Quite hacky notes from today's submissions hearing in the civil case with EE. May tidy them later, may not, as I'm entering a busy period!
We start a few minutes late.
I realise that not only do I like the soup cauldron Ian and Elizabeth have, but also their whistle kettle. I fear I may be buying more kitchen products soon!
EE's representative makes a minor amendment to their pack where some references to specific part numbers of the legislation were incorrect, though the text quoted is correct.
Their pursuance is based on two factors:
1. What right of the land do the defenders have
2. What right they have to have taken their actions
Prevent access to the land by own admission - on the level crossing and on other locations covered by title deed CTH5589 (owned by the forestry company CFLIL).
The case is not solely about the actions taken on the level crossing, but also elsewhere.
Opinion from October - "This does not mean the action is about who owns"
Para 56 - basis that it's not about ownership per se but about rights of use.
Case law is cited (will find exact case law links later and maybe reword this to be clearer) to put forward the notion that EE would only need an ex facie right to access the land, and in the absence of prima facie control, interest of the accesser is then considered instead.
There are three factors to be considered:
1. Sole authorised users of the level crossing
2. The cattle grid
3. The access roads
1. The Network Rail authorised user database is an internal user DB. The DB is simply updated with what people say they have rights to, and is not relevant. Suggestions regarding whether Network Rail had told the couple they were the sole authorised users and could lock the gates or not. Highlights that the ORR guidance the couple put forwards wasn't actually sent to them by Network Rail, and in any case it doesn't say that the couple would have rights to restrict access with the locks. Lord Lake asks whether there may also be public rights of way over it given how long it's been there, to which EE's rep agrees there may be.
2. Regarding blocking the cattle grid and blocking the gate beside it, Howe admits that she secured the gate. No real justification for this has been mentioned thus far. Regarding the vehicle blocking the access: 1) right of access is not the same as parking; 2) the defenders state in their own evidence that it was parked to block access; 3) still no basis set out for why the gate was locked.
3. Blocking EE's access with the makeshift barrier at the road junction. The explanation offered was that this was exercising servitude rights to a private well. EE suggest that the photographic and video evidence doesn't appear to show this. One defender runs towards operatives accessing by foot. This is not an isolated incident where the couple have on multiple occasions prevented EE accessing the land. Regarding removing the barrier, and who removed it, the couple saying that they had removed the barrier to enable access isn't justified as it may have been because the couple needed to move their car. This is a reference to the submission from a sheriff officer that they had it removed it themself.
Summarises this by making references to multiple incidents, suggests they are dangerous. EE have an ex facia right to access the land.
Some more case law/authority is referenced to support the claim to a right of access, whether there's a title deed, a contractual lease, registered lease, etc.
We go through the (now quite tired) arguments regarding the various servitudes, dispositions, titles, The Sutherland and Caithness Railway Act, etc which have been made and the impact they have; which has been well-discussed on this thread already. Though interesting that some English cases are brought into discussion.
Lord Lake goes through the history of individual railway companies -> BRB -> private companies -> where we are today and how this may relate.
Finishes by highlighting that, in relation to the damages, there is a clear act of intent on behalf of the defenders to prevent access.
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Howe starts by saying firstly it is EE's responsibility to establish is a right from the outside with a prima facia right. Secondly that EE has sufficient interest to pursue for damages. Thirdly that the couple have interfered and would continue to interfere.
Clarifies that CFIL has a right on its own land and that the focus of the case is primarily regarding rights to the level crossing.
On the dates of the events, EE's rights were on the basis of an access agreement, not a lease.
The pursuer is not entitled to damages as they haven't proven their right to them.
We go again through the 1970 deed servitude right and the S60 1845 Railways Clauses Consolidation Act statutory basis.
We go through the (now quite tired) arguments regarding the various servitudes, dispositions, titles, The Sutherland and Caithness Railway Act, etc which have been made and the impact they have; which has been well-discussed on this thread already.
Suggests the 1970 deed servitude right doesn't exist because the land had already been disposed of in the 1800s.
Howe suggests that their case relies on Title Conditions (Scotland) Act 2003 which says servitudes rely on both the benefited and burdened properties to be registered. Lord Lake says he will need to go away and check how this may or may not retrospectively apply.
We turn then to whether land registrations by Railtrak Plc are sufficient for Network Rail to say that they own the land.
Howe argues that it's incorrect to say Network Rail's authorised user database is not purely internal and it's important that it's updated for access reasons and also for safety reasons. It is the only source of information regarding who the authorised users are.
We break for lunch.
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On the second point of whether EE had sufficient interest, Howe highlights that there was an access agreement between CFIL and EE, not a contract.
On the third point, Howe argues that the couple had servitude rights which are classed as real rights and can be enforced against third parties. Argues that they had rights to the cattle grid land and a right to park their car on that land. Also that their obligations would be to CFIL, not EE on the basis of their contract with CFIL. They had a 'personal licence'.
Further, EE didn't have the right to sue for the level crossing matters, as they are not CFIL or Network Rail. EE only had a personal licence. A similar position would be taken for the cattle grid in that it would be CFIL, not EE, who would contact the couple to ask them to remove the lock. This is summarised as saying it's a mater for EE and CFIL to sort out, rather than EE and the station cottage owners.
Howe argues that Mather isn't responsible in this case as it related to tenants on the land, whereas EE are not.
We turn to the fence across the road. Some clarification is made that a temporary fence is not a barricade. The point regarding servitude rights vs what EE had which was a personal licence. In reference to works not being undertaken on the water supply at the time, Howe makes reference to Appleby having been strimming, visible on the submitted footage.
A minor issue but Ian is interjecting while not visible on camera. I wonder if this means I could stand outside a court room and whisper my opinions to my other defending party through the door. They're both akin to not being in court? I'm surprised Lord Lake hasn't pulled Appleby up on this to be honest.
Howe challenges a statement from EE's submission regarding witnesses' credibility and reliability, based on cross-examination, wasn't challenged (I had someone at the door here so the exact words may be slightly off); and states the couple's position that this is false and that they had challenged this.
Howe begins to discuss the phone calls with the level crossing manager witness.
Lord Lake interrupts Howe to say that all of what is being said is basically their submission being read aloud. Howe agrees but says she would like to proceed to read it out in open court for the benefit of people watching (dozens of people are on the call apart from the couple, the clerk, and the court room camera).
Returning to the level crossing manager evidence, we come back to what the couple raised a couple of weeks back about the reliability and credibility which came out through cross-examination, regarding whether he was aware conversations were being recorded, who the other authorised user was, and whether he'd said the couple would be entitled to lock the gates. A suggestion is made that the witness may have been coached while providing his evidence, citing the immediacy of evidence and answers produced during cross-examination. It is reiterated that the couple had evidence to submit to support the cross-examination of the witness (whose statement was submitted the day before the hearing started) regarding some of these disputed matters and it was disallowed.
Howe turns to the challenges made a couple of weeks ago regarding the reliability and credibility of the sheriff officer's evidence, particularly in relation to the trail camera which was removed and whether he would've had power to prevent the camera being removed. Air quotes are used to describe the "obstruction site". Lord Lake asks, a few times, for Howe to clarify where the authority to remove the camera would've come from given it wasn't causing an obstruction. Howe makes a comparison with the fence being removed which wasn't causing an obstruction. Similarly that if the third party had tried to take the couple's tools, the sheriff officer surely would've intervened.
In relation to an indeterminate interdict, the pursuer doesn't have a right owing to the previously-cited reasons regarding access rights; and that even so, for 2 years the pursuers have had access to the mast site no issue so it wouldn't be warranted. Reiterates the point regarding the difference between a lease (which is now in place) and a licence (which was what was in place at the time).
Appleby is asked if he has anything to submit. He submits that the trail cam was part of the work site, it belonged to the couple, and that it was stolen in front of a sheriff officer, as the sheriff officer had authority over the whole work site.
A decision by Lord Lake to be made in writing...
drive.google.com
