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 THE HERTFORD COUNTY COURT
(MR RECORDER ANTHONY)

		Royal Courts of Justice Strand London WC2
		13 October 1998

LADY JUSTICE BUTLER-SLOSS: This is an application for leave to appeal in a boundary dispute. We are faced with a reamended draft notice of appeal (that is to say the third version) and counsel has since Friday, when legal aid was provided to this applicant, certainly worked enormously diligently to provide us with the reamended draft notice and a skeleton argument.

Counsel who represents the applicant was not in the court below. He is to be commended for his diligence, but I would not really think for anything else and in particular I am, speaking entirely for myself, extremely concerned that this boundary dispute should have attracted legal aid on the application for leave to appeal. In my view it is a misuse of legal aid and at a time when we are being told that deserving people are not getting legal aid, because of the cost to the public of excessive public money being used for litigation, it is peculiarly sad to find that it should have been spent on this rather arid exercise with which this court is being asked to deal today.

The defendant is applying for leave to appeal from the decision of Mr Recorder Anthony in the Hertford County Court sitting at Luton on 7 July 1997. There were two consolidated actions in dispute over property boundaries, easements and other rights. They started in the Chancery Division and were transferred to Hertfordshire. The properties are called Owls Hatch Cottages, Brickendon Lane, Brickendon. They are three terraced cottages, each with a garden and each having a plot of land comparatively close to their respective gardens which were called by the Recorder and which I shall call the "away gardens". House one has away garden 1A; house two, 2A; house three, 3A.

The plaintiff owns house one and away gardens 1A and 2A. An individual who is not caught up in this unfortunate litigation lives at house two. House three and away garden 3A, along with two pieces of land, together comprising some 22 acres, the field, are owned by the defendant.

In 1959 a Mr Kingman bought house two and split the land, particularly the away gardens, into different parcels. On 18 December 1962 the plaintiff and his wife bought house one. In 1975 a Mr Peters bought house three. In 1978 another party bought house two and in 1980 the defendant (applicant) bought house three and garden 3A from Mr Peters.

In 1986 the plaintiff and his wife parted and were divorced. They divided houses one and two between them and the plaintiff kept the gardens 1A and 2A to which I have already referred. The plaintiff's wife kept house two. She rented it out and then she sold it. As I said, the present owner of house two is not involved in the dispute.

Unfortunately there was a deteriorating relationship between the plaintiff and the defendant arising from the early part of 1991. The plaintiff placed a pump and a diesel tank in 1980 on away garden 3A. He was asked to remove the items by the defendant. The defendant then, in I think 1990 or 1991, not having had the plaintiff take steps quickly enough, himself removed the items owned by the plaintiff from away garden 3A and placed them on the plaintiff's land, 2A (apart from a boat and a trailer which he towed from 3A to the 22 acre field). The defendant then erected a fence which the plaintiff said was partly on his land. Not very surprisingly, after this exchange of disagreements, proceedings started in September 1991.

There was an interlocutory order before Mummery J on 19 September 1991 whereby the defendant was precluded from dealing with what turned out to be entirely his property, that is to say away garden 3A.

The judge made a number of important findings of fact and, perhaps even more importantly, findings of credibility which were not very complimentary either to the plaintiff or to the defendant, but for the purposes of this application for leave to appeal particularly unhelpful to the defendant.

The major claim on behalf of the plaintiff was a claim for adverse possession over twelve years in respect of away garden 3A where he had installed his pump and tank and he lost that claim. There is no appeal by the plaintiff against the claims of adverse possession and lesser claims of rights over 3A. The plaintiff also claimed in trespass by the erection of the fence by the defendant. He also sought to preserve a right of way into what was called "Back Lane" about which the Recorder found that both parties ought to have a right of way along Back Lane into the away gardens over, I believe, a bridge over a ditch. Perhaps more important than that was an electric cable running from the plaintiff's house to a shed on the plaintiff's away garden 1A which crossed the defendant's land. It was installed in 1963 or 1965 by the plaintiff. It was running over the land at a time when it was owned by Mr Peters' predecessor and it was still on the land when Mr Peters bought it. Mr Peters lived there for a few months and then he let the land. This was, I think, in 1975. He sold it to Mr Dace, the defendant, in 1980. So he owned it for some five years and for probably four of those five years he was not in occupation, but the cable was still there. In 1980 it appears from the evidence of Mr Dace that he asked for the cable to be taken down. The judge did not accept that evidence, but even if he had accepted it, the fact is that the cable continued to be running across Mr Dace's land until 1991 when he cut it. So it appears to have been in place from either 1963 or 1965 to 1991. The judge found that there was an easement in respect of that cable, either by lost modern grant or by prescription.

The effect of the Recorder's findings was that the plaintiff had to remove the tank and pump from 3A; the defendant had to move the fence and the cable was to be replaced. Damages were sought by the plaintiff in respect of a car and boat. In respect of each of those, the Recorder said no damages; lorry tyres, £1,000; a dinghy trailer and a boat trailer, no damages; access to the pump, no damages; damage to the greenhouse, £500; the cable cut, £1,633; damage for trespass to the fence at 3A, £400; and to 2A, £850. So the total trespass was £1,250 and there was a harassment figure of £500. The total of all the sums on which the plaintiff succeeded was £4,883.

In relation to the counterclaim over the land at 3A, where the plaintiff had claimed unsuccessfully adverse possession, he awarded a sum of £2,900. He rejected a loss of profit claim. He rejected damages to the boat on the defendant's land; he allowed a very small figure of trespass of £5; and he rejected the defendant's claims as to harassment and his claims for exemplary damages. So he awarded the defendant the sum of £2,905 which was set off against £4,833 and he ordered the defendant to pay the set off figure of £1,978. This was after six days of hearing and either three or four site visits by the Recorder to look at the properties and see for himself what the parties were fighting over.

The minute of order was drawn and was clearly seen by solicitor and counsel for both sides and was signed by the Recorder. On the reamended draft notice of appeal the first point taken by the applicant (and since counsel has come on the scene I will ignore the earlier claims made by the defendant as a litigant in person) is regarding Back Lane. It was said, once we got down to the core of this complaint, that the defendant applicant does not object to both parties having a right of access along Back Lane over the bridge over the ditch to the away gardens; his complaint is principally that it goes over some 19 feet of his land and the result of that is it is far too wide for what is needed; that there is no evidence it was vehicular access and it is quite unreasonable that this amount of land should be taken up; that the words which were inserted into the order in respect of Back Lane for all purposes were inserted by the plaintiff's lawyers; that this was not with his agreement; that there should be a very modest right of way and that effectively his lawyers let him down is the only inference one can draw from the failure to criticise the minute of order which was signed by the Recorder. The Recorder said in respect of Back Lane:

"It seems to me, I have to say, so far as this court is concerned to be a non-event."

The Recorder said:

"I consider first the entrance into Back Lane. On my findings this is land which as to somewhere around two-thirds to three quarters goes with 2A and as to the balance with 3A. However, since 1959 or so when the plots were first set up, it appears that the occupiers of all three plots quite happily used the entrance as and when necessary. As there is now unity between 1A and 2A, [both owned by the plaintiff] though I concentrate on 2A and 3A. It would be a ridiculous state of affairs if the owner of 2A could only use between 2/3 and 3/4 of the entrance and the owner of 3A only between 1/4 and 1/3 of it and if possible the Court should seek to avoid such an unfortunate finding. The method of doing so would be to find that each had obtained by way of prescription a right of way across that part of the bridge affording entry over the ditch to the away gardens which did not belong to him."

He then went through the route that he might achieve it and he said:

"... I am satisfied on the evidence that the owners of 2A and 3A have over a period of more than 20 years enjoyed the right of access over that entrance from Back Lane as of right and that such enjoyment was, to use the Latin phrase, nec vi, nec clam, nec precario, indeed there is not really any suggestion to the contrary."

So far as these attempted applications for leave to appeal are concerned, as I understand the argument by Mr Lamacraft (who has come into this case at a very late stage) his client does want the opportunity for both parties to use it but to a much lesser degree. The extent to which that lesser degree should be used and exactly what the width should be and how in fact it should be achieved is a matter which nobody, least of all the applicant, has sought fit to explore. It is comparatively recently that this particular point has been raised. Under the previous claims of the applicant in person it was put entirely differently.

This seems to me to be, I have to say, a mountain made out of a molehill. I would have thought it was not beyond the wit of the parties to work out exactly where this right of way should be, but I do not think it right for the Court of Appeal to try by giving leave to correct that which the defendant's own lawyers failed to deal with at the hearing, that is to say to the Recorder "We do not accept on behalf of our client the width of this right of way and we wish it to be clearly defined". None of that was done. The Recorder came, after 6 days, to an utterly sensible and commonsense approach to a problem which had been no problem at all for some 20 years and had only arisen because the parties were at odds with each other, being more or less next door neighbours. The result to which he came was one which was not criticised by the lawyers at the time, whatever Mr Dace in the background might have been saying. He is bound by the approach of his lawyers, represented as he was by solicitor and counsel, and it is far too late to ask the Court of Appeal to interfere at this stage.

The next matter which is raised in the reamended grounds of appeal is the cable. Mr Dace gave variable evidence about the cable which the Recorder did not accept. Mr Peters gave evidence, Mr Dace's predecessor of the house. His evidence was accepted by the Recorder. The Recorder (at page 21) found that the cable did pass over garden three. The Recorder accepted that it was in position by 1965, if not earlier. He accepted that Mr Peters did not know it was there and he found that this was a right which was enjoyed, if not for a period co-extensive with the memory of man, then at least for more than 20 years nec vi, nec clam, nec precario and hence that both under the Prescription Act 1832 and under the doctrine of lost modern grant the plaintiff has made out his claim to an easement to enable him to pass his electricity cable over the apex of garden three and over the north-east corner of 3A.

There was strenuous application for leave to appeal against that finding based upon various legal principles and we were invited to look at a decision of Vice-Chancellor Pennycuick: Diment v Foot [1974] 1 WLR at 1427 in which the Vice-Chancellor found the general proposition that the presumption arising from long user of an alleged right of way - that the owner of the alleged servient land had knowledge or means of knowledge of such user - did not extend to the owner's agents and since the plaintiff had no actual knowledge of the relevant user" etc. etc. in that particular case there was no easement. But that was a case in which the use of the land had been by vehicles across a field some ten or twelve times a year and the plaintiff in that case had been living away from Dorset for almost the whole of the period where the use had been enjoyed.

In Union Lighterage Co. v London Graving Dock Co. [1902] 2 Ch. Romer LJ said at page 570 (and I am taking it from Diment for convenience):

"... on principle, it appears to me that a prescriptive right to an easement over a man's land should only be acquired when the enjoyment has been open - that is to say, of such a character that an ordinary owner of the land, diligent in the protection of his interests, would have, or must be taken to have, a reasonable opportunity of becoming aware of that enjoyment."

Stirling LJ said at page 574:

"I think that Dalton v Angus establishes that there must be some knowledge or means of knowledge on the part of the person against whom the right is claimed."

In this case the cable is permanent, not used from time to time. It was put up in 1963 or 1965. It stayed up for everyone to see until it was cut down by the defendant in 1991. Mr Peters' predecessor saw it; Mr Peters had the opportunity to see it, if he had only looked up; Mr Dace saw it and had the opportunity to have it taken down. But from Mr Peters' predecessor - Mr Peters for his five years; ten years, five years and then six years or more - there were eleven years in fact with Mr Dace before he cut it. It seems to me that those words "an ordinary owner of land and diligent in the protection of his interests must have been taken to have a reasonable opportunity of becoming aware of that enjoyment" - the Recorder saw where it was. The Recorder took the view on the evidence and on the law that there was an easement created and I cannot see that if that matter is raised in the Court of Appeal, if leave is given, that there would be any prospect of success.

The next matter is a question of where the fence should have been and this depends upon whether or not certain trees planted by Mr Peters and certain other trees planted by Mr Dace are or are not on the land owned by Mr Harrison. Mr Lamacraft accepts that in order to succeed on that ground he would have to ask either for additional evidence from an expert to identify the trees in order to show that the Recorder got it wrong or, alternatively, that Mr Dace should give evidence on affidavit. The problem is that Mr Dace's evidence was not accepted by the Recorder, so how could an affidavit be accepted on appeal, if indeed the Ladd v Marshall rules permitted that to happen. Mr Dace can only have one bite of the cherry and if his evidence is not accepted by the Recorder it is too late for us to look at it, even if we were disposed to consider disagreeing with the Recorder which it is most unlikely that we should. Equally an affidavit from an expert as to where the trees really were is a matter that should have been presented to the Recorder and it is far too late to bring it to us. In the absence of that additional evidence, Mr Lamacraft appreciates that is a ground that he cannot pursue.

The last matter is in relation to damages. There is on the face of it a certain disparity in the damages awarded to Mr Harrison and the damages awarded to Mr Dace. The reasons why there is that disparity have been set out with a great deal of care in the very careful judgment of the Recorder. The only point to which Mr Lamacraft can really point is the fact that his client got £2,900 in relation to the non-use of the bit of land 3A. The Recorder can only deal with damages in a case like this with a very broad brush. It is a matter for his discretion. It is rare for the Court of Appeal to interfere with the exercise of discretion of the trial judge, awarding damages in cases like this. Although there might, as I say, at first blush be a certain discrepancy, one might have thought - reading what the Recorder said I cannot, for my part, see that there is the slightest possibility of the Court of Appeal interfering with the careful reasons why he came to the decisions to which he came. At the end of the day this is a case which raises questions of fact and the exercise of the Recorder's discretion. He saw this land; he heard these parties; he heard the evidence and he dealt, it seems to me, extremely well, extremely carefully with a difficult boundary dispute, where the money is small, where the exacerbation of bad relations is very great and where this is an obvious example where litigation should stop at the door of the court of the trial judge and should not spill over into the Court of Appeal which is the very good reason why it requires leave to appeal in a boundary dispute. For my part I see no reason to grant leave. I do not see any prospect of success on any of the findings to which the Recorder came or on any of the third set of grounds upon which this applicant is trying to get leave and I would refuse leave.

SIR PATRICK RUSSELL: I agree.

Order: Application refused with respondent's costs up to 9 October, thereafter no order; legal aid taxation of both parties' costs; transcript to be made available to the Legal Aid Committees at public expense. (This order does not form part of the approved judgment)