Halliwell v Noble

An appellate court will be slow to interfere with a trial judge’s findings of fact, particularly where the judge reconstructed physical features and documentary evidence relating to a boundary many years earlier. A complaint of procedural unfairness is weakened where the appellant was represented and any objection could have been raised during the trial. Permission to appeal should be refused where the proposed grounds have no real prospect of success.

Annis Halliwell, the defendant in a boundary dispute, applied for permission to appeal an order made by Mr Recorder Atherton in Tameside County Court on 16 July 2002. The order declared the boundary between her land and Rita Noble’s land, awarded Noble the costs of her claim and Halliwell’s Part 20 claim, and dismissed Halliwell’s Part 20 claim. Halliwell argued that the trial was unfair, that her evidence had not been properly considered, and that the factual findings were unsupported by the evidence. She sought a full survey, effectively requiring a retrial, and challenged the costs order. The central issue was whether the proposed appeal disclosed a real prospect of success.

The Court of Appeal dismissed the application for permission to appeal.

1. Interpretation of the boundary documents. The county court judge had to decipher unclear plans annexed to title deeds. He was entitled to consider extrinsic evidence, including a statutory declaration, the plan annexed to it, oral evidence and the physical features of the site. His site visit and review of the evidential material provided no basis for challenging his conclusion as to the boundary.
2. Appellate review of factual findings. A party seeking permission to appeal on findings of fact faces a difficult task. That difficulty is increased where the trial judge had to investigate physical features as they existed approximately 20 years earlier. The appellant had identified disagreements with the judge’s assessment of the evidence, but no arguable basis for appellate intervention.
3. Procedural fairness. Halliwell had been represented by counsel throughout the trial. If any procedural unfairness had arisen, counsel would have been expected to raise it with the trial judge at the time. The fact that the judge preferred Noble’s evidence and rejected Halliwell’s case did not make the trial unfair.
4. The proposed appeal had no real prospect of success. There were no grounds for reopening or extending the dispute. The county court’s boundary declaration, dismissal of the Part 20 claim and costs orders therefore stood.

• Court of Appeal (Civil Division): On 11 June 2003, dismissed Halliwell’s application for permission to appeal.
• Tameside County Court: On 16 July 2002, declared the boundary, dismissed Halliwell’s Part 20 claim and ordered her to pay Noble’s costs.