B2/2002/0806/A
Neutral Citation Number: [2002] EWCA Civ 1177
IN THE SUPREME COURT OF JUDICATURE                              
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM COLCHESTER COUNTY COURT
(HIS HONOUR JUDGE YELTON)
                                  Royal Courts of Justice
                                  Strand
                                  London WC2
 
                                  Monday, 15th July 2002
B e f o r e :

MR JUSTICE FERRIS

- - - - - - - -

EDUARDO C-VANCI (1)
CHRISTINE E J NORTH (2)
Claimants

- v -

BARRY ROY EDWARDS (1)
IRENE LIESBETH EDWARDS (2)
LIESBETH GERTRUDE ROBINSON (3)
Defendants
- - - - - - - -
(Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7421 4040
Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - -

MR J ROBSON (instructed by R W Anderson, & Co, London W1W 8RP) appeared on behalf of the Appellant
The Defendants did not attend and were unrepresented

- - - - - - - -
J U D G M E N T
Monday, 15th July 2002
1.	MR JUSTICE FERRIS: This is the oral hearing of a number of applications made on behalf of the claimants in the original proceedings in relation to decisions which had been made adversely to them in the Colchester County Court in proceedings between themselves and their neighbours, Mr Barry Roy Edwards; Mrs Edwards, his wife; and Mrs Robinson, who I think is the mother of Mrs Edwards.
2.	The applications which are before me were originally made to Judge Yelton, the trial judge, in the Colchester County Court, who refused them. They were renewed to this court and considered on paper by Schiemann LJ, who refused them on 21st June this year. The claimants now exercise their right to have the matter re-heard at an oral hearing.
3.	The claimants are the owners of property known as 45 Steeple Road, Mayland, Essex. The defendants are the owners of adjoining property known as 1 Mill Road. The two properties stand in a sense at right angles to each other. The proceedings relate to a comparatively small strip of land, some 132 feet long and 14 feet wide, which lies between 45 Steeple Road, and constitutes a projection from the land known as No.1 Mill Road. The claimants and the defendants each asserted that they were the owners of this disputed strip.
4.	The proceedings came before Judge Yelton for trial on 11th March 2002 and were heard by him on that day and the next. At the trial it became common ground that the defendants had a good paper title to the disputed strip and that the claimants had no paper title to it. The issue which had to be tried was whether the defendants' paper title had been displaced by adverse possession. The claimants asserted that it had been displaced, relying upon acts of possession said to have been carried out by Mr Edward Fry, the father of the first claimant. Mr Fry became a tenant of 45 Steeple Road in 1948 and purchased the freehold in 1956. He died on 22nd November 1995, leaving 45 Steeple Road by his will to the claimants. The claimants expressly or impliedly assert that they had continued the possession of this strip since 1995, although the judge found that the first claimant had very little contact with the property.
5.	Judge Yelton gave a written judgment on 14th March. He started with an examination of the paper title from which he concluded that the defendants had a good paper title to the disputed strip, and the claimants had no such title. He then set out the claimants' case in respect of adverse possession in four factual propositions in paragraph 21 of his judgment. He continued in paragraphs 22 and 23 as follows:
“There is little doubt that if those facts were proved the claimants would be able to show that the deceased had acquired title by possession adverse to that of the true owner. I am afraid however that as to matters of fact I found the first claimant a wholly unreliable witness on whose evidence I place little store save where it is corroborated independently. I come to that conclusion having seen and heard him and by comparing what he said with a number of other witnesses who have no interest in the outcome of this dispute, especially Mrs Dow, Miss Dow and Mr Powl, all of whose evidence in substance I accept.” 
6.	He then dealt one by one with the four factual propositions which he had previously stated. Proposition (C) was that the land (by which I think he means the whole of 45 Steeple Road, including the strip) was for many years, and certainly up to the deceased's death, enclosed by a continuous post and wire fence which ran to a concrete post on the boundary between the strip and the land behind 3 Mill Road. Proposition (D) was that access was therefore not possible from 1 Mill Road on to the strip. Dealing with those, he said:
“As to (C) and (D), which interrelate, I am afraid that I am driven to the conclusion that the claimants simply did not tell the truth about this matter. They asserted that even after the death of the deceased, there was evidence of a fence at the entrance to the strip having been pulled back in some way. Apart from the fact that I accept Mr Randall's evidence that in August 1997 the rear of the site was impossible of access, I accept the evidence Mrs Dow, Miss Dow, Mr Powl, the defendants themselves, Mr K Edwards and Mr P Smith to the effect that there was never a barrier of any sort across the entrance to the strip. I believe Mr Powl's evidence that the concrete post was actually his and that it had never been used for a side boundary fence. I accept the evidence of the defendants and others that when they moved in there are pallets and the like on the strip which had been left there by Mr Farrell.” 
7.	He then went on to other matters.
8.	After the written judgment had been delivered the claimants sought permission to appeal from Judge Yelton. The judge considered this application on paper and rejected it.
9.	Shortly before 17th April this year the claimant, Mr North, made contact with Mr and Mrs Farrell. Mr Farrell had been the owner of 1 Mill Road between July 1979 and February 1981. Witness statements were obtained from Mr and Mrs Farrell. The most important statement contained in that evidence was that of Mr Farrell to the effect that he had a large, presumably fierce, Rottweiler and was very concerned that the dog should not get out, and he was therefore concerned that 1 Mill Road was properly fenced and that he therefore examined the state of the fence between 1 Mill Road and the strip and satisfied himself that the dog could not get through it. I think he also disputes the evidence that he had left pallets on the strip.
10.	The claimants asserted that this new material cast a new light on the case and they took a number of steps on 17th April this year. First, they made an application to Colchester County Court seeking a rehearing of the action pursuant to County Court Rule, Order 37, Rule 1, which remains in force notwithstanding the introduction of the Civil Procedure Rules. The ground of this application was that the new evidence showed that the original decision was wrong. As order 37 Rule 1 provides a time limit of 14 days from the date of the decision for an application for rehearing, an extension of time was sought. The application for a re-hearing came before Judge Yelton, who heard counsel for both parties, on 10th May this year.
11.	On 13th May Judge Yelton gave a reasoned decision refusing an extension of time and he refused permission to appeal from this decision. The reasons which Judge Yelton gave for refusing an extension of time were first, he found the story of how the Farrells were found as set out in a witness statement of Mrs North dated 17th April 2000 to be “suspicious and unconvincing”. Second, he deduced a number of propositions from the decision of Hertfordshire Investments v Bubb [2000] 1 WLR 2318, which led him to the conclusion that strong material would be needed before it would be right to order a rehearing, and that in particular he must be satisfied that the evidence of the Farrells satisfied in the requirement set out in Ladd v Marshall for the admission of new evidence post-trial.
12.	The other step which the claimants took on 17th April was to serve a notice of appeal to this court. When the notice was lodged the appeal office drew attention to the fact that by 17th April the application was out of time, and accordingly an application for an extension of time for appealing was added.
13.	On 24th May the claimants served a further notice of appeal seeking to appeal against Judge Yelton's refusal to order a rehearing. As I said earlier all the applications which I have mentioned, that is to say, an application for an extension of time for appealing, an application for permission to appeal, the application to adduce further evidence on the appeal and the application for permission to appeal against a refusal of a rehearing were refused on paper by Schiemann LJ. They are now renewed before me.
14.	I deal first with the application for permission to appeal against the order refusing a rehearing, because this can be dealt with quite quickly. Before me Mr Robson, who appears for the claimant, has not pressed the matter - sensibly in my view, because if there is a real prospect of the claimants succeeding, the better course, in my judgment, is for the matter to be argued in this court.
15.	I deal next with the application to adduce the evidence of the Farrells on an appeal, because it seems to me that the question of permission to appeal may turn to some extent on whether or not the new evidence is to be heard if there is an appeal. On this I have to say I entirely share the view of Judge Yelton which was endorsed by Schiemann LJ dealing with the matter on paper. The evidence of Mrs North as to the circumstances in which contact was made with the Farrells and as to the attempts (if any) which might have been made to get in touch with the Farrells before the trial is, to my mind, extremely sketchy and full of gaps. I share the view of Judge Yelton about it when he said that it was “suspicious and unconvincing”. Quite apart from that it seems to me that the evidence as to the existence or otherwise of a fence represents a comparatively small part of the issues which would need to be explored if there was an appeal. The real question which is raised by the judge's decision is whether he was right to reject evidence that Mr Edward Fry was in possession of the disputed strip.
16.	Mr Farrell's evidence, even if accepted, has very little bearing upon this. It may go to suggest that the defendants' predecessors were not themselves in possession of the strip, although Mr Farrell speaks only as to a period of about 18 months some 20 years ago; but on any view the evidence says nothing about who (if anybody) was in possession of the disputed strip. In my judgment, the evidence of the Farrells should not be adduced even if permission is granted, on the ground that the court is not satisfied that it could not have been made available at the trial with proper diligence, and in any event the court is not satisfied that it would have an important influence on the outcome of the trial.
17.	I turn lastly to the application for permission to appeal and for an extension of time, which go hand in hand. The delay that occurred in serving notice of appeal in this case was not long, and if there were cogent grounds for giving permission to appeal an extension of time might well be appropriate.
18.	The basis on which the learned judge made his decision was that he did not believe the claimant's evidence, but he did believe and preferred the evidence of the defendants and the independent witnesses who they called. Before me Mr Robson has said that this approach was at fault because all this evidence, as I understand it, relates to the last 20 years or so and the case which the claimants wish to put forward on an appeal is that Mr Edward Fry was in possession long before that time (from 1956 or soon afterwards) with the result that the paper title of the defendants had been extinguished under the Limitation Act long before the period in relation to which the judge considered the evidence at the trial.
19.	I am not wholly satisfied that that approach would be justified in law, but I think the real question which has to be considered is whether there is anything in it so far as the facts are concerned. Clearly the claimants have no real prospect of establishing their case by their own oral evidence because the judge did not believe that, and in any event I think their evidence was confined to a later period. What is said is that the judge left out of account some important material which was before him, which it is said shows that by 1961 the land was in the possession of Mr Edward Fry. In order to understand this material it is necessary to recognise that although both 1 Mill Road and 45 Steeple Road were, it seems, at one time in the ownership of the Samuel family, the title had become separate by 1914. By that time 45 Steeple Road appears to have been transferred to the trustees of a school. 1 Mill Road was the subject of a sale by auction which took place in 1914 when 1 Mill Road was purchased by a Mr Freeman, a solicitor.
20.	The correspondence which is relied upon by Mr Robson is correspondence relating to the position of the school in 1961. It seems from the correspondence that the school wished to construct a new toilet and for that purpose to use or construct a cesspool on the disputed strip. The school then realised that it did not have ownership of the strip and started to investigate what rights it might have had to do what it wanted, even though it no longer owned the strip.
21.	The correspondence, which I will not read in detail, proceeds on the footing that everybody thought that the school trustees had carelessly included the strip in the land which they had sold to Mr Edward Fry in 1956. In fact they had done no such thing. So far as the paper title was concerned the strip had been included in the land sold to Mr Freeman at auction in 1914.
22.	But building upon the erroneous supposition made by those advising the school that the school had disposed of the strip by mistake to Mr Fry, Mr Robson argued that it is implicit in this correspondence that the disputed strip was in the possession of Mr Fry. I am afraid I find it impossible to read any such meaning into the correspondence. It is clearly implicit in the correspondence that the school thought that it had no rights of possession in the strip in 1961. In thinking that, it was, of course, quite right because the strip had never been part of the title of the school trustees and had been owned by a quite different party since 1914.
23.	Thus I would accept that the correspondence shows that the school was not in possession. But I am quite unable to see in it anything from which it would be proper to imply that the person in possession of the strip was Mr Edward Fry. I assume that this contention was deployed before the judge, but I am not surprised that he made nothing of it in his judgment, because in my view nothing is capable of being made of it. In my view the suggested approach of looking at the matter in the 12 years or so immediately following 1961 gets the claimants nowhere and would not justify any displacement of the judge's view that the later evidence does not establish the claimant's case.
24.	In all those circumstances I take the view that the claimants would have no real prospect of success in an appeal. I therefore, like Schiemann LJ, refuse an extension of time and refuse permission to appeal.
(Applications refused; no order for costs).