England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MIDDLESBROUGH COUNTY COURT
(HIS HONOUR JUDGE TAYLOR)

		Royal Courts of Justice Strand London WC2 Tuesday, 23rd October 2001

1. LORD JUSTICE JUDGE: I shall ask Mr Justice Bodey to give the first judgment.
2. MR JUSTICE BODEY: This is an appeal by John Robert Clifford ("the claimant") against a judgment of His Honour Judge Michael Taylor in the Middlesbrough County Court, dated 3rd August 2000. It is brought with the permission of Chadwick LJ, dated 20th February 2001, such permission being limited to the claimant seeking a new trial.
3. The decision of Judge Michael Taylor was to the effect that Robert William Grimley and his wife Elizabeth ("the defendants"), who are the leasehold owners of 53 Front Street North, Trimdon Village, Durham, have established by adverse possession a good title to an area of land (described as about one-fifth of an acre) situated at the end of the garden of the claimant's property at 54 Front Street North. For convenience I shall refer to this area of land as "the disputed land".
4. It was common ground (1) that the "paper title" to the disputed land was in the name of the claimant, and (2) that the defendants had been in possession of the disputed land for in excess of 12 years - the necessary period of time to establish title by adverse possession. Their possession of the land had in fact been manifested by their use of it for placing pigeon lofts (the keeping and racing of pigeons being an interest or hobby of the first defendant, Robert Grimley).
5. The issue was thus only as to whether (1) as asserted by the claimant, the defendants' possession had been pursuant to a licence or other permission granted by his predecessor in title, one Bob Marshall; or whether (2) as asserted by the defendants, they had been in possession without any permission at all and without paying any rent or other consideration.
6. For present purposes, the background can be very shortly stated as follows. In 1617 a head lease was granted of the two relevant properties, Nos.53 and 54 (and other properties) for a term of 1000 years. For convenience, I shall refer to the long lease holder of either cottage at any given time as 'the owner'.
7. By at least the 1930s, possibly before, the defendants were sub-tenants of No.53 and were living there. At that time (the 1930s) two great aunts of the claimant, Janet and Nancy, were tenants of No.54.
8. On 25th April 1955, the claimant's grandfather, Bob Marshall (above), became the owner of No.54, although he allowed Janet and Nancy to remain living there, seemingly charging them a nominal rent. They continued to live there until first, Janet died, and then subsequently Nancy died in 1972.
9. Thereafter a great aunt of the claimant, Lily Etherington, lived in No.54 until she died in about 1996. It seems that none of the ladies, Nancy, Janet or Lily did very much by way of tending the garden behind No.54.
10. On 21st August 1965 Robert Grimley (the first defendant) became the owner of No.53. He and his wife continued living there, as indeed they have done to this day. Many years later he placed No.53 into the joint names of himself and his wife (the second defendant) although nothing turns on that.
11. On 29th July 1993 Bob Marshall died, leaving No.54 to the claimant's mother, Joan Clifford. Later, in January 1997, she gave No.54 to the claimant, who now lives there. Hence he and the defendants are neighbours.
12. The claimant pleaded specifically in paragraph 3 of the Particulars of Claim that the consensual arrangement fatal to the defendants' claim to adverse possession was an oral agreement made in or around 1958 between the defendants and Bob Marshall whereby, in return for one shilling per annum, Bob Marshall granted the defendants a licence to erect and use pigeon lofts on the disputed land and to gain access to it via a footpath through the garden of No.54.
13. On the face of the written statements there was evidence tending to go either way, and it must have looked as though it was just going to be a question of the judge deciding the facts on this one disputed point.
14. Unfortunately however, as can so easily happen in disputes such as this, the issues proliferated and spilled out (largely perhaps on questions of credibility) to cover (a) various differing plans and photographs going back to the 1920s, (b) conflicting evidence as to fences and gates as they were situated from time to time, and (c) the dates when pigeon lofts were or were not first to be seen in place on the disputed land.
15. None of this was made any easier by the fact that many of the witnesses were elderly (and were being asked to remember back 50 or more years) and that, as the plans show, the gardens of the terrace of six cottages of which Nos.53 and 54 formed part do not sit squarely behind their respective cottages, nor indeed do they extend obligingly at perfect right angles to the cottages.
16. Be that as it may, the judge correctly directed himself in his judgment that the burden of proof lay on the defendants to show that they had established adverse possession, in other words to satisfy him that there had been no consensual arrangement permitting them to use the land - which would of course have been fatal to their case. Having considered all the evidence he held that the defendants had discharged that burden.
17. In his helpful submissions Mr Harris, for the claimant, criticises the decision on the basis that the learned judge failed properly to consider and evaluate all aspects of the evidence (and thereby misdirected himself) and/or that he failed in his duty to give adequate reasons for his decision.
18. Without rehearsing all Mr Harris' arguments, the main ones may be summarised as follows.
19. First, he points out that the judge only really referred in any detail to the evidence of one independent witness, Owen Willoughby, who was called for the defendants, and that the judge went out of his way to say that he found Mr Willoughby a convincing witness. Mr Willoughby, who was in his 80s (but, as the judge put it, had all his "marbles") spoke of there being pigeon lofts on the disputed land when he was a lad in the late 1920s.
20. Quite apart from the fact (submits Mr Harris) that this was inconsistent with the evidence of one Alan Johnson, one of the claimant's witnesses who is about 70 and who said the opposite (but whose evidence the judge did not mention in the judgment) the judge actually found as a fact that the loft in question was erected by the defendant and/or by his brothers, "between 1950 and 1954". Of course, there may have been another loft (or other lofts) on the disputed land when Mr Willoughby was a young lad in the late 1920s, as suggested by the judge at page 4H of the judgment; but nonetheless, the point is well made by Mr Harris that the judge may have over-concentrated on Mr Willoughby at the expense of reviewing the other evidence, then making a finding which did not sit easily with the main thrust of Mr Willoughby's evidence in any event.
21. Second, Mr Harris makes the point that the finding that the lofts on the disputed land were erected "between 1950 and 1954" is considerably inconsistent with the defendants' pleaded case and with their written evidence, which spoke of occupation of the disputed land by the Grimley family as a whole (Robert Grimley's grandfather, father and brothers) for keeping pigeons from the early 20th century onwards. That particular factor, it is suggested, struck at the root of the defendants' credibility, and yet was not referred to at all in the judgment.
22. Third, it is submitted for the claimant that the judge did not expressly evaluate and deal with the hearsay evidence of several witnesses (necessarily hearsay in view of Bob Marshall's death in 1993) to the effect that Bob Marshall said on various occasions that he had received a payment of rent from the Grimleys for their use and occupation of the disputed land.
23. Such witnesses were Joan Clifford, who is the claimant's mother (who also said that when she was a little girl in the late 1940s there were no pigeon lofts at the bottom of the garden of No.54); William Clifford, who is the claimant's father; Richard Marshall, aged 72, who is Bob Marshall's brother, and Alan Johnson, whom I have already mentioned.
24. It is right to say, on reading the judgment, that the learned judge did not expressly refer to this hearsay evidence as to what Bob had apparently said (which on the face of it supported the claimant's case that the defendants were in occupation of the disputed land pursuant to an agreement for a nominal rent).
25. Fourth, Mr Harris refers to a Statutory Declaration made by the defendants in 1995 in a claim to own certain land to the west of No.53 (No.54 being to the east of their property) in which they purported to set out the totality of their property at No.53, and yet did not include the disputed land. That factor (says Mr Harris) was insufficiently dealt with by the judge in the judgment. He suggests that the judge should have found himself unable to explain away such a cogent piece of evidence, militating as it does against the defendants' claim in these proceedings.
26. Fifth, Mr Harris says that the judge erred in saying that since - as found - the pigeon lofts were erected on the disputed land between 1950 and 1954 (ie before Bob Marshall became the owner of No.54 on 25th April 1955) therefore Bob Marshall could not have given the defendants a licence as the claimant asserts he did.
27. Mr Harris submits that the judge should have gone on to consider whether some time after 1955, and before 12 years of adverse possession had run its course, Bob Marshall gave permission which, if it had been given, would have stopped the adverse possession running.
28. Sixth, Mr Harris refers to the part of the judgment where the judge says

"... I decided I could not be satisfied as to the terms or creation of promissory occupation because I cannot be satisfied when permission was given or the terms of it." [Emphasis added].

29. He submits that this suggests the judge was persuaded that some permission was given to the Grimleys to use the disputed land, but felt unable to make such a finding by reason of the absence of evidence as to the detail of the agreement.
30. Seventh, mention is made of evidence given, again by Mr Alan Johnson, to the effect that on some occasion between 1953 and 1960, when the Grimley brothers were building a pigeon loft at the back of the cottages, one of them, Owen, said that they had obtained permission from Janet and Nancy (who were then living in No.54) to place it on the disputed land. Mr Harris submits that if this were the case (and he points out that the judgment does not deal with the point) then such permission would or could have sufficed to stop the Grimleys' use and occupation of the disputed land constituting adverse possession. That particular point however was never pleaded, although the foundation for it was contained in the written statement of Alan Johnson exchanged before the proceedings. In my judgment it is not reasonable in those circumstances to expect that the judge should have made such a finding.
31. In support of his submissions, Mr Harris relied upon Flannery and Another v Halifax Estate Agencies Ltd [2000] 1 WLR 377, where the Court of Appeal discussed the duty of the court to give sufficient reasons for its decision so that:

"... the parties especially the losing party should be left in no doubt why they have won or lost."

32. That approach is now of course confirmed as being part of a party's Article 6 right to a fair hearing.
33. There is considerable force in Mr Harris's submissions (save for the seventh). The learned judge in a six-page judgment did not on any view seek to weigh up, with any sort of detailed analysis, the many and various conflicts of evidence with which he was ultimately faced. Instead, he sought to cut through the issues in a robust manner, which came ultimately to the following very clear conclusion:

"It is against all of that background that I have been forced to come to the view that there is no licence agreement as asserted, no permission sought by the Grimleys. They have occupied that land for at least, in my view, 45 years but more likely 50 years or even many more without permission. In those circumstances they have obtained possessory title to the land in question."

34. He amplified this by saying that he was:

"... satisfied on balance that the land was occupied by the Grimleys with lofts prior to Mr Marshall having his title..."

- and continued:

"... I cannot conceive why the Grimleys would have then gone on to an arrangement of promissory occupation and paying rent, if they had not been challenged at the outset."

35. It may be that in a perfect world a more overt weighing up of the conflicting evidence would have made the decision more acceptable to the aggrieved claimant. However, in the last analysis, this was a question of fact pre-eminently for the judge who saw and heard eight or so witnesses and watched the quite complicated sub-issues developing before him.
36. However strong may have been the evidence of things said by Bob Marshall about rent, it was absolutely in conflict with the evidence given directly to the judge by the first defendant, as set out at page 4C of the judgment, as follows:

"... I never had a discussion about promissory occupation. I never paid a penny over."

37. The judge described the first defendant as "a good historian about many things", and made it absolutely clear, reading the judgment as a whole, that he accepted the first defendant's evidence. The obvious and necessary implication is that he preferred it to the hearsay evidence (being inevitably the best the claimant could produce) which underpinned the claimant's pleaded case.
38. The fact that there may have been many good reasons for the judge not to accept the first defendant's evidence (for example the fact that parts of it, and parts of the defendant's counterclaim, differed significantly from the judge's own finding as to when the pigeon loft was constructed) is insufficient, in my judgment, to impugn the fact that this experienced judge simply believed what the first defendant said on the key issue in the case. As the judge commented during the evidence, when the first defendant was being cross-examined along the lines that his (the first defendant's) case did not seem credible:

"... it really does not matter whether he thinks it is credible or not. It is a question of whether I believe him. I will tell you at the end of the case whether I do or I do not."

39. In fact that rather encapsulated the position.
40. It was made clear in Flannery (above) that:

"... the extent of the duty, or rather the reach of what is required to fulfil it, depends on the subject matter..."

41. (Per Henry LJ at page 382A). There is a fine - and sometimes difficult - line to be drawn as between (1) a judgment which rightly resists the temptation to deal at length with almost every issue and sub-issue, and (2) one so brief as to be characterised as perfunctory, and thus unfit for its purpose.
42. In my view, given the underlying and essentially simple factual nature of the key issue, the judge has succeeded in sufficiently setting out and explaining the reasons for his decision; and his judgment falls on the right side of the line just mentioned.
43. Whilst not without some considerable sympathy for the claimant in bringing this appeal, I have not been persuaded that justice requires the case to be remitted for a rehearing.
44. Accordingly, I consider that the appeal should be dismissed.
45. LORD JUSTICE JONATHAN PARKER: I agree. Like my Lord, I also have considerable sympathy with the appellant. Whilst I fully accept that the judge was not required to refer expressly to every aspect of the oral evidence which he had heard, it is nevertheless the case that the judge contented himself with making relatively brief and general references to that evidence before stating his findings.
46. In the circumstances, I recognise the force of Mr Harris' submissions that the judge failed adequately to address the fundamental factual issue whether or not the respondent's possession of the disputed land was consensual; that he failed adequately to express his reasons for that finding by conducting a proper analysis of the oral evidence; and that, in addressing the factual issues, the judgment was both cursory and superficial. Nevertheless, I have concluded that, notwithstanding the force of these submissions, the judge's findings of fact, and in particular his finding of fact on the issue of consent (that is to say that no consent was given) were not so undermined by the absence of a sufficiently detailed analysis of the oral evidence as to justify this court in interfering with those findings.
47. Accordingly, for those reasons, which are in substance those also of my Lord, I too, would dismiss this appeal.
48. LORD JUSTICE JUDGE: Twenty or even ten years ago Mr Harris' impressive criticisms of the judgment in this case summarised by my Lords would not have been likely to have troubled this court for more than a minute or two. Nowadays there is much greater awareness of the need for trial judges, even when deciding questions of fact, to explain the reasons for, rather than simply assert their conclusions. To avoid any possible misunderstanding, I hasten to add that there is nothing in this approach which confuses the adequacy of a judgment with its length.
49. Both before and during the hearing of the appeal I was troubled whether in this particular case this judgment had sufficiently explained the reasoning process which led to the conclusion. But in the end I am persuaded, for the reasons explained by my Lords, that it did.
50. Accordingly, I too, agree that the appeal should be dismissed.
(Appeal dismissed with costs; costs to be taxed if not agreed).