Judgment

1. LORD JUSTICE JONATHAN PARKER: This is an application by Mrs Annis Halliwell, the defendant in an action concerning a boundary dispute, for permission to appeal against an order made by Mr Recorder Atherton in the Tameside County Court on 16 July 2002. By his order, the judge made a declaration as to the true line of part of the boundary between Mrs Halliwell's land at Woodfield House, Stalybridge, Greater Manchester and the land of the claimant, Mrs Rita Noble, at Woodfield Lodge, Stalybridge, also known as 249 Wakefield Road, Stalybridge. The judge also ordered Mrs Halliwell to pay Mrs Noble's costs of the claim and her costs of Mrs Halliwell's Part 20 claim, which the judge dismissed. Mrs Halliwell, who appears in person this afternoon, seeks to challenge the judge's order in the Court of Appeal upon the basis, essentially, that the trial was an unfair one in that the judge failed to take into account, or to attribute proper weight to, the evidence which she had adduced in support of her own contentions as to the true line of the relevant boundary, and that the judge made findings of fact which were not justified on the evidential material before him.

2. In her amended Appellant's Notice, Mrs Halliwell seeks an order for what she describes as a full survey. In effect, that would mean, as I understand it, a retrial, and she also seeks to challenge the judge's order for costs submitting, in particular, that the judge ought to have allowed her Part 20 claim.

3. The background to the dispute is very briefly as follows (this is only a summary). In 1912 Mrs Halliwell's predecessors in title sold off an area of land on the southern boundary of Woodfield House. Subsequently Woodfield Lodge was built upon that piece of land. In 1948 Woodfield Lodge was conveyed to Mr and Mrs Wolfenden. In January 1983 Mr and Mrs Noble (Mrs Noble being the claimant in the action) were negotiating for the purchase of Woodfield Lodge from Mrs Wolfenden. A meeting took place on 26 January 1983 between, as the judge found, Mr Noble, Mr Sainsbury (the solicitor acting for Mr and Mrs Noble), Mr Higham (Mrs Halliwell's immediate predecessor in title) and a Mr Ross (Mrs Wolfenden's solicitor). The purpose of the meeting was to regularise the boundary between the two properties, including the part of the boundary which is in dispute in the action; such boundary having, it appears, been wrongly delineated on the title deeds. Following that meeting, Mrs Wolfenden executed a statutory declaration as to the extent of the land which she and her husband had occupied following their purchase in 1948. The plan annexed to that statutory declaration shows, as the judge found, the line of the boundary for which Mrs Noble contends. A confirmatory Conveyance, or as it has also been described, Deed of Exchange, was then executed, dated 28 January 1983. The parties were Mrs Wolfenden of the one part and Mr and Mrs Higham of the other. The purpose of that deed, as the judge found, was to regularise the boundary and to place it beyond dispute for the future. Unfortunately the plan annexed to that deed was not the same plan as had been annexed to the statutory declaration executed the previous day. The plan annexed to the Conveyance was very much less clear as to the precise boundaries. By a Conveyance also dated 28 January 1983 (and, as the judge found, executed after the other Conveyance) and made between Mrs Wolfenden and Mr and Mrs Noble, Mrs Wolfenden conveyed Woodfield Lodge to Mr and Mrs Noble by reference to the same plan as had been annexed to the conveyance executed earlier that day. Despite the attempts of Mrs Wolfenden and Mr Higham to define the boundary in January 1983, there has resulted a long running dispute between Mrs Halliwell (who moved into Woodfield Lodge in 1985) and Mrs Noble as to the true line of part of the boundary between Woodfield House and Woodfield Lodge.

4. Before the judge, Mrs Halliwell (who was represented by counsel, Mr Gilchrist) invited the judge to make findings as to the physical features of the boundary at the relevant time (1983). She also, through Mr Gilchrist, placed strong reliance on a number of plans and measurements, including ordinance survey plans.

5. In resolving this dispute the judge was thus faced with the task of trying to decipher what are, on their face, relatively indecipherable plans annexed to the title deeds. In order to do that, he rightly had regard to extrinsic evidence including the statutory declaration and the plan annexed to it. The judge also made a visit to the site himself. In the result, having conducted a review of the evidential material before him, including the oral evidence which he had heard, and having referred to the various plans on the title deeds, the judge (in effect) accepted the evidence of Mr Noble as to the relevant physical features and their position at the material time and, as I indicated at the beginning of this judgment, he declared the boundary to lie in the position for which Mrs Noble had contended. He accordingly dismissed the Part 20 claim brought by Mrs Halliwell in which she had contended for a different boundary line.

6. In her helpful oral submissions this afternoon, Mrs Halliwell has taken me through the judgment of Mr Recorder Atherton, identifying the various respects in which she seeks to challenge the judge's approach and his conclusions. Essentially, as I have already indicated and as appears in her grounds of appeal, her main contention is that the judge ought not to have accepted the evidence of Mr Noble and that her own evidence, in the form of a witness statement upon which she was not cross-examined, has not properly been brought into account. She also submits, and plainly she feels strongly about this, that whatever conclusions the judge came to on the evidence, it was unfair that her own Part 20 claim was dismissed bearing in mind the strength, as she would have it, of the evidence adduced in support of that claim.

7. Despite all that Mrs Halliwell has said, however, I can, for my part, see no basis upon which the judge's approach to the evidential material before him, or his conclusions based upon that evidence, could be the subject of a successful challenge in the Court of Appeal. As I explained to Mrs Halliwell in the course of her submissions, an applicant for permission to appeal to the Court of Appeal in order to challenge findings of fact made by the court below always faces a difficult task; no less so in a case such as this where the court below necessarily embarked on an investigation of the physical features of the boundary some 20 years earlier. I can, for my part, see no basis upon which the judge's findings could be successfully challenged in the Court of Appeal. Nor can I see any basis for the suggestion that the trial was, in any sense, procedurally unfair. As I have already indicated, Mrs Halliwell was represented by counsel throughout, albeit that the counsel concerned, Mr Gilchrist, had, it seems, been recently instructed and had not been Mrs Halliwell's first choice. Nevertheless had any question of unfairness arisen in the conduct of the trial, I have no doubt that counsel would have drawn the judge's attention to it at the time.

8. As to the substance of the judge's decision, it seems to me, as I have already said, that his conclusions are not susceptible to challenge in the Court of Appeal. I can, therefore, see no grounds for reopening or extending this unfortunate dispute. In my judgment, Mrs Halliwell's proposed appeal has no real prospect of success and I accordingly dismiss the application. Mrs Halliwell, I am sure that is disappointing but thank-you very much.

Application dismissed.