Smith v Brough

LADY JUSTICE ARDEN: Pursuant to directions given by Brooke LJ on 21st December 2004, this is an application by Mr and Mrs Brough for an extension of time and, if that is granted, for permission to appeal, from the order of Mr Recorder Hirst, dated 4 September 2001. By this order the Recorder made an order for the location of the boundary between 44 Middle Drive and 46 Middle Drive, Darras Hall in Pontiland, Newcastle upon Tyne. He found in favour of the respondents to this appeal. They were the claimants in the action. They are Dr Smith and Dr Hutchinson. The judge also made a permanent injunction and granted damages against the appellants for trespass.

In support of their application the appellants, Mr and Mrs Brough, rely on two witness statements of their solicitor, Mrs Jennifer Smurthwaite, a partner of Dickinson Dees in Newcastle. In addition, pursuant to directions given by Brooke LJ, the respondents rely on a witness statement of Dr Smith, dated 1st February, and a witness statement, dated 11 February, of Mr Richard Pickersgill.

Before I go into the judge's judgment and the background, I will indicate the grounds of appeal. First, it is contended that the judge wrongly concluded that there was a boundary agreement made between the successors in title of the appellants and the respondents in 1990 to fix the boundary along the line of the wire mesh fence. The judge found alternatively that the factors amounting to the boundary agreement were sufficient to amount to an estoppel to prevent the appellants from asserting otherwise in relation to the boundary than he found the boundary to be.

The appellants contend that the judge's findings on these points were fatally flawed. They say that, first, no claim was made in the case as pleaded to a boundary agreement, second, no such issue was addressed in the written or oral evidence of the parties and third, the only relevant evidence was a discussion between Mr Mulhern and Dr Smith. The court did not hear directly from the evidence of Mr Mulhern as to the replacement of the fence in question. It is contended that it was not sufficient for the judge to infer an agreement.

The second ground of appeal is that the judge also erred in dealing inconsistently and erroneously with the evidence as to the planting and position, vis-a-vis the boundary of a line of Leylandii trees between the two properties. He accepted the evidence of a Mr Turnbull that he had planted the trees on the respondent's side, but then held that he had planted the trees at a place different from that which Mr Turnbull said he had planted the trees. Mr Turnbull referred to the trees as planted on the Respondent's side of the boundary, when on his finding they had, in fact, been planted on the appellant's side.

The judge also held that the wire mesh fence had been planted in the place of the former post and rail fence, when this was contrary to photographic evidence produced at the trial by Mr Turnbull.

The third ground of appeal is that the judge should have found that the boundary was located according to the conveyancing documents and its historic position. The appellants state in their notice of appeal that the appeal is against the judge's findings of fact.

The trial of this action took some four days. There were a number of witnesses, including Dr Smith, Mrs Brough, Mr Mulhern and others. In his judgment the judge referred to the plans produced by the experts. He held that according to the conveyancing documents the boundary between number 44 Middle Drive and number 46 Middle Drive ran down the line called the legal boundary on their plan. Subject to certain alterations agreed upon by the experts, or in the case identified by one of the experts, Mr Duff.

The judge went on to say that that did not dispose of the case because there were other questions to be resolved. He then made a number of findings of fact: first, he held that between 1957 and 1967 a post and rail fence had been installed down most of the boundary starting at Middle Drive and he found that this fence was placed on the legal boundary. The judge then found that in about 1986 Mr Turnbull, then the owner of number 46, planted a row of Leylandii trees. The Turnbulls had built an extension to their property and there had been complaints by the owners of number 44, the respondents to this appeal.

The judge referred to Mr Turnbull's evidence that to appease his neighbours he planted conifer trees (that is Leylandii) in 1986 from the front of his property to a halfway point in the garden. His evidence was that he planted the trees well on their side of the boundary. He also said, however, that the boundary was made up of mature trees and bushes. Mr Turnbull did not refer to the post and rail fence. The judge found that it must have been dilapidated by 1986. The fact that it was dilapidated had been referred to by Mr and Mrs Mulhern who gave evidence before them. The judge accepted that Mr Turnbull planted the trees in a situation which he "considered was well within [his] own boundary." The judge found that Mr Turnbull was more concerned with privacy and that in fact he did not plant the trees well within his own boundary but into the eastern side of the post, and rail fence and thus on 44 Middle Drive.

The judge also found that in 1990 the Turnbulls vacated number 46 Middle Drive and that property was empty for about a year. During that period Dr Smith, a co-owner of 44 Middle Drive, installed a large panel fence that ran for some 200 feet over the northerly part of the boundary between the two properties. It ran along the line identified on the plan, to which I have referred, by the phrase "start of fence" on the plan up to the northern edge.

The judge found that the larch panel fence, on Dr Smith's evidence, was replaced the bushes and plants which had stood on the boundary. The judge found at this point in time the Broughs at number 46 effectively occupied a larger amount of land than they were strictly entitled to under their legal title. The matter with which the judge dealt next was whether Dr Smith had, as she said in her evidence, replaced the Leylandii. Her evidence was supported by that of her gardener, Mr Clegghorn. The judge rejected his evidence because on his site inspection he found older Leylandii.

Next the judge turned to the question of whether in 1990 there was an agreement between the Mulherns, primarily through Mrs Mulhern, and Dr Smith relating to the boundary. The judge found was that in 1990 there was an agreement between Mrs Mulhern and Dr Smith to put in a new black wire mesh fence from the point of the boundary with Middle Drive to the point where the larch panel fence ended. The large panel fence ended some 200 yards from the northerly boundary of the two properties. Mr Mulhern was away working in Abu Dhabi. The judge found that Dr Smith wanted the wire mesh fence in order to keep their dog in. The judge went on to find that the new wire mesh fence was placed in the position of the existing post and rail fence.

We have today seen the plan which was placed before the judge, and while I have just said that the wire mesh fence began at the point of the boundary with Middle Drive, it may have in fact begun only at a point contiguous to the two houses where there was, on the side of number 44, a side gate to the house thus preventing the dog from leaving the rear garden and getting into the front garden, or the garden of their neighbours.

The judge concluded as follows at [49]:

The Judge then considered the authorities of Neilson v Poole [1969] 20 P&CR 909 and Burns v Morton [1999] 3 All ER 646, which deal with boundary agreements. In effect (so far as relevant), these cases decide that where parties agree to identify a boundary between their properties, there is no contract for the disposition of an interest in land, and thus no need for compliance with the formalities for such a contract, unless there is clearly an agreement to transfer an interest in land.

The judge then went on to consider the doctrine of estoppel. He found that an estoppel ought to apply to prevent the Broughs from asserting the boundary further to the east and that represented by the wire mesh fence. He found that there was a representation by the Mulherns that this line constituted the line of the boundary and that Dr Hutchinson and Dr Smith relied on this representation by expending money on the fence. They had paid for the fence to be put up.

In conclusion the judge found that the boundary constituted the line north of the start of the wire mesh fence shown as the legal boundary on the plan produced by Mr Brough, from the point marked "start of fence" to Middle Drive. He held that the boundary followed the line of the wire mesh fence. The judge then when on to consider whether to grant an injunction and damages.

In the action the appellant's case was that the boundary between number 44 Middle Drive and number 46 Middle Drive lay on the easterly side of the Leylandii, that is, closer to number 44. The owners of number 44, the respondents to this appeal and the claimants in the action, contended that the boundary ran down the line of the wire mesh fence. Part of the relief which they sought was a declaration as to the true location of the boundary.

I now turn to the submissions on this appeal.

On the merits of the appeal Miss Taskis, for the appellants, submits that the judge was not entitled to find that there was a boundary agreement. The issue was not pleaded. It was not dealt with in the evidence. Mrs Mulhern did not give evidence. Mr Mulhern had completed his evidence and gone back to Scotland before the judge raised the point. The question of a boundary agreement was, as I have said, not pleaded. Miss Taskis submits that the judge was similarly not able to find that there was an estoppel. There was no evidence of any representation by Mr Mulhern. Miss Taskis also submits that the judge made inconsistent findings about the evidence of Mr Turnbull. Mr Turnbull was clear that he placed the Leylandii well within his side of the boundary. The judge then found that he had found that the trees had been planted on the far side of the post and rail fence and thus on 44 Middle Drive. This finding was inconsistent with his acceptance of Mr Turnbull's evidence.

Next Miss Taskis submits that on Mr Turnbull’s evidence the judge was wrong to conclude that the wire mesh fence was placed in the position of the old post and rail fence. Miss Taskis further submits that the judge's finding had serious consequences for her clients, the owners of number 46 Middle Drive. The location of the boundary in relation to the bungalow built on 46 Middle Drive results in a breach of the bylaws of Darras Hall Estate and there the location of the boundary is prejudicial to the value of 46 Middle Drive and reduces it by some 40 per cent. There is some valuation evidence about this.

Miss Taskis submits that there would be no point in appealing and seeking a retrial unless the appellants could show that the judge was wrong in respect of the boundary agreement, and with respect to the siting of the wire mesh fence on the line of the old post and rail fence. Accordingly the appellant sought, between October 2001 and June 2002, to obtain the evidence of Mr Mulhern. He finally gave a short statement that he made no boundary agreement, but he said that the wire mesh fence was in the same position as the old post and rail fence. In the light of this the appellant then instructed Mr Mills, a surveyor. In April 2003 he reported that he was able to relate the boundary to certain physical features on the property by reference to old ariel photographs. He located the boundary in a position which was favourable to the appellants.

Between April 2003 and 6th December 2004, when the Notice of Appeal was filed, the appellants were in discussion with Mr Mills. There was also some correspondence with the claimants, particularly a letter of 27th May 2003, setting out the gist of Mr Mills’ report. Miss Taskis submits that the respondents were always kept aware of the fact that the appellants did not, as she put it, accept the judgment of the judge.

The appellants also have an application for fresh evidence. They wish to adduce on this appeal the evidence of Mr Mulhern and that of Mr Mills. We have not been taken to any draft witness statements of those potential witnesses. Miss Taskis submits that Mr Mulhern's evidence could not reasonably have been required for the trial since there was no issue at trial as to a boundary agreement. She submits that Mr Mills 'evidence goes to the question of a legal boundary. She submits that there is no doubt as to the credibility either of Mr Mulhern’s evidence or that of Mr Mills’.

Miss Taskis submits that the court should have regard to the factors in CPR 3.9, to which she submits as follows: as to paragraph (a) she submits that there was no prejudice to the respondents. The fact that there was no transcript of evidence of trial is not important because there was no evidence on the boundary agreement. As to paragraph (b), she submits that she does not say that the appellants acted promptly, but she submits that the respondents were kept informed. As to paragraph (c), she submits that the failure to apply was intentional but for good reason. As to paragraph (d), she submits that for the reasons already explained the appellants had to obtain further evidence. In addition their funding was problematic because of the reluctance of the legal expenses insurers to fund any further litigation.

As to paragraph (e), she accepts that her clients were in default with other practice directions, but that was at an earlier stage. As to paragraph (f), whether failure to comply was due to the act of the legal representatives, Miss Taskis makes no specific submission on this. As to paragraph (g), Miss Taskis submits that even though the appellants were late in filing their expert evidence prior to trial, this caused no prejudice to the respondents. As to paragraphs (h) and (i), Miss Taskis relies on the bylaw infringement, the prejudice to the saleability of the appellants' property and the fact that on her submission the appellant has a real prospect of success.

For the respondents Mr Denyer-Green submits that the respondents are prejudiced by the lack of a transcript of the evidence of trial, or an adequate contemporaneous note of the evidence of the submissions at trial. If the respondents have to respond to the grounds of appeal relating to the treatment of the evidence and the conclusions reached on the evidence by the judge, the respondents would be prejudiced since they cannot show that there was sufficient evidence for the judge's findings. Mr Denyer-Green draws attention to the skeleton argument of the defendants at trial, which refers to the issue of the boundary agreement and to the fact that it was raised by the judge, and that the skeleton argument goes on to submit that there was no evidence to support such agreement.

Mr Denyer-Green points out that the point raised by the judge was raised on 19 April 2001. The trial continued on the following day and then it was adjourned to two days in September 2001. If the appellants had wished Mr Mulhern to be recalled, they could have made an application. They submit that undoubtedly the judge would have allowed that. Mr Denyer-Green submits that the appellants cannot, in any event, satisfy the criteria in the check list in CPR 3.91. As to paragraph (a), Mr Denyer-Green relies on the absence of a transcript and of notes of evidence. As to paragraph (b), Mr Denyer-Green submits that the appellants were really concerned, in the first instance, with making a claim against Mr Mulhern for misrepresentation in his responses to inquiry before contract, prior to the sale of 46 Middle Drive to the appellants. There are letters in the bundle before us to support that submission.

Mr Denyer-Green submits that it was not until 15 October 2002, a year after the judgment, that the appellants put the respondents on notice that they were considering an application back to the court. Mr Denyer-Green submits that that suggestion was made in the context of an application to have the injunction varied. Thereafter nothing was heard until 27 May 2003. Mr Denyer-Green submits that this letter also shows that it was the intention of the appellants to take the matter back to court if agreement could not be reached, ie, that the appellants were considering the lifting of the injunction and not an appeal. Accordingly, it was not until 8 December 2004 when the respondents were made aware of that appeal.

As to paragraph (c), Mr Denyer-Green submits that the failure to apply to appeal was deliberate. As to paragraph (d), Mr Denyer-Green submits that the appellant's case, in this regard, rests on three points: the Mulhern correspondence, the obtaining of the expert surveying opinion from Mr Mills, and the establishing of the funding. As to the Mulhern correspondence. Mr Denyer-Green submits that the original purpose of the appellant, was to bring a claim against Mr Mulhern as indicated above. As to the further expert evidence, it was the objective of the trial to hear the expert evidence so that the need to obtain this evidence did not constitute a good explanation. As to the funding, there is no evidence that the appellants could not have funded the appeal from their own means.

As to paragraph (e) (the extent of compliance with other rules), Mr Denyer-Green relies on the failure to serve expert evidence prior to trial. As to paragraph (f) + (whether failure to comply was caused by the party’s legal representative), Mr Denyer-Green submits that it was not clear whether the delay would be attributed to the appellants themselves or their legal representatives. As to paragraph (g), Mr Denyer-Green submits that this matter is not relevant. As to paragraphs (h) and (i), Mr Denyer-Green again relies on the absence of a transcript of evidence. In the circumstances, Mr Denyer-Green submits that no extension of time to appeal should be granted.

In addition, Mr Denyer-Green submits that there is no prospect of success on appeal. The judge, on his submission, was entitled to conclude that there was a boundary agreement. His conclusion was not erroneous in law. The judge was entitled to find that there was an estoppel. Mr Denyer-Green further submits that permission to appeal should not be granted on the grounds that the judge dealt inconsistently and erroneously with the evidence about the position of the planting for the Leylandii trees. He submits that, in any event, that evidence does not affect the outcome before the judge. Mr Denyer-Green also makes submissions about whether the additional evidence should be admitted if there is a substantive appeal.

I now turn to my conclusions. It is well-established that there is a public interest in the closure of litigation. I can do no better than refer to paragraph 6 of the judgment of Lord Woolf in Taylor v Lawrence [2003] QB 528, 535 to 536:

Interest in the closure of litigation is not only the interest of the public. Successful claimants also have an interest in finality and they are entitled to expect that if they have won at trial, and the time for appeal has passed, that that is the end of the matter. It is now well-established that in considering whether to extend time in any case of any complexity the court should have regard to the overriding objective in CPR 1.1 and also to the check list in CPR 3.9 (see Sayers v Clarke Walker [2002] 1 WLR 3095.) CPR 3.9 provides as follows:

In this case the court is not faced with a short period of one or even two months, but a period of 39 months in all. Throughout that period there is no suggestion of the appellants having been under any disability. They were represented by lawyers throughout. Miss Taskis therefore faces an uphill battle in persuading the court that it should extend time. Miss Taskis argued the case with great thoroughness and pertinacity. She submits basically that the appellants needed to know whether or not Mr Mulhern would say whether there was a boundary agreement. They also needed to know whether the land in dispute had been adversely possessed by the respondents for the requisite period of twelve years. If this was so, they, the appellants, would be bound to lose at any retrial because the period of 12-years has now expired, although it had not expired at the date of trial before the judge.

For this purpose, submits Miss Taskis, the appellants would need to know where the post and rail fence was prior to its replacement with the wire mesh fence in 1991. They needed to know whether Mr Mulhern was right in saying that the wire mesh fence was simply put in the same position as the post and rail fence. She also submits that the appellants did not sit on their hands. They actively pursued inquiries with Mr Mulhern and then with Mr Mills. The inquiries may have been protracted but there was no period of idleness on the appellants' side, but some reluctance on Mr Mulhern’s side to give them the answers they sought.

Moreover Miss Taskis submits that the respondents were kept aware of the position. She refers to the correspondence, to which I have referred above in summarising Mr Denyer-Green's submissions.

As to the foregoing points, Miss Taskis accepts, as she must, that the judge raised the issue of a boundary agreement at the end of the first day of the trial, and that it was addressed by counsel for the appellants in their closing speech. She does not, however, accept that there was sufficient material before the judge on which to say that there was a boundary agreement. She accepts, however, that such an agreement can be implied from the parties' conduct, and also that the judge could have relied on evidence to which he did not expressly refer in his judgment. We know that he relied on at least one piece of extrinsic evidence, namely the size of the posts and the fact that they were concreted in. We also know that he had a site inspection. As a separate point Miss Taskis also submits that the issue of the boundary agreement ought to have been put to the appellants' witnesses.

A further ground is that the judge made inconsistent findings in relation to Mr Tunbull. However, that, as it seems to me, turns on the evidence which Mr Turnbull gave in his witness statement, the terms of the judge's judgment and the photographs. The alleged inconsistency is not apparent on the face of the judgment, but the argument that there was an inconsistency depends only on Mr Turnbull's witness statement when read with the photographs which he produced at trial.

Accordingly, all the material necessary to produce a Notice of Appeal, on the grounds which I have identified, was clearly available to the appellants immediately after the judgment was given. There is accordingly no reason, in my judgment, why they should not have lodged a Notice of Appeal in time. It is not, in my judgment, enough to say that they wished to see whether any retrial, ordered as a result of a successful appeal, would ultimately be in their favour. That is an entirely separate issue. They may well have wanted to make those inquiries but they were separate from filing the Notice of Appeal. There is no reason why they should not have filed the Notice of Appeal and later withdrawn the appeal if they had realised that it was likely that any retrial would be unsuccessful.

As to the question whether the appellants' solicitors were actively engaged in making the necessary inquiries, in the light of my conclusions above this does not strictly arise. However the period of time was very extended and suggests that there was no sufficient urgency given for completing the enquiries. As to whether the respondents were kept aware of the appellants' solicitors' enquiries, I note that the first letter the respondents received was well over a year after judgment was given. After that they received sporadic information. I do not have to decide whether the letters we have seen referred to the possibility of an appeal, or an application back to the trial judge to vary the terms of the injunction, or both. The point remains the respondents were entitled to expect that they would promptly be served with a Notice of Appeal if an appeal was intended.

Miss Taskis emphasises that the appellants are prejudiced by the judge's judgment. In particular she submits that the infraction of the various bylaws results in the diminution in value of the appellant's property. For instance, if it was decided to develop the property further, the building would have to slope back from the existing structure, and that would affect the saleability of 46 Middle Drive. However, Miss Taskis fairly accepts that no enforcement proceedings could now be taken against the proprietor of 46 Middle Drive given the elapse of time.

As against that prejudice to the appellants, however, there has to be laid the prejudice to the respondents. It is possible that they will be prejudiced in the conduct of their appeal because of the absence of the transcript or contemporaneous notes of evidence and submissions. Moreover, because of the absence of the transcript we do not know precisely what the judge said in the course of the trial about the possibility of a boundary agreement.

Another factor to be placed in the scales is that it appears, on any basis, that the judge said sufficient to enable those representing the appellants, at that stage, namely, 19 November 2001, to recall Mr Mulhern if they thought that that was appropriate. I agree with Denyer-Green that an application to recall Mr Mulhern is likely to have been successful. (I would add that the failure to recall Mr Mulhern would prevent the appellants from arguing on appeal that they could have elicited further evidence from him. However, it would not necessarily be fatal to an appeal on the grounds that the respondents failed to put the question, whether there was a boundary agreement, to the appellants' witnesses.)

As to Mr Mills' evidence, this deals mainly with physical features on the land and with ariel photographs, all of which were available before the trial. This evidence, therefore, would be likely to be ruled inadmissible on an appeal. The appeal might, if successful, have led to a retrial. On a retrial the evidence of Mr Mills might have been led.

In those circumstances, however, it cannot be said that it was necessary to obtain Mr Mills’ evidence before filing a Notice of Appeal. The time spent in so doing cannot constitute a good explanation for not filing a Notice of Appeal for the purpose of CPR 3.9(1)(d).

Those points then are the points of substance, as it seems to me. I now wish to summarise the position by reference to the check list in 3.9(1)(a). As to paragraph (a), in my judgment it is not in the interests of judgment to have an appeal which is this stale. As to paragraph (b), in my judgment this was plainly not satisfied. It was not enough in any event simply to keep the respondents informed (if indeed that is what happened). As to paragraph (c), it is clear that the failure to file a Notice of Appeal was not accidental or due to a mistake. As to paragraph (d), I have already dealt with this at some length above. As to paragraph (e), I would not give the failure to comply with pretrial directions much weight at this stage. As to paragraph (f), in my judgment the delay was caused, in large part, by the actions of the legal representatives of the appellants. Paragraph (g) is inapplicable. As to paragraph (h), I accept that the appellants have suffered loss, but, as I have explained, that has to be balanced against other factors. As to paragraph (i), I need only consider the position of the respondents at this stage.

The respondents might well, in my judgment, be at a disadvantage on the appeal because they cannot point to the transcript of evidence. Furthermore, they are put to further expense and to a further period of uncertainty. This is not a case where it can be said that there was no evidence of a boundary agreement. The question is whether there was sufficient evidence. I would add this: an appellate court always takes particular care before setting aside findings of fact by a trial judge where the trial judge was in a better position than the appellate court to make those findings. This is particularly so where the credibility of witnesses who gave oral evidence is in issue, (see Assicurazioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577). Here too, at the trial in this case, there was oral evidence from the witnesses. The judge had also a site inspection and the advantage of that process simply cannot be replicated by producing photographs of the properties and of what the judge might, or might not, have seen.

It is very difficult to go behind the judge's findings of fact, in that event. This is an important point because appeals in boundary disputes are sadly very common. They often cause great anguish to individual parties and bad feelings among neighbours. It is an important point, in my judgment, that where there has been a site inspection and, of course, oral evidence for the reasons given, an appeal court is very likely to be very careful before setting aside any findings of fact in the making of which the judge is likely to have taken into account what he saw on that site inspection.

I now seek to draw the threads together. Miss Taskis has taken every point that could be taken in support of this application and has done so, if I may say so, with great skill, but at the end of the day there has been a virtually unprecedented delay in filing a Notice of Appeal in this case. It is not a case where something happened after judgment was given, for instance, a new case was decided which undermined the legal basis on which the decision was given. The grounds were already there when the judge gave his judgment. The reason for the delay was to protect the appellants against costs. However, that takes no account of the public interest in the finality of litigation or in the interests of the respondents.

This case is, if I may say so, an object lesson in the need for prospective appellants to bear in mind that (a) that an extension of time for permission to appeal is discretionary and (b) that the court in granting an extension has to balance the interests of the appellants against the interests of the other parties and the interests of the public.

For all these reasons I would dismiss the application.

LORD JUSTICE BROOKE: I agree. From time to time this court is receiving applications for permission to appeal which include an application for a long extension of time for appealing. In agreeing that this application should be dismissed, I wish to stress three matters which appear from the passage of the judgment of Lord Woolf CJ in Taylor v Lawrence [2002] EWCA Civ 90 at [b], [2003] QB 528, to which Arden LJ has referred: (1) that it is a fundamental principle of our common law that the outcome of litigation should be final; (2) that the law exceptionally allows appeals out of time; (3) that this, and the other exception mentioned in that passage, are the exception to a general rule of high public importance and reserved for rare and limited cases where the facts justifying the exception can be strictly proved.

I agree that this is not a case which qualifies for the exception, and I would add this: in interpreting CPR 3.9 in any case where an exention of time for appealing in excess of say two months has been sought, the court will bear in mind the matters to which I have referred in mind in determining where the interests of the administration of justice truly lie.

The application is, therefore, dismissed.