Underwood & Anor v Mayers & Anor

An appellate court should order a retrial where fresh evidence raises a central factual issue that cannot be satisfactorily determined on the existing record and requires cross-examination. It should not retry a separate issue unaffected by that evidence where the trial judge had the benefit of a site inspection and heard the relevant witnesses. Distinct issues may therefore receive different appellate outcomes. Costs should reflect partial success and the relative importance of the issues. If trial costs cannot practicably be apportioned, they may be reserved to the judge conducting the retrial.

The defendants appealed against an order made by Recorder Jack in the Northampton County Court after a five-day trial concerning the boundary between two adjoining properties and a claimed drainage easement. Fresh photographic and witness evidence was admitted on the boundary issue. The appeal raised whether that evidence required a retrial of the boundary dispute and whether it also undermined the separate decision on drainage.

Lord Justice Briggs gave the judgment, with Lord Justices Beatson and Richards agreeing.

1. Boundary dispute. The fresh evidence concerned whether an elm tree had existed at the point where the boundary reached the road. That issue was central to the trial judge’s acceptance of evidence from Mr Reams and to his inference about the agreement establishing the boundary. The conflicting fresh evidence could not be satisfactorily resolved without cross-examination and fuller testing of the evidence. The other evidence did not make it safe or reliable for the Court of Appeal to determine the boundary itself, particularly the substantial section between the garage and the road. The whole boundary dispute therefore had to be retried. The court deliberately expressed no view on its merits.
2. Drainage dispute. The fresh evidence did not bear directly on the drainage issue. Mr Reams’ evidence on drainage was peripheral, whereas the trial judge’s conclusion rested principally on plans, a site inspection, examination of accessible manholes and relevant witness evidence. The trial judge was better placed to resolve the essentially factual dispute. The criticisms amounted only to disagreement with his assessment of competing evidence and provided no proper basis for interference. The appeal on drainage was dismissed.
3. Costs. The defendants achieved only a retrial on the main issue and lost on drainage. Reflecting their partial success and the relative importance of the boundary dispute, the court ordered payment of 75% of their appeal costs and assessed those costs at £35,000 inclusive of VAT, making £26,250 payable. The first-instance costs order was set aside. Because the trial costs could not practicably be apportioned, they were reserved to the judge conducting the retrial.

• Court of Appeal (Civil Division): in [2014] EWCA Civ 406, ordered a retrial of the boundary dispute, dismissed the appeal concerning the drainage easement, and made revised costs orders.
• Northampton County Court: Recorder Jack’s order of 19 June 2013 followed a trial in which the claimants were substantially successful on the boundary dispute and wholly successful on drainage; the defendants were ordered to pay two-thirds of the claimants’ costs.