England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ROTHERHAM COUNTY COURT
(MR RECORDER COLLINS)

		Royal Courts of Justice Strand London WC2
		22 January 1997

LORD JUSTICE MUMMERY: This is an application by Mr Leslie Wildblood for an extension of time in which to appeal, and for leave to appeal, against a decision given by Mr Recorder Collins on 6 August 1996. If I am satisfied that Mr Wildblood had a real prospect of succeeding on this appeal, I would not only grant leave, I would also extend the time for appealing. I am satisfied by his explanation as to why he was three days late in submitting his application for leave on 5 September, 1996.

Mr Wildblood has appeared in person, as he did in the Rotherham County Court in his dispute with the Rotherham Borough Council. The order which he wishes to appeal against was in these terms:

"1) There be judgment for [the Council] in the sum of £1,208.88 in respect of repairs.

2) The boundary of the highway lies along the outside of the wall presently constructed at number 9 Church Corner, Laughton en le Morthern to its junction with number 7 Church Corner Laughton en le Morthern."

The Recorder also made an order for costs against Mr Wildblood and continued an injunction, which had been made on 19 June 1995, in its original terms without limit as to time.

In order to make sense of that order, and the grounds upon which Mr Wildblood seeks leave, it is necessary to give a brief explanation of the dispute. Mr Wildblood purchased 9 Church Corner, Dinnington, near Sheffield, from Mr and Mrs Taylor on 5 February 1967. It is an old building dating back to the 16th century.

The proceedings arose out of a dispute between Mr Wildblood and the Council over an area of land ("the disputed land"). In October and November 1994 there were excavations by Mr Wildblood on the disputed land which the Council claimed was part of the highway, as it had been used and maintained at public expense for 20 years or more. The Council make that claim as the highway authority. Mr Wildblood disputed that claim. He said that the disputed land was part of his property, as owner of 9 Church Corner, and that he had done nothing wrong by making the excavations. He was entitled to do so.

The proceedings before the Recorder, in July 1996, took nearly seven days. They were started by the Council with a simple set of Particulars of Clam which stated that the Council was the highway authority for a road known as Church Corner, and that the road passes over the land immediately adjoining, or adjacent to, 9 Church Corner, of which Mr Wildblood claimed to be the owner. The Council said:

"The Disputed Land has been continuously used as of right by the public as part of the highway for all purposes and maintained by the Plaintiff as a highway for over 20 years."

It is unnecessary to detail the other allegations and the particulars of the damage which the Council say they suffered as a result of wrongful excavations by Mr Wildblood.

Mr Wildblood defended the case. He made a number of allegations against the Council. He counterclaimed for compensation for flooding of his garage, due to the Council raising the level of the road in 1990 two inches above the floor level of his garage.

Those were the issues before the judge in 1996. Considerable evidence was given at the hearing. There were detailed witness statements exchanged beforehand, and witnesses came to give evidence. There was evidence given by Mrs Helen Shephard who lives at Oldhall Farm in Dinnington. Another important witness was Mr James Walker, the highway maintenance engineer for the Council.

The Recorder gave an ex tempore judgment running to over 30 pages. He concluded that, in the 20 years prior to November 1987, the disputed land was treated as part of the road. He concluded:

"The council says this has always been a road and the piece of land [the disputed land] has been treated in the previous 20 years before November 1987 as part of the road and I am satisfied that the council have established that, on the balance of probabilities, that is indeed what happened."

The Recorder said that the highway was not confined to the metal carriageway. It included the disputed land. He dismissed Mr Wildblood's counterclaim for damages caused by the flooding of surface water. He said two things on this point relevant to this application. Firstly, the roadworks carried out by the Council were executed in a reasonably competent fashion and gave no cause for complaint, so there was no nuisance committed by the council; secondly, no significant damage had been caused by the water. The complaint was that water had formed a pool in front of the garage and blew in under the garage door. The judge's conclusion on the evidence was that the water went through to the garage only on rare occasions.

Mr Wildblood does not share the same view as the Recorder about the rights and wrongs of this matter, either on fact or law. He wishes to appeal. His application for appeal, as evidenced by the notice and supporting documents, reveals that he wishes to appeal against findings of fact. I explained to Mr Wildblood, during the course of the hearing, that there are special difficulties in appealing to this court on questions of fact only, particularly where, as appears in this case, importance has been attached by the Recorder, who tried the case, to the credibility of the witnesses who gave oral evidence on material questions.

It is clear from the way in which Mr Wildblood has ably deployed his arguments that he challenges the credibility of two of the witnesses whose evidence was accepted by the judge. They are Mrs Shephard and Mr Walker. Mr Wildblood submitted that Mrs Shephard's evidence, about the presence of a wrought iron gate at no 9 on to the road since 1950, was wrong and was unsubstantiated. He has argued that her evidence was wrong as seen by a number of aerial photographs that were shown to the judge and interpreted for him by Mr Freeman who gave evidence. Mr Wildblood submits that Mrs Shephard's evidence was at variance with the aerial photographs going back to 1966. Those photographs, properly understood, did not indicate the presence of the gate which Mrs Shephard recollected.

Mr Wildblood recognised the importance of Mrs Shephard's evidence as the only direct oral evidence relevant to the 20 year rule. He said that her recollection was wrong and that he should be able to appeal against the finding of the Recorder on the evidence given by her.

The difficulty which Mr Wildblood has (and he sought to emphasise his arguments by reference to a transcript of Mrs Shephard's cross-examination and also to passages in her witness statement), is that the Recorder made a clear finding in his judgment about her evidence. He referred to Mrs Shephard's recollection, to the photographs and to the points made by Mr Freeman on those photographs. The judge said:

"I am not convinced by the arguments which have been presented to me by Mr Wildblood and Mr Freeman that I can draw any inferences that the witnesses...."

(among whom he included Mrs Shephard),

".... are unreliable as to those details. I have come to the conclusion that I believe the witnesses."

In my judgment, there is no real prospect of Mr Wildblood successfully persuading this court to reverse a finding of fact, made by a judge, on the basis of the witnesses he believed after hearing their evidence.

This is also the answer to the criticisms which Mr Wildblood has made about the credibility of Mr Walker's evidence. Again, Mr Wildblood has quoted a few of the details of the evidence given by Mr Walker, and submitted that he was not a credible witness. He has shown me a diary entry relating to evidence given by Mr Walker. He submitted that findings of fact made by the Recorder, based on Mr Walker's evidence, were wrong.

I quote from the judgment where the Recorder referred to the evidence given by Mr Walker on the highway point. He says:

"Accordingly, of course, the evidence of Mr Walker is unanswered by any other evidence. I bear in mind the arguments that Mr Wildblood has advanced to me. I am bound to say on the balance of probabilities I do accept the evidence of Mr Walker because he seemed to me a straightforward man who, whilst his recollection may not be as clear as he makes out, certainly it was sufficiently clear for me to rely upon him as a basically truthful person. In those circumstances I come to the conclusion that indeed Mr Wildblood was willing that the Council should carry out this work."

That is a reference to works carried out by the council on the disputed land in 1990.

I fully understand why Mr Walker's evidence is challenged by Mr Wildblood on this application. But well established principles make it impossible for Mr Wildblood to succeed in convincing this court that it should reverse a finding of fact made by the Recorder, based on Mr Walker's credibility as a witness.

In his submissions, Mr Wildblood referred to many other details which I have taken into account in reading the papers before the oral hearing. He referred to photographs taken as long ago as 1906. He made a special point about the absence of evidence from the Council about maintenance works which had been conducted on what they claim is the highway, and about the absence of documentary evidence produced by the Council. In his written submissions, Mr Wildblood referred not only to the aerial photographs he had produced at the hearing, but also to deeds going back to the mid-19th century and to an enclosure award. He referred to the deeds of a predecessor in title, Mr Arthur Wright, and to ordnance survey maps dating back to the 19th century.

I have taken care in studying the photographs plans and deeds, particularly in bundle B. I have reached the conclusion that there is no misdirection on matters of law by the Recorder. He was correctly asking himself the question, posed by the proceedings, about the use of the relevant disputed land as a highway. The law is clear on that point under Section 31 of the Highways Act which provides that:

"Where a way over any land, other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it."

I have also had regard to the general principles relating to dedication of land as a highway and, in particular, how the extent of a highway is determined. It is clear from the decided cases that the existence of a metal track does not necessarily mean that the public highway is confined to that track. There are many cases in which strips of land alongside the metal track form part of the dedicated highway, and are equally subject to public rights and to the rights of the highway authority, such as the Council.

In my view, the Recorder was entitled to reach his conclusion on the evidence before him. There is no real prospect of Mr Wildblood satisfying the Court of Appeal that the Recorder was wrong in his conclusions on the claim.

I have reached the same conclusion about the counterclaim dismissed by the Recorder. Mr Wildblood repeated the points made to the Recorder about the Council raising the level of the road, thereby causing the flooding. He mentioned that there has been further flooding three times before Christmas. He says that the Council should have been held liable and, if he is wrong about that, he should not have to pay the sum of £1,208 for the cost of repairs because, as shown in a note at the end of a letter. He says that there was an agreement that the work could be carried out by him.

I have reached the conclusion on these points that there is no real prospect of Mr Wildblood succeeding against the dismissal of his counterclaim, or against the order that he should pay the cost of repairs amounting to £1,208. I appreciate that this is no doubt a disappointment to Mr Wildblood. He has spent a great deal of time over the last few years researching and preparing his case. However, there has to be an end to litigation. Under our system, that end on questions of fact, which depend on oral evidence given by witnesses, is usually with the trial judge, unless it can be shown that he was clearly wrong on the facts found. On my consideration of all the documents in this case, there is no real prospect of that being demonstrated.

I would, therefore, refuse leave to appeal.

Order: Leave to appeal refused.