REUTERS | Denis Balibouse

High Court allows appeal based on error of fact where trial judge’s evaluation of key photographic evidence resulted in plainly wrong decision

In Boas and others v Aventure International Ltd, HHJ Hodge QC, sitting as a section 9 High Court judge, allowed an appeal against a recorder’s county court judgment about the exact location of a disputed boundary, in rare circumstances where the recorder had failed to consider the full effect of specific and clear photographic evidence, and further failed to outline the correct factual implications from that evidence. The High Court was therefore left to examine the principles surrounding appeals against a judge’s findings of fact.

Case background

The parties are the freeholders of neighbouring commercial units on an industrial estate in Essex. The primary issue in dispute between the parties at the trial related to the position of the boundary between them and the position of an original fence which had pre-dated a 2004 fence, and which both parties accepted as representing the true positioning of the boundary. That 2004 fence had later been replaced but then set in a different position in 2014. At that same time, concrete also replaced a grassed area.

The recorder had the benefit of and took into account several old aerial photos, ordnance survey plans, Google Earth images from 1999, and a June 2000 photograph taken by a surveyor. The recorder even considered it important to pay a site visit and did so. But it was after the site visit that the recorder formed the view that the June 2000 photograph and the Google Earth images did not take the court anywhere.

As such, the recorder ruled that the 2014 fence was the correct position of the boundary.

Unusual features of the case

In his High Court judgment, HHJ Hodge QC was keen to point out several unusual features of this case. He found that, rather oddly, and notwithstanding that this was a boundary dispute, there had been no oral expert evidence whatsoever and the court would have undoubtedly benefitted from it. In addition, in his view, written expert evidence was actually of limited value or any use at all. Of greater importance, the judge found that the oral evidence played a negligible part in the case. On its own, and with regard to the replacement of the original fence in 2004, neither of the two witnesses who spoke about this issue were of any assistance to the recorder at all.

The judgment

On appeal, HHJ Hodge QC took a different view to the recorder with regard to the June 2000 photograph. He found that it highlighted differences in width between the respective fences of 2004 and 2014. He went on to find that this was actually backed up by the Google Earth images, which the recorder had also discounted.

HHJ Hodge QC satisfied himself that this was one of those extremely rare cases where a judge at first instance failed to appreciate the true significance and impact of a piece of evidence which was available to the court (the June 2000 photograph); furthermore, the recorder failed to draw the correct inferences and conclusions from it. The judge was at pains to emphasise that although the recorder had taken a careful approach overall, he ended up making a ruling at which no reasonable judge could have arrived. HHJ Hodge QC acknowledged that he was coming to the opposite conclusion to the recorder, despite the recorder even having had the benefit of a site visit, unlike HHJ Hodge QC.

The judge identified that the recorder had gone plainly wrong when he found that the June 2000 photograph provided no assistance. He actually highlighted these errors with reference to specific paragraphs of the recorder’s judgment. The recorder said that the photograph did not tell him anything pertinent as to the key issue to be determined regarding the position of the fence in comparison to any other feature, such as a retaining wall, which was also a feature on the ground. HHJ Hodge QC was satisfied that the recorder had clearly made an error about the June 2000 photograph as well as the Google Earth images.

Accordingly he overturned the recorder’s decision, finding that the boundary was in line with the 2004 fence, and allowed the appeal.

Practical implications for practitioners

This case offers possibly positive prospects for those litigants who reckon that too much emphasis might have been placed on documentary evidence. As such, and in particular in boundary disputes, legal practitioners should weigh up with clients whether historic aerial photographs may be of use. Although such photographs may not necessarily be cheap to obtain and may not ultimately be useful, just the same it might be worth spending on such photographs if only to eliminate their usefulness at an early stage. Of course, if they are useful and, quite simply, prove a claim, then surely it would be a cost well spent. If the claim proceeds to trial, then all the very best available evidence is before the court.

Undoubtedly, by advising clients about obtaining such photographic evidence, legal practitioners are also reducing negligence risk.

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