ON APPEAL FROM KINGSTON UPON THAMES COUNTY COURT
HIS HONOUR JUDGE WINSTANLEY
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACOB
LORD JUSTICE PATTEN
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Mr Montague Palfrey (instructed by Curwens) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Ward:
(Checked to audio – removed from bundle)
"Whilst there have been unresolved discussions about various matters, including the location of a potential wall/fence and positioning of electrical cables along the western boundary at the pool side, the parties main disagreement is as to the positioning of the northern and western boundaries and what access/rights if any have been acquired over the land."
"We note from your letter of 13 July you have threatened to interfere with our clients' irrigation systems and electrical cables by removing the pipes and cables and placing them on what you perceive to be our clients land. We confirm that you are not authorised to interfere with, tamper or remove these items in any way whatsoever without our clients' prior consent. This consent has not been given. We further understand that our clients have already explained to you that interference with any part of the system will affect the whole, which will inevitably become unusable. Computers operating the system will be damaged and there could be a substantial loss of water."
As a result the defendants threatened that if there was any attempt to interfere with those pipes they would immediately seek an injunction restraining the claimant from interfering with or tampering with their property.
"Mr Mead said in oral evidence that following complaint from Mr Langridge he arranged for the contractors to move the irrigation system. This was done between July and September 2007. Mr Mead said that the pipes and cables on the western boundary were moved to the Fir Tree Lodge side [ie the defendants' side] of the laurel hedge. The pipes and cables on the northern boundary were moved back to the area of the Meadows wall [again part of the defendant's land]."
"If I accept this evidence from Mr Mead then in the light of the determination of the position of the boundary that I have made, no pipes or cables moved back into the areas described by Mr Mead will be on the Avus land. This is because all such pipes and cables will be situated behind the laurels."
"this was a significant attempt by Mr Langridge to mislead the court, so significant that his credibility is just about completely undermined."
"It is a close run thing, but in the circumstances I prefer the evidence of Mr Mead to that of Mr Langridge.
In these circumstances I accept that Mr Mead arranged for the irrigation system to be moved to the Fir Tree Lodge side of the laurels before the claim was issued."
"Pipes and cables were observed on the Avus land during the site inspection."
"No evidence was presented to me of the function of this cable, or indeed as to whether it had any function at all. No effort had been made to trace its source or to its outlet.
I am asked in effect by the Claimant to infer that this and the other cables on the Avus site are some sort of left over from the Claimant's irrigation system. In the absence of positive evidence to this effect I am not prepared to make this inference.
I find that the Claimant has not satisfied me that any pipes or cables in the area of the northern and western boundaries of the Avus land were put or left there by Mr Mead."
And in those circumstances the claim made in trespass failed.
"Q: Can you confirm is that your cable?
A: I don't know. I don't know. I mean the assumption is that it's mine. If it is mine, if it's part of the irrigation system I'm told that is all low voltage, that there is no high voltage component to it. I asked the contractors when I bought it, I asked them when they moved the pipes and I am told there are no high voltage cables. I cannot think of any other reason why a high voltage cable should be in Mr Langridge's garden but if there is one and it's anything to do with anything on my land I will remove it, quite simply.
Q: When irrigation pipes were moved back, why not move back these cables as well?
A: I didn't know that any cables were left in situ."
"Q: You have not at any time inspected yourself or sent somebody else to inspect as to where your cables are located on Mr Langridge's land?
A: No, I haven't."
And so the evidence actually given to the judge was that Mr Mead had not inspected to see whether his contractors had done the job he asked them to do. He himself did not know what the position on the ground was because, quite astonishingly, he had not bothered to go and look. In those circumstances, the judge was faced with this situation. An irrigation system of water pipes and electrical cables had been installed in 2004 by the defendant. The defendant assumed that the pipes and cables were his. If they were not his, the other possibility is that they were the pipes of the claimant, but there was no evidence given that they were his; there is no suggestion that they belonged to or formed part of the Avus property. The overwhelming probability, which was irresistible, was that the pipes which the judge saw still to be on the wrong side of the boundary were part of the system installed by the defendant in 2004. There was no other reasonable conclusion he could have reached. Mr Palfrey has done his best to defend this judgment. He submits correctly that the claimant who alleges trespass must prove that trespass. The judge was entitled to find on a balance of probabilities that the claim was not made out. Of course that is right in abstract, but it is a far cry from the reality of this case, where there was only one answer to the question: to whom do these pipes belong? They belong to the defendant.
Lord Justice Jacob:
Lord Justice Patten:
Order: Appeal allowed