[2024] UKUT 00153 (LC)

The starting point is the relevant finding made by the Judge. It seems to me that the relevant finding is set out in the second sentence of Paragraph 59:

It seems clear to me that this was a finding of fact by the Judge. The finding was that the Sign could be seen by anyone going up the Staircase. The Judge then proceeded to consider the effect of the Wording, which would not have been necessary if the Judge had found that the Wording would not have been legible to those using the Staircase.

In support of the Cross Appeal the Respondents advanced what were effectively three arguments, each of which is helpfully summarised in the concluding section of the Respondent’s Notice and Cross Appeal, which I have set out in the previous section of this decision.

Before dealing with these individual arguments there are two general points to be made in relation to the Cross Appeal.

The first point relates to the nature of appeals to the Upper Tribunal. In general terms, but subject to important exceptions, the right of appeal to an Upper Tribunal from a decision of a First-tier Tribunal is a right to appeal on a point of law arising from the decision of the FTT; see Section 11 of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”). In the case of appeals to the Lands Chamber there are a number of specific statutory rights of appeal from the FTT. In particular, in the case of decisions of the FTT made under the Land Registration Act 2002, such as the Decision, there is a general right of appeal under Section 111(1) of the Land Registration Act 2002. This right of appeal does not extend to appeals on points of law. This does not mean that appeals on points of law are precluded by Section 111(1). Rather, if and to the extent that an appeal in such a case engages a point of law, the right of appeal exists under Section 11(1) of the 2007 Act.

In a case where the relevant appeal is an appeal on a point of law, made pursuant to Section 11(1) of the 2007 Act, and the appeal is made against a finding of fact made by the FTT, the circumstances in which an error of law can be said to have been made are fairly narrowly defined. The most well-known statement of what is required in order to establish such an error of law can be found in Edwards v Bairstow [1956] AC 14. In his speech in the House of Lords Lord Radcliffe explained the law in the following terms, at page 36 of the report:

Edwards v Bairstow was not amongst the authorities put before me at the hearing of the Appeal and Cross Appeal. This was no doubt because the parties were not confined, either in the Appeal or the Cross Appeal, to an appeal on a point of law. Given however that the Cross Appeal is, in my judgment, an appeal against a finding of fact made by the Judge, I considered it relevant to invite the parties to make further written submissions on the implications of Edwards v Bairstow in relation to the Cross Appeal, with particular reference to the extract from Lord Radcliffe’s speech which I have cited above. My concern was to identify whether it was said by the Respondents that the Judge had gone wrong in law in her finding that the Sign could be seen by anyone going up the Staircase and, if so, on what basis. Both Mr Wilmshurst, for the Appellants, and the Respondents did provide further written submissions in response to this invitation. I was therefore provided with submissions on the implications of Edwards v Bairstow for the Cross Appeal, which I have taken into account in my analysis of the Cross Appeal.

The second, and related point is that it has been said many times that appeal courts should be slow to interfere with findings of fact made by the first instance court. The same applies to appeals from first instance tribunals. Where a judge has seen and heard all the evidence, the appeal court or appeal tribunal, which will not have had the same advantage, should not interfere with the findings of fact made by the judge without good reason. In the present case I was not taken specifically to any of the authorities where this point has been made, but Mr Wilmshurst took his stand, in relation to the Cross Appeal, on the argument that the Judge’s finding on the legibility of the Sign was a finding of fact with which I could not and should not interfere.

In relation to these two general points I am not convinced, in the circumstances of the present case, that the position is as straightforward as Mr Wilmshurst contended. The finding of fact made by the Judge was a finding that the Sign could be read by anyone going up the Staircase. While it will be understood that this is not, in any way, a criticism, the Judge did not make a site visit. In making her finding that the Sign would have been legible I assume that the Judge relied, in part at least, upon much of the same material as was before me; namely the photographs of the Sign and the virtual tour of the location, which included film of the Sign, prepared by the Appellants. This was not a case, at least so far as the Cross Appeal was concerned, where the Judge was required to resolve a conflict of evidence between two witnesses, whose evidence she heard and saw. In the latter case it would be very difficult for me to interfere with the Judge’s resolution of the conflict of evidence. On the question of the legibility of the Sign, there may be an argument that I am in as good a position as the Judge to consider the question of the legibility of the Sign, on the basis that we are both looking at the same documentary evidence. I will deal with this argument in my analysis of the specific grounds advanced in support of the Cross Appeal.

With the above two general points in mind, I turn to the specific grounds of the Cross Appeal.

The Respondents’ first ground is that the Judge, who is said to have had to work from very limited photographic evidence, misdirected herself in that the height and position and small size of the Sign were such that it was in fact not legible to a user of the Staircase. As is apparent, this is essentially an argument that the Judge got her finding wrong.

I am not able to accept this argument, essentially for two reasons.

My first reason is based upon my own assessment of the evidence which I have seen. It is true that the Sign is a small one. It is located at a high point on the Wall. It is not actually possible to read the Wording on any of the photographs of the Sign which I have seen, or in the virtual tour at those points where the Sign is in camera shot. That said, none of the photographs were taken and none of the film was shot from the position in which a user of the Staircase would have been at the point when they would have passed the Sign, immediately to their right as they approached the top of the Staircase. The reason why film could not be shot nor photographs be taken from the key position was because the Staircase was removed, without prior notice to the Respondents. If the question of the legibility of the Sign was before me, as a first instance tribunal called upon to decide this question, I would, on the evidence which I have seen, have reached the same conclusion as the Judge. I would have found that the Sign, although small and placed at a considerable height from the ground, could have been read by anyone going up the Staircase.

My first reason assumes however that it is appropriate for me to make any own decision on the question of the legibility of the Sign. This is not the position, which brings me to my second reason for being unable to accept the first ground of the Cross Appeal. I am hearing the Cross Appeal by way of a review, not a rehearing. By an order made on 18^th October 2023 Martin Rodger KC, the Deputy Chamber President, directed that the Appeal should be heard by way of a review. It seems to me that the same applies to the Cross Appeal. The hearing before me was not therefore a rehearing of the Application.

The question for me is therefore whether there is any basis on which I can and should interfere with Judge’s finding. Even if I had reservations as to the correctness of the finding made by the Judge, which I do not for the reasons which I have just set out, I do not think that I would be entitled to interfere with the finding. While I have assumed that the Judge, at least in part, relied upon much the same material as was before me, I do not think that the position is this straightforward. To return to the question which I left outstanding above, I do not think that I am in as good a position as the Judge to make a decision on the legibility of the Sign. The Judge heard all the evidence which was put before her at the Hearing, and all the argument on that evidence. The Judge heard the oral evidence of each of the Respondents and the First Appellant, Mr Nicholson. I understand that all three witnesses were cross examined. The question of the legibility of the Sign to a user of the Staircase was ultimately a matter for the evaluation of the Judge on the basis of all the evidence. It seems to me that it was not a question to be resolved by the oral evidence of any particular witness. The Judge was however able to make her evaluation on the basis of all the evidence, including the oral evidence. I am not in the same position. The finding made by the Judge on the question of the legibility of the Sign is not, on any view of the matter, obviously wrong. Nor can it be said to have engaged any obvious error. There plainly was evidence on the basis of which the Judge could conclude that the Sign could be read by anyone going up the Staircase. In those circumstances I do not think that I would be entitled to interfere with the Judge’s finding on the question of legibility even if, which is not the position, I entertained doubts as to the correctness of the finding.

The second ground of the Cross Appeal accuses the Judge of failing to deal with the evidence of the Respondents, which is said to have been that they could not recall ever seeing the Sign during the course of their use of the Staircase over more than 20 years.

There are a number of problems with this second ground. The first of these problems is that I have not seen a transcript of the evidence given at the Hearing. I have not been able to confirm for myself that the Respondents did give this evidence, without challenge or qualification. If however it is assumed that the Respondents did give this evidence, without challenge or qualification, the question of what account to take of this evidence was a matter for the Judge.

In this context I note that the Judge reviewed the evidence of the Respondents in some detail in the Decision. I note, in particular, that the Judge recorded the following evidence of the Respondents in relation to the Sign, at Paragraph 44:

It is quite clear that the Judge had the evidence given by the Respondents in relation to the Sign well in mind. If the Respondents did give evidence, without challenge or qualification, that they could not recall ever seeing the Sign, I am entitled to assume that the Judge took this evidence into account in making her finding on the legibility of the Sign. A judge is not required to record, in a judgment or decision, every item of evidence read or heard by the judge in the relevant hearing.

This leaves the question of what account the Judge should have taken of this part of the Respondents’ evidence, assuming that the evidence was that the Respondents could not recall ever seeing the Sign. The key point here is that this evidence was not decisive on the question of the legibility of the Sign. The Judge had to decide whether the Sign was legible to users of the Staircase. The question was not, or at least was not directly whether the Respondents saw the Sign. The question for the Judge was whether a reasonable user of the Staircase would have seen the Sign.

That this is the correct question is clear from a case to which the Respondents made extensive reference, both in their Respondents Notice and Cross Appeal and in their skeleton argument for the hearing of the Appeal and the Cross Appeal. The case in question is R (Oxfordshire & Buckinghamshire Mental Health NHS Foundation Trust and Oxford Radcliffe Hospitals NHS Trust) v Oxfordshire County Council [2010] EWHC 530 (Admin), which is more conveniently referred to as “the Warneford Meadow case”. In his judgment in this case, at [22], Judge Waksman QC, as he then was, set out a set of general principles in relation to the question of whether a sign was adequate to prevent the acquisition of a right over land by prescription. For present purposes, the first two principles stated by Judge Waksman are relevant:

The Judge found that the Respondents had made regular use of the Staircase. As such, it seems to me that the Respondents’ evidence that they did not recall seeing the Sign was evidence which was relevant to the question of whether the Sign was visible and legible to users of the Staircase; see principles (1) and (2) as stated by Judge Waksman in the Warneford Meadow case. The question of what weight to give that evidence was however a matter for the Judge. I can see no basis on which I can or should interfere with the Judge’s evaluation of the evidence given by the Respondents, so far as it was relevant to the question of the legibility of the Sign.

In these circumstances it seems to me that the second ground of the Cross Appeal must fail. It is not clear to me that the Respondents did give evidence, without challenge or qualification, that they could not recall seeing the Sign. If this evidence was given, the Respondents have failed to establish that it was not taken into account by the Judge. To the contrary, it is clear that the Judge did take into account the Respondents’ evidence in relation to the Sign. As for the weight to be given to this evidence, this was a matter for the Judge. The Judge was not compelled by this evidence to find that the Sign was not legible to users of the Staircase, and there is no basis on which I can or should interfere with the finding which the Judge did make as to the legibility of the Sign.

This leaves the third ground of the Cross Appeal. The argument here is that there was no evidence before the Judge of any past user of the Staircase stating that they were aware of the Sign and had read the Sign while going up the Staircase.

The problem with this third ground of the Cross Appeal seems to me to be similar to the last of the problems which I have identified in relation to the second ground of the Cross Appeal. As I understand the position, the only witnesses who gave evidence at the Hearing were the Respondents and Mr Nicholson, the First Appellant. Mr Nicholson was not able to give evidence as to the historic position. His evidence, as recorded, in Paragraph 52, was that neither he nor the Second Appellant, Mr Stafford, saw anyone using the Staircase during the 22 month period from first viewing Number 4 to the demolition of the Staircase. The Respondents have said that their evidence was that they did not recall seeing the Sign. I therefore assume that it is correct that there was no evidence before the Judge of any past user of the Staircase having been aware of the Sign while going up the Staircase.

I can see that this gap in the evidence might have been said to have some relevance to the question of the legibility of the Sign. As with the Respondents’ evidence however, the weight to be given to this gap in the evidence was a matter for the Judge. The question for the Judge was not whether past users of the Staircase had been aware of the Sign and had read the Sign. The question for the Judge was whether the Sign was legible to a reasonable user of the Staircase, so that it could be read by that user. The Judge found that the Sign could be read by anyone going up the Staircase. In answering this question the gap in the evidence to which I have referred was not decisive. At best, the gap in the evidence might have been said to have some relevance to this question. It was a matter for the Judge to decide whether and, if so, to what extent, weight should be given to this gap in the evidence. I can see no basis on which it can be said that this gap in the evidence compelled or came anywhere near compelling the Judge to find that the Sign could not be read by users of the staircase. In these circumstances it seems that the third ground of the Cross Appeal must fail.

What I have said above is sufficient for the determination of the Cross Appeal. There is no sufficient ground for challenging the Judge’s finding that the Sign could be read by anyone going up the Staircase. I should however also make brief reference to the test stated in Edwards v Bairstow because the Respondents did contend, in their further written submissions, that the Judge had gone wrong in law in her finding on the legibility of the Sign.

It seems to me that the grounds of the Cross Appeal come nowhere near satisfying the test stated in Edwards v Bairstow. While I pay tribute to the drafting of the further written submissions filed by the Respondents, which was of a high standard, the essential problem confronting the Respondents was that they were compelled effectively to repeat their arguments in support of the Cross Appeal as reasons why the Judge had made an error of law in her finding that the Sign could have been read by anyone going up the Staircase. While it seems to me that these arguments do not have merit, for the reasons which I have set out above, it seems to me that they also come nowhere near establishing that the Judge reached a conclusion on the evidence which was not open to her.

The Respondents did, in their further written submissions, seek to argue (i) that the Judge had failed properly to consider the evidence given by the Respondents, and (ii) that the Judge had failed properly to consider the absence of any evidence of any user of the Staircase having seen the Sign, and (iii) that the Judge had failed to explain her reasons for not taking this evidence into account. These arguments seem to me to be misconceived, for the reasons which I have already explained in my analysis of the Cross Appeal. The Judge clearly did have all the relevant evidence in mind, when she made her finding on the legibility of the Sign and, as I have said, her finding was plainly one which, on the evidence, she was entitled to make.

It follows from my analysis of the Cross Appeal that the finding of the Judge that the Sign could be read by anyone going up the Staircase does not fall to be set aside. In my judgment the Judge did not go wrong in her finding that the Sign could be read by anyone going up the Staircase, either as a matter of fact or as a matter of law. In these circumstances there is no basis for me to make my own determination of the question of the legibility of the Sign, independent of the fact that my own determination would, as I have explained above, have been the same as the finding made by the Judge. Nor is there any basis for this question to be remitted to the FTT for further determination.

For the reasons which I have set out, the Cross Appeal fails and falls to be dismissed. It follows that the Appeal does arise for decision, without any qualification concerning the status of the Judge’s finding that the Sign would have been legible to anyone going up the Staircase. I therefore turn to my analysis of the Appeal.