Hatton & Anor v Connew & Anor

A court has a broad power to control expert evidence under the Civil Procedure Rules 1998, but must exercise it consistently with a fair trial. If a site visit involves material expert explanations, the judge should ensure that questions and answers are accurately recorded and that both parties can address them. Complete dispensation with cross-examination requires an explanation in open court and an opportunity to agree or make submissions, particularly where a party is unrepresented.

An appeal based on procedural irregularity succeeds only if the decision was unjust in all the circumstances. Where unrecorded expert material was central and the appellate court cannot evaluate it, the issue should be remitted unless the result can independently be shown to be right. In a private-boundary dispute, title plans and Ordnance Survey maps generally do not fix the precise boundary; all relevant conveyancing, topographical and use evidence must be assessed.

The claimants owned the Apps Estate in Essex. The defendants owned the neighbouring Willows and a further plot, the Additional Land. A dispute arose over three areas: the Bank Strip between the Willows and a field; the Triangle between the garden and the Additional Land; and the Swathe beyond the Additional Land.

After a three-day trial, HHJ Moloney QC in Chelmsford County Court held that all three areas belonged to the claimants. He also rejected the defendants’ proprietary-estoppel case concerning the Swathe. During a site visit, the judge discussed the competing surveyors’ views but no record was made. He subsequently dispensed with their cross-examination.

The defendants appealed, contending that this procedure was unfair and that the boundary and conveyance findings were wrong. The central questions were whether the expert-evidence procedure rendered the decision unjust, and whether the findings on each disputed area could stand.

1. Appeal allowed in part. Kitchin LJ, with whom Christopher Clarke and Rimer LJJ agreed, allowed the appeal concerning the Bank Strip and the Triangle and remitted those issues for rehearing before a different judge. The appeal concerning the Swathe was dismissed.

2. The court affirmed that a judge has a wide power under the Civil Procedure Rules 1998 to control evidence, including expert evidence. An expert report will ordinarily stand as evidence in chief. At a site visit, material questions to an expert and the answers should generally be made in the other party’s presence and accurately noted. Each party must have a fair opportunity to deal with material arising from the visit.

3. Although cross-examination may be limited, complete dispensation with it is materially different. Before adopting that course, the court should explain it in open court and invite agreement or submissions. It may need to explain its consequences clearly where a party is unrepresented. Here, the judge made no record of discussions with the experts, did not properly explain that cross-examination would be dispensed with, and later permitted reliance on an unrecorded explanation by the claimants’ surveyor. These were serious procedural irregularities.

4. Under the approach in MJ Hayes and others v Transco plc [2003] EWCA Civ 1261, an irregularity justified intervention only if the decision was unjust in all the circumstances. The unrecorded survey evidence was central to the Bank Strip. The court could not evaluate it, so put it aside. Applying the general-boundaries principles in Alan Wibberley Building Ltd v Insley [1999] 1 WLR 894, the remaining maps and plans did not establish the exact private boundary, while long use of the bank favoured the defendants. The court could not be satisfied that the trial judge’s result was right. The Bank Strip therefore had to be reheard.

5. The Triangle issue was closely dependent on the Bank Strip boundary. Although the defendants faced difficulty identifying a conveyance of the Triangle, success on the Bank Strip could strongly indicate success on the Triangle. It too was remitted.

6. The Swathe was self-contained. The conveyance plan was accurately dimensioned, drawn to scale, and depicted a plot of the intended area and shape. The judge was entitled to prefer those features over the contention that an apple tree marked a more distant boundary. The proposed rectification claim also failed because the evidence did not establish a common intention to convey land extending to that tree.

• Court of Appeal (Civil Division) Allowed the appeal in part, remitting the Bank Strip and Triangle disputes for rehearing before a different judge, and dismissed the appeal concerning the Swathe: [2013] EWCA Civ 1560.
• Chelmsford County Court HHJ Moloney QC held that the Bank Strip, Triangle and Swathe belonged to the claimants, and rejected the defendants’ proprietary-estoppel case concerning the Swathe.