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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Underwood & Anor v Mayers & Anor [2014] EWCA Civ 406 (02 April 2014) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2014/406.html Cite as: [2014] EWCA Civ 406

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORTHAMPTON COUNTY COURT
RECORDER JACK
1NN00640

		Royal Courts of Justice Strand, London, WC2A 2LL
		2nd April 2014

Lord Justice Briggs :

1. This is an appeal against the Order of Mr. Recorder Jack made in the Northampton County Court on 19^th June 2013, at the end of the five-day trial of a boundary dispute between the owners of adjacent residential properties in Rothwell known respectively as 71 and 73 Harrington Road ("Number 71 and Number 73"). The Claimants, Mr. and Mrs. Underwood, are the owners of Number 73. The Defendants (and Appellants in this appeal), Mr. Mayers and Ms. Smith, are the owners of Number 71.
2. The main issue between the parties at trial consisted of competing claims to the ownership of a thin wedge-shaped piece of land having a maximum width of three feet at the Harrington Road end of the boundary between the two properties and tapering to an agreed point about two thirds of the way along the boundary towards the rear of the properties. The dispute might have been about so small a piece of land to have been inconsequential, against the hundreds of thousands of pounds of costs incurred in litigating about it by the end of the trial, were it not perhaps for the fact that success for the Underwoods would have established a right to a narrow passage alongside the garage erected at the side of Number 73, which they said had been obstructed by the Defendants and/or their predecessors in title to Number 71. I will call it "the three foot strip". By contrast the Defendants' case was that the three foot strip fell entirely, or almost entirely, on their side of the common boundary.
3. The other quite separate and distinct issue in the proceedings consisted of a claim by the Underwoods to a drainage easement through an underground pipe crossing the common boundary, serving a side extension built at Number 73, and connecting beneath a manhole cover with a drainage system installed at Number 71, just on its side of the disputed common boundary. The drainage issue was first raised by the Defendants' counter-claim for trespass in the proceedings.
4. The Claimants were substantially, but not wholly, successful at trial in relationship to the boundary dispute. Their fallback case was that the boundary ran along what the judge called in his judgment the "Coombs line", which gave them rather more than half the disputed strip. The Claimants were entirely successful in relation to the drainage issue. As a result, the judge ordered the Defendants to pay the Claimants two thirds of their costs.
5. The Defendants appealed, on both issues. At the same time as they obtained permission to appeal from Patten LJ on their paper application, they also obtained permission to rely upon fresh, largely photographic, evidence going to a central issue in the boundary dispute. For their part, the Claimants did not seek to set aside that permission inter partes, but themselves sought, and obtained, permission to adduce fresh evidence in response from a number of witnesses, at the beginning of the hearing of this appeal. Following brief submissions directed to the question whether, in the light of the fresh evidence, this court could satisfactorily determine the boundary dispute, or whether it should be remitted for a re-trial, we ruled that it would have to have be re-tried.
6. The fresh evidence did not bear directly upon the drainage issue and, after hearing submissions about the merits of the appeal in relation to that issue, we decided to dismiss the appeal in relation to the drainage dispute. We stated that reasons would be given for both those decisions in written reserved judgments. We then heard submissions on costs.
7. This judgment sets out my reasons for those decisions, and my judgment as to costs.

The boundary dispute

8. Having decided that the boundary dispute should be re-tried, I consider that I should express my reasons for that decision as concisely as possible, so as to avoid even giving the impression that I have formed any view about the merits of it. Indeed, I have not.
9. A main plank in the judge's analysis of the merits of the boundary dispute, in an admirably thorough review of the voluminous evidence in an ex tempore judgment, consisted of his acceptance of evidence from a member of the family which had formerly owned the land on which Numbers 71 and 73 now stand, Mr. John Graham Reams. The judge found him to have been an independent, impressive and reliable witness. He accepted Mr. Reams' evidence that, at the time when the common boundary was first created in November 1969, there had existed a substantial elm tree at the point where the common boundary reached Harrington Road. In a supplemental witness statement served one working day before the trial, Mr. Reams said that his father and the co-trustee of the estate which owned the land then being divided wanted to ensure that they retained no continuing responsibility for the tree, since it was partly on the highway. An earlier stock-proof fence separating what were at the time fields terminated at the tree, and was to constitute the common boundary between what became Numbers 71 and 73.
10. Accepting Mr. Reams' evidence about the elm tree, the judge concluded that there must have been an agreement between the vendors and original purchasers of what became Number 71, to the effect that the common boundary would for almost all its length be aligned with the centre of the elm tree but that, if the purchasers took responsibility for dealing with the tree, they could have the small plot of land on which it stood, so that the common boundary was arranged around the side of the tree so as to abut Harrington Road some three feet to the south-west of where it would have done, if continued in a straight line through the centre of the tree. Mr. Reams' evidence was vigorously challenged by the Defendants at trial by cross-examination, but the judge accepted it.
11. Following the trial, the Defendants searched for and eventually found photographic evidence, admitted pursuant to Patten LJ's order, purporting to show that there never had been any such elm tree on or near the common boundary, as Mr. Reams had suggested. For their part, the Claimants sought and obtained evidence from a number of witnesses familiar with the locality at and before that time, to the effect that there had indeed been an elm tree in the position described by Mr. Reams but that, by the time of the earliest of the aerial photographs relied upon by the Defendants, it had been reduced to a four foot high trunk or stump approximately the size of a tabletop, so as to be invisible in an aerial photograph, even if magnified. This was the further evidence which this court admitted at the beginning of the hearing.
12. The inevitable result of the admission of that evidence was that Mr. Stone, counsel for the Defendants, submitted that the presence or absence of the elm tree at the material time could not be satisfactorily resolved without, at the very least, thorough cross-examination of the Claimants' new witnesses, and indeed further cross-examination of Mr. Reams himself, not least because of arguable discrepancies between his evidence and that of the Claimants' further witnesses.
13. For his part, Mr. Owen for the Claimants submitted that, regardless of the outcome of any evidential contest about the presence or absence of the elm tree, there was other evidence accepted by the judge which was amply sufficient to demonstrate that the appeal on the boundary dispute should be dismissed. He pointed in particular to evidence of witnesses, whom the judge had believed, to the effect that there had indeed been a passageway within the boundary of Number 73 alongside the predecessor to the current garage, and that there was no basis on which this court could second-guess the judge's estimation that this evidence had been credible, and preferable to witnesses giving evidence to the contrary.
14. While there is, I think, some force in Mr. Owen's submission about the other supporting evidence, at least in relation to that part of the disputed boundary which runs adjacent to the garage at Number 73, I have by no means been persuaded that it is sufficient to fortify the judge's decision that the boundary ran entirely along what he described as the Coombs line, in particular in relation to the substantial part of it which lies between the end of the garage at Number 73 and Harrington Road. It seems to me that the judge did not himself regard the other supporting evidence in that way, and that the mainstay of his analysis of at least that part of the boundary was founded upon his acceptance of Mr. Reams' evidence about the elm tree, and his inference as to the bargain by which responsibility for it had been allocated to the first purchasers of what is now Number 71. It follows that, since the presence or absence of the elm tree, and its status as something for which the then owners were anxious to relieve themselves of responsibility, cannot be resolved without a re-trial and testing of all the fresh evidence, the boundary dispute must, as a whole, be the subject of a re-trial, and cannot reliably or sensibly be determined by this court.

The drainage dispute

15. The only connection between the drainage dispute and the fresh evidence which has necessitated a re-trial of the boundary dispute is that the fresh evidence is said to undermine the credibility of Mr. Reams, and the judge made two references to Mr. Reams' evidence in his analysis of the drainage issue. Those two references need however to be considered in the wider context of the way in which the drainage issues were examined at trial. The outcome turned on the detailed perusal of numerous plans, upon the judge's site inspection, and his personal examination of the drainage system by having relevant manhole covers lifted. The judge expressed his disappointment that the parties had not troubled to undertake a dye test, which he regarded as an elementary step where a dispute as to the routeing of underground drains is concerned. He found it necessary to draw inferences as to their precise location.
16. In addition to those materials, the judge accepted, as he was entitled to, the Claimants' evidence that, during the construction of an extension to Number 73 in 1985-86, an underground pipe had been discovered, giving access to the drainage system at Number 71, connection with which enabled an effective drainage right to be exercised for the benefit of facilities in the side extension, consistent with a drainage easement reserved to the land which included Number 73, at the time of the original sale of Number 71 out of common ownership.
17. In sharp contrast with his evidence about the elm tree, which was as I have said critical to the judge's resolution of the boundary dispute, Mr. Reams' evidence relating to the drainage dispute was, in my view, at best peripheral. Such adverse consequences as to his credibility as might hereafter flow from the re-trial of the boundary dispute do not in my judgment come near to undermining the judge's very careful and thorough analysis of the drainage dispute, based as it was upon his own inspection of such drains as were accessible.
18. Nothing else in the Defendants' criticisms of the judge's analysis of the drainage issue advanced on this appeal did more than suggest that the judge had got his balancing of the competing evidential material wrong. In my view the judge was, mainly because of his inspection, but also because he heard the relevant witnesses, much better placed than this court to decide the essentially factual questions determinative of the drainage dispute, and there is no basis upon which this court can properly depart from his conclusion, let alone direct that the dispute be re-heard.
19. That is why I considered, after hearing submissions on the drainage issue, that this part of the appeal should be dismissed.

Costs

20. The result of the foregoing is that the Defendants have succeeded in their appeal in relation to the boundary dispute, but only to the extent of obtaining a re-trial, rather than a reversal of the judge's decision, for which they had contended. They lost, of course, on the drainage issue.
21. In December 2013, the Defendants proposed, in a Part 36 offer, that the appeal should be compromised on the basis that the whole dispute (including the drainage issue) should be re-tried. They have therefore been partially, but not entirely, successful in achieving the result offered.
22. It is common ground (and it is evident from all the material which I have seen and read) that the boundary dispute was, by a long way, the main bone of contention between the parties. In my judgment the appropriate reflection of what I regard to have a partial victory on appeal by the Defendants is that seventy-five percent of their costs of the appeal should be paid by the Claimants.
23. As for the costs of the first trial, the judge's Order must of course be set aside. Since it is not practicably possible for this Court to assess the proportion of the trial costs properly attributable to the drainage issue, on which the Claimants have throughout been successful, I consider that the whole of the trial costs should be reserved to the judge hearing the re-trial. He or she will, at least, be no less well placed than this court to pay proper regard to the factor that the drainage issue has not needed to be retried, and to the fact that the Claimants have been successful in relation to it. If the re-trial takes anything like the time which the boundary dispute took to litigate first time round, he or she will by then be almost certainly better placed than this Court to take that factor into account, due to much greater immersion in the matter generally.
24. As for assessment of the costs of the appeal, we were shown schedules prepared by both sides. The Defendants' appeal costs were, in total, almost £49,000. The Claimants' appeal costs were £16,600-odd, in both cases inclusive of VAT. Having heard sensibly detailed but concise submissions from counsel, and making full allowance for the fact that, in this relatively fact-intensive case involving fresh evidence, the Appellants' burden has necessarily been greater than that of the Respondents, I nonetheless conclude that it is appropriate to assess the defendant Appellants' costs at £35,000 (inclusive of VAT), rather than what I consider to have been the disproportionate amount recorded in their schedule. The result is that the amount payable is £26,250.

Lord Justice Beatson :

25. I agree.

Lord Justice Richards :

26. I also agree.