England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOUTHAMPTON COUNTY COURT
Mrs Recorder Jennifer Roberts
Claim No: 6SO00327

		Royal Courts of Justice Strand, London, WC2A 2LL
		24/07/2008

Lord Justice Rimer :

Introduction

1. This is a renewed application for permission to appeal against an order made by Mrs Recorder Jennifer Roberts on 28 September 2007, Sir John Chadwick having refused permission on the papers. Unusually for a permission application, I reserved judgment. This was because in the course of her submissions Mrs Richardson, one of the two defendant applicants for permission, raised a point I had not previously appreciated, and which it may be that the judge had not appreciated either, and I wished to consider it; and also because at the hearing the applicants put a further bundle of papers before me in connection with their application which it was not possible to consider sufficiently at the hearing.
2. The applicants are Mr and Mrs Richardson, the defendants to the claim ("the Richardsons"). The respondents are Mr and Mrs Macnab, the claimants ("the Macnabs"). The Richardsons live at 98 Pitmore Road, Allbrook, Eastleigh ("No 98"). The Macnabs were, until they moved in 2006, their immediate neighbours to their north, at No 100. The litigation is a further round in boundary disputes between the parties stretching back several years. The claim was one by which the Macnabs sought damages and an injunction against the Richardsons for trespass. The Richardsons counterclaimed for like relief but by the time of the trial they had accepted that their money claim was for at most nominal damages and they no longer sought an injunction. The Macnabs' claim was for something over £20,000 for the cost of constructing on their land a retaining wall and a section of chain link fencing. The section of boundary in dispute is about 50 feet in length, the full length of the boundary being substantially longer.
3. The outcome of the respective claims was that the judge (i) gave judgment for the Macnabs on the claim for £910.63; (ii) gave judgment for the Richardsons on the counterclaim for £1; and (iii) ordered the Richardsons to pay the Macnabs 50% of the costs of the claim, to be the subject of a detailed assessment if not agreed, and also ordered them to pay £12,500 on account of costs. The Richardsons did not recover any costs of the counterclaim.
4. The background is that on 27 March 2001, after an earlier trial, Miss Recorder Ralphs declared the boundary between Nos 98 and 100 by reference to a straight line on a plan appended to her order. She directed the parties' surveyors (Mr Vaughan for the Richardsons, Mr Powell for the Macnabs) to peg it out. Whilst not directed to do so, the Macnabs erected a chain link fence along the boundary so identified, taking care that it did not encroach across it. It involved the use of cantilevered posts with a 26 cm dog-leg so that the concrete base would not so encroach. Mrs Recorder Roberts, in paragraph 10 of her judgment the subject of the present application, said that she was told that the fence so erected was on a line approximately one inch on the Macnabs' side of the boundary pegged out by the two surveyors pursuant to the order made by Miss Recorder Ralphs. The Recorder did not, as I read her judgment, find that it was so erected.
5. The erection of that boundary fence gave rise to a complaint from the Richardsons, not just about its position but also about other matters including alleged trespasses committed during its erection. A matter of particular concern to Mrs Richardson was a bank of land on No 100 which had some asbestos content with which she claimed to have been obliged to live for some 20 years. The outcome was that the Richardsons sued the Macnabs. Miss Recorder Ralphs was again required to rule on that dispute and she visited the site on 25 April 2002, accompanied by the parties and their respective experts.
6. The outcome of that visit was the making of a consent order dated 25 April 2002, which is of some importance. It included a declaration, made with the consent of the parties, that "[t]he boundary between 98 and 100 Pitmore Road is correctly delineated by the South face of the existing fence." I interpret that as meaning that the south face of the fence was on a line marking the boundary.
7. That declaration did not mark the end of that bout of litigation. The Richardsons had outstanding claims against the Macnabs for alleged trespass and nuisance. Those complaints were the subject of a hearing before His Honour Judge Thompson QC in February 2003. Their outcome was a consent order in Tomlin form under which the parties were required to carry out works to their respective properties and the proceedings were stayed save for the purposes of enforcing a costs order that the Macnabs had obtained against the Richardsons.
8. The Macnabs' obligations under the schedule to that order included an obligation to remove infill within one metre of a defined section of the boundary to the extent that the infill lay above the then level of the adjacent ground at No. 98. That work was done and was said to have led to the movement of the fence, which in turn led to the present litigation. The Richardsons claimed that the south face of the fence had moved on to No 98. The result was that on 1 January 2006 they moved a section of the fence, which (with other material) they deposited on the Macnabs' land. The Macnabs promptly brought the present claim on the basis that the suggestion that the fence had moved was unfounded and they sought compensation and an injunction accordingly. They asserted that the Richardsons' actions had involved a trespass on to No 100. The Richardsons' counterclaim was for damages for the alleged movement of the, by now removed, fence on to No 98. The central issue for the judge was whether the fence had so moved.
9. At the trial Mr Macnab and Mrs Richardson gave oral evidence. Mr Powell, the Macnabs' surveyor, gave evidence. He was involved in the proceedings leading to the declaratory order dated 25 April 2002. Mr Vaughan, the Richardsons' expert, who had also been so involved, did not give evidence. The Richardsons instead called the evidence of David Bennett, a surveyor with Isis Surveyors Ltd, whom they instructed in April 2006. His function was to consider the data and conclusions in an earlier report of Mr Chalk of Solent Surveys made in March 2004. Mr Vaughan was only involved to the extent that he and Mr Powell prepared a joint statement as required by a court direction made by District Judge Ainsworth in May 2006.

The relevant history

10. The Macnabs engaged contractors, C. G. Comley & Sons Ltd ("Comleys"), to remove the infill in compliance with the schedule to the Tomlin order. Comleys were on site over four days in May 2003. They removed a considerable amount of infill. Mrs Richardson's evidence was that the operation exposed the foundations to four fence posts and resulted in the posts moving on to No 98. It was admitted that Comleys knocked one post so as to cause it to lean towards No 98, but the judge found it was subsequently pulled back into line by both Comleys and Mr Richardson, who was satisfied it had been returned to the correct position. Mrs Richardson's evidence was also that Comleys' excavator had slipped into the fence and dislodged it in part. Although Comleys' work was completed by 16 May 2003, the judge found (in paragraph 36 of her judgment) that Mr Comley later attended No 98 to carry out a site inspection with Mrs Richardson with a view to agreeing a schedule of work with her; and that that work, including the removal of soil that had found its way on to No 98, was carried out in July 2003.
11. The Richardsons asserted that the removal by the Comleys of the landfill meant that the fence was no longer firmly placed in the material in which it was originally placed and began to collapse on to No 98. Photographs taken by Mrs Richardson on 26 November 2003 showed one post listing over from its base but did not show if the base had moved. Mrs Richardson said all the fence posts in the relevant section were "floppy". They remained in this condition until March 2004.
12. At the same time, during 2003 and 2004, the Richardsons were engaged in building a retaining wall and wooden fence on their side of the boundary. A collateral matter that has assumed significance is that Mrs Richardson had discussions with Mr Comley and a specialist asbestos employee (Mr Clifford) about her continuing concern as to asbestos contamination on No 100.
13. By October 2003 Mr Macnab was complaining that the Richardsons had damaged a section of his wire mesh internal fencing. The complaint was that the pegs tying the wire to the ground had been removed so that the wire bent out towards his garden and the mesh was no longer proof against entry by pheasants and cats. In cross-examination, Mrs Richardson admitted bending back a section of chicken wire in order to re-instate the concrete base boards used in the construction of the Richardsons' retaining wall.
14. Mr Macnab had also complained of damage to certain fence panels and supports, which were in the nature of rigid mesh panels. In October 2003 the Macnabs engaged Mowlem (Acumen Division) ("Mowlem") to erect replacement fence panels. Despite contrary instructions from the Macnabs, Mowlem entered No 98 to do the work. This incensed Mrs Richardson, there was an altercation and Mowlem left the site without doing the work.
15. In December 2003 Mr Macnab claims to have discovered that three of the relevant fence posts to the west of the Richardsons' pump house were no longer vertical and were leaning towards No 98 (including the one that Comleys had knocked into). Mr Macnab believed they had been deliberately pulled over and called the police. He suspected the Richardsons. The police could not establish the cause. The Richardsons denied involvement. It was agreed that by this stage at least three posts were out of their original vertical line and that the chain link material between them was sagging.
16. In March 2004 Mrs Richardson, still concerned about the line of the fence, commissioned Mr Chalk of Solent Surveys to inspect it. He produced a report on 12 March. He said in it that part of the higher ground on the Macnabs' side of the fence was not supported and was eroding into No 98; that attempts to retain this had been made with concrete edging strip, some of which appeared to have been removed; that the chain link fencing was showing signs of collapsing on to No 98 and in parts leant over No 98 by up to a foot; that the offset bases of the fence posts did not appear to have adequate foundations and, unless remedied, the fence could collapse; and that the fence was "already showing signs of leaning hard up against the more recent close boarded panel fence erected just within [the Richardsons'] side of the chain link boundary fence."
17. On 21 March 2004 Mowlem returned to No 100 to complete the work interrupted in October 2003. After about 30 minutes work, Mrs Richardson complained that their work to the fence posts involved an encroachment on to No 98 because the contractors were standing on her land. Her point was that as, she claimed, the fence had moved about a foot to the south on to No 98, any work done up to the edge of it must inevitably involve a trespass.
18. Mowlem advised Mr Macnab that the three fence posts that had been pulled over must be set in concrete foundations because the soil at their base was loosened to the extent that it was no longer providing sufficient support. Photographs taken by Mrs Richardson showed the contractors digging around the posts in order to excavate the soil sufficiently to contain the concrete infill. The concrete was initially supported by wooden shuttering until it hardened sufficiently to take the weight of the posts. The photographs also showed the extent of the, as the judge put it, "technical trespass", conceded by the Macnabs. A semi-circular area of the concrete foundations measuring about six inches in diameter encroached on to No 98. This was inevitable unless the line of the entire fence was moved back about a foot.
19. Once Mowlem's work was done, the crucial question was whether the line of the posts still followed the original boundary line confirmed by Mr Vaughan, agreed by the parties and declared by Miss Recorder Ralphs by the order of 25 April 2002. The Macnabs' case was that, whatever Mr Chalk's findings in March 2004 had been, they were now of only historical interest since Mowlem had pulled the posts upright. Mrs Richardson disagreed, asserting that Mowlem had re-sited the fence to the south of the agreed boundary line. Mr Macnab's evidence was that he had instructed Mowlem to re-erect the section of fence along its original line, which was one inch inside the boundary as established by Mr Vaughan: the original pegs which had marked it were still in situ. He did not site it further back because if he had done so the restored section would have been out of line with the remainder of the fence.
20. On 12 December 2005 the Richardsons warned the Macnabs that in the New Year they would remove the disputed section of fence. The response, on 23 December 2005, was that the Macnabs disputed that the fence had moved. On 1 January 2006, the Richardsons pulled up the fence posts and dumped the removed section of fence on the Macnabs's property. Mrs Richardson said in evidence that they chose a time when the Macnabs were away so that their actions could not be photographed. They pegged out what they claimed was the prior line of the removed section but did not do so in the presence of any independent witnesses.
21. The Macnabs issued the claim giving rise to this application on 16 January 2006. They sought damages for trespass, including the cost of reinstating the fence and the soil levels. As a result of various directions and agreements, the line of the true boundary was agreed to be as identified by Mr Vaughan in a report that he produced (paragraphs 73 and 74 of the Recorder's judgment). The Richardsons' case was that the fence had moved south of that line following Comleys' operations in May 2003 and had been re-positioned on that wrong line in March 2004. The Macnabs denied that any part of the fence had slipped on to No 98 save, if at all, to a minimal extent by way of settlement. The Chalk report had merely noted that the top of the fence was leaning towards No 98, which the Macnabs had always accepted to be the case. The Macnabs admitted the technical trespass represented by part of the concrete foundations to the extent of six inches. The question that the judge identified for herself was whether the line of the fence had moved from the line of the true boundary.
22. The judge, in a full and careful judgment, identified the main issue for her in paragraph 111. Had the line of the fence moved from Mr Vaughan's line by January 2006? If yes, had it occurred as a result of settlement, the gradient of the land, the instability of the soil around the foundations of the fence posts, an inappropriate realignment by the contractors who carried out work to the fence in March 2004, or for some other reason? In paragraph 77 she had similarly identified the central question and had there indicated that her view of the position was that (i) if the fence had not moved, the Macnabs were entitled to damages for trespass, and (ii) if it had moved, then the Richardsons would have established their counterclaim and "may be entitled to nominal or greater damages for that trespass by the Macnabs."
23. In paragraph 112 the judge found that the line of the fence had moved "marginally and to a minimal extent by way of settlement". She rejected the Richardsons' case that Comleys had moved the fence out of line in May 2003, and in paragraph 113 she explained why. She found that by December 2003 three of the fence posts were no longer vertical, but did not attribute that to the Richardsons. She accepted that Mr Chalk's assessment in March 2004 that the fence showed signs of leaning towards No 98. She rejected the Richardsons' case that the fence had been re-sited by Mowlems in March 2004 when they set it into new concrete foundations.
24. In paragraph 118 and following the judge explained her conclusion that the minimal movement of the fence had been as a result of settlement. She explained that there was no reliable evidence that Mowlems had done other than to comply with their instruction to re-erect the fence on the original line. She rejected the case that the fence had been pushed onto their land by either the Macnabs or their contractors. She found that the Richardsons had not been entitled to demolish the fence and was critical of the manner in which they had done so. In paragraph 121 the judge explained, by reference to the expert evidence, that the fence appeared to have moved a minimal amount as a result of settlement but there was insufficient data to show the extent of its movement, if any, and the evidence did not establish any encroachment on to No 98 as a clear fact. She said in paragraph 122:

"In conclusion, I therefore find that, apart from minimal movement due to settlement and the admitted encroachment of the concrete foundations to the extent of approximately six inches, there was no repositioning of this fence and it remained until removed for the purposes of this claim and counterclaim on its declared legal boundary."

25. In paragraph 123 the judge said there was no possible justification for the Richardsons' actions in removing the relevant section of fence, which amounted to a trespass entitling the Macnabs to damages. The judge said in paragraph 124 that

"It also follows from my findings that the Richardsons have established a technical trespass on the part of the Macnabs in relation to the concrete foundations of one or more of the fence posts."

The grounds of appeal

Ground 1

26. The first ground in the original form of the grounds of appeal is that the judge made findings of trespass in paragraph 112 that conflicted with those she made in paragraph 122. It is said that whereas she found in paragraph 112 that the fence had moved, in paragraph 122 she found that apart from minimal movement due to settlement and the admitted encroachment of the concrete foundations, the fence remained on its legal boundary until the Richardsons removed it. The Richardsons referred also to what the judge had said in paragraphs 121 and 124 and asserted that there was no evidence that the fence had remained on the legal boundary. The case made is that the judge had apparently found both that the fence had, and had not, moved from the legal boundary and it is said that such inconsistent findings showed a lack of impartiality on the part of the judge. Every litigant, it was asserted, is entitled to have his case tried by a tribunal free of bias or of the objective appearance of bias. Reference was made to Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
27. With respect to the Richardsons, anything in this ground of appeal has nothing to do with bias or the perception of bias. If the judge made inconsistent findings on material matters, that might found a ground of appeal. But the ground would be a mistake by way of misdirection on the evidence. Judges can make mistakes without deserving to be accused of bias. In fairness to the Richardsons, I read the amended Grounds of Appeal they have produced as abandoning the Article 6 point, and as confining Ground 1 to the assertion that the judge made conflicting findings. In my view the only question under Ground 1 is whether there is a properly arguable point that the judge did so.
28. The point that Mrs Richardson made in support of Ground 1 is that by the order of 25 April 2002 a declaration was made that the south face of the fence marked the boundary. If, as I read it, that means that its south face was on the line of the boundary, it is said that the minimal movement of the line of the fence that the judge found in paragraph 112 must necessarily – and contrary to the judge's finding in paragraph 122 – have amounted to an encroachment on to No 98, albeit only a minimal one. It may be that the judge's view was that there was no encroachment because the line of the fence was originally set back from the boundary, the Macnabs' evidence being that it was an inch or so back, so that there was a margin which meant that the movement did not involve an encroachment. But, if so, it may be that the judge was overlooking the provisions of the April 2002 order. In my judgment it is arguable that the judge's findings meant that, by January 2006, the fence was encroaching, even if only minimally, on to No. 98. If so, that at least enables an argument by the Richardsons that their actions of 1 January 2006 were justified.
29. Having said that, I make it absolutely clear that I give them no encouragement whatsoever in the belief that, if their argument on this point is otherwise right, that will carry with it any vindication of those actions. Had they sought an injunction to have the fence removed to its rightful line, I would not expect it to have been granted; and this court may well equally take the view that their recourse to their high-handed, and destructive, methods of self-help was wholly unjustified. But if the starting point of their argument is right, they are entitled to say that its consequences were not considered by the judge; and it would not be appropriate for me to purport to rule finally on it now.
30. Accordingly, whilst I find it depressing that the Richardsons should wish to pursue this dispute further, I will give them permission to appeal on the ground which I perceive to lie at the heart of Ground 1 of their appeal, a ground which I will formulate as follows:

"In the light of the declaration as to the line of the boundary in the Order of 25 April 2002 the judge was wrong, having found in paragraph 112 of her judgment that the line of the fence had moved "marginally and to a minimal extent by way of settlement", to conclude in paragraph 122 that the fence nevertheless remained on its declared legal boundary until removed by the appellants in January 2006."

31. I would, however, warn the Richardsons that the pursuit of an appeal on this ground will be a high risk strategy; and they should be aware of the likely costs consequences if the appeal fails.
32. By a further amendment to Ground 1 as originally formulated, the Richardsons have also sought to adduce in support of the amended ground new expert evidence from Mr Bennett. The complaint is that the judge misunderstood the expert evidence relating to settlement and seasonal variations. The assertion is that paragraph 121 of the judge's judgment results from "notes produced by the experts at a meeting during the trial". It is then asserted that this evidence "was not tested by the barristers or the Judge when the experts gave oral evidence". The assertion is that the Richardsons had not appreciated the significance of the experts being sent out of court to an impromptu meeting "returning to Court with a manuscript of questions prepared by the Claimants' Counsel and answered by the experts." It is asserted that they, their solicitor and counsel had not appreciated the significance of the questions the experts were asked to answer. No preparation was possible to deal with "the evidence contained in the answers given during the impromptu meeting at trial." This meeting was a serious procedural error, which led to "misunderstanding and confusion over the meaning of settlement and the evidence the experts were qualified to give to the Court. The Claimants last minute tactics of springing this evidence on the Appellants and their expert denied them the ability to have their Defence and Counterclaim tried fairly." Mr Bennett has now prepared a further expert report which the Richardsons wish to adduce as a basis for challenging the Judge's findings as to the minimal movement of the fence because of settlement.
33. The judge dealt fully and carefully in her judgment with the history of the litigation. In paragraphs 69 and following she explained the input the experts had had to the case. That explanation continued until paragraph 93, where she explained that, for reasons unclear to her, the experts had not before the trial met or communicated with each other with a view to agreeing a joint statement of the issues which were agreed or which remained in issue between them. She then explained that, pursuant to a direction that she gave on the first day of the hearing, they met whilst in court and produced a manuscript response to some questions that the Macnabs' counsel had drafted. In paragraphs 94 to 102 she summarised the result of that meeting, including Mr Bennett's opinion that "movements [in the line of the fence] would inevitably occur due to seasonal variations to various extents. He confirmed that he would expect an amount of movement in the direction of the slope in excess of one inch over a season." The judge referred to this in her conclusions in paragraph 121.
34. In my judgment, it is not possible to advance now a case that there was any procedural defect in the course the expert evidence took. The Richardsons were represented by counsel, to whose able representation the judge paid tribute, and if it were perceived at the time of the trial that the meeting directed by the judge had produced any procedural unfairness the time to make the point was then. It is not suggested that any such point was taken, from which I infer that no-one regarded themselves as disadvantaged by the course the trial took. The point is only now made, supported by a recent witness statement of 9^th May 2008 exhibiting a further report from Mr Bennett of 26 March 2008. In my judgment there is no basis for criticising the fairness of the procedure adopted at the trial. The real criticism is with the findings of the judge based on the fruit of the further meeting that she directed. In my judgment there is no basis for that. Whilst I recognise that the Richardsons disagree with the judge's conclusions as to the extent of the movement of the fence, and would welcome the chance the re-argue the case, the judge had regard to all the evidence before her and made the finding she did. She did not have the best evidence before her that might have been available, namely an extant section of fence whose line could be checked against the boundary line declared in 2002. Whose fault was that? The opinions of the experts did not and could not prove whether, and if so to what extent, the fence had in fact moved as the Richardsons asserted, and so the task with which the judge was faced was a difficult one. In the difficult circumstances in which she was faced, the judge made a decision on the basis of the evidence before her. That decision was on a matter of fact and there is no real prospect of this court taking a different view on it. I refuse to permit an appeal based on the proposed amendment to Ground 1.

Ground 2

35. The second ground of appeal is that the judge erred in finding that the trespass of the fence on to No 98 was merely technical. It is asserted that it trespassed at the base and at the top from May 2003 to March 2004. The complaint is that the judge did not have regard to this. I do not follow this complaint. The judge recorded in paragraph 3, I presume accurately, the Richardsons' concession that their only claim was for at best nominal damages and that their claim for an injunction was abandoned. The judge held, in paragraph 125, which related to the counterclaim, that it was of nominal value only, and that must have included all matters which were the subject of it, because that was the concession. Since the Richardsons were not claiming substantial damages in respect of these matters, nor any other relief, there was no need for the judge to rule on them. They could not be the subject of any order she might make. The judge herself, apparently aware that this complaint is now being made, is reported in a letter from the Courts Service of 25 March 2008 to have understood that none of these further matters was being pursued at the trial. If, however, there was some misunderstanding in this respect, and the Richardsons believed that matters were before the judge for decision on which she had not ruled, their proper course was to raise the matter with the judge when her judgment was handed down in draft. It could then have been considered whether those matters needed to be the subject of a further ruling. It is not a matter for an appeal. I refuse permission to appeal on Ground 2.

Ground 3

36. The third ground of appeal is to much the same effect. This is that the counterclaim included claims for trespass by the encroaching fence, the Macnabs' landfill and their concrete installations. The complaint is that the judge did not adjudicate on them. But no substantial damages were claimed, no declaratory or other relief was being persisted in and so there was no need for the judge to rule on them. The like points I have made in relation to the second ground of appeal apply. I refuse permission to appeal on Ground 3.

Ground 4

37. The fourth ground of appeal is a complaint that the judge found that the Richardsons had been responsible for damaging the wire mesh internal fencing at the bottom of the Macnabs' fence. The point is made that this finding related to a section of the fence that was not the subject of the claim or counterclaim. It is complained that there was no justification for these findings, in respect of which the Richardsons did not have a fair trial.
38. The answer to this complaint appears from the ground of appeal itself. This particular matter was not an issue before the court and, whilst the judge made a finding on it, it did not lead to any order against the Richardsons. It is only possible to appeal against orders, or the failure to make one. In this respect, the Richardsons want to appeal against a collateral finding of fact. No appeal lies against such a finding. I refuse permission to appeal on Ground 4.

Ground 5

39. The fifth ground of appeal criticises what the judge says in paragraph 87 of her judgment, one part of which the Richardsons assert is wrong. There is nothing in this. All the judge was doing in paragraph 87 was quoting from Mr Powell's report. The judge was not there accepting or rejecting it or any part of it. The Richardsons then criticise the judge for her comment in the first sentence of paragraph 90, when again all she was there doing was to summarise part of Mr Powell's oral evidence. Then it is said that the judge should not have criticised Mr Chalk's exercise without permitting Mr Chalk to be called, which it is said she (or the District Judge) did not. It was in fact the expert surveyors who were called who criticised Mr Chalk. In any event the judge found in paragraph 121(vi) that Mr Chalk's exercise was of largely historic interest since it pre-dated the physical interventions which had subsequently happened which may well have invalidated his conclusions, which as Mr Bennett (the Richardsons' expert) agreed were not more than a snapshot in time. The omission to allow Mr Chalk to be called cannot be said to have resulted in any injustice undermining the integrity of the judge's decision. I refuse permission to appeal on Ground 5.

Ground 6

40. The sixth ground of appeal goes to the issue of costs, on which the judge gave a separate ruling and awarded the Macnabs 50% of their costs. The Richardsons challenge that. They make a point that this extended to 50% of their costs of an abandoned application under the Access to Neighbouring Land Act 1992. The judge did not grant an injunction and whilst the Macnabs claimed damages of over £20,000, the judge merely awarded them £910.63, the cost of restoring the section of fence. There is no satisfactory transcript of the judge's judgment on costs, merely an inadequate note which is not easy to follow, in which it is not apparent that any point about the 1992 Act proceedings was raised.
41. The point appears to have been taken, and is taken now, that having regard to the measure of the Macnabs' ultimate success, this claim could and should have been the subject of a claim in the small claims court. The judge rejected that and held that the claim was inevitably going to end up as a multi-track claim. It is apparent from the note of her ruling that the material considerations relevant to costs were put before her and she ultimately exercised a discretion to award the Macnabs 50% of their costs. Some judges may have awarded more. Some might have ordered the Richardsons to pay all the costs, on the basis that their remarkable conduct on 1 January 2006 had inevitably provoked the litigation, and had caused a material part of its expense in the way of the expert evidence to be incurred as a result of the destruction of the evidence – that is, the relevant part of the fence itself -- which would have provided an easy answer as to whether it was or was not on No 98. If the Richardsons wanted to assert that it was on No 98, their proper course was not to take the law into their own hands and destroy the critical evidence. It was to bring proceedings for trespass and appropriate consequential relief. Having said this, it is also possible that some judges might have made a lesser costs order against the Richardsons. But it cannot be said that the costs decision the judge in fact made was beyond the range of her very wide discretion, issues as to costs being pre-eminently a matter for the discretion of the court. An appeal against the costs order has no prospect of success. I refuse permission to appeal on Ground 6.

Ground 7

42. Finally, the Richardsons also want permission to adduce fresh evidence to show that the Macnabs ran what they assert to be a deceitful case at trial. This relates to various insurance claims that Mr Macnab is said to have made. The Richardsons have received a letter from the Macnabs' loss adjusters stating that Mr Macnab had submitted a claim to the Norwich Union alleging that there was asbestos contamination in his and the Richardsons' gardens. A survey was commissioned to inspect No 100 and the boundary of No 98. The Richardsons assert that, once the Macnabs received the draft judgment, Mr Macnab made an insurance claim for remedial works to his land, apparently because he realised he was not going to recover costs from the Richardsons for building a retaining wall. It is said that Mr Macnab alleged to his insurers that the litigation related to the malicious damages claim he had made to his insurers in February 2003, in which he alleged that the Richardsons had dumped some seven tons of asbestos landfill on his land. The ground of appeal continues that "The Claimants had run three versions of their claims and allegations against the Defendants during the currency of these proceedings to obtain pecuniary benefits from their insurers, potential purchasers introduced by their Estate Agents and through the Court proceedings they brought against the Defendants in January 2006." I simply do not follow the relevance of this to a possible appeal. The proposed ground of appeal continues:

"The Claimants had also obtained legal expenses insurance cover from Mondial Assistance to finance their claims in Southampton County Court. The Claimants had given different versions of the events pleaded in their Particulars of Claim and Injunction Applications to each of the parties they were in negotiation with. The utilisation of the Court procedure, particularly forcing their claims into the multi-track to try and bring economic pressure to bear on the Appellants to forego all of their legal rights in their occupation of their property, was an abuse of the process and caused great injustice to the Appellants. Paragraphs 19 to 52 of the Statement of the Second Appellant, Valerie Richardson, sets out the circumstances of the Claimants deceitful conduct against the Defendants/Appellants before and during the trial of this matter."

43. That evidence consists of various references to assertions made by the Macnabs in their evidence in the proceedings; to allegations made by the Macnabs in the course of the proceedings; and to a Part 36 offer that they made in June 2007. There is an assertion that they were untruthful to potential purchasers of their property as to the potential for litigation brought by the Richardsons and trivialised the nature of the current litigation to potential purchasers. It is said they suppressed evidence to potential purchasers about the asbestos infill in their garden. It is said they misled their insurers. Whether or not the Macnabs may have been misleading third parties is not a matter on which it is necessary for me to rule, nor can I. None of what Mrs Richardson asserts in her extensive further evidence, to which on 16 May 2008 she added a further four pages or so of criticisms of the Macnabs, provides the basis for any ground of appeal against the judge's decision in the present litigation. The most that might be said about it is that it is material that could have been used in cross-examination of Mr Macnab and may perhaps have gone to his credibility. But to the extent that this material was not available for use at the trial, it could only be admitted by this court if it meets the Ladd v. Marshall [1954] 1 WLR 1489 principles. Amongst other things, the Richardsons would therefore have to show that it would probably have had an important influence on the result of the case. I am not persuaded that, having regard to the nature of the issues before the judge, it would have had any such influence at all. No case is made out for the admission of the further evidence. I refuse permission to adduce it.

Result

44. I refuse permission to appeal on all grounds apart from the limited ground under Ground 1 as formulated by me in paragraph 30 above. I direct the Richardsons to file and serve an amended form of their grounds of appeal setting out this ground and deleting all other grounds. I refuse to permit the adducing of any fresh evidence. I direct that the constitution to hear the appeal may include a High Court judge. I estimate the time necessary for the disposal of the appeal as half a day.