Bodden v NRA
| Jurisdiction | Cayman Islands |
| Judge | (Chadwick, P., Conteh and Ground, JJ.A.) |
| Judgment Date | 25 April 2013 |
| Court | Court of Appeal (Cayman Islands) |
| Date | 25 April 2013 |
(Chadwick, P., Conteh and Ground, JJ.A.)
M. Barnes, Q.C. and Ms. K. McClymont for the claimants;
G. Roots, Q.C. and Ms. D. Lewis for the NRA.
(1) Concept Ltd. v. National Roads Auth., 2009 CILR 629, distinguished.
(2) Emslie & Simpson Ltd. v. Aberdeen D.C., 1995 S.C. 264; [1995] R.V.R. 159, followed.
(3) Ford v. Immigration Appeals Tribunal, 2007 CILR 258, referred to.
(4) Horn v. Sunderland Corp., [1941] 2 K.B. 26; [1941] 1 All E.R. 480, referred to.
(5) Lloyd v. McMahon, [1987] A.C. 625; [1987] 2 W.L.R. 821; [1987] 1 All E.R. 1118, distinguished.
(6) Powell v. Streatham Manor Nursing Home, [1935] A.C. 243, followed.
(7) Purfleet Farms Ltd. v. Transport Secy., [2003] 1 P. & C.R. 20; [2003] 1 EGLR 9; [2002] R.V.R. 368; [2002] N.P.C. 125; [2002] EWCA Civ 1430, followed.
(8) Rugby Joint Water Bd. v. Foottit, [1973] A.C. 202; [1972] 2 W.L.R. 757; [1972] 1 All E.R. 1057, followed.
(9) Work & Pensions Secy. v. Morina, [2007] 1 W.L.R. 3033; [2008] 1 All E.R. 718; [2007] EWCA Civ 749, applied.
Grand Court Rules, O.55, r.3(1): The relevant terms of this paragraph are set out at para. 6.
Roads Law (2005 Revision), Second Schedule, para. 2(6). The relevant terms of this sub-paragraph are set out at para. 33.
Second Schedule, para. 8: The relevant terms of this paragraph are set out at para. 5.
Development and Planning Law-compulsory acquisition-fair compensation-appeals-entry under Roads Law (2005 Revision), Second Schedule, para. 8(1)(a), Grand Court not to hear appeals against determination of value of land or existence of right of way-extent of interest means extent of title to land-extent of interest not to include value or extent of land itself (e.g. if benefits from easement)-extent of right means extent of rights held by party without title to land-power to make order as court ‘thinks fit’ not to allow it to entertain appeal not included in statutory grounds
Development and Planning Law-compulsory acquisition-fair compensation-appeals-no reason for appeal under Roads Law (2005 Revision), Second Schedule, para. 8 to be heard de novo-fresh evidence not usually required as Grand Court only given appellate jurisdiction
Development and Planning Law-compulsory acquisition-fair compensation-costs awarded by Roads Assessment Committee assessed on basis that all items allowed in absence of special reason to contrary (e.g. party acted unreasonably in prosecuting claims or costs unreasonably high)-burden for showing special reason on paying party-not useful to import language of costs from litigation
The parties issued cross-summonses in the Grand Court in relation to a ruling by the Roads Assessment Committee (‘the RAC’).
The National Roads Authority (‘the NRA’) compulsorily acquired land belonging to A. Bodden and H. Bodden (‘the claimants,’ the second and third applicants taking the place of H. Bodden after his death) for the purpose of building a highway and the claimants sought appropriate compensation. The NRA claimed that as the property previously had no road access, the new road had sufficiently increased its value to compensate the claimants without more. The claimants claimed that they had not been adequately compensated as the property had in fact benefited from a right of way and so had not been without road access. The claimants referred the dispute to the RAC, which found that the property had
benefited from a right of way, ordered that compensation be made and awarded costs to the claimants, although it did not specify the value of the costs awarded or determine the method for calculating them. The NRA applied to the Grand Court for a stay of the award pending an appeal under the Roads Law (2005 Revision), Second Schedule, para. 8 and the claimants applied to the Grand Court for immediate payment of the sum awarded.
The Grand Court (Smellie, C.J.) (in proceedings noted at 2012 (1) CILR N [1]) granted the stay on the condition that the NRA pay the costs ordered by the RAC, as calculated on the indemnity basis (i.e. that the claimants were entitled to all costs not shown to be unreasonable). The court further stated that the NRA”s appeal would be heard de novo and could include a retrial of the merits of the RAC”s decision, and that it could include an appeal against the value of the land before and after the purchase and whether the claimant”s land was subject to a right of way. These statements on the mode and extent of the appeal were not included in the order of the court, but later formed the basis for a directions order subsequently made by the Grand Court.
The claimants” appeal
The claimants submitted that, as para. 8(1) of the Roads Law, Second Schedule contained an exclusive list of the available grounds of appeal, the NRA was not entitled to appeal against the RAC”s finding that the claimant”s land was subject to a right of way and that its value had not been increased by the road. Paragraph 8(1)(a) allowed an appeal against a determination of the extent of the interest or right in the land, which was distinct from the value assigned to the land and whether it benefited from an easement. Further, the Grand Court had been wrong to say that the appeal could be heard de novo, as an appeal governed by GCR, O.55, r.3-which stated that the appeal would be by way of rehearing-was restricted to a reconsideration of the evidence which had been presented at first instance. Although the statements as to the mode and extent of the appeal had not been included in the Grand Court”s order, they constituted a decision which had a legal effect and so were capable of being appealed.
The NRA submitted in reply that since appeals from the RAC might involve difficult questions of mixed fact and law, the court should use a purposive interpretation when applying para. 8(1) and find that decisions as to the extent of the land itself could be included as decisions relating to the claimant”s title to the land.
The NRA”s appeal
The NRA submitted that the Grand Court had erred in law when it decided that the claimant was entitled to costs on the indemnity basis. Further, the ability to assess costs resided with the RAC and the Grand Court was not entitled to calculate them.
The claimants submitted in reply that the principle of equivalence (that they should be put into the same position in which they would have been
had the land not been compulsorily acquired) extended to cover the costs incurred in challenging the NRA”s evaluation.
Held, allowing the claimants” appeal and dismissing the NRA”s appeal:
The claimants” appeal
(1) The grounds of appeal stated in the Roads Law (2005 Revision), Second Schedule, para. 8(1)(a), which entitled the NRA to appeal against a determination of ‘the extent of the interest or right’ in the land, did not allow it to challenge the merits of the RAC”s determination of the value of the land or the existence of the right of way. The word ‘interest’ referred to the owner”s title and the word ‘right’ referred to rights over the property which were enjoyed by a party who did not have title to the land. As there was a recognized distinction between an interest in a land and its value, the determination of the interest in the land did not include the determination of its value. Further, the easement was a feature of the land itself, as it would be registered as an appurtenant right over other land in the property section of the Land Register, not of an interest or right in it, which would be registered in the proprietary section. The determination that an easement existed, therefore, was not a determination of the extent of the interest in the land under para. 8(1)(a). Although para. 8(3) allowed the court to make an order ‘as it thinks fit,’ this did not give the court the ability to entertain an appeal which the legislature had deliberately not included in the statute and this could not be avoided by a purposive interpretation of para. 8(1)(a) (paras. 14–21).
(2) The appeal would not be heard de novo. The word ‘rehearing’ in GCR, O.55, r.3(1) did not mean that a new hearing would be undertaken, but that the evidence originally heard would be reviewed on the documents (e.g. transcripts or records of witness testimony and judge”s notes). Further, there was no reason for an appeal under para. 8 to require a fresh hearing as, given the statutory limitations in para. 8(1), fresh evidence would not usually be required and the Grand Court had only been given jurisdiction to act as an appellate court and not as an original tribunal. Although the Grand Court”s statements as to the extent and mode of the trial had not formed part of the order, they took the form of quasi-declarations on the meaning and application of para. 8(1)(a), were of general application and were considerably important decisions, as demonstrated by the fact that the statements formed the basis for a directions order by the Grand Court. It was therefore possible to appeal against them (paras. 12–13; paras. 25–29).
The NRA”s appeal
(3) The claimants were entitled to have their costs assessed on the basis that all items should be allowed in the absence of a special reason to the contrary. The Grand Court had not assessed the costs but was ‘recognizing’ the award which was likely to have been granted by the RAC, and the award was subject to any adjustments it might make. This was not affected by the fact that the RAC was likely to use the Grand Court”s approach
when taxing the costs. Moreover, the Grand Court had used the correct approach when it considered how the costs would be assessed. The principle of equivalence meant that the claimants were entitled to be put as closely as possible into the financial position in which they would have been had the land not been compulsorily...
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