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 NORWICH COUNTY COURT
(His Honour Judge Langan)

		Royal Courts of Justice Strand London WC2 Tuesday, 12th December 2000

Tuesday, 12th December 2000

1. LADY JUSTICE ARDEN: This is an appeal by Mr John Joseph Flint against the order of His Honour Judge Langan dated 1st September 2000. Mr Flint has appeared in person and he has been assisted by his Mackenzie friend, Mr Hare. Mr Flint has made some submissions to me in support of his skeleton argument and, on one point, Mr Hare has also assisted me.
2. The order of His Honour Judge Langan dismissed Mr Flint's appeal from the order of District Judge Hayes dated 23rd March 2000. That order is at page 19 of the bundle. The critical part of the order is paragraph 1, whereby the District Judge made a declaration that the boundary between the claimants' land, The Old Rectory, Thorington, Halesworth, Suffolk and the defendant's land at Thorington Road, Thorington, Halesworth, Suffolk, do follow the course of the existing post and wire fence for the avoidance of doubt at a distance of 90' from the north corner, and 85' from the south corner of the claimant's stable building. Mr Flint contends that the boundary should be a ditch width east of that fence, that is further into the land of Mr and Mrs Chick than the fence referred to by the District Judge's order.
3. This is a second appeal so far as the boundary is concerned. It is brought under CPR 52.13:

"The Court of Appeal is not to give permission for a second appeal unless it considers that the appeal would raise an important point of principle or practice or that there is some other compelling reason for the Court of Appeal to hear it."

4. In other words, on the question of whether there should be an appeal against the District Judge's order, Mr Flint has to satisfy me that there is an important point of principle or practice or that there is some other compelling reason for the Court of Appeal to hear it, which is a high standard and goes beyond the standard which must be shown in any case of a real prospect of success on appeal.
5. I turn to the judgment of the District Judge, which is at page 26 of the court bundle.
6. At the trial, which the District Judge heard, Mr and Mrs Chick were represented by counsel, Mr Newton; Mr Flint appeared in person. The District Judge held that in order to determine the boundary he had to look at the title deeds and the expert's report, to which I will refer later, and the evidence of the parties themselves. He examined first the deeds. He said that they were consistent but, by and large, it appeared clear that the Paddock on the Old Rectory site belonged to Mr and Mrs Chick. In relation to the boundary, he held that the deeds appeared to show that the bridle path was to the east of the boundary, that is on the land of Mr and Mrs Chick rather than that of Mr Flint.
7. The District Judge then examined the report of Mr Towell. Mr Towell was appointed as a single independent expert pursuant to an order of the court which is not in the appeal bundle. But the District Judge said that there had been an order in April 1999 that the parties jointly instruct an independent surveyor and that the parties should agree a joint letter of instruction and documents for the surveyor. In fact it appears from the judgment that Mr and Mrs Chick's solicitors had referred the matter back to the court for an order that Mr Towell be appointed because the defendant, Mr Flint, had refused to consider or agree upon the appointment of a surveyor or the joint letter of instruction as required by the court's order. The District Judge recorded that the court made that order, and Mr Towell was appointed. The order further provided that there was to be a joint letter of instruction on behalf of the parties on the lines of one already submitted to the court. So the District Judge concluded that he should work on the basis that Mr Towell had been jointly instructed by the parties; and he expressed himself satisfied that the report had been prepared in an independent manner.
8. The District Judge then went through the report and noted that Mr Towell had looked at the deeds and various other documents and had carried out various tests, such as taking measurements from one fixed point that he could identify. He accepted that there was a margin of error of at least 5' in the measurements and that 5' was indeed significant in the context of this case because the width of the ditch was some 4' 6", and that was the amount in issue between the parties.
9. The District Judge then considered a question which was crucial to the question of the location of the boundary on Mr Flint's case, namely whether there had been a ditch in the past. Mr Flint's case was that there had indeed been a ditch and that it had been filled in by a previous owner of the Old Rectory. The question was: where was that ditch? The District Judge noted that Mr Towell had caused some drilling works to be carried out on Mr and Mrs Chick's side of the post and wire fence, and he satisfied himself that there was no evidence that there had been any ditch filled in on Mr and Mrs Chick's side of the fence. He said that there was no evidence of fill material in either of the cuttings dug in the paddock land close to the fence, the soil was loamy and there was a lot of flint and that on top there was rich top soil. The expert had also looked at aerial photographs; but they have not enabled him to say that there had been a ditch in the place contended for by Mr Flint.
10. Then the District Judge asked: what was Mr Towell's conclusion? The main points are in paragraphs 5-11 of his report. There is no evidence of a ditch extending further east than the present fence line. If there was a ditch or furrow, it was on the land to the west of the present fence line. The present furrow to the west of the fence, which is filled with rubble, could be on the line of a previous furrow or ditch; and it might have been formed at a later date. If there was a previous ditch, there was no reason for it being wide or deep because of the topography of the land and the nature of the soil.
11. The District Judge then referred to a line of conifers which had previously been planted and which may or may not have been planted on an old hedge row. He then concluded as follows:

"Mr Towell's expert report ... leaves absolutely no room for doubt: that is the true line of the boundary. As I said, I am very much persuaded by that report that Mr Towell produced on joint instructions from the parties."

12. He then referred to the evidence of the parties and took that into account. But, having done that, he concluded that there was nothing in the evidence on the papers to lead him to doubt the findings of Mr Towell. He said that it seemed clear to him that the boundary line was on the line of the post and wire fence already there, and that the land east of that post and wire fence belonged to Mr and Mrs Chick and the land to the west to Mr Flint. There was no case which persuaded him that Mr Flint's land extended at all to the east of the post and wire fence. He then dealt with a claim for damages and with trespass.
13. The matter came before His Honour Judge Langan on appeal. The Judge concluded that the defendant had lost nothing by the findings of the District Judge and that, having examined the judgment of the District Judge, the District Judge had acted substantially on the basis of Mr Towell's report and that there was no material on which the Judge could say that the decision of the District Judge was wrong.
14. He then went on to consider a second point, which was not before the District Judge, namely whether the matter should go back for a retrial. Insofar as there is an application for permission to appeal, I take it as an application for permission to appeal against this part of the judgment as well; and this part of the judgment I do not treat as a second-tier appeal subject to CPR 52.13. However, there still has to be a reasonable prospect of success.
15. The judge's decision was that there should not be a retrial. He was satisfied about this for three reasons. He held that there had to be finality to the litigation. Second, he held that the defendant had been given an opportunity at the hearing to have the surveyor there for questioning, if he so wished. Third, he had to have regard to the fact that the land was not, as he saw it, of special value to either party. Certainly the photographs do not suggest that it is so. Fourth, he held that the costs which had been incurred by the claimants at the trial as assessed by the District Judge came to £11,000, and the estimated of costs on the appeal before him were some £3,500. He had considered whether the defendant might be allowed a new trial conditional on his paying the whole of that sum. But, having heard what Mr Hare (who had represented Mr Flint at the hearing) had had to say, he did not think there was any realistic prospect of his finding that sum. Indeed, the learned judge did not think that it was in Mr Flint's own interests that he be required to do so as a condition of funding further litigation. The learned judge went on to say that under the Civil Procedure Rules there was a requirement that the time of the court should be properly allocated between different litigants; and he concluded that sufficient time had already been allotted by the court to the particular boundary dispute and that it was not in the general interests that further public time should be allocated to it.
16. There is lengthy skeleton argument which has been prepared in this case, which has been most helpful, and I have read it. The position is that there are a large number of complaints about the original trial. Mr Flint complains that he did not have legal assistance at the trial, that he misunderstood the order for the appointment of a single expert, that the report prepared on his behalf by an expert on 2nd April 1999, that is Richard J Balls, was not brought to the court's attention, although he had referred to it in his defence. He also draws the court's attention to complaints which he makes against his own solicitors. Many of these points are indeed summarised in paragraph 4 of the skeleton as follows:

"The lack of procedural knowledge, and his `no option' decision to represent himself, wrongly and unfairly placed him at disadvantage and he and his family felt intimidated during the Trial. Due to unfamiliarity and not understanding Court procedures the opportunity for a decent presentation badly affected his case at the Lowestoft hearing, as it had suffered at the previous hearing to appoint the expert."

17. In addition to those points, there are a large number of points in the skeleton argument about the skeleton argument put forward by the claimants and, indeed, the report of Mr Towell. Some of those points have been amplified today by Mr Flint in his oral submissions. For instance, he complains that Mr Towell did not take proper measurements and that he did not take account of the fact that Mr Reeves, the previous owner of the Old Rectory, had filled the ditch up. I do not think I could set them all out, but, for instance, among the other points which are made in the skeleton argument is a point that Mr Towell failed to survey the area to the south of the paddock and that, if they had done so, they would have seen that the ground was very boggy and that the water from the clay overburdened Mr Flint's land. Then Mr Flint points out that he has had to spend £3,000 of his savings to lay a drainage pipe to remove that surface water.
18. A major point made by Mr Flint is that Mr Towell made insufficient shallow diggings to determine whether or not there was a ditch which had been filled in on the Old Rectory land and which would have better served to indicate where the boundary was. What Mr Flint says is that the diggings by Mr Towell were manifestly inadequate -- they were only 6 to 8 inches -- whereas if he had gone deeper he would have found that there had indeed been a ditch, the ground had been compacted because there was a footpath and the path was also used by horses. So Mr Towell's work was inadequate. I have given those as examples. There are many points, I think possibly about 30 points, made by way of criticism of Mr Towell's report.
19. I first take the point made about the lack of procedural knowledge at the first trial -- that is the principal point summarised in paragraph 4, which I have read. As I see it, these are points which were made to the judge: so that in effect I am asked to consider a second appeal. These points, as I see it, are insufficient to justify the grant of permission for leave to appeal. I will take one point in particular to demonstrate this.
20. At the trial Mr Flint was in a position where the claimants were happy to accept the report of Mr Towell without any further examination of Mr Towell. What counsel told the court was that his solicitors, namely Mr and Mrs Chick's solicitors, had written to Mr Flint several times, pointing out that if Mr Flint wanted to cross-examine Mr Towell he should make arrangements for Mr Towell to come. I am also informed that the court was told that Mr Towell was in fact available at end of a telephone. Mr Flint, so I am told by Mr Hare, thought that it would cost money if he were to come to court. He was aware of the correspondence -- some of it had gone to his previous solicitors -- and he had, shortly before the trial, if not before, seen one of those letters. What Mr Flint says, or what Mr Hare submitted on his behalf, was that Hubbards, the claimants' solicitors, should have informed Mr Flint, alternatively the court should have informed Mr Flint, of the importance of having Mr Towell there to cross-examine him, because his conclusions were contrary to the case which Mr Flint advocated.
21. In the circumstances, it seems to me it is not possible to contend that Mr Flint did not have an opportunity to have Mr Towell there. The fact of the matter is that Mr Flint knew that he was available. He could have asked him to come. If Mr Towel had come, indeed there would have been costs. But Mr Flint would not have been liable for them if he won the case. The fact is that Mr Flint did not appreciate the importance of Mr Towell. But, as I see it, this is not something which can be laid at the door of Hubbards, the claimant's solicitors, nor can it be suggested that the judge was at fault if Mr Flint misunderstood the position about this. The fact is that Mr Flint had the opportunity: he took the wrong decision; but that of itself does not justify a further trial. There seems to me no point of principle on that matter that I can discern.
22. On the other point, namely that there were defects in Mr Towell's report and points to be made on the claimants' argument which were not put to the District Judge, these were points which could all have been made at the original trial; and so, as I see it, the learned judge was right in saying that the District Judge's decision could not be impugned. If it was possible to make these points at the original trial, then they should have been made then and it is not possible to put the points afresh on an appeal.
23. I move now to the second point decided by the judge, which was that there should not be a retrial. The judge had a discretion here, which he exercised against Mr Flint. I have read out in some detail the reasons which he gave. This is not, as I see it, a second appeal; but I have to be satisfied that there is a reasonable prospect of success of challenging the judge's exercise of his discretion.
24. The judge took a number of matters into account. One of them was the fact that the property was of no special value to either party. In fact what Mr Flint says in his submissions is that he desired to drain the land. The fact that the ditch has been filled in has caused him to have to place a further drainage pipe on his own land at a cost of some £3,000. I have already read that passage. So clearly the ditch had some value. As against that, the work has now been done on another part of the land, and it is clear that the cost involved was considerably less than the costs of the trial and the costs which would be thrown away by having a retrial.
25. In those circumstances, it seems to me that there is no real prospect of success that I can see that the learned judge's exercise of discretion on the question whether there should be a retrial should be disturbed. Accordingly, I decline to give permission to appeal against that as well.
Order: Application dismissed.