A3 2005/2197 
Neutral Citation Number: [2005] EWCA Civ 1638
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
(MR ANDREW SUTCLIFFE QC)
Royal Courts of Justice 
Strand 
London, WC2 

Thursday, 1 December 2005
 
B E F O R E:

LORD JUSTICE MAY 
 
LORD JUSTICE JACOB  
 
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RICHARD ADCOCK 
Claimant/Applicant

-v-

WENDY JOY DAVIS 
Defendant/Respondent 
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(Computer-Aided Transcript of the Stenograph Notes of
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MR DANIEL SHAPIRO (instructed by Messrs Robinsons) appeared on behalf of the Applicant
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED
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J U D G M E N T
1.	LORD JUSTICE JACOB:  This is an application for permission to appeal a decision of Mr Andrew Sutcliffe QC, sitting as a Deputy Judge of the High Court in Oxford.  The appellant, Mr Adcock, sought a declaration that he is entitled to be registered to a part of a strip of land which forms part of the respondent's title.  The strip in question is currently incorporated as part of the garden at Mr Adcock's premises.  This is so notwithstanding the fact that it lies the other side of a stream in his garden.  Just beyond the strip is a hedge and fence, forming part of the respondent's garden.  There is no need to go into more detail; the deputy judge sets out the position in greater detail in a manner which is not controversial.  
2.	The deputy judge heard conflicting evidence as to the basis upon which the strip had been used by the claimant and his predecessor, his father, as part of their garden.  There is no doubt that that is what happened.  The strip, even though on the other side of the stream, was tidied up by the claimant's father and formed part of the garden and has done so since about 1984.  On the one side it was said that this was done with the consent of the defendant's predecessor.  On the other side it was said that it was done by way of adverse possession.  
3.	The conflict was essentially between the evidence of Mr Paul Adcock, the claimant's father, and that of Mr and Mrs Harris, the respondent's predecessor in title.  The judge sets out each side's evidence and reminds himself of the difficulties of evidence given as to events which occurred a long, long time ago.  He said this, for example:  
"I bear in mind also that memories play tricks on people, and that a witness may have an honest conviction about something that did not in fact happen, usually because he or she has thought about that event in a particular way for so long that it has acquired the status of an historical fact."  
He said it was his task to decide, by weighing up all the evidence he had heard, what on the balance of probabilities  actually happened.  
4.	Mr Harris' evidence was by way of a hearsay notice to a witness statement signed six days before he died.  Mrs Harris gave evidence and was cross-examined about the matter.  She was cross-examined not only about her direct knowledge of who had erected fences and gates, which are now within the hedge, but also as to the conversation which had taken place between her husband and Mr Paul Adcock.  
5.	In paragraph 25 of his judgment, the judge sets out seven reasons as to why he preferred the evidence of Mr and Mrs Harris.  There is no need to set them out again in this judgment.  They are carefully set out by the judge.  It is noteworthy in particular, however, that there is some corroboration from the point of view of the defendants in relation to the evidence of a Mr Swycher and a Mrs Davis.  The judge carefully considered the evidence they gave and came to the conclusion that he accepted it.  That is the function of a trial judge -- to hear evidence and decide whether or not the evidence of a live witness is or is not credible.  
6.	It is submitted before us that the judge was plainly wrong.  I am afraid I have come to the conclusion that an exercise of going through inch by inch anything which is in the evidence and saying the judge could not and ought not have accepted that, when he has in fact carefully considered that which is being accepted and said why he accepts it, is a long, long way from showing that a trial judge who saw and heard the witnesses is plainly wrong.  
7.	In considering the proposed appeal on paper, Mummery LJ said this:  
"The deputy judge was entitled to find that the possession was with the paper owner's consent and that finding of fact would not be disturbed by the Court of Appeal on the grounds stated in the skeleton argument."  
Nothing that has been said by way of oral submission has added to anything in that skeleton argument and I, for my part, can see no reason for disagreeing with Mummery LJ's view.  
8.	There are too many points against the proposed appeal where the judge had regard to and considered carefully the point for it to be said that he was plainly wrong.  He had to come to a view one way or the other.  He did so, and he did so, in my judgment, properly.  
9.	That leaves the other matter which has been raised, namely the question of further evidence.  During the course of the trial, Mrs Harris was asked about her husband's health, he having died only six days after the witness statement was taken.  She said he had died from pancreatic cancer.  The would-be appellants have now investigated the death certificate, which indeed confirms that he did die of that cancer,but also indicates that he had a heart condition.  There is an application before us for the deceased's medical records, the object of all this being to show that he was not properly mentally able when he signed the witness statement.  That must have been a point which would have occurred to them earlier.  The obvious person to ask is not the doctors looking at the medical condition, but the person who took the statement from the witness.  No application was made at the trial for that witness to be called.  In my view, to come to the Court of Appeal at this stage is much, much too late. 
10.	I do not think this appeal would have any merit, and accordingly I will refuse this application.  
11.	LORD JUSTICE MAY:  I agree that this application should be dismissed for the reasons that Jacob LJ has given.  The proposed appeal, in my judgment, has no real prospect of success.  It would be necessary to find that the judge's findings of fact were wrong.  The judge considered the evidence carefully and gave what, to my mind, were persuasive and entirely adequate reasons for preferring the evidence supporting the defendant's case, to that supporting the claimant's case.  He was not, contrary to Mr Shapiro's submission, plainly wrong on the critical question in this case.  
12.	As to the medical evidence, it seems to me entirely unpersuasive to speculate after the event on the basis of the contents of a death certificate.  The matter was not dealt with at the time and, as my Lord has said, that was the time to deal with it.  
13.	For those reasons, I agree that this application should be refused.
Order:  application refused