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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 >> Heaney v Kirkby [2016] EWCA Civ 689 (18 May 2016) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2016/689.html Cite as: [2016] EWCA Civ 689

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		18 May 2016

LORD JUSTICE SALES:

1. This is a renewed oral application for permission to appeal in respect of two decisions by HHJ Roger Kaye QC sitting as a judge of the Upper Tribunal in the course of determining litigation in a neighbours' dispute. What was in issue was the question whether one set of neighbours, the Kirkbys, had acquired a verge next to their property through adverse possession.
2. In that litigation the First-tier Tribunal, in a ruling dated 24 January 2014, heard evidence and made an evaluative assessment in the light of that evidence. The FTT ruled in favour of the Kirkbys and upheld their claim to title to the verge through adverse possession against the contentions of their neighbour, Mr Heaney.
3. Mr Heaney appealed to the Upper Tribunal. In the course of his appeal he made an application to adduce additional evidence that had not been adduced before the FTT. Part of that application was successful before the Upper Tribunal, but in respect of two items of evidence it failed. Those were a witness statement from a Mr Green, who had been a planning officer of the Local Planning Authority at a relevant time early in the claimed period of adverse possession, to give some evidence about the timing of a conversation between himself and Mr Kirkby, and an expert statement from a Dr Bell to provide evidence to assist in the dating of a particular photograph, relevant again to the early part of the claimed period of adverse possession.
4. The Upper Tribunal gave its ruling dismissing the application to adduce that additional evidence on 17 November 2014. The first of the applications for permission to appeal before me today relates to that decision.
5. The Upper Tribunal then proceeded at a later hearing to consider the substantive appeal on the basis of the material that had been admitted on that appeal. In a decision dated 10 April 2015 the Upper Tribunal dismissed Mr Heaney's appeal. The second application for permission to appeal before me today relates to that substantive decision.
6. In relation to the substantive appeal, it should be noted that the appeal to this court is a second appeal and Mr Randall QC for Mr Heaney accepts that in relation to that he needs to persuade this court that that appeal satisfies the second appeal test.
7. Mr Randall correctly points out that the appeal in relation to admission of evidence is not a second appeal, but a first appeal. Nonetheless, he accepts that it is not open to him simply to bypass the second appeals test in relation to the outcome of the substantive appeal on that basis, albeit he submits that if Mr Heaney has a proper basis for an appeal in relation to the decision in respect of admission of new evidence, that is a matter that should be taken into account to bolster his case that the appeal in relation to the substantive outcome of the case should be taken to satisfy the second appeal test.
8. Kitchin LJ refused permission to appeal in relation to both appeals on the papers and Mr Randall renews the application before me today.
9. I follow the order in which Mr Randall dealt with matters, which was to begin with his application for permission to appeal in relation to the substantive decision in the case; that is to say in respect of the judge's decision of 10 April 2015.
10. Both the FTT and the Upper Tribunal correctly directed themselves in respect of the relevant principles on the law of adverse possession, but Mr Randall submits that they did not apply those principles correctly to the facts. He submits that the relevant facts were in significant respects equivocal: see paragraph 5 of his Appellant's statement under the Practice Direction filed for the purposes of this application.
11. He also submits that Kitchin LJ was wrong in his reading of the structure of the Upper Tribunal's judgment, in particular as to what matters were relied upon at paragraph 56 of that judgment.
12. Mr Randall submits that there is a general point of importance here as to the application of the law of adverse possession in relation to claims to adverse possession in respect of verges alongside roads.
13. In my view, however, none of these matters are sufficient to satisfy the second appeals test. The second appeals test requires me not to give permission unless I consider that (a) the appeal would raise an important point of principle or practice or (b) there is some other compelling reason for the Court of Appeal to hear it.
14. I will return to that in one moment, but the basic point which impresses me is that where what is in issue is the simple application of agreed principles of law to the facts by the two tribunals below, it cannot properly, in my view, be said that the appeal would raise an important point of principle or practice. There is nothing in relation to the application of those settled principles to adverse possession of verges which calls for distinct consideration or gives rise to an important point of principle or practice. Nor do I consider that there is some other compelling reason for the Court of Appeal to hear the case. There is no obvious injustice in the outcome of the case.
15. Although Mr Randall submits that the facts relied upon by the FTT were equivocal, in my view, the assessment of the significance of those facts was pre-eminently a matter for the evaluative judgment of that tribunal. I cannot detect any error of approach or evaluation by that tribunal in its assessment of those facts.
16. My conclusion in relation to the failure of Mr Randall to satisfy me as to the second appeals test in respect of the substantive appeal is unaffected by the position in relation to the appeal in relation to the admission of further evidence.
17. Here again, Mr Randall accepts that the Upper Tribunal Judge correctly directed himself as to the relevant test under the Tribunal Rules, informed, as is correct, by the principles derived from the well-known Ladd v Marshall case. In this case, the Upper Tribunal Judge ruled against Mr Heaney on the question of the admission of the additional evidence, relying on the first two limbs of the principles laid down in Ladd v Marshall.
18. Mr Randall submits that the Upper Tribunal Judge applied far too stringent a version of that test and erred in law, but for my part I can detect no error of law on the part of the Upper Tribunal Judge. Again, it was for the Upper Tribunal Judge to make the relevant evaluative assessment as to the application of those two limbs of the Ladd v Marshall test. The conclusion that he came to in respect of both items of evidence on the application of those limbs was one which, in my view, he was well entitled to come to.
19. Accordingly, in relation to that application, I do not consider that there is a real prospect of success in relation to it; permission to appeal should accordingly be refused in respect of it. There is no other compelling reason why permission should be granted in relation to that application. Since that is the outcome in relation to that application, it does not affect what I have said in relation to the application for permission to appeal in respect of the substantive outcome of the appeal in the Upper Tribunal.
20. In refusing permission to appeal on the papers, Kitchin LJ gave these as his reasons:

"2805, admission of new evidence.

The UT judge directed himself entirely properly as to the relevant principles from paragraphs 37 to 50.

Further, there is no real prospect of this court interfering with the conclusions to which the UT judge came.

As for Mr Green, the fact of the conversation had been clearly foreshadowed in Mrs Kirkby's evidence.

Furthermore, this evidence would not have affected the conclusion of the FTT judge for he did not accept Mr Kirkby would not have sowed the seed before seeking the local authority's approval for the landscaping scheme.

As for Dr Bell, it was plain that Mrs Kirkby's photographs could have been subjected to analysis in good time before the hearing and if the photograph had indeed been taken in April 2000, it was not inconsistent with there being some initial fine growth of the grass.

In light of these matters and the fact that if admitted this evidence would have necessitated further rounds of evidence and cross-examination, the Upper Tribunal Judge was entitled to conclude as he did that flexibility, fairness and justice did not require it to be admitted."

21. I agree with that reasoning.
22. In relation to the substantive appeal, Kitchin LJ said this:

"2804, the substantive appeal.

The FTT judge directed himself correctly as to the law at paragraphs 45 to 53. Indeed, this was accepted before the Upper Tribunal: see at paragraph 22. The Upper Tribunal Judge also directed himself entirely properly from paragraphs 23 to 30.

The Applicant now seeks to argue all over again the points developed before the Upper Tribunal as to how the FTT failed properly to apply these principles to the facts.

It is not fair to say that the whole of the reasoning of the Upper Tribunal Judge on intention to possess is contained in paragraph 56 for this refers back to his earlier reasoning at paragraphs 35 to 40 where he dealt in more detail with some of the criticisms of the decision of the FTT.

This appeal would not have a real prospect of success. It would not raise an important point of principle or practice and there is no other compelling reason why an appeal should be heard."

23. Again, I agree with that reasoning.
24. For all these reasons, these two applications are dismissed.