Case No: B2/2008/1792

Neutral Citation Number: [2009] EWCA Civ 525
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM GREAT GRIMSBY COUNTY COURT
(MR RECORDER GIBSON)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday, 6th April 2009

Before:

LORD JUSTICE WARD
LORD JUSTICE KEENE
and
LORD JUSTICE LAWRENCE COLLINS
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Between:

	THOMPSON & ANR	Appellants	
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COLLINS & ANR	
Respondents	

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(DAR Transcript of 
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Mr I Pennock (instructed by Beetenson & Gibbon) appeared on behalf of the Appellants.

Mr J Rodger (instructed by Wilkin Chapman) appeared on behalf of the Respondents.

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Judgment

Lord Justice Ward:

1.	This is another expensive boundary dispute.  Each of the parties will have spent in the region of £40,000 in bringing their case to this court; far more, one suspects, than the land in dispute could ever be worth.  But that is the insidious nature of a boundary dispute.  The lesson is never learnt that those who fight for their principles frequently end up paying for them, or, as one wise old managing clerk once said to me a long time ago, “They’ll never learn, sir, that even fighting cocks lose some feathers.” 

2.	But here we are in the Court of Appeal concerned with the boundary between two substantial dwelling houses in Hatcliffe in Lincolnshire: Wickster  House, the home of Mr and Mrs Thompson, the claimants and the appellants, and Waterdale House, which is owned by the respondents, Mr Collins and Miss Lloyd.  The dispute was resolved by Mr Recorder Gibson, sitting in the Great Grimsby County Court on 30 June 2008, when he declared that the boundary between those properties was in part marked by a brick wall and a closely boarded fence, lying to the rear and side of Wickster House respectively, and shown on a plan which was attached to his order.  He declared, secondly, that the brick wall and the closely boarded wooden fence were entirely owned by the claimants.  There is no dispute about those two declarations.  It is the third that brings the matter here.  His third declaration was that the remainder of the said boundary was as marked by the bay tree and the route line of the laurel hedge and is shown marked red on the plan attached to the order.  Fourthly, he declared that the bay tree and laurel hedge were jointly owned by the parties.  So he ordered rectification of the title deeds and awarded the defendants their costs.

3.	The properties with which we are concerned were originally owned by the late Mrs Bacon and her late son, Mr Richard Bacon.  Wickster House was originally the stable block to the main house, serving at some stage as a garage.  The present gardens of Wickster House were the vegetable gardens of the big house.  Mr Richard Bacon saw the development potential of the land and with the help of his friend, a Mr Craig Turner, he obtained planning permission for an extension to the south-eastern gable end of the stable block.  So it came about that the property now known as Wickster  House was sold to the Turner family company, CAT (?)  Construction Limited.  The conveyance is dated 1 February 1990.  The land conveyed is described in these terms: 

“… convey unto the Purchaser all their freehold rights and interests in the property situated at Hatcliffe in the County of Humberside which said piece of land is more particularly delineated for the purposes of identification only on the plans attached hereto and thereon edged red and marked ‘A’ and ‘B’ together with the building erected thereon or on some parts thereof…”

4.	Mr Pennock, who appears for the appellant, draws our attention to Clause 3 of the conveyance, which reads:

“The Purchaser hereby covenants with the Vendors that within 6 months from the date hereof it will at its own expense and to the satisfaction of the Vendors erect a double brick wall 3 feet 6 inches in height between the points marked ‘A’ and ‘B’ on the said plan B annexed hereto and the Purchaser and its successors in title shall forever hereafter maintain the same in good repair and condition.”

That brick wall is, as I understand it, the brick wall which has been declared by the Recorder’s order to be that part of the boundary between the two properties.

5.	It is common ground that the parcels clause is ambiguous and inadequate sufficiently to identify the boundary which has to be established.  It is also common ground that the plans attached to the conveyance were, as the Recorder put it, “inaccurate in certain material ways”.  He rightly held that “the plans cannot accurately represent the intention of the parties”.

6.	There is therefore no challenge to the approach he took in this case which, as he set out in paragraph 13 of his judgment, was this: 

“It follows, therefore, from what I have said that in general terms the conveyance cannot be relied upon, although there may be certain aspects of it which do assist in relation to the question I have to determine.  This, however, is one of those situations in which the court must examine extraneous evidence in order to determine the agreement between the vendor and the purchaser in 1990.  This evidence is received as an exception to the parol evidence rule and so during the course of the hearing which is now into its second day I have been asked to consider other documentary evidence, the site itself and evidence from a number of witnesses.”

7.	And indeed that is correct.  The judge made a site visit to the property, he heard a number of witnesses, some more important than others, and gave, as I understand it, an extemporaneous judgment, from which I have been reading, at the end of the second day.  

8.	Some assistance to the layout of the land can be gained from an aerial photograph which was taken, it has to be said, some time back in the 1960s, but is helpful to give us an idea of the properties we are dealing with.  At the bottom of that photograph is the main carriageway called Barton Street.  A drive into Waterdale House leads off Barton Street.  What is now Wickster  House is to the right hand side of this driveway as one would drive up it.  So, describing the property by reference to that plan, it seems that, as one leaves the carriageway, there is a clump of trees in the south-eastern corner of the claimant’s property; then we can see a lighter patch of vegetation, which it is agreed is a privet hedge, which is clearly cut very low, more in the manner of a box hedge and it is that little hedge which divides the driveway from the rest of the property.  Immediately behind this little privet hedge is a much more substantial laurel hedge which runs along, or more or less runs along, the same line, and at the end of it  is a larger conical bay tree. Although it cannot clearly be seen from this photograph, there is then a gateway into what used to be the vegetable garden.  The Recorder described it as follows, in paragraph 19 of his judgment.  He had the advantage of having visited the site and so his views are helpful.  He said: 

“One can see on the aerial photograph what is on the photograph a very small area where the drive appears to widen out slightly, which appears to be the path in towards the gateway.”

It suggests to me that the gateway is therefore behind the line of the privet hedge if it were continued and somewhere in the region of the middle of the bay tree.  

9.	Beyond that is a further patch of vegetation between the drive and the gable end of the old stable block.  The drive curves into a large courtyard in front of the main house.  At some point in time the stables served as a garage for the main house.  The line A-B, to which I have referred runs parallel to the stable block, dividing the stables from the courtyard.  

10.	In addition to the brick wall that was built as required by the conveyance, at some stage in the past a wooden fence was erected in a curved line from the end of that brick wall round to a point at or near the beginning of the bay tree and the laurel and privet hedging.  It is the boundary from the end of that closely boarded fence to the south-eastern corner that is now in dispute. 

11.	Perhaps more important than that old photograph was the evidence that was given at the trial, especially the evidence of Mr Craig Turner.  He signed the conveyance on behalf of the purchasers, his family company.  He and Mr Richard Bacon were present when the boundaries were marked out and, as the Recorder himself said, his evidence was: 

“…of crucial importance because from other evidence I can draw inferences as to the intention as between vendor and purchaser in the agreement between them, but of course from Mr Turner I have received evidence from one of the contracting parties”

12.	Mr Turner, in his witness statement, said this:

“We jointly agreed that the south eastern boundary between the properties would be in the form of a straight line from the back corner of the new extension to a mid point in the privet hedge at the front of the property via the metal gate post I can confirm is still present.”

13.	The judge in fact summarised his evidence, in paragraph 23 of his judgment, saying this: 

“His description of marking out the boundary was this, that he and Mr Bacon had used a line to mark the boundary.  He said, ‘We threaded the line through and it was difficult to pull through a hedge and we pulled it taut.’  He said there were two pegs at either end.  ‘We then put more pegs in until the line was taut.’  He said the line was straight.  He told me that the line started at a point four inches adjacent to the brickwork of the southernmost part of the extension.  He said the other end of the line was, as best he could remember -- and his recollection was somewhat vague about this -- nine inches to the left of what we would describe as the southernmost edge of the present claimant’s brick gate pillars.  He described the gate -- that is the wrought iron gate that was on the metal post -- as ‘on our land, but only just,’ and he said the line ran through some of the greenery.  He had said earlier in his evidence that the boundary line ran through the gate, but finally in his evidence he said, ‘Both of the gateposts were just on our side of the line.’”

14.	The judge also heard evidence from Mr Michael Bacon, a surviving son of the late Mrs Bacon, and his evidence is set out in paragraphs 26 to 28 of the judgment.  He said, among other things in those passages, that his mother had told him that the bay tree and the laurel hedge and the privet hedge were all going to stay within Waterdale.  This was important to her.  This was her boundary marker.  He said that the rear wall, the brick wall, was to be built to provide her with a screen because, as he said, his mother was anxious to protect her privacy.  He concluded: 

“So far as I am concerned the clear intention of my mother when she sold the property was to retain the bay tree, laurel hedge and privet hedge within her property as a natural screen and this always seemed to be honoured by the neighbours during the time she was there.”

15.	Subsequent owners of Wickster  House also gave evidence, but since they speak of events and the layout of the land after the conveyance their evidence is not of great significance.

16.	So in essence the battle lines were joined on the claimant’s side by his claim that the boundary ran in a straight line between the two points that had been pegged out by Mr Turner and Mr Bacon.  The defendant’s case was that the laurel hedge was the dominant topographical feature and it formed the demarcation line which represents the boundary between these two properties.

17.	The Recorder arrived at these conclusions.  Paragraph 47:

“Insofar as the evidence is concerned, I found that the evidence of Craig Turner was unsatisfactory in a number of fashions or in a number of ways.  It was unsatisfactory first of all because of what he said about the gate and whether the boundary went through the gate or whether it went across, essentially on the defendants’ side of the gate, meaning that the whole of the gate, both posts, were within the land that he purchased, which of course was his final position.  It was also slightly inconsistent, as I observed earlier, in relation to the alignment of the gate […]”

18.	And he described that inconsistency.  He said in paragraph 48: 

“Craig Turner’s evidence was superficially attractive when he talked about the boundary being in a straight line.  However, his description when he said, “We threaded the line through and it was difficult to pull through the hedge and we pulled it taut,” does seem to indicate that the hedge and indeed not just the privet hedge, but the laurel hedge, was involved as a part of the boundary.

49.  It seems to me, looking at the plans, that -- and I am referring particularly to plan A -- plan A is just so poorly drawn that one cannot rely upon any straight line to the side of the existing drive.  When one looks at the original, the red line in fact is not exactly parallel to the existing drive in any event.

50. So the evidence in certain respects of Craig Turner was unsatisfactory.  I found that his evidence in relation to the brick wall in fact did seem to point to a proper agreement as between the parties and I accepted his evidence that he and Mr Richard Bacon had both been involved in the building of the wall: that is, that he had received some help from Mr Richard Bacon. Mr Richard Bacon was obviously concerned enough to have the curve put in the wall to ensure easy access to the back of his own property for his car.  It seemed to me that all that was agreed on the ground, as it were, between them.  But as to the point from what is now the rear corner of the extension through to the front of the property is concerned, things are, it seems to me, bearing in mind that Mr Turner is trying to remember back now to 1970 from 2007, much less clear.  I did not accept his evidence that the boundary was in a straight line. 

51. On a balance of probabilities, it seems to me that this is not a case for these reasons.  The evidence of Mr Bacon, whilst again it was unsatisfactory in parts, particularly because of his extreme reluctance to give evidence in these proceedings, was however clear and unequivocal in relation to the attitude of his mother and particularly the tenor of it that his mother was extremely insistent on her privacy and seemed to me to have a ready acceptability about it, because that is clearly a matter that would have been of significant moment to an elderly lady living in the house where part of the grounds were being conveyed away.  Also, when I look at the physical features of the ground, particularly looking at the aerial photograph, by far and away the most substantial screen between these properties was the laurel hedge bay tree.  The privet hedge, it seems to me, was a relatively minor feature in relation to this boundary.

52. It seems to me, considering the evidence as a whole, in the light of the features I have mentioned, that the hedge itself, as has been submitted to me by the defendants, is the feature, the one substantial boundary feature, on the ground that properly marks the boundary and indeed, so far as one can infer it from the evidence that is available, the agreement as between the parties.  The problem of course with that finding, if it be a problem, is that one cannot simply draw a straight line in one sense on the plan, because the roots of the hedge are, to use the words referred to in evidence, somewhat higgledy-piggledy.  Of course, it should be possible to plot a course, particularly bearing in mind that this hedge was much narrower back in 1990 to the way it is now.  I noticed, looking at the physical features of it yesterday, that the boughs coming out from the branches do indeed come across a very large distance to either side, particularly in fact towards the Waterdale side of the hedge.  So the effect of my judgment is to make a declaration that the laurel hedge and the bay tree mark the boundary.  The defendants are content that it should be the midline of the hedge, so I do not need to make a finding specifically in relation to Mr Bacon’s evidence about his mother having retained the hedge in her own possession.”

19.	The judge concluded that judgment by inviting counsel to in effect agree the boundary so that a line could be drawn on a plan to give effect to that judgment.  Thus the case stood adjourned.  

20.	The attempts between the parties to comply with the judge’s hope that some agreement might be had between these warring parties was frustrated.  No agreement was possible and there was some apparent impasse as to what should then happen.  What in fact then happened was regrettable.  The defendants’ solicitor telephoned the Recorder in his chambers, he being a practising barrister on the circuit.  His clerk simply put the call through on to his mobile and the Recorder dealt with it from his home.  There does not appear to me to be any dispute as to the content of that very short conversation.  The solicitor explained the predicament of being uncertain how best to move the case towards a conclusion and the Recorder stated that the best way forward was to hold a telephone conference call, he thought perhaps with the solicitors and himself, in the nature of a case management conference to give directions for the final resolution of the dispute.  The defendants’ solicitor endeavoured to convey this by telephone to the claimants’ solicitor, leaving a message on his answer machine, and that received a I was about to say, acrimonious response, a pained response, putting it kindly, from the claimants’ solicitor complaining that the solicitor should never have spoken to the judge at all and the judge should not have spoken to the solicitor at all.  The complaint was, and this forms a ground of appeal, that the judge had been put in a position which gave rise to the conclusion that he was apparently biased in favour of the defendant.  That forms the second ground of the appeal.  

21.	Let me deal first with the appeal on its merits.  There are two prongs to the attack.  The first is that the judge was guilty of an error of fact, the second that he was guilty of an error of law.  The gravamen of the former complaint is that the judge failed to have full and proper regard to the evidence of Craig Turner that the intention of himself and Mr Bacon was that the material boundary should run in a straight line whereas, as is apparent from the order under appeal, that line, following as it does the midpoint of the bay tree and the various laurels runs in a higgledy-piggledy line from the end of the close boarded fence towards a point some inches to the south of the new gateway into the claimant’s land.  

22.	There is, of course, a formidable difficulty in mounting such an appeal.  This is not an appeal that there was no evidence to support the judge’s finding.  It is an appeal against the weight of the evidence and, as this court has on so many occasions observed, that is difficult to upset because the trial judge has an immediate advantage of hearing and seeing the witnesses --  in this case the added advantage of having made a site visit -- and matters of weight are ordinarily matters for the trial judge and it is impossible virtually for the Court of Appeal to interfere unless he has gone plainly wrong in his assessment of the facts.

23.	Mr Rodger, who appears for the respondent, relies upon the judge’s conclusions that the evidence of Craig Turner was unsatisfactory.  In paragraph 47 he identified unsatisfactory elements in that evidence and he was, submits Mr Rodger, entitled to come to that conclusion.  Moreover, he submits, when one actually reads the transcript of his evidence it is abundantly plain that there was confusion and an unsatisfactory aspect to what he was saying.  Thus Mr Rodger draws our attention to a number of passages including these: at  page 5 of the transcript, page 99 of the bundle, at line 32 to 34 Mr Turner says:

“I mean all I can state is that the boundary position that myself and Dickie organised between ourselves is basically as the property is now.  That’s all I can state.”

24.	Going over the page, line 27, Mr Rodger said this: 

“Then you had said the boundary continued along a fence -- along what is now a fence? 

A: It was actually sort of centre of the hedge, to be quite frank, and there is a metal post which is marked there where it says -- where there’s a cross.”

25.	Two questions further on, the Recorder interrupted and said this page 101 line 4: 
“Can I just clarify something before you got to that? Your answer to the last question was, ‘The boundary was the centre of the hedge, to be honest with you’.  That is what I noted you said. 

A: Yes.
 
Q: I just wondered to which hedge you were referring? 

A: Well, it’s hard to… 18-odd years ago like the bay tree was a bush, now it’s a tree.  The bay tree was slightly inside the boundary.  The reason why we painted the back with a can was because it was tarmac-ed and we couldn’t drive pegs in easily so we did it that way and then from that point to there [presumably pointing to the plan] there was a line put through and it was pegged.”

26.	Mr Rodger then resumed: 

“At the risk of stating the obvious, the Bacons’ retained land that is on the south side of the hedge and the land you were buying was on the north side of the hedge? 

A:  Yes. 

Q:  I was going to say that the hedge was the third physical thing making up the boundary.  Do you agree with me? 

A: Yes.”

27.	Moving on to page 103 and now, in re-examination, Mr Pennock reminds the witness, line 14: 

“In your evidence you mentioned about the centre of the hedge.
 
A: Yes. 

Q:  I do not think it was particularly cleared up as to which hedge you were referring to.  I think it is common ground there are two hedges.  There is a small privet and there is a large, effectively a laurel hedge. 

A: Yes. 

Q:  Which one were you referring to? 

A:  It’s like the larger one where the, through the post. 

Q:  Through the post?  

A:  Where the post is, it’s basically that hedge there. 
Q:  In line from the post to the back pillar? 

A:  Yes”

28.	And so we see from that evidence several important features upon which the judge was entitled to rely and it seems to me did rely, as he expressed it in paragraph 48 of his judgment: that it was not just the privet but the laurel hedge that was involved as part of the boundary.  On the evidence the judge had, that finding was open to him.  For my part, I am not prepared to conclude that the judge was not entitled to find that the hedge marked the boundary and that was given effect to by the order which he made.

29.	The second ground of appeal goes to what the judge said in expressing reasons for not finding that the boundary was in a straight line.  This is in paragraph 51 when the judge gave two reasons for that conclusion, the first being the evidence of the late Mrs Bacon, who was so insistent on her privacy.  Mr Pennock challenges that in two ways.  One goes back to the facts of the case and he points out that if privacy was the criterion it would hardly be met by building a brick wall which is only three foot six high.  That would not provide much screen for Mrs Bacon.  But his second point, and this gives rise to the issue of law, is that the judge erred in law in having regard to a subjective factor in what was essentially an objective exercise in having to construe the conveyance and the plans by reference to the topography of the layout of the land.  But whilst I for my part can see the force in the submission it seems to me that it fails for these reasons.  Firstly, it was but one of two reasons for rejecting the evidence that the boundary was in a straight line.  It is, moreover, apparent to me from paragraph 52 of the judgment that the heart of the judgment is, as the Recorder put it, considering the evidence as a whole in the light of the features I have mentioned, that the hedge itself is the feature, the one substantial boundary feature on the ground that properly marks the boundary between the two properties.  Going back to his primary conclusion of fact, if one looked at the topography in 1990 there was between these two properties not so much a low privet hedge, which may be measured in inches rather than feet, but a more substantial line of privet hedging -- then perhaps four feet high maybe two feet in width, not running in a straight line but forming the natural boundary between these two properties, so that the reasonable objective person, having regard to the conveyance, having regard moreover to the attempts to pick a way through this line of hedging, would have come to the conclusion that the hedge itself marked the boundary.  If therefore the learned judge erred in having regard to a subjective factor in a predominantly objective exercise, his error was not material and did not impugn the judgment overall.  I, for my part, would not interfere with the clear findings he has made and I would give effect to his judgment and dismiss the appeal.  

30.	That is, of course, dependent on the second ground of apparent bias.  It was made plain throughout the argument that there was no suggestion whatever of actual bias and the complaint is simply that it was wrong for the solicitor to telephone; it was wrong for the Recorder to take the telephone call; and that therefore the proceedings are tainted. 

31.	Mr Pennock was a little ambivalent as to whether or not questions of apparent bias should be considered by reference only to the fact that a telephone call was made, regardless of the content of the call, or whether that apparent bias must be judged by reference to what was said.  I am in no doubt about that.  It is not sufficient simply to say that there was a telephone call between solicitor and judge during the course of a part-heard hearing.  It depends on what was said.  The Recorder gave a full explanation, which is recorded and in the papers before us, as to what happened at the time of that telephone call.  It is set out in the transcript of the further hearing he held on 26 March and I have sufficiently summarised it.  The Recorder was being told there was some difficulty in resolving the case and he told the solicitor it would be best if there were a case management conference which he would be happy to conduct by telephone for the convenience of the parties.  

32.	In my judgment it is clearly unfortunate that this conversation took place.  It should not have taken place.  The proper procedure was to correspond with the court and ask that the correspondence be placed before the judge for his ruling upon it.  That said, and bearing in mind that this is a call put through to the barrister Recorder at his home, bearing in mind we are in 2007 and that we live in more informal times than in days of yore, it would have been correct, but pompous to the point almost of rudeness for Mr Recorder Gibson to have put the telephone down on the solicitor and say “How dare you speak to me in private?”  The conversation was short.  It was totally pertinent to the issue.  It was faithfully relayed by the defendant’s solicitor to the claimant’s solicitor and nothing in that telephone call gives the slightest hint of impropriety apart from the fact that the call was held.

33.	The test we have to apply is now very well established. Lord Hope in  Porter v McGill [2001] UKHL 67; [2002] AC 357 said in paragraph 103 of his speech: 

“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”

34.	It is now the established test.  It is not the only word from their Lordships on the proper approach.  Lord Steyn in Lawal v Northern Spirit Ltd  [2003] UKHL 35; [2003] ICR 856 said this: 

“Public perception of the possibility of unconscious bias is the key. It is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach.”

35.	This idea was succinctly expressed in Johnson v Johnson [2000] CLR 488 at paragraph 53 by Kirby J when he stated that: 

“A reasonable member of the public is neither complacent nor unduly sensitive or suspicious.”

36.	I regret to say that I am totally satisfied that the appellants in this case have become unduly sensitive and unduly suspicious of a conversation that merits none of that suspicion.  In the case of Locabail (UK) Ltd v Bayfield [2000] 1 All ER 65 the court drew attention to observations of the Constitutional Court of South Africa in President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147, SA Con Ct where that court observed that the reasonableness of the apprehension must be assessed in the light of the oath of office taken by judges to administer justice without fear and favour and their ability to carry out that oath by reason of their training and experience.  It must be assumed they can disabuse their minds of any irrelevant personal beliefs and predispositions.

37.	It is made all the more ludicrous, I would go so far as to say, bearing in mind the state of this litigation.  The judge had given a judgment in December where he had declared where the boundary was and had left it to the parties to agree the final line.  The difference between whether it was one side or t’other or in the middle of the hedge is scarcely of monumental importance.  To suggest that the judge would be perceived to be biased by having to take that decision and to have to take it after he had been corrupted by this call is frankly nonsense.  There is in my judgment absolutely no ground for this appeal and I would dismiss it.  In the result, I would dismiss the appeal altogether.

Lord Justice Keene:  

38.	I agree.

Lord Justice Lawrence Collins: 

39.	I also agree.  It is unfortunate that the Recorder took a call from the defendant’s solicitor but the allegation of apparent bias plainly resulted from the extreme bitterness of the dispute between the parties. The allegations should never have been made and should never have been pursued on appeal.

Order: Appeal dismissed