Moncrieff v Brugge & Anor

The Court of Appeal does not retry a case by reassessing witness credibility or choosing between competing evidence. Findings based on the trial judge’s assessment of witnesses will not ordinarily be disturbed. Fresh evidence is generally inadmissible where it could, with reasonable diligence, have been available at trial. Where the proposed grounds disclose no realistic prospect of overcoming those limits, permission to appeal should be refused.

The defendants sought permission to appeal against boundary and right-of-way orders made by His Honour Judge Dickinson, sitting as a circuit judge in the Worcester County Court on 4 January 2001.

The dispute concerned the boundary between Eye Manor and Eye Manor Cottage, the effect of an inaccurate conveyance plan, the alleged acquisition of a triangular area by adverse possession, and the extent of the Cottage’s right of way over the Manor drive. The proposed appeal principally challenged the judge’s acceptance of the claimant’s evidence, rejection of opposing evidence, and reliance on matters which the defendants sought to raise or develop on appeal.

1. Application dismissed. Lady Justice Hale held that there was no prospect of the proposed appeal succeeding.
2. The defendants’ principal complaint was that the trial judge had believed the claimant and rejected contrary evidence. The Court of Appeal cannot retry the case on that basis. It is not its function to decide that the trial judge was wrong to believe one witness rather than another. The trial judge had heard the evidence and, in relation to the boundary, had a rational explanation for the apparent documentary confusion.
3. The conveyance plan was expressed for identification purposes and was inaccurate in a material respect. The trial judge was entitled to accept evidence of the boundary intended by the original owner, including the boundary along the back edge of the looseboxes, notwithstanding the plan’s apparent indication of a gap.
4. The same appellate restraint applied to the right-of-way issue. The trial judge had accepted the claimant’s evidence about the historical use of the drive and had viewed the property. The Court of Appeal could not re-evaluate that evidence merely because the defendants advanced a different interpretation of the plan or later disputed the existence of tarmac.
5. The defendants’ allegations concerning the tarmac and the claimant’s evidence raised matters which should have been addressed at trial. Evidence which could, with reasonable diligence, have been made available at trial but was not generally cannot be admitted on appeal. The Court of Appeal therefore refused permission and dismissed the application.

• Court of Appeal (Civil Division): On 5 April 2001, Lady Justice Hale refused permission to appeal and dismissed the defendants’ application.
• Worcester County Court: His Honour Judge Dickinson, sitting as a circuit judge, made the challenged boundary and right-of-way orders on 4 January 2001.