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Pollock v Oldfield

Nathaniel Duckworth, instructed by Steven Murrell at Macfarlanes, acted for the successful Appellant in an appeal against the lower Court's determination of a boundary dispute. 

In the proceedings below, the claimant sought declaratory relief in relation to the location of the parties’ common boundary. The topographical features currently in situ along the boundary are a Devon bank and a lonicera hedge filing the gap to the south of it.  The parties disagreed about which of them owned the bank and the hedge.  The properties had been separated by a somewhat basic 1928 conveyance that contained little information to assist within the resolution of the instant dispute.  The Court's findings about the topographical features on the land in 1928 would therefore be the key to unlocking the true meaning and effect of the 1928 conveyance. 

There was no direct evidence as to what topographical features were present in 1928 and the Court necessarily had to proceed by process of inference.  Both parties accepted that the bank would have been present in 1928 and that the current hedge was not there at that time.  The Claimant pointed to the auction particulars that preceded the 1928 conveyance - which stated that the land now in the Defendant’s ownership was a pasture field - and posited that the pasture field was likely to have been enclosed by a stock-proof fence to keep animals in the field and off the bank.  The Defendant maintained the bank would have been a stock-proof feature in its own right and that it was most likely that some form of hedge would have been used to fill the gap to the south of it.

HHJ Parfitt, who heard the claim at trial, reasoned, by reference to certain letters written in the 1930s and a 1940 photograph, that the bank was likely to have been stock-proof in its own right in 1928 and that there would only have been a need for a stock-proof fence in the gap to the south of it.  Having concluded that only those features were present in 1928, the Judge concluded that, having regard to the “T mark” on the 1928 conveyance plan, the bank belonged to the Defendants. 

The Claimant appealed (with permission of Snowden J).  On the appeal, the Claimant said that the trial Judge had erred in finding that there was no stock-proof fence in 1928 and that, as a result, he had gone wrong in his overall conclusion about the location of the boundary.

On appeal, the Defendants argued that the inference that the trial Judge had drawn about the presence or otherwise of the fence was an ‘evaluative process’ and that, accordingly, his conclusion should not be overturned on appeal unless it was one that no reasonable judge could have come to.  The Defendants also maintained that, as the parties’ experts had engaged with the central factual issue in their written and oral evidence, the trial Judge had advantages over the appeal Court such that the latter should defer to the former on the issue of fact.

Arnold J, who heard the appeal, disagreed on both counts.  Although it was necessary for the Court to weigh up the circumstantial evidence when drawing an inference, the presence or otherwise of the stock-proof fence in 1928 was an issue of primary fact:  the Judge was therefore either right or wrong.  Moreover, the Judge had not placed any particular reliance on the particular expertise or credibility of the experts; it was not therefore necessary to have seen their oral evidence first hand.  The trial Judge’s analysis of the 1935 correspondence and the 1940 photograph was suspect.  Such circumstantial evidence as was available demonstrated that a full-length stock-proof fence was more likely to have been present in 1928.  The reasonable reader of the 1928 conveyance would have concluded that that fence was the intended boundary feature and that the “T mark” applied to it.  It followed that the legal boundary followed the fence line and that the bank behind it belonged to the Claimant.

The full judgment can be read here.

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