The Courthouse,
Aldwark House,
Aldwark,
Off Goodramgate,
York YO1 2BX.

Tuesday. 6th July 1993.

 Before:

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-v-

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(Tape transcription by Marten Walsh Cherer Limited,
Midway House, 27/29 Cursitor Street, London EC4A 1LT.
Telephone No: 071-405-5010)

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Mr. R. TAM appeared on behalf of the Plaintiff.
Mr. K.R. STARMER and MISS KAUFFMANN appeared on behalf of the Defendant.

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Mr. Justice Cresswell on 28th August 1991 transferred this case from the High Court, where the plaintiffs had started it, to the Harrogate County Court, and thence it was transferred to York, no doubt on the basis that the facilities at Harrogate were hopelessly inadequate.

The 28th August 1991 was the very day on which the defendant, Mrs. Percy, filed her own defence, drafted on the face of it by herself. Whether or not she had any assistance with it, it certainly raised issues which I would have thought were apparent at the time to be probably more suitable for trial in the High Court than in the County Court, and it seems clear that Mr. Justice Cresswell enquired specifically of counsel for the Secretary of State for Defence who was there, and Mrs. Percy who was unrepresented, whether there were going to he complex issues of fact or of law and if anything of the kind would arise which would make it unsuitable for trial in the County Court. Both said no. Mrs. Percy can be forgiven for that, but I find it incomprehensible that counsel for the Secretary of State could have said no to that question. It seems quite clear that the judge was concerned about this matter at the time.

Firstly, there are in this case complex issues of fact. That in itself would not lead me to contemplate sending the case to the High Court. County Court judges are accustomed day in and day out to having to sort out complex issues of fact. But secondly, it has become quite clear that whoever tries this case will have to consider the meaning of various documents, domestic documents, passing between the United Kingdom Government and the United States Forces, will have to consider the meaning of agreements between the United Kingdom and other sovereign states, in particular a NATO agreement and international treaties, and whoever has to consider their meaning will have to consider what effect they have under English law. That of itself inevitably means that this case raises questions of importance to people who are not parties to this action, notably, of course, the United States authorities. Inevitably it means that questions of public importance are involved. The general public interest in the defence of the realm and the relationship between the United Kingdom Government and the visiting forces, in this case the United States, is clearly a matter of general public interest. If the defendant's contention is right, it inevitably means that in any future proceedings that evolve through the protection of the facility, whatever it might be, would have to be brought by the United States authorities, and that in itself inevitably means that questions of sovereign immunity become involved, and so the judge who has this case to decide inevitably is dealing with international comity and sovereign immunity.

The plaintiff says that the basis of the agreement between the United Kingdom Government and the United States Forces is set out in an annex to the affidavit that they served this morning, PL1. The defendant says that is not right, and that the way that the land is held is not governed by the document in PL1. In the end I do not see that it is necessary for me today to come to any decision as to which side is right about that. The reality is that underneath all of this the plaintiffs are saying that the royal prerogative is involved because the defence of the realm is at stake, that this was a mutual agreement between Her Majesty the Queen's military advisers as to how to deal with land in the ownership of the Crown for the better defence of this country.

Whatever written documents are involved it seems to me clear that whoever tries this case is going to have to delve into the depths of the history of the royal prerogative in relation to the defence of the realm.

Quite apart from any questions of international comity, the construction of treaties, or of a royal prerogative, whoever tries this case is going to be faced with a question of law as to who is entitled to take proceedings for trespass - the owner of the land, or the person directly in possession of it. I do not see that the facts surrounding that are particularly complicated. I think a County Court judge should be able to sort out the factual process, but the reality remains that somebody is going to have to look back to the entire history of the action for trespass starting from the writs of praecipe and ostensurus quare and continuing to the present day.

Whatever I might feel about my own training and background, (it, oddly enough, does encompass a certain amount of legal history) the reality is that for thirty years I have been, as all provincial County Court judges, I think, have been, a common lawyer: and questions of law relating to trespass are plainly more suited to be dealt with by those who have done nothing but Chancery work for their active working lives. I have to say therefore that, for a whole variety of reasons, this case should have been in the High Court to begin with, and should never have been transferred down. I find it almost beyond belief that all of us should be here in this room in a provincial County Court, (even in such an ancient legal centre such as York, after all the second city of the Kingdom): but here we all are, anticipating a trial which was listed for five days. In my view that estimate is grotesquely inadequate. It is inevitable that somebody is going to have to spend probably two weeks looking at all the authorities involved here.

Finally, one look at this room Itself really should demonstrate to anybody that in practical terms this is not a case which ought to be held in the County Court. We are stacked with documents In all directions. Fortunately, because of modern photocopying, I am still visible behind the bundles of photocopies that have been put in front of me. If the authorities themselves were to be provided, there is no question but that this room would be hopelessly inadequate in size. There is no law library worthy of the name in this city. Indeed, when it-comes to going back to the earliest source of materials, the nearest law libraries are, I expect, in Cambridge and London. County Court judges are here in the ordinary way to dispense justice quickly and summarily; originally, of course, in smaller claims. The financial jurisdictional limit on a County Court judge used to be very low. There were never any provisions for tape recording or shorthand writers, or anything of that nature. This is, by its nature, a court of summary jurisdiction. Indeed, once upon a time it was particularly the small claims court.

A County Court judge has no personal clerk to carry anything for him, no hope of any resource to any back-up in the sense of trained personnel to do any of the work necessary to look out authorities, and it seems to me that for purely practical reasons it is an absurdity that we are all here waiting to start a case of this nature. It is in a sense; if I say a State trial, that is perhaps raising Mrs. Percy to a status that in too great, but it is beyond argument that this case raises issues which should have been dealt with in the High Court.

I think the last time that I had to deal with this case over disclosure, I made it quite clear then about the length of time this had taken to get to court, and I have in many ways a great sympathy for Mrs. Percy that it has taken so long, and I made it quite clear on that occasion that the case really ought to be dealt with and tried as soon as possible. Indeed, effectively I forced the case on in front of myself today, and I rather kick myself because I think it Is in part my fault that I did not query on the last occasion quite openly the subject of whether this case really was suitable for trial in the County Court. Indeed I think I should have queried the estimate of time of five days on that occasion, but unhappily, of course, that was the first time that I had seen anything of this case at all, and it took some little while even to begin to understand what the arguments were about.

The fact is that this case should never have been in the County Court, and in my judgment must go back where it belongs before a Chancery judge in the High Court of Justice.