Lewis & Ors v Cottrill

An appellate court should not rehear factual disputes or reassess witness credibility. It should interfere with trial findings only where the judge was plainly wrong, recognising the trial judge’s advantage in hearing oral evidence. In an adverse-possession dispute, the central question is exclusive possession. The landowner’s knowledge that the land belonged to another, the position or ownership of a fence, and the original purpose of the fence do not themselves determine possession. Proposed appeal evidence must be relevant to the issues decided at trial. Matters outside the order under challenge, including case-management decisions outside the court’s jurisdiction, cannot found permission to appeal.

The claimants owned neighbouring land at 29a Hughes Close, while Mr Cottrill owned 37 Hughes Close. Proceedings concerned the location of the boundary and the claimants’ alleged adverse possession of a strip of land enclosed by a fence. The county court found that the claimants had enjoyed exclusive possession for the relevant limitation period, and made a boundary declaration, injunctions, an award of £410 damages and a costs order.

Mr Cottrill applied out of time for permission to appeal. He also sought a stay, admission of further evidence and relief concerning alleged procedural unfairness, the handling of his evidence, case management and his limited gardening activities. The central question was whether any proposed ground disclosed a realistic basis for appellate interference.

1. Application refused. The Court of Appeal refused permission to appeal, refused the extension of time and refused a stay of execution.
2. An appeal is not a rehearing. An appellate court should not interfere with findings of fact or assessments of credibility unless there are plain reasons for concluding that the trial judge was wrong. The trial judge had the advantage of hearing the witnesses give evidence, and the appellate court could not simply substitute its own view of their reliability.
3. For the adverse-possession issue, the material question was who had exclusive possession of the disputed section of land. It was immaterial for that purpose that the claimants knew the land was not theirs, that their fence stood on Mr Cottrill’s land, or that the original fence belonged to him. The decisive issue was possession, and the Recorder had rejected the evidence relied on to show that possession had been retaken.
4. The proposed CCTV evidence could not provide a basis for permission because it related to events outside the period relevant to the issues at trial. The complaint concerning a separate application intended to be dealt with at trial also disclosed no appealable ground, particularly since Mr Cottrill had not sought an adjournment so that it could be determined.
5. The remaining allegations concerning judicial conduct, case management and the treatment of gardening evidence identified no specific error capable of undermining the Recorder’s conclusions. The finding about weedkiller was based on the evidence itself, not on any improper disregard of Mr Cottrill’s disability.

• Court of Appeal (Civil Division), [2004] EWCA Civ 1245. Lady Justice Arden refused permission to appeal, an extension of time and a stay of execution.
• Birmingham County Court. Recorder Lochrane determined the boundary, accepted the claimants’ adverse-possession case, granted associated injunctions, awarded £410 damages and ordered Mr Cottrill to pay the claimants’ costs.