Heaney v Kirkby

Permission for a second appeal should be refused unless the proposed appeal raises an important point of principle or practice, or there is another compelling reason for it to be heard.

A dispute involving only the application of settled legal principles to facts, including adverse possession of a verge, will not ordinarily satisfy that test. The evaluative assessment of facts belongs principally to the tribunal that heard the evidence. Appellate intervention requires an error of approach or evaluation. A challenge to the admission of additional evidence likewise requires a real prospect of success or another compelling reason, where the tribunal applied the relevant test and made an evaluative assessment.

This was a renewed oral application for permission to appeal against two decisions of the Upper Tribunal in a neighbours’ dispute concerning alleged adverse possession of a verge.

The First-tier Tribunal had upheld the Kirkbys’ claim on 24 January 2014. The Upper Tribunal refused to admit two further items of evidence on 17 November 2014 and later dismissed the substantive appeal on 10 April 2015. The applications concerned whether the Upper Tribunal had erred in refusing the evidence and in applying the law of adverse possession, and whether the substantive appeal satisfied the second appeal test.

1. Disposition. Both applications for permission to appeal were dismissed.
2. Substantive appeal. The second appeal test required the applicant to show either an important point of principle or practice, or some other compelling reason for the Court of Appeal to hear the appeal. The proposed challenge concerned the application of agreed and settled principles of adverse possession to the facts. It raised no distinct issue requiring consideration of the law of adverse possession of verges and disclosed no obvious injustice.
3. The First-tier Tribunal’s assessment of the significance of the evidence was pre-eminently an evaluative judgment for that tribunal. No error of approach or evaluation was apparent. The Upper Tribunal’s reasoning was not confined to the paragraph criticised by the applicant; it also referred back to its earlier analysis.
4. Additional evidence. The Upper Tribunal had correctly directed itself under the Tribunal Rules, informed by the principles derived from Ladd v Marshall. Its decision on the first two limbs involved an evaluative assessment which it was entitled to make. No error of law or real prospect of success was shown.
5. The evidential application, although a first appeal, did not affect the failure to satisfy the second appeal test for the substantive appeal. Lord Justice Sales agreed with the reasons previously given by Lord Justice Kitchin when permission had been refused on the papers.

1. Court of Appeal (Civil Division). On 18 May 2016, the renewed applications for permission to appeal were dismissed.
2. Upper Tribunal. The Tribunal refused admission of further evidence on 17 November 2014 and dismissed the substantive appeal on 10 April 2015.
3. First-tier Tribunal. On 24 January 2014, the Tribunal upheld the Kirkbys’ claim to title to the verge through adverse possession.