IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NEWCASTLE UPON TYNE
(MR RECORDER HIRST)
B e f o r e :
Vice-President of the Court of Appeal (Civil Division)
LADY JUSTICE ARDEN
|PATRICIA RENEE SMITH|
|PAUL DANBY BROUGH||Defendant/Applicants|
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR B DENYER-GREEN (instructed by Messrs Savages, Newcastle upon Tyne, NE1 1DF appeared on behalf of the Respondent
Crown Copyright ©
The judgment below
"My conclusion is that the parties had two matters in mind. First of all, they knew that this was the boundary and not only delineated the boundary but was going to represent the boundary between the two properties, hence the reason for the very substantial four by four posts being used, which were, as I find, concreted in place. The concreting is referred to at page 209 of the witness statement of Mr Adam. He says in paragraph 4,: 'All the fence posts and mesh fence were concreted in the ground. Concreting means that it is there for a substantial period of time. The size, again, means the degree of permanency is intended."
The Judge went on to make findings about what happened after this fence was erected, but I am not concerned with that part of his judgment.
The appellants' submissions
The Respondent's submissions
"The rule in Ladd v Marshall is an example of a fundamental principle of our common law-that the outcome of litigation should be final. Where an issue has been determined by a decision of the court, that decision should definitively determine the issue as between those who were party to the litigation. Furthermore, parties who are involved in litigation are expected to put before the court all the issues relevant to the litigation. If they do not, they will not normally be permitted to have a second bite at the cherry: Henderson v Henderson (I843) 3 Hare 100. The reasons for the general approach is vigorously proclaimed by Lord Wilberforce and Lord Simon of Glaisdale in the Ampthill Peerage  AC 547. Both statements deserve the most careful attention. However, for reasons of economy we will cite only Lord Wilberforce, who presided, but we give reference to Lord Simon's speech, at pp 575E-576H. Lord Wilberforce said, at p 569:
'English law, and it is safe to say, all comparable legal systems, place high in the category of essential principles that which requires that limits be placed upon the right of citizens to open or to reopen disputes. The principle which we find in the [Legitimacy Declaration Act 1858 (21 & 22 Vict c 93)] is the same principle as that which requires judgments in the courts to be binding, and that which prohibits litigation after the expiry of limitation periods. Any determination of disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book. The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interest of peace, certainty and security it prevents further inquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: these values cannot always coincide. The law does its best to reduce the gap. But there are cases where the certainty of justice prevails over the possibility of truth (I do not say that this is such a case), and these are cases where the law insists on finality. For a policy of closure to be compatible with justice, it must be attended with safeguards: so the law allows appeals: so the law, exceptionally, allows appeals out of time: so the law still more exceptionally allows judgments to be attacked on the ground of fraud: so limitation periods may, exceptionally, be extended. But these exceptions to a general rule of high public importance, and as all the cases show, they are reserved for rare and limited cases, where the facts justifying them can be strictly proved.'"
"On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including-
(a) the interests of the administration of justice; (b) whether the application for relief has been made promptly;
(c) whether the failure to comply was intentional; (d) whether there is a good explanation for the failure;
(e) the extent to which the party in default has complied with other rules, practice directions and court orders and any relevant pre-action protocol; (f) whether the failure to comply was caused by the party or his legal representative;
(g) whether the trial date or the likely date can still be met if relief is granted;
(h) the effect which the failure to comply had on each party; and
(i) the effect which the granting of relief would have on each party.
(2) An application for relief must be supported by evidence."
Order: Application refused. Applicant to pay respondent's costs to be schedule of detailed assessment, if not agreed. Payment of £12,500 costs on account within 14 days.