Many boundary disputes depend on factual findings made regarding historical documents, which often came into existence for other purposes. Although appeals on questions of fact that have been determined by a trial judge are nowadays rare, and tend to be discouraged by the appellate courts, Boas v Aventure shows how the court is likely to approach such a boundary dispute appeal.
Background to the appeal
HHJ Hodge QC sitting as a judge of the Chancery Division allowed an appeal from the County Court on the basis that the trial judge had fallen into error with regard to his treatment of a particular photograph and reached a decision that was ‘plainly wrong’.
The dispute concerned the boundary between 2 commercial properties on an industrial park in Essex. The 2 titles were originally in common ownership but the conveyance carving out C’s land from the original title had been lost. There was no dispute that between 1953 and 2000 the 2 properties (although not the titles until 1983) had been separated by a post and wire fence or fences, which had always run along roughly the same line. In the early 1960’s a retaining wall had been built wholly within C’s land (at the time it was leased to a tenant by the common owner). In 2004 the land agent who managed both properties erected a new palisade fence. C said that this was on the line of the existing fence while D said it was some 1.3 m into its property. In 2014 D removed the 2004 fence and rebuilt a palisade fence on what it said was the line of the original fence. This fence was erected immediately on top of the retaining wall. C said that this fence encroached by some 1.3m.
At trial there was no real dispute about the law relating to the judge’s task, stated in Pennock v Hodgson  EWCA Civ 873 as follows:
"(1) The construction process starts with the conveyance which contains the parcels clause describing the relevant land, in this case the conveyance to the defendant being first in time.
(2) An attached plan stated to be 'for the purposes of identification' does not define precise or exact boundaries. An attached plan based upon the Ordnance Survey, though usually very accurate, will not fix precise private boundaries nor will it always show every physical feature of the land.
(3) Precise boundaries must be established by other evidence. That includes inferences from evidence of relevant physical features of the land existing and known at the time of the conveyance.
(4) In principle there is no reason for preferring a line drawn on a plan based on the Ordnance Survey as evidence of the boundary to other relevant evidence that may lead the court to reject the plan as evidence of the boundary."
The judge examined documentary evidence, old plans, old photographs, read expert evidence, carried out a site view and heard oral evidence. Among the photographs were photos taken by D when the 2014 fence was erected (not taken for the purpose of proving a boundary) which appeared to show the stumps of 2 fence posts still in the ground and the remains of an old structure. D erected the 2014 fence in line with the remains of these fence posts which were almost on top of the retaining wall. However, C produced a photo taken in 2000 which appeared to show the old wire and fence post some distance from the retaining wall on D’s side of the 2014 fence. It was impossible to reconcile the 2 photos.
The trial judge considered all the evidence and found that the 2014 photos were decisive. He held that the remains of the structure were the remains of an old shed visible on the boundary in photos taken in 1953 and the stumps were therefore fence posts from the original fence. He held that the 2000 photo was not clear enough to be helpful. C appealed.
On appeal HHJ Hodge QC found for C. He held that the 2000 photo clearly showed a gap between the fence and the retaining wall. He found there was no explanation for this and therefore the judge was wrong to reach the conclusion that he did. The judge held that the trial judge had made findings based on the 2014 photos which had led to him favouring D’s oral evidence to Cs’. The appellate judge was careful to stress that such an appeal would rarely succeed and reminded himself of the decisions in Henderson v Foxworth Investments Limited  1 WLR 2600, McGraddie v McGraddie  UKSC 58 and, in particular, Fage UK Ltd v Chobani UK Ltd  EWCA Civ 5 where Lewison LJ said:
“Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them... These are all decisions either of the House of Lords or of the Supreme Court. The reasons for this approach are many. They include
- i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed.
- ii) The trial is not a dress rehearsal. It is the first and last night of the show.
Iii) Duplication of the trial judge's role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case.
- iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.
- v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence).
- vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done."
HHJ Hodge QC held that this was not a case based on the construction of a document as the key document was lost. Instead he considered this was one of those rare cases where a judge had made a finding of fact that could not stand when scrutinised by an appellate court.
What does the decision mean for future boundary dispute cases?
The case may give hope to unsuccessful parties in boundary disputes who wish to have a second chance. It should not.
C made 7 criticisms of the trial judges’ factual findings: 6 were rejected and HHJ Hodge QC made it clear that no matter what he thought about the individual points he would not have allowed the appeal were it not for the 7th, ie the 2000 photo. Although this photo formed part of Cs’ argument at trial, it did not have the same prominence as it did on appeal. It was only because this photo could not be explained in the light of the other findings made at trial that C was successful on appeal.
In many ways the case shows how difficult it is to appeal successfully on findings of fact.
Joshua Swirsky was counsel for the defendant