C-Vanci & Ors v Edwards & Ors

Permission to appeal requires a real prospect of success. An application to adduce fresh evidence on appeal will ordinarily fail unless the evidence could not, with reasonable diligence, have been obtained for trial and would probably have an important influence on the result. Evidence addressing only a minor issue, and not the decisive question, will not satisfy that test. A short delay in appealing may justify an extension of time where there are cogent grounds for permission, but cannot overcome the absence of a real prospect of success.

The claimants disputed ownership of a strip of land adjoining their property. The defendants had the paper title, while the claimants relied on alleged adverse possession by the first claimant’s father.

After the county court rejected the claimants’ evidence and dismissed their case, the claimants sought a rehearing and permission to appeal. They also sought to rely on new evidence from former owners of the defendants’ property concerning fencing. Judge Yelton refused the rehearing application and the associated extension of time. Schiemann LJ refused the renewed applications on paper. The claimants sought an oral rehearing in the Court of Appeal.

1. Applications refused. The claimants were refused an extension of time, permission to appeal, permission to adduce the Farrells’ evidence, and permission to appeal against refusal of a rehearing. There was no order for costs.
2. The proposed new evidence did not satisfy the requirements stated in Ladd v Marshall. The claimants had not shown that it could not have been obtained for trial with proper diligence. In any event, it was unlikely to have an important influence on the outcome.
3. The evidence concerning fencing addressed only a comparatively small part of the case. The central issue was whether Edward Fry had been in possession of the disputed strip. Even if accepted, Mr Farrell’s evidence merely suggested that the defendants’ predecessors might not have been in possession during an approximately 18-month period. It did not establish who was in possession.
4. The court accepted the trial judge’s assessment that the circumstances in which the Farrells were located were suspicious and unconvincing. The proposed evidence therefore provided no sufficient basis for reopening the factual findings.
5. The delay in serving the notice of appeal was not substantial, and an extension might have been appropriate if there had been cogent grounds for permission. The claimants nevertheless had no real prospect of success. The judge was entitled to reject their evidence and to prefer the evidence of the defendants and independent witnesses.
6. The correspondence from 1961 showed that the school was not in possession of the strip, but it could not properly be read as showing that Edward Fry was in possession. It therefore did not justify disturbing the trial judge’s conclusion.

• Court of Appeal (Civil Division): refused the renewed applications for an extension of time, permission to appeal, permission to adduce further evidence, and permission to appeal against refusal of a rehearing.
• Colchester County Court: Judge Yelton rejected the claimants’ adverse-possession case, refused permission to appeal, and later refused an extension of time and a rehearing application.
• On paper: Schiemann LJ refused the renewed applications before the oral hearing.