WHO WAS TELLING THE TRUTH? BOUDICCA, POSSESSORY TITLE AND THE JUDGE’S ROLE AS FACT FINDER: “DETERMINED COMPETITORS IN AN IMPLAUSIBILITY CONTEST”
In McClelland v Elvin & Ors  EWHC 2795 (QB) Mr Justice Turner considered an appeal where the trial judge had found against a party claiming adverse possession. There are some interesting observations in relation to Roman Britain, grounds of appeal and the judicial assessment of credibility.
“In 60 or 61 AD, Boudicca, Queen of the Iceni, reached modern day Chelmsford through which she led her formidable army of warriors along what is now Moulsham Street as they made their destructive way from Colchester to London in their savage but ultimately doomed resistance to the might of the Roman Empire.
Nearly two thousand years later, doubtless inspired by this distant association with the town’s Celtic past, the developers of properties located in a courtyard to the rear of 154 Moulsham Street, re-named them Boudicca Mews. It was thus that they unwittingly set the scene for the further, but distinctly more mundane, territorial conflict which forms the subject matter of this appeal.”
“The murky absence of documentary formality formed a background against which both the claimant and defendant appeared for much of the time to have assumed the roles of determined competitors in an implausibility contest.”
“It ought not to be necessary to point out that appellants do not enjoy the luxury of being able to redact parts of a judgment which they do not like simply because they are wholly irreconcilable with their grounds of appeal.“
The parties disputed ownership of a property. The case rested primarily on the evidence of the witnesses. The trial judge found in favour of the defendant. The claimant appealed.
AN APPELLANT CANNOT RE-WRITE A JUDGMENT
An interesting side issue arose because the claimant/appellant was contending the judge said exactly the opposite of what, in fact, was said.
“2.1 The Defendant’s primary case is that it is not strictly necessary for them to prove that they have paper title to these properties in order to resist the Claimants claim to No.9…
2.2 As a matter of law this is no doubt correct.”
THE CREDIBILITY ISSUE
The decision for the trial judge was stark. One of the parties was a barefaced liar.
WHO WAS TELLING THE TRUTH?
The claimant’s case was that he simply came across No.9 as empty and fire damaged premises which he noticed had been left vacant for some time. He took up occupation in spring 2000 and engaged contractors to put the premises into a condition from which he could trade as a “supplier of hydroponic gardening equipment”. His evidence was to the effect that he had no contact with the defendant concerning the flat until early 2005 when the latter turned up and laid claim to the first floor which was also unoccupied. In late 2005, there was a flood following which he stopped trading. He subsequently allowed licensees to occupy the premises. These licensees were the men who were later to be arrested by the police for cultivating cannabis.
The defendant’s case was that he had agreed to let the premises to the claimant at a rent of £500 per annum. In addition, the claimant was to pay all outgoings including council tax and utility bills. He said that the claimant kept up to date with payments, in cash, until the flood of 2005 when the relationship between them became strained and the payments stopped.
THE JUDGE’S TASK
The judge faced an unenviable challenge in attempting to disentangle the evidential complexities of this case. The murky absence of documentary formality formed a background against which both the claimant and defendant appeared for much of the time to have assumed the roles of determined competitors in an implausibility contest.
It was inevitable in these circumstances that whichever party were to lose the case would, nevertheless, have accumulated a fair quantity of material with which to seek to undermine the plausibility of the other. The remaining grounds of appeal seek to challenge the judge’s findings of fact by identifying numerous respects in which the evidence relied upon by the defendants was in certain specific ways and, when taken as a whole, unsatisfactory. Reference is also made to certain documents which are, when considered out of the context of the entirety of the evidence, more supportive of the claimant’s case that that of the defendants.
Nevertheless, this was not a case in which the maculate evidence relied upon by the defendants could be held up in direct contrast to any clear and coherent picture presented by the claimant. The judge had to make sense, as best he could, of the tricky balance of competing and untidy inferences. Furthermore, he was not obliged to identify and weigh minutely every argument raised with respect to the very many permissible permutations of inferences to be drawn from the various strands of documentary and other evidence. As the Court of Appeal held in Customs and Excise Comrs v A Fam 55 , paras 82–84:
“82. A judge’s task is not easy. One does often have to spend time absorbing arguments advanced by the parties which in the event turn out not to be central to the decision-making process.
83. However, judges should bear in mind that the primary function of a first instance judgment is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. The longer a judgment is and the more issues with which it deals the greater the likelihood that: (i) the losing party, the Court of Appeal and any future readers of the judgment will not be able to identify the crucial matters which swayed the judge; (ii) the judgment will contain something with which the unsuccessful party can legitimately take issue and attempt to launch an appeal; (iii) citation of the judgment in future cases will lengthen the hearing of those future cases because time will be taken sorting out the precise status of the judicial observation in question; (iv) reading the judgment will occupy a considerable amount of the time of legal advisers to other parties in future cases who again will have to sort out the status of the judicial observation in question. All this adds to the cost of obtaining legal advice.
84. Our system of full judgments has many advantages but one must also be conscious of the disadvantages.”
“5.11 The decisive consideration, in choosing between the parties on these issues, is my finding that the Elvins were in fact at all material times the owners of No 9 and the freehold, but not (until 2009) of No 10. This being so, C cannot be telling the truth when he says that he only had two encounters with David Elvin at the premises, one before and one after the flood, on each of which occasions Mr Elvin said that he owned the upstairs, and on the second of which he said he was not the freeholder. There is no conceivable reason why Mr Elvin should have told C the opposite of the truth on these occasions. It is clear from the Joscelyne Chase letter that in mid-2001 David Elvin was visiting the premises and claiming to own the ground floor. It is equally clear that it was Lowthers who effectively owned the upstairs, and who dealt with C on that basis after the flood. If Mr Elvin met and spoke to C at the premises in 2005, it must have been on the basis that Mr Elvin knew himself to be the freeholder and knew that he had not sold or leased the ground floor to anyone else. Unless C was his tenant or licensee, Mr Elvin must have known or believed him to be a trespasser or squatter, but neither party suggests that they spoke on that basis.
5.12 On the balance of probabilities, it is considerably more likely that Mr Elvin admitted C to the ground floor by agreement, and took rent from him, as he had previously done with other commercial tenants there, than that he allowed him to enter as a squatter and to remain there without objection for many years. I conclude that the Defendants’ account of events is substantially more persuasive than the Claimant’s, and I find that it is true that C first entered the ground floor after December 2001, and on the basis of an oral tenancy agreement pursuant to which he paid rent for several years.
5.13 It is obviously surprising in those circumstances that when C ceased paying rent the Ds took so few steps to recover the rent, and none to obtain possession, until after the police raid in 2013. They gave two reasons for this; firstly that in the aftermath of the flood C had ceased trading, and secondly that since Damien was a friend of C’s son he did not wish to take action against C. I also note that, as Mr Patterson told his solicitor and as I can well accept, C is a “somewhat intimidating” man with whom a local businessman might not wish to quarrel. (When the Defendants did recover possession via the police in 2013, their first step was to install an apparently formidable bailiff to secure the premises.) The Defendants’ failure to take action earlier is a point against them; but it is not strong enough to overturn the positive case, based on their long ownership of and involvement with these premises, which has led me to decide these issues in their favour.”
“The judge was aware that there were faults and gaps in the defendant’s proof of title. This was what gave the claimant scope to dispute it… But none of the points made on the evidence (at trial, and thoroughly developed in the claimant’s skeleton argument for this appeal) is explained by any theory better than the conclusions reached by the judge.”