England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(MR PETER LEAVER QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		5th February 2008

Lord Justice Carnwath CVO:

1. This is an unusual case involving an appeal from the deputy judge, who reversed a decision of the land adjudicator. The issue was whether the applicant had acquired possessory title to the land in question, that depending on whether he had obtained possession by October 1991.
2. The case was made difficult by the lack of very clear evidence on either side as to what precisely was going on in 1991 and the fact that the applicant himself was regarded as a confusing witness. As I am going to grant permission to appeal, the less I say about the details the better. I must of course take into account that this is a second appeal and therefore permission should not be given unless it raises an important point of principle or practice or there is some other compelling reason.
3. I am not at the moment certain whether there is, underlying this, an important point of principle. The principle suggested is the question whether the judge understood the true distinction between dispossession and discontinuance, and the dividing line between an action for a recovery and an action for possession, which is a somewhat technical point but, it is said, is a matter on which the authorities are not clear. That may be so but in order to arrive at that point one has to get through a great deal of factual material which would normally make it unsuitable for a second appeal.
4. The "compelling" point which persuades me that permission should be granted is the need for guidance on the approach of the appellate court, in appeals from the Land Adjudicator, which is a relatively new jurisdication. I am concerned as to the appropriateness of a judge on appeal going in such detail into all the evidence, and, in effect, conducting what is a complete retrial over four days on the basis of the transcripts. The judge did remind himself of the guidance on that question, for example in Assicurazioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577, but it is arguable that he failed to apply it in practice. In particular, it is unusual to find an appellate court which has not heard the evidence, in effect, reversing the judge below on issues of credibility. As I said, both found the applicant's evidence confusing, but, whereas the adjudicator had considered that he was in general giving an honest account, the judge took a quite different view. As he said at paragraph 82:

"…I formed a view of the evidence which is almost entirely the opposite of that stated by the Deputy Adjudicator."

5. I am unaware of any previous appeal from the adjudicator where such an approach has been taken, and it seems to me the Court of Appeal may wish to consider what the proper role of the appeal court is in such a case. Accordingly, I will grant permission.
6. We will say a day at this stage, although you mayreview the estimate. Clearly the court should have Chancery expertise - preferably two Chancery judges, but one may be a High Court judge.

Order: Application granted.