Allowing an appeal against a trial judge’s finding of fact, Green, J (sitting in the Chancery Division of the High Court in Birmingham) accepted the submission that the tested evidence of a layperson could be preferred over the conclusions of a single joint expert surveyor when the issue was one of historical fact and that the circumstances of the case met the high threshold set out in Thomas v Thomas [1947] AC 484.
Sam Phillips acted for the successful appellant who sought to amend the position of a boundary, determined at trial in which the Court had relied on the principle in Norman v Sparling [2014] EWCA Civ 1152 that a judge can look to extrinsic evidence when title deeds do not provide a complete answer to the proper position of plots. While the first-instance Court had accepted Sam’s submissions as to the use of extrinsic evidence and had found largely for the Claimants, the Court incorrectly relied on the conclusions of a single joint expert when determining the precise position of an historical boundary feature, when the Defendant had admitted the location of the same in cross examination.
The High Court on appeal made declarations as to the position of the boundary, based on the answers obtained in cross-examination and the stated case of the Claimants.
The decision of Green, J confirms the position that live, tested evidence should be considered the ‘gold standard’ for evidence before the Court and that the Court should give clear reasons if it departs from facts established in cross examination.
Sam was instructed by Ellie Crofts of Lodders for the trial and appeal.
Links to the judgment will be provided when published.