McNeil & Anor v Rowse

An appellate court should not interfere with a trial judge’s assessment of oral evidence or findings on a pure issue of fact where no arguable basis for intervention is shown. A complaint that insufficient weight was given to particular evidence ordinarily challenges the trial judge’s evaluative fact-finding. Permission to appeal should be refused where the proposed grounds disclose no arguable error or procedural unfairness capable of affecting the decision.

The claimants applied for permission to appeal against an order made by His Honour Judge Bishop in the Staines County Court on 27 March 2001. The underlying action concerned the position of a boundary fence between neighbouring properties. After viewing the land, hearing 11 witnesses and considering documentary evidence, the judge determined the boundary by reference to a concrete post. Permission to appeal was refused below on grounds including that the decision involved findings of fact, disclosed no point of law or public importance, and raised proportionality concerns. The central question before the Court of Appeal was whether the claimants had any arguable ground for challenging the factual findings or the fairness of the trial.

Lord Justice Jonathan Parker, giving the judgment of the court, dismissed the application for permission to appeal.

1. The dispute about the position of the original fence raised a pure issue of fact. The trial judge had viewed the land, heard the oral evidence and considered the documentary material. It was for him to assess the reliability of the witnesses and determine where the fence had stood.
2. The Court of Appeal could not discern any basis for interfering with that assessment or with the resulting finding as to the boundary. The claimants’ contention that greater weight should have been given to a surveyor’s report amounted to a disagreement with the trial judge’s evaluation of the evidence.
3. The allegation that the trial had been conducted unfairly, including the complaint concerning the treatment of Mr Khalid’s evidence, disclosed no arguable ground. The judge had referred to that evidence and was entitled to consider its reliability in the circumstances.
4. There was no substance in the claimants’ belief that the case should have been dealt with under the small claims procedure. The judge had explained that the proceedings were not within that procedure and concerned a claim for a boundary declaration, an injunction and damages.
5. Permission was therefore refused for essentially the reasons given below. The application was dismissed.

• Court of Appeal (Civil Division): In [2001] EWCA Civ 1123, Lord Justice Jonathan Parker refused permission to appeal and dismissed the application.
• Staines County Court: His Honour Judge Bishop determined the boundary dispute after trial and made an order on 27 March 2001. He refused permission to appeal.