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 SHEFFIELD COUNTY COURT
(HIS HONOUR JUDGE BULLIMORE)

		Royal Courts of Justice Strand London W2A 2LL
		30th April 1998

LORD JUSTICE STUART-SMITH: This is an application for leave to appeal the judgment of His Honour Judge Bullimore, given on l9th December l997 after a six-day trial about a dispute between two neighbours in relation to their boundary. The judge made the following order.

He dismissed the plaintiff's claim in relation to a number of grounds of complaint. Those were set out in the re-amended particulars of claim. The ones that he dismissed related to a cypress tree which was said to trespass on to the plaintiff's land and be a nuisance; in relation to guttering and drainage, it was said that that should not have been allowed to be re-erected on a coach house or building where it interfered with the plaintiff's easement; that the defendant had erected a boundary fence which trespassed on to the plaintiff's land and caused damage to some hawthorns; that the fence which the defendant had erected was unstable and that amounted to a nuisance; that the defendant had erected a large gate across a driveway and that interfered with the plaintiff's access; that he constructed a retaining wall and piled soil above the damp course at the front of the property; and that the defendant had wilfully damaged the property in relation to a rainwater pipe and it interfered with the plaintiff's easement.

The judge rejected all those grounds of complaint. He did so on the facts of the case. He listened to the evidence, he looked at a number of photographs and he went and had a look at the property. In my judgment it is not arguable that the learned judge was in error on those points of fact. This court will not interfere with primary facts found by the judge in this sort of dispute. It was essentially for him to decide those matters. I have not been persuaded by Mr Wildblood, by use of photographs and other matters, that the judge was in error. Photographs can be misleading.

So far as the boundary line was concerned, the judge said that the boundary had been established following previous litigation between the plaintiff and Mr Greaves, who previously occupied the defendant's house. There had been litigation, the matter had been decided and Mr Greaves had erected a fence on the proper line. The judge said that he was satisfied that the fence erected by the defendant had been erected within that line. He was also satisfied that the line established by Mr Greaves's fence must have been in the right position and not erected on the plaintiff's land, because the plaintiff would have been back to the court as quick as lightning if Mr Greaves had put a foot wrong.

It is an unfortunate feature of this case that Mr Wildblood has been unable to get on with his two previous neighbours as well as the defendants in this case. The judge did make two findings in favour of the plaintiff. He accepted that there had been damage to a hawthorn bush when the new fencing had been erected. He awarded the plaintiff £l nominal damages in respect of that. The plaintiff complains that that was inadequate. In my judgment, the Court of Appeal will not interfere with that award.

Secondly, the judge found that there was a technical trespass in relation to a lintel which had been installed over a window in the defendant's premises. He held that the lintel did not trespass on to the plaintiff's house but in the course of erection of it some stones had been removed on the plaintiff's wall. They have been put back. No damage has been done but he awarded £l by way of nominal damages in respect of that. I can see nothing whatever wrong with either of those awards.

The defendant had a large number of complaints in reply. The judge dismissed a large number of those. But he did find that there were two complaints made out, namely that the plaintiff (who had erected a breeze block wall from the back of the house) had trespassed on to the defendant's land by a small amount and he awarded £l nominal damages in respect of that. He also held that there was a minor trespass when, on 5th July, the plaintiff had come on to the defendant's land and had been abusive to the defendant and he awarded a £l nominal damages in respect of that. Those two awards cancelled each other out and therefore neither party was any better off.

On the other hand the judge did find that the plaintiff had pestered and harassed the defendants and that he had entered into the first defendant's house or property including the rear garden from time to time and he issued an injunction in relation to those matters. The injunction was in these terms.

"The Plaintiff is forbidden whether by himself or by instructing or encouraging any other person to pester or harass the Defendants or either of them.

To enter on the First Defendant's house or property including the front and rear gardens of the driveway of ll Church Corner.

To disturb the peaceful occupation of the Defendants and each of them in their said home.

To obstruct the access of the front gate or drive of No.ll Church Corner as aforesaid."

That latter matter relates to the parking by the plaintiff of his motor-car immediately outside the defendants' front gate.

Again all those matters were questions of fact for the learned judge. In so far as the plaintiff complains that the judge made errors of law, I have carefully considered the learned judge's judgment and the criticisms made in the notice of appeal. I am not satisfied that there is an arguable case that the judge was in error in relation to the law in any of those matters.

Finally, the plaintiff complains as to the order for costs. The judge gave the defendants the costs on scale 2 on the claim and counterclaim. The plaintiff says that that was a wrong order. He succeeded in relation to two matters on the claim, albeit for nominal damages. He drew attention to the fact that the court has a discretion to make specific and discrete orders in relation to certain issues if it is minded to do so. The judge was not minded to do so in this case. In fact what the judge said was this (page 52 of the transcript of the judgment):

"As far as costs are concerned, I am satisfied that this litigation began through Mr Wildblood's pressing of a number of claims which I have found to be unfounded, save that in respect of two of them he has gained nominal damages of £l.00 each. The defendants have responded and complained about his behaviour. They too have gained nominal damages of £l.00 each in respect of two complaints, and I have also granted them an injunction in wide terms, which in my view was well merited on the evidence."

It is plain, in my judgment, that the learned judge had ample material here upon which to make the order for costs that he made. This court will not interfere with the exercise of the judge's discretion in relation to costs unless it can be shown that he has erred in principle. So far from erring in principle it seems to me that the learned judge was right.

There is one further matter of complaint in relation to costs which Mr Wildblood wishes to advance and that is in relation to certain proceedings or complaints in relation to confidential information. He says that that increased the costs unnecessarily and he should not be ordered to pay them. If there is anything in that submission it is a matter which can be raised on taxation. The order for costs as it stands only relates to those costs which are reasonably and properly incurred in the course of the case and if those costs were not reasonably and properly incurred then the plaintiff will not have to pay them.

For those reasons, which I have dealt with briefly without going into the inordinately long grounds of appeal in this case, I am of the view that there are no arguable grounds of appeal in this case either on fact or in law and I would dismiss this application.

LORD JUSTICE MUMMERY: I agree.

Order: Application dismissed.