Mayers -v- Underwood [2014] EWCA Civ 406

Boundary Dispute ordered to be re-tried.
Admission of Fresh Evidence as to the position of a Tree.

A re-trial was ordered in a long running boundary dispute on the basis of fresh evidence.

The claim concerned a wedge of land with a maximum width of 3 feet between two properties. Shortly before trial both parties served late witness statements. One of these alleged that the original boundary between the properties was marked by a substantial Elm Tree. After a 5 day trial it was determined that the boundary ran from the centre of that tree but there was an agreement that the tree would be wholly on the Defendants’ land forming an additional wedge at the front of the properties. This then allowed an apparent discrepancy in the conveyances over the stated width of frontages of the properties to be resolved.

The Judge’s decision as to the position of the boundary was based upon the position of this tree. After the trial the Appellants obtained aerial photographs which appeared to indicate that there was no tree on the boundary as alleged by the Respondents’ witness. The Appellants therefore sought and obtained permission to appeal by reason of fresh evidence. In response the Respondents obtained a number of further statements supporting the presence of a tree in the exact position that the Judge determined it to be and also made an application in the appeal to rely on these further statements.

Upon admitting all of the fresh evidence the Court of Appeal concluded that a re-trial of the boundary dispute was necessary given the disputed tree formed the central basis for the Judge’s conclusions. Although he also accepted other evidence of a pathway between the properties which was also in dispute these findings were not sufficient to support the determination of the position of the boundary given the Judge’s reliance upon the tree.

As a result the long-running dispute was remitted to be retried before another judge but the appeal in relation to another issue over an alleged drainage easement was dismissed as the Judge’s conclusions were not capable of being challenged by reason of the fresh evidence.

This case highlights the risks involved in reliance on late evidence in long-running, expensive and contentious litigation. The lateness of the original fresh evidence prevented the photographic evidence being available for the trial and ultimately has provided the basis for the dispute to be re-tried.

Russell Stone instructed by David Richards of Tollers LLP represented the largely successful appellants.

4th April 2014