Connor v Maunder
Jurisdiction | England & Wales |
Judge | LORD JUSTICE RUSSELL,LORD JUSTICE PHILLIMORE |
Judgment Date | 08 May 1972 |
Judgment citation (vLex) | [1972] EWCA Civ J0508-3 |
Court | Court of Appeal (Civil Division) |
Date | 08 May 1972 |
[1972] EWCA Civ J0508-3
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Russell
Lord Justice Phillimore and
Lord Jcetice Stamp
MR E. PRINCE, (instructed by Messrs. Woolsey, Morris & Kennedy of Sidcup, Kent) appeared on behalf of the Applicant (Plaintiff).
MR N. BROWNE, (instructed by Messrs. Knocker & Foskett of Sevenoaks, Kent) appeared on behalf of the Respondents (Defendants).
This is a case which concerns an appeal from a daemon of His Honour Judge Fife given in the Bromley County Court on the 26th November, 1071, in a boundary dispute between neighbours. I do not think the details matter. The application is to strike out the Notice of Appeal of the defendants, the judge having awarded the plaintiff some 630 in damages and a declaration favourable to the plaintiff as to the disputed land.
The claim in the plaint ma for damages limited to 6100 and an injunction to restrain the defendants from trespassing. The defendants, because they claimed ownership of the land itself, produced a defence of a quid pro quo in the form of a counterclaim, but claiming only for damages, limited to £100.
The Notice of Appeal by the defendants asks that the judgment be set aside and for an order for coats. The grounds of appeal are: "1. That the learned Judge erred in law in holding that scaled measurements could be taken from a conveyance plan meant for indentification only." As we are against the application on the other grounds of appeal, and therefore against the application to strike out the Notice of Appeal as a whole, I do not propose to deal with the question as to whether in fact this involved a point of law which was not taken, or not properly taken, before the learned county court judge, and which consequently ought not to be available to the appellants in this court: that is a matter which will be dealt with and determined at the hearing of the appeal.
The other grounds of appeal are: "2. That the learned Judge misdirected himself in preferring the evidence of the plaintiff's conveyance plan to that of the ordnance survey plan prepared by the defendants' expert witness, Mr. Lurcook. 3. That the learned Judge misdirected himself by preferring the evidence of the plaintiff's son to the report and evidence of the defendants' saidexpert witness 4. That the findings of the learned Judge ware against the weight of the evidence." What is said now in respect of those grounds of appeal is that the defendant appellants are seeking to appeal on a question of fact, and there is no right of appeal in the present case on a question of fact.
It will be recalled that Section 109 of the County Courts Act 1959 provides that: "…. if any party to any such proceedings in a county court as are mentioned in the next following subsection is dissatisfied with the determination of the judge … on any question...
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