this application and required the appellants to show cause why their appeal should not be dismissed. This was treated as an application for an order to dismiss the proceedings under rule 45(2) of the Lands Tribunal Rules 1996 ("the 1996 Rules"), to be dealt with by me under rule 3(4) of those Rules. A hearing for the appellants to show cause and to determine their application for extension of time and adjournment (if necessary) was held on 12 February. Both parties appeared by Counsel and I had before me an affidavit sworn by Mr Peter Alan Miller, a managing clerk in the employment of the appellants' solicitors. At the conclusion of the hearing I dismissed the appeal with costs, my written decision to follow.
Evidence
I turn now to the hearing on 12 February 1997 and look first at Mr Miller's affidavit. This is concerned with the period between 3 December 1996 and 12 February 1997.
Mr Miller stated that at the hearing on 3 December 1996 I was advised that the appellants' expert witness, Mr Anthony Griffiths of Savilles, was seriously ill but that the full extent of his illness was not known nor when he would return to the office. Following the hearing, Mr David Marcus of the appellants' solicitors contacted Ms Jennifer Ellis of Langley-Taylor, chartered surveyors, with the object of obtaining an expert report from her. On 6 December she wrote to Mr Marcus that she would be unable to comply with the time limits and her partner, David Haines, would also be unable to prepare such a report within the time available.
On 6 December Mr Marcus learned from Savilles that it was anticipated that Mr Griffiths would return to the office in early January 1997. He was, however, told on 16 December that Mr Griffiths would not be returning as expected. This was confirmed in a letter dated 30 January 1997 from Mr Frost of Savilles to Mr Marcus, which also stated that Mr Griffiths might return at the end of January and that no one else in the firm could deal with this matter.
On 16 December 1996 Mr Miller was instructed to make enquiries of other firms specialising in leasehold enfranchisement. (I should add here that Mr Gallagher, for the appellants, put in a chronology as part of his skeleton argument and this puts the date when inquiries were made of other surveyors as 16 January 1997). On 30 December Mr Marcus wrote to Mr M G Kingsley, one of the appellants, seeking instructions as to the appointment of an expert witness. Mr Miller's inquiries produced negative responses from Barnard Marcus, Cluttons and DTZ Debenham Thorpe.
On 30 January 1997 Ms Jennifer Ellis wrote a letter addressed to the Registrar supporting the appellants' application. This stated that she could prepare a report by 27 March. (I interpose here that Mr Gallagher's chronology states that Ms Ellis was retained on 20 January but in his submissions he said that no letter of appointment has been sent to her although the appellants had a lengthy meeting with her on 28 January).
In addition to the above problems, Mr Miller also referred to the need for Mrs Rees-Davies and Mr Kingsley to attend Macclesfield County Court during the week commencing 24 February when Mr Kingsley is the defendant in proceedings concerning a right of way. Mr Kingsley would need to give his undivided time and attention to this case; this would have an adverse effect on this appeal. This matter was supported by a note from Mr David Ainger of Counsel.
Submissions
Mr Gallagher, for the appellants, helpfully prepared a written skeleton argument and chronology. He said that the courts have provided guidance as to the correct approach to the exercise of a power to strike out proceedings following default in complying with an "unless" order. He referred to Hytec Information Systems Ltd v Coventry City Council, Re Jokai Tea Holdings Ltd and Carter (West Norfolk) Ltd v Ham Gray Associates Ltd. He said that these decisions emphasised that each case must be considered on its own facts and that the discretion of the court to strike out should be exercised flexibly and not limited or circumscribed by conditions. The correct approach is to look at the overall justice of the matter. Guidance as to the exercise of a discretion should not be elevated to binding principles of law.
Where a party deliberately flouts an unless order he can expect to be struck out but, provided his conduct is not contumelious, he will not ordinarily be struck out (see Grand Metropolitan Nominee (No. 2) v Evans). There is an overlap between non-compliance through circumstances beyond a party's control and not acting contumeliously. It would invariably be necessary for an applicant to show that it is circumstances beyond his control that have caused his failure to comply.
The exercise of the court's discretion is the furtherance of justice. This inevitably involves the balancing of interests. Mr Gallagher said that the cases referred to concerned peremptory orders. Non-peremptory orders should be looked at differently. If a Tribunal were not disposed to give a party an opportunity to show cause then the order would have been non-peremptory. (Mr Gallagher appeared to be arguing that the order of 3 December 1996 was not peremptory, although in his skeleton argument he referred to it as an "unless" order. In my view it was peremptory in character although it was not expressed in terms of an "unless" order).
Mr Gallagher said that the appellants' principal submission is that non-compliance with the order of 3 December 1996 was the direct and unavoidable consequence of Mr Griffiths's illness. The appellants' solicitors only became aware of this illness shortly before the December hearing and there was uncertainty as to the position. At that hearing they were not able to put to me any alternative plan of action. Mr Gallagher suggested that I was then mindful of these difficulties and therefore did not make a peremptory order. There was a natural reluctance to engage a new expert and it was not known that Mr Griffiths would be unavailable until 16 December, the Monday before the Christmas break. Other firms were approached but there were problems in finding a suitable expert. The search for a new expert had to be suspended until early in January 1997 when it was too late to comply with the December order. This failure was not intentional or contumelious but due to an extraneous factor, Mr Griffiths's illness. Mr Griffiths was instructed in April or May 1995 but was told to defer the preparation of his report due the possible need to seek a decision of the Tribunal on preliminary points of law.
Mr Gallagher submitted that non-compliance with the December 1996 order would not produce injustice: the case can be heard in May and the Council can be compensated for delay by a costs order. This is not a case where the recollection of witnesses of fact may fade and prevent a fair trial of the issues.
Mr Gallagher said that Ms Jennifer Ellis has now been retained by the appellants and her report will be ready by 27 March next. The appellants wish to consider this report. Mr Gallagher suggested that the filing and exchange of reports should take place on 4 April. I was told that, although a letter of appointment has not been sent to Ms Ellis, she has been instructed to prepare a report. She will deal with all matters of valuation except the fair rent. This would be the province of a second expert witness who, after some uncertainty, I was told would be a Mr N Long, who has not yet been instructed but will be instructed, although it was unclear whether this would be done by the appellants' solicitors or Ms Ellis.
I asked Mr Gallagher about the witness statement of Mrs Rees-Davies, which should have been lodged on 14 January. I was told that she still wishes to give evidence (also Mr Kingsley) and draft statements were handed to me. The reason why they had not been lodged in time was that they were considered to be of minor importance compared to the expert reports.
In conclusion, Mr Gallagher asked me not to dismiss the appeal but to make fresh directions for the filing and exchange of expert reports by 4 April 1997 with a hearing on the first available dates in May.
Mr Mullis, for the Council, said that the authorities cited by Mr Gallagher are not directly relevant to the Lands Tribunal Rules 1996. He referred to one authority, Beachley Property Ltd v Edgar, where Lord Woolf MR emphasised that the administration of business before the courts should not be disrupted by unjustified breaches of the rules by the parties.
Mr Mullis submitted that I should take into consideration the overall conduct of the case by the appellants (see Hytec) and not merely their failure to comply with the order of 3 December 1996, which was clearly a peremptory order. He said that Mr Miller's affidavit falls far short of a proper explanation for the appellants' failure to comply with this order. It does not explain why the appellants' solicitors did not seek their clients' instructions on the appointment of another expert until 30 December, although the non-availability of Mr Griffiths was known two weeks earlier. It is clear from the appellants' own evidence that they did not treat the order as important. Tenants do not have difficulties finding valuers to give evidence in leasehold enfranchisement cases in London. The appellants wish to pick and choose between valuers to support their case but, due to their delay, they are not now in a position to do so. Mr Mullis said that they claim to have appointed Ms Ellis but there is no evidence of this and I should disregard it. A letter of appointment should have been attached to Mr Miller's affidavit.
Turning to the appellants' overall conduct, Mr Mullis said that the delay started in the leasehold valuation tribunal. They commenced their appeal to this Tribunal with no clear idea of their case and therefore delay first arose in the lodging of their statement of case. It is likely that Mr Griffiths was not instructed until the spring of 1996 and that the application for determination of preliminary issues of law in May of that year was merely an exercise in delay because his report was not ready. It was clearly an application without merit. By the hearing last December the appellants were 11 months late in filing their expert reports and the appeal had been in the Tribunal for two years. The order of 3 December 1996 was the last chance for the appellants to put their case in order. They have failed to do so without adequate explanation.
Mr Mullis said that it is self-evident that the Council are prejudiced by this lengthy litigation. The Council's two expert witnesses lodged their reports a year ago. Mrs Rees-Davies is occupying the appeal property at a low ground rent, although a modern ground rent is payable back-dated to the expiry of the lease in March 1990.
In conclusion, Mr Mullis said that the appellants' current difficulties are entirely of their own making. The root cause of the problems is not the illness of Mr Griffiths, but the failure of the appellants to progress their appeal before he became ill. If they had lodged their expert reports by 7 January 1996, as ordered, the appeal would have been determined last year before Mr Griffiths became ill. It was delayed by the appellants failure to lodge their reports and by their unmerited and late application for the determination of preliminary points of law.
Mr Mullis urged me to dismiss the appeal with costs.
The appellants, having failed to comply with the direction regarding the lodging of expert reports contained in the order of 3 December 1996, are required to show cause why this appeal should not be dismissed. The Tribunal's power to dismiss an appeal arises under rule 45(2) and rule 46(2)(b) of the 1996 Rules.
Rule 45(2) provides that:
"A party may, at any time before the hearing of the proceedings, apply to the President for an order to dismiss the proceedings and the President may make such order as he thinks fit".
Under rule 3(4) of the 1996 Rules:
"A member of the Tribunal selected to hear a case shall have power to do anything in relation to that case, which the President has power to do under these Rules".
My power to dismiss this appeal therefore arises under rule 45(2) as applied by rule 3(4) of the 1996 Rules. The application was argued before me on the general issue of delay. Rule 46(2)(b) however contains specific grounds on which the Registrar may dismiss any proceedings. I have decided that I should have regard to these grounds (which both encompass delay) when determining this application. They are: failure by a party to pursue any proceedings with due diligence or failure to comply with any provisions of the 1996 Rules. In this appeal these grounds overlap.
It is common ground that I have a discretion in this matter which must be judicially exercised.
The first question is whether the appellants have failed to pursue their appeal with due diligence? The Shorter Oxford English Dictionary defines "diligence" to include "speed, dispatch", "careful attention, heedfulness" and, in the context of law, "the attention and care due from a person in a given situation". It is in these senses of the word that I consider this question. Have the appellants pursued the appeal with speed and dispatch? Have they given careful attention to the appeal? In particular, has the appeal received due attention and care from the appellants' solicitors and other advisors?. The duty to proceed with due diligence encompasses the whole of the proceedings, not solely the period after December 1996. In my view the appellants have not pursued their appeal with due diligence. This can be seen by looking at their conduct in relation to the statement of case, preliminary points of law and the filing of expert reports.
Delay first arose in relation to the appellants' statement of case. In response to the appeal the Council gave notice of intention to appear on 16 January 1995 and under rule 14 of the Lands Tribunal Rules 1975 (then in force) the appellants were required to lodge their statement of case by 22 February 1995, as notified to them in the Registrar's letter of 4 January. This statement was finally lodged on 12 May 1995, but only after an interlcutory hearing on 28 April and the issue of a peremptory order. This was a delay of 11 weeks at the start of the appeal.
The second area of delay was in the making of an application for a hearing of preliminary issues. This matter was first raised in the appellants' statement of case of May 1995. Paragraph 14 states that it would be necessary and expedient to have certain valuation matters determined as preliminary points of law. On 9 February 1996, nearly nine months later, the appellants' solicitors, in reply to a letter from the Registrar advising that the time limit for lodging expert reports had expired, wrote:-
"Our client is giving consideration to an application being made on a point of law. We hope to have the papers settled within the very near future and they will then be filed".
The application was finally made on 31 May 1996, just over a year after the matter was first raised in the statement of case. I should add that the Registrar issued on 14 May notice of a hearing before him on 3 June for the appellants to show cause why they should not be debarred from calling expert evidence due to their failure to comply with the direction in this respect given on 6 October 1995. Following an order of 3 June 1996 adjourning the hearing pending the determination of the preliminary issues, I held a hearing to consider this matter on 3 December and refused this application. I would not go so far as Mr Mullis in calling this application an exercise in delay, but I found the numerous questions raised as preliminary issues to be unsuitable for a preliminary hearing and, in my view, the application was misconceived and had little merit. It was, I think, an attempt by the appellants to obtain decisions on parts of their case before committing themselves to a final value.
The application for a preliminary hearing reveals considerable delay by the appellants. At the very latest the application should have been made shortly after the Council lodged their reply on 17 October 1995. The delay is at least seven months.
The third area of delay is in the filing of expert reports. The Council's two reports were lodged on 6 February 1996, the appellants propose to file their reports next April, over a year later. I was told by Mr Gallagher that Mr Griffiths was appointed in April or May 1995 (although he did not produce a letter of appointment or instructions). He should have lodged his report as required by the Tribunal (after several extensions of time) by 7 January 1996 and he could have done so at any time up to 3 June, when this obligation was suspended due to the application for the determination of preliminary points of law. The obligation to lodge expert reports then arose again on 3 December 1996 with a time limit of 14 January 1997. Mr Griffiths had eight or nine months to prepare his report, between April or May 1995 and January 1996, but did not do so. I was told by Mr Gallagher that he was instructed not to proceed pending the determination of the preliminary issues of law, but the appellants then failed to make application for the determination of these issues until a year after the appointment of Mr Griffiths.
There is considerable delay here. Expressed simply it can be said that two years after the start of this appeal the appellants have still not lodged expert reports, although the Council lodged their reports a year ago.
Having regard to the above three matters, I am satisfied that the appellants have failed to pursue their appeal with due diligence.
The second question is whether the appellants have failed to comply with any provisions of the Rules? I take this to include directions made under the Rules. There is, of course, some overlap with the first question in connection with the numerous failures to comply with Rules and directions relating to the lodging of a statement of case and expert reports.
Mr Gallagher, in his submissions, concentrated on explaining the reasons for his clients' failure to comply with the order of 3 December last. He said that it was not a peremptory order. I do not agree. It was not expressed in the usual terms of an "unless" order, but nevertheless non-compliance expressly put the onus on the appellants to show cause why the proceedings should not be dismissed. It was a clear warning to them that the end of the road was in sight. It put them on notice that failure to comply would lead to the dismissal of the appeal unless there was good reason for non-compliance.
I am not satisfied that the appellants treated the order with the urgency required nor that they have adequately explained the steps taken to comply with it and as to their current position. I accept that Mr Griffiths's illness and the Christmas period placed the appellants in a difficult position, although both were known before the order was made, but these matters should have caused them to act with greater urgency than appears to have been the case. My impression is that greater effort was made, after the time limit in the order had expired, to put their case in order and to try to justify their position, than in complying with the order itself. To give some examples, I was given no good reason why the witness statements of Mrs Rees-Davies and Mr Kingsley were not lodged in time. They were not affected by Mr Griffiths's illness. I do not know why there was a gap of two weeks between 16 December, when Mr Marcus became aware that Mr Griffiths would not be available, and 30 December when he wrote to Mr Kingsley for instructions. The Christmas holiday intervened but 16 December was the Monday of the week before Christmas week - at the least a letter should have been written at that time. I have not been given any medical evidence as to Mr Griffiths's illness, apart from a letter from Savilles. There is no letter of instruction to Ms Ellis and no clear evidence at all regarding the appointment of a second expert, Mr Long, and as to whether he is to be appointed by the appellants' solicitors or Ms Ellis.
Taken with the other failures to comply with the Rules and directions since the appeal was lodged two years ago, I am satisfied that the appellants have consistently failed to comply with the Lands Tribunal Rules.
I now refer to the authorities. I agree with Mr Mullis that they are not directly relevant to the Lands Tribunal Rules 1996 but they throw some light on the guidelines for the dismissal of proceedings.
Jokai concerned an unless order in the High Court and was followed in Grand Metropolitan. Mr Gallagher relied on a passage in the judgement of Sir Nicholas Browne-Wilkinson VC (at pages 1202-3) where he said that the relevant question is whether the failure to comply with the order "is intentional or contumelious"?. If the party in default can demonstrate that there was no intention to ignore or flout the order and that failure to obey was due to extraneous circumstances, then that failure is not to be treated as contumelious and does not disentitle the litigant to rights which he would otherwise have enjoyed.
Mr Gallagher argued that the appellants did not deliberately disobey the order of 3 December 1996: failure to comply was due to extraneous circumstances, the illness of Mr Griffiths. I am not persuaded by this argument. I have dismissed the appeal, not solely for breach of the December order, but for persistent delay and breaches of earlier orders. Furthermore, the illness of Mr Griffiths has only caused particular difficulties now because of substantial delay in the past.
In Carter Mr Gallagher relied on part of the judgement of Beldam LJ at page 16 D-G, where Beldam LJ defined "extraneous circumstances" as "something which happens beyond the control of the party to prevent him from complying with the order", and then issued the warning that the exercise of a discretion should be flexible and not too rigidly influenced by guidelines. I do not think that this authority adds to Jokai, on which I have commented. I accept that Mr Griffiths's illness is an extraneous circumstance but it is only a small part of the overall picture, which is of delay extending back to the start of the appeal. I agree with the submission of Mr Mullis that the appellants have only themselves to blame for the serious position they found themselves in due to Mr Griffiths's illness. He was appointed in April or May 1995 and should have been instructed to prepare his report at that time. The appeal could have been heard before he became ill at the end of last year. Instead of taking this action the appellants pursued, with much delay, the preliminary issues point (which had little merit) and now find themselves in a difficult position which is largely of their own making.
Mr Gallagher also relied on Hytec where Ward LJ set out in seven propositions the philosophy behind the proper test for striking out proceedings. Mr Gallagher relied on the first five propositions and Mr Mullis relied on the last two. This part of the judgement of Ward LJ, as noted in the brief report in The Times, is as follows:
"1. An unless order was an order of last resort, not made unless there was a history of failure to comply with other orders. It was a party's last chance to put its case in order.
2 Because it was the last chance, a failure to comply would ordinarily result in the sanction being imposed.
3. That sanction was a necessary forensic weapon which the broader interests of the administration of justice required to be deployed unless the most compelling arguments were advanced to exonerate the failure.
4. It seemed axiomatic that if a party intentionally or deliberately flouted the order he could expect no mercy.
5. A sufficient exoneration would almost invariably require that he satisfied the court that something beyond his control had caused the failure.
6. The judge would exercise his judicial discretion whether to excuse the failure in the circumstances of each case on its own merits, at the core of which was service to justice.
7. The interests of justice required that justice be shown to the injured party for the procedural inefficiencies causing the twin scourges of delay and wasted costs. The public interest in the administration of justice to contain those blights also weighed heavily. Any injustice to the defaulting party, although never to be ignored came a long way behind the other two".
I of course accept these propositions but would again emphasise that my decision is based on the overall conduct of the appellants and not solely on their failure to comply with the order of December 1996. Mr Gallagher also referred to the part of the judgement of Lord Woolf MR which supported and commented generally on these guidelines.
Mr Mullis referred to only one case, Beachley Property Ltd v Edgar. He relied on part of the judgement of Lord Woolf MR who said (as stated in The Times report) that:-
"...... he was concerned that the proper and regular administration of business in general before the courts should not be disrupted as a result of breaches of the rules of the court which occurred without any justification whatsoever.
It was very important that the courts' resources should be used as efficiently and as effectively as possible.
That was not possible unless the parties cooperated; their cooperation involved them obeying the rules of the court. Here they did not do so and there was no explanation for it".
I agree that this is a matter to be taken into account. It is clear that the appellants' failure to pursue their appeal efficiently has led to disruption in the administration of the Tribunal's business by frequent and largely unnecessary interlocutory hearings and orders to deal with delay. Other litigants seeking an early hearing have been delayed, particularly due to the undue expenditure of time by the Registrar and the member on preliminary matters and delay.
Finally, I have considered whether I should exercise my discretion to dismiss this appeal. I am not confident that even now the appellants have put their case in order and that, if I grant a further extension of time, they will be ready for a hearing in May or June. The evidence I was given regarding Ms Ellis's appointment, and even more so that of Mr Long, was not entirely clear and I do not feel confident that the appellants will not initiate further delay in the progress to a hearing.
The Council are prejudiced by the delay. This matter commenced in March 1990, nearly seven years ago, although it took nearly five years to reach this Tribunal. The valuation date is 22 March 1990. Although I agree with Mr Gallagher that this is not a case where the recollection of witnesses of fact may become unreliable by the passage of time, the further we progress from the valuation date in 1990 the more difficult it becomes to value the appeal property with any accuracy. The Council's experts have been ready for a year and should not be kept waiting any longer.
In all the circumstances I am satisfied that, the appellants having failed to pursue their appeal with due diligence and having failed to comply with the Lands Tribunal Rules, I should exercise my discretion to dismiss this appeal.
I heard submissions on costs. Mr Mullis asked for the appeal to be dismissed with costs. Mr Gallagher conceded that the Council should have their costs if the appeal is dismissed, other than any costs already ordered against them on interlocutory matters. I agree, although no costs orders have in fact been made against the Council in these proceedings.
For the reasons set out above, I order that this appeal be dismissed. I further order that the appellants shall pay the Council's costs of this appeal, such costs, if not agreed, to be taxed by the Registrar of the Lands Tribunal on the High Court standard basis.
