Harrison v Dace

Leave to appeal should be refused where proposed grounds disclose no prospect of success and seek to reopen factual findings, credibility assessments, an order not challenged at trial, fresh evidence, or discretionary damages. A represented party is bound by the forensic position taken by its lawyers. For a prescriptive easement, enjoyment must be open enough to give an ordinary diligent owner a reasonable opportunity to become aware of it. A permanent cable visible over many years may satisfy that requirement. The Court of Appeal distinguished the intermittent and less observable use in Diment v Foot [1974] 1 WLR 1427. It will rarely interfere with a trial judge’s broad-brush assessment of damages.

The defendant sought leave to appeal from Mr Recorder Anthony’s decision in the Hertford County Court on 7 July 1997 after six days of trial in two consolidated property actions. The dispute concerned boundaries, away gardens, a right of way over Back Lane, an electricity cable, adverse possession, trespass and damages. The Recorder rejected the defendant’s account on important factual and credibility issues, found a prescriptive or lost-modern-grant easement for the cable, determined the fence position, and made a net award to the plaintiff. The proposed appeal challenged the width of the right of way, the cable easement, the need for further evidence about trees and the damages assessment. The central questions were whether any ground had a prospect of success and whether the Court of Appeal should revisit findings, evidence or discretion.

Lady Justice Butler-Sloss gave the substantive judgment, with Sir Patrick Russell agreeing. The application for leave to appeal was refused.

1. Back Lane. The defendant accepted that both parties should have access but challenged the width of the route. That issue had not been argued before the Recorder. The minute of order had been seen and signed by the parties’ lawyers, and no evidence had been directed to defining a narrower right. The defendant was bound by the position taken by his lawyers. There was no basis for granting leave to correct the omission on appeal.
2. Cable easement. The Recorder found that the cable had been in place since 1963 or 1965 and had been enjoyed for more than 20 years nec vi, nec clam, nec precario. The Court distinguished Diment v Foot [1974] 1 WLR 1427, where the use was intermittent and the owner was absent for most of the relevant period. The permanent cable was visible, and the owners had a reasonable opportunity to become aware of it. The approach stated in Union Lighterage Co. v London Graving Dock Co. [1902] 2 Ch. was applied. The finding of an easement under the Prescription Act 1832 or by lost modern grant disclosed no prospect of successful appeal.
3. Fence and evidence. The challenge to the fence depended on the location of trees. Expert evidence or an affidavit should have been produced at trial. The Recorder had rejected the defendant’s evidence, and the Court of Appeal would not permit a second attempt to establish the facts. The proposed fresh evidence therefore provided no arguable ground.
4. Damages. The assessment of damages in this boundary and trespass dispute was a broad-brush exercise within the Recorder’s discretion. The Court of Appeal would rarely interfere where the trial judge had heard the evidence, inspected the land and given careful reasons. The apparent disparity between the awards did not justify intervention.

The application was refused with the respondent’s costs up to 9 October 1998, thereafter no order, subject to legal aid taxation of both parties’ costs.

• Court of Appeal (Civil Division) On 13 October 1998, the application for leave to appeal was refused. The respondent received costs up to 9 October 1998, with no order thereafter.
• Hertford County Court Mr Recorder Anthony decided the two consolidated boundary and property actions on 7 July 1997 after a six-day hearing and site visits. The decision included findings on boundaries, easements, adverse possession, trespass and damages.