[2025] UKUT 204 (LC)

In relation to Batchelor v Marlow, the Appellant sought to introduce four photographs, two of them aerial photographs, which showed the location of the L-shaped strip of land, verging on the public highway, which was the subject of the claim, in that case, to a right of parking by the defendants. All of the photographs postdated both the original trial and the hearing of the appeal in Batchelor v Marlow. The Appellant sought to introduce the photographs by their solicitors emailing the Tribunal on 2^nd June 2025, notifying the Tribunal of the Appellant’s intention to add the four photographs to the appeal bundle.

Perhaps not surprisingly, this provoked an objection from the Respondent’s solicitor, who had been copied in on the email to the Tribunal from the Appellant’s solicitors. This objection was notified to the Tribunal by an email from the Respondent’s solicitors, sent on 4^th June 2025, which included a series of peremptory demands either to destroy the revised appeal bundle or, if the Tribunal had already considered the photographs, to recuse itself and re-list the Appeal for hearing on a later date.

At the hearing of the Appeal, Mr Ball maintained, in more measured terms, the Respondent’s objection to my considering the photographs. He submitted that the photographs could not have been evidence in the trial in Batchelor v Marlow, because they postdated, substantially, the trial. He also submitted that the photographs were of no assistance to me in considering Batchelor v Marlow. His primary submission was that I should disregard the photographs. His secondary submission, if I was prepared to have regard to the photographs, was that I should attach no weight to the photographs.

Where a decision of a court or tribunal which involved a dispute over real property such as a dispute over an easement, is relied upon as authority in a different case, photographs and/or plans of the relevant property can occasionally be helpful. It can be helpful to understand the topography of the property, in the decision relied upon as authority, if such an understanding is required and if such an understanding cannot be obtained from the relevant decision itself.

The present case does not fall into this category. I took the view that it was appropriate for me to consider the four photographs, without prejudice to my decision on whether to exclude the same, in order to see if they were of any assistance to me. I concluded that the photographs were not of assistance, I reached this conclusion for two reasons. First, the photographs were not a reliable guide to the topography of the relevant strip of land at the time of the trial in Batchelor v Marlow. The photographs dated, respectively, from 2006, 2012, 2021 and 2025. As such the photographs postdated, substantially, the trial in Batchelor v Marlow. Second, the photographs, even if they had been reliable evidence of the topography at the relevant time, were not required. I had, in the bundle of authorities for the hearing of the Appeal, both the first instance decision in Batchelor v Marlow and the decision of the Court of Appeal. The reports of these decisions provided all the information which I needed to consider Batchelor v Marlow in the context of the Appeal. In particular Mr Warren QC included a detailed account of the relevant topography at the outset of his first instance judgment.

In these circumstances I concluded that it was unnecessary to exclude the photographs from the materials before me in the Appeal. The photographs were not required, for the reason which I have just explained. In these circumstances it is not necessary for me to place any reliance upon the photographs, and I have not done so. I therefore accept the secondary submission of Mr Ball; namely that I should attach no weight to the photographs.

My only other observation in this context is that some of the heat, at least, would have been taken out of this minor procedural dispute if the Appellant’s solicitors had approached the Respondent’s solicitor, prior to attempting to incorporate the photographs into the appeal bundle, for the purposes of seeking the Respondent’s agreement to the photographs being included in the appeal bundle. So far as I am aware, the Appellant’s solicitors did not do this, but instead sought to include the photographs in the appeal bundle by direct communication with the Tribunal. If the consent of the Respondent had been sought first, and on the assumption that this consent had not been forthcoming, the parties could then have liaised on an agreed method of putting the photographs before the Tribunal for the purposes of resolving the dispute over whether they should be admitted into the materials before the Tribunal in the Appeal. This would have been sensible case management, and would have spared the Tribunal some intemperate correspondence.