Adcock v Davis

An appellate court should not interfere with a trial judge’s findings of fact merely because individual pieces of evidence can be criticised. Where the judge has seen and heard the witnesses, carefully considered the evidence, and given adequate reasons for preferring one account, an appeal requires a clear demonstration that the conclusion was plainly wrong. A proposed appeal lacking a real prospect of success should not proceed. An application to introduce further evidence may also be refused where the relevant issue could and should have been investigated at trial, particularly when the proposed evidence is speculative and a more direct witness was available.

The claimant sought a declaration that he was entitled to be registered as proprietor of a strip of land included in the defendant’s title. The strip had been used as part of the claimant’s garden since about 1984. The High Court deputy judge accepted evidence that the use was with the paper owner’s consent, rather than by adverse possession, and preferred the defendant’s evidence on the historical events.

The claimant applied for permission to appeal, challenging those factual findings and seeking further evidence concerning the mental capacity of a deceased witness when his statement was taken. The central issues were whether the deputy judge was plainly wrong and whether the proposed further evidence should be admitted at the appellate stage.

1. Application refused. Jacob LJ held that the proposed appeal had no merit. The deputy judge had carefully assessed conflicting evidence about the use of the strip, identified difficulties in recalling events many years earlier, and gave seven reasons for preferring the evidence supporting the defendant’s case.
2. The appellate court’s task was not to reconsider the evidence inch by inch and substitute its own view merely because particular items could be challenged. The trial judge had heard the live witnesses and had properly performed the fact-finding function. The proposed appeal did not demonstrate that the judge was plainly wrong.
3. Jacob LJ also accepted Mummery LJ’s paper assessment that the deputy judge was entitled to find that possession had been with the paper owner’s consent. The oral submissions added nothing material to the grounds already considered.
4. The application for further evidence was made too late. The suggested issue concerning the deceased witness’s mental ability should have been raised at trial. The appropriate evidence would have come from the person who took the statement, rather than from doctors considering the medical condition after the event. The death certificate and proposed medical records did not justify reopening the matter.
5. May LJ agreed. He considered the deputy judge’s reasons persuasive and adequate, rejected the submission that the judge was plainly wrong, and regarded the proposed medical evidence as unpersuasive speculation raised after the event.

Order: application refused.

• Court of Appeal (Civil Division): refused the claimant’s application for permission to appeal.
• High Court, Chancery Division: Mr Andrew Sutcliffe QC, sitting as a deputy judge, found that possession of the strip had been with the paper owner’s consent and preferred the defendant’s evidence.