Plaintiff alleging trespass by neighbour – Trees planted by plaintiff topped by neighbour – Dispute heard in small claims court – Court finding trees growing on defendant’s land – Subsequent action by plaintiff in county court successful – Plaintiff bringing third action for damages – Defendant raising issue estoppel – Conflicting decisions of lower courts – Judge striking out plaintiff’s claim – Appeal dismissed
The plaintiff complained that his neighbour, the defendant, had trimmed a row of trees planted by the plaintiff close to the fence marking the boundary between their properties and claimed damages for trespass. In response the defendant asserted that he had been entitled to cut the trees. The dispute was resolved by arbitration in the small claims court, Hereford. Although the district judge reiterated his opinion that the case was important and should be decided in open court, the parties declined to apply to have it so heard. The district judge made a finding that the trees were growing out of the defendant’s land and therefore there had been no trespass. The plaintiff made an application, which was refused, to set aside the order. In the meantime the defendant had felled 10 of the trees and the plaintiff had started a fresh action in Gloucester County Court. The statement of claim was phrased to avoid making any claim with respect to the trees, although the plaintiff referred to the felling of the 10 trees. The district judge awarded damages for trespass against the defendant and declared the boundary showing the trees on the plaintiff’s land . The defendant’s appeal against that award was dismissed. The plaintiff then issued fresh proceedings in Gloucester County Court claiming £5,000 damages. The defendant’s application to strike out was dismissed by the district judge and the judge, deciding that the plaintiff was estopped by the award of the arbitrator of the Hereford court from disputing the defendant’s right to fell the trees, struck out the claim. The plaintiff appealed.
Held The appeal was dismissed.
1. The order of the arbitrator, the district judge, in the Hereford small claims court, was a final order which had not been set aside. The plaintiff had been informed and the reasons for the decision had been given, and the district judge had found as a fact that the trees were growing out of land owned by the defendant. The decision of the arbitrator had been entered as the judgment in the proceedings and was as binding as if it had been given by the judge: see section 64(3) of the County Court Act 1984. There was no ground for asserting that that decision was inferior to the later decision of Gloucester County Court.
2. Issue estoppel arose out of the finding in the first action in the small claims court that the trees were on the defendant’s land. That finding was directly in issue and was final and conclusive in the action the subject of the present appeal.
The appellant appeared in person; Steven Donoghue (instructed by Shawcross & Co, of Ross-on-Wye) appeared for the respondent.
