William Patrick Hatton and Another v Peter Connew and Another

JurisdictionEngland & Wales
JudgeLord Justice Kitchin,Lord Justice Christopher Clarke,Lord Justice Rimer
Judgment Date20 December 2013
Neutral Citation[2013] EWCA Civ 1560,[2013] EWCA Civ 1681
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: B2/2012/2981
Date20 December 2013

[2013] EWCA Civ 1560



HHJ Moloney QC


Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Rimer

Lord Justice Kitchin


Lord Justice Christopher Clarke

Case No: B2/2012/2981

(1) William Patrick Hatton
(2) Margaret Mary Hatton
(1) Peter Connew
(2) Iris Connew

Stephen Goodfellow (instructed by Linda S Russell) for the Claimants/Respondents

James Fieldsend (instructed by direct access) for the Defendants/Appellants

Hearing date: 23 October 2013

Approved Judgment

Lord Justice Kitchin



This appeal arises out of a dispute over the ownership of three small pieces of land in the village of Stock in Essex. The claimants own and farm an estate of around 800 acres known as the Apps Estate which lies around the village.


The defendants are neighbours of the claimants and live in the Willows which lies beside that part of the Downham Road known as Leather Bottle Hill and to the east of one of the claimants' fields known as Hillyfield. The defendants purchased the freehold of this property from a Mr Roberts in 1976 and it has been their family home ever since. In 1990 the defendants purchased from the Apps Estate, then owned by the claimants' predecessors in title, the Lyster family, a further piece of land lying to the north-west of their property. This land, called the Additional Land, has been used by the defendants as an extension of their garden.


The dispute concerns the boundary between the Apps Estate, on the one side, and the Willows and the Additional Land, on the other side. The first piece of land in dispute, referred to as the Bank Strip, runs in a broadly north-south direction between the Willows and Hillyfield. As its name suggests, it comprises a bank which is about 1.8 metres high. The issue was, in substance, whether the boundary lies at or near the bottom of the bank, as the claimants contended, or at the top of the bank, as the defendants contended.


The second piece of land in dispute was referred to as the Triangle and it lies between what the claimants accept is the garden of the Willows and the Additional Land. It is of particular importance to the defendants because it has been occupied by them as part of their garden for a number of years and it provides them with convenient access to the Additional Land. The claimants contended the Triangle forms part of their estate. The defendants responded that it forms part of the land they purchased from Mr Roberts in 1976, just as does the Bank Strip.


The third and final piece of land in dispute, known as the Swathe, lies to the north-west of the Additional Land. The claimants contended it forms part of their estate. The defendants responded that it forms part of the Additional Land which was conveyed to them in 1990. This issue has at its heart whether the north-west corner of the Additional Land is designated by an apple tree marked on the conveyance plan and which, so the defendants contended, is still to be seen on the land, or whether it is designated by a measurement shown on the plan. The defendants also relied upon a case of proprietary estoppel, arguing that the claimants had allowed them to occupy the Swathe and to assume they owned it, and that the claimants were now taking unconscionable advantage of them by denying them the rights which they believed they had.


The action came on for trial before HH Judge Moloney QC on 28 May 2012 and lasted for three days. The claimants were represented by counsel, Mr Stephen Goodfellow, and the defendants appeared in person. Both sides had the assistance of an expert witness. Mr David Powell, a Chartered Land Surveyor, produced two reports for the claimants, and Mr Adrian Cowell, a Chartered Building Surveyor, produced two reports for the defendants. The experts disagreed as to where the boundary lay.


On the second day of the trial the judge had what he described as a very helpful site visit. Prior to the visit, the parties and their surveyors had marked out with ropes and pegs the boundaries they contended for. The judge inspected the three pieces of land in dispute and as he did so he allowed the experts to explain their respective positions to him. This, the judge said, was a course he took with the consent of the parties and one which permitted "a more convenient use of the time available than formal cross-examination in court on their very full reports".


The judge also had the benefit of other evidence including, in particular, various conveyances, conveyance plans, Land Registry plans and Ordnance Survey (OS) maps. Further, the judge heard oral evidence from the parties and from various witnesses of fact who gave evidence as to the actual use and occupation of the land over many years and such matters as the erection of fences and the digging of ditches. I should make clear, however, that, save to the extent I have indicated in relation to the Swathe, no case based on adverse possession or estoppel was advanced by the defendants. Following the hearing, the parties had an opportunity to file further written submissions.


The judge handed down his judgment on 14 September 2012 and he found in favour of the claimants on all the issues before him. The Bank Strip, the Triangle and the Swathe were, he held, all part of the Apps Estate and belonged to the claimants. Further, the case advanced in relation to the Swathe based on estoppel failed.


On this appeal against the judge's consequential order, brought with permission of Lewison LJ, the defendants have been represented by Mr James Fieldsend of counsel. The claimants have been represented by Mr Goodfellow, as they were before the judge. I would say at the outset that I am grateful to both counsel for their able submissions.


At the heart of this appeal is the judge's treatment of the expert evidence. Mr Fieldsend contends this amounted to a serious procedural irregularity such that the judgment is unjust. Each side criticised the methodology adopted by the other side's expert and in these circumstances it was, submits Mr Fieldsend, quite wrong for the judge to converse with the experts during the site visit as he did and then dispense with cross examination. Moreover, this evidence was central to the decision of the judge in relation to the Bank Strip and the Triangle. In these circumstances the whole judgment should be set aside, or at least that part of it which relates to these two pieces of land, and the case should be remitted for re-hearing before a different judge. Mr Fieldsend also submits the decision in relation to each of the pieces of land was, in any event, wrong.


These submissions raise important issues concerning the exercise by a judge of the discretion to control the giving of evidence, particularly where one party is represented by solicitors and counsel and the other party appears in person. But before addressing these issues and Mr Fieldsend's other attacks on the judgment I must set out a little more of the factual background, explain what happened at the trial and summarise the reasoning of the judge as it appears from his judgment.

The background


The Apps Estate is registered under title number EX544823. The claimants purchased the estate from the Lyster family in 1995. Neither side relied upon the conveyance by which the claimants acquired the estate, however the judge did have the benefit of a deed plan of the estate dated 13 July 1939 which is broadly consistent with the Land Registry plan. This shows the eastern boundary of Hillyfield extending for most of its length in a constant northerly direction until it bears slightly to the west as it meets Leather Bottle Hill to the north of the Willows.


The Apps Estate and the Willows have been in separate ownership for a very long time. As Mr Fieldsend observed, the conveyance, if ever there was one, by which one or other of the pieces of land was conveyed away from common ownership is not available. The Willows is unregistered land and the judge had before him conveyances dated 1922, 1927 and 1976, the last of these being the conveyance of the property to the defendants. These conveyances each embody a plan which shows the north-westerly tip of the garden of the Willows extending in a point formed by, on one side, the boundary with Apps Estate which, as I have said, here extends in a north westerly direction as it meets Leather Bottle Hill and, on the other side, Leather Bottle Hill itself.


To the south of the Willows lie three other properties, namely the Old Ale House, Glen Cottage and Blythwood. The OS maps of the area up to 1970 show the general boundary between Hillyfield and the land on which these properties stand extending in a continuous line. This line broadly coincides with the bank on the western side of the Willows and is consistent with the deed plans for the Willows and the estate. A more recent OS map dated 2002 and the Land Registry plans for two of those neighbouring properties now suggest some movement of the general boundary between these properties and the estate. This is a matter to which the judge attached some importance, as I shall explain, and it appears to reflect the erection by the owners of these properties of a fence along the top of the bank.


In 1990 the first defendant entered into negotiations with the Lyster family to purchase from them a further small piece of land about a quarter an acre in size. This, the first defendant thought, would give the defendants a convenient place to locate their...

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