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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 >> McNeil & Anor v Rowse [2001] EWCA Civ 1123 (5 July 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1123.html Cite as: [2001] EWCA Civ 1123

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE STAINES COUNTY COURT
(HIS HONOUR JUDGE BISHOP)

		Royal Courts of Justice Strand London WC2A 2LL Thursday 5 July 2001

1. LORD JUSTICE JONATHAN PARKER: This is an application by Ms Sarah Khan on behalf of herself and Mr Fergus McNeil, the claimants in the action, for permission to appeal against an order made by His Honour Judge Bishop in the Staines County Court on 27 March 2001. The judge refused permission to appeal on a number of grounds:

(1) that his order was based on findings of fact;

(2) that no point of law arose;

(3) that no point of public importance arose; and

(4) on grounds of proportionality.

2. The action arises out of a boundary dispute. The relevant background can be summarised as follows. The claimants live at 76 Chaucer Road, Ashford, Middlesex. The defendant, Mrs Margaret Rowse, lives next door at number 74 Chaucer Road. In about 1970 a small area of land at the rear of number 76, adjoining number 74, was transferred by the then owner of number 76 to the then owner of number 74. The boundary which is disputed in the action is that which lies between number 76 and the area which was transferred to number 74. It has at all times been common ground between the parties that the original boundary was marked by a fence. The central question for decision in the action was as to precisely where that fence ran. The trial of the action lasted about two court days.
3. Prior to the commencement of the hearing, the judge viewed the area in question. The judge heard evidence from 11 witnesses, 5 on behalf of the claimants and 6 on behalf of the defendant. The judge correctly identified the issue before him as being where the relevant fence was situated. Having heard the evidence and considered the documentary material the judge concluded that the fence ran from a concrete post, which was the only remaining physical feature on the land in question. At page 36 of his judgment he said:

"The only certainty I have is to centre on that concrete post and to accept the evidence which I have heard that the original fence was attached to that."

4. The line of the boundary which the judge found to be the correct line was a line which the defendant, Mrs Rowse, had agreed. Having made his finding, the judge commented that the boundary which he had found to be the true boundary may well have represented "an increase" on the true boundary in the sense that, if the boundary which he had found diverged from the actual boundary as shown on the plans, that was a divergence in the claimant's favour.
5. In support of her application to appeal, Ms Khan has submitted, primarily, that this was, as she had always understood, a case to be determined in the small claims court. She is unable to understand how the case could have found its way to the county court for a substantial hearing involving, inevitably, substantial costs. The judge took great pains to explain the procedural position to Mrs Rowse. In his judgment he made it clear that there was no basis for a belief that the case was going to be dealt with by the small claims procedure. At page 10D of the transcript of the judgment the judge said:

"So I have been through that [the procedural history] to show that there was a clear timetable and surely utmost clarity that the action was not in the small claims procedure and that it was a serious and important matter in which the claimants were seeking a declaration about a boundary, an injunction, as well as the damages which they told me yesterday were not likely to be high."

6. I can see no substance in a proposed ground of appeal based on Ms Khan's belief that the case was going to be heard in the small claims court.
7. Turning to the substantive points which Ms Khan makes in support of her application for permission to appeal, she submits, primarily and fundamentally, that the findings which the judge made were clearly against the weight of the evidence before him. She submits that he ought to have attached greater weight to a surveyor's report. She points out that, whereas the defendant and her witnesses had in their witness statements stated that the true boundary was some 18 inches to the rear of the garage of number 76 Chaucer Road, the boundary which the judge eventually found to be the true boundary was some 33 inches away from the rear of that garage.
8. Ms Khan goes on to submit that the judge's approach to the evidence was in effect biased and that he did not approach the evidence in a fair way. She submits in her written material that the judge was plainly pre-disposed in favour of the defendant, Mrs Rowse, which led him to attach insufficient weight to the evidence called on behalf of the claimants, in particular the evidence of a Mr Khalid. His evidence was that he erected a replacement fence along the line of an existing fence and that the line of that fence ran long the line contended for by the claimants in the action as being the true boundary.
9. In his judgment the judge referred in detail to the evidence of Mr Khalid, but expressed himself unsure how reliable that evidence was, given that Ms Khan had been instrumental in the production of his witness statement. Ms Khan submits that that was an unfair conclusion to reach and that there was no justification for any misgivings which the judge might have had on that score.
10. Ms Khan has set out her grounds of appeal at some length in section 7 of her application notice, and she has elaborated on those grounds orally this morning. She obviously feels that the judge has reached a wrong conclusion and is manifestly upset at finding herself unsuccessful in the litigation for the reasons which the judge gave.
11. In summary, her application is based upon the belief that the judge's conclusions and findings were contrary to the weight of the evidence and that the trial was conducted unfairly.
12. As I pointed out to Miss Khan in the course of her submissions, any litigant seeking to appeal on an issue of fact faces a difficult task. That is particularly true in the instant case where the resolution of a question where the original fence ran raises a pure issue of fact. It was for the judge to make his assessment of the reliability of the oral evidence which he heard. I can see no basis upon which the Court of Appeal could interfere with the assessment which he made.
13. By the same token it was for the judge to decide on the evidence where the fence ran and I can see no basis upon which the Court of Appeal could interfere with that decision. Therefore, I find myself wholly unable to discern any arguable ground for an appeal against the judge's order.
14. In my judgment permission must be refused, essentially for the reasons which the judge gave, to which I have referred. It is indeed regrettable that disputes of this nature should find their way to the court but litigants are entitled to have their rights determined. That has happened in this case, and I can find no basis upon which the judge's determination of the true boundary could be challenged in this court.
15. Accordingly I dismiss the application.
Order: Application dismissed.