Higson and Another v Guenault and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens |
| Judgment Date | 22 July 2014 |
| Neutral Citation | [2014] EWCA Civ 1034 |
| Date | 22 July 2014 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2013/3321, 3322 & 3322(A) |
[2014] EWCA Civ 1034
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LANCASTER COUNTY COURT
DISTRICT JUDGE FORRESTER
0LA00285
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Aikens
Lord Justice Elias
and
Lord Justice Fulford
Case No: B2/2013/3321, 3322 & 3322(A)
Jamal Demachkie (instructed by DWF LLP) for the Appellant
Richard Lander (instructed by Oglethorpe Sturton & Gillibrand LLP) for the Respondent
Hearing date of main appeal: 01/05/2014
This is the judgment of the court on the issue of the costs of this appeal, in which we handed down judgment on 21 May 2014: see [2014] EWCA Civ 703. The appeal was dismissed. The respondents, whom we called "the Club" in the main judgment now seek an order for costs against the appellants, whom we called "the Higsons". Such an order would normally be bound to follow the event, but the history of these proceedings were not normal and the parties have submitted written submissions on the issue which we have considered.
Before the judge the issue was where a boundary lay between land owned by the Higsons and a narrow track at the end of which lie the grounds of the Bowerham Lawn Tennis Club (ie the Club) on the outskirts of Lancaster. The judge based his decision partly on his construction of a conveyance of 1921. However, he did not have the original of the conveyance and the certified copy that he had was not, in fact, accurate. This led the judge to a false conclusion on the ownership of the relevant parcels of land.
After the trial before the judge the Higsons obtained a copy of the original that was accurate and they sought to adduce this as "fresh evidence" on appeal. We considered this application at the outset of the hearing on 1 May 2014 and allowed it. In [24] of my judgment I stated that in view of the overriding objective of doing justice we must receive the original of the 1921 conveyance and the plan attached to it, despite the fact that it could have been obtained by either side with reasonable diligence at the time of the trial.
This decision did not, however, make any...
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