Crossing the line: neighbour property disputes

Litigators need to propound to their clients the benefits of mediation in property disputes to cut down on the expensive and time-consuming battles through the courts, say Brie Stevens-Hoare QC and Rupert Cohen

Neighbour property disputes have always been very unpopular with the courts. The costs are disproportionate and the risk of adverse costs orders, even for the victor, are well known.

Such litigation often increases rather than resolves animosity between parties. Final judgment after years of unpleasantness is followed, all too often, by years of contempt, harassment and other proceedings.

Mediation provides the prospect of an early, cost-effective resolution that neighbours can live with even if they will never be friends. Persuading clients not to litigate is usually in their best interests.

Hoary maxim

The courts' antipathy to neighbour property disputes is clearly evidenced in Devon Cameron v Angela Boggiano, Craig Robertson [2012] EWCA Civ 157 where Mummery LJ said at [7]: "The court would be failing in its duty if it did not… warn others that the only certainty in [boundary disputes] is that the financial outlay is almost always more than the disputed property is worth.

"If the court's warnings are ignored, there will one day be a final reckoning of the total expenditure and immeasurable human misery, and the hoary maxim 'he that goes to law holds a wolf by the ears' will strike a chord.

The reason the judiciary find boundary disputes so irksome is that the cost of litigation is invariably many times the value of the disputed interest. Even worse, those disproportionate costs often fuel the parties' litigious relationship rather than ending it.

Neighbours do not go their separate ways after judgment. More litigation often follows and may involve repeated breaches of orders and contempt proceedings. There are many examples of more harmful escalations of tensions.

Recently in Saxton v Bayliss (unreported, January 2014), having lost their right of way dispute, Mr and Mrs Bayliss embarked on a campaign of harassment against 67-year-old Mrs Saxton.

They glued a gate blocking her right of way, sought to have her sectioned under the Mental Health Act 1983, assaulted her and then, when Mrs Saxton's action in harassment came to trial, maliciously denied the right of way and true position of the boundary.

HHJ Gerald awarded damages £35,000 against them and ordered them to pay £300,000 costs.

Last year there was spin-off libel litigation in Krause v Newsquest Media Group Ltd [2013] EWHC 3400. Ms Krause brought libel actions against newspapers which reported that Ms Krause was subject to a restraining order following various altercations with her neighbours. Ms Krause objected to comments in the article including the revelation that Ms Krause, "who is now legally a woman… used to be a man".

Her actions were dismissed as an abuse of process and an attempt to re-litigate the original action.

In Giles v Tarry [2012] EWCA Civ 1886 the Court of Appeal held it was appropriate to fine Mr Giles for non-compliance with an order obliging him to remove stakes and sockets in a field following an unsuccessful boundary dispute.

Setting boundaries

What should a solicitor do when faced with a client who is considering initiating a boundary dispute? Recent cases illustrate where the best interests of most clients lie.

Employ a three-pronged approach with the client: first, ascertain what the client really wants, whether that outcome is even legally possible and if so is it probable; second, ensure the client knows how expensive the process is; and, third, warn them about what they may be getting into while singing the praises of mediation.

The first consideration sounds facile but, given the nature of neighbour disputes and the frequency with which injunctive relief is refused, it is worth dwelling on.

When a client comes to a solicitor about his neighbour's new garage encroaching on his land, he wants to force his neighbour to pull it down. Sometimes he feels insulted and violated, just as the victim of a burglary does.

However, the court is unlikely to brand the neighbour a criminal or even a scoundrel. Worse still, a demolition does not automatically follow a trespass. A realistic assessment of the prospects of an injunction rather than modest damages in lieu may dampen the urge to 'see him in court'.

In Acco Properties Limited v Severn [2011] EWHC 1362 the defendant had built a fence on the disputed area that was some 20 yards long and 19 inches wide. The claimant sought a mandatory injunction requiring the fence to be pulled down. The claimant succeeded in establishing the fence was on their land.

However, HHJ Barker QC sitting in the High Court refused to grant an injunction. He awarded the claimant a mere £1,000 in damages. Similarly, in Wynn-Jones v Bickley [2006] EWHC 1991, the claimant successfully proved that part of the defendant's extension was on her land. The judge refused a mandatory injunction and awarded him £15,000 in damages for the encroachment. It's hard to imagine that the claimant in either case came away satisfied.

Often anger apparently focused on an encroachment stems from other events and tensions. Those matters will simply not be addressed by litigation. Such litigation guarantees at least one poorer and angrier neighbour and often delivers two.

Crystal ball

The second prong involves a crystal ball on the escalation of tensions and costs. Boundary disputes are mind-bogglingly expensive and indemnity costs are rare. It is important to ensure clients really understand this and that they run the risk of increased tensions leading to years of ongoing litigation by way of proceedings for enforcement or harassment.

The adverse realities of the court's approach to such cases for some litigants successful and unsuccessful should made clear.

The risk of the rejection of mediation or even ignoring it at an early stage in proceedings is now well known. The risks associated with the lengths to which such litigation can drive some people were highlighted in Hutchinson and Penning v Neale [2012] EWCA Civ 345.

The successful claimants were found to have altered the date on a conveyancing map. Even though the map had no ultimate impact on the outcome of the trial, the Court of Appeal (COA) approved an order limiting the claimants to 70 per cent of their costs on the standard basis, subject to payment of the defendants' costs on an indemnity basis for all costs incurred in addressing the forged map.

The importance of early mediation is being increasingly highlighted by the courts. The COA has sent some strong messages: see Oliver v Symons [2012] EWCA Civ 267 and Bradford v James [2008] EWCA Civ 837.

In Oliver v Symons, a dispute over 100 metres of a right of way, the appellants alone were estimated to have spent some £150,000 in costs. Ward LJ at paragraph [53] stated: "It depresses me that solicitors cannot at the very first interview persuade their clients to put their faith in the hands of an experienced mediator, a dispassionate third party, to guide them to a fair and sensible compromise of an unseemly battle which will otherwise blight their lives for months and months to come."

In Bradford v James, a cobbled area of land less than three metres wide between a farmhouse and a barn was in dispute. The fact the parties lived less than three metres apart with no visible dividing line was not lost on the court.

Mummery LJ voiced the court's ire. He stated at paragraph [1]: "There are too many calamitous neighbour disputes in the courts. Greater use should be made of the services of local mediators, who have specialist legal and surveying skills and are experienced in alternative dispute resolution. An attempt at mediation should be made right at the beginning of the dispute and certainly well before things turn nasty and become expensive."

Mediation should always be explored before issuing proceedings. The ideal mediator will be an impartial professional with experience in ADR, property litigation and conveyancing, capable of commanding the respect of all parties.

For as long as our strong attachment to property leads us to believe an Englishman's home is his castle, neighbour disputes will remain a feature of property litigation. However, increasingly, a solicitor's duty must be to highlight to clients the risks associated with such litigation and the immense value of mediation which can reduce the number of pyrrhic victories and limit typically prolonged nightmares for clients.