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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 >> Lewis & Ors v Cottrill [2004] EWCA Civ 1245 (22 July 2004) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2004/1245.html Cite as: [2004] EWCA Civ 1245

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM COUNTY COURT
(RECORDER LOCHRANE)

		Royal Courts of Justice Strand London, WC2
		22nd July 2004

1. LADY JUSTICE ARDEN: I am going to give judgment but I cannot give it facing you so that you can lip read because I have to look at the papers. So I am going to order a copy of the transcript at public expense to be sent to you, so if you do not follow what I am saying you will see it in writing. I do not mean to be discourteous.
2. THE APPLICANT: I certainly would not take that point. Thank you.
3. LADY JUSTICE ARDEN: Thank you for your helpful arguments. It made it much clearer. I am very grateful.
4. This is an application for permission to appeal by Mr Cottrill against the order of Mr Recorder Lochrane dated 23rd February 2004. The order is at page 11 of the bundle. Paragraph 1 states:
5. "There be a declaration that the boundary between 37 Hughes Close, Arlington, Worcestershire and 29a Hughes Close, Arlington, Worcestershire follows the line marked A to B on the plan exhibited to the 1st claimant's statement dated 14.11.03 marked SML1, a copy of which is contained at Page 123 of the trial bundle."
6. There were then certain injunctions and then at paragraph 6 an order that the defendant pay damages to the claimant assessed at £410 and then an order that the defendant do pay the claimants' costs.
7. In his notice of appeal Mr Cottrill contends that he was prevented from conducting his case in an effective and proper manner as he had intended to do and that his evidence was brushed aside. I will return to this point below.
8. Mr Cottrill in his appellant's notice makes further applications as follows: for a stay of execution of the order of the Recorder and an extension of time for appealing and an application for new evidence to be admitted on appeal. In so far as the application for an extension of time is concerned, the notice of appeal was about three weeks out of date. Provided that the appeal has merit I would have no difficulty with this extension of time. So far as the application for new evidence to be admitted on appeal is concerned, this is evidence which Mr Cottrill contends that he was unable to present at the trial and I will return to this below. First I must set out briefly the background.
9. Mr Cottrill lives at 37 Hughes Close and has done so since 1984. The respondents own 29a Hughes Close. They acquired this in April 1988. That property is the neighbouring property to Mr Cottrill's. It is a plot that was carved out of number 37 and its then existing neighbour which I believe was number 39 Hughes Close. The judge found that the fence between Mr Cottrill's property and the respondents' property was blown down in 1996 or 1997 and then replaced. The fence had been put up when the respondents' plot was created.
10. In 1998 the fence blew down again and the claimants re-erected it. In May 2000 Mr Cottrill instructed builders to remove the fence. The respondents put up another fence but this too was removed and then the boundary remained open until August 2002. The respondents decided that they wished to have some fencing and brought proceedings for a declaration as to the true location of the boundary. The judge found that the boundary ran along a blue line on the plan produced to the court. The judge made this finding on the basis of evidence filed by Mr Cottrill(sic) the expert witness, who was also cross-examined at the trial, and the blue line is not a line which Mr Cottrill accepted was the boundary. However, the blue line left a section of land which fell on the respondents' side of the fence which for many years was circumscribed by the fence put up by the builders originally when the respondents' house was built on their plot. So the question arose whether the respondents had adversely possessed that section of land so that they could now claim that the fence ran along the true boundary of the land.
11. I should say that Mr Cottrill takes issue with the boundary as found by Mr Callow but very properly accepts that that point alone will not assist him on an appeal because of the adverse possession point on which he did not succeed. So it is necessary to describe that point now.
12. The judge found that the respondents had exclusive possession of the section of land between the blue line and the fence from January 1988 up to January 2000 and that accordingly the 12-year period of limitation operated so that Mr Cottrill was now barred from bringing any claim to recover that section of land. In this connection the judge had to consider whether Mr Cottrill had done anything which would amount in law to retaking possession of the disputed section of land from which he was excluded by the fence.
13. The fence is Mr Cottrill's fence. It is chestnut paling fencing of about 5'6". Mr Cottrill relied on the removal by him of fenceposts and possibly some of the foundation supports put in to support those fence posts during the period 1996 or 1997 and, in addition, upon his own gardening activities which was the distribution of weedkiller along this section of land.
14. I should say that Mr Cottrill has unfortunately a disability with one of his legs which inhibit him from full gardening activities and that his gardening activities took the form of weedkiller distribution.
15. The judge found that for many, many years the respondents had cultivated their side of the fence with a border of border plants. Mr Cottrill contended that during the existence of the fence he was in the habit of sliding up some of the fence panels in order to gain access to the neighbouring property. The judge heard Mr Cottrill's evidence and indeed the evidence of the respondents but found that this evidence was "fantastical". The judge also gave a number of examples of evidence given by Mr Cottrill which in the judge's judgment were incredible. He also found that Mr Cottrill had been impolite to his neighbours.
16. The judge dealt with alleged acts of retaking possession of the fenced land starting at paragraph 67 of the judgment. The judge dealt first with the retaking of possession once the fence was blown down. The judge found that there was a period in 1996 or 1997 when the fence was blown down for a reasonably significant period. The judge rejected Mr Cottrill's evidence and accepted that of the respondents. The judge found that the appellant removed some of the fence posts and some of the foundations at the time. However, he found that the only objection which Mr Cottrill expressed was that he thought the fence was in the wrong place.
17. The fence was blown down again in 1998. The judge found that this was for no more than three days. The judge considered that this period was unimportant because Mr Cottrill had given no evidence about any attempt during the period that the fence was down to reenter and to retake possession.
18. The judge then turned to the distribution of weedkiller. The judge noted that this allegation had surfaced for the first time in the course of evidence in the proceedings. The judge noted that Mrs Lewis accepted that at one period plants on their side of the fence had died but the judge rejected Mr Cottrill's case that there had been any weed-killing activity on the claimants' side of the fence when the fence was down. The judge also noted that the reason given for removing the fence panels and posts was that Mr Cottrill thought that it was his responsibility to repair the fence. In other words, he made no reference to possession of his own land at the same time.
19. The judge went on to deal with claims in trespass on either side. The judge concluded that the trespasses alleged on either side wiped each other out. The judge finally dealt with a claim for damages in respect of damage to fencing and in addition labour costs and awarded damages against Mr Cottrill in the sum of £410. That then is the judgment of the judge.
20. I turn to deal with Mr Cottrill's grounds of appeal. I should say that I explained to Mr Cottrill that this is really a case which turned on questions of fact. On questions of fact this appeal court does not interfere unless it is plain that the judge was wrong. In other words, if the judge found that one witness was credible and one was not it is not open to this court to interfere and say the judge was wrong unless there are plainly reasons for so concluding. An appeal is not a rehearing of the original case. Accordingly this court is in difficulties in disagreeing with a judge who heard witnesses and made findings on the basis of oral evidence because this court is deprived of the advantage which the judge had of hearing the witnesses give evidence. I say this because part of Mr Cottrill's submission is that Mrs Lewis' word was worthless but this would be a matter for the judge hearing her evidence. He would have to decide whom to believe having heard that evidence and it is not a matter with which this court can lightly interfere.
21. I should also add that I explained to Mr Cottrill that the only application before me is an application for permission to appeal against the order of 25th February 2004. There are a number of other applications in respect of which Mr Cottrill wishes to appeal but they are not before me. I should say that two of them concerned matters on which district judges have ruled and this court has no jurisdiction to deal with appeals from those case management orders. The only application before me, as I say, is an application for permission to appeal against the order made at trial.
22. I now turn to the grounds of appeal. As I have said, Mr Cottrill submits that he was prevented from adducing evidence which he had intended to lead at the trial. This evidence was CCTV footage from the claimants' surveillance camera. Mr Cottrill wished to submit that the footage showed that Mrs Cottrill(sic) could not be believed. The position is that Mrs Lewis gave evidence that she turned the camera on and yet the first few frames of the footage showed her at the boundary area, so that she could not be correct in saying what she said and, accordingly, there must have been something wiped from the film. However, Mr Cottrill explained to me that this footage was taken on 2nd September 2002, that is outside the area of time with which the court had to deal and it would therefore have been irrelevant to the issues before the judge. Therefore if it was rejected by the judge as inadmissible, I do not think there would be any success on this point on an appeal.
23. I should also deal with one further point and that is that Mr Cottrill had made an application of 17th December which is at page 113 of the bundle. I shall not read it in detail but it asked in essence that the court:

"... severely punishes the claimants as requested in my attached statement dated 17th December, 2003."

24. This application was not dealt with as a case management matter before the trial. Mr Cottrill understood it would be dealt with at the trial but it was not dealt with at the trial. So far as this matter is concerned, Mr Cottrill made no application to the judge to adjourn the trial in order that the application could be dealt with. Accordingly, since I am only dealing with the orders made at trial, this is not a matter which I can deal with and would certainly not afford grounds for an appeal in this case.
25. I now turn to the skeleton argument which the appellant has filed. The first ground is that everything Mr Cottrill has done towards his case and everything is consistent with the respondents knowing all along that the builders had cheated him of a significant proportion of land and that everything that the respondents had done was inconsistent with that. There are some other allegations too but that is the important allegation and it is supported by a lengthy witness statement which I have read.
26. So far as this point is concerned, the relevant question for the judge was who had exclusive possession of the section of land which belonged to Mr Cottrill. It did not matter for this purpose if the claimants knew that the land was not theirs. Nor did it matter that they put up a fence on Mr Cottrill's land. Nor did it matter that the fence originally there was Mr Cottrill's fence. Therefore I do not think these matters could afford any prospect of success on appeal. What mattered was who was in possession.
27. Mr Cottrill makes a number of allegations in his statement about the judge's handling of the case. However, these matters would not afford a ground for an appeal unless there was specific ground on which it could be said that the judge had made an error which meant that he was not entitled to come to the conclusions that he came to and such is not shown by the statement.
28. The second ground of appeal in the skeleton argument is that the judge behaved improperly and prejudiced the trial. This again refers to the matters in the witness statement. I have really covered this point. I have read the witness statement. There is no precise ground given as to the judge's conduct on which I could give permission to appeal.
29. Mr Cottrill then complains about the case management of the matter. As I have explained, I am only concerned with the order of 25th February.
30. Finally, Mr Cottrill complains that the judge failed properly and fairly to adjudicate upon his restricted gardening activities due to his severe physical disabilities. Again I do not consider that this can afford a ground of appeal. The judge dealt with the evidence as to the gardening activities in the way I have explained. He found it incredible that weedkiller had been applied. He did not reach his conclusion on the basis of restrictions on Mr Cottrill's movements but rather on the activities of distribution of weedkiller themselves.
31. In the circumstances I see no ground on which I could give permission to appeal and in those circumstances there is, in my judgment, no purpose to be served by granting an extension of time. Accordingly, the order which I make is to refuse the extension of time and the application.
32. I am very grateful to you, Mr Cottrill. I have to dismiss the application but thank you for your helpful submissions.
33. THE APPLICANT: Thank you. I have been cheated. There is no doubt about that.
34. LADY JUSTICE ARDEN: I understand. Thank you.

Order: Application for permission to appeal refused; application for an extension of time refused; application for a stay refused.