Richardson & Anor v MacNab & Anor

An apparent inconsistency in a trial judge’s material findings may disclose an arguable error or misdirection on the evidence. It does not, without more, establish bias or a breach of Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6. Permission to appeal should be confined to genuinely arguable issues. No appeal lies against a collateral finding that produced no order. Fresh evidence must satisfy the Ladd v Marshall principles, including probable influence on the result. Costs decisions fall within a wide discretion. A party who believes that a boundary structure encroaches should ordinarily seek appropriate relief through proceedings rather than destroy the evidence by self-help.

The Richardsons sought renewed permission to appeal from an order made by Mrs Recorder Jennifer Roberts in the Southampton County Court on 28 September 2007. The Macnabs had obtained £910.63 for trespass and the Richardsons had obtained £1 on their counterclaim; the Richardsons were also ordered to pay 50 per cent of the Macnabs’ costs.

The dispute concerned whether a boundary fence had moved on to the Richardsons’ land after works were carried out. The proposed grounds alleged inconsistent findings, failure to determine parts of the counterclaim, unfair treatment of evidence, an excessive costs order and deceit by the Macnabs. The central issue for permission was whether any of those complaints disclosed an arguable ground of appeal.

Permission to appeal was granted only on the limited reformulation of Ground 1; permission was refused on all other grounds, and fresh evidence was not admitted.

1. Rimer LJ held that an inconsistent finding on a material matter might found an appeal as a misdirection on the evidence. It did not constitute bias, or create an objective appearance of bias, merely because the judge had made a mistake. The Article 6 point was treated as abandoned.
2. The 25 April 2002 consent order declared that the south face of the fence correctly delineated the boundary. Against that background, the Recorder’s finding that the fence had moved marginally by settlement arguably conflicted with her conclusion that it remained on the declared boundary. The possible consequence was that the fence had encroached minimally on the Richardsons’ land, which could bear on the claimed justification for its removal. The merits were left for the appeal, and the applicants were given no encouragement regarding their high-handed and destructive self-help.
3. There was no arguable procedural unfairness in the expert evidence process. The Richardsons had been represented by counsel, the experts’ meeting had been directed during the trial, and no objection had been taken then. Their disagreement with the Recorder’s assessment of the evidence was a factual challenge with no real prospect of success.
4. Because the Richardsons had limited their counterclaim to nominal damages and abandoned injunctive and other relief, the Recorder was not required to rule on additional alleged trespasses that could not affect the order. Any misunderstanding should have been raised when the draft judgment was circulated. No appeal lay against the collateral finding about damage to internal fencing because it resulted in no order.
5. The costs order fell within the Recorder’s very wide discretion. The Court of Appeal would not interfere merely because another judge might have made a different order. The proposed fresh evidence could only be admitted under the Ladd v Marshall principles, and it was not shown that it would probably have had an important influence on the result.

The Richardsons were directed to file amended grounds limited to Ground 1. The constitution might include a High Court judge, and half a day was estimated for the appeal.

• Court of Appeal (Civil Division): On the renewed application, permission was granted only on the limited reformulation of Ground 1; all other grounds and the application to adduce fresh evidence were refused.
• Southampton County Court: Mrs Recorder Jennifer Roberts gave judgment for the Macnabs for £910.63, judgment for the Richardsons on the counterclaim for £1, and ordered the Richardsons to pay 50 per cent of the Macnabs’ costs.