Valentine v Allen & Ors

The Court of Appeal will not grant permission to appeal where the proposed grounds disclose no real prospect of success. A trial judge may construe transfer plans in their factual and documentary context, including subsequent conduct where relevant, and is entitled to attach that evidence such weight as the circumstances require. An award of damages in lieu of an injunction for continuing trespass is compensatory, not restitutionary, and may reflect the value of rights lost. An appellate court will not interfere with a valuation exercise where the judge directed himself correctly, considered relevant matters and evaluated limited evidence. Costs arguments not advanced below generally cannot be raised for the first time on appeal.

The applicant challenged orders made by His Honour Judge Inglis in the Lincoln County Court concerning the construction of plans attached to 1991 transfers, ownership of land occupied by a garage, rights of access, damages in lieu of an injunction and costs.

Permission to appeal had already been granted on some grounds. This was a renewed application for permission on grounds concerning construction, damages and costs. The central issues were whether the applicant had been fairly warned of the construction case, whether the valuation of damages was legally or evidentially flawed, and whether the costs orders disclosed an appealable error.

1. Application dismissed. The applicant had no real prospect of success on the outstanding grounds.
2. The judge was entitled to construe the 1991 transfer plans against the background of the development, the scale and thickness of the plan markings, and the intended garage site. Subsequent conduct was relevant, but the judge was entitled to give it less weight than the original transfer documents. His inference concerning the later Land Registry plan was open to him and was not mere speculation.
3. The applicant was fairly warned that interpretation of the plans would be argued. The issue had been raised in the skeleton argument and had also been identified by the judge during closing submissions. No procedural unfairness arose from its determination.
4. On damages, the judge correctly directed himself in accordance with Jaggard v Sawyer [1995] 1 WLR 269. Damages in lieu of an injunction were compensatory and could reflect the value of the rights released. The judge considered the available evidence, including the absence of valuation evidence and the earlier easement negotiations, and there was no real prospect of successfully challenging his valuation of £3,500.
5. The costs challenge also disclosed no real prospect of success. The judge was entitled to take account of relative success, the parties’ conduct and the offer of mediation. A complaint that costs should have been restricted because a case was raised late had not been made below and could not properly be advanced on appeal.

Lord Justice Laws agreed with Lady Justice Arden. The application was dismissed with no order for costs.

• Court of Appeal (Civil Division): renewed application for permission to appeal dismissed.
• Lincoln County Court: His Honour Judge Inglis made orders dated 8 May 2002 concerning land boundaries, rights of access, damages and costs.