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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Weymont & Anor v Place [2015] EWCA Civ 289 (30 March 2015) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2015/289.html Cite as: [2015] EWCA Civ 289 |
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ON APPEAL FROM THE PRESTON COUNTY COURT
District Judge Rouine
2014-Pl-10329
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE PATTEN
and
LORD JUSTICE CHRISTOPHER CLARKE
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(1) GARTH GEOFFREY WEYMONT (2) JUDITH ANNE WEYMONT |
Claimants/ Respondents |
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- and - |
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JAMES ROBERT PLACE |
Defendant/ Appellant |
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Mr Gary Reynolds (instructed by Sedgwick Legal) for the Respondents
Hearing date : 18 March 2015
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Crown Copyright ©
Lord Justice Patten :
"The rationale for deference to the original finder of fact is not limited to the superiority of the trial judge's position to make determinations of credibility. The trial judge's major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge's efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources. In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one: requiring them to persuade three more judges at the appellate level is requiring too much. As the court has stated in a different context, the trial on the merits should be 'the "main event" … rather than a "tryout on the road." … For these reasons, review of factual findings under the clearly erroneous standard - with its deference to the trier of fact - is the rule, not the exception."
"Ownership may be proved by proof of possession, and that can be shewn only by acts of enjoyment of the land itself; but it is impossible, in the nature of things, to confine the evidence to the very precise spot on which the alleged trespass may have been committed : evidence may be given of acts done on other parts, provided there is such a common character of locality between those parts and the spot in question as would raise a reasonable inference in the minds of the jury, that the place in dispute belonged to the plaintiff if the other parts did."
"10. The conclusion to which I am drawn on this point, in this case, is that as I have not had the opportunity to assess the credibility of these four witnesses for myself, and in person, nor to see them being tested by cross-examination, I am not persuaded that any weight of any significance should be placed on the evidence of any of them in the context of my decision making process, in relation to these proceedings. I will return, in due course, to the bearing that the evidence of the witnesses from both sides, from whom I have heard in person, has had in my decision making process in this case."
"17. I turn now to consider the evidence from the parties and their witnesses on the issue of the claim for adverse possession. In relation to the evidence presented to me, with reference to events pre-dating the claimants' purchase of their property in 1997, I found the evidence presented on this issue by witnesses called by the claimant, both in respect of each individual witness called and taking the overall picture painted by the evidence of those witnesses, as a whole, to be broadly consistent and persuasive in tone and content. I see no reason not to accept the evidence which I heard from Mr Whitaker. Whilst acknowledging that the work-based relationship between Miss Epstein and the Weymonts, that, in itself, is not sufficient, in my view, to call into question the fundamental authenticity of the evidence which she gave. I see no reason to call her evidence into question. Equally, in spite of efforts on the part of the counsel for Mr Place to undermine him, I saw no reason not to accept the evidence which Mr Kershaw gave. I remind myself of the - for want of a better word - spat that developed prior to Ms Swift giving evidence, about what might be her true identity, and whether or not she was or is, in some way, related to the Weymonts. My recollection is that no one involved in that particular spat seemed to emerge from it with any much credit, but I prefer, at this point, to draw a veil over the event and move on. Save to say that the distraction of the spat, to which I have just referred, did nothing, in the end, to detract from the impression which I have formed of Ms Swift's presentation before me as a fundamentally honest witness, whose recollection of the events in which she gave evidence, appeared to me to survive any attempt to challenge it.
18. There is, in my judgment, a significant contrast with the evidence adduced on this issue, on behalf of Mr Place. I repeat all that I have said previously in this judgment about the weight, or lack of it, which I have placed upon the evidence of the four of Mr Place's witnesses, from whom I read statements, but from whom I did not hear evidence in person. In respect of the evidence of Messrs Cook and Hutchinson, it seems to me that the submissions made to me by counsel for the Weymonts about the inconsistencies in that evidence had very real force to them. My assessment of the evidence given by Mr Spencer does, I have to say, rather accord with the assessment of it, which forms submissions to me from counsel for the claimant, which was to the effect that it simply seeks to agree with Mr Place's evidence, rather than adding anything of significance, by way of a new dimension, in or of itself, as opposed to the defendant's case which can be gleaned from other sources and evidence. Ms Rushton, in my view, whilst I do not, for a moment, seek to suggest that she actively sought to mislead me, performed, in my judgment, very poorly under cross-examination on a number of issues, including what works may have been done, where and when they were completed, how and when damage may have been caused to vehicles, and any benefit that might have accrued to her, as an occupier of Underwood Farm, in the event that the defendant's counter-claim succeeded. Her performance under cross-examination was such that, in my judgment, it called into question, in the most fundamental terms, the weight, if any, which I could or should place upon her evidence."
"I turn now to the evidence of Mr Place himself. There is, I have to say, one issue which looms large over my assessment of Mr Place's evidence, in its entirety. Whilst Mr Erskine was still fulfilling his role as the independent expert witness in these proceedings, it appears clear to me that he was approached by Mr Place with the suggestion that he, Mr Erskine, might be appointed to provide professional services to Mr Place in respect of a number of other matters. I have to say I find it very difficult to accept that Mr Place did not appreciate that it was wholly inappropriate to approach Mr Erskine, in the terms that he did, whilst Mr Erskine's involvement in case, as an independent expert witness, remained live. I repeat the view which I have touched upon earlier in this judgment, to the effect that in my view Mr Erskine behaved perfectly properly in the way in which he dealt with the separate approach from Mr Place, subsequent to his appointment as the expert witness in this case. Whilst I confirm that I am making no definitive findings on this point, I make it clear that I have very significant misgivings about the actual motives behind Mr Place contacting Mr Erskine in the terms that he did, at the point, in the light of this dispute, which he did. Those misgivings are so significant, in my view, as to substantially influence to his detriment, my assessment of the quality and accuracy of Mr Place's evidence as a whole, including on issues regarding the claim, in respect for adverse possession."
"19. For completeness I should also deal with certain issues which were raised before me in the trial. Based upon the evidence which I have heard and read, I do not accept that the common character of the locality is, in fact, strongly indicative of the fact that much of the land, which is in dispute in this case, is used and enjoyed in common with Underwood Farm. I accept the submission made to me that it has, if anything, common characteristics with the entire Rossendale Valley, as a whole, rather than the specific areas around Dam Top and/or Underwood Farm. I repeat, in this context, the conclusion that I reached, based on my consideration of Mr Erskine's report and the impact that had on my findings as to within whose title the disputed land is located, those conclusions being that the land was within the title of the Weymonts. I also confirm that nothing which I have read or heard about the common character of the locality persuades me that there is sufficient evidence, upon any basis, to conclude that the defendant has a sustainable claim for adverse possession, when considered with, or entirely separate from, the witness evidence dealing with the acquisition of adverse possession, to which I have referred earlier in this judgment. I am also wholly unpersuaded by any argument on behalf of Mr Place which suggests that Mr Erskine could not, and should not, have relied upon the registered plans when preparing his report. Nothing which I have seen or read suggests to me that the registered plans should be looked behind or should, in some way, be treated with caution."
Lady Justice Hallett :
Lord Justice Christopher Clarke :