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The Times September 2010 - 1

The Times September 2010 - 2

Chris Mullin Daily Mail Article

Boris Johnson interview 1998

The Jones Family

Michael

Chronology

Hedgeman - The Book

The Berlin Wall

Into the Roaring Nineties

1991 Stanton Turns Really Nasty

Annus Horribilis

The End Of The Annus But Not The Horribilis

The Judgement

The Hand Of Peace

Fame

The Big One

No Carte Blanche

Come On Stanton Pay Up

April Fool

Niniteen Ninety Seven

A Little Help From The Lord

THE JUDGEMENT: THANK GOD IT'S ALL OVER; BUT IS IT?

We stood for Recorder Woltan. We sat on the second bench, our barrister at the front. Beside me was my precious bundle, every paper numbered and indexed from the preliminary trial. Next was Lynne, young, slender and very clever. She was Philip's assistant, temporarily employed by Ray Burford's firm and studying for her law exams. Her bundle was indexed to match the judge's and the opposition's, so mine was already out of date. I could still lay hands on any paper from memory, but I began to appreciate how the photocopier had swollen litigation. The judge sometimes couldn't find a paper, and it was occasionally convenient just to tear one out of the ring file.
Stanton v Jones was a minor dispute in its early stages and then, like Leylandii, it grew. Afterwards Ray had me clear my garage for the bundles. Counsel's chambers did not file anything. We once found our prize affidavit on the floor, and everything had to be resubmitted with each briefing.
Mr Pepperall, for the Stantons, looked even younger and fresher-faced, with a wig so new. Abe was behind him. Where were the Stantons? There was room for only one, and they would not part.
Counsel is a commanding figure in court. Philip Kremen changes character with wig, gown and courtroom. I admire him enormously, though I am prejudiced against lawyers. Court journalists told me he was the most outstanding Counsel they had reported, and Ray said he was a regular visitor to the White House in the Clinton era. Outside court he can be negative and abrupt, but he can instantly switch on genuine compassion. He is ideal for my purpose.
Philip opened:
"Good morning, your honour. My name is Philip Kremen and I have been instructed, albeit at a very late stage indeed, on behalf of Mr Jones."
He cited cases against the "adverse possession" finding I had expected to lose, because I had scarcely defended it. Halfway through he said,
"I put a marker down, if I may, on behalf of Mr Jones. I understand that he represented himself and acquitted himself very well."
"Indeed, most certainly," replied the judge.
Philip's own mistake might have sunk him had the opposition spotted it. My conveyance and John Wetherell's measurements showed the trees were never on my land. The conveyance and land registry documents gave measurements as "thereabouts", and the Stanton discrepancy was six feet out. If the trees were on neither property they would belong to Bournville Trust. Ian had measured his own house against his conveyance and found it six feet out too. We could have wasted another expensive court day arguing that, but my essential issue was whether I had the right to reduce the height of the trees.
The judge had committed his decision to writing and handed down copies. The interim judgement runs to nine pages and is not part of the day's transcript. In summary:
" It was a dispute between elderly gentlemen with determined views on their rights.
" The violence and police involvement were irrelevant to the issues.
" He spelled John Wetherell's name wrongly throughout.
" He made a huge decimal-point error, stating the trees were 114 to 135 centimetres from the chain-link fence. That is a whole metre out, and it mattered greatly later. Nobody noticed, and we had to go back to court to have it corrected.
" He defined a hedge in terms that became famous in case law: "A number of woody plants, whether capable of growing into trees or not, which are so planted as to be in line and which, when mature, to be so integrated together as to form both a screen and a barrier."
" He held that a hedge need not mark the precise boundary line, because he mistakenly thought it stood a metre from the fence. He had confused it with John Wetherell's graph base line. I would have thought that distance told against me, but it suited me, as it would put my south-side neighbours' Leylandii within the law.
" The group of ten Leylandii was a hedge along the boundary and, under the covenants, a party hedge.
" The Defendant had, and has, the right to reduce the height of the trees and associated hedgerow.
I had lost adverse possession, but Philip's marker covered an appeal.
There was a collective intake of breath. As everyone stood for copies I realised the Stantons were directly behind me, strangely quiet. Paul Terry had not crunched his keys or sneered as he had in Judge Taylor's court. I turned right round. They looked pig sick, and the younger man's face went pale. I thought of his mother Freda, at the post box four years ago. Paul Terry is an atheist, but I imagine a primeval voice was telling him, "Never mind son, keep after him and punish him for killing me."
The result followed from John Wetherell's brilliant graphical evidence and from reading the covenant properly, which my previous legal team had refused to do. I was ecstatic, though complete confidence is foolish. Ray had not turned up, and I wondered what I was paying him for.
We waited for Philip to return from his meeting with opposing Counsel with an offer to end the business. I intended to be generous. The injunction had to be lifted, since it was ludicrous to give me the right to cut the trees and stop me at once, and I would keep the trees at their current height. The Recorder said they were "alleged to be at seven feet", but photographs proved otherwise.
Philip came back in semi-panic. The Stantons had shown him colour photographs of my saw cuts, made over three years, each lower down. The stumps were a foot across, while the side branches had taken over the central stem's function and sprang up to fifteen feet. The Stantons maintained that "reduction in height" meant only trimming, and that I had caused irrevocable damage, in effect mutilation. They would not compromise. The old man, pushed on by Paul Terry's inner voices, chose the road marked "revenge" over "courageous decision". I could do nothing, and the judge, exasperated by the futility, said so in a later judgement.
The Recorder had agreed with Mr Pepperall that he would decide my costs if he found for me. Mr P. then introduced a new bundle, with pages carelessly transposed, which caused delay. The claimed measure of damages was the complete replacement of the trees. The cost had risen from £27,000 to £33,000, plus a claim for the appreciation of my property and depreciation of the Stantons'.
At page 15 of the 77-page transcript the old man was sworn. At 84 he declined the bible and affirmed. Philip offered to excuse him and accept his affidavit, a wise move that excused his later savagery. Stanton wanted another day in court and could not resist digging deeper. I had been gentle when I cross-examined him. Philip was not, and he made the old man lose his temper more than once.
Under Mr P.'s leading, Stanton said he would spend my money on a new line of trees. He claimed the Trust required the hedge to stop reflection from his proposed greenhouse, which prompted a long, boring kafuffle about plans and contours that his two experts could not produce. Philip suggested he could not see my house except from a dormer window. Stanton said he could in winter, but the judge pointed out that the photograph, showing a leafless silver birch, was a winter one. Stanton's own apple tree, overgrown since his wife's death, gave him complete privacy. Philip accused him of making up the plan to replace the trees "for the purpose of today", and he shrieked, "You have got a cheek." Shown the photograph of the trees from Diana Jinks's garden, he said "I want an effective screen" and that the Trust demanded one. That went on for fourteen pages of transcript.
The case did not resume until 28th November 1995, two years and ten months later. The fault lay entirely in the Stanton propensity for hole-digging. Transcripts cost £1,000 and I paid half.
After lunch Stanton was back in the box. He feigned deafness, as he used to when Freda hammered on the windows for him to come and eat. He claimed people in my house had looked down at him with binoculars. Kremen replied that Stanton had built an observation tower to look at the Joneses, and asked how long it stayed up.
"Three weeks," said Stanton. That was a deliberate lie. It was five months, as my affidavits and counter-claim recorded. Stanton denied that the Trust shared the concern about the trees' height, then lost his temper: "I'll answer your question in my own way if you don't mind." When Mr P. intervened, Kremen offered, "I don't think we need audience participation." Mr P. re-examined, leading his client into fabrications about "goings on" at my house, until the judge said, "I think that is fairly obvious."
Next came the main witness, tree man Roy Finch, on the necessity and exorbitant cost of replacement. His evidence took twenty-three pages, and the judge reprimanded Mr P. for leading him. I went to the loo and took my time. Finch lied about the height of the trees when he took his lurid photographs from the scaffold tower, which could be disproved by counting the rungs of the ladder propped against it. Philip suggested taking the property witnesses from both sides now, to spare the expense of another day. All agreed, and it took ten pages the judge later called unhelpful.
The Recorder then adjourned to 27th May for two days including a site visit, remarking "if that was necessary", a hint at settlement. I thought that surely now the old man would put an end to it.
Instead the Stantons plunged into the hole and dug furiously. They went to the Court of Appeal, the most expensive court in the land, which put £32,000 more at stake. Perhaps they thought it would force a settlement. Ray had told Abe about our precarious finances, and these private calls between solicitors used to worry me.
A month after the hearing the old man applied to Judge Dorman for leave to appeal. He ruled that, if the judgement was interlocutory, the Plaintiff had leave. It was done in our absence, which was wrong. Ray wrote to Abe, after consulting Philip, that it was not interlocutory, citing three judgements. I spent days in the University Library with the White Book and could not decide; the precedents were not quite the same. Ray told Abe the time to appeal was when the whole case was over. In refusing his advice they delayed the end by another two and three-quarter years, while the hedge went on growing like mad.
Had the Recorder visited in May, he might have ruled against us. The end of the hedge had a weak point that neither the Stantons nor their lawyers had spotted. A freak, localised snowstorm of very light, powdery snow had blown into ridges across the houses, then heavy rain followed. The combination sliced through the left end of the hedge and flattened my "Sky Rocket" conifer and my camellia. There was daylight between the last two trees. Through it you could see the neighbour's house, showing that the last three trees were not in line of sight with the old man's house. A large laurel and the greenhouse stood in the gap and hid it from the Stanton side. Nobody noticed, and it took years to recover. If anyone had pointed it out, my explanation would not have been believed.
Ray brought Philip to view the site. When I started to explain the gap I was told to shut up. Philip examined the cut trunks above eye level, and the lawyers left.
A "Calderbank" proposal was suggested, similar to the "Tomlinson Agreement" my solicitor friend had mentioned. You pay a sum into court while the judge is kept ignorant of it. If the claimant's awarded damages and costs exceed it, you pay the difference; if not, he gets nothing. I asked what sum the Stantons would take to abandon the action. I was convinced they meant to ruin me by attrition, and it did not address the injunction. Why did my advisers not remind themselves that I had won the judgement? Ray then pressed for indemnity over the appeal, and Abe gave a solicitor's honour guarantee that his client would pay the costs should he lose.
At a conference at Lincoln's Inn, Kremen was affable and relaxed. We stressed that the Recorder had to amend his figures. A week later in court that was easy. Shown the figures on the plan, he moved the decimal point and deleted with his pen. Abe did not understand the alteration, and neither at first did Ray. Yet Counsel had already used the unaltered figures before Judge Dorman. I learned the amended order had to go into the bundle for the Court of Appeal, which is not brought up by officials from the lower court. A mislaid paper with crucial figures might even cost a life; the last successful appeal against a death sentence was thirty-seven years earlier.
The site visit was then cancelled, and the Recorder granted the Stanton application to adjourn until after the appeal, for two and a half years. Counsel charged £1,000 for that attendance and John Wetherell another £1,000.
I prepared meticulously for Mr P.'s cross-examination, wrote everything up for Ray and checked he had read it. It was never needed in that form, but it stayed with my team. Then Ray made a major mistake without consulting me. He sent Lynne to serve a subpoena on Mr Thomson, secretary of Bournville Village Trust, who had promised to go into the box voluntarily. It damaged my relationship with him badly. The writ was also out of date, and Lynne returned with her tail between her legs. Ray was scarcely apologetic. I said I would not pay for it, though he never sent an account. Philip, at his most negative, was worried about escalating costs and my ability to pay. Maureen and Ian, for once agreeing, wanted to sack our second legal team to conserve resources.
An aside on a similar case. Peter Harland of Hertfordshire had his chainsaw-wielding son "execute" a line of giant redwoods, intending to present his neighbour with a fait accompli and a charity donation. He attended my hearing and realised he was in deep trouble. He had given no notice or negotiation, so "abatement of nuisance" was unavailable. The trees were plainly a line, not a hedge, and there was no boundary-hedge covenant. He settled heavily, I believe £6,000 plus costs. He was lucky not to face replacement by mature specimens, which is what Stanton was demanding of me.
At the end of the litigation I had written a hundred letters to Ray, all on Stanton v Jones. The Stanton team challenged them at the costs assessment, but the tax judge, who had them in front of him, rejected the challenge. He did spot checks despite the confidentiality, and said, "In Mr. Jones's position, I would have wanted to ask these questions to my solicitor."
I had insisted from the start that my lawyer must believe emotionally that I was right. The Stantons believed it of themselves, as did some older residents, who held that you could not lean over the boundary and cut your neighbour's property: "It is not cricket." But no one knew of the covenant. Every owner had signed it in their conveyance, and any who bought their freehold had signed up to the Bournville Village Trust Scheme of Management, where it is item one in the schedule. The Stanton lawyers had not read it and got copies of both conveyances from me. My first barrister saw my conveyance minutes before court and cared only about "no right to light or air". Neither side went to the land registry. Maureen and I did, after sacking our first team. Ray, after one of the most prominent land lawyers had done so, said, "You are right; I am emotionally on your side." That was bolder than my judge, who could only pronounce on law.
Ray received my written undertaking to pay £500 a month ("You'll get it all back when you've won", ha, ha). I bought a new Nissan Almera on HP, and, without telling Ray, conveyed my share of our house to Maureen by deed of gift. It would not be effective against bankruptcy for seven years, but it would make it harder to get money out of me. Meanwhile Stanton had illegally transferred his house to his sons after entering his claim as its owner. The judge was never told, and was to ask specifically, "Is there anything else I should know?" More on that later.
I had been dreading press coverage, such as "Business man strikes Peace Campaigner" or "Peace Campaigner Mutilates Pensioners' Trees". I wrote a careful factual account for the local press. Harriet Swain of the Birmingham Post still turned up with a photographer, and the front-page headline was "HEDGE ROW COSTS £50,000". I thought it shocking, but it proved a conservative estimate. The old man attacked the Post's reporter in court. I never made that mistake again.
Life eased a little. We had five days in St Ives in October, where I bought a Cornish plant and carelessly lost it to a frost. At the Bournville Village Trust Gardens Reception in mid-November we won first prize, a cup, a shield and a £100 voucher. I said I didn't believe in competition. Well, I lied. The chairman's congratulatory letter was later cited by my Counsel in court. I was no longer a vandal and mutilator of trees.
West Bromwich Albion, meanwhile, won the play-off at Wembley against Port Vale thanks to Bob Taylor, and a six-hour ticket queue with my brother Glyn revitalised our relationship. I never mentioned my legal difficulties. Ossie Ardiles left for Tottenham and the Albion declined, but I treasure those Saturdays.
I began this chapter as "Glory Days" and changed the title after finishing it, since negatives cropped up. Perhaps it can still be triumphal if I remember only the three terrific things: the Judgement, the Baggies' promotion and the Garden Cup.
Hip, hip, hip, hurray.