Gibson & Anor v Davies & Anor

Permission to appeal will be granted only where the proposed appeal discloses an arguable error of law. This may include the absence of a fair trial or a failure to give a fair hearing, but does not permit a general reargument of factual findings or credibility assessments made by the trial judge. Serious allegations about incompetent legal representation require substantial substantiation. A trial judge has discretion whether to conduct a site inspection. The Court of Appeal will rarely entertain a point, including a fresh evidential challenge, which could have been raised at trial.

Mr and Mrs Gibson sought permission to appeal against a judgment of His Honour Judge Hickinbottom, approved on 17 April 2002, which dismissed a claim concerning a right of way and parking outside a stable for the benefit of Ty Melyn. The claim was advanced by prescription under section 2 of the Prescription Act 1832, by way of modern lost grant.

The applicants alleged inadequate legal representation, improper conduct by the defendants’ legal representatives, refusal of a site inspection, improper assessment of witness evidence, exclusion of evidence from wheelchair users, and reliance on an allegedly inauthentic photograph. The central issue was whether any of those matters disclosed an arguable error of law warranting permission to appeal.

1. Disposition. Permission to appeal was refused. No order for costs was made.
2. The Court of Appeal emphasised that the trial judge had heard the witnesses and was best placed to assess their credibility and reliability. Appellate intervention, and therefore permission to appeal, required an arguable error of law. That could include the absence of a fair trial or failure to give a fair hearing, but no such error appeared on the record.
3. Allegations that the claimants’ legal team had conducted the case incompetently, or that the defendants’ representatives had acted improperly, were serious allegations requiring substantial substantiation. The record disclosed no such basis. The extent of the defendants’ cross-examination was a matter for their counsel, while it was for the claimants’ representatives to ensure that their case was put before the judge. The appellate court could not intervene on the basis of unsubstantiated criticism of lawyers.
4. The judge was entitled, in his discretion, to refuse a site inspection. There was no obligation to inspect the site. The proposed evidence from wheelchair users had no apparent bearing on the issues concerning the land between the adjoining owners.
5. The challenge to the photograph did not establish an arguable error. The material relied on had not been before the trial judge, and the point could have been ventilated at trial. It was therefore rare for the appellate court to permit the point to be raised for the first time on appeal. Even on its merits, the material did not undermine the relevant witness’s evidence.

1. Court of Appeal (Civil Division): On 16 July 2002, Lord Justice Pill refused permission to appeal and made no order for costs.
2. Lower court: His Honour Judge Hickinbottom dismissed the claim in an approved judgment dated 17 April 2002.