News Publication Date: 15 March 2011
IN THE HIGH COURT OF JUSTICE OF THE ISLE OF MAN
CIVIL DIVISION
CHANCERY PROCEDURE
IN THE MATTER of the Application Notice dated 1st September 2010 between:
DEPARTMENT OF INFRASTRUCTURE Claimant
And
(1) JEREMY CHARLES ROBERT AND FRANCES CATHERINE CLARKSON
(2) CASTLETOWN GOLF LINKS LIMITED
(3) REDFORD LIMITED
(4) FORT ISLAND LIMITED
(5) SIMON FREEMAN
(6) M.A. KITCHING
(7) THE COMMITTEE OF CASTLETOWN GOLF CLUB
(8) ANDREW JAMES KENYON-SMITH
(9) ANDREW PATTERSON Defendants
And
IN THE MATTER of the determination of certain preliminary issues pursuant to an order made on the 30th November 2010.
Judgment Summary issued by the High Court of Justice of the Isle of Man
This summary is provided to assist in understanding the judgment of the court. It does not form part of the judgment. The judgment itself is the only authoritative document. The full judgment is available at www.judgments.im.
On the 15 March 2011 His Honour Deemster Doyle sitting in the High Court of Justice of the Isle of Man Civil Division Chancery Procedure delivered his judgment on certain preliminary legal issues which arose in proceedings under reference CHP 10/0107.
The Department of Infrastructure made application pursuant to section 92(7) of the Highways Act 1986 for leave of the High Court to amend the definitive maps and statement in relation to certain footpaths at Langness in accordance with the Report of Roy Hickey the Inspector who presided over the public inquiry into such matters.
The hearing in respect of certain preliminary legal issues raised by the parties took place on the 28 February 2011 and the 1 March 2011 before His Honour Deemster Doyle.
The judgment concerns the nature and extent of the jurisdiction of the High Court of Justice of the Isle of Man under section 92(7) of the Highways Act 1986 and the status to be accorded to any findings of fact contained in the Inspector’s Report.
Mr and Mrs Clarkson (the First Defendants) and the Golf Club Owners (the Second, Third and Fourth Defendants) had argued that they should be entitled to adduce additional evidence at the section 92(7) hearing.
For the reasons stated in the judgment Deemster Doyle has held that the section 92(7) hearing is not a de novo (starting again) hearing and that it is not appropriate to hear any further evidence over and above the Report.
Various allegations in respect of the Inspector and the proceedings before him and the findings in his Report had been made by some of the objectors. The Deemster held that such allegations, if they were to be properly pursued, should have been pursued by way of doleance claims.
The Deemster held that it was not appropriate at the section 92(7) hearing for the court to hear objections to the granting of leave to amend the definitive maps and statement to incorporate the rights of way as found by the Inspector on the basis of grounds which should properly have been pursued as doleance claims. The Deemster at paragraph 230 of his judgment stated: “If these matters were to be pursued they should have been pursued long ago by the filing of a doleance claim subject to the doleance procedure.”
The Deemster determined that the findings of fact contained in the Inspector’s Report should be treated as conclusive evidence at the section 92(7) hearing.
The Deemster finished his judgment with the following words:
'We must now set a date for the section 92(7) hearing and make progress towards the finalisation of this protracted matter.'