John & Cherry Pusey v Somerset County Council

Transcript date:

Tuesday, January 17, 2012

Matter:

Court:

Court of Appeal

Judgement type:

Permission to appeal

Judge(s):

Lord Justice Davis

Transcript file:

Case No: A2/2011/2111
Neutral Citation Number: [2012] EWCA Civ 120
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BRISTOL DISTRICT REGISTRY
(HIS HONOUR JUDGE DENYER QC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 17th January 2012

Before:

LORD JUSTICE DAVIS

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PUSEY
Appellant

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SOMERSET COUNTY COUNCIL

 

Respondent
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Mr Stookes appeared on behalf of the Appellant.

The Respondent did not appear and was not represented.

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Judgment

(As Approved by the Court)

Crown Copyright©

Lord Justice Davis:

1. When I refused permission in this case on the papers, I did so in somewhat forceful terms. I had great difficulty in seeing how, on the face of it, and in what involved an assessment of fact and degree, there could be an interference with the judge's decision. I had in regard in particular the judge's findings at paragraph 14 of his judgment. However, it is only right to say that Mr Stookes, appearing on behalf of the applicant before me today, who has not previously appeared on behalf of the claimants, has framed the matter in a way different from that in which it has been previously been put; in fact, in my view, in a way which really strictly should cause the grounds of appeal currently on the record to be amended.

2. The judge, who heard the evidence, clearly formed the view that there was a degree of obsession on the part of the claimants, in terms saying that their complaints were extremely exaggerated. Indeed, as I have noted, the first claimant seemed even to disagree with the views of his own expert. That said, the judge did review in detail the very detailed log or diary kept by the claimants, and he does not seem, explicitly at least, to have rejected the number of incidents that are there recorded, even though he may have thought that what actually happened during those incidents may have been exaggerated. By way of example, he seems to have accepted that the number of incidents of alleged urination did in fact occur.

3. Having regard to the way in which the case is now sought to be put, I am just persuaded that I should grant permission to appeal in this case. I am a little concerned that it may turn out that there may be, as it were, a cruel kindness here on my part in granting permission; certainly, the claimants will well understand the potential costs implications to them if the appeal fails, as well it might. But notwithstanding that on the face of it the judge's approach seems to have been an assessment of degree and of fact, I do think the points made by Mr Stookes are points which can and fairly should be put before the Court of Appeal. Whether they can in the result succeed on analysis is another matter altogether.

4. Overall, I do think that a realistically arguable point is made out here, and I will give permission on all the points raised by Mr Stookes. However he should reformulate his written grounds. The implementation of the costs order is to be stayed until disposal of the appeal. A one-day time estimate; a three-judge court, which may include a High Court Judge.

Order: Application granted.