“I have been shown during Mr Burton’s closing submissions aerial photographs from Google Earth dated in 1999. I do not find myself able to gain anything but the most limited assistance from them. I can see the electricity sub-station in situ close to point A in Roebuck Road and what appears to be a pile of spoil on the claimants’ land alongside it.” (6) The Recorder was unable to gain a great deal of assistance from a colour photograph dated8 June 2000 (at page 202) in either print or electronic format which showed the disputed land before the erection of the 2004 fence: see paragraph 63. The Recorder said this: “In preparation for the purchase of the claimants’ land by the first two claimants, Mr Simon Levy surveyed the site. [The] photograph [which is now at page 202 of the appeal bundle] was taken. Mr Burton describes this photograph in his submissions as a “smoking gun” - it shows the original fence in place. I was unable to gain a great deal of assistance from the print of this photograph. I could not make any real deductions from it in its printed form. I was sent an electronic version of this which is much clearer when displayed and magnified on a high definition screen which is able to lighten and darken the image. Although I will find what I can in relation to it, I cannot accept its characterisation by Mr Burton. In short, what I can deduce is as follows: 63.1 The bicycle shed on the defendant’s land has disappeared and there is standing a very small flimsy brick building which would not surprise me if it held industrial size dustbins. I cannot make a finding as to its purpose as that would be speculation but my description as to its size and appearance is useful to me. 63.2 A fence on the same type of concrete fence posts is clearly visible. However, the fence is clearly in a state of disrepair. The wire mesh is visible and is torn from the top to about half way down and is literally hanging. Finally, some of the concrete fencing posts are dark in colour and look weathered whereas others are light in colour as if they had been replaced. This gives me confidence and I find that the line of the fence which I have described in 1953 was unchanged, at least at this point. Importantly, it does not yet tell me anything firm as to the crucial question of the position of the fence in comparison to any other feature such as the retaining wall.”
“Having initially been extremely cautious about granting permission to appeal, I have been persuaded that I should do so in the present case. I do not think that it is appropriate for me to give a detailed judgment as to what I have seen in the photographs because, of course, there will be an appeal on that issue. However, comparing what Mr Burton described as his “smoking gun” photograph (on page 202 of the bundle), which shows the position of the fence in 2000, i.e. prior to 2004, with the current position of the fence (which is shown on page 223), it does appear to me that there is at least a realistic prospect of the appellants demonstrating that the line of the fence has been moved. On page 202, in 2000, it at least appears that there was quite a significant distance between the retaining wall and the fence. On the other hand, the position of the 2014 fence appears to abut very close to the retaining wall, much closer than was shown in 2000.”
“The judge does not really deal with this point in his judgment and whilst I am very conscious that an appeal court will pay very considerable respect to the judgment of the judge, I am satisfied on the basis of what I have been shown, plus additional photographs which it is unnecessary to mention, that there is a realistic prospect of success on the appeal. That does not mean the appeal will succeed. It means that permission should be granted. So, for various reasons, I have decided to grant permission to appeal.”
“(1) The construction process starts with the conveyance which contains the parcels clause describing the relevant land, in this case the conveyance to the defendant being first in time. (2) An attached plan stated to be ‘for the purposes of identification’ does not define precise or exact boundaries. An attached plan based upon the Ordnance Survey, though usually very accurate, will not fix precise private boundaries nor will it always show every physical feature of the land. (3) Precise boundaries must be established by other evidence. That includes inferences from evidence of relevant physical features of the land existing and known at the time of the conveyance. (4) In principle there is no reason for preferring a line drawn on a plan based on the Ordnance Survey as evidence of the boundary to other relevant evidence that may lead the court to reject the plan as evidence of the boundary.”
“...I would emphasise that an appeal on fact is not concerned with reviewing the exercise of a judge’s discretion. It is not because there is room for two views of the facts that the Court of Appeal is less inclined to interfere with the judge’s conclusion as compared, for example, to his or her views on points of law. The finding of fact is a finding that, on the balance of probability, something actually existed or an event actually occurred. The deference that a court pays to a judge’s findings of fact stems from the advantage that the judge may have had in the trial process, of seeing the witnesses, having a greater feel for the atmosphere of the trial and matters such as that. We have interfered in this case because we were in as good a position as the judge in relation to the photographs on which he founded his judgment. But what I urge practitioners to do is not to confuse the approach to reviewing an exercise of discretion with the approach to reviewing a judge’s findings of fact...”
“65. ...The prevailing problem, as I see it, was discarding the Transfer plan completely because of its lack of clarity and construing the Transfer by looking at the physical features on the ground as at the date of the Transfer without the plan in his hand. A reasonable layman without the plan no doubt would have concluded as the Recorder did that the low wall was the boundary but he would have been engaged in the exercise of construction without one of the most important pieces of evidence. 66. I differ from the Recorder reluctantly as he went about his task with conspicuous care and he had the great advantage of being able to visit the site itself. I have not found the issues here at all easy to determine as the sight of an obvious boundary structure, such as the low wall, in place at the time of the Transfer, naturally gives rise to the assumption that that is indeed the boundary. However ... that natural assumption is not the end of the matter and I would allow the appeal for the reasons I have given, substituting a determination that the boundary follows a line as set out in paragraphs 62 and 63 above.”
“...As the words ‘reluctant’ and ‘generally’ imply, the appellate court also has a broader role which entitles it to intervene if, notwithstanding the absence of either a mistaken inclusion or exclusion of factors or a perverse conclusion, the decision at which the judge has arrived is plainly wrong. To reserve more to this court would be to render the exercise of judgment at first or second instance merely provisional; but to reserve less would be to abdicate part of the appellate function. For these reasons I respectfully adopt what is said at the end of paragraph 81 of Sir Anthony Clarke MR’s judgment.”
“If the judge reached a conclusion that was plainly wrong, it would be the duty of the appeal court to interfere. I feel sure that in referring to the possibility of [sic] a judge might come to a conclusion that was impermissible or not open to him Thomas LJ intended to include the case where the judge is plainly wrong. In any event, I am firmly of the view that it should be included.”
“Although I agree that the exercise upon which a judge of first instance embarks in a case of this kind is not, strictly speaking, the exercise of a discretion, the role of an appellate court is very similar in the two classes of case. This can be seen from Thomas LJ’s conclusion that the appellant must persuade the court that the judge was wrong and will only succeed in doing so if he shows that the judge ‘has taken into account immaterial factors, omitted to take account of material factors, erred in principle or come to a conclusion that was impermissible or not open to him’ or is plainly wrong. The line between the approach of an appellate court reviewing the exercise of a discretion and its role reviewing a decision of this kind is a [sic] very narrow. This is because the decision whether a second action is an abuse of court involves the court balancing a series of different factors before reaching its conclusion.”
“Given that the Extra Division correctly identified that an appellate court can interfere where it is satisfied that the trial judge has gone ‘plainly wrong’, and considered that that criterion was met in the present case, there may be some value in considering the meaning of that phrase. There is a risk that it may be misunderstood. The adverb ‘plainly’ does not refer to the degree of confidence felt by the appellate court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.”
“It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.”
“Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them... These are all decisions either of the House of Lords or of the Supreme Court. The reasons for this approach are many. They include i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed. ii) The trial is not a dress rehearsal. It is the first and last night of the show. iii) Duplication of the trial judge’s role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case. iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping. v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence). vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done.”
“It is also important to have in mind the role of a judgment given after trial. The primary function of a first instance judge is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. He should give his reasons in sufficient detail to show the parties and, if need be, the Court of Appeal the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. His function is to reach conclusions and give reasons to support his view, not to spell out every matter as if summing up to a jury. Nor need he deal at any length with matters that are not disputed. It is sufficient if what he says shows the basis on which he has acted. These are not controversial observations...”
“Importantly … does not yet tell me anything firm as to the crucial question of the position of the fence in comparison to any other feature such as the retaining wall.”
“Where does the boundary lie between the claimants’ land and the defendant’s land? The parties appear to have been very close to one another in principle albeit reached by somewhat different reasoning. Each party appears to accept that the boundary lay on the claimants’ side to the face of the original fence. The difference between them is where was the line of the original fence at the material date, that is20 September 1983 , which is the date of the relevant conveyance? I regard this factual question as part of the process of the interpretation of the 1983 conveyance and I am conscious of the need to collate and interpret historical information as to what was then found to be on site.”