Pritchard v Jones

In a factual boundary dispute, an appellate court should not substitute its view for a trial judge’s assessment where the judge inspected the site, heard witnesses and considered the documentary and photographic evidence. An appeal based on reinterpreting the same material has little prospect of success where no error of law is alleged. Ambiguous aerial photographs and an attractive alternative measurement do not invalidate a finding that was open to the trial judge. A unilateral memorandum, unsupported by the other party’s knowledge or agreement, cannot prevent the judge from determining the boundary on the evidence. Permission to appeal should be granted only where the appeal has a real prospect of success or another compelling reason. The appeal was dismissed with costs.

Ann Maureen Pritchard appealed from District Judge Hoffman’s dismissal of her boundary claim in the Welshpool and Newton County Court. The dispute concerned the position of the boundary between the claimant’s plot and gardens belonging to the defendant’s houses. The claimant relied on a line measured from a concrete wall, while the defendant relied on the former position of a hedge.

The district judge heard witnesses, inspected the site and considered maps, plans, documents and aerial photographs. He accepted the defendant’s account of the hedge’s position. Before the Court of Appeal, the claimant accepted that the only issue was whether that factual finding was open to the district judge.

The appeal was dismissed unanimously, with costs subject to detailed assessment by a costs judge in Welshpool.

1. Lord Justice Schiemann held that the appeal had no realistic basis for success. The claimant alleged no error of law, the appellate court had no material that was not before the district judge, and the district judge had heard the witnesses and inspected the site twice. In those circumstances, the appellate court should not substitute its assessment for a factual conclusion that was open to the trial judge.
2. The district judge was entitled to identify the boundary by determining where the hedge had stood. The title documents were of limited assistance. The hedge had been the only boundary feature shown to have remained constant, and the ordnance survey plans supported the defendant’s account.
3. The aerial photographs did not make the finding impermissible. They were difficult to interpret without expert assistance and were not inconsistent with the defendant’s case. Lord Justice Waller agreed, emphasising that the 1981 photograph was only one item of evidence and did not clearly show a hedge.
4. A memorandum made unilaterally by one party, without the other party’s knowledge or agreement, could not inhibit the judge from making a factual finding on the evidence. The fact that the ten-yard measurement had originally been paced out also did not establish mathematical accuracy. The suggested one-third measurement from the concrete wall was attractive but did not disable the judge from accepting the defendant’s evidence.
5. The court further stated that permission to appeal under CPR Part 52.3(6) should be granted only where the appeal had a real prospect of success or there was another compelling reason. Neither condition existed here, and the permission should not have been granted.

• Court of Appeal (Civil Division): In [2001] EWCA Civ 1536, dismissed the claimant’s appeal with costs.
• Welshpool and Newton County Court: District Judge Hoffman dismissed the boundary claim after hearing evidence and inspecting the site, and granted permission to appeal without giving reasons.