CHP 11/0043 Judgment Summary 23 May 2011

News Publication Date: 23 May 2011

IN THE HIGH COURT OF JUSTICE OF THE ISLE OF MAN
CIVIL DIVISION
CHANCERY PROCEDURE
______
Between:
(1) Jeremy Charles Robert Clarkson
(2) Frances Catherine Clarkson Applicants
And
(1) Roy Hickey (Inspector)
(2) Department of Infrastructure Respondents
And
IN THE MATTER of the Application of the Applicants
dated the 12th April 2011

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 23 May 2011 His Honour Deemster Doyle First Deemster and Clerk of the Rolls sitting in the High Court of Justice of the Isle of Man Civil Division Chancery Procedure delivered judgment in proceedings under reference CHP 11/0043.

The judgment concerns the issue as to whether the First Deemster should recuse from presiding over an application requesting leave to file a doleance claim out of time because of comments and determinations he made in judgments delivered on the 29 September 2010 and the 15 March 2011. No appeals have been lodged in respect of such judgments.

The First Deemster referred to the somewhat protracted history of the matter and set out a short summary of the history as follows:

6. The substance of these proceedings concerns the issue of public rights of way over land at Langness in the south of the Isle of Man. The Applicants in February 2009 presented a petition to the High Court seeking a declaration that no such rights of way existed or if they did a declaration as to the nature and precise extent of such rights.

7. The High Court proceedings were in effect, at the instigation and with the consent of the parties, superseded by a public inquiry. The First Respondent presided over the public inquiry. The Applicants actively participated in the public inquiry and were represented by counsel. The First Respondent in his report dated March 2010 but only published in May 2010 concluded that certain paths in the area could be deemed to have been dedicated as public rights of way for the purposes of section 88 of the Highways Act 1986.

8. The Applicants in June 2010 produced their objections in relation to the First Respondent’s report and also applied for leave to re-amend their petition to allege in effect that the Second Respondent was wrong to rely on the First Respondent’s report and applying for a declaration that such reliance violated the Convention rights of the Applicants. Their application was heard in September 2010 and a judgment refusing such leave was delivered that month. In that judgment I stated that insofar as the proposed re-amendments were based on attacks on the Inspector or his findings these should have been the subject of a separate doleance claim and the relevant requirements of the Rules of the High Court of Justice 2009 should have been complied with.

9. The Second Respondent in September 2010 applied for leave under section 92(7) of the Highways Act 1986 to amend the definitive map and statement in relation to certain paths.

10. In March 2011 I delivered a judgment in respect of the nature and extent of the jurisdiction of the High Court under section 92(7) of the Highways Act 1986. In that judgment I stated, amongst other things, that any allegations of the objectors on doleance grounds should have been pursued on a timely basis long ago by the filing of a doleance claim subject to the doleance procedure. The section 92(7) hearing is yet to take place.

11. In April 2011 the Applicants applied for leave to file a doleance claim out of time and also applied for an order that I recuse myself from hearing and determining the application for leave to file a doleance claim out of time.”

The Applicants requested an order that the First Deemster recuse himself in relation to the hearing of the application for leave to file a doleance claim out of time because in “two sets of earlier proceedings (CHP 09/0016 and CHP 10/0107), the First Deemster made determinations adverse to the Applicants, relating directly and specifically to matters at issue in the present Application.”

It was common ground that the general test for recusal was whether a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was or would be biased.

The First Deemster held that the comments and determinations in his previous judgments did not relate directly and specifically to the matters at issue in the application for leave to file a doleance claim out of time.

The First Deemster further held that a fair-minded and informed observer having considered the facts and considering the comments and determinations in the previous judgments in their proper context would not conclude that there was a real possibility that the First Deemster was or would be biased in his consideration of the application for leave to file a doleance claim out of time. The First Deemster dismissed the recusal application for the reasons specified in his judgment.

The First Deemster concluded his judgment with the following words:

'126. I have not been persuaded that any grounds exist which would justify a decision to recuse. I can appreciate that the Applicants may well have been disappointed to receive my judgments of the 29 September 2010 and the 15 March 2011 and may not have agreed with certain parts of them and would prefer that another Deemster be allocated to deal with their application for leave to file a doleance claim out of time but that is not the appropriate test for judicial recusal. I have applied the appropriate test to the circumstances of this case and have concluded that it has not been met. The Recusal Application is therefore dismissed.'

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