England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRESTON COUNTY COURT
District Judge Rouine
2014-Pl-10329

		Royal Courts of Justice Strand, London, WC2A 2LL
		30th March 2015

Lord Justice Patten :

1. The Court of Appeal does not usually entertain appeals where the only grounds of challenge to the judgment of the trial judge relate to the judge's findings of fact. Decisions of this Court and the Supreme Court have repeatedly recognised the advantages which the trial judge enjoys in hearing the live evidence and assessing the credibility of the witnesses. The function of the appeal court is not to re-hear the case but to review the decision which the trial judge has made. For this reason, it will only interfere with his findings of fact if it becomes clear that there was no evidence to support them; that the judge misunderstood the evidence; or that he made findings which no reasonable judge could, in the circumstances, have made: see Re B (a Child) [2013] UKSC 33 at [52]-[53].
2. The reasons for this reluctance to interfere with the fact-finding process that has taken place at trial are not difficult to discern. The need for finality in litigation; a speedy resolution of disputes; and not least the costs of bringing a claim to trial all militate strongly in favour of respecting the trial process as determinative of the factual disputes between the parties. The trial should therefore ordinarily be treated as what the United States Supreme Court in Anderson v City of Bessemer (1985) 470 US 564, 574-5 described as the main event:

"The rationale for deference to the original finder of fact is not limited to the superiority of the trial judge's position to make determinations of credibility. The trial judge's major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge's efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources. In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one: requiring them to persuade three more judges at the appellate level is requiring too much. As the court has stated in a different context, the trial on the merits should be 'the "main event" … rather than a "tryout on the road." … For these reasons, review of factual findings under the clearly erroneous standard - with its deference to the trier of fact - is the rule, not the exception."

3. This passage was quoted with approval by Lord Reed JSC in McGraddie v McGraddie [2013] UKSC 58 and is consistent with other English authority on the same point.
4. But the relative immunity of the trial judge's findings of fact to interference on appeal depends upon the trial process having been conducted in a way which confirms that the trial judge has properly considered and understood the evidence; has taken into account the criticisms of the evidence advanced by the parties' legal representatives; and has reached a balanced and objective conclusion about points on which differing or inconsistent evidence has been given in making the factual findings which form the basis of his decision.
5. An important aspect of this process is the production of a properly reasoned judgment which explains to the parties and to any wider readership why the judge has reached the decision he has made. This includes making a reference to the issues in the case; the legal principles or test which have to be applied; and to why, in cases of conflicting factual evidence, the judge came to accept the evidence of particular witnesses in preference to that of others.
6. The judge is not, of course, required to deal with every point raised in argument, however peripheral, or with every part of the evidence. The process of adjudication involves the identification and determination of relevant issues. But within those bounds the parties are entitled to have explained to them how the judge has determined their substantive rights and, for that purpose, the judge is required to produce a fully reasoned judgment which does so: see English v Emery Reimbold & Strick Ltd. [2002] EWCA Civ 605. The production of such a judgment not only satisfies the court's duty to the parties but also imposes upon the judge the discipline of considering the detail of the evidence and the legal argument.
7. The defendant, Mr Place, appeals with the permission of Lloyd Jones LJ against an order of District Judge Rouine made on 22 January 2014 in the Preston County Court following the conclusion of a four-day trial. The claimants, Mr and Mrs Weymont, sought damages for trespass and injunctive relief in respect of the use by the defendant of various parcels of land adjoining his property at Underwood Farm, Rossendale in Lancashire. Mr Place is the owner and registered proprietor of this property under title number LA906858. The claimants are the registered proprietors of the nearby Dam Top Farm with title number LA480010.
8. Originally both properties were in the common ownership of the defendant's family but, following the death of Mr Place's grandmother in 1969, the land was divided between his father who became the owner of Underwood Farm and his aunt who had conveyed to her the surrounding farmland now in the ownership of the claimants. This was effected by an assent dated 6 March 1970. The property conveyed to the defendant's father was quite limited in area and comprised the farmhouse and an adjoining barn and cottage. The assent also included some land immediately adjacent to the farmhouse but not the adjoining farmland nor the small road which connects the farmhouse at Underwood Farm with Dam Top Farm. The road was included in the land conveyed to the defendant's aunt but is subject to a right of way in favour of Underwood Farm from the point where the road or track crosses the farmyard in front of the farmhouse. The cottage was later sold by the defendant's father to a third party and has never therefore formed part of the defendant's own title.
9. A dispute has arisen about the defendant's right to make use of various areas of land which lie between the walls of the farmhouse and the line of a continuous wall and fence surrounding the property. The areas in question are the yard in front of the farmhouse; an area of garden at the rear which rises away from the house and is abutted on one side by an old stone wall; what is described as a maintenance strip running around the house and outbuildings which is some 11 feet higher than the surrounding farmland and (it is said) has historically been protected by stock-proof fencing, a pen beyond the yard; a muck midden which is used to store coal; and part of the track leading from the area of the garden described above up to the farmhouse.
10. The claimants allege that the defendant's use of these areas of land amounts to a trespass. It is not necessary to go further into the details of the acts of trespass relied on. The defendant's response was that the land was included within the registered title to Underwood Farm. In the alternative, he alleged and counterclaimed for a declaration that he and his father had acquired a title by adverse possession for at least 12 years prior to the coming into force of the Land Registration Act 2002: i.e. before 13 October 2003. If so, he is entitled to the benefit of the transitional provisions contained in paragraph 18, Schedule 12 to the 2002 Act.
11. The issues in the claim were therefore whether the boundaries of the claimants' registered title extended so as to include some or all of the disputed areas of land and, if so, whether the defendant had a claim to ownership based on adverse possession. The first of these issues required the assistance of an expert who could plot the boundary on a suitable plan based on the filed plans of the registered titles and any other pre-registration documents of title on which either party wished to rely. On 27 June 2012 the District Judge made some standard directions at a telephone hearing which included a direction giving the parties permission to rely upon a site plan dated 5 September 2011 prepared by Mr Grant Erskine, an architect who had been appointed as a jointly instructed expert under the terms of a letter of instruction dated 20 July 2011.
12. The letter provided him with copies of the two filed plans and the 1970 deed of assent and asked him to prepare a plan showing the boundary as defined in those documents by reference to the farmhouse and any other relevant physical features. The plan dated 5 September 2011 is numbered A-002. Mr Erskine did not prepare anything which can be described as an expert's report but did produce and sign a statement of truth which refers to plan A-002 and an earlier plan (A-001) and confirmed that he had understood his duties as an expert to the Court.
13. On 14 August 2012 the District Judge made an order that the claimants could rely on the written evidence of Mr Erskine which can only be the undated statement of truth, as there appears to be no other written evidence from the expert, save for a document he later prepared in response to an order of the District Judge dated 29 January 2013. The trial was originally fixed for 29 and 30 January 2013 but the dates were vacated after the claimants and the defendant were ordered to disclose any other relevant pre-registration documents of title. The District Judge directed the documents to be sent to Mr Erskine and for him to provide a further updated report which should include a detailed and comprehensive narrative setting out the basis for his conclusions.
14. It is common ground that the expert did not do this save to prepare a document wrongly dated 11 March 2012 but which was actually produced on 11 March 2013 and which essentially sets out the methodology used in preparing the two plans. The expert certainly did not revisit or amend plan A-002 or produce any revised drawing in response to the additional disclosure. The trial therefore proceeded on the basis of that written evidence and his original plans. This document, however, introduced an element of controversy by referring to an occasion on 20 December 2011 when Mr Erskine says he received a phone call from Mr Place asking for a quote for the design of some outhouses at Underwood Farm. He says that he informed the appointing solicitors about this contact and agreed that he would not engage in any work for Mr Place until after the dispute with the claimants had been resolved. I should mention at this stage that Mr Place wrote a letter at the time denying that he had approached Mr Erskine as alleged. He maintains that it was Mr Erskine who contacted him about the planning and re-design of the outhouses. I shall return to this issue later in this judgment.
15. Part of the argument at the trial on the boundary issue was that the general boundaries rule enabled the judge to treat the boundaries shown on the filed plans (and therefore on the expert's plan) as indicative only and to have regard to the nature and use of the land at the relevant time in deciding what was included in the registered title. This argument was important to Mr Place because plan A-002 showed each of the disputed areas as included within the claimants' registered title. Much the same argument was also relied upon by the defendant to support his case on adverse possession. Although he had adduced evidence from witnesses who said in their statements that he and his father had carried out acts of ownership in relation to parts of the disputed land, he relied on the fact that all of the areas in question formed part of what can be described as the curtilege of the property so that it could be inferred from their location and common character that they had been used as part of the property throughout the relevant period without the necessity of producing evidence of actual use. Mr Wilkinson in his written submissions for the trial referred to the decision of the Court of Exchequer in Jones v Williams (1837) 2 M & W 325 where Baron Parke said:

"Ownership may be proved by proof of possession, and that can be shewn only by acts of enjoyment of the land itself; but it is impossible, in the nature of things, to confine the evidence to the very precise spot on which the alleged trespass may have been committed : evidence may be given of acts done on other parts, provided there is such a common character of locality between those parts and the spot in question as would raise a reasonable inference in the minds of the jury, that the place in dispute belonged to the plaintiff if the other parts did."

16. At the trial the parties gave evidence and also relied on the evidence of a number of witnesses whose statements had been exchanged. The trial took place on 9, 10 and 11 July 2013 and final submissions were made on 28 October 2013. The District Judge produced a reserved judgment on 22 January 2014 finding for the claimants on the boundary line issue and dismissing the defendant's counterclaim based on adverse possession. He ordered the payment of damages for trespass and made various injunctions requiring the defendant to remove his property from the disputed areas and to make no further use of that land.
17. In his closing written submissions supplied to the judge for the purpose of the 28 October hearing, Mr Wilkinson had identified in some detail the features of the land which he submitted engaged the principle in Jones v Williams and also analysed the evidence of actual use. Submissions were also made on the issue of the general boundaries rule but it was not submitted to the judge that Mr Erskine had failed accurately to transpose the boundaries shown on the filed plans on to plan A-002. The boundary issue therefore turned exclusively on whether and to what extent the Court could and should depart from plan A-002 under the general boundaries rule.
18. There is no appeal by the defendant against the judge's decision that plan A-002 should be adhered to for the purpose of determining the paper title to the land in dispute and it is not therefore necessary for me to refer in any more detail to the arguments on that issue. In relation, however, to adverse possession, the judge was faced with evidence from the defendant that it had always been the intention in 1970 that the conveyance of Underwood Farm should include the adjacent areas because they formed part of what could reasonably be described as the farmhouse and were necessary for the proper use and enjoyment of the property as a residence. This included the hanging of washing, the storage of wood and the maintenance of the property.
19. Mrs Kathleen Foulds who as personal representative had executed the assent prepared a witness statement but was unwell and unable to attend the trial. But the judge did hear evidence from three witnesses (Mr Cook, Mr Hutchinson and Mr Spencer) two of whom had worked at Underwood Farm and all three of whom gave evidence going back at least to the 1970's of the use made of the disputed land.
20. The claimants purchased their property in 1997 and had therefore limited personal knowledge of the relevant period of use. But they called a Mr Kershaw who had visited Underwood Farm about 40 years ago and gave evidence about public use of the land and what he recalled of the physical features such as the stone wall when he visited. A Mr Whittaker was also called and said, inter alia, that there was no back garden at all but subsequently changed his evidence when shown an aerial photograph. The claimants also called a Ms Epstein but her knowledge of the farm was also relatively recent.
21. For reasons which will soon become apparent, I do not intend to carry out any more detailed analysis of the live evidence. It is enough for the purposes of this appeal to observe that the judge was presented with a detailed critique of the evidence that had been called and heard submissions from both sides as to why certain parts of that evidence were not credible or were irrelevant to the issues in the case. But there is no doubt that the judge was faced with conflicts of evidence as to user in the relevant period which he needed to resolve in order to decide the claim based on adverse possession.
22. The judgment begins with a brief summary of the alleged acts of trespass and the nature of Mr Place's defence and counterclaim. In paragraph 8 the judge lists the witnesses he heard and says that he read their statements both before the trial and again when preparing his judgment. In relation to the defendant's witnesses including Mrs Foulds who were not called to give oral evidence, the judge said:

"10. The conclusion to which I am drawn on this point, in this case, is that as I have not had the opportunity to assess the credibility of these four witnesses for myself, and in person, nor to see them being tested by cross-examination, I am not persuaded that any weight of any significance should be placed on the evidence of any of them in the context of my decision making process, in relation to these proceedings. I will return, in due course, to the bearing that the evidence of the witnesses from both sides, from whom I have heard in person, has had in my decision making process in this case."

23. Nowhere does the judge explain what issues their evidence was relevant to and why he decided that no weight could be attached to what they said.
24. The judge then goes on to explain that he declined to conduct a site visit but that he had sufficient material in the form of photographs and other documents to enable him to reach his decision. At paragraph 12 he turns to what he describes as the substance of his decision.
25. The first issue which he considered was the boundary issue. He says in paragraph 13 that he accepts Mr Erskine's evidence and conclusions without any significant reservation and that the boundaries of the claimants' registered title is therefore as shown on plan A-002. No mention is made by the judge about the general boundaries issue but, because no appeal is mounted against this part of his judgment, it is unnecessary to say more about it. The judge then turns to the question of adverse possession. At this point in the judgment the District Judge has not yet attempted to identify with any detail or clarity the precise areas of land in dispute; their physical description; or the use which the defendant and his witnesses say was made of them. Nor has the judge directed himself about the law. Instead the judge begins his treatment of this issue by referring to a dispute between the parties about the significance of a hand-drawn plan of the farmhouse and surrounding land which Mr Place accepts that he prepared in an attempt to achieve a compromise of the dispute with the claimants. The drawing suggests that Mr Place would buy a parcel of land to the west of the track and create a new piece of road designed to avoid the claimants having to drive through the yard in front of the farmhouse. The proposal evidently came to nothing but the judge says that he accepts the claimants' evidence which was that the proposal was prompted by Mr Place recognising their rights over the track and perhaps other parts of the disputed land.
26. Mr Wilkinson submitted that the judge was wrong about this because the drawing also refers to Mr Place being prepared, if necessary, to sell a plot B to the claimants in exchange which is in fact part of the land to which he claims a title by adverse possession. He also says that since the proposals were an attempt to compromise the dispute, they were privileged and should not have been admitted in evidence. In my view, the real objection to any reliance by the judge on this material is that it is simply irrelevant to the dispute about adverse possession. Even if the offer to negotiate was prompted by some insecurity about his case on the part of Mr Place, that does not relieve the judge of the obligation to try the case about adverse possession on the merits having regard to the evidence about past user. There is no admission in the pleadings on any issue relevant to this and to the extent that the judge placed any reliance on the abortive negotiations for a compromise as some kind of indication that Mr Place had a weaker case, he was wrong to do so.
27. The judge then turned to consider the evidence of the witnesses. He said this:

"17. I turn now to consider the evidence from the parties and their witnesses on the issue of the claim for adverse possession. In relation to the evidence presented to me, with reference to events pre-dating the claimants' purchase of their property in 1997, I found the evidence presented on this issue by witnesses called by the claimant, both in respect of each individual witness called and taking the overall picture painted by the evidence of those witnesses, as a whole, to be broadly consistent and persuasive in tone and content. I see no reason not to accept the evidence which I heard from Mr Whitaker. Whilst acknowledging that the work-based relationship between Miss Epstein and the Weymonts, that, in itself, is not sufficient, in my view, to call into question the fundamental authenticity of the evidence which she gave. I see no reason to call her evidence into question. Equally, in spite of efforts on the part of the counsel for Mr Place to undermine him, I saw no reason not to accept the evidence which Mr Kershaw gave. I remind myself of the - for want of a better word - spat that developed prior to Ms Swift giving evidence, about what might be her true identity, and whether or not she was or is, in some way, related to the Weymonts. My recollection is that no one involved in that particular spat seemed to emerge from it with any much credit, but I prefer, at this point, to draw a veil over the event and move on. Save to say that the distraction of the spat, to which I have just referred, did nothing, in the end, to detract from the impression which I have formed of Ms Swift's presentation before me as a fundamentally honest witness, whose recollection of the events in which she gave evidence, appeared to me to survive any attempt to challenge it.

18. There is, in my judgment, a significant contrast with the evidence adduced on this issue, on behalf of Mr Place. I repeat all that I have said previously in this judgment about the weight, or lack of it, which I have placed upon the evidence of the four of Mr Place's witnesses, from whom I read statements, but from whom I did not hear evidence in person. In respect of the evidence of Messrs Cook and Hutchinson, it seems to me that the submissions made to me by counsel for the Weymonts about the inconsistencies in that evidence had very real force to them. My assessment of the evidence given by Mr Spencer does, I have to say, rather accord with the assessment of it, which forms submissions to me from counsel for the claimant, which was to the effect that it simply seeks to agree with Mr Place's evidence, rather than adding anything of significance, by way of a new dimension, in or of itself, as opposed to the defendant's case which can be gleaned from other sources and evidence. Ms Rushton, in my view, whilst I do not, for a moment, seek to suggest that she actively sought to mislead me, performed, in my judgment, very poorly under cross-examination on a number of issues, including what works may have been done, where and when they were completed, how and when damage may have been caused to vehicles, and any benefit that might have accrued to her, as an occupier of Underwood Farm, in the event that the defendant's counter-claim succeeded. Her performance under cross-examination was such that, in my judgment, it called into question, in the most fundamental terms, the weight, if any, which I could or should place upon her evidence."

28. Mr Wilkinson made a number of particular criticisms of these parts of the judgment. He pointed out that neither Ms Epstein nor Ms Rushton gave any substantive evidence about adverse possession. But his principal complaint was that the judge has accepted the evidence of Mr Kershaw and Mr Whittaker in a wholesale and uncritical way without addressing any of the specific points made in closing submissions about the inadequacies of some of that evidence. These include inconsistencies with other evidence and proven errors of recollection. The judge has failed to deal with any of these points in his judgment and merely says, for example, that he sees no reason not to accept the evidence of Mr Whittaker. By contrast, he says that he accepts the submissions made to him about the inconsistencies in the evidence of the defendant's witnesses, Mr Cook and Mr Hutchinson, but again offers no further explanation of what those inconsistencies were and why he considered them to be material.
29. I do not wish to analyse the evidence in any greater detail because we have reached the clear conclusion that this case must be re-tried. Our decision is not based on taking a view about the strength or inherent credibility or otherwise of any of the live evidence. We have decided to allow the appeal because the District Judge has failed in our view to produce a judgment which contains any adequate reasons for reaching the conclusion which he did. In place of an analysis of the evidence and the submissions on both sides as to its credibility or relevance, the judge has given blanket acceptance to the claimants' evidence and a blanket rejection of that of the defendant's witnesses. In the whole of his judgment on the facts there is not one sentence in which he makes any specific findings of fact or gives the reasons for doing so. Nor is any attempt made to deal separately with the various parcels of land in dispute even though different witnesses gave different evidence in respect of each of them.
30. At paragraph 19 of his judgment the judge turned to the evidence of Mr Place himself. Again, I quote the paragraph in full:

"I turn now to the evidence of Mr Place himself. There is, I have to say, one issue which looms large over my assessment of Mr Place's evidence, in its entirety. Whilst Mr Erskine was still fulfilling his role as the independent expert witness in these proceedings, it appears clear to me that he was approached by Mr Place with the suggestion that he, Mr Erskine, might be appointed to provide professional services to Mr Place in respect of a number of other matters. I have to say I find it very difficult to accept that Mr Place did not appreciate that it was wholly inappropriate to approach Mr Erskine, in the terms that he did, whilst Mr Erskine's involvement in case, as an independent expert witness, remained live. I repeat the view which I have touched upon earlier in this judgment, to the effect that in my view Mr Erskine behaved perfectly properly in the way in which he dealt with the separate approach from Mr Place, subsequent to his appointment as the expert witness in this case. Whilst I confirm that I am making no definitive findings on this point, I make it clear that I have very significant misgivings about the actual motives behind Mr Place contacting Mr Erskine in the terms that he did, at the point, in the light of this dispute, which he did. Those misgivings are so significant, in my view, as to substantially influence to his detriment, my assessment of the quality and accuracy of Mr Place's evidence as a whole, including on issues regarding the claim, in respect for adverse possession."

31. The only reason which the judge gives for rejecting the evidence of Mr Place on historic adverse possession is that he made an inappropriate approach to Mr Erskine about future work at a time when Mr Erskine was still acting as the joint expert in this litigation. As I mentioned earlier, Mr Place disputes the account of this matter given by Mr Erskine in his response document to the Court. Although Mr Place was cross-examined about this issue at the trial, Mr Erskine did not attend to give evidence and if the judge thought that the exchange between the two men was relevant to Mr Place's credibility then he was duty bound to make specific findings of fact about what actually occurred. In the absence of Mr Erskine's attendance at the trial, the judge did not have the material on which he could make such findings and he makes it clear in paragraph 19 that he was not making any findings against Mr Place. Yet notwithstanding this he then proceeds to criticise Mr Place for something which, on his evidence, he had not done.
32. This is not a proper or adequate basis for discounting the evidence of the defendant and the judge was quite wrong to do so.
33. The defendant's case based on the common character argument is also dealt with in a single paragraph as follows:

"19. For completeness I should also deal with certain issues which were raised before me in the trial. Based upon the evidence which I have heard and read, I do not accept that the common character of the locality is, in fact, strongly indicative of the fact that much of the land, which is in dispute in this case, is used and enjoyed in common with Underwood Farm. I accept the submission made to me that it has, if anything, common characteristics with the entire Rossendale Valley, as a whole, rather than the specific areas around Dam Top and/or Underwood Farm. I repeat, in this context, the conclusion that I reached, based on my consideration of Mr Erskine's report and the impact that had on my findings as to within whose title the disputed land is located, those conclusions being that the land was within the title of the Weymonts. I also confirm that nothing which I have read or heard about the common character of the locality persuades me that there is sufficient evidence, upon any basis, to conclude that the defendant has a sustainable claim for adverse possession, when considered with, or entirely separate from, the witness evidence dealing with the acquisition of adverse possession, to which I have referred earlier in this judgment. I am also wholly unpersuaded by any argument on behalf of Mr Place which suggests that Mr Erskine could not, and should not, have relied upon the registered plans when preparing his report. Nothing which I have seen or read suggests to me that the registered plans should be looked behind or should, in some way, be treated with caution."

34. This reveals, in my view, that the judge has failed to appreciate the relevance of the common character principle or to apply it to the facts of this case. In particular, he makes no mention of the fact that many of the disputed areas are separated from the remainder of the claimants' land by physical barriers such as fences and stone walls. Nor does he deal with the defendant's argument that these contiguous areas were all by nature and location part in effect of the farmhouse. Instead the judge refers to Mr Erskine's report which is only concerned with the boundaries of the paper title and has no relevance to the issue of adverse possession.
35. The paragraph quoted is again a series of unreasoned conclusions with no explanation as to how they were reached.
36. I would therefore allow the appeal and order the issue of adverse possession to be re-tried before a different judge. At the conclusion of the appeal we indicated to counsel that this was the decision which we had reached for reasons which would be given later in writing. As we indicated then, we propose to order the transfer of the case to the Manchester District Registry and for it to be re-tried as soon as possible before a s.9 Chancery Circuit Judge.

Lady Justice Hallett :

37. I agree.

Lord Justice Christopher Clarke :

38. I also agree.
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