Thompson & Anor v Collins & Anor

On an appeal against factual findings, the Court of Appeal should interfere with the trial judge’s assessment of evidence only where the judge was plainly wrong. This restraint is especially important where the judge heard and saw witnesses and visited the site. In construing an ambiguous conveyance and inaccurate plans, the court may consider extraneous evidence to ascertain the parties’ agreement. The exercise remains predominantly objective and may take account of the physical features which a reasonable person would regard as marking the boundary. Apparent bias is assessed by asking whether a fair-minded and informed observer would conclude that there was a real possibility of bias. A private communication is not, by itself, sufficient. Its content and context must be examined.

The appellants challenged declarations made by Mr Recorder Gibson in the Great Grimsby County Court concerning the boundary between Wickster House and Waterdale House. The conveyance and attached plans were accepted to be inadequate and materially inaccurate. After hearing evidence and visiting the site, the Recorder held that the disputed boundary followed the laurel hedge and bay tree, which were jointly owned.

The appellants argued that the evidence established a straight boundary and that the Recorder had wrongly relied on a subjective concern about privacy. They also alleged apparent bias because the respondents’ solicitor had telephoned the Recorder during the unresolved process of drawing the boundary on a plan. The central issues were whether the factual findings and approach to construction could be disturbed on appeal, and whether the call created a real possibility of bias.

1. Appeal dismissed. The Recorder’s findings were findings of fact reached after hearing the witnesses and visiting the site. The appeal concerned the weight of the evidence, rather than an absence of evidence. The Court of Appeal would not interfere unless the judge had gone plainly wrong. The Recorder was entitled to find that the evidence of Mr Craig Turner was unsatisfactory and that the laurel hedge formed part of the boundary.
2. Where a conveyance and plans cannot accurately identify a boundary, the court may examine extraneous evidence, including evidence from a contracting party, the site and the physical features of the land. The essential reasoning was objective. A reasonable person considering the conveyance, the topography in 1990 and the attempts to mark the boundary could regard the substantial hedge as the natural boundary. The Recorder’s reference to Mrs Bacon’s concern for privacy was, at most, an immaterial error because the conclusion independently rested on the physical features and the evidence as a whole.
3. The apparent-bias ground failed. Applying the established test in Porter v McGill [2001] UKHL 67, the question was whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. The assessment required consideration of what was said during the call, not merely the fact that a call had occurred.
4. The call was unfortunate and the proper course would have been written correspondence placed before the judge. However, the conversation was short, entirely pertinent to case management, faithfully relayed, and disclosed no impropriety. The fair-minded and informed observer would adopt a balanced approach, as stated in Lawal v Northern Spirit Ltd [2003] UKHL 35 and Johnson v Johnson [2000] CLR 488. The allegation of apparent bias was therefore unsustainable. Lord Justice Keene and Lord Justice Lawrence Collins agreed. Order: appeal dismissed.

• Court of Appeal (Civil Division): Appeal from the Great Grimsby County Court dismissed.
• Great Grimsby County Court: Mr Recorder Gibson declared the boundary in part by reference to the brick wall and closely boarded fence, and in the disputed section by reference to the bay tree and laurel hedge. He ordered rectification of the title deeds and awarded the defendants their costs.