Robert CECIL SEECKTS and PAUL DERWENT and JANET DERWENT
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MANCE,Lord Justice Carnwath,Lord Justice Waller |
| Judgment Date | 30 March 2004 |
| Neutral Citation | [2004] EWCA Civ 393,[2003] EWCA Civ 1416 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B2/2003/1225,Case No: B2/2003/1225 |
| Date | 30 March 2004 |
[2003] EWCA Civ 1416
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE TUNBRIDGE WELLS COUNTY COURT
(His Honour Judge Mitchell)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Mance
B2/2003/1225
MR J HARPER QC and MR S BICKFORD-SMITH (instructed by Merrick & Co, 36 The Fruit Exchange, London, E1 6EU) appeared on behalf of the Applicants
The Respondent did not appear and was unrepresented.
Wednesday, 24th September 2004
This is a renewed application for permission to appeal after the refusal on paper, by Chadwick LJ, dated 7th August 2003. It has been advanced by Mr Harper QC, who has the advantage of being new to the case and therefore able to distinguish the wood from the trees —which may be an appropriate metaphor. He has succeeded in persuading me that permission to appeal is justified on limited points. He has reformulated draft grounds of appeal, which I have before me in writing, and has sought permission to amend the existing grounds of appeal by deleting them and replacing them in their entirety with the reformulated grounds. I consider that that is an appropriate and indeed necessary application if this matter is to be considered properly; and I give leave accordingly and order that the existing grounds of appeal be replaced by six grounds, which read as follows:
"1. The learned judge failed to make any, or any sufficient, findings as to the accuracy of the Geering & Colyer Plan No. 1724.
2. The learned judge failed to give any or any sufficient reasons for not applying the dimensions on Plan 1724.
3. Despite the learned judge's failure to make any finding that the said Plan 1724 was (a) ambiguous, or (b) inaccurate, or (c) too small a scale, or (d) that it conflicted with any conclusion to be derived from the 1968 Conveyance, he ignored the measurements on the said plan in arriving at his conclusion that the defendants [that is the applicants] had committed a trespass and did not own the hedges referred to in the particulars of claim.
4. The learned judge wrongly relied on extrinsic evidence of intention to construe the 1968 Conveyance.
5. In the absence of defined boundaries on the ground, and in particular the boundary between R 1 and Y at the time of the 1968 Conveyance, the learned judge was not entitled to conclude that taking a position from the boundary along the laurel hedge that existed thereafter was consistent with the 1968 Conveyance without evidence that it was consistent with the dimensions on Plan 1724.
6. The learned judge was not entitled to make paragraph 2 of the order dated 13th May 2003 which went beyond the matters in issue before him."
This is, as will be apparent from what I have already said, a boundary dispute. It involved substantial factual evidence at trial. It involved a number of issues, which were originally proposed to be repeated in this court by the original grounds of appeal and which have now happily and realistically been abandoned, including allegations as to bad faith, concoction of markings on documents and bias on the part of the judge.
The judge, whose judgment showed that he had grappled conscientiously with this most unfortunate dispute, dealt with the matters relating to the documents and the weaknesses in some detail, so that, as he said:
"… if this matter should have to go any further —heaven forbid that it should —then those who have cause to study my judgment will be able to follow the matters to which I refer."
It is with considerable sympathy for that observation and with even greater misgivings, bearing in mind Chadwick LJ's view on paper, that I have come to a different view in part about permission to appeal to that which Chadwick LJ reached, even though I do so in the light of the fresh oral submissions which I have received and the re-definition of the applicants' points. This is the sort of dispute which should ideally end in a fair trial and not be reventilated in this court, if at all avoidable.
The parties are, sadly, long-standing antagonists who have spent huge sums on this litigation, which is ultimately, as it appears, about ownership of a narrow strip of land. That strip of land is, or was until the applicant's foolishly took what they perceived to be the law into their own hands, a laurel hedge as to its eastern part, and more open ground as to its western part running along the north of a from points A to B on the plan attached to the points of claim. The costs which are now in issue as a result of a heavy trial mean that the litigation may now have acquired added financial significance, but that cannot itself mean that there should be an appeal in this type of case.
However, Mr Harper submits correctly, as Chadwick LJ said, that the judge had to construe the scope of a 1968 conveyance to the claimant with a plan attached, that is Plan 1724. He had, of course, to do so in the light of the physical features then present on the ground, but the primary point of focus, Mr Harper submits, was the conveyance and the measurements which it contained. He adds that subjective intentions, or any subjective understanding with the vendor, should not, in the absence of any claim to rectify, have been regarded as relevant. Mr Harper submits that the judge fell into error in taking account of subjective intentions. The judge heard a lot of evidence about the claimant's subjective intentions and/or his understanding with his vendor outside the terms of the conveyance. That was because of an issue, no longer to be pursued, regarding the genuineness of certain or at least one of the markings on Plan 1724 attached to the conveyance.
In the course of his judgment, the judge found at the top of page 21:
"… that the intention was to convey the laurel hedge at R 1 to Y to O [that, in terms of the plan attached to the points of claim, means from D to C to B] to Mr Seeckts, the claimant, and thereafter the intention was that the boundary, that is to say, between O and V [in terms of the plan attached to the points of claim that means from B to A] was behind the hedge or line of trees on that land. That is to say, the trees at the side of the path which include the hollies and would appear to include the newly planted laurels."
If in this passage he was relying on subjective intention, then, Mr Harper submits, there was no basis on which he was entitled to do so.
The judgment on the preceding page, page 20, recited the opposing counsel's arguments. The start and end point, on the applicants' case, was the dimensions on Plan 1724 coupled with the places where the boundary lines appeared on the plan. So far as the plan shows, the boundary line appears to run along the north side of the path from V to O on Plan 1724, that is A to B to C on the plan annexed to the points of claim.
It is perhaps of some interest that the predecessors in title to the claimants, who acquired the property some time in the 1970s, gave evidence that they had erected a fence, which appears in some of the photographs, running along the north side immediately next to the path in this area. Yet the effect of the judge's judgment is, it appears, to replace that fence line with a boundary at least 2-foot further to the north and away from the path.
Another point, which is perhaps of some interest and may not have received all the attention that it might have done at the trial, is the fact that the conveyance to the claimant in 1968 made express reference, in its second schedule in clauses 5(a) and (b), to hedges situated on the boundaries marked R 2 to S and T on the plan attached hereto, which the buyer (the claimant, Mr Seeckts) was "forever hereafter to maintain". Those are hedges which are also shown on Plan 1724 as existing hedges, marked expressly as such, to the east of the claimant's house and in an area which is not in dispute. The claimant's case, on which he succeeded in front of the judge, is that the boundary included, on his side of the boundary, further hedges running from points R 1 down to what has been called point Y and then westwards to point O (in terms of the plan annexed to the points of claim, that is from point D to C and then west to point B). If that was the agreement, it is perhaps a little curious that it did not appear in the conveyance.
The only other reference to boundaries in the conveyance is in clause 5(a), which provides:
"For ever hereafter to repair and maintain in good condition the fences along the boundaries of the property hereby conveyed and to erect if so required by the Vendor a cattle proof fence along any part of the said boundaries where fences do not at present exist."
The basic point is, however, according to the applicants that the measurements on Plan 1724 are all consistent with and confirm a boundary line immediately along the north side of the path from V to O (that is A to B on the points of claim plan) and then along a line from O to Y to R1 (that is from B to C to D on the points of claim plan) which would put the laurel hedge there on the applicants' side of the boundary.
In that connection I have been shown a plan prepared by the expert Mr Tonkin for the applicants and a plan prepared by Stevenson McGuire & Company for the claimant. The judge reflected in his judgment at page 20 certain points made by counsel for the claimant about Mr Tonkin's use in his plan of a drain-run and the north path side as a basis for making sense of the measurements on Plan 1724. Where Mr Harper appears to me to have a potential point is in submitting...
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