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England and Wales High Court (Chancery Division) Decisions
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Cite as:  EWHC 237 (Ch)
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BUSINESS AND PROPERTY COURTS
OF ENGLAND AND WALES
APPEALS LIST (ChD)
London, EC4A 1NL
B e f o r e :
Sitting as a Judge of the High Court
| (1) BARRY BOAS
(2) DENISE BOAS
(3) ANDREW RICHARD BOAS
- and –
|AVENTURE INTERNATIONAL LIMITED
MR JOSHUA SWIRSKY (instructed by Prometheus Law) appeared on behalf of the Defendant/Respondent.
Crown Copyright ©
JUDGE HODGE QC:
(1) The appellants are the registered freehold proprietors of land known as 2-6 Fowler Road. The claimants' land includes a commercial yard which is let to a tenant who runs a garage providing vehicle repairs. The first and second appellants purchased the land in the middle of 2000, and the third appellant became a joint owner in April 2013.
(2) The respondent is the registered freehold proprietor of land known variously as 8-10 Fowler Road and Units P, Q, R, S, and T Pegasus Works, Roebuck Road, Hainault Business Park. The defendant's land also comprises commercial premises and is also let to tenants. The defendant first purchased the land on 30 June 1991 but it sold it on 5 July 2007, repurchasing it on 12 June 2014.
(1) There is a retaining wall some 4 to 4.5 ft high at the south east end of the yard on the claimants' land which runs parallel to the defendant's land and is marked in black on the plan.
(2) A metal palisade fence dating from 2004 was situated on top of the retaining wall, 1.5 m back from the edge, and it ran for approximately 50 m from points A to C. It is marked in red as the "Original Fence".
(3) Between the 2004 fence and the retaining wall was a grass strip measuring 1.5 m in width with acted as a soakaway for water running down into the claimants' land at a lower level.
(4) The new fence, which is marked in yellow on the plan, was erected by the respondent in September 2014 close to the edge of the retaining wall between points C and B. The respondent also concreted over the soakaway up to and slightly beyond the edge of the retaining wall. The 2004 fence remains in place between points A and C on the plan because the land to the south and east is not within the respondent's land ownership.
(5) The disputed land is marked in green cross-hatching. It amounts to a rectangular strip of land between the new fence and the 2004 fence some 1.13 m wide and 28.3 m long and thus comprising some 32 sq.m in area.
(1) The claimants' land and the defendant's land was in the common ownership of the London County Council pursuant to a conveyance dated February 1948. No copy of this conveyance has been located.
(2) The defendant's land was carved out of this larger estate by a conveyance from the Greater London Council, as the statutory successor to London County Council, dated 20 September 1983. No copy of this 1983 conveyance can now be located. The land was subsequently first registered on 14 November 1983.
(3) The claimants' land was created by a conveyance dated 5 May 1988 from the London Residuary Body, as the successor in title to the Greater London Council. A copy of this conveyance was before the court. It contained a parcels clause and a plan delineating the boundary by a verged red line. The claimants' land was subsequently first registered on 23 May 1988.
(1) The Original fence consisted of mesh supported by concrete posts and was erected prior to 8 June 2000 and marks the boundary line between the parties' land.
(2) The respondent entered on to the claimants' land in August 2014 and removed the 2004 fence without permission. It then erected the new fence encroaching on to the claimants' land and installed concrete on the claimants' land.
(3) The respondent has wrongly refused to remove the new fence or to replace the 2004 fence and remove the concrete, and the appellants seek declaratory relief, injunctive relief and/or damages.
(1) Aerial photographs of the land from 1953 showing, amongst other things, a series of concrete posts with a fence and a structure later identified and designated as the "Bicycle Shed".
(2) An edition of the Ordnance Survey plan for the land from 1963/1964 showing two straight parallel lines (later found to represent the retaining wall and a fence).
(3) The edition of the Ordnance Survey plan of the land from 1987 showing two parallel lines (later found to represent the retaining wall and a fence). The intervening 1973 edition of the Ordnance Survey plan has not been located and was not before the court. It was probably by reference to this plan that the plan attached to the 1983 Conveyance was drawn).
(4) A series of Google Earth satellite images dated from 1999 to 2017 showing the position of the boundary both before and after the construction of the 2004 fence and, later, the new fence.
(5) A colour photograph dated 8 June 2000 (at page 202) taken by the appellants' surveyor showing the original fence in place, together with the soakaway.
(6) A series of colour photographs shot on an iPhone by the director of the respondent, Mr Jonathan Sullivan, in or around September 2014, during the construction of the new fence, showing the disputed land before the soakaway was concreted over and the new fence was erected. Since the area shown was concreted over by the respondent, these elements have not been visible on the ground since September 2014.
(7) A series of colour photographs dated January 2017 taken by the appellants' surveyor showing elderly concrete fence posts in place at points A and B (namely along the line of the 2004 fence).
(8) An edition of the Ordnance Survey plan from 2018 which was requested by the recorder after the hearing.
(9) A series of expert reports from (a) the appellants' surveyor, Mr Simon Levy, and (b) the respondent's surveyor, Mr Mike Worby, plus a joint statement from the experts. No oral expert evidence was called at the trial.
(10) Witness statements, including statements from the first appellant (Mr Barry Boas) and Mr Jonathan Sullivan, as supplemented by oral evidence at trial.
(11) At a site visit on the afternoon of the second day of the trial (9 May 2018) the Recorder observed a series of elderly concrete fence posts between points A and C adjacent to the line of the 2004 fence (which remained in place between those two points).
THE RECORDER'S JUDGMENT
(1) The onus of proof was initially on the respondent to show that the original fence had been erected in a different position to the 2004 fence: see paragraph 39.
(2) It was impossible to say without extrinsic evidence that the red line on the 1988 Conveyance plan represented the original fence: see paragraph 49.
(3) The retaining wall had been built on the claimants' land by 1963-1964: see paragraphs 56 to 57.1.
(4) Aerial photographs from 1953 showed a bicycle shed and a line of concrete fence posts on the land: see paragraph 51.2
(5) The Recorder was not able to gain anything but the most limited assistance from the aerial photographs from Google Earth which showed the boundary fence from 1999 onwards. At paragraph 62 of his judgment, the Recorder said this:
"I have been shown during Mr Burton's closing submissions aerial photographs from Google Earth dated in 1999. I do not find myself able to gain anything but the most limited assistance from them. I can see the electricity sub-station in situ close to point A in Roebuck Road and what appears to be a pile of spoil on the claimants' land alongside it."
(6) The Recorder was unable to gain a great deal of assistance from a colour photograph dated 8 June 2000 (at page 202) in either print or electronic format which showed the disputed land before the erection of the 2004 fence: see paragraph 63. The Recorder said this:
"In preparation for the purchase of the claimants' land by the first two claimants, Mr Simon Levy surveyed the site. [The] photograph [which is now at page 202 of the appeal bundle] was taken. Mr Burton describes this photograph in his submissions as a "smoking gun" - it shows the original fence in place. I was unable to gain a great deal of assistance from the print of this photograph. I could not make any real deductions from it in its printed form. I was sent an electronic version of this which is much clearer when displayed and magnified on a high definition screen which is able to lighten and darken the image. Although I will find what I can in relation to it, I cannot accept its characterisation by Mr Burton. In short, what I can deduce is as follows:
63.1 The bicycle shed on the defendant's land has disappeared and there is standing a very small flimsy brick building which would not surprise me if it held industrial size dustbins. I cannot make a finding as to its purpose as that would be speculation but my description as to its size and appearance is useful to me.
63.2 A fence on the same type of concrete fence posts is clearly visible. However, the fence is clearly in a state of disrepair. The wire mesh is visible and is torn from the top to about half way down and is literally hanging. Finally, some of the concrete fencing posts are dark in colour and look weathered whereas others are light in colour as if they had been replaced. This gives me confidence and I find that the line of the fence which I have described in 1953 was unchanged, at least at this point. Importantly, it does not yet tell me anything firm as to the crucial question of the position of the fence in comparison to any other feature such as the retaining wall."
Mr Burton relies upon the Recorder's finding that the line of the fence which he has described in 1953 was unchanged at this time, i.e. in June 2000, at least at that point along the boundary. What Mr Burton does criticise, however, is the final sentence of paragraph 63.2: that the photograph did not tell the Recorder anything firm as to the crucial question of the position of the fence in comparison to any other features such as the retaining wall;
(7) Two photographs (at pages 205 and 206 of the appeal bundle) dated September 2014 and taken by the respondent's director, Mr Jonathan Sullivan. These were said by the Recorder to be of assistance and to depict (a) the remains of the old bicycle shed from the 1953 aerial photographs and (b) the remains of two old concrete fence posts still in the ground closer to the retaining wall and the new fence: see paragraphs 69-70.
(8) The Recorder observed on the site visit two further concrete posts further towards Roebuck Road where the 2004 fence still follows its original line. One of those fence posts was still in the ground vertically where the 2004 fence still follows its original line: see paragraph 71.
(9) The Recorder accepted that Mr Sullivan was more likely to be correct than Mr Boas in his recollection that the line of the new fence was on the same line as the original fence and he found this as a fact: see paragraphs 76-77.
(10) The respondent would be entitled to a declaration that the boundary between the parties' land ran along the outer face (i.e. the face on the appellants' side) of the new fence.
(11) On finding that the boundary between the claimants' and the defendant's land was along the line of the new fence, the respondent had nevertheless trespassed by a few centimetres such that the appellants were entitled to an injunction to this limited extent: see paragraph 80.
(12) The appellants have not proved any damage in trespass and, in any event (although no decision was made or required) the appellants could not maintain an action for damages in circumstances where they were not in possession and there was no permanent injury to the land which affected the reversion: see paragraph 88.
(13) It was unnecessary to enter into the question of whether the draftsman of the 1988 Conveyance plan had made a mistake: see paragraph 90.
PERMISSION TO APPEAL
(i) A fence which was erected in the 1950s;
(ii) A fence which was erected in 2004; and
(iii) The new fence erected in 2014.
The true line of the boundary, it appeared to be agreed, was on the line of the fence from the 1950s. The question was, therefore, where was that fence? Was it along the line of the 2004 fence or the 2014 fence (assuming they were in different positions)?
"Having initially been extremely cautious about granting permission to appeal, I have been persuaded that I should do so in the present case. I do not think that it is appropriate for me to give a detailed judgment as to what I have seen in the photographs because, of course, there will be an appeal on that issue. However, comparing what Mr Burton described as his "smoking gun" photograph (on page 202 of the bundle), which shows the position of the fence in 2000, i.e. prior to 2004, with the current position of the fence (which is shown on page 223), it does appear to me that there is at least a realistic prospect of the appellants demonstrating that the line of the fence has been moved. On page 202, in 2000, it at least appears that there was quite a significant distance between the retaining wall and the fence. On the other hand, the position of the 2014 fence appears to abut very close to the retaining wall, much closer than was shown in 2000."
"The judge does not really deal with this point in his judgment and whilst I am very conscious that an appeal court will pay very considerable respect to the judgment of the judge, I am satisfied on the basis of what I have been shown, plus additional photographs which it is unnecessary to mention, that there is a realistic prospect of success on the appeal. That does not mean the appeal will succeed. It means that permission should be granted. So, for various reasons, I have decided to grant permission to appeal."
"(1) The construction process starts with the conveyance which contains the parcels clause describing the relevant land, in this case the conveyance to the defendant being first in time.
(2) An attached plan stated to be 'for the purposes of identification' does not define precise or exact boundaries. An attached plan based upon the Ordnance Survey, though usually very accurate, will not fix precise private boundaries nor will it always show every physical feature of the land.
(3) Precise boundaries must be established by other evidence. That includes inferences from evidence of relevant physical features of the land existing and known at the time of the conveyance.
(4) In principle there is no reason for preferring a line drawn on a plan based on the Ordnance Survey as evidence of the boundary to other relevant evidence that may lead the court to reject the plan as evidence of the boundary."
"12. ...There is no doubt that the judge's use of the photographs ... played a crucial part in his conclusion that the metal stump identified by him as the culprit ... was on the defendant's forecourt. I consider that the judge was wrong about that. Mr Cliff's attempt to support the judge's reasoning and conclusion is founded to a significant extent on Mr Gilbert's sketch plan. However, the judge did not rely on it for this purpose and, as I have said, it is irreconcilable with the photographs. Mr Cliff's attempts to interpret the photographs so as to position the phone boxes on, or more on, the defendant's land does not convince me at all.
13. It is with great hesitation that this court should interfere with the conclusion of a trial judge on such a matter. However, I am satisfied that this is not simply a case of taking a different view: it is a case of the judge being wrong about a crucial finding in the case. It is a matter which, with respect, we are in no worse a position to assess, having before us all the material that the judge had before him and which was so influential upon his decision."
"...I would emphasise that an appeal on fact is not concerned with reviewing the exercise of a judge's discretion. It is not because there is room for two views of the facts that the Court of Appeal is less inclined to interfere with the judge's conclusion as compared, for example, to his or her views on points of law. The finding of fact is a finding that, on the balance of probability, something actually existed or an event actually occurred. The deference that a court pays to a judge's findings of fact stems from the advantage that the judge may have had in the trial process, of seeing the witnesses, having a greater feel for the atmosphere of the trial and matters such as that. We have interfered in this case because we were in as good a position as the judge in relation to the photographs on which he founded his judgment. But what I urge practitioners to do is not to confuse the approach to reviewing an exercise of discretion with the approach to reviewing a judge's findings of fact..."
"65. ...The prevailing problem, as I see it, was discarding the Transfer plan completely because of its lack of clarity and construing the Transfer by looking at the physical features on the ground as at the date of the Transfer without the plan in his hand. A reasonable layman without the plan no doubt would have concluded as the Recorder did that the low wall was the boundary but he would have been engaged in the exercise of construction without one of the most important pieces of evidence.
66. I differ from the Recorder reluctantly as he went about his task with conspicuous care and he had the great advantage of being able to visit the site itself. I have not found the issues here at all easy to determine as the sight of an obvious boundary structure, such as the low wall, in place at the time of the Transfer, naturally gives rise to the assumption that that is indeed the boundary. However ... that natural assumption is not the end of the matter and I would allow the appeal for the reasons I have given, substituting a determination that the boundary follows a line as set out in paragraphs 62 and 63 above."
"...As the words 'reluctant' and 'generally' imply, the appellate court also has a broader role which entitles it to intervene if, notwithstanding the absence of either a mistaken inclusion or exclusion of factors or a perverse conclusion, the decision at which the judge has arrived is plainly wrong. To reserve more to this court would be to render the exercise of judgment at first or second instance merely provisional; but to reserve less would be to abdicate part of the appellate function. For these reasons I respectfully adopt what is said at the end of paragraph 81 of Sir Anthony Clarke MR's judgment."
"If the judge reached a conclusion that was plainly wrong, it would be the duty of the appeal court to interfere. I feel sure that in referring to the possibility of [sic] a judge might come to a conclusion that was impermissible or not open to him Thomas LJ intended to include the case where the judge is plainly wrong. In any event, I am firmly of the view that it should be included."
"Although I agree that the exercise upon which a judge of first instance embarks in a case of this kind is not, strictly speaking, the exercise of a discretion, the role of an appellate court is very similar in the two classes of case. This can be seen from Thomas LJ's conclusion that the appellant must persuade the court that the judge was wrong and will only succeed in doing so if he shows that the judge 'has taken into account immaterial factors, omitted to take account of material factors, erred in principle or come to a conclusion that was impermissible or not open to him' or is plainly wrong. The line between the approach of an appellate court reviewing the exercise of a discretion and its role reviewing a decision of this kind is a [sic] very narrow. This is because the decision whether a second action is an abuse of court involves the court balancing a series of different factors before reaching its conclusion."
"Given that the Extra Division correctly identified that an appellate court can interfere where it is satisfied that the trial judge has gone 'plainly wrong', and considered that that criterion was met in the present case, there may be some value in considering the meaning of that phrase. There is a risk that it may be misunderstood. The adverb 'plainly' does not refer to the degree of confidence felt by the appellate court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached."
"It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified."
"Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them... These are all decisions either of the House of Lords or of the Supreme Court. The reasons for this approach are many. They include
i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed.ii) The trial is not a dress rehearsal. It is the first and last night of the show.iii) Duplication of the trial judge's role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case.iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence).vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done."
"It is also important to have in mind the role of a judgment given after trial. The primary function of a first instance judge is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. He should give his reasons in sufficient detail to show the parties and, if need be, the Court of Appeal the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. His function is to reach conclusions and give reasons to support his view, not to spell out every matter as if summing up to a jury. Nor need he deal at any length with matters that are not disputed. It is sufficient if what he says shows the basis on which he has acted. These are not controversial observations..."
(1) An appeal court should only interfere with the findings of fact made by the trial judge if it is satisfied that a critical finding of fact is unsupported by the evidence, or the decision is one which no reasonable judge could have reached on the evidence in the case.
(2) Although the court can interfere where it is satisfied that the trial judge is plainly wrong, this means that the court must be satisfied that the decision under appeal was one that no reasonable judge could have reached on the evidence before him.
(3) The appeal court should only interfere with the findings of fact made by a trial judge if it is compelled to do so and only after it has reminded itself of the considerations specifically identified by Lewison LJ in his judgment in the 'Greek Yoghurt' case; and
(4) Specifically, on the facts of the present case, the appeal court should only interfere with the Recorder's decision if it is convinced that the Recorder drew the wrong conclusions from the photographic and other evidence relied upon by the appellants.
(1) The yard in the appellants' land at a perspective facing into the respondent's land. The respondent's land was said to be clearly visible in the top right of the photograph, especially the red brick building with the blue door.
(2) The retaining wall and the original fence with six (or possibly seven) standing concrete fence posts with connecting wire mesh.
(3) There was a significant grassy strip between the outside of the edge of the retaining wall and the original fence on which there were at least four metal frames or boxes of significant depth which were said to be consistent with there being approximately 1.5 m between the original fence and the edge of the retaining wall and thus located on the area which served as the soakaway.
(4) There was a tree or two trees which had grown in the soakaway between the edge of the retaining wall and the original fence. There was perhaps a seventh concrete fence post just visible behind one of the trees.
"Importantly … does not yet tell me anything firm as to the crucial question of the position of the fence in comparison to any other feature such as the retaining wall."
(1) The respondent contends that the 2014 fence was built along the line of the original fence while the 2004 fence, erected by a land agent then employed by both parties, had encroached on the respondent's land; whereas
(2) The appellants say that the 2004 fence was built along the same line as the original fence and it is the 2014 fence that is encroaching on the appellants' land.
"Where does the boundary lie between the claimants' land and the defendant's land? The parties appear to have been very close to one another in principle albeit reached by somewhat different reasoning. Each party appears to accept that the boundary lay on the claimants' side to the face of the original fence. The difference between them is where was the line of the original fence at the material date, that is 20 September 1983, which is the date of the relevant conveyance? I regard this factual question as part of the process of the interpretation of the 1983 conveyance and I am conscious of the need to collate and interpret historical information as to what was then found to be on site."
(1) The conveyancing documents;
(2) The oral evidence that he heard;
(3) The extrinsic evidence available from maps, photographs, and so forth; and
(4) The extrinsic evidence that was visible on the site view.
(1) The site visit;
(2) The Recorder's view of the evidence; and
(3) The careful consideration of the totality of the evidence by the Recorder.
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