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EXTRACT FROM CHAPTER 16 OF THE LATE STEPHEN KNIGHTS BOOK,
"THE BROTHERHOOD".
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.
Contents 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 N