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EXTRACT FROM CHAPTER 16 OF THE LATE STEPHEN KNIGHTS BOOK,
"THE BROTHERHOOD". (Otherwise known as Freemasonry)
GET YOUR MAN INVOLVED IN SOMETHING LEGAL, IT NEED NOT BE SERIOUS, AND THERE YOU HAVE HIM.
WAKE UP WORLD, THE VERY FOUNDATIONS OF DEMOCRACY WHICH HAS TO BE ACCESS TO JUSTICE, IS NOW INFESTED WORLD WIDE WITH MEMBERS OF THE MOST VILE ANTI-CHRIST BROTHERHOOD OF FREEMASONRY. TODAY I AND OTHERS ARE ITS VICTIMS. TOMORROW IT MAY BE YOU.
PUBLISHED IN THE PUBLIC INTEREST.
John H Fryer-Spedding owns Mirehouse near Keswick, Cumbria. He charges four pounds a time to the public to see the luxury and fine surroundings in which he lives, while at the same time having left a trail of horror behind him. He owns tea rooms opposite Mirehouse. He is also a reader at the nearby Bassenthwaite Church.
Contents also sent by fax to Prime Minister Tony Blair and the Office of the Official Receiver.
THIS IS THE STATEMENT OF TRUTH OF MAURICE KELLETT RESIDING AT 16A THE LYONS, HETTON-LE-HOLE, IN THE COUNTY OF TYNE AND WEAR. UK.
THIS STATEMENT CONCERNS THE DURHAM COUNTY COURT CASE NUMBERS:
DH400950, Plaintiff Maurice Kellett, -V- Defendant Shirley Carr
DH400898 Plaintiff Maurice Kellett -V- Defendant Shirley Carr
AND THE NEWCASTLE COUNTY COURT CASE NUMBER:
NE401650. Plaintiff Shirley Carr -V- Defendant Maurice Kellett.
All statements made by me herein are enclosed between inverted commas, in bold printing and are underlined other than if otherwise shown to be statements of others.
I include herein the original content of the approved transcript of judgement of RECORDER Mr. JOHN H. FRYER-SPEDDING since retired.
I herein refer to the aforesaid RECORDER JOHN H. FRYER-SPEDDING as the recorder.
The recorders statements are numbered herein 1 to 153. His additional statements are referenced and shown herein as per copied from his approved transcript of judgment. (My statements are printed in red and are enclosed by inverted commas for the purposes of publication on my web pages)
I, MAURICE KELLETT, DECLARE THAT TO THE BEST OF MY KNOWLEDGE AND BELIEF THE CONTENTS OF THIS MY STATEMENT ARE TRUE TO THE BEST OF MY KNOWLEDGE AND BELIEF.
Thursday 21st November. 1996
JUDGMENT
1. RECORDER FRYER-SPEDDING: The consolidated actions before the Court concern the dwellinghouses and premises at Nos. 16 and 16A The Lyons at Hetton-le-Hole, Tyne and Wear, and also a strip of land which adjoins No. 16 No. 16 is occupied and owned by Miss Carr. No. 17 is owned and occupied by Mr. and Mrs. Kellett.
2. I shall call them by their names throughout, because, despite the consolidation, that is the way the matter has been dealt with throughout the hearing.
" There had been no consolidation of the actions. An order had been made by District judge Scott-Phillips at the Durham County Court on June 1 1994 refusing Miss Carr's application for consolidation of the cases. Attached hereto is a copy of that order marked "K1". The recorder has therefore breached Supreme Court Rule under the 1981 County Court Rules, Order 13, Rule 9. Attached hereto is a copy of that rule marked "K2". The recorder is therefore held to have been in contempt of the Supreme Court. Miss Carr, who, without the authority of the court prepared the judges bundle, agrees that among the documentation she excluded from the bundles, was the order of June 1 1994 refusing her application for consolidation of the cases. There was no order for consolidation of the cases. Therefore there remains the question, why did the recorder falsely allege that the cases had been subject of consolidation and why did he wrongly try the cases as if Miss Carr’s application for consolidation of the cases had been approved?
For more than one and a half years prior to January 17 1996 solicitor Alison Stott of Aykley Vale Chambers, Aykley Heads, Durham City, had attended at the Durham County Court with Miss Carr. During that time Alison Stott had been given work by the court in regard to the cases between Miss Shirley Carr and I. It is now shown that she secretly passed on that work for Miss Carr to carry out. Part of that work had included the preparation of the judge's bundle. Alison Stott had agreed to me by letter dated November, 13 1995 that she did pass on that work for Miss Carr to carry out. Attached hereto is a copy of Alison Stott’s letter of which I refer and is marked with "K3". On January 17 1996 Alison Stott declared to the Newcastle County Court that up to that time she had not been acting for Miss Carr but that she had only been assisting her. That court was presided over by the recorder who then replied to her, "You are either acting for Miss Carr or you are not?". Alison Stott replied to the recorder, "Well I am now sir". Among those present in court was counsel Michelle Temple who openly expressed amazement at the declaration Alison Stott had just then made. Attached hereto, marked "K4" is a copy of the affidavit of Joyce Kellett who was in attendance in court on that day of January 17 1996 when Alison Stott made the declaration of which I refer. Joyce Kellett swears a full account of that declaration made by Alison Stott and matters leading up to it. An unfair advantage had in the circumstances hereby detailed, was gained by the improper acts of Miss Carr and solicitor Alison Stott. The evidence is clear that the relationship between Miss Carr and Alison Stott was improper in relation to court proceedings. By virtue of Alison Stott having made that declaration to the Newcastle County Court on January 17 1996, of which I hereto refer, both Alison Stott and Miss Shirley Carr are shown to have concealed from myself and the courts the fact that they had such a special relationship which allowed them to conceal from myself and the courts that Miss Carr was at the material times a Litigant in Person. Alison Stott and Miss Shirley Carr had a lawful duty to have informed the courts and myself long before January 17 1996 of their special arrangement to conceal such arrangement which Alison Stott had admitted by her declaration to the Newcastle County Court on January 17 1996.
In the circumstances now shown both by evidence and the declaration of Alison Stott, the acts aforementioned were clearly acts of fraud.
Under an Appeal court Ruling under the case of Lazarus Estates, Jan 12,13,24, 1956 made by the late Rt. Hon. Lord Denning, "No Court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything." Under this ruling by the late Rt. Hon. Lord Denning, in this matter alone, the use of fraud by both Miss Carr and solicitor Alison Stott, the order made by the recorder on October 24 1996 is thus considered by me to be justly nullified."
3. I will refer first to the title to the properties which is a necessary background to the understanding of the problems which have led to the litigation before the court. There is an agreed bundle which contains amongst other things the title deeds.
"There was never at any time an "agreed bundle".
4. The first document (the title of which I need to refer) is a conveyance dated 19th December 1935 and made between Lambton, Hetton & Joicey Collieries Ltd. as vendors and Mr. Arthur William Sharp, the purchaser. The land which was conveyed includes the land on which both Nos. 16 and 16A (as they are now termed) are situated and it is shown by measurements in the parcels clause, and it also can be seen on the annexed plan edged red. It does not include land to the west of what was then all No. 16, which has on it the description of "alleyway", and I shall refer to that land throughout as "the alleyway land".
For the purposes of this judgment the alleyway land covers the alleyway from where it enters the main road from Hetton-le-Hole to Murton at the north end down to the rear boundary of No. 16 at the south end. The property to the west of the alleyway land is shown on that plan as Hetton Engine Works and the property to the south is shown as belonging to the Lambton, Hetton & Joicey Collieries Ltd. and it is a fair assumption from that plan that the alleyway was used at the time of the deed in some way for obtaining access to the land of that company lying to the south of No. 16.
"From the evidence placed before the recorder, because of his "fair assumption", he is shown to have been extremely biased towards me. Miss Carr submitted in her evidence before the recorder her statement that the alleyway had been used as a public footpath and was shown on ordnance survey maps dating back to 1855. The recorders extreme bias is further shown by the fact that at to the rear (south side) of No 16A The Lyons, there are brick constructed buildings dating from around the turn of this century which housed pigs and poultry. It is inconceivable that the recorder had thought that those buildings and the animals housed within them had been serviced only by route through the living quarters of No. 16 and 16A. The footpath shown on the ordnance survey maps of 1855 shows no other than it was even then being used as the access route to the rear of the properties No. 16 and 16A. A copy of those ordnance survey maps remains available as evidence to assist in showing that the recorder did exhibit extreme bias towards."
5. By a conveyance dated 23rd April 1949 made between Mr. Sharp, as vendor, and Mr. William Kellett and Mrs. Elizabeth Rhoda Kellett, as purchasers, the same land as passed under the 1935 conveyance passed to Mr. and Mrs. Kellett.
"It is material, for reasons which will be made clear herein, that the recorder agrees by his statement copied above, that he had examined the titles to the properties No. 16 and 16A the Lyons."
6. Now those Mr. and Mrs. Kellett are the parents of Mr. Maurice Kellett, who is a party to the present litigation, and I shall refer to them as Mr. Kellett Snr. and Mrs. Kellett Snr as the case may be, and when I refer to Mr. Kellett and Mrs. Kellett I mean the Kelletts Jnr. On 2nd February 1976 No. 16 was divided and Mr. and Mrs. Kellett Junior acquired by purchase from Mr. and Mrs. Kellett Senior the property which became No. 16A.
"Contained in the titles to the properties No. 16 and 16A the Lyons, of which the recorder is shown herein to have examined, is the following declaration: " AND WHEREAS the said hereditaments were on the first day of July One thousand nine hundred and forty eight used as two private dwelling houses and their curtilages". A copy of the declaration contained in the titles of both respective properties is attached hereto marked with "K5". It is material for the purposes of justice that the properties were in fact not divided on 2nd February 1976 as was wrongly alleged by the recorder. Had there been no diversity of occupation of the two respective properties before 2nd February 1976 then there could not have passed any rights save those that could be granted by the vendors when they sold one of those properties to my wife and I. A tenant can obtain rights by the process of law against his landlord. Section 62 of the Law of Property Act 1925, states: " A conveyance of land, having houses or other buildings thereon ,shall be deemed to include and shall by virtue of this Act operate to convey, with the land, houses, or other buildings, all outhouses, erections, fixtures, cellars, areas, courts,……watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, houses, or other buildings conveyed, or any of them, or any part thereof, or, at the time of the conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to, the land, houses, other buildings conveyed, or any of them, or any part thereof." There had been diversity of occupation of both respective properties from at least 1947 and there were rights " ….appertaining or reputed to appertain to the land, houses…." at the time of the sale of No. 16A to my wife and I on February 2nd 1976. Those rights included the ways to access the rear of No. 16A The Lyons. Further, the vendors had agreed a continuation of those rights of way by affidavits which were placed before the recorder. One of those affidavits sworn by one of the vendors of our property No. 16A The Lyons is hereto attached and is marked with "K6". This agreement by the vendor will be shown herein to have been very material but it is shown that the recorder totally ignored its contents. Clearly his extreme bias towards me is further shown by his failure to take those affidavits into account and this is backed up by the fact that he made a statement included above, which was a contradiction in terms of the declaration made in the titles to the two respective properties which it is shown he had examined".
7. What that property is can be seen from the registered title, because the title of that property 16A is now registered under title TY23554 and the filed plan shows which part of what was formerly known as No. 16 became No. 16A.
"The declaration contained in the titles, to both No. 16 and 16A, and of which is copied and attached hereto marked with "K5" would have confirmed that those two properties No’s 16 and 16A were already by the year 1947, as the titles confirmed by the following declaration contained in them, " AND WHEREAS the said hereditaments were on the first day of July One thousand nine hundred and forty eight used as two private dwelling houses and their curtilages" In fact the titles to the properties conformed that No 16A was in existence as a separate property long before 1976. The recorders statement above again confirms his bias because he cannot other than have seen the declaration of which I refer when he examined the titles to the respective properties."
8. In the property register there is noted a declaration included in that conveyance of 2nd February 1976 in these terms: "It is hereby agreed and declared that the division walls and fences common to the property hereby conveyed and the property retained by the vendors shall hereafter be party walls and fences and maintained and repaired accordingly."
"The recorder again shows above that he had examined most carefully the titles to the properties No’s 16 and 16A."
9. I shall have to revert to that declaration later again. Then on 10th December 1982 Mr. and Mrs. Kellett Snr. Sold their house, the land that had been retained, the land and premises retained when 16A was sold off, to Mr. Robert William Green and Mrs. Audrey Green The land sold under that conveyance is described on the plan annexed, which is a copy of the 1935 conveyance plan which conveniently shows where the boundary lies between Nos. 16 and 16A.
" The recorder is shown herein to have wrongly alleged earlier that the properties had not been "divided" until "2nd February 1976". Here though he says, "a copy of the 1935 conveyance plan which conveniently shows where the boundary lies between Nos. 16 and 16A."
10. There may be some inaccuracies, but they are not material for the present purposes.
"The recorder never indicated what such "inaccuracies" he was alleging there may have been. To my knowledge there were none." The "inaccuracies" exhibited here by the recorder himself, are already shown to be very substantial and material. There are many more such " inaccuracies" of the acts carried out by the recorder which will follow and be detailed herein."
11. Now that conveyance of 10th December 1982 contained no declaration or provision relating to party walls, or to the maintenance of boundary features or structures.
"The recorder was said to have Chancery Court experience. Indeed there was a delay in proceedings to find a judge with such alleged Chancery experience. He would, or should, have been fully conversant with Section 38 (1) of The Law of Property Act 1925 which states: " Where under a disposition or other arrangement which, if a holding in undivided shares had been permissible, would have created a tenancy in common, a wall or other structure is or is expressed to be made a party wall or structure, that structure shall be and remain severed vertically as between the respective owners, and the owners of each part shall have such rights of support and user over the rest of the structure as may be requisite for conferring rights corresponding to those which would have subsisted if a valid tenancy in common had been created". Party walls are almost always implied anyway in the conveyance of property and I believe the recorder would have been very aware of this fact. A party wall applies to any wall separating adjoining lands, whether built on or not, belonging to the different owners. Prior to Section 38 of the Act referred to, such walls might belong to the adjoining owners in common.
The conveyance of No 16A on 2nd December 1976 of which the recorder examined, contains the following declaration, " all walls and fences common to the property being sold and the property being retained shall hereafter be party walls and fences and maintained and repaired accordingly." Regardless of whether that declaration was or was not contained in the Conveyance of No. 16 on December 10 1982, the declaration contained in the 2nd February 1976 conveyance of No. 16A most surely takes precedence. The recorder shows additional extreme bias towards me by failing to consider these very material facts."
12. Then on 26th August 1988 No. 16 was sold by Mr. and Mrs. Green to Miss Carr, together with a co-purchaser, and the co-purchaser has now released his interest to Miss Carr or it has passed in some way to Miss Carr so that she is now the sole proprietor, and she too has registered title, registered under title No. TY119794, the extent of the registered property being shown on the filed plan. For the removal of doubt I should say that, as will be apparent from the conveyancing history, the alleyway land is not included in that registered title, because it has not passed under the deeds relating to No. 16.
" The recorder above agrees that the alleyway land which was the subject of Miss Carr’s action against me under case NE401650 had not passed in the conveyance of No. 16 on August 26 1988. This is very material. Section 52 of The Law of Property Act 1925 states: "(1) All conveyances of land or of any interest therein are void for the purpose of conveying or creating a legal estate unless made by deed." This section of law "does not apply to c) surrenders by operation of law." The recorder was aware that no such required deed was included in either the conveyance of No. 16 on December 10 1982 to the Green family , or on the subsequent conveyance of that property to Miss Carr on August 26 1988 relating in any way whatsoever to the alleyway land. In her evidence Miss Carr claimed : "it was clear to me when I purchased No 16 on August 26 1988 that I had purchased the surrounding garden" which she had implied included the alleyway land. There had been no operation of law to enable her to make such a false claim, There had not passed with the conveyances I mention herein any alleged "interests" in the alleyway land either regarding its title. The recorder would most certainly have been aware of that fact. His further extreme bias towards me is shown by his failure to highlight these facts to Miss Carr and by further failing to give these facts his due consideration."
13. So that is how the respective parties come to own and occupy their properties.
Now I must say at this stage that there are four sets of proceedings between the parties which I think it is almost polite to say have had a extremely chequered history. There are a great number of documents which are not professionally drawn and which proceed under misunderstandings of law or procedure in one way or another and that has not made these actions in any sense easy to try. There are a good number of claims and counterclaims and as I indicated at the start of the hearing, the best that I can try to do, rather than to identify with any particular precision the issues from the proceedings, is to identify the broad thrust of the issues between the parties and to determine them. That I am now going to do. It may be necessary for me to hear the parties further in relation to some of the relief which is appropriate, but before I set off into dealing with the meat of the issues it may be helpful if I summarise what the four main heads of them are.
First, in relation to the alleyway land, Miss Carr is claiming damages for trespass, because she says that Mr. Kellett has trespassed on the land, and an injunction. She seeks a permanent injunction. She already has had since 1994 an interlocutory injunction restraining Mr. Kellett from entering upon that land.
"The injunction obtained by Miss Carr in 1994, of which the recorder herein refers, restraining me from entering upon the alleyway land was granted by Deputy District Judge Baird sitting at the Newcastle County Court on March 19 1994. Deputy District Judge Baird was certainly not impartial at the time he granted the interlocutory injunction order of which the recorder refers above. The facts to show this have only just recently came to light.
On November, 10 1992 Deputy District Judge Baird sitting at the Durham County Court set aside the judgment of District Judge Scott-Phillips made on October, 1 1992 in the matter of damage to my property caused by a vehicle collision with it. This was obviously gross misconduct in public office (Regina –v –Dytham, Court of Appeal, Criminal Division, July 1979, LCJ, Lj, LJ) by Deputy District Judge Baird. He would at that material time have been aware that he as a Deputy District Judge, was not allowed by law to hear an appeal made from an order of a District Judge. Attached hereto marked "K7" is a copy of Deputy District Judge Baird’s order which he made on November 10 1992 in regard to case No. 9202063. It states: "Before Deputy District Judge Baird sitting at the Courthouse, Hallgarth Street, Durham on the 10th November 1992. Upon hearing both parties in person it is Ordered that: 1.The appeal against the decision made by the District Judge on 1st October, 1992 be dismissed
It is inconceivable that Deputy District Judge Baird was not aware that he was not empowered to preside over appeal proceedings from the order of a District Judge. Yet here, it is shown by evidence that he did just that. I had corresponded with the Durham County Court on the matter of that unlawful act by the Durham County Court regarding that appeal procedure. It is reasonable to presume that Deputy District Judge Baird was aware of that correspondence that I had with the court at that time. I had of course highlighted to the then Chief Clerk to the Durham County Court, Mr I. Cuthbertson, Deputy District Judge Baird’s unlawful act. I had not recognised Deputy District Judge Baird when I appeared before him on March 18 1994 sitting at the Newcastle County Court. Had I recognised him I would have refused to agree that he should have presided over those proceedings. These facts have only came together very recently when it can now be shown that prior to March 18 1994 Deputy District Judge Baird had broken the law in regard to the hearing of an appeal from an order of a District Judge where I was subject of that order and the applicant in the appeal against it.
Attached hereto marked with "K8" is a copy of a letter dated January, 7 1993. It is signed by the then Chief Clerk Mr Cuthbertson. In his letter, Mr Cuthbertson writes: "(Case No. 9202063) Please find a notice enclosed relisting the Plaintiff’s appeal in this matter. This has arisen because the appeal was listed before a District Judge instead of a circuit Judge. The Court apologises for an inconvenience caused by this error." In fact as the available evidence now shows, the appeal hearing was not in fact heard by a District Judge, but was heard by Deputy District Judge Baird. This fact now also shows the Courts Chief Clerk’s involvement in the attempted cover up of misconduct by judges in the Durham County Court.
Also of material value, is a copy of a letter mistakenly dated January, 4 1992 attached hereto marked "K9" received by me from the Chief Clerk of The Durham County Court Mr. I Cuthbertson which states: "(Case No. 9202063) I refer to your letter dated 5 December 1992 ( but was in fact dated December, 7 1992), which has been referred to (error again by stating "the" twice) the District Judge.
The Court cannot enter correspondence on this matter any further as this action has been the subject of an appeal."
The District Judge to whom my letter of December, 7 1992 had been referred, would also have been very clearly aware that the appeal heard before Deputy District Judge Baird had been unlawful. In these circumstances, that District Judge too is implicated in misconduct in public office. It is also material that on October, 1 1992 the Defendant in my action under case No. 9202063, a Mr Young, had at the hearing before District Judge Scott-Phillips on this date handed to him at the end of proceedings a letter which he said was a statement. District Judge Scott-Phillips failed to make known to me the contents of that letter which was the reason for my appeal that was unlawfully heard by Deputy District Judge Baird. Further documentation regarding this matter is available to all those to whom it may concern."
On March 18 1994, while sitting at the Newcastle County Court, Deputy District Judge Baird refused entry to his chambers by my wife Joyce Kellett who was there to assist me. I am a physically disabled person by reason of severe arthritis and that would have been clear to both Deputy District Judge Baird and the Court Usher. He did allow both Mr K. Kerrigan and a Professor Kenny, both then employees of the University of Northumbria Law School, to enter his chambers. He invited Professor Kenny to comment on the issue of the alleyway land. The Professor did comment on the issues regarding that. It was reasonably clear that it was Mr Kerrigan who was then acting advocate to Miss Carr. Deputy District Judge Baird had therefore misconducted himself again in this matter. An advantage was thus gained by Miss Carr by having what were effectively two advocates representing her at that hearing on March 18 1994 before Deputy District Judge Baird.
A further advantage was obtained for Miss Carr by Deputy District Judge Baird refusing to allow my wife's entry into his chambers for her to assist me on that day of March 18 1994. The matter of this further misconduct by Deputy District Judge Baird is therefore again called into very serious question."
14. She also seeks a declaration that Mr. Kellett has no title to the land Mr. Kellett himself, in return, counterclaims for damages. That is on the basis of the fact that he says that he is entitled, either solely or jointly, to a possessory title to that land.
Then there are claims relating to Miss Carr's bathroom, resulting from works which were carried out to that structure What is Miss Carr's bathroom can be conveniently seen from photograph No. 4. It is the building in the centre of the picture with the burglar alarm on it, lying approximately between the two down spouts, the grey one and the black one. I have referred to the easterly or grey one as a downspout, it in fact carries I am told an electric cable, but there are issues relating to that.
"Any such "issues" referred to above by the recorder were never made known during the proceedings before the recorder."
15. Then, thirdly, there are issues relating to the ground drainage at the rear of No. 16 leading to No. 16A
Fourthly, there are claims relating to the gutter on the east side of the rear of Miss Carr's property. That can be seen perhaps best from photograph No. 1, where a comparatively new rear part of the building of No. 16 shows to the south of the main buildings in No. 16.
" The recorder made a visit to the sites of the two respective properties No’s 16 and 16A. He would have seen that the whole of No. 16 was a comparatively new building built at around the turn of the present century, for the most part as a lean/to structure against the west gable wall of No. 16A, not, as he wrongly claims ,"a comparatively new rear part of the building of No. 16". There are, and never have been any comparatively new rear parts to No 16. No. 16A was the original property dating back some two hundred years or so. No 16 had been built around the turn of this century and then somehow the addresses became reversed where what was formerly all known as No. 16 became No. 16A. The annex built against the west gable wall of No. 16A from that time onwards being referred to as No 16. These facts are very material and it is shown again that the recorder showed further extreme bias towards me by again making a statements very contrary to the facts shown to him in evidence."
16. There is a part of that building which looks towards the east, it is in fact the southeast corner but it is the east part of the southeast corner, and it is the gutter which runs along that length of roof which is the cause of the fourth category of disputes between the parties.
So I will deal first with the alleyway land. My understanding of the evidence is that prior to 1955 this land was used as a footpath. The evidence has referred to it being used as a public footpath, but I should say that I am told, and it appears to be common ground, that it is not registered on the footpath map as a public footpath and I have no reason to think that it is a public highway of any category.
" There were a number of reasons for the recorder to have thought that the alleyway was indeed a public footpath. Mr Robert William Green, a former owner of No. 16, swore a statutory declaration which said that he was aware that the alleyway had been used as a public footpath prior to it having been blocked off. Though that statutory declaration was placed before the recorder in quadruple, he said that he had not looked at it. In fact I saw him look at that statutory declaration of Mr Robert Willam Green of which I here refer to. Evidence which I believe will verify that he did look at it is currently being denied to me by the Newcastle County Court. The alleyway was in fact formerly a continuation of the public footpath leading from the village of Easington Lane, to the village of Hetton Downs. Immediately over the opposite side of the road to the alleyway land still remains the continuation of that public footpath marked now by local authority signs. I am told by the authority that it is almost certain that they had missed the alleyway land when they carried out a survey of public rights of way in 1955."
17. As I have indicated earlier, it is probable that it was used for obtaining access to the company land lying to the south of No. 16.
" The recorder is shown by his own statements copied herein that he had examined the titles to the respective properties. He would therefore have been aware that No. 16 and No 16 had been under a prior ownership of that "company" he refers to above, being the Lambton, Hetton & Joicey Collieries. The attached copy of a conveyance of No 16 and 16A dated April 23 1949 of which the recorder has previously referred, and did clearly examine, declares this very material fact. No's 16 and 16A had in fact been occupied by a manager of the Lambton, Hetton, & Joicey Collieries. But then the recorder has previously stated:
"The property to the west of the alleyway land is shown on that plan as Hetton Engine Works and the property to the south is shown as belonging to the Lambton, Hetton & Joicey Collieries Ltd. and it is a fair assumption from that plan that the alleyway was used at the time of the deed in some way for obtaining access to the land of that company lying to the south of No. 16"
It is inconceivable in these circumstances that the recorder had believed that the alleyway was out of bounds to the company who he says were the probable owners of it, and were, as the titles to the respective properties show, also the owners then of No's 16 and 16A. It is inconceivable that the recorder had believed that brick constructed outbuildings built to the rear of the respective properties at the turn of this century had been built on the presumption that the only way to access them was to be by means of a route through the living quarters of those properties. It is further inconceivable that the recorder could have believed that all livestock etc., taken to or from those purpose built buildings for housing pigs and poultry, that such pigs and poultry had only found their way to and from those building by route of the living quarters of the respective properties. The recorders extreme bias towards me, and his conflicting statements are again shown here by means of his own statements copied herein."
18. Whether or not the soil of it was vested in that company is not at all clear.
" Miss Carr in her evidence said that she had contacted the successors in title to the Lambton, Hetton, and Joicey Coal Company. She swore in her evidence that they told her that they had no interest in that land. Most of the land in the area was indeed owned by the former Lambton, Hetton, & Joicey Coal Company which then passed to British Coal as it later became known. The former Hetton Engine works to the west of the properties was at one time also under the ownership of the Lambton, Hetton, & Joicey Coal company along with the land lying to the south of the respective properties No 16 and 16A. That was made very clear to the recorder and he agrees that. So the situation the recorder has wrongly tried to imply here is that the alleyway was sandwiched on three sides by land and properties owned by the Lambton, Hetton, & Joicey Coal Company, and was as he has agreed by his statement copied herein, probably used for gaining access to their land lying to the south of the properties No’s 16 and 16A. Could the recorder have conceivably believed that this was the realistic situation that had existed? If, as the recorder has said: "Whether or not the soil of it was vested in that company is not at all clear." Would that company, The Lambton, Hetton, and Joicey Coal Company, have been accessing their land to the south of No 16 and 16A while being in the knowledge that they did not own the alleyway or did not have such rights of access along it? Would that same company not also have used the alleyway land to access the rear of No 16A which they then also owned? The only land which they did not own in that area at the time was immediately north of the alleyway land which was and remains as the public highway. The only conclusions that the recorder could reasonably have drawn was that the "soil" of the alleyway was vested at sometime in the ownership of the "company" referred to, and that their use of the alleyway land to access the rear of their properties No. 16 and 16A was also well established as a public right, or a private right of way whether by deed or by the process of law. This again shows that the recorder was extremely biased towards me when he made the statement of which I hereto refer."
19. The land has, as I understand it, at all material times been separated from the land to the west by a substantial brick wall and it is difficult to think, simply from looking at the ground, without any title deeds which are material, that it was part of the parcel lying immediately to the west of that wall.
" Was it not a reasonable assumption for a reasonable man to believe that as the Hetton Engine Works was part of the Lambton, Hetton, Joicey, Coal Company, that the company would have built that wall to stop access to their works by the public using the alleyway when members of the public then using it also included children who might have become endangered by the locomotives which were being built and repaired, and were being shunted around on their premises immediately west of the alleyway? It is inconceivable that the recorder would not have thought about this fact."
20. In 1955 Mr. Kellett Snr., assisted to a certain extent by his family as I understand it, caused the alleyway land to be blocked off at the north end and it has been (to the lay outside eye at any rate) blocked off ever since then.
"The recorder here agrees that enclosure of the alleyway land took place in 1955 and that the cause of that enclosure was assisted to a certain extent by my late father "and his family" That was very material, but again the recorder was later to show extreme bias towards me when he failed to give this fact the true relevance of which it merited. Enclosure of land is a clear act of possession." The fact that the alleyway land became only accessible without the use of a ladder or from a hidden gate at its south side to and from the grounds of No 16 and 16A is another very material fact which the recorder clearly failed to attach due consideration to."
21. The precise construction of the blockage has changed, but for most of the time it has been upright sleepers with some board attached on the northern or road side, which was apparent on the site inspection which I carried out yesterday, and it has generally had wire across the top of it, although, as will be apparent, that has been altered on one or two occasions
Now when that land was blocked off in 1955, Mr. and Mrs. Kellett Snr. were occupying No. 16, and, as I find it, they thereafter occupied the alleyway land together with No. 16. It was effectively used as part of the garden of No 16.
"Here the recorder has agreed that the alleyway thereafter 1955 became as he says: "effectively part of the garden of No. 16." But it has to be borne in mind that the recorder has previously wrongly stated that No. 16 and 16A were only divided on February 2 1976 and that No 16A only came into being after that date. So by means of his own statements the alleyway was also then part of No. 16A as well since he had said the properties were not divided until February 2 1976."
22. Although at the northern side there is a wall which separates it (and I suspect has done so for many years) from the access drive to No. 16 at the southern side, there is no boundary feature and I have had no description of there having existed at any time a boundary feature between the alleyway land and the southern part of the grounds of No. 16, that is, the part that lies to the south and southwest of the house.
"The recorder erred again, by his statement copied above, very considerably from the truth. In fact Miss Carr had said in her evidence that there was at one time a fence dividing the alleyway from the grounds of No 16 and 16A. I too gave evidence of that fence along with my late father. The fence was replaced in February of 1994 and the video evidence produced by me to the recorder showed that fence which subsequently Deputy District Judge Baird, who had misconducted himself both previously and at the hearing of March 18 1994 allowed Miss Carr to remove in March of 1994. That same video evidence showing that fence was produced as evidence in my application for leave to appeal the recorders judgment. It was heard before Lords Justices Auld and Pill of which they subsequently refused my application for leave to appeal the recorders judgment"
23. Mr. Kellett Snr. clearly was happy for this land to be used as part of his garden. Mr. Kellett Jnr. planted some trees, some Leylandii trees, and some brambles against the wall separating the alleyway land from the land to the west, and carried out other works on that land and planting,
"Here the recorder agrees that I had planted some leylandii trees, and some brambles and carried out other works on the alleyway land. He has previously agreed by his statements copied herein that I and my late fathers use of the alleyway commenced in 1955. Again it should be borne in mind again that the recorder had wrongly alleged that No. 16A had only came into existence on February 2 1976. It should also be borne in mind here that my parents sold their property No. 16 to the Greens on December 10 1982 of which the recorder was also well aware of. This was a period of twenty seven years of our undisturbed use of the alleyway until that sale took place. The Statute of Limitations Act and Prescription state that a period of twelve years undisturbed possession of land or property gives title to that land by those who have continued in undisturbed possession of such land or property for that period of time. The exception being that a thirty year period of undisturbed possession is required in the matter of Crown land and a period of fifty years in regard to land on foreshores.
Thus by December 10 1982 when my parents then sold No 16 to the Greens, my father and I had, by the due process of law, became the lawful owners of the alleyway land. The alleyway was enclosed both within the gardens of No 16 and 16A for the full period of that time after my father and I took down the old fence dividing the alleyway land from those gardens. Previous to that, a gate in that fence had served as our means of access onto the alleyway. No one else had access to the alleyway save tenants then occupying No 16A. Those tenants used the alleyway as access to and from the rear of their tenancy. That was the accepted practice of all previous tenants occupying No. 16A. At one time prior to their purchase of the two respective properties No 16 and 16A my parents too had been tenants in No 16A and had used the garden of No. 16 and alleyway land as a means to access the rear of No 16A.
So it is shown that by the time Miss Carr commenced her action of trespass against me in regard to the alleyway land, heard on March 18 1988 before Deputy District Judge Baird, I and my father had already became the lawful owners of the alleyway land by the due process of law. Land of which I am presently being unlawfully denied. Even if it could have been shown, and it was not and could not be shown, that both the Greens and Miss Carr had gone into possession of the alleyway land commencing right from December 10 1982, when my parents then sold No 16, even by combining the two periods of time together, they could still not establish any title by adverse possession by the time the alleyway land was re-fenced from the garden of No. 16 in February of 1994. The period of time fell short of the twelve years required to claim such title. It is therefore shown that Miss Carr did not hold title to the alleyway when she falsely claimed that she had purchased it during the conveyance of No 16 to her on August 26 1988. The fence that was erected by my father and I in February of 1994 was carried out without disturbance. Any alleged use of the alleyway land by Miss Carr then came to an end after that fencing was erected. Time running afresh against myself and my father only started following Deputy District Judge Baird having allowed Miss Carr to remove our fencing and enter upon the alleyway land. In the circumstances, I cannot accept that time has started to run afresh against the owners of the alleyway who are clearly myself and my late father. Deputy District Judge Baird had not required that Miss Carr produce any evidence whatsoever of her alleged claim to the alleyway. There was shown throughout proceedings to be no evidence whatsoever of her claim against me that I was a trespasser on that land or that she held title to it. Deputy District Judge Baird was provided with two statutory declarations on March 18 1994. One was sworn by my father in 1987 and the other sworn by me in regard to our possession of the alleyway land which confirmed that we were indeed the lawful owners of it by the due process of law. To this extent, it is again considered that Deputy District Judge Baird had again misconducted himself and/or was biased towards me because I had previously shown that he had misconducted himself while holding public office when he had unlawfully heard my appeal against the order of a District Judge as detailed earlier herein The granting of that injunction, in the circumstances shown herein, by Deputy District Judge Baird is now shown to be very material."
24. which effectively were carried out because it was treated, as I find it, as part of the garden of No. 16. In a limited way also the alleyway land was apparently used for obtaining access to the rear of No. 16 and, after the properties were separated, of No. 16A also. This is because there is not another convenient rear access which does not involve going through one of the houses.
"Again it should be borne in mind that the recorder has previously wrongly stated, despite the evidence produced to him, that No. 16A did not come into being until 2nd February 1976. In fact as is shown by the evidence produced here, No. 16A had existed as a separate property long before 1949 and that both No 16 and 16A had been under diversity of occupation dating from even before 1949. So the recorder has now agreed above that the alleyway was being used as a means to access the rear of No. 16A. There will follow herein other statements made by the recorder in regard to this use of the alleyway and rear garden of No. 16 as a means to access the rear of No 16A. This, and the facts that will follow herein are very material. Facts which the recorder is shown time and time again herein to have clearly ignored"
25. There used to be, but no longer is, a side door from No. 16 on to the alleyway land and that could be used for obtaining access just to get there, but if you were carrying heavy things or garden materials then a different route might have to be used, and likewise in relation to No. 16A.
" Again the recorder agrees above that the alleyway land was being used as a means to access the rear of No. 16A. Another very material fact that the recorder chose to ignore"
26. Mr. Kellett said that sometimes a ladder was kept for getting over the sleeper/wire fence at the north end of the alleyway land for getting things into the garden when it was not suitable to take them through the houses.
When the sale to the Greens came to take place there appears to have been no change in relation to the alleyway land.
" The recorders statement above that there appeared to have been no change in relation to the alleyway land is again very material because the sale he refers to took place on December 10 1982. By that time the recorder has agreed by his own statements copied herein, that both I and my father had became the lawful owners of the alleyway land by virtue of our twenty seven years undisturbed possession of it."
27. If Mr. and Mrs. Kellett Snr. had wished to retain that land, or indeed if Mr. Kellett Jnr. felt that he had some interest in retaining it, one might have expected that it would have been fenced off, or at least marked off in some way so that it was clear that it was not to become part of the garden.
" The recorder had placed before him four copies of the statutory declaration of Robert William Green who was co-purchaser of No. 16 on December 10 1982. Mr Green declared that he was very familiar with the area and knew the alleyway was being used by the general public prior to it having been blocked off to them in the early part of the 1950's. The recorder would or should have been aware of Section 52 of The Law of property Act 1925 which states that all conveyances of land must be by deed or by the process of law. As stated earlier herein, there was no deed, or due process of law whatsoever carried out in relation to the alleyway land during the conveyances of No. 16 either on December 10 1982 or on August 26 1988. It would be a strange situation indeed if one was allowed to simply claim ownership of adjoining land by virtue that it was not fenced from the land one is purchasing. The plans produced during a conveyance detail the extent of the land or property being purchased. If any interest is being conveyed in any land adjoining that land or property, then as Section 52 of the said Act says, that must be carried out by deed. But here we have in addition a situation where, a Mr Robert William Green, a joint purchase of No 16 with his wife, declaring that he was aware that the alleyway had been used by the public prior to it having been blocked off. Simple reasoning would suggest that knowing that fact, would have alerted him to mention it to his solicitor who acted in that conveyance of December, 10 1982? The conveyancing procedure would have highlighted to both the Greens, and Miss Carr that the alleyway was not part of the conveyance of No 16 when they purchased the property No. 16. The alleyway was still in use by myself and I used the rear garden of No. 16 as part of my access to it long after December 10 1982. It was and is not a requirement of present law that to retain title to land, that it was necessary to fence it off from other land." The recorder is again shown to have made statements that are contrary to facts shown in evidence before him and to law under which it was his duty to have upheld."
28. Mrs. Kellett in her evidence said that she told the Greens that this land did not pass with their house. That indeed they would have discovered simply through the ordinary conveyancing process. They would know at any rate that they were not getting a paper title to it.
"The recorder does above agree with my statements in relation to the conveyancing procedure. He has however again failed to take into account Section 52 of The Law of property Act 1925. All conveyances of land and property or interests therein must be by deed. As I have stated and the recorder was aware of it, there were no deeds in relation to the alleyway land during the two conveyances mentioned herein. If as is agreed they were aware that they were not "getting paper title to it" then the only other claim could be one of an interest in the land. This too was absent in both conveyances as required by Section 52 of the said Act. The recorder did not give these facts due consideration"
29. The conveyance to the Greens did not reserve any right of access across the southern part of the garden of No. 16 for the benefit of No. 16A, so that after that sale it was not possible for Mr. Kellett Jnr. to use the alleyway land for the purpose of obtaining access to his garden.
" The recorders statement copied above is in total a very serious contradiction of Section 62 of The Law of Property Act 1925 of which he had a duty to have upheld. I have detailed earlier herein the relevant part of that Act. As a judge with alleged Chancery experience, the recorder would have been well aware of Section 62 of the said Act. I can only presume that he had made his above statement in defiance of that Act rather than by reason of his lack of knowledge of it. He is therefore shown again to have been heavily biased towards me bordering on making the statement copied above which is very incompatible with law with which he would have most certainly have been very familiar."
30. He says nevertheless that he continued to enter upon the alleyway land and to carry out acts there, amongst which were the picking of blackberries and elderberries and the taking of what he called "cuttings" from the Leylandii trees, which, as I have said, were planted earlier.
" The recorder had earlier agreed herein that I had planted the trees he mentions and the brambles while my parents resided at and owned No 16. Was it not therefore reasonable that I should continue to use the alleyway for the purposes the recorder mentions above? Another fact that has to be considered is, how can one possess land that is occupied by trees that were planted by another ? Even the "paper title" owner of land with forestry growing on it is often unable to access such land until tree felling operations take place on it. Miss Carr could certainly not have occupied land on which trees planted by me were growing on it. The planting of those trees was a very serious act of ownership of the land on which they were planted. I would suggest that it was an act overriding all others in relation to possession of the alleyway land. Nonetheless, the recorder had agreed that I planted those trees and that too was very material. I would again say that the recorder showed extreme bias towards me when he failed to give these facts his due consideration."
31. The Greens for various reasons, connected I think not a little with disputes which I need not recite between themselves and Mr. Kellett, decided that they would like to clarify the position relating to the alleyway land, because they registered a caution at the Durham District Land Registry in relation to it.
"The recorder was shown evidence that Miss Carr and a former partner of hers, Mr T. McCabe, had taken steps which led no other than to believe that they were to purchase No 16 from the Greens by as early as February 8 1988 when Miss Carr then became the applicant to the local authority for drainage proposals to No 16. She was invoiced by the local authority in March of 1988 for their drainage work to No. 16 which they had carried out in February of 1988. They purchased No. 16 on August, 26 1988.
Then at this period of time came a string of statutory declarations sworn in relation to the alleyway land. The first was sworn by a Mr Frederick Seadon on February 18 1988, who confirmed the alleyway was blocked off by him in the early part of the 1950's. The second was sworn by Robert William Green on February 22 1988, who was at the time joint owner of No. 16. The third was sworn by solicitor Mr Paul Graney. Mr Graney, then acting for the Greens, was instrument in the preparation of all three of those statutory declarations. Mr Graney's own statutory declaration sworn April 26 1988 contained perjury. Solicitor Mr Paul Graney had sworn the following statement regarding the alleyway land in his statutory declaration that was used to lodge a caution at HM Durham District Land Registry in reference to the Greens: "…since the 10th December 1982 no one has questioned their occupation thereof." A copy of the affidavit I here refer to is attached hereto marked with "K10".
My father had retained letters received from Mr Graney dated February 12 and 16 1988 (copies attached to Mr Graney’s affidavit attached hereto) in regard to the dispute over the ownership of the alleyway land in which Mr Graney, as previously mentioned herein, acted for the Greens in the dispute over that land. Documents proved Mr Graney had sworn perjury when he falsely stated in his statutory declaration of April 26 1988 that no one had questioned the Green’s alleged occupation of the alleyway land. I was advised by the then Solicitors Complaints Bureau to approach police on the matter of Mr Graney's perjury. I and my wife attended a meeting with Detective Constable Storey and a Detective Sergeant McGann at Houghton-le-Spring Police Station. There we were told by them that perjury was not a police matter. Sergeant McGann suggested that we take the evidence of Mr Graney's perjury and confront him with it. This we did and Mr Graney then agreed to swear an affidavit retracting that very material untrue statement that he had sworn in his statutory declaration on April 26 1988. Mr Graney's affidavit which he swore on March 9 1995 is attached hereto. There were four copies of Mr Graney's affidavit of which I refer placed before the recorder. The affidavit contains a copy of the statutory declaration in which Mr Graney had sworn that false information. It also contains copies of the two letters which my father had retained showing the use of that perjury by Mr Graney. The recorder failed entirely to take this very material evidence into consideration. He is therefore again showed to have been extremely biased towards me, by reason he had openly failed to do his duty by failing to act on Mr Graney’s perjury. District Judge Scott-Phillips sitting at the Durham County Court also had this same evidence placed before him and he too failed to act on it. He also failed in his duty to act when it was shown that Miss Carr had used perjury when evidence was placed on the court files showing the evidence of that perjury. It can only be considered that District Judge Scott-Phillips was also biased towards me by having failed in his duty when evidence of that perjury was also submitted before him."
32. That caution of course was supported by the usual statutory declarations, but I have not looked at those and do not take them into account,
" The recorder had the statutory declarations of which I refer, placed before him in quadruple. I saw the recorder with the statutory declaration of Robert William Green in his hand and he was reading it. That was one of the statutory declarations used to lodge the caution at HM Land Registry of which the recorder refers. But the recorder goes even further. He says the caution was supported by the "usual statutory declarations". How can any man make such a statement as this if as he claims he had not looked at those statutory declarations? Effectively, the recorder had bypassed the fact that he was duty bound to act on the perjury that had been used by solicitor Paul Graney and indeed Miss Carr. If he had indeed not looked at those statutory declarations, and that used by Mr Graney's was very material, he must therefore have failed in his duty to consider the full extent of the evidence which was placed before him. Again the recorder would appear to have shown further very extreme bias towards me in this matter by failing to carry out the duty expected and required of him to act when evidence of perjury was shown to him."
33. but I do take into account the fact that the Greens felt that they did not want somebody else, without them having the chance to have a say to the Land Registry or if necessary a court, to claim title to the alleyway land. That is the purpose of registering a caution.
"The recorder failed to state the very material fact that the Greens were not only in the process of selling their property No. 16 to Miss Carr and her former partner Mr McCabe at the time those statutory declarations were being sworn, but that the Greens indeed did not lay claim to the alleyway land. Nor after August 26 1988 when they then sold No. 16 to Miss Carr and her former partner did they ever return to the alleyway land. That was made abundantly clear to the recorder. It is established by the statements made by the recorder copied herein, that not only was the alleyway not included in the August 26 1988 conveyance of No. 16, but in addition there was no deed whatsoever in the transference of any alleged interest the Greens may have claimed they had in the alleyway. The swearing of those statutory declarations are shown by facts not to have been for the benefit of the Greens, but for the benefit of Miss Carr alone. But Miss Carr said in her evidence that she had not came into possession of the three statutory declarations referred to here, at the time of her purchase of No. 16 on August 26 1988. It was made clear therefore that at that time there had been no intent by the Greens to convey any alleged interest they may have had in the alleyway land to Miss Carr when they sold No. 16 to her.
The Greens never returned to the alleyway land once they sold No. 16 to Miss Carr, so there must be a question arising over the reason and real purpose as to why those statutory declarations, along with the cost of them, had been sworn in the first instance. Greens most certainly are shown herein not to have gained any personal advantage by the swearing of those statutory declarations. Would they really have gone to the cost of the preparation and swearing of those statutory declarations when they were not only then in the process of selling No. 16 to Miss Carr, but were not to benefit in any way whatsoever by going to that trouble and expense in regard to those statutory declarations? In February of 1988 Miss Carr had gone to the trouble and expense of having the frontage of No. 16 installed onto the public sewers despite the fact that she was not to purchase that property until August 26 1988. In fact evidence shows that it was not at all clear that the property No. 16 could be placed onto mains drainage. The local authority had confirmed that it was only possible by carrying out excavations on the highway. Miss Carr was clearly the one at risk for the financial cost of that work whether or not such connection of No. 16 to the public sewer system was going to be possible. The recorder could only have also arrived at this same conclusion which was again very material. I think it is reasonable in these circumstances to presume that Miss Carr was instrument not only in the requirement for those statutory declarations, but would also have borne the cost of them in addition to the work the local authority carried out which I was told by the authority was in excess of two thousand pounds. These facts too were made very clear to the recorder. Again by reason of the latter facts, the recorder is again shown to have been extremely biased towards me by failing to give all due consideration to these very material facts."
34. At about the same time Mr. Kellett Snr. made an application to the Land Registry to be registered with good possessory title to the land. This, for various reasons which I need not go into, was not accepted by the Registry, but certainly one reason was that the applicant for registration was not in possession of the land, and that would have been no surprise.
"The recorder again erred considerably from the truth in his statement copied above, because my father, Mr Kellett Snr. had made his application to the Durham District Land Registry to be registered proprietor of the alleyway land in September of 1987, not "at about the same time" as the recorder has alleged. The recorder would have been fully aware that HM Land Registry will not register land so long as there is any dispute whatsoever of ownership surrounding it. The Greens are shown here not to have been the owners of the alleyway land any more than Miss Carr was. The circumstances of the swearing of the statutory declarations in early 1988 cannot be regarded as being anything other than a malicious act to defeat the registration by my father of the alleyway land, or for some other preconceived purpose. The recorder must again in these circumstances also have been aware of those facts. He is shown again to have been extremely biased towards me when he failed to give these very material facts all due consideration."
35. Mr. Kellett in his evidence has said that he had an agreement with his father that if his father obtained the registration of possessory title then the land would be passed on to him, Mr. Kellett the son.
" The recorder was shown evidence that indicated I had been attacked by two members of the Green family and police had became involved. The evidence that I submitted included the facts that my wife and I had been battered by Mr Robert William Green and part of our property had been damaged by him. A son of the Greens named Martin, had threatened that I, my wife, and two daughters were to be "stuck with steel". He repeated that threat to a police officer and no action whatsoever was taken by police in these matters. Mr Green had agreed to police that he had carried out an assault on my wife and I and that he had pulled down fencing belonging to us. The reason why my father went ahead with the application to register the alleyway land in his name was an attempt to protect not only myself, but my wife and family. He and I feared that had I been included on the application to register at HM Land Registry the consequences of that would probably have been even more serious for us. These facts were made very clear by evidence which was placed before the recorder. It is again shown that the recorder was biased against me by failing to give due consideration to these facts."
36. Then the sale took place to Miss Carr and her partner in 1988. unfortunately the conveyancing file, particularly the document which would have been particularly enlightening, namely the enquiries before contract, is not available and cannot be found (it has been destroyed by termites I think) and so the court is not assisted by seeing that.
" The recorder again has again erred again considerably from the truth by his statement copied above. At no time whatsoever was the issue of the above mentioned enquiries before contract raised in any way throughout all of those proceedings. This fact is very material indeed and by erring from the truth the recorder bypassed a very important consideration in regard to this. Those enquiries before contract had not been lost and will show that Miss Carr was in full knowledge of all of the issues concerning No. 16 before she purchased it. Those issues would of course have included matters related to the alleyway land dispute and the drainage problems coming from No 16 onto our property No. 16A. He would almost certainly have also been aware that copies of those enquiries before contract would have been retained by both respective solicitors involved in the sale of No 16 on August, 26 1988. The recorder again shows that he was indeed extremely biased towards me by making the very untrue statement of which I refer to here. The fact that the enquiries before contract referred to by the recorder had not gone missing as was falsely alleged by the recorder, it is further proof of the recorders clear determination that I was to be subject of his injustice."
37. But I am satisfied from the evidence that when that purchase took place in 1988 the alleyway land was occupied as it always had been since 1955 and possessed as part, together with the garden, of No. 16.
" The recorder here again verifies that the alleyway was under adverse occupation since 1955. He has agreed herein that the original adverse occupation of the alleyway started with my late father and I in 1955. Up until the time that my parents sold No 16 to the Greens on December 10 1982 was a period of some twenty seven years. We had by that time, by the due process of law became the lawful owners of the alleyway land when the period of twelve years required to obtain title to the land had by that time been well and truly been exceeded by us. The recorder fails to concede the fact that unfenced land adjoining other land does not mean that those two areas of land become as one and that one part can be then "possessed" by another part. For a start the titles are derived differently which is why they cannot be regarded as one area of land. The recorder has also again failed to give due consideration to the fact that regardless of whether or not the two areas of land were fenced from one another, there had been no deeds whatsoever carried out in regard to the requirements of Section 52 of The Law of Property Act 1925. He also fails to recognise that my father and I had already obtained title to the alleyway by adverse possession of it long before the purchase of No. 16 in 1982 and then in 1988. Again, up until the time the alleyway was re-fenced by my father and I in February 1988 the requisite period of twelve years to take title from my father and I could not have been met either by any alleged combined adverse possession of the alleyway by the Greens and/or Miss Carr. This was a very material fact clearly ignored here again by the recorder. He shows again that he was extremely biased towards me by failing to give these very material facts full due consideration."
38. There was no feature in between it and No. 16, there was no easy way in which anybody else could obtain access to it, and subsequently Miss Carr carried out acts on it of cutting grass, tidying up and some vegetable planting, which were carried out, am satisfied, before these proceedings had either been started or immediately contemplated, so they were not hasty acts carried out sort of in the face of court proceedings.
" The recorder again errs very considerably from the truth by his statement copied above. He was shown in evidence submitted to him video film taken of the rear area of No. 16 and the alleyway land at the time the alleyway was fenced off from the garden of No. 16 in February of 1988. That was very shortly before Miss Carr commenced proceedings against me for alleged trespass on the alleyway land by falsely claiming that she held title to it. The film shows beyond all reasonable doubt that Miss Carr had not been carrying out those acts the recorder details above. The video film evidence also shows that the recorder had again not told the truth about this matter. The same video film evidence also shows a boundary fence which the recorder had wrongly stated he had never seen any evidence or description of , or as having existed at any time. Miss Carr had never at any time prior to the alleyway being fenced from the garden of No. 16 planted anything whatsoever on the alleyway land. The video film evidence shown to the recorder proves that beyond all reasonable doubt. The video film taken immediately before Miss Carr commenced her proceedings against me shows not only had the alleyway land not been under cultivation by Miss Carr as the recorder has falsely alleged, but that Miss Carr's own garden was mostly derelict, uncultivated, and littered with piles of rubbish and the remnants of old fires of which she had used to burn her rubbish. In one of her affidavits, Miss Carr swore, "I have always taken a keen interest in my garden." which, if taken at normal face value, meant that Miss Carr had used further perjury in that matter as well. In this instance not only did the recorder make a very serious allegation totally detached from the indisputable evidence shown to him, but he is shown to have been party to perjury and fraud that was used in this matter by Miss Carr. The video film evidence referred to here is available to all those whom it may concern. Perjury is a criminal act. The Perjury Act 1911 states:
"If any person lawfully sworn as a witness in a judicial proceeding wilfully makes a statement , which he knows to be false or does not believe to be true, he shall be guilty of perjury, and shall on conviction thereof be liable to imprisonment for a term not exceeding seven years or to a fine or to both. Every person who aids, abets, counsels, or procures another person to commit an offence against this Act shall be liable to be proceeded against as if he were a principal offender." The video film evidence shows that the recorder did aid the perjury of Miss Carr in this matter and added to it by making the false statement copied above. This is again further proof of the recorders clear determination that I was not to receive justice."
39. I am satisfied from the evidence that she carried them out because she treated that land as part of her garden, even though she did not have a paper title to it.
" The evidence to show that the recorder does not tell the truth in his statement copied above is contained on the video film evidence that was shown to him. A copy of the video film is available to all those to whom it may concern. The video film of which I refer was also placed before Lords Justices Auld and Pill in my application for leave to appeal the recorders judgment, of which they subsequently refused"
40. Mr. Kellett says that he continued to do things on the land, the taking of cuttings and the picking of the two fruits which I have mentioned, but there is no evidence that Miss Carr knew about these acts
"The recorder would most certainly have known that Miss Carr was not likely to admit that she had seen me doing the above things on land of which I and my late father had lawful title by virtue of the due process of law. In fact Miss Carr did agree in her evidence that I had been entering upon the alleyway land but did not say what I had been carrying out on it. There was no requirement anyway for a party such as Miss Carr to have seen such acts as I had carried out on my land. It is shown herein that she had no title to the alleyway, but in fact has now unlawfully been allowed to register it in her name. The lawful owners of land, i.e. the alleyway in this instance, the lawful owners in this case being my late father and myself, did not need to openly display any acts we carried out on that land. The recorder was most certainly aware that there was no legal requirement for Miss Carr to have known about such acts carried out on that alleyway land. Miss Carr certainly knew we had fenced off the alleyway from her garden, and that was our lawful right. Only then did she falsely allege that she held title to it and that I was therefore a trespasser on that land. The recorder again makes a statement above which has little material relevance and fails to give all due relevance to the very material fact that long before December 10 1982, when my parents then sold No. 16 to the Greens, we, my late father and I, had already obtained lawful title to the alleyway land by the due process of law. By failing to act within the boundaries of law the recorder again shows that he was extremely biased towards me for whatever reason there was which caused him to do that."
41. and I find that Mr. Kellett did not do anything at this stage which enabled him, or for the removal of doubt his father, to contend that they were in possession of this land.
"The acts of planting trees and brambles etc. as has been herein agreed by the recorder were without question acts of possession. The further acts of my picking of fruit and the taking of "cuttings" from those things which I had planted upon the alleyway were further acts of possession. I was not a trespasser on that land at the time I carried out those acts. The period of my and my late fathers undisturbed usage of the alleyway had well exceeded the twelve year period required under the Limitation Act. We were and remain the lawful owners of the alleyway land. It is shown that the recorder denied my and my late fathers rights under the law and also made statements copied herein which were contradictions shown to have been in defiance of law. The recorder again shows his extreme bias towards me and against the law, in the statements which he makes and are copied above, which he was duty bound to uphold."
42. I should mention in relation to this land that there is on the west side of the house of No. 16 a rain barrel which sits on it which takes the water or part of it, flowing from the gutters on the southern part of No. 16. That I think is not conclusive evidence. That, I think, is a right which could probably exist as an easement.
" The recorder errs considerably again from the truth by his statement copied above. A surveyors report placed before the recorder confirmed that even after heavy rain, the "rain barrel" remained empty of water. Miss Carr alleged in her evidence that was because the barrel had a hole in it. The recorders statement above cannot under any circumstances be accepted as valid or true. The "rain barrel" had only just been placed there around early 1988 and it could not pass as an easement. The guttering which the recorder mentions above had been sloped away from that "rain barrel". The video film evidence shown to the recorder proved that beyond all reasonable doubt. There was no question whatsoever that the "rain barrel" now exists as an easement. A copy of the video film produced as evidence before the recorder, showing beyond all reasonable doubt that he was well aware that the guttering he mentions above, was sloped so that all water entering it fell into our property No. 16A not the property No. 16 owned by Miss Carr or that "rain barrel" referred to by the recorder, is available to all those to whom it may concern. The recorder is shown again to have deviated considerably from the truth and of law. This is another example of the extreme bias that he most certainly had towards me."
43. But taken in conjunction with the rest of the evidence in relation to possession it does, I think, assist Miss Carr's case.
"For the reasons I have stated in two paragraphs above, Miss Carr's case was not assisted other than by the recorder who had failed to mention the material facts contained in the paragraph I mention above. The recorder again shows his extreme bias towards me in that he saw very clear material evidence of which he failed to give all due consideration. The recorder again shows by means of his own statement, and the evidence that was shown to him by way of video film, that it is very clear that he was indeed extremely biased towards me."
44. I find therefore that Miss Carr has been in possession, either alone or jointly, since the time of the 1988 conveyance, that is de facto possession on the ground.
" The recorder has been shown herein not only to have been in contempt of Supreme Court Rules, but has denied the very fact that my late father and I had gained lawful title to the alleyway land. His judgment in this matter has been based upon contradictions of law, of fact, and lies that he had used to defeat my defence case. That he was extremely biased against me there is no question given the weight of available evidence which shows that. I and my late father still hold lawful title to the alleyway land regardless of the recorders judgment. The judgment of the recorder, as is herein copied, based upon the facts which I give herein will never under any circumstances be accepted by me. No one should have ever be subject of a judgment such as the one delivered by this recorder. That tyranny has been at work here there is no question. To say that the recorder acted within the boundaries of his judicial oath would only be a further lie of which I will not be party anymore than I will concede a lie as being the truth."
45. Well the question arises then as to whether any member of the Kellett family has a better title to the land, or a title to the land that effectively is material and which would entitle them to claim that Miss Carr should be dispossessed in their favour.
" The recorder has already agreed by his statements copied herein that any alleged possession of the alleyway by Miss Carr was not in any event an "exclusive possession" as is an accepted principle of attempting to gain title to land by adverse possession of it. This is a further very material fact. The recorder has of course omitted to admit that title to the alleyway land was already secured by both my late father and I long before the false claim made by Miss Carr that she held title to the alleyway and that I was a trespasser on that land. That was very material.
Also placed before the recorder as evidence was a letter, judges bundle reference (5A) dated February 6 1995, sent to me from solicitor Alison Stott. It reads, "Turning to the ownership of the alleyway to the side of the property, as far as we can see it was a mistake by the conveyancer when your father sold to Mr and Mrs Green in not conveying that part of the land in his ownership at the time." Here solicitor Stott of course concedes that she accepted that my father was the owner of the alleyway land. The recorder had he looked at that evidence, which his duty required of him, would and should have seen that. But then there is the problem which is that although solicitor Stott had attended the Durham County Court with Miss Carr, and appeared to be acting as her advocate, and in fact the court had given solicitor Alison Stott work to carry out, on January 17 1996 she declared to the Newcastle County Court that up until that time she had not been acting for Miss Carr but had only been assisting her. In fact available evidence shows that when solicitor Stott was given that work to carry out from the court, she then secretly passed it on for Miss Carr to carry out, which in the circumstances of her January 17 1996 declaration to the Newcastle County Court, under the arrangement with and by Miss Carr she would be expected to have done that in the circumstances now shown."
46. I have already mentioned the possibility that this land might belong to the (I think now clearly defunct) colliery company which owned the land to the south. Mr. Merritt has mentioned the possibility that this land might have vested in 1948 in the National Coal Board and subsequently passed down under the chain of changes of name and description which that organisation has taken on.
"Miss Carr had said in her evidence that she had contacted Smiths Gore Estates who had taken over the former British Coal Estates. British Coal was formerly named, The National Coal Board. She said that they declared no interest in the alleyway land. The recorder is again shown by his own statement copied above to have omitted to give due consideration to very material evidence submitted to him, even when that evidence came from Miss Carr, when it was shown it was not in her best interests for her to have submitted that evidence. By his act of failing to give due consideration to the evidence placed before him in this matter, the recorder again shows that he was extremely biased towards me."
47. But it is of course possible that the company might have been wound up and if the existence of the land was not known to the liquidator, the land could have become vested as bona vacantia under the Companies Act in the Crown and that is a material matter, because that would require a 30 year period of adverse possession.
" The recorder here again demonstrates his ability to move from hard facts of evidence to those which have little relevance to the truth. The only material question at this stage was who had title to the alleyway land . The recorder agrees that that I and my late father had occupied the alleyway land and had exclusive possession of it for a period of not less than twenty seven years. In fact our period of possession extended well beyond that twenty seven years. The recorder would also have been aware that within the period of the thirty years, if the Crown could show that it held title to the alleyway land, then it had the lawful right to show such proof of title and upon its production, then apply to the Land Registry for rectification of the register. The Crown have made no claim in regard to the alleyway land. Had they done so, then the recorders statement copied above would have had some validity. Without such claim, his statement has no validity whatsoever. Under the judgment given here by the recorder, if it should be accepted as valid, then everyone who has adversely been in exclusive possession of land for twelve years or more will not be able to register that land in their name until the period of thirty years has passed, Just so as to be sure that the Crown does not lay claim to it. Indeed to carry the recorders judgment and reasoning to the full extent, the fifty year period might even apply just in case the land in question might be deemed as being part of the foreshore."
48. Well no step has been taken to make enquiries of the National Coal Board or the Treasury Solicitor on behalf of the Crown in relation to this matter. I hasten to say I do not say that by way of a criticism, but if there was any expectation that I might make a declaratory judgment in relation to the ownership of this land, I would have expected at least that enquiries should be made of other obvious persons who might wish to claim title to it.
"The recorders statement copied above is a further example of what he would, I think, have had me believe was his better knowledge of the law in regard to this matter, or indeed the requirements to access it. A person in adverse possession of land is not expected in any way whatsoever to attempt to try to find out the identity of anyone who may wish to claim title to it. The recorder would have been well aware of that when he made his statement copied above. His above statement is a further example of the way in which he is shown to have deviated from the truth and facts of both law and the requirements under it. He again shows extreme bias towards me by making the statement above which has no relevance whatsoever to the issues which he was duty bound to rule upon the facts shown to him."
49. On the finding relating to possession which I have made, on the footing that the Greens obtained possession when they purchased in 1982, the Kellett family, if I can call them that, could not establish a 30 year period of adverse possession, although they might have established a shorter, in particular a twelve year period.
"The recorder has already agreed by his statements copied herein that in fact the "Kellett family" had established a twelve year period of adverse possession of the alleyway land. That was in fact all that was required by virtue of the due process of law for the "Kellett family" to claim title to that land. The thirty year period only had any relevance if the land was owned by the Crown. The recorder was of course aware that even the thirty year period of adverse possession had been exceeded by the time the matter was heard before him, so even that the thirty year period had absolutely no relevance whatsoever. By denying my, and my late fathers rights obtained by the due process of law, the recorder has abused his power as a judge. That is not his right. Any abuse of power by a judge makes it more than a reasonable assumption that his judgment must of necessity be declared void. Here it is again shown by use of his own words, that the recorder had abused his power and acted outside of the law. He is also shown herein to have acted outside of the principles which allow access to law. There is not now so much a question of whether the recorder was biased towards me, but what his reasons were for it."
50. As far as Miss Carr is concerned, she has no claim to a declaration that she is entitled to a possessory title, although she does claim that Mr. Kellett is not so entitled.
"The recorder of course was aware that Miss Carr had no title to the alleyway land. Despite his ruling copied above, Miss Carr has now been allowed to register the alleyway land in her name. This registration is a further unlawful act carried out by those who are duty bound to uphold the law. I can say that I do not and will not accept this situation. I am in no doubt whatsoever that the law, if not those judges I mention herein, is on my side. In this knowledge, I am entitled to defend myself and my possessions from those who operate outside of the law. This I shall do at whatever the cost may be to me. The recorder has shown by the words in his judgment copied here, that the lawful owners of the alleyway are my late father and I. No twisting of words, or defiance of law will change that. The recorders extreme bias is again demonstrated by the fact that without doubt, by the use of his own words, shown to have skirted around not only the truth, but also around the law which he was duty bound to uphold."
51. It is possible that Mr. Kellett Snr., the more likely probability than other members of the family, Mr. Kellett Snr. alone, might have become entitled to a possessory title based upon a twelve year period, but if it was the 30 year period which was material then he would not obtain such title.
"The recorder again contradicts facts, by his statement copied, above of which he has already agreed. He had agreed by his statements copied herein that the alleyway was in the exclusive possession of the "Kellett family" from 1955 to at least December 10 1982 when my parents then sold No 16 to the Greens. The recorders agreement copied herein was the only matter of any relevance for the due process of law to proceed. He has agreed by his statements copied herein that we, my late father and I were the lawful owners of the alleyway land with title holding good against all. The exception being any claim to title of that land by the Crown. There was no such claim by the Crown. Therefore the title which my late father and I hold to the alleyway holds good against all. It is shown herein that our lawful title and my right to return back to my lawful occupation of the alleyway land presently being denied, has been brought about by an unlawful act of depriving me and my late father of our rights under the law. The recorders extreme bias towards me, as shown by the use of his own words copied herein, has extended to not just to bias, but to acts which came outside of law of which we are all held responsible and duty bound to uphold."
52. I find therefore that it would not be proper for me to deal with any question as to whether or not any party has obtained the possessory title in these proceedings
" The recorder again contradicts his own words copied herein. In his previous statement copied herein he has already ruled: "As far as Miss Carr is concerned, she has no claim to a declaration that she is entitled to a possessory title. I believe the age old saying, "Oh what a tangled web we weave when we practice to deceive", is appropriate here."
53. and therefore the right solution is for me to look and see who at the material times has been in defacto possession of the land.
"The recorder had failed completely to take into consideration the fact that when my father and I fenced our land, the alleyway land, from the garden of No. 16 in mid February of 1988, we had carried out our lawful right. He has failed to mention the fact that it was Deputy District Judge Baird, who had at the outset of proceedings allowed Miss Carr to remove our fence, go into occupation of our land, and then granted an interim injunction on March 18 1988 depriving me of my lawful right to enter back onto our land. Deputy District Judge Baird is shown by evidence herein to have unlawfully conducted the hearing of my appeal in 1992 in the matter of damage caused to my property by a vehicle collision with it. There can be no question whatsoever that at the time he presided over that appeal against the judgment of a District Judge, that he did not know that he was carrying out an unlawful act. At the time he heard Miss Carr's application for my alleged trespass on the alleyway land, he most certainly knew who I was, though I had not recognised him at that time, and the fact it was I who had already some months previous had highlighted the fact that he had misconducted himself while in public office in the matter of that appeal I have referred to herein. He had failed to have Miss Carr produce to him any evidence of her alleged title to the alleyway. That surely was a minimum requirement that should have been expected of him before he made such ruling? He was handed two statutory declarations that had been sworn by my father and I setting out in them our period of exclusive possession to the alleyway land. He should have been aware that those statutory declarations were the basis of our lawful right to the land. Instead, without the production of any such similar evidence by Miss Carr, he there and then granted an injunction that prevent our lawful access to land which the recorder has agreed by his words copied herein, that we, my late father and I, held lawful title to the alleyway land by the due process of law.
The recorder says above that he must decide who was in "defacto" possession of the alleyway land. Once he had agreed that my father and I had been in exclusive possession of the alleyway land in excess of the twelve year Limitation Act period, which it is shown herein that he did, then all else became irrelevant unless Miss Carr was able to show that she and/or others had been able to establish that she/they had been possession of the alleyway land adverse to that of my late father and I, for a period which exceeded twelve years, then Miss Carr had no case. There was no question arising whatsoever that any alleged adverse possession by Miss Carr and/or the Greens either singly or jointly, had exceeded the twelve year Limitation Act period. All that took place after the establishment of these facts was an abuse of court time by those who should have known better."
54. I find that Miss Carr at the material times was in such defacto possession and therefore that any wrongful intrusion onto the land may constitute a trespass.
" I repeat here again, the recorder had agreed that my late father and I had been in exclusive possession of the alleyway for at least twenty seven years. That gave us lawful title to that land. He then deviated from law by seemingly to imply that it was also necessary for my late father and I to show that we had to defeat the thirty year Limitation Act period required in regard to land under Crown ownership. I have already detailed the fact that the recorder was well in breach of law in this matter. The twelve year Limitation Act period was the only material period which had to be relied upon unless the Crown had laid claim to the alleyway land which in fact they had not. Neither I or my father could be declared as being in trespass on land to which it is shown here by the recorders own words that we held lawful title to. By the act of Deputy District Judge Baird, who had shortly before very seriously misconducted himself in public office, had granted an injunction on March 18 1994 also under unlawful circumstances which deprived both myself and my father of our lawful right to occupy land of which we have lawful title. Of course the recorder mentions nothing whatsoever of these very material facts and by failing to do so, again demonstrates that he was extremely biased towards me."
55. Well Miss Carr had twice I think placed wire at the north end of the disputed land and perhaps only one of those is material to her possession, because the second time was in relation to Mr. Kellett's entry upon the land.
"Again, whether or not Miss Carr had placed even a dozen wires at the north end of the alleyway is not material. All that was material was that my late father and I had well exceeded the twelve year Limitation Act period in our exclusive possession of the alleyway. The recorder has agreed by his words herein that we had done that. He was aware that Miss Carr could not establish a better title to the land. That was very material. Once my father and I fenced our land, the alleyway land, from the garden of No. 16, thereby stopping any alleged entry onto it by Miss Carr, which we did, then from that time onwards, we were without question in lawful occupation of our land. It was then up to Miss Carr to try to prove that she had better title to that land than that of my late father and I. She could not do that. Our lawful possession of our land was only stopped by the act of Deputy District Judge Baird, who had already demonstrated with evidence contained herein, his ability to act outside of law. At the time he did that, he could none other than have known that he was acting outside of the law. There are others at the Durham County Court also implicated in that matter."
56. Mr. Kellett, it is clear from the evidence, did wrongfully enter upon the land and put his own wire, or at any rate he put wire of his own volition on the northern boundary of the alleyway land,
" At this point in the recorders judgement, it is shown by means of the recorders own words that both myself and my late father had lawful title to the alleyway land at the time we entered upon it. Though once the recorder had agreed that my late father and I had exceeded the twelve year Limitation Act period of exclusive possession of the alleyway, all else is considered as being immaterial. In fact I did not put up a wire on the northern boundary of the alleyway land. I, assisted and by agreement with my late father put up a wire fence on the south east side of the alleyway land in mid February 1988 re-fencing it from the garden of No. 16. That fence was video filmed along with all of the surrounding area at that same time. The recorder has alleged, and his words are copied herein, that he had no knowledge of any boundary fence existing at any time at that place. He was shown that video film which showed the fence which had replaced an earlier one. That video film remains available to all those to whom it may concern."
57. and I find that that was a wrongful act and that the trespass claim made in Miss Carr's claim relating to this is made out. There is already an interlocutory injunction dating from 1994 restraining further wrongful entry on to this land
" The interlocutory injunction the recorder refers to above was of course granted under the circumstances described herein, in improper circumstances by Deputy District Judge Baird. He is shown by evidence herein, that he had previously acted outside of the law in matters concerning me, and was certainly in the full knowledge that what he was doing was unlawful at that time he carried out his unlawful act of hearing my appeal against the order of a District Judge."
58. and, in a form which I will discuss with Counsel and Mr.Kellett at the end of the judgment, I think it is right that that injunction should now become a permanent one.
" The recorder is of course shown again by the use of his own words, that by granting an injunction against me on the alleyway land he was then acting in defiance of law. He has agreed by his words copied herein, that the alleyway was in the exclusive possession of myself and my late father for a period well in excess of the twelve year Limitation Act period. Thereafter agreeing that, the only material issue was whether or not Miss Carr could lay claim to a better title than ours. After twelve years of our adverse possession of the alleyway land, even had Miss Carr had paper title to that land, which of course she did not, then my late father and I would have defeated that title as well. I find it inconceivable that the recorder was not aware of that very material fact. Once the recorder had agreed our lawful title to the alleyway land, which he did, then the granting of a permanent injunction preventing me from returning back onto land of which I and my late father hold lawful title, the recorders act of granting the permanent injunction against me was and remains against the law."
59. For the removal of doubt, I should perhaps say that as regards the law relating to trespass I was referred by Mr. Merritt to page 69 of the 9th edition of Street on Torts and the position is similarly set out in the 17th edition of Clerk and Lindsell at paragraph 1708, which makes it clear that it is the person who is in possession who can sue for trespass and that that possession is effectively de facto possession with which the court is concerned.
" The courts main concern should justly have been as to whom had better title to the alleyway land. That was very material. The recorder established that it was my father and I who had the better and indeed lawful title to the alleyway. Instead the recorder is shown herein to have used every conceivable statement in an apparent attempt to avoid that very material fact. The recorders statement copied above has no material value whatsoever once he had conceded and agreed the lawful title of the land to my late father and I. My father and I were in lawful possession of the land when we re-fenced it from the garden of No. 16. In mid February 1988. We were only deprived of our lawful occupation and possession of the alleyway land by the order of District Judge Baird who already as previously stated herein, had already previously demonstrated his ability to blatantly act outside of the law at the Durham County Court."
60. I can pass on now to the issue relating to the bathroom damage. If one looks at photograph No. 4, again one can see the bathroom and the damage of which Mr. Kellett is complaining from his side is the damage which shows in photographs Nos. 6 and 7. But there is also damage to the parapet wall of the bathroom, which shows in photograph No. 5, it is the top-part of the east wall of the bathroom.
" The title to No. 16A contains a declaration that all walls and fences common to No 16 and No 16A are party walls and fences. That declaration was included in the title of No. 16A on February 2 1976. Solicitor Alison Stott had conceded that fact by letter to me that was dated February 6 1995. She wrote in it, "It is accepted that the walls between the two properties are party walls." But of course solicitor Stott declared to the Newcastle County Court on January 17 1996 that up until that time she had not been acting for Miss Carr but had only been assisting her. That court was presided over by the recorder. That matter has been detailed herein so I will not expand on it again."
61. Now what happened was that Miss Carr decided that she needed to have her bathroom re-roofed and further works which are not material. But for the purposes of this dispute she decided to have her bathroom re-roofed, the slates were to be taken off and red tiles were to be put on and they would match the rest of the roofing on the whole range of buildings which can be seen in photograph No. 1. The slates were not an adequate roof, but there was intended to be an aesthetic improvement by putting on tiles on in any event. Mr. Kellett has submitted to the court that, on the basis of the party wall joint structure declaration contained in the 1976 conveyance and featuring in the registered title, that the part of the north wall of the bathroom is a party wall and that the parapet wall which shows in photograph No. 5 is a party wall.
"The title to No. 16A states that ALL walls common to both properties are party walls. The parapet wall was and is not only a party wall, but had and was being maintained by me. Miss Carr agreed in her evidence that I had maintained it."
62. He was sufficiently certain of his view of the facts and law relating to this matter that he in fact interfered with the roofing work which the roofers had done on Miss Carr's bathroom and took two tiles off.
" The recorder omits the very material fact of the February, 2 1976 declaration that All walls common to the respective properties No’s 16 and 16A are party walls. He also omits the very material fact that under Section 38 of the 1925 Law of Property Act, that party walls are as if severed vertically down the middle as between the two owners. He also omits the material fact that slates had been removed that covered No 16A’s side of the party wall by threat of the use of physical force against me should I have tried to prevent that. That act was without doubt an act of both trespass and damage, but the recorder fails to mention these material facts. Instead he refers to the wall as the bathroom wall rather than it being a party wall as both the title of No. 16 declares and Solicitor Stott had accepted. The recorder again errs considerably from law and of truth."
63. He said he objected to them because they overhung in part at least by a couple of inches his land and he just took them off. I have to say in the circumstances as I understand it that I consider that that was a most objectionable act and as it will turn out one that was quite unjustified. But that is what he did.
"The recorder omits the very material fact that those tiles had been placed overhanging the garden space of No. 16A where the slates covering No 16A's side of the party wall had never done that. The recorder again shows that he was very biased towards me because my act and right to remove those tiles was very justified by virtue of the laws of trespass. He effectively ordered that those tiles were to remain in that position and therefore he abused his power by not only allowing that trespass to continue, but is effectively considered now as having aided and abetted it. Those tiles had replaced slates, against my wishes, and were then placed overhanging our property’s front garden. That was without any shadow of doubt an act of trespass. There was no need that they should have overhung the party wall anyway. The recorder also fails to state the material fact that I had originally taken off those tiles to attempt to trace the water intake into our kitchen which occurred following the damage caused to our property after Miss Carr had her property roof replaced on the weekend of November, 13 and 14 1993. When that damage took place, the roofers refused to identify themselves though they admitted they had caused the damage complained of. When Miss Carr, employed as a National Insurance Officer, also refused to name her roofing people, police were called but said that it was a civil matter in which they could not become involved. It had taken more than three and a half years before Miss Carr was to give the required information after interrogatories were served upon her.
It was well over a year later that the damage was temporarily repaired by placing plaster over the damage to conceal it. It was jointly agreed by Miss Carr’s builder and I that the damaged wall required rebuilding. Miss Carr did not want the wall taken down because by doing that, it would highlight a further very material untrue statement made by the recorder. The recorders statement referred to here will be copied later herein. In all, water flowed into our kitchen for over four years until that temporary repair was carried out. Miss Carr says the repair is a permanent one. I dispute this. So did Mr D.W. Jefferson, her builder, who was also in agreement that to carry out an effective repair of the wall, it needed to be taken down and rebuilt. The recorder had all of this evidence placed before him, but due to his very apparent extreme bias towards me, he failed to give these matters all due consideration which his duty required of him."
64. Now for one reason or another at the end of the building works there was the damage which shows in photograph No. 7 and the damage to the parapet wall. Exactly how that damage took place is not clear.
" The recorder again errs considerably from the truth again with his statement copied above. The damage was both video filmed and photographed and that evidence was placed before the recorder, leaving absolutely no doubt whatsoever as to how that damage was caused. Miss Carr's roofing people had agreed that they had caused it and a statement was submitted in an affidavit detailing that fact. The video film and photographs are available to all to whom it may concern. They will show beyond all reasonable doubt how that damage took place. The recorder again demonstrates that he was extremely biased against me by making his statement copied above."
65. Mr. Smailes, the Surveyor, was asked questions about it by Mr. Kellett, but I have to say that I found them inconclusive.
" The recorder did not allow me to carry out a proper cross examination of Mr Smales. He interrupted me and went into conversation with Mr Smales on the subject of the length of ladders surveyors are allowed to carry. I had not raised that matter whatsoever in my cross examination of Mr Smales. By his entering into conversation with Mr Smales, he allowed him to avoid answering a very material question that I had put to him. In May of 1996, Mr Smales had been seen by me while he was on top of ladders which were placed against a building which was on Miss Carr's smallholding . He held a camera which was fitted with a telephoto lens. My wife had only just changed her clothing in our bedroom when I saw him and when he became aware of my having seen him he made a very hasty retreat down the ladder. Mr Smales had previously been allowed entry onto our property to carry out a survey on behalf of Miss Carr. Following this incident with the camera, police were called. They agreed that Mr Smales action could have resulted in a breach of the peace. They said he would be interviewed regarding that incident. The police failed to follow up that matter by letting us know what was to happen in regard to it. Mr Smales was therefore in the circumstances a hostile witness anyway without being assisted by the recorder to avoid answering a material question I had put to him. The recorder most certainly did find conclusive the fact that Mr Smales had said that there was a two foot difference in the levels of the two rear yards of the respective properties No’s 16 and 16A. He did agree that the level of the rear yard of No. 16A was at a lower level than that of No. 16. The difference between the two levels was and is considerably less than the two feet Mr Smales had claimed that they were. The recorder obviously realised that from his own site visit. But did not make any comment about that further material fact"
Within the past few weeks I have applied to the Newcastle County Court to be allowed to take copies from the audio tapes made during the three and half day proceedings before the recorder. My application was refused. I wrote again asking for the reason for that refusal, and the name of the judge who had refused my application. The court have failed to reply to this my last letter to them. At this point, I think it also important to say that while I was carrying out a cross examination of Miss Carr, I pointed out to the court that she had made two statements to me which were contrary to one another. Only one of those two statements Miss Carr had made could have been true. Before Miss Carr had a chance to think and reply to me about that, the recorder immediately warned me that I would not gain by doing what I had just done in pointing out that fact to the court. That came as a very big surprise to me because obviously the whole principle of cross examination is to sort out fact from none fact. Of course the audio tapes I have referred to, presently held at the Newcastle County Court, will prove the statements which I hereby make in regard to these latterly detailed facts."
66. Mr. Smailes was quite clear that the damage did not occur through any mechanical exercise as a result of the resting of the bathroom roof on the injured walls.
"The recorder was aware that Mr Smales had not been employed by Miss Carr in the matter of the damage at the front of the property, which did occur as a direct result of the re-roofing of Miss Carr's property on the weekend of November, 13 and 14 1993. Mr Smales had not examined that damage. His survey of the two respective properties was only in relation to the drainage problems coming from Miss Carr's property. The Sunderland Building Authority confirmed that Miss Carr was required to have made an application to them in regard to the re-roofing of her property. She had failed to do that. The authority said that as the tiles were considerably heavier than the original slate roof, they had to be satisfied that the roof timbering structure of No 16 was strong enough to support the new much heavier roof covering. The parapet wall, which is a party wall, was split along its bottom section when the people re-roofing Miss Carr's property hammered off the top of it. The wall was shown in both the video film and photographic evidence to the recorder and it shows that the top section of that wall had shifted in the direction of our property and that there was a lip formed along the lower part of the wall as a result of the shift that had taken place. On the opposite side of that wall was the new much heavier roof leaning against it. There had been no strengthening of the timber structure of that new roof covering. Another very material fact was that the parapet wall is only on brick thickness. The roofing people said that the damage had occurred when they hammered of the top of that wall. They said that the wall should have been two bricks thickness for the weight of the former roof it was already supporting, and the fact that the wall was only one brick in thickness, was the reason it had split when they hammered off the top of it. These facts too were placed in evidence before the recorder. The recorder has stated as copied above, " Mr. Smailes was quite clear that the damage did not occur through any mechanical exercise as a result of the resting of the bathroom roof on the injured walls."
Here we have an agreed situation that the parapet wall, only one brick in thickness and was supporting a new much heavier roof and had been, as the recorder says, "injured". These facts were very material indeed but as is shown herein time and time again, he fails to give such very material facts all due consideration. The recorder was also aware that the damaged wall was in danger of collapse through the roof of the kitchen of our property No 16A. District Judge Scott-Phillips was also aware of that danger. Despite that situation, and the need to carry out an urgent repair to that wall, the situation was allowed to drag on for nearly four years with water also penetrating the walls of the kitchen of our property throughout that time which was caused by that damage. That danger still exists because the repair that was carried out on that wall in early 1998, consisted only of plastering over of the split part of the wall. It only conceals the fact that the upper and lower parts of that wall are detached from one another, and the much heavier roof on No. 16 is now resting against that upper detached part of that wall.
Clearly the recorder failed to mention these facts or give all due consideration to them. Instead he errs from the truth by saying that it was not clear how that damage had occurred. Examination of the video film and photographic evidence placed before the recorder will show the real truth that the recorder had indeed deliberately erred considerably from the truth again. This evidence is available to all those to whom it may concern."
67. Nevertheless it is clear that the injury has taken place. I must go back now to the party wall declaration. Now this appears on the registered title of No. 16A, but does not, as I have indicated, appear on the registered title of 16B. The declaration provides at its end (and I can deal with this shortly) that walls which are to be party walls are to be maintained and repaired accordingly. But that is effectively a positive obligation and, in my judgment, it will not pass to a purchaser of No. 16 without notice and this is what I find that Miss Carr is.
" The recorder has previously wrongly stated that the conveyancing files, namely the enquiries before contract when Miss Carr and her previous partner had purchased No 16 on August 26 1988 had gone missing and could not be found. That matter had never entered into proceedings at any time. It is also very clear that even had those files gone missing, which in fact they had not, Miss Carr and her partner at the time of their purchase of No. 16, would have visited their solicitor to discuss the enquiries before contract. That is normal conveyancing practice. Party walls, drains etc. are all a normal part of enquiries before contract. The recorder would have been well aware of that material fact as well. Miss Carr and Mr McCabe, her previous partner, would therefore have been given notice of the findings of those enquiries before contract before their solicitor filed those enquiries. This too was very material, but again, the recorder failed to mention these very material facts of which he would certainly have been aware. His extreme bias towards me is again shown in this matter."
68. So she is not inherently bound by that obligation to the extent that it is a positive covenant.
" By reason that in the conveyancing procedure Miss Carr would have been given notice of the existence of party walls etc during an interview with her solicitor who carried out the work of that conveyance. As I have said, only when that meeting had taken place to discuss the enquiries before contract, would the conveyancing files then have been filed away. In these circumstances, Miss Carr was inherently bound by the positive covenant because if her solicitor had done his job correctly, he would have discovered the fact that the walls between the two respective properties were not only party walls, but that there was a repairing obligation attached to them by virtue of the declaration contained in the title of No. 16A in the conveyance of this property on February, 2 1976. In these circumstances, Miss Carr would or should have been given notice of the party walls and the repairing obligation to them. She was therefore placed under an obligation relative to that positive covenant. The recorder shows again his clear determination that law and justice were to be denied me."
69. I do not find any reason for concluding that the positive covenant would apply on the basis- of approbating and reprobating, what is often called the Halsall -v- Brizel principle, that is taking the benefit and the burden.
"In the circumstances described two paragraphs above, the matter the recorder mentions, copied above, had no relevance whatsoever."
70. But I am aware of course that if the walls were party walls that there would be, under s.38 of the Law of Property Act, mutual rights of support. What really matters is as to whether or not the parties to the 1976 conveyance intended that the material walls of Miss Carr's bathroom should be party walls.
" The recorder had already seen and has recited in his judgment copied herein that there is a declaration contained in the title to No 16A which states that ALL walls and fences common to both properties No’s 16 and 16A are party walls and fences. The material word here is "all". The recorder says "if the walls were party walls", but he had already agreed there is a declaration stating that the walls common to the properties are indeed "party walls" his use of the word "if" is therefore called into question.".
71. A consequence of them being party walls
"As the declaration in the title dated February, 2 1976 to No. 16A says that they are."
72. would be that as far as ownership is concerned they should be treated as severed medially, with each side having mutual rights of support. But if you look at the ground level you would have to say that it was the intention of the parties that the boundary between the parties should be at the midpoint on the party wall.
"The recorders understanding of section 38 of the Law of Property act 1925 seems correct and agreed here. It is correct as the recorder says, "that it was the intention of the parties that the boundary between the parties should be at the midpoint on the party wall." Section 38 of the Law of Property Act 1925 says that party walls are to be regarded as being severed vertically as between the parties which was the understanding of the parties at the time that declaration was placed in the title to No. 16A. The parties to that agreement were my wife and I as purchasers, and my parents as vendors."
73. I have to look at the structure of the bathroom which I have seen on the ground and the conveyancing history to see whether or not it is likely that the parties to the 1976 conveyance would have intended that.
" The recorder now contradicts his previous statement and clearly looks for a way around the declaration contained in the title to No. 16A".
74. Because of course if they did intend that,
"Which we of course the purchasers and the vendors had intended that, which is why the party wall declaration was included in the title to No. 16."
75. although a positive obligation as I have indicated would not be binding upon Miss Carr
" As I have previously written herein, Miss Carr would have been given notice of her solicitors pre contract enquiries which ought to have included the matter of party walls and drains etc. In any event those pre contract enquiry files had not gone missing as was falsely alleged by the recorder. In these circumstances the positive obligation to repair the party walls was and is binding upon Miss Carr."
76. it would affect where the boundaries were as between No. 16 and No. 16A,
"As Section 38 of the Law of Property Act 1938 says they should be, i.e. at a point in the middle of the party walls, as if the walls were severed vertically as between the two owners of the respective properties."
77. because that which had been sold off by the Kelletts Snr. to the Kelletts Jnr. in 1976 could not be taken back and conveyed by the Kelletts Snr. to Mr. and Mrs. Green in 1982. So that the declaration is going to be material as to where the boundary lies, if it indeed applies to these walls at all.
" The walls the recorder refers to are common to the two respective properties No’s 16 and 16A. The party wall declaration contained in the title to No. 16A says that "ALL" walls and fences as between the properties are to be party walls and fences. Therefore the declaration refers to "ALL" walls common to the properties. The declaration did, by virtue of that declaration, mean that it did apply to "ALL" the walls the recorder refers to in his statement copied above."
78. I now turn to look at the structure of these walls and I have been assisted here by a site view and also by the helpful photographs which appear on the agreed bundle.
" The recorder again errs considerably from the truth. There was no agreed bundle."
79. In particular I must mention first photograph No. 15, which is called the front view of 16 the Lyons with the date of August 1975. Now that shows at that stage there was annexed to the south side of what became No. 16 and 16A,
" The recorder makes his statement, "of what became 16 and 16A"? He says that an annex on the south side became 16 and 16A. The annex of which he refers was only part and within the boundary of the property No. 16A. there was never at any time an annex which was shared by both 16A and 16A. He would have seen that fact during his site visit"
80. and part of it is annexed to what is now Miss Carr's bathroom, a building which Mr. Kellett said had been used as a pantry. This he has subsequently removed, but it is important to know that it was there, because- as far as the north wall of the bathroom is concerned
"The north side of what the recorder refers to as, " the north wall of the bathroom", is in fact a party wall common to both properties as stated in the declaration in the title of No. 16A. A very material fact proved by evidence shown to the recorder. As has been shown throughout, the recorder denies this very material fact."
81. the existence of that building is the basis of Mr. Kellett's contention that the north wall, or part of the north wall of the bathroom is a party wall.
"The recorder again errs from the truth. My contention is on the grounds of the party wall declaration referred to earlier herein , that is contained in the title of No. 16A. The north wall the recorder refers to, is common to both properties and is thus a party wall as stated in the said declaration contained in the title to No. 16A."
82. Mr. Kellett in his evidence said that the pantry was annexed to the bathroom wall in a way which required him after its removal to carry out repairs to the bathroom wall. I am not quite sure if it was tidied in some way, but certainly there were some works of making good required after the removal. It does appear that the pantry roof was supported by the bathroom wall.
"The pantry roof was supported by the party wall, not as the recorder says, "the bathroom wall".
83. On this basis, Mr. Kellett has submitted to the court that the part of the bathroom wall,
"Not the bathroom wall but the party wall as it is common to both properties No 16 and 16A."
84. which was covered as shown in photograph No. 15 by the pantry, as extended up to the top of the bathroom wall, which has not covered by the pantry should have been a party wall.
"The wall the recorder refers to is common to both properties. The declaration in the title to No. 16A says that "ALL" walls common to both properties are party walls. That was the agreement when my wife and I purchased our property No 16A from my parents on February 2 1976. That agreement was sealed in the conveyance of No. 16A on February, 2 1976 of which the recorder had examined."
85. That effectively means the part of the bathroom wall which is shown with the rather dirty green mark on it on photograph No. 4. It is so shown because to the west of that mark the outer surface of the bathroom has been decorated by Miss Carr, that is the part with the burglar alarm on it.
"The recorder again deviates considerably from the truth. The part of the wall with the burglar alarm on it, which the recorder refers to above, is not common to both properties. That part of the wall was not subject of my action in any event because it was not common to the properties and was not therefore a party wall. It had not suffered damage during the re-roofing of Miss Carr’s property. Even if it had, I would not in any event have had any cause of action in that matter as I have no interest in walls that are not party walls common to both of the respective properties".
86. Well I have to ask myself: "Did the parties to the 1976 conveyance intend that strictly the boundary between No. 16 and 16A in relation to the north wall of Miss Carr's bathroom
"The wall the recorder refers to is common to both properties and is therefore a party wall, not the north wall of Miss Carr's bathroom. The parties to the conveyance were before him anyway and if he needed clarification he could have then obtained it from the parties."
87. should be drawn medially inside that wall to the extent that that wall was covered, if I can call it that, by the pantry, and that the part of the wall above the pantry should be likewise treated as severed from the point of view of ownership, but that the part of that bathroom wall to the west of the pantry which is not covered by the pantry should not be affected by any such boundary,
" The recorder was aware that the wall to the west of the pantry, was not common to both properties. That part of the wall was not therefore a party wall. That part of the wall was not subject of my action anyway and the recorder was well aware of that fact. His playing with words, most certainly shown to be a means of avoiding the truth, are shown yet again by means of the very evidence that was shown to him."
88. so that effectively 16A would own a little bit of the outer surface of the wall of the bathroom?"
"Only that part which is common to both respective properties of which the recorder saw when he visited the site. Section 38 of the Law of Property Act 1925 says that indeed what the recorder wrongly describes as "the outer surface of the wall of the bathroom, is by virtue of the declaration contained in the title of No. 16A, a party wall and therefore the "outer surface" of that wall is under the ownership of No. 16A. The recorder was obviously familiar with section 38 of the Law of Property Act 1925, yet here again he obviously seeks a way around it."
89. The purpose of party wall declarations, and indeed of s.38 as I understand it, is to clarify the position when there is a wall or a party structure involved and it would not otherwise be clear who would own it.
" The recorder obviously again errs from the truth of the facts at issue. The party wall declaration contained in the title of No. 16A says that "ALL" walls and fences common to the property being sold and the property being retained were thereafter to be party walls and fences. The understanding as stated by the recorder, which is copied above, defies the material fact that the party wall system as defined by Section 38 of the Law of Property Act 1925 is this:
(1). Where under a disposition or other arrangement which, if a holding in undivided shares had been permissible, would have created a tenancy in common, a wall or other structure is or is expressed to be made a party wall or structure, that structure shall be and remain severed vertically as between the respective owners, and the owner of each part shall have such rights to support and user over the rest of the structure as may be requisite for conferring rights corresponding to those which would have subsisted if a valid tenancy in common had been created." A party wall therefore properly applies to any wall separating adjoining lands, whether built on or not, belonging to different owners. See Apostal -v- Simons [1936] 1 All ER 207, 80 sol Jo 205.
To repeat herein yet again, the declaration in the title to No 16A states that "All" walls and fences common to the property being conveyed (No. 16A) and the property being retained by the vendors, shall thereafter be party walls and fences. I do not think that the recorder could have seen this fact any less clearer than myself. Despite these facts, it is clear that he again attempts to deviate from them. By doing so, he also clearly demonstrates his extreme bias towards me. The declaration contained in the title to No. 16A leaves no doubts whatsoever to the fact that "ALL" walls common to both properties No. 16 and 16A were and remain party walls."
90. The ordinary wall which one finds lying between the houses in a row of terraced houses is a typical example and neither side needs that wall more than the other. They both need it equally.
" Here again the recorder has yet again failed by virtue that the declaration in the title to No. 16A makes it very clear that "All" walls common to both respective properties No. 16 and 16A were after February 2 1976 declared to be party walls. The damaged walls were and remain as being common to both of the respective properties. That could not have been made any clearer to the recorder. Therefore those walls common to the properties, are without doubt, party walls. There is no requirement that both properties "need it" as the recorder says. The declaration in the title to No. 16A makes it very clear indeed that "All" walls common to the property being sold (16A) and the property being retained (16) by the vendors were thereafter to become party walls. Whether the other side need such wall "equally" or not, as the recorder says, does not enter into this issue and was not material. The recorder again shows the fact that he seeks a way around that very material fact. "
91. A sensible solution very often is that it should be treated as a party structure jointly owned in accordance with the provisions of s.38. That in my judgment is not a position which I anticipate that the parties to the 1976 conveyance would have intended in relation to the south bathroom wall.
" The parties to the 1976 conveyance were my wife and I as purchasers and my parents as vendors. That was indeed the situation which was intended in relation not to the "south bathroom wall", that wall was never at issue whatsoever, but the party wall adjoining the north side of the bathroom of No. 16." The south wall of the bathroom was in any even not common to both respective properties and is not therefore a party wall. To my knowledge there was no damage to that wall whatsoever. The recorders perception of the situation here, is called into very serious question because he has most certainly failed to give due consideration to the material facts shown to him and the evidence he saw during his site visit to the respective properties."
92. It would have led to a muddle.
" The recorder was in fact fully aware that the party wall declaration contained in the title to No 16A, the same type of declaration made in the titles to numerous properties in the land, had not led to a "muddle" at all. The only muddle that is shown is the one attempted to have been created by the recorder, by denying the material facts that he had before him. There was no evidence that there was any such "muddle" and that too was very material. Again the recorder shows by the use of his own words, that facts and justice were to be denied me."
93. There is no reason to think that the bathroom wall lying above the pantry roof, as I find it, should have been so treated as a party wall.
"That wall the recorder refers to copied above is "common" to both properties. By virtue of the declaration contained in the title to No. 16A it is therefore without question a party wall. Clearly the recorder did not wish to give this all due consideration and again, it is also made clear here, he looked for a way around the true facts that were in shown in evidence to him."
94. This would lead to an absurd solution of part-ownership of the wall, which I cannot for a moment think that the parties would have intended.
"The recorder here is shown to defy the laid down principles of the party wall system set out in Section 28 of The Law of Property Act 1925. Under the party wall system, the principle is that there shall be part ownership of that party wall. But the recorder says that such part ownership of a party wall, "would lead to an absurd solution of part ownership of that wall." This again calls into serious question, the reasons why the recorder clearly has made statements that defied not only reasonable logic, but the very existence and principles set out in the 1925 Act under the law of the party wall system. The recorders extreme bias towards me is again clearly shown by the use of his own words which are copied herein."
95. This does not of course preclude the owner of the pantry from having a right of support from the bathroom wall, but you do not have to be a party wall in that sense in order to have the right of support, and it is not, in my judgment, what the parties intended.
"The recorder errs considerably again from the truth. The "bathroom wall" is in fact a party wall because it is "common" to both properties. In fact contrary to that which the recorder says here , you do have to be a party wall in that sense to have a right of support. There is no right of support from a wall owned by an adjoining neighbour unless such wall is a party wall. Without that, any neighbour relying on an adjoining none party wall for support, becomes an act of trespass. The recorder should have been aware of this fact, but seemingly again, deviates well from the truth and principles of law. His extreme bias towards me is again shown very clearly."
96. So I must go on next to the parapet wall featuring in photograph No. 5. Now there was some doubt about this until the site inspection was carried out and there has been some dispute on the evidence. Mr. Kellett invites me to conclude that that wall effectively sits on the wall which is the west wall of his kitchen. His kitchen is the room with the big window featuring in the bottom left-hand corner of photograph No. 5. But Mr. Merritt on the ground carried out an exercise which assisted me to a certain extent in terms of measurement. The parapet wall is, as I find it, a single brick wall and it is the fact that it is a rather thin wall like that that may have led to its being comparatively easily damaged.
"That "thin wall" the recorder refers to above, was in fact damaged during the re-roofing of No 16 on the weekend of November, 13 and 14 1993. That damage formed part of my action"
97. The width of the two walls as featuring on the junction of the west part of the kitchen wall and the east part of the bathroom wall is markedly more than a brick's width, and in my judgment there is a wall for the material purposes which is an independent wall of the kitchen, and there is another wall, the single brick wall, of the bathroom, which goes right from the parapet wall down to the ground level in the bathroom.
" The recorder would attempt here to have me, and indeed others, believe that a wall, some twelve feet or more in height was only a single brick thickness. The last few courses of bricks on the parapet part of the wall is indeed only one brick in thickness as previously mentioned herein. He would have seen that the mortar used on that wall consisted only of lime. Such a wall would not realistically be considered by anyone with even slight knowledge of building techniques to have been either safe or stable to support a roof on it. He saw that the wall he refers to was parallel with the gable of No 16A. In fact he could none other than have been aware that the gable wall of No 16A formed as the east wall of the bathroom of No. 16. He could none other than have seen that the bathroom was built as a lean to structure against the west wall of No. 16A. He did climb a ladder to enable him to see that. Still, despite these facts, he is again shown to be deviating from the truth of what he saw. His extreme bias against me is again shown very clearly by the available evidence. It is again also made clear that it was his prior intention was to deny me justice."
98. So that there are two walls standing very close together, probably with some gap between, but whether or not there is some material rubble, or what have you, in that gap cannot be clear.
"The outward signs utterly defy the statement made above by the recorder. There are not "two walls standing close together" as stated by him. He would have seen that No 16 was built as a lean to structure against the west gable wall of No. 16A. He could none other than have seen that. Still as has been shown so often by the statements he makes in his approved transcript of judgment, copied herein, statements which defy fact and even reasonable logic. His extreme bias towards me is further shown."
99. I should say that I had no benefit of expert opinion ion this point On that basis, in my judgment, the proper solution is that there is no ground for considering that the parapet wall and the wall below it are party walls.
" The recorder again defies the fact that the walls he mentions above, are in fact "common" to both properties and therefore by virtue of the declaration contained in the title to No. 16A, those walls are and remain as party walls."
100. I see no reason to think that the parties to the 1976 conveyance would have intended that that parapet wall and the wall below it should have been considered to be a party wall.
"He had the parties to the 1976 conveyance in court before him. I, my wife, and my late father were there in attendance and we were called to give testimony. It seems he had forgotten to question the "parties" about what had been intended in the conveyance of No 16A in 1976. What was intended was of course the party wall system as declared in the title to No. 16A. Obviously it is shown that he had looked for just about every possible way around that declaration which was very material. His extreme bias towards me is again shown."
101. The net result of those findings in relation to party walls in the bathroom is that, in my judgment, Mr. and Mrs. Kellett do not own any part of those walls by virtue of the party wall declaration or otherwise.
"Around January of 1998 a builder trading under the name of D.W. Jefferson, of Hetton-le-Hole, was employed by Miss Carr to repair the walls damaged in the re-roofing work to No 16 in November of 1993. In all we had water penetration into our kitchen for more than five years before a form of repair was then carried out by this builder. Mr Jefferson told police that he needed to enter our property No. 16A to carry out repairs to the damaged walls. He said that he needed to strip all covering plaster off those walls, and to take down the parapet wall to effect a satisfactory repair of the damage. He removed, without my consent, trellis that I had attached to a party wall.
He started to strip away the plaster covering of that party wall. It then became more blatantly evident that there was not indeed a separate single brick wall serving only Miss Carr's bathroom as had been falsely alleged by the recorder. I took video film of that work, and Mr Jefferson agreed that there was no such separate wall as had been wrongly claimed by the recorder. He agreed that the bathroom, as outwardly it was very plain to see, was built as a lean to structure against the west facing gable of No. 16A. Miss Carr then instructed him not to take down the parapet wall obviously because she was aware that I was video filming the work. She was of course aware that by taking down the parapet wall, Mr Jefferson's work would be filmed by me and clearly she did not want me to gain any further evidence to show that her bathroom was built as a lean to structure against the west wall of our property No. 16A. Mr Jefferson stopped stripping off the plaster covering on the walls when it became even more evident that there was no single brick wall serving only Miss Carr's bathroom. The video film which I had taken of Mr Jefferson's work, proves, if proof had indeed been required, that there was no such single wall as was falsely stated by the recorder. Mr Jefferson agreed that. Mr Jefferson was instead then told by Miss Carr to plaster over the fracture in the wall even though he had told police that to carry out an effective repair, he would not only need to strip all plaster from the walls, but would need to take down and then rebuild the damaged parapet wall. The damage to the party parapet wall still remains at the present, time but has simply been concealed by mortar covering the fracture in the wall. The video film taken of Mr Jefferson's work in early 1998 is available as evidence of these latter facts, for all those to whom it may concern."
102. But they say that they have suffered damage, and in the corner of the kitchen, the northwest corner of No. 16A's kitchen, there is a mark which to a lay eye appears to indicate that some dampness had penetrated to there. There is no other cause of dampness apparent. As I indicated, I have no expert evidence on this point,
"But the recorder did hear evidence from the surveyor Mr Smales on the matter of the external damage to No. 16A. Even though he was aware that Mr Smales had not been instructed to survey that damage."
103. but it is possible that that dampness may be associated with water getting down between the two walls which I have mentioned, the kitchen wall and the bathroom wall, and getting into the kitchen as a result of the crack in the parapet wall.
"There was no evidence whatsoever in the outward signs to even suggest that there are two walls involved here. The outward signs are that the bathroom of No. 16 had been built against the west gable wall of No. 16A. In fact most of No 16 has been built as a lean to structure against the west gable wall of No. 16A. The recorder could none other than have seen that when he climbed ladders to look along the gable of No 16A. By going into No. 16 and looking to see if there was any protrusion of his "alleged wall", from the west gable wall of No. 16A would have been simple enough. He did not do that and Mr D.W. Jefferson, Miss Carr’s builder agreed there was no separate wall serving only Miss Carr’s bathroom. The video film taken at the time of Mr Jefferson’s work also shows this fact, that is if any evidence of it had really been required. The recorder was clearly extremely biased towards me, the only additional question that requires clarification is to what brought about his bias towards me."
104. Mr. Kellett has mentioned the alteration relating to the chimney serving the former range in the kitchen, and it may be that the structure in this area is rather a quaint one. have really done the best I can without the assistance of proper plans or expert evidence.
"There was nothing whatsoever "quaint" in what I described to the recorder. Further, there had been no alteration to the chimney save that it was no longer used for its original purpose."
105. On that footing, if Miss Carr caused works to be carried out to her property which resulted in the crack, it is possible that Mr. and Mrs. Kellett might have a claim in nuisance against Miss Carr.
"The recorder was shown indisputable evidence, which still remains, to show that the damage I complained of to our property No. 16A had occurred when Miss Carr’s property roof was being replaced. Of that there is absolutely no question of "if" it had then occurred. The recorder again shows his extreme bias towards me. "
106. From Miss Carr's angle it is submitted by Mr. Merritt that the contractors who carried out the roofing work were independent contractors and, in my judgment, on that basis if they had injured in terms of trespass Mr. and Mrs. Kellett's house, Miss Carr would probably not be liable.
"It is considered that Miss Carr did indeed have a vicarious liability. She had refused to name those who had carried out the roofing of her property on the weekend of November 13 and 14 1993 and only gave that information when she was served with interrogatories in the mid part of 1996. She had withheld that information despite being fully aware that our property No. 16A was suffering intake of water because of that damage. The recorder again shows his undeniable bias towards me."
107. The case does not fall within any of the exceptions where an employer is responsible for the act of an independent contractor. But if Miss Carr caused an alteration to be carried out to her bathroom which resulted in water being directed into the kitchen of No. 16, then that might itself be a continuing nuisance. I say she caused an alteration, I mean caused works to be carried out in the course of which there was damage which she did not repair. It is not an altogether easy question this, because there is no such thing as an easement of protection against the weather, and ordinarily it might be said that it was up to the Kellett's to make their house watertight.
" This again shows just how biased the recorder was to "the Kellett’s" at No 16A. If the recorder would have me accept his logic in this matter, then all who suffer damage to their property at the hands of others are held to be responsible for that damage in the event that such damage causes water to enter their property. Such logic is not accepted anymore than I can believe that the recorder had truly believed what he had said which is copied above."
108. Nevertheless, if water was so to speak directed from the bathroom into the Kellett's kitchen as a result of the works carried out, I think it is possible that might be considered to be a nuisance in law.
"That there was a "nuisance in law" there is no doubt. When water has entered a property for four years, namely No. 16A, as it had at the time the recorder heard the action, albeit having heard it unlawful circumstances, and the persons responsible for that damage to No. 16A that had brought about that situation had refused to identify themselves, and Miss Carr had also refused to give their identity. there is no question whatsoever that at the very least there was a question of "nuisance". That the damaged parapet wall had been left in a dangerous state, threatening to collapse through the kitchen roof of No. 16A made the matter a lot more than just a nuisance. The recorder and other judges in the proceedings were aware of that danger but still failed to give it the recognition which it deserved. Evidence provided to these judges showed that the top part of the parapet wall had shifted across in the direction of the roof of the kitchen of No. 16A and that the damage had clearly detached that parapet wall from the lower portion of the wall. There still remains the possibility, probably at times of high winds, that the damaged parapet wall will collapse through the roof of No. 16A. The damage was not repaired in the early part of 1998. It was only just covered over by plaster by the builder Mr D.W. Jefferson. For once the recorder does not show bias in his statement copied above, but his following statement certainly does."
109. But in my judgment that possibility does not really become material to the claims relating to this matter for this reason. Miss Carr decided that she wanted to get the cracks and injuries to the bathroom walls mended and she called upon a builder, Mr. Barrass, to come and do this work, but Mr. Kellett was not willing to allow the work to proceed.
" The recorder again errs very considerably from the truth in his statement copied above. I, Mr Kellett, was very willing to have that work proceed. The recorder most certainly never saw or heard any evidence other than that. I was not however willing to contribute to the cost of the repair to that damage. It should be noted here that the recorder makes his above statement as being pure "fact" when anything other than that was the situation. True to form throughout proceeding, he looked for a way around the true situation that existed."
110. He of course was claiming that he owned part of the walls
"The recorder could none other than have known by the declaration in the title to No. 16A that "all walls and fences common to the property being sold (No. 16A) and the property being retained (No. 16) were after the February 2 1976 to become party walls and fences and to be repaired accordingly." He also most certainly saw in that same title that the properties had been "divided" even before 1949, another very material fact, but he chose to deny the truth and say that the division had not taken place until February 2 1976. The walls which the recorder refers to were and remain as party walls. His acts of failing to recognise the truth, and his clear acts of looking for ways around the truth do not alter that.". To say that the recorder was extremely biased towards me is I think an understatement. I can believe no other that the recorder had by his acts detailed herein, set about to deliberately pervert the course of justice"
111. and was only willing to alter that view upon the footing that a letter was signed by Miss Carr relating to her liability.
"Miss Carr had implied that as the wall damaged in the re-roofing work on her property was a party wall, them we, my wife and I had a responsibility for the cost of its repair. I had been willing to allow the repair to take place by a builder named Mr Barrass, but I was not willing to contribute towards the cost of it as that damage had taken place as a result of the re-roofing of Miss Carr’s property. The recorder could none other than have seen that to be the true situation, but as is shown so many times herein, he clearly looked for a way around the truth."
112. So the work has never taken place and, in my view of events, it has not taken place because of Mr. Kellett having decided that he would not allow it.
"The recorder again errs considerably from the truth in his statement copied above. I did agree for that work to be carried out. I would not agree to contribute to the cost of it. Miss Carr would not sign a letter of responsibility for that damage because clearly she did want a contribution from us for the cost of the repair of that damage. The recorder must beyond all reasonable doubt have seen that to be the true situation yet made every conceivable statement to bypass the truth and substitute for it for his own version of the truth."
113. Under those circumstances, I cannot see that it can lie within Mr. Kellett to make a claim in nuisance against Miss Carr because of any water penetration resulting from the cracks in the bathroom walls. Now such a claim was not anyhow pleaded, but I said that I would not be strict in relation to my consideration of the pleaded issues, but I can say that, had it been pleaded, it would not have succeeded.
"No, I am quite sure it would not have succeeded given the lengths that the recorder went to by way of making statements which he could none other than have known were untrue."
So that deals with the bathroom question
114. I can now go to the rear of the property where there are two problems relating to water drainage. The first one relates to the drainage on the east part of the southern roof structure of No. 16, which I described earlier by relation to photograph No. 1. Now there have been a number of alterations to the guttering of No. 16, the rear part of No. 16, but the material facts as I find them are really comparatively simple.
"The recorders statement copied above is again untrue. What he was shown in evidence was that for most of the time the guttering he refers to above was not in place. Miss Carr had agreed that in her evidence. This is very material and a further example of the way the recorder has clearly attempted to avoid the truth shown to him for the benefit of Miss Carr."
115. Whilst the Greens were occupying No. 16, following disputes with them, Mr. Kellett decided that he would remove the east side gutter which he considered to be his.
"The recorder again errs considerably from the truth. He has omitted to say that evidence shown to him by both myself and Miss Carr said that the "east side gutter" was not in place when "the Greens" purchased No. 16 on December 10 1982. This again was a very material fact, but as has been the norm throughout, the recorder either fails to act on material evidence that was shown to him or seeks a way around it. His certain bias against me continues. The "east side gutter" was indeed owned by me. As the the guttering the recorder refers to was not in place, then it could not pass under Section 62 of The Law of Property Act 1925. When that guttering was in place, it was fitted to No. 16A’s side of the party wall. Again that was very material but the recorder again fails to state the true facts shown to him."
116. I need not go back further in time. However, when Miss Carr arrived on the scene, when she purchased, Mr. Kellett felt that it was reasonable to reinstate that gutter. He put the gutter back.
" The recorder agrees here in his statement copied above that "the gutter" was not in place when Miss Carr purchased No. 16 on August 26 1988. Because it was not in place, it could not therefore pass under Section 62 of The Law of Property Act 1925. That was a very material fact, but as is shown time and time again herein, the recorder failed to give that the due consideration it deserved. The recorders bias towards me is shown here again."
117. It was connected to the gutter which runs round the south side of that building,
"The gutter ( the one on the eastern side) was indeed connected by me to the gutter that runs round the south side of No. 16. Miss Carr had failed to have a stop end placed on the south east corner of that gutter on her property and that allowed the free drainage of water into our property No. 16A. The recorder was made aware that Miss Carr’s property had no rear drains and so that was the way Miss Carr dealt with her problem. By failing to install a stop end on her property’s guttering she was handing the problem to us. These facts were made fully known to the recorder but as is shown to have been his practice throughout proceedings, he fails to give due consideration and looks for ways around the material facts shown to him."
118. and as I have mentioned eventually directs some water at least into the rainwater barrel on the alleyway land
"The recorder again errs very considerably from the truth of the evidence produced before him. The video film evidence which the recorder viewed, showed that none of that "water", the recorder refers to in his statement copied above. could have entered that "rainwater barrel on the alleyway land". Unless that water could have defied the laws of gravity it would have been an impossibility for it to have done that. That fact was shown very clearly indeed by means of the video film evidence that was shown to the recorder. The video film showed that the southern gutter of No. 16 had been sloped away from the direction of the rainwater barrel in the alleyway. The surveyors found no water in that barrel, not even after heavy rain. Miss Carr then said in her evidence that the reason for that was that it had a hole in it. Miss Carr had also sworn that the barrel never got full because it was always emptied. The video evidence shown to the recorder showed beyond all possible doubt, the fact that the "rainwater barrel " did not collect any water from the southern guttering of Miss Carr’s property No. 16 because that guttering had been deliberately sloped away from the direction of that barrel. A copy of that video film I refer to here is available to all those to whom it may concern. "
119. and there may or may not have been prior alterations carried out by builders during the Greens1 period of occupation of No. 16.
"Indeed there had been, but the very material facts shown to the recorder regarding that alleged work are again shown to have been disregarded by the him"
120. But Mr. Kellett in his own evidence said that when Miss Carr arrived he put up that east side gutter again and connected it, without a blocker off or stopper or whatever it is called, to the south side gutter
"The recorder again demonstrates by his statement copied above, his ability to err very considerably from the truth of the facts shown very clearly to him by both photographic and video evidence. The video film evidence shows beyond all doubt the recorders clear determination to avoid the truth at all costs. If in fact there had been a stop end fitted to the gutter on the south east corner of Miss Carr’s property No. 16 then clearly I would not have been able to connect the gutter on "the east side" to that place. The recorder has falsely said water was draining from there to the rainwater barrel on the west side of Miss Carr’s property. The water collecting in the "east side gutter" was water coming from the south east section of the roof of No. 16. The evidence shown to the recorder shows beyond all doubt that water could not flow uphill in a westerly direction towards the "rainwater barrel" in defiance of the laws of gravity. A copy of the video film evidence showing these facts is available to all those whom it may concern. The recorder again shows his very clear bias towards me."
121. and that is the situation which exists on the ground today and that is the situation of which Mr. Kellett complains.
"The recorder errs from the truth again by his statement copied above. I, Mr Kellett, complained of the fact that regardless of whether those two sections of guttering were connected together or not, one situated on the southern aspect of No. 16, and the other guttering situated within our property No. 16A serving to collect water from the south east side roof of No. 16 , water still flowed from that guttering onto our property. The guttering on Miss Carr’s property, had been deliberately sloped in the direction of our property so that whatever I had tried to do to prevent that, I could not resolve that situation without taking physical action of altering the slope of the guttering on Miss Carr’s property to prevent that drainage from falling onto our property. That I did not do. I was of course not allowed to do that. The recorder could none other than have been aware of that by virtue of the evidence that was produced to him. He again shows his ability to err from the truth and substitute what is most certainly lies. A copy of the video film I refer to herein is available to all those to whom it may concern."
122. His complaint is that water overflows from that gutter onto his own property and is causing a nuisance. Well shortly put if it is causing a problem, it is Mr. Kellett who put it up. If he had left it down and had not connected it up, then there would not have been the problem of which he is complaining.
"The recorders statement copied above can no other than be considered as an outright lie. The evidence to support my latter statement is shown again by means of the video evidence that was shown to the recorder. If I had left that guttering down, and when I found that no purpose was served by connecting the two gutters together, I did disconnect the two gutters, then by reason that the guttering on Miss Carr’s property had been deliberately sloped in the direction of our property No. 16A the problem that I complained of was of course still taking place. A copy of the video film evidence herein referred to showing the facts of my latter statement is available to all those to whom it may concern."
123. Mr. Kellett is keen to think of better ways in which the owners and occupiers for the time being at No. 16 might organise their drainage and indeed other affairs, but they are entitled to organise this in such a way as they like, provided it does not injure Mr. Kellett.
"The recorder was shown indisputable evidence that I, Mr Kellett and my wife, were being seriously injured by the drainage coming from Miss Carr’s property. The available evidence shows that the recorder was determined that the truth should not prevail. The only question that now requires full investigation is to his reasons for his action against me which clearly led him to pervert the course of justice."
124. In my judgment, there is no merit at all in the claim that a guttering system on the east side which was put up by Mr. Kellett himself is causing him an injury in terms of nuisance.
" The recorder, as is shown to have been his practice throughout the proceedings before him, has erred very considerably from the truth again. The guttering on the "east side" of which he refers, was not the problem at all. It was the fact that the guttering on the south side of Miss Carr’s property, No. 16, had been sloped in the direction of our property No. 16A. that was part of the problem. That was shown to be fact by indisputable video evidence which the recorder viewed. His certain ability to avoid the truth shown to him, is proved again by means of that video film evidence that I refer to herein. A copy of it is available to all those to whom it may concern."
125. This brings me finally to the last head of claim, which is the ground drainage to the rear of No. 16. The rear of No. 16, as appears from the supplementary photographs (I think they are Nos. 16, 17 and 18) is connected with a flagged pathway which runs to the south of No. 16. At the west end of that pathway alongside the house is what Mr. Kellett calls and I will therefore call a sink, which is a drain with a grill over it and a frame around it, it is the sort of drain cover into which a down spout normally runs, or a tap can sometimes drain into to take away its drips before and after turning off,
" The recorder again shows his clear ability to err from the truth. It was shown by the evidence of both Miss Carr and myself that the rear of the property No. 16 was without drainage facilities. The drains had been sealed in early 1988 on the advice of solicitor Mr Rainford of Smith and Graham Solicitors, Claypath, Durham City. The rear drains of No. 16 had then been removed by a builder, Mr Adamson, of Houghton Road, Hetton-le-Hole. This fact was of course extremely material to the drainage problem my wife and I suffered from Miss Carr’s property. The recorder was aware of that and again shows his sheer determination to avoid the very material truth shown to him.
In her affidavit of May 12 1994, which was placed before the recorder Miss Carr has sworn: "The disused gulley (sink) in my yard is positioned at a point that the plaintiff alleges is at the highest point of my yard and would therefore not have been intended for the yard drainage."
The survey report surveyor of Mr Smales, employed by Miss Carr and submitted in her evidence (dated March 14 1995) says: " The allegation that the surface water from the "yard" of the defendants property drains on to the garden of the plaintiff’s property is true. The "yard" is a small patio two flags wide the full width of the rear extension of No. 16. I used a bucket of water to test the fall on this area. The water drains right to left, i.e. towards 16a. There is a differential in ground level and the yard/garden of No. 16a is lower than 16. On the left hand side of the patio area the flags are simply butt jointed - they are not set in mortar. The water drained between a gap in the flags immediately adjacent to the boundary. There is little doubt from this point the water would seep through the earth on to 16a. I raised the end flag closest to the house and found: (a) that the flag was set directly on to the soil, and (b) there was a hole some three inches in diameter leading directly through the ground to 16a. It appears to me that this hole has not formed naturally."
In her affidavit of May 12 1994 Miss Carr has sworn: "My rear yard has no drainage problems. No water drains down my rear yard towards the plaintiff’s property." Miss Carr had resided at her property since August 26 1988. Mr Smales survey report was dated March 14 1995. When Miss Carr swore her statement copied above, she most certainly knew that it was untrue. Therefore her statement was an act of perjury that was very material to the case. Of course not only did the recorder fail to take into account this proved fact, but also failed to act on it and other perjury used by Miss Carr which are detailed herein.
Miss Carr also swore in her affidavit of May 12 1994 the following statement: " The Plaintiff has produced numerous photographs to the Court in an attempt to demonstrate water draining from my yard to his property and collecting in the corner where he alleges the hole was dug. These photographs show wet flagstones that have waved marks permanently on them, not water draining down a slope."
There were no flagstones with permanent waved marks on them as had been falsely sworn by Miss Carr. There was also video film shown to the recorder which proved beyond all doubt that water was draining down the rear yard of Miss Carr’s property onto ours at No 16A. I add here that the water from Miss Carr’s property was not flowing on to our garden as had been stated by Mr Smales, but on to the rear yard of our property which is over some two feet below natural ground level on the same level as our property No. 16A. This again demonstrates that Miss Carr was not only happy to swear perjury (proved by her own surveyor) but the recorder not only failed to take that into account but also failed in his duty to act upon it.
Miss Carr also swore perjury in her affidavit of May 12 1994, which she submitted in her evidence before the recorder, when she included in it the following statement:
"I have not altered or caused any alterations to my property’s roof elevations, guttering., drains or rear yard. Until recently the Plaintiff has made no approaches to me regarding my property’s guttering or rear drainage. Following the Plaintiff’s complaints I contacted the Drainage Engineers at Sunderland Civic Centre who advised me that the sewerage and frontal drainage of my property was connected to the main drainage system in February, 1988. No work was necessary on the rear of my property as the rear yard merely measures 21 foot by 45 inches and has no artificially channelled water entering it or artificially draining from it. The eaves guttering serving the rear and side elevations of my property drain into a 45 gallon water drum which is acceptable by the local authority and drainage experts who have examined the situation."
Miss Carr went on to swear further perjury when in her May 12 1994 affidavit she swore the following statement which she submitted in her evidence:
" Mr & Mrs Green placed the property 16, The Lyons on the housing market in early 1988, not advising prospective buyers of the disputes with the Plaintiff. I was informed by the Plaintiff that the property had no means of sewerage disposal after I had viewed the sign he had placed on his property for all prospective purchasers to see. I contacted the local council offices and established that the drains had been blocked. The situation was eventually resolved when Mr & Mrs Green had the property connected to the main drainage system in February 1998."
A letter dated July 5 1995 received by me from the City of Sunderland Civic Centre which I submitted as evidence in the proceedings before the recorder states:
"Dear Sir,
The Building Regulations 1991
Re-roofing at 16 the Lyons, Hetton-le-Hole.
Reference is made to your letter received on 26th June and I would confirm that I have no record of a submission having been made under the regulations for this work.
I can also confirm that a Building Notice was received in 1988 for drainage proposals relating to 16 The Lyons but was not submitted by a Mr and Mrs Green.
I hope this answers your queries relating to this matter.
Yours faithfully
Director of Environment.
A further letter which I received from the Director of the Environment dated 26th July 1995 states:
"Dear Sir,
The Building Regulation 1985.
Bowes Cottage (16) The Lyons, Hetton-le-Hole
I refer to your letter dated 19th July concerning work carried out to Bowes Cottage.
I can confirm that a Building Notice was received from a Miss S. Carr on the 8th February 1988, relating to new drainage and sewer connection to this property. This was in accordance with the requirements of the regulations but did not include plans of the proposed work. The additional information you have requested is not accessible to the public. I am unable, therefore, to divulge this information."
These letters received by me from the Director of the Environment were placed before the recorder in my evidence. Obviously they were very material and further evidence that Miss Carr had again sworn perjury and was certainly not only ignored by the recorder, but he again failed in his duty to act on it. Miss Carr had of course sworn in her May 12 1994 affidavit the following statements:
"The situation was eventually resolved when Mr & Mrs Green had the property connected to the main drainage system in February, 1998." She had also sworn in that same affidavit her statement: " I have not altered, or caused any alteration to my property’s roof elevations, guttering, drains, or rear yard."
In fact the replies copied above received by me from Director of the Environment at Sunderland Civic Centre had shown part of the perjury that was used by Miss Carr. The recorder had that evidence before him and by virtue of that, It is clearly shown that he was substantially biased towards me. The survey reports mentioned above are available to all those to whom it may interest. Again the only question remaining is why he was so biased towards me."
126. and there clearly were a number of these put in at some stage. One is in the position I have just indicated
" As per the norm the recorder has failed to state the very material fact shown to him by both Miss Carr and myself that the "sink" he refers to was not a sink at all because it was not functional. The rear of Miss Carr’s property was and remains without drainage facilities. Her property’s rear yard is some two feet below natural ground level, acts as a large sink for ground drainage, and of course as the recorder conveniently failed to mention, had no drainage facilities."
127. and there are two further ones on the south side of No. 16A, one in the corner of the "L" formed by the adjoining wall of No. 16 and one near the boundary of No. 17. Well these sinks have not over the years been satisfactory in removing the ground water from the flagged areas
" The recorder has again erred from the truth shown to him by his statement above. In my evidence I said that the "sink" on our property No. 16A was I believed satisfactory for the need of our property alone, whereas it was not satisfactory for the needs of both No’s 16 and 16A. There was of course no easement of drainage from No 16 on to No. 16A. That too was a very material fact, but as has been shown throughout, the recorder failed to mention that very material fact. It should be noted, because it is very material, that there are no "flagged areas" on our property No. 16A."
128. and Mr. Kellett Jnr., in order to prevent water running from his father's house, as it then was, onto his own land prior to his purchase,
"The recorder again errs considerably from the evidence submitted before him. That evidence showed that the wall he refers to below had been built after our purchase of No. 16A on February 2 1976. It was built with the full knowledge and agreement of my parents who then resided in No 16. In any event, the recorder would have been aware that had that wall been built by me before the time of our purchase of No. 16A, my parents would again have been in full knowledge of that and it would have passed in the title to No. 16A. The recorders statement copied above was a very material false statement and as is shown throughout herein, was only one of the many false statements he used against me to fabricate his reasons for judgment"
129. altered the layout on the ground by constructing the brick wall which appears in photograph No. 16, which is I think just on his side of the boundary with No. 16A.
" The evidence shown to the recorder (copies of which is available to all those to whom it may concern) again shows his clear determination that the truth should not prevail. The evidence produced to the recorder stated clearly that the " brick wall" referred to by the recorders statement copied above, was in fact built after our purchase of No. 16A on February 2 1976. This was very material but as per the norm, the recorder did not tell the truth regarding this. To say that the recorder was biased against me, is, on the weight of the available evidence, a considerable under statement."
130. The flags which appear in No. 16, the flags to the rear of No. 16 as I found from my ground inspection and I was told by Mr. Smailes, the Surveyor, slope just very slightly
"Mr Smales had not said that the flags sloped, "just very slightly."
131. from the west to the east, away in fact from the sink which is situated on the south side of No. 16.
" In fact, away from the "sink" which is not a sink because it does not function as a sink. The recorder was made aware of this fact. In her May 12 1994 affidavit used in evidence, Miss Carr referred to that " sink" as "The disused gully in my yard." The slope of "the flags" was of course in the direction of our property No. 16A. That too was very material. In her affidavit dated May 12 1994 Miss Carr swore the following further statement: " My rear yard has no drainage problems. No water drains down my yard towards the plaintiff’s property."
Miss Carr had also sworn in that same May 12 1994 affidavit the following statement:
"The Plaintiff alleges that Mr & Mrs Green instructed a builder, Mr Adamson to dig a small hole and fill it with gravel in the rear yard of 16, the Lyons at a point next to the boundary of the two properties. I have contacted Mr Adamson who advised me that he did not create a "soak-away" hole but that he had merely levelled the old flagstones which had become uneven through the passing of time. I have removed the flagstone in the corner of the yard referred to and can find no evidence of this hole or gravel."
Miss Carr alleges that Mr Adamson had told her that he had levelled the flagstones on the rear yard of No. 16. Her surveyor, Mr Smales, had of course said in his evidence that the rear yard of Miss Carr’s property was not level at all but was sloped in the direction of our property No. 16A. Another very material fact that the recorder would seem to have deliberately avoided to mention or take into consideration, was the fact that both the rear yards of No. 16 and 16A are below natural ground level by around some two feet, with the rear yard of our property No. 16A being the lower of the two. The general lie of the land over about quarter of a mile slopes quite considerably from the south and therefore the rear yards of the two properties do act as a form of sink for the land drainage coming from the south. Video evidence shown to the recorder that was taken before litigation had commenced between Miss Carr and I, showed that a flagstone was already lifted on the rear yard of Miss Carr’s property and was propped up against a wall clearly to allow less restricted flow of water from the rear yard of her property No. 16 into our own No. 16A. That same video evidence showed evidence of a hole that had been put beneath the wall referred to earlier, which I built while my parents still owned No. 16. These again were very material facts certainly not mentioned at all by the recorder and certainly were not given the due consideration which they warranted. The recorders bias towards me is again shown by the available evidence that was shown to him. A copy of the video film evidence shown to the recorder and mentioned herein is available to all those to whom it may concern."
132. I do not find that at any material time any substantial amount, or any significant amount, of the water collecting on the flags is likely to have gone into that sink. It was likely to have gone around the corner, possibly into one of the sinks on 16A before the wall was put up and after the wall was put up it will have been stopped to a certain extent by the wall
" The recorder has of course omitted the very material fact that not only was that "sink" on the rear yard of No. 16 was no longer in use. Miss Carr had agreed in her evidence that it was a "disused gully". Again these facts were very material but the recorder again most certainly side tracked that evidence in favour of Miss Carr. The recorders bias towards me is again shown by the available evidence that was placed before him.
The recorder had of course wrongly alleged that the wall of which he refers had been put up before our purchase of No. 16A and also failed to state the very material fact that the wall existed even before the Greens or Miss Carr had occupied No 16. The recorder was correct in his statement that the wall was stopping drainage coming from No 16 on to our property No. 16A. Indisputable video film and photographic evidence shown to the recorder, a copy of which is available to all those to whom it may concern, proved the work that had been carried out either by Miss Carr or those instructed by her, to make sure that we, my wife and I, were being made responsible for dispersing all of the drainage coming from the rear of her property No 16 onto our own No. 16A. The sloping of the guttering on Miss Carr’s property and the holes placed in flagstones adjoining our property, the hole that had been put beneath our wall were all video filmed weeks before litigation had commenced.
A further example of evidence that Miss Carr swore in her very material May 12 1994 affidavit were the following statements:
Paragraph 9. " My rear yard has no drainage problems."
Paragraph 12. "My yard has flooded on approximately four occasions since I purchased my property almost six years ago."
Paragraph 7. " No work was necessary on the rear of the property as the rear yard merely measures 21 foot by 45 inches wide and has no artificially channelled water entering it or artificially draining from it."
Perhaps the recorder had believed that evaporation was responsible for draining the rear yard of Miss Carr’s property and that the reasons the guttering and rear yard of her property had been sloped in the direction of our property served no purpose at all? Perhaps he also thought that the hole that had been placed beneath our wall referred to earlier, served no purpose on Miss Carr’s property rear yard that is some two feet below natural ground level, without drains, and that the hole made beneath our wall, confirmed by surveyor Mr Smales to have led through into our property’s rear yard , which he agreed was at a "significant" lower level to that of Miss Carr’s property rear yard, had nothing at all to do at all with the issues I placed before him. There is no doubt whatsoever that the recorder would not have thought these things and that his main purpose was in trying to find ways around them for the benefit of Miss Carr. Again to say that the recorder was biased towards me is an understatement."
133. As far as No. 16's side is concerned, there appear to have been steps taken to make some sort of seepage or collection point on the east side of the flagged walkway.
"But the recorder did not include the fact that Miss Carr had sworn that she could find no evidence of that stated above and had also sworn that her property’s rear yard was level and that no water flowed down it in the direction of our property No. 16A, along with all of the other material false statements made by Miss Carr which included perjury and a number of attempts at deception."
134. A flag was raised by Mr. Smailes on his inspection
"The video film evidence shown to the recorder showed that the flag, which he mentions in his statement copied"The above, had been lifted long before litigation commenced on that matter. Of course he did not mention this material fact shown to him. It is his reasons for not mentioning this proved fact is the question which must now be considered"
135. which shows that a hole has been made at some stage or other in the ground below the flag nearest the southeast corner of No. 16's dwelling house, which apparently goes through to No. 16A. Who made that hole and how is not clear.
"Would it not have been clear to the recorder that a yard owned by Miss Carr, some two feet below natural ground level, without drainage facilities, all very material facts of which the recorder had failed to mention, and that yard was at a higher level of the yard on the adjoining property next door i.e. No 16A and that Miss Carr had sworn that her yard had no drainage problems, with no artificially channelled water entering of draining from it, which she had further sworn, "flooded on four occasions in the six years since I purchased the property almost six years ago." not have led to some reasonable conclusions by any reasonable man? This of course shows that the recorder most certainly had a purpose for what he carried out against me by the use of his false statements included herein, and the fact that he did not mention anything whatsoever of the very material evidence that was show to him. Again the only question remaining which requires an answer, is the reason why he did these perverse things detailed herein."
136. Mr. Smailes felt that it was not made from No. 16's side. But despite the contentious nature of things that happened between the parties, I cannot really understand any point in anybody making it for the benefit of either No. 16 or 16A. It should be said that the ground level at 16A on the other side of the wall, the east side of the brick wall, is somewhat lower than on the west side. The exact difference is not precisely established, but it is significant.
" My answer to this further statement by the recorder copied above, which was most certainly intended to skirt around the truth of the matter, is as in the previous paragraph containing my statement relative to the matter referred to here by the recorder. Mr Smales had in fact told the recorder that the difference between the levels of the rear yard of the two properties was some two feet.
Now really, why would anyone want to put a hole beneath a wall owned by the adjoining property No. 16A when the rear yard of that property was below the level of the yard of the adjoining property No. 16 , and that the hole that was found leading from that rear yard of No. 16, which had no drains, is below ground level by some two feet, has no drainage problems, but had flooded, as Miss Carr had sworn, four times in less than six years and that additional action had been taken to slope all of the guttering on the rear of No. 16 in the direction of No.16A, all shown by indisputable evidence to recorder, have not led to a reasonable conclusion by a reasonable sensible man? Would not a reasonable sensible man have taken into account also the fact that Miss Carr had used perjury in her defence to my action against her? A reasonable sensible man would most certainly have acted reasonably when he became aware of these facts. The recorder did not do that by virtue of the evidence that was shown to him, some of which has been copied and described herein. I can only conclude that the recorder had set about on a deliberate attempt to pervert the course of justice. His reason for doing this is the only remaining issue."
137. Well Mr. Kellett claims that water has been collecting behind the wall which he himself had built
" The recorder saw that situation he mentions in his statement copied above , on the video film evidence that was placed before him. It should be noted that throughout his judgment he refers to my statements as "claims", but those of Miss Carr’s as "facts". This is also material and as the evidence shows, Miss Carr’s perjury, deception etc. some of which is described herein was not only allowed by the recorder, but at times he assisted it by further untrue statements that he himself made."
138. and has been seeping through the wall and has been collecting on his property on the other side. The position has been aggravated, because I think that he has not been able to reach agreement with the owners of No. 17, which lies to the east of his property, to clear out the sink near the boundary with No. 17
"This was another untrue statement made by the recorder. At no time had I approached the owners of No. 17 on the drainage matter. The recorder was made aware that I considered that the drainage facilities on the rear of our property No. 16 were adequate for the use of our property alone. I did not consider them as being adequate for the additional unlawful use of Miss Carr by virtue of the acts that she, or others instructed by her, had carried out to make certain that we received all of the drainage collecting on the rear of No. 16. These facts were all made very clear to the recorder. Facts which he not only failed to take into account, but wherever he could, and some of it, not all is shown herein, he assisted with Miss Carr’s perjury."
139. and, according to Mr. Kellett, the water has been building up. There are air bricks which appear to in some way provide underfloor ventilation to the room at the south side of No. 16A and Mr. Kellett says that water may get through those air bricks when it built up and cause him injury.
"The recorder again errs from the truth of the facts produced before him. Only the baling out of water from the rear yard of our property No 16A had prevented drainage from entering into those air bricks with the resultant consequence of flooding that would have taken place of the living quarters of our property No. 16A. The recorder was made aware of this fact but suitably bypassed it as per norm."
140. I think it is right to say that his concern is more one of apprehension than with actual damage, but he says that the mortar work on the south side of his property has been getting very damp, that the water is very inconvenient where it collects, and that it may be getting through the air bricks. He says that the Greens and Miss Carr ought to have altered the flag conformation so that the water flowed the other way, to the west that is, and landed up in the sink at the west end, the southwest corner of No. 16.
" But as was known to the recorder by sworn evidence submitted to him by Miss Carr, that "sink" mentioned in the recorders statement copied above was a "disused gully". Evidence which I produced to the recorder also backed up Miss Carr’s evidence that the "sink" was no longer functional. The recorder again shows his undoubted determination to make statements which are detached from the truth that was shown to him. Again, the only remaining question that requires an answer is to why he did these things."
141. In my judgment, apart from the erection of the wall, the brick wall which I have mentioned put up by Mr. Kellett himself, there has at no material time been any material alteration made to the drainage system of the flagged area lying to the south of No. 16. I accept that, at any rate since the wall has been put up, a good bit of water has been collecting there and that showed in the video which Mr. Kellett showed to the court. It was quite a substantial amount. I think it was raining pretty hard at the time, but nevertheless there was a significant build up of water shown in the video. But in my judgment, that water would not have built up if the brick wall had not been there.
"I draw attention to the recorders earlier statement which I copy again here: "I accept that, at any rate since the wall has been put up, a good bit of water has been collecting there and that showed in the video which Mr. Kellett showed to the court. It was quite a substantial amount. I think it was raining pretty hard at the time, but nevertheless there was a significant build up of water shown in the video. But in my judgment, that water would not have built up if the brick wall had not been there.
The recorder has first of all previously falsely alleged that the wall he refers to above was built before my wife and I purchased our property in 1976. Then by his statement above, he fails to tell the truth again when he says: "But in my judgment, that water would not have built up if the brick wall had not been there." It should again be noted here that the rear yard of No 16A is below the level of the rear yard of No. 16. The recorder has agreed that by his statements copied herein. The wall the recorder refers to above is a wall that was built between the two rear yards of the two respective properties. i.e. the one where holes had been unlawfully put beneath it which allowed drainage to flow from the rear yard of No. 16 into the rear yard of No 16A. The recorder has earlier agreed that the water collecting on the rear yard of No. 16 would not have built up if the wall had not been there. The wall of course was there before both the Green’s and Miss Carr had occupied No 16. Here he has completely reversed the true situation that was clearly shown to him by means of video and photographic evidence. If the wall he refers to had not been built, then there would have been nothing to obstruct the flow of drainage coming from Miss Carr’s property No. 16 on to ours No. 16A. The recorders clear determination to avoid the truth is again shown here. The build up of water on our property was combined drainage of both No. 16 and No. 16A. If the wall had not been there, then the problem would have been even greater. The recorder has shown himself time and time again herein to have looked for ways to avoid the truth. His statement copied above is another good example of the clear evidence that the recorder had deliberately set out to pervert the course of justice. A copy of the video film evidence shown to the recorder to prove the fact of my statement here is available to all those to whom it may concern."
142. Therefore one has got to look and see what is likely to have happened to the water draining from the flagged area to the south of No. 16 over the years. Well before the wall was put up, the water must have just drained from what became No. 16 on to No. 16A,
" There is more muddying of the waters here by the recorder. He now introduces his statement, "what became No. 16". He had earlier falsely alleged that on February 2 1976 what had been No. 16 had been divided then and then after the division what was part of No. 16 became No. 16A. Now he says, "what became No. 16". He has not only muddied the waters, but has failed to consider that the wall mentioned previously was built not at the time which he had falsely alleged it had been, but he chooses to ignore the fact that on the rear yard of No. 16 there is what he calls a "sink" that is none functional. Rather conveniently for Miss Carr he has ignored her sworn statement that the "sink" referred to was a "disused gully." He has also very conveniently ignored for the benefit of Miss Carr, the fact that she was aware before she purchased No. 16 of all of the drainage problems with it and the fact that the Greens had failed to make it known at the time of the sale of their property that it was without any means of drainage. That wall was there before Miss Carr purchased No. 16 and it would be more than reasonable to suggest that once she became aware that the Greens were concealing very important information at the time they were attempting to sell their property No. 16, that Miss Carr would have been extra cautious in her dealings with the Green’s when she learned those facts which she had agreed in her May 12 1994 affidavit. It would have been clear in any event to her and the recorder, that as the wall was there before Miss Carr purchased No. 16, then water could not have drained through it, and that common sense would have told her, and the recorder, that at the time both Miss Carr and indeed at the time the Greens purchased No. 16 that wall would trap any water flowing along towards it in the direction of No. 16A. What the recorder is saying copied here above, has no foundation whatsoever in any known law that I am aware of and I would suggest not any that he was aware of either."
143. and whether it caused anything of a nuisance or not I do not know. I suspect that the sinks were working on No. 16A
" But he conveniently fails to mention the very material fact that the sink, the "disused" sink referred to by Miss Carr situated on the rear yard of No. 16. Now I wonder what that sink could have been used for when it was working? Did the recorder really believe it served no purpose for the drainage on the rear yard of No. 16. when it was in working order? The recorder was shown the true facts but time and time again, he is shown to have skirted around the truth and has substituted for the truth his own fabricated lies."
144. and that it was therefore taken away by them. Alternatively, it simply would never have built up and did not cause a significant nuisance. That is the view which I rather incline to, bearing in mind the really comparatively small collecting area which is formed by the flagged area to the south of No.16.
" The recorder of course has failed to mention the material fact that what he was concerned with was the problem with the drainage coming from Miss Carr’s property at the material times. Which way the rear yard of No. 16 drained before those material times was not of any importance unless there has been a question of any easement of drainage arising. None in fact was pleaded by Miss Carr. If I had purchased a property, in full awareness that the vendor had failed to make it known that it had no drainage facilities, as Miss Carr agrees was the situation, would I, or any other person with a reasonable level of intelligence then inspect the property, not mention these facts to the solicitor acting for me in the sale? Then see a rear yard on that property, walled in on all four sides, and that the yard was some two feet below ground level and that the sink on it was not working. Would I then honestly believe that the drainage on that yard was meant to flow either through that wall aforementioned herein, or that the water collecting there was supposed to find its way beneath that wall into an adjoining property i.e. No 16A This is the situation the recorder would try to portray here. That situation is as untrue as many of the statements copied herein that were made by the recorder."
145. When Mr. Kellett built the brick wall he was of course himself interfering with the system, and it is that, as I see it, which substantially has been causing the water, since the brick wall has been built, to build up. Indeed the purpose of the brick wall was to cause it not to go on to No. 16.
"The recorder again fails to tell the truth. He has previously said that the "brick wall" was impeding the drainage coming from 16 on to No 16A. Now he has reversed the situation by falsely alleging that the purpose of the "brick wall" was to cause drainage not to go onto No. 16 from No. 16A. The recorder knew that to be untrue when he made his statement copied above. Is it likely that I would have commenced an action against Miss Carr to prevent drainage from our property going on to Miss Carr’s property which the recorder has agreed is at a higher ground level than our property No. 16A.? I think that the age old saying, "Oh what a tangled web you weave when you practice to deceive", is very appropriate here. The evidence shown to the recorder proved that there was no drainage whatsoever coming from our property No. 16A on to Miss Carr’s property No. 16. This is a further good example to the extent the recorder was prepared to go to avoid the truth of what was shown to him. The evidence shown to the recorder shows beyond all doubt that the brick wall was not built to prevent water going on to No 16. It was water coming from No. 16 which is without rear drainage facilities which was the situation I commenced litigation to remedy. I never thought for one moment at the time I commenced my action that I would come before judges who were prepared to lie to fabricate grounds to rule against me."
146. When Mr. and Mrs. Kellett purchased from Mr. and Mrs. Kellett Snr. No. 16A, the position must have been, as I find it, that the water was draining freely.
"A brief look back at statements made by the recorder copied herein will show that the recorder had firstly falsely alleged that the "brick wall" referred to had been built before my wife and I had purchased our property in February 1976. The recorder also said that the brick wall was preventing draining from flowing from No. 16 on to No. 16A. But he now falsely alleges that the water was draining freely from No 16 on to our property No. 16A at the time we purchased it. The fact that the recorder did not tell the truth when he made his statement copied above, is not only shown by the available evidence, but is also shown by his own statements copied herein."
147. The water was draining from No. 16 to No. 16A and it did this without the wall originally and with the wall, but rather more slowly, after the wall was put up.
" But previously the recorder has stated that the "brick wall" was put up to stop the water draining from No 16A on to No 16?"
148. To the extent that it is necessary, I would find that on the sale by the Kelletts Snr. to Mr. and Mrs. Kellett that there was an intended easement that that water should continue to drain in that way.
" There was no intended easement whatsoever called into question here. Would the recorder seriously have believed that such alleged easement was for water to drain beneath a solid brick wall coming from No 16 on to No. 16A. ? The recorder did not find that situation. He has attempted to engineer it by his many untrue statements which are copied herein."
149. There was no express reservation, but the court is entitled, on the basis I think of the decision in Re Webb's Lease 1951 Ch 808, to look and see what the parties intended and in a clear case although the burden is a heavy one, where there was a right in existence such as exists in this present case, the court will find that an intended easement existed.
I can see no reason for suggesting that Miss Carr or the Greens had to alter the lay out of their land in order to avoid happening that which had been happening over the years and was happening in each case when they purchased.
" The recorder shows his very clear bias towards me. Would any man even with half a brain purchase property and then see that at the end of the rear yard of that property was a solid brick wall, then believe that water was intended to somehow flow beneath that wall onto the adjoining property and that would therefore be an easement? The recorders statement copied above cannot be under any circumstances be representative as what he found. To accept such a statement as made by the recorder, copied above, would be to accept that the recorder had some sort of mental disorder which I do not for one moment suggest."
150. They would have acquired when they purchased any pre-existing easement under provision of s.62 of the Law of Property Act 1925.
"Here the recorder does show that he was after all fully aware of Section 62 of the law of Property Act 1925. I draw attention to the recorders earlier statement copied herein: "The conveyance to the Greens did not reserve any right of access across the southern part of the garden of No. 16 for the benefit of No. 16A, so that after that sale it was not possible for Mr. Kellett Jnr. to use the alleyway land for the purpose of obtaining access to his garden." In this instance the recorder clearly defies Section 62 of The Law of Property Act 1925. The recorder would also have been aware that an implied easement has to be one capable of subsisting at law. There is no such easement as an easement of drainage either through or beneath a solid brick wall when there was no clear intent that that should be drainage arrangement. That drainage was, and still is taking place unlawfully and the recorder must have known this fact beyond all reasonable doubt. The recorder has not only failed to tell the truth here again, but has verified that he was well aware of Section 62 of the Law of property Act 1925 which in the matter of the alleyway land was very material. That the recorder was biased towards me is shown beyond all reasonable doubt whatsoever. The reasons for his bias is the only remaining unanswered question outstanding."
151. I have to say, but I say this really by way of an aside bearing in mind the differences in the property, that I think that if Miss Carr can alter the layout of the flags at the rear of her property and cause them in future to drain to the west, that would be a service towards avoiding future disputes. It indeed generally would be a sensible solution, because it is probably not easier for Mr. Kellett to solve this problem on his side of the wall,
" But the recorder has previously implied by his former statements copied herein that there was no "problem", because he said that he did not find that any significant amounts of water was draining from No 16 on to No. 16A?"
151. not at any rate unless he gets a degree of co-operation from the owners of No. 17. But on the issue which is before me, for reasons which I have stated, I find that there is no nuisance, no actionable nuisance, made out in relation to the matters on which Mr. Kellett relies. If it were said that there was no intended easement pleaded, that I think is true, but it is a nicety which I do not think finds a context in the way that these proceedings have been conducted. That, I think, is the just solution to that issue.
" The recorder has mentioned the word "just" here, but by the use of the evidence shown to the recorder and by the use of the recorders own statements copied herein, it is shown that the overall actions that the recorder carried out against me had nothing whatsoever to do with justice. Rather what the recorder did to pervert the course of justice and why he did that is the only matter now for serious consideration."
153. Well those are the results on the four issues. I would be grateful to hear from the parties, starting with Mr. Merritt if I may, as to the Orders which I should make in each case. I have not dealt with any quantification of damage, but I do not think that will give rise to much difficulty. Mr. Merritt, can you tell me finally what it is that you propose.
MR. MERRITT: Your Honour could we start with NE4 N650. that is the alleyway?RECORDER FRYER-SPEDDING: Yes.
MR. MERRITT: If I could ask if your Honour would look at the Particulars of Claim, which are to be found at document 2. There is a prayer there at paragraph A, an injunction forbidding the Defendant, whether by himself or by instructing or encouraging any other person, from entering upon any of the property owned or possessed by the Plaintiffs, including all buildings et cetera. It is a bit long winded. I think what I would ask is if you could make an injunction really saying that the Defendant is restrained from entering upon the land known as the alleyway and then perhaps we could attach a plan to the Order, so that nobody can be in any doubt as to what we are talking about.
RECORDER FRYER-SPEDDING: Yes, I think I shall have to ask you draw up a minute in due course, not today probably, but I shall have to ask you to do that. So it is solely relating to the alleyway?
MR. MERRITT: Yes
RECORDER FRYER-SPEDDING: Defined by a plan?
MR. MERRITT: Yes, defined by a plan.
RECORDER FRYER-SPEDDING: Well there is no doubt that is fairly straightforward, yes.
MR. MERRITT: Yes. Then there is the question of the damages Your Honour can see the claim for special damages, general damages are a matter for your Honour of course.
RECORDER FRYER-SPEDDING: Well there is no pricing I think of these special damages, is there?
MR. MERRITT: That is right, all there was estimate.
RECORDER FRYER-SPEDDING: I will deal with it under general damages.
MR. MERRITT: Indeed your Honour, yes. So pass on to the other ones?
RECORDER FRYER-SPEDDING: I think I will just take notes of where you are asking for general damages, because I think it would help me to look at the figure globally in relation to all the matters. In relation to whether it is too much or too little, I think I will need to see what happens elsewhere.
MR. MERRITT: Indeed your Honour, yes.
RECORDER FRYER-SPEDDING: So I will note that general damages.
MR. MERRITT: General damages. I should say that in fact the only action in which I am actually the Plaintiff - I know I have got counterclaims and I will come to that in a moment - the only action in which am a Plaintiff of course is that 650 one, but perhaps if I could just then pass on.
RECORDER FRYER-SPEDDING: The Order will be drawn relating to the consolidated action.
" But of course the recorder had falsely alleged that the actions had been subject of consolidation. Both the recorder and Mr Merritt were aware that there had been no of consolidation of the cases. " In fact the recorder is held to have been in contempt of the Supreme Court by ignoring County Court Order 13, rule 9. Regarding consolidation of cases."
MR. MERRITT: Indeed, yes.
RECORDER FRYER-SPEDDING: With a nasty sized heading to it.
MR. MERRITT: Yes. So well then I will answer the question, where else do I seek any damages?
RECORDER FRYER-SPEDDING: What other orders, where else do you seek any order as opposed to just the dismissal of a claim? Because I think what I am going to say is that, save as aforesaid, all claims and counterclaims are dismissed.
MR. MERRITT: Absolutely.
RECORDER FRYER-SPEDDING: Then I think I can deal with it this that way.
MR. MERRITT: Where I seek orders are an order under the Access to Neighbouring Land Act 1992, purely to enable me to carry out repairs to the parapet wall. (Pause)
RECORDER FRYER-SPEDDING: It is necessary to go on to 16A to do that, is it?
MR. MERRITT: It would very difficult to do it in any other way in a proper manner and my client reminds me that she also suffered from a damp problem coming through the wall overlooking the yard to Mr. Kellett's property and she would wish to check the pointing on that.
RECORDER FRYER-SPEDDING: The court has to be satisfied that they cannot be carried out or would be substantially more difficult to carry out without entry upon the serving of the land. Well I will hear Mr. Kellett, it may be that he does not object to this.
MR. MERRITT: I would your Honour ask you to consider a claim for damages following the removal of the two tiles above the leak.
RECORDER FRYER-SPEDDING: Was that particularised, was that a special damage? You directed me to some builder's estimate for something.
MR. MERRITT: There was a builder's estimate of course obtained by Mr. Kellett of £130, but that was an interim matter.
RECORDER FRYER-SPEDDING: Yes.
MR. MERRITT: I can just check.
RECORDER FRYER-SPEDDING: There was a claim for damages relating to the bathroom roof was there?
MR. MERRITT: There was, yes, you will find it at page 5 of 898. It is a sort of composite thing. If your Honour looks at it really I think what she says is: "I request the court instruct Mr. Kellett to pay for the damages caused to my property and please see exhibits SC1O(a) and SClC(b) which are estimates for repairs which total £133."
RECORDER FRYER-SPEDDING: Well I will note that I think as a claim and again general damages will have to cover it of course.
MR. MERRITT: Yes, I think that must be right.
RECORDER FRYER-SPEDDING: I should say for the removal of doubt that where very small sums are concerned, as I think I indicated earlier, I think it is sensible that the matter be dealt with in a general damage claim.
MR. MERRITT: Indeed your Honour, yes, and the only final point that I would make is this your Honour, your Honour knows that certain injunctions which can loosely be described as "non-molestation" injunctions were made, which expire upon the final order of this court or further order. I would be asking if your Honour would consider extending that non-molestation injunction for say a period of three months from today.
RECORDER FRYER-SPEDDING: Where is the injunction to be found, is it in the one of these bundles?
MR. MERRITT: The injunction is to be found in, the injunction documentation is all to be found in the final 950, because it was in those proceedings that it was obtained and the wording of the injunction, but not I think the order itself, is to be found - sorry I had it not so long ago - yes the original wording is to be found at page 42(a).
RECORDER FRYER-SPEDDING: Is there any evidence of that? I suppose you say it is the existence of that Order which has stopped these things happening, it is not?
MR. MERRITT: No, forgive me your Honour, I do not say that this Order has anything to do with stopping the works, I think it is a more a question that I would be inviting your Honour to consider that Mr. Kellett pursued certain conduct which resulted in an order to the effect that your Honour has seen being made. I would ask your Honour to think that Miss Carr might well need protection in those terms, or perhaps one might say - the Order was modified by her Honour Judge Paling and the words non-molestation in the usual expression were incorporated to make rather clear precisely what it was that Mr. Kellett was restrained from doing and I would invite your Honour to think that a period of say three months from now would give a greater measure of protection to Miss Carr, an immediate measure of protection to Miss Carr, to ensure that there was no unneighbourly conduct committed in the immediate future.
RECORDER FRYER-SPEDDING: these things.
MR. MERRITT: Your Honour is right.
RECORDER FRYER-SPEDDING: I have formed a view as to how things have gone over the years, perhaps more particularly with the Greens than with Miss Carr.
MR. MERRITT : But it is of course entirely a matter for your Honour. If Mr. Kellett is not behaving himself in a neighbourly manner, then of course--
RECORDER FRYER-SPEDDING: I regret that I have had to find that Mr. Kellett has behaved in a most inadvisable manner in relation to your client's property, but not in relation to her person as far as : know at any stage.
MR. MERRITT: Obviously I make no further comment.
RECORDER FRYER-SPEDDING: It is probably all in there in the documents, but I have not been dealing with it.
MR. MERRITT: No.
RECORDER FRYER-SPEDDING: I will give you liberty to apply, I think, in these proceedings. So I need to put a general damage figure on the two claims for general damages?
MR. MERRITT: Yes.
RECORDER FRYER-SPEDDING: Well I think I will err on the low side. I think that I could not be considered to be being Draconian against Mr. Kellett if I were to order £500 to be paid. It seems to me that your client has suffered the grossest inconvenience and messing around as a result of all this, it is really that more than the special damages but that is the sum I have in mind, the total of £500. I had better award them as I think I will say £250 for each, unless there is any alteration.
Mr. Kellett, the outcome of what has just happened, what I have been saying to Mr. Merritt, is that there will be an injunction restraining you from entering upon the alleyway land and there will be an Order under the Access of Neighbouring Land Act relating to the parapet wall and general damages of £250 on the alleyway and the bathroom wall claims, and that apart all the claims and counterclaims would be dismissed by the court. Do you want to say anything about the Order, I do not want to hear anything more about the case itself, but as far as the Order is concerned do you want to say anything about that?
MR. KELLETT: Yes, would I have the right of appeal to that your Honour?
RECORDER FRYER-SPEDDING: I think that is a matter for you to take advice on.
MR. KELLETT: The only thing is the Access to Neighbouring Land Act, any access to the bottom of our property is through our house and I am afraid that is causing us problems with anyone coming.
RECORDER FRYER-SPEDDING: The Access to Neighbouring Land Act claim relates to repairing the bathroom wall and what they are asking for is that they should be allowed, I think on a specific occasion, is it not?
MR. MERRITT: Your Honour that is right. I am sorry1 I should make clear that there is dampness coming in on that portion of the rear wall, i.e. the eastern face, the one that had the gutter on that caused all the difficulty, and I would be asking if your Honour would consider a similar order relating to that wall.
RECORDER FRYER-SPEDDING: That you claimed in fact, did you not?
MR. MERRITT: I did.
RECORDER FRYER-SPEDDING: Yes, but what you are asking for is a specific time to do that, are you, to carry out the work?
MR. MERRITT: I cannot ask at this moment for a specific time.
RECORDER FRYER-SPEDDING: No, but you could before the Order was drawn?
MR. MERRITT : I can indeed.
RECORDER FRYER-SPEDDING: Yes, so that is a third thing, rear gutter access to Neighbouring Land Act Order. Now I will deal with these in turn, Mr. Kellett. As far as the injunction is concerned, that is already in position and it is going to be lessened slightly, because it is only to relate to the alleyway land Do you have anything that you want to say in relation to that?
MR. KELLETT: Yes, the injunction would effectively stop me from having a right to enter upon the alley which I had a right as the member of the public which I have maintained throughout.
RECORDER FRYER-SPEDDING: Well that is something that you will have if necessary to claim in separate proceedings. There is no claim to public right of way in these proceedings.
MR. KELLETT: And of course it would effectively deprive me of my right under section----
" The recorder obviously knew I was about to say which was, "Section 62 of the law of Property Act, and then Spedding goes on below"
RECORDER FRYER-SPEDDING: That is what it is intended to do.
"He therefore agrees that he was depriving me of my rights which is an act of HIGH TREASON. So it is reasonably certain that the recorder did agree that he was depriving me of my rights under the law I have mentioned above. To deliberately deprive me of my rights the recorder is considered therefore to have committed a very serious offence against me which most certainly includes the perversion of the course of justice and HIGH TREASON."
MR. KELLETT: Yes.
RECORDER FRYER-SPEDDING: Then there are the two sums of general damages, if you want to say anything about those say so now. I can only tell you that I have pitched them in what in my view is on the low side in view of what has happened.
MR. KELLET'T: I have got nothing say about any of that.
RECORDER FRYER-SPEDDING: No, well that is helpful. Then there are the two Access to Neighbouring Land Act Orders for repairing the gutter work which I think you want done anyhow on the east side of the back.
MR. KELLETT: No your Honour, actually perhaps Mr. Merritt can correct me if I am wrong, I understood we had came to an agreement with that because that guttering, Mr. Merritt please, that guttering is upon my property, was to be maintained by me, and was an admission that Miss Carr didn't have a right to have guttering on there in the first instance, and it has been agreed that there will be a blanket put on the south facing gutter from where our problem has come from and not from the east your Honour, which you appear to have been misled. The problem that we have from Miss Carr's property flows down the south facing gutter into our property and this is nothing whatsoever to do with that east facing gutter.
RECORDER FRYER-SPEDDING: Just tell me this in short terms, why do you not want a respectable builder employed by Miss Carr to come on to your land for a short period of time and carry out an improvement that will be greatly to the benefit of both of you? Now just tell me - think about it -why it is that you do not want that to happen?
MR. KELLETT: Well because in fact your Honour we have already agreed that I would maintain the guttering, install the guttering on that place and maintain it, at a fee of £15 per annum.
MR. MERRITT: Forgive me your Honour, I think the fault is mine I think. When I was referring to that wall I was referring to it as a wall. What Miss Carr seeks is an order under the Access to Neighbouring Land Act to enable her to check the pointing et cetera on that wall.
RECORDER FRYER-SPEDDING: It is not the gutter? MR. MERRITT: So far as the gutter is concerned, Mr. Kellett is absolutely right, we have come to an agreement which we will have to incorporate in the form of a Tomlin Order.
RECORDER FRYER-SPEDDING:
MR. MERRITT: Yes.
RECORDER FRYER-SPEDDING: to point up the wall or not?
MR. KELLETT: Could I just point something out that I think is very, very important your Honour? I have got to say this, in your summing up you said that the problem of the drainage from Miss Carr's property came from the guttering which I installed. The guttering which I installed is the guttering which we have agreed upon, but the problem with the drainage has not came from that.
RECORDER FRYER-SPEDDING: This is nothing to do with this at all. Just tell me why it is that you do not want her to have access to your property to repair a wall.
MR. KELLETT: Because the problem is there now effectively, with the injunction which has now been placed, there is definitely no way anybody can get on to my property at the back without passing through my living room and I must strongly object to that, because the previous way, for probably 200 years, long before Miss Carr's property existed, was around by the route of the alleyway across the garden of Miss Carr, which didn't exist by the way 200 years ago or 100 years ago on our estate and that was the route of maintenance over the back of our property.
RECORDER FRYER-SPEDDING: Wait a moment, is it not possible to pass the ladders and so on over the boundary wall?
MR. MERRITT: I am sure it must be, we know there is a wall not of that vast height just by the pathway going along the southern side of Miss Carr's property. I am sure it is not necessary to go through a sitting room.
RECORDER FRYER-SPEDDING: No, well I am going make that Order in that case for the repair of the wall and likewise for the bathroom wall. You have not said anything about that, do you want to say anything about that?
MR. KELLETT: Well put it this way I have been in full agreement that the bathroom wall should be repaired, contrary to the evidence given in this court your Honour. Miss Carr your Honour has refused----
RECORDER FRYER-SPEDDING: So you will give access for the purpose of repairing the wall?
MR. KELLETT: Well obviously it is going to be in our joint interests, yes.
RECORDER FRYER-SPEDDING: Yes, right, well that will be done. That is very helpful, thank you very much. That leaves I think the question of costs, what do you have to say about that.
MR. MERRITT: Well I ask for Miss Carr's costs in effect throughout the entire action. She has succeeded in the one where she was Plaintiff and has succeeded in defeating the claims where she was the Defendant.
RECORDER FRYER-SPEDDING; Do you have anything to say about that.
MR. KELLETT: well just the fact that the actions which I brought about in an attempt to stop Miss Carr's drainage from her property coming on to ours and I am of the firm opinion there is a misunderstanding as to where the drainage is coming from which I why I wish to go for an appeal, so I have nothing further to add on that your honour.
RECORDER FRYER-SPEDDING: Well I think all I can say in relation to costs is that although I think there is probably only one issue on which there is some merit from Mr. Kellett's side which night affect the Order of costs which is the nuisance flowing from the parapet wall, there is a chance there that that maybe should affect costs in a small way, but that apart I as not convinced that the unfortunate District Judge who has to tax the costs, if this is necessary, on this is necessarily going to be able to find a very easy task. I think if I had looked strictly at all the issues and non-issues which had been raised by both sides in this matter it would be found that there were some matters which were being pursued from Miss Carr's side which probably should not have been pursued, which would not have succeeded, and I intend in a rather global way to take that into account, I think that I shall just order that Mr. Kellett should pay five sixths of Miss Carr's costs, and I so order, of all the actions, or of the actions until consolidation and thereafter of the consolidated action.
" But there had been no consolidation of the actions. An order was in force at the time Spedding tried the actions as a single case that refused such consolidation, but the recorder falsely claimed that the cases had been consolidated. The order refusing consolidation was made at the Durham County Court on the 1st of June 1994. Miss Shirley Carr who had no authority to prepare the judges bundles deliberately left out the order refusing consolidation of the cases from those bundles. In fact the cases should have been tried one after the other on which basis was the way I had prepared my cases and defence."
Mr. Kellett, you raise the question about whether you should have leave to appeal. You certainly would need leave to appeal against some parts of the Order, certainly the damages part of the Order I think of that level, you would need leave to appeal against that. I doubt that you do need leave to appeal in relation to the injunction, or possibly the Access to Neighbouring Land, do you agree with that?
MR. MERRITT : I agree with your Honour in that respect.
RECORDER FRYER-SPEDDING: Yes, so I will take it that I am correct that you do need leave to appeal in relation to the damages claim, or is the position do you happen to know that if you have got an appeal anyway you can pursue anything you want to? I do not think it is, is it?
MR. MERRITT: No, it is not.
RECORDER FRYER-SPEDDING: I have never been involved in this.
MR. MERRITT: No, I do not think it is.
RECORDER FRYER-SPEDDING: Well then I shall say leave to appeal (if required) in relation to the Orders for damages is refused. Whether or not you appeal against other matters, that must be a matter for your judgment and I can only suggest to you that it could be an extremely good investment to take advice I do not take it to be my role to pontificate to any extent about these matters from the Bench, but I do take the view that your slight knowledge of the law has caused you infinite injury in terms of the outcome of this case and you need to be advised by somebody who understands these matters very well. Having said that, you can appear in the Court of Appeal in person if you want to. I think that I am told that one third of the appellants in the Court of Appeal now are litigants in person, so I am not any sense in deterring you from doing that.
MR. KELLETT: I shall do that sir.
RECORDER FRYER-SPEDDING: Liberty to apply. Now Mr. Merritt, as regards the drawing of the Order I am not entirely happy about what may happen about this. I fear that you will have to try agree it with Mr. Kellett, because the Access to Neighbouring Land has detail yet to be filled in.
MR. MERRITT: That is right. RECORDER FRYER-SPEDDING: Had it would have simply asked you to settle at that.
MR. MERRITT: And also of course I have got to agree to the Tomlin Order. The substance is agreed, I do not think we have any problems, but I would not like to anticipate it. What I will do is draft out something which I think I will submit to Mr. Kellett for his consideration.
RECORDER FRYER-SPEDDING: Yes, well I am going to say that the minute be lodged in court and signed by yourself and Mr. Kellett please.
MR. MERRITT: sitting late today.
RECORDER FRYER-SPEDDING: Well I hope that you are going to get to your next appointment on time.
MR. MERRITT:Secondly, there is application to commit, I assume that your Honour will adjourn that for the time being.
RECORDER FRYER-SPEDDING: What was that about, I have not looked at it at all?
MR. MERRITT: It was an alleged breach of the injunction granted by Mr. District Judge Cuthbertson originally, as modified by her Honour Judge Paling.
RECORDER FRYER-SPEDDING: I suppose it has got to be dealt with by the court at some stage.
MR. MERRITT: Yes, it has got to be dealt with.
RECORDER FRYER-SPEDDING: Do you want to pursue it? Do you have instructions to pursue it?
MR. MERRITT: Well I was going to ask you if your Honour would adjourn it for the moment and I will seek instructions, I will see that I get instructions. (Pause) Yes, the request that I am asked to submit your Honour is could the application be adjourned, but if your Honour would consider extending the Order until the hearing of that application. Here is in fact the Order - well actually this is the original one.
RECORDER FRYER-SPEDDING: I am not convinced I can say anything about dogs barking and that sort of thing at this stage and photographing and that sort of thing.
MR. KELLETT: Could I say your Honour the photographs was necessary in part of my action to try and prove the problem?
RECORDER FRYER-SPEDDING: Well.
MR. KELLETT: And the filming.
MR. MERRITT: I think as far as the application is concerned, I would ask if your Honour would consider adjourning it to the first available date.
RECORDER FRYER-SPEDDING: Well, the application to commit adjourned. I think I am going to adjourn it generally and, if no application to restore within 28 days from today, to be dismissed. That will give you the chance to decide whether you want to pursue it or-not. I can tell you it may be difficult to have it heard by somebody other than myself, because I have heard most of the story. I realise I have not heard that much about that side of things, but I am not going to be very easy to come by in the very near future, so that might affect or might not affect things. I think if there is a problem on the ground, I think you do better to apply for a new injunction wider than the one that you have already got, the final injunction that you have got, and that I think will be the better way of doing it precisely relating to what the problem has been.
MR. MERRITT: Yes.
RECORDER FRYER-SPEDDING: Yes, well thank you all very much. I shall rise now.
(Court adjourned)
"Missing from the approved Transcript of Judgement of the recorder are statements the he made in regard to Miss Carr's further application for my imprisonment. He gave Miss Carr a further twenty eight days in which to make a new application to the court for my committal to prison . He said that if that new application was made by Miss Carr he thought it best that he should be the one to hear it. Around some two weeks after that, I reported some of the recorders acts to former Lord Chancellor Mackay. At around that same time the recorder took the decision to retire. I have been refused access by the Newcastle County Court to the audio tapes that were made of the proceedings which should further verify some of the facts of which I herein detail.
It is worthy of mention here that in regard to District Judge Cuthbertson, he is also considered to have misconducted himself, when on October, 17 1995, he granted an injunction order in regard to the cases after proceedings regarding the application made for that injunction by Miss Carr had been adjourned. Solicitor Alison Stott attended court with Miss Carr on that day. District Judge Cuthbertson gave her work to carry out in regard to the wording of joint undertakings agreed in general principle between Miss Carr and I as an alternative to the injunction applied for. The judge said that Alison Stott could make a return to the court when she had carried out that work. Earlier he had made it clear that he had little enough time that day. In fact the judge who was to have heard Miss Carr’s application had not arrived at court and the extra workload was being borne by District Judge Cuthbertson. He then adjourned proceedings. No mention whatsoever was made as to when those proceedings were to recommence save they would not recommence until solicitor Alison Stott had prepared a draft of the wording of the joint undertakings. My wife and I left the Durham County Courthouse in the clear belief that the adjourned proceedings would recommence on another day and that we would duly receive notice of that. Two days later we received notice that District Judge Cuthbertson had granted Miss Carr everything she had applied for in her application for injunction against me. As a reminder here, on January, 17 1996 solicitor Alison Stott declared to the Newcastle County Court presided over by the recorder, stating that up until that time she had not been acting for Miss Carr but had only been assisting her as she seemed to have a good grasp of the situation. It is clear therefore that District Judge Cuthbertson failed in his duty to ascertain then on October, 17 1995 that Alison Stott was not acting for Miss Carr, but that in addition, Alison Stott had also failed to make it known at that time she was not acting for Miss Carr but was only assisting her. As an Officer of the Court Alison Stott was duty bound to have made clear to the court on October 17 1995 that she was then only assisting Miss Carr, not acting for her.
I appealed against the injunction District Judge Cuthbertson had granted. On the day of its hearing, I learned that my appeal was to be heard by District Judge Cuthbertson. The appeal took less than five minutes and this time solicitor Alison Stott was not in attendance. Miss Carr attended on her own. District Judge Cuthbertson refused to rescind the injunction order. Afterwards I questioned the then Durham County Court Chief Clerk Mr I. Cuthbertson for an explanation as to why my appeal had been heard by District Judge Cuthbertson, which was of course unlawful. The reply I received was that I had not used the correct form on which to lodge my appeal and that was the reason for it having been heard by District Judge Cuthbertson. The form used was the same which had been supplied by the Durham County Court when requested for a form on which to lodge an appeal against the judges injunction order. The injunction effectively prevented me from taking further evidence for use in the cases. It was known to the court then that a solicitor, Nancy Bone of Durham City, was holding my files and evidence by lien and I was deprived of that material. That I could no longer film or photograph the problems we had coming from Miss Carr’s property was one serious problem for me. I was not allowed to talk to Miss Carr. I was not allowed to contact anyone in regard to Miss Carr if she considered such contact as an invasion of her privacy. Our two dogs were not allowed as Miss Carr falsely alleged, to bark "incessantly". I was not allowed to speak with anyone entering or leaving Miss Carr’s property.
Miss Carr and her resident partner Mr Norman Pringle, thereafter took every opportunity to provoke me and indeed my wife in an attempt to have me breach the injunction which had been granted under improper circumstances by District Judge Cuthbertson on October, 17 1995.
On July, 5 1996 I was found guilty of breaching that injunction granted under improper circumstances by District Judge Cuthbertson. In a clear attempt to have me breach that improper injunction, Miss Carr complained to the Public Health Authority that our dogs barked. We received notification of that complaint on a Friday. The following morning, I sat in our property’s rear garden with our two dogs. One of the dogs started to bark. I heard scratching on the fence dividing our garden from that of No. 16. The scratching stopped and then restarted. One of our dogs again started to bark because of that noise. That happened a further time and then I placed some steps against a wall and looked over the fence to see what was alarming our dogs. There I saw Miss Carr crouched behind the fence holding a tape recorder and she held something in her other hand that was clearly being used to make those scratching noises. I had taken alcohol partly for pain relief for a severe health problem. I had just cancelled an operation to have pins put through my ankle joint to "fuse" it. I did that because I believed that the trials between Miss Carr and I were imminent. When I saw what Miss Carr was up to by tape recording our dog barking while at the same time taking deliberate action to encourage it, I lost my temper and shouted abuse at Miss Carr. She then applied for my committal to prison for breach of the injunction granted improperly by District Judge Cuthbertson. Circuit Judge Helen Palin sentenced me to three months imprisonment. Counsel representing me, Michelle Temple, expressed concern at the severity of the sentence that Judge Palin had handed out to me. In the circumstances it can be shown that the available evidence for my defense was not shown to the court. I was taken to Durham Prison. There, in protest at the injustice that I had received from the courts, I refused all food, drink, and essential medication which included chemo-therapy. Three days later I was admitted unconscious to Dryburn Hospital in Durham. There I was told I had suffered a stroke. The following day I was released on appeal to the London High Court. To try to stop my release from prison Miss Carr had solicitor Alison Stott send a fax letter to the court stating that I was not of previous good character and had been bound over. My character was at that time considered to be better that that of Miss Carr’s. I had not reverted to perjury as a means of defense or prosecution as had Miss Carr. Further, never at any time whatsoever had I been bound over by any court. That was a further demonstration of just how far both Miss Carr and Alison Stott were prepared to take matters. My sentence was changed to one of three months suspended imprisonment and I was then released from prison. The following day Miss Carr made new false allegations that I was harassing her. I had not done that. I was in no fit state of health to have done that. Miss Carr had also sworn other extremely untrue defamatory statements about me. When I raised those statements with District Judge Cuthbertson, he said that he had seen them but that I should wait until the civil litigation was concluded before I commenced with a further action in regard to the aforementioned defamatory untrue statements that Miss Carr had sworn about me.
Some six weeks before the trials were due to take place before the recorder, the Northern Area Legal Aid Board withdrew legal aid from me. The Board falsely alleged that Counsels opinion, being one Michelle Temple, was not favorable to my cases or defense. My solicitor, Mrs. P. Tench, then of Jacksons Solicitors, Darlington, County Durham, wrote a very long letter of protest to the Legal Aid Board pointing out that Michelle Temple’s opinion was good in respect of the cases. The written opinion of Counsel Michelle Temple showing by virtue of its contents that the Legal Aid Board had acted improperly, is available to all those to whom it may concern. A copy of the letter of protest sent by solicitor Mrs. P. Tench is also available to all those to whom it may concern. An appeal was lodged against the decision to withdraw legal aid from me. It was not listed to be heard until after the trials were to take place. That was the second time the Legal Aid Board had acted improperly. Early in 1994 they had refused my application for legal aid. They wrongly claimed that I already had an injunction preventing Miss Carr from draining her property on to ours. I went before the Board on appeal against their decision and made it clear that there was no such alleged injunction in place and the reason I required legal aid was to obtain such an injunction. The Board refused my appeal and again wrongly alleged that I already had the injunction to prevent Miss Carr from draining her property on to ours. The matter was raised with former Lord Chancellor Mackay. I sent him evidence to back up the allegation that I made then. I was referred by his office to the Parliamentary Commissioner.
I requested my files from Jackson’s Solicitors so that I could continue with my cases and defense. I was told by Jacksons Solicitors that I could not have them as they were required for costing purposes. Mrs. Tench of Jacksons Solicitors kindly provided me with some limited copies from my files so that I could represent myself at the trials.
For further information, In 1995 following solicitor Nancy Bone’s refusal to hand over my files and evidence that she held by lien, which I urgently needed for use in my cases and defense, I applied to the Durham County Court for an order to be allowed to go to the offices of Nancy Bone Solicitors to take copies from my files. I attended the offices of Nancy Bone shortly after that and Nancy Bone breached the order that I had been granted by District Judge Scott-Phillips. When I returned to the Durham County Court on the matter of the breach of the order, I was told by its then Chief Clerk, Mr. I Cuthbertson, that according to District Judge Scott-Phillips, my visit to the offices of solicitor Nancy Bone was not by order of the court, but had only been by the consent of Nancy Bone. I did not accept that as being true. In late 1997 solicitor Nancy Bone was struck from the register of solicitors and her business closed down by the intervention of the Law Society. My files that had been withheld by Nancy Bone were then returned to me. In those files was the attendance note of Nancy Bone at the time that District Judge Scott-Phillips had granted the order that I be allowed to attend her offices to take copies from my files. Her attendance note described my visit to her offices as being by "order of the court". Other documentation in the files, prepared by Nancy Bone Solicitors also referred to my visit to her offices as being by "order of the court." The documents of which I refer to here, are available to all those to whom it may concern
Further, in 1992 I appeared as plaintiff in the Durham County Court before District Judge Scott-Phillips in the matter of damage to my property caused by a vehicle collision with it The case was numbered 9202063. He reserved judgment until later. At the end of those proceedings, the defendant, a Mr. Young, then of 9. Corry Close, Blackhall, Hartlepool, Cleveland TS27 4HH, handed a letter to District Judge Scott-Phillips. He said it was a statement. The judge did not then open the letter and therefore did not make known to me its contents. That was one of the two reasons of which I lodged an appealed against his judgment. A copy of that appeal is available to all those to whom it may concern. As I have previously stated herein, that appeal was unlawfully heard before Deputy District Judge Baird who was also the first judge to hear Miss Carr’s application of my alleged trespass on land of which my late father and I hold lawful title.
I applied for leave to appeal the recorders judgment. It was heard on June 6 1997 before Lord Justices Auld and Pill. Amongst other things, I had made it known to them that the cases had been wrongly tried as a consolidated action and that there were three separate cases at issue. The time allowed to put ones case for leave to appeal for a single case is normally twenty minutes. Though there were three cases in question, I was only allowed the same amount of time to put my case as if there was only one consolidated case to seek leave to appeal from.
Though the two Lords Justices did not identify themselves individually to me, I believe it was Lord Justice Auld who spent some time trying to allay my concerns that Freemasonry was responsible for the injustice that I had received.
In May of 1996 I had been thanked on behalf of the Rt, Hon. Lord Nolan for a dossier that I sent to him concerning matters of Freemasonry. The letter of reply from Lord Nolan’s secretary stated that the dossier I had sent to him would be used as background information by the Standards in Public Life Committee Inquiry into Freemasonry within the police and judiciary. Lord Nolan was chairman of that Inquiry. A copy of the letter received from Lord Nolan’s secretary confirming my latter statement is attached hereto marked with "K11". The fact that I had supplied Lord Nolan with that dossier was common knowledge among Freemasons. As a result of having done that, I received a warning from a Master Freemason, also a local Town Councillor, that I was subject of discussion in Masonic Halls and that what I had been doing was regarded as an invasion into the privacy of the Masonic movement. He said that they would not allow me to continue doing that.
I was refused leave to appeal the recorders judgment by Lord Justice Auld and Pill. Later I learned that the London Court of Appeal had been breaching Article 6 of the European Court convention of Human Rights which states that everyone has the right to a fair trial. The Appeal Court had been holding what was commonly termed "secret briefings" in regard to all litigants in person who went before the London Appeal Court.. That had of course included secret briefings in regard to my cases concerning case No’s DH400950, DH400898, and NE401650. Lord Woolf has agreed that all litigants in person were being subject of these briefings. Unknown to these litigants junior barristers and solicitors at the court of appeal, some as I understand it only part time staff, were instrument in the preparation of "bench memoranda" which they then handed to their Lords Justices who were to hear the case. These junior barristers and solicitors were allowed to express an opinion on the merits of the cases in that bench memoranda. It was learned that these bench memoranda which were handed to their Lords Justices contained a stamp with the following words included on it, "IMPORTANT, THESE PAPERS ARE PART OF THE COURT RECORD THEY MUST BE HANDED TO THE ASSOCIATE AND NOT THE PARTIES." The parties were never made aware of that bench memoranda. Supreme Court Order 52, rule 1) 8 states, "Thou shalt not communicate with the judge to influence the outcome." Here we have junior barristers and solicitors communicating with the judge and the outcome most certainly was and is being influenced by these people who prepare the "secret" bench memoranda.
As it was well known that I had subscribed to the Standards in Public Life Committee Inquiry into Freemasonry within the police and judiciary, it was therefore reasonable to presume that had any of those judges whom I had previously appeared before been members of the Freemasons, then the courts over which they presided could not be considered by me as being impartial as is required under European and International law.
I wrote to the Chief Clerk of the Durham County Court requiring that the judges concerned in the matter of the litigation between Miss Carr and I formally declare or deny any membership of Freemasonry. None of the judges involved would make such declaration. I wrote to Lords Justices Auld and Pill requiring that they too declare or deny any membership of Freemasonry. They too declined to reply to that requirement made by me to them. All of the judges involved in the litigation between Miss Carr and I would not make the necessary aforementioned declaration that I required, thereby depriving me of my lawful right to have that necessary information so that I could then decide whether or not the courts had been impartial.
In 1997 when I approached Lord Chief Justice Bingham and the Master of the Rolls Lord Woolf, they ruled that it should be left to the individual judge whether or not to declare membership of Freemasonry. They attached no conditions whatsoever to that ruling in the subsequent letter that I received regarding that matter. I then understood beyond any reasonable doubt that Freemasonry was being placed above all else when it came to a matter of possible conflicts of interests of judges who preside over our courts. This is a situation which again is in clear contravention of Article 6 of the European Convention of Human Rights.
The resulting consequences arising out of the aforesaid, has been the engineering of my alleged bankruptcy by means of the costs of the cases which was most certainly instrumental in the death of my father who collapsed and died two days after my alleged bankruptcy was published on the front page of a local newspaper. I have previously made it known by letter to Prime Minister Tony Blair, Lord Chief Justice Bingham, Master of the Rolls Lord Woolf, Lord Chancellor Irvine, Lords Justices Auld and Pill, Home Secretary Jack Straw and the manager of The Durham County Court, and the Chief Constable of Northumbria that in the circumstances of the facts, some of which I detail herein, I could not accept the judgment of former recorder John H. Fryer-Spedding or any of the consequences arising from it. The day after I posted those letters and also published the contents of those letters on the internet, police called at my home and unlawfully arrested me. I am unable to detail the full circumstances of this matter at the moment because it is included in my complaint to police. However, following my arrest, I was deprived of my right to be allowed to make known to others of the place where I was taken. I was deprived of my right to talk to a solicitor. I was also deprived of my right to have seen a doctor. When police became aware that I was seriously ill they took me to Sunderland Royal Hospital and left me outside of its casualty wing and drove off. The response to the letters that I sent to those aforementioned here remained without reply.
My conscience will not allow me to accept that justice has been served by reason of the facts I detail herein. Though Northumbria Police have appointed acting Detective Inspector Steven Coxon to investigate my complaints starting with matters some thirteen years ago, there appears at this present time not to have been any serious investigations, or any at all, that have taken place by the Inspector. My meeting with Detective Inspector Coxon took place at the office of my solicitor Mr Hughes, , of Harding Swinburne & Jackson solicitors, 58 Frederick Street, Sunderland on June, 30 1999. There I detailed some of my complaints to the Inspector and another Police officer in attendance. I had previously detailed some of my complaints by letter to the Chief Constable of Northumbria. While I understand from my solicitor that he had written to Inspector Coxon for a progress report of police investigations over two weeks ago, I understand that at the present time none has been forthcoming from him.
No progress report was ever received from acting Inspector Steve Coxon of Northumbria Police. Its clear that he never carried out any inquiries into the allegations that I made to him. Such is the corruption within that police force.
In 1997 I referred matters to my Member of Parliament Mr. Fraser Kemp. He referred me to my Euro MP Mr Donnely. When I contacted Mr Donnely, he wrote to me stating that he was not empowered to deal with the matter.
Under the ruling of the Rt. Hon Lord Denning, no judgment of any court or ruling of a Minister can stand if it has been obtained by fraud. Fraud is not the substantive of all of the acts that have been used against me to pervert the course of justice.
All documentation, photographs, and video film that I refer to herein are available to all those to whom it may concern.
In and under the circumstances of that which I herein state, I claim that my rights under Articles 1, 3, 4, 5, 6, 7, 8, 9, 10, 13, and 14 of the EUROPEAN COURT CHARTER OF HUMAN RIGHTS have been breached.
I further claim in and under the circumstances stated herein, that my rights under Articles 1, 2, 3, 5, 6, 8, 9, 10, 12, 17, 18, 19, 21,and 30 of the UNITED NATIONS UNIVERSAL DECLARATION OF HUMAN RIGHTS December, 10 1948, have also been breached.
This STATEMENT OF TRUTH was signed by me, Maurice Kellett
On October, 3 1999.
Any E-mail please to maurice.kellett@ntlworld.com