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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Konstantinidis v Townsend [2002] EWCA Civ 1473 (11 October 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1473.html
Cite as: [2002] EWCA Civ 1473
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
NORWICH COUNTY COURT
(HIS HONOUR JUDGE BARHAM)
Strand London, WC2 Friday, 11 October 2002 |
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B e f o r e :
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| RAYMOND KONSTANTINIDIS | Claimant/Respondent | |
| -v- | ||
| PHILIP GALES TOWNSEND | Defendant/Applicant |
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(Official Shorthand Writers to the Court)
The Respondent did not appear and was not represented.
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- LORD JUSTICE POTTER: I have, with some reluctance, decided to grant permission to appeal in this case based on careful consideration of the arguments which are set out in the very clear skeleton argument of Mr Dutton. I say "with some reluctance" because the judge's view as to where the merits lay is quite clear, namely that the actions of the applicant in erecting the wall where he did arose not from a genuine view or understanding as to (let alone any reliance on) where the boundary in fact lay, but were directed to making life for the claimant difficult (see page 4 line 8 to page 5 line 26 of the transcript of the judgment below).
- Nonetheless, it seems to me arguable that the judge approached the case effectively on the basis of the subjective impression of Mr Furze rather than a proper interpretation of the conveyance taken in conjunction with evidence as to the position of the posts. It is also arguable that he has misapplied the burden of proof.
- If, as seems to me likely, the appeal fails in the face of the judge's findings of fact, the defendant may well find himself facing an application for indemnity costs. Nonetheless, and with that warning, I think it right to grant permission to appeal.