Pollock v Oldfield & Anor

On an appeal concerning the position of a property boundary, an appellate court should exercise caution before differing from a trial judge’s finding of primary fact. The degree of caution is less where the finding does not depend on witness credibility and the appellate court can assess the documentary and expert evidence substantially as well as the trial court.

A conveyance and its plan are interpreted by asking what a reasonable person with the document and admissible contextual information, including contemporaneous topographical features, would understand them to mean. Where a continuous stock-proof fence corresponds to the line shown on the conveyance plan, and the bank is present only along part of the boundary, the fence may be the feature marking the legal boundary.

The claimant appealed from a decision of HHJ Parfitt in the County Court concerning the boundary between Kaduna, owned by Ms Pollock, and Rivendell, owned by the respondents.

The first-instance judge found that the relevant conveyance showed the bank as the boundary, that there was no stock-proof fence running along the full boundary in 1928, and dismissed the claim. He nevertheless found that hedge-cutting works had occurred in April 2014 and assessed damages at £22,500 if the hedge formed part of Kaduna.

The appeal was limited to the boundary issue. The central questions were whether the evidence established a full-length stock-proof fence in 1928 and, if so, whether that fence marked the boundary under the 1928 conveyance.

1. Appeal allowed. The court concluded that the evidence made it more probable than not that a stock-proof fence ran along the full length of the bank and the gap in 1928.
2. An appellate court should be cautious before differing from a trial judge’s finding of primary fact. The caution need not be as strong where the finding does not depend on assessing witness credibility or evaluating a legal standard, and where the trial judge’s advantage from hearing expert evidence is limited.
3. The 1936 letter was neutral. The 1940 and 1946 photographs were also neutral as to whether the boundary contained a long fence or only a short fence in the gap. The trial judge had placed excessive weight on the possibility that the bank and hedge could themselves have formed a stock-proof barrier. The evidence instead supported the conclusion that the bank alone was insufficient.
4. The 1936 conveyance, the physical characteristics of the bank, the use of stock-proof fencing, and more recent farming practice provided support for a full-length fence. The evidence concerning later farming practice was remote and modest, but it was not irrelevant.
5. The 1928 conveyance was to be interpreted from the perspective of a reasonable person with the document and admissible contextual information, including the topographical features existing at the date of the conveyance. A reasonable reader standing in Field 170 would have seen the stock-proof fence as the only topographical feature corresponding to the continuous line on the plan. The fence therefore marked the legal boundary. The pasture-field description in the auction particulars reinforced that conclusion.
6. The boundary consequently lay to the west of the bank. Judgment was entered for Ms Pollock for damages of £22,500, with consequential matters to be addressed if not agreed.

• County Court at Central London: HHJ Parfitt dismissed the claim on the boundary issue after a trial between 12 December 2016 and 26 January 2017. He assessed damages at £22,500 if the hedge formed part of Kaduna.
• High Court (Chancery Division): The appeal was allowed. The boundary was held to lie west of the bank, and judgment was entered for £22,500.