Konstantinidis v Townsend

Permission to appeal may be granted where the proposed appeal raises arguable issues concerning the interpretation of a conveyance, the assessment of physical evidence, or the application of the burden of proof, even though the first-instance findings make success unlikely. Granting permission does not determine the merits. The court may also warn of a possible application for indemnity costs.

The defendant sought permission to appeal from a decision of His Honour Judge Barham in the Norwich County Court concerning the location of a boundary and the erection of a wall. The claimant did not appear or participate in the application.

The first-instance judge had found that the wall was erected to make matters difficult for the claimant, rather than because of a genuine understanding of the boundary. The central issues were whether the judge had relied on a subjective impression instead of properly interpreting the conveyance with evidence concerning the position of the posts, and whether the burden of proof had been misapplied.

Permission to appeal was granted.

1. The first-instance judge had made clear findings materially adverse to the defendant. Those findings indicated that the wall was not erected because of a genuine belief about the boundary, but to make matters difficult for the claimant.
2. Nevertheless, the proposed appeal raised arguable issues. It was arguable that the judge had approached the boundary question through the subjective impression of Mr Furze, rather than by properly interpreting the conveyance together with evidence concerning the position of the posts.
3. It was also arguable that the judge had misapplied the burden of proof.
4. The Court of Appeal considered that the appeal was likely to fail in light of the factual findings. Permission was nevertheless granted, with a warning that the defendant might face an application for indemnity costs.

The order concerned permission to appeal only and did not determine the substantive boundary dispute.

• Court of Appeal (Civil Division) — Permission to appeal from the decision of His Honour Judge Barham in the Norwich County Court was granted. No citation for the lower decision was stated.