Expert report binds parties in boundary dispute

A boundary award made by a jointly commissioned expert has been upheld after the High Court confirmed its enforceability.

Handing down judgment in the Queen’s Bench Division earlier this month, Mrs Justice Lang agreed with the decision of His Honour Judge Simpkiss that the award was final and binding upon the parties.

The case arose over a boundary dispute between neighbours. The parties appointed Mr Clarke, a chartered building surveyor, under a compromise agreement to act as an independent expert in July 2013 and agreed to be bound by his decision.

After Clarke favoured the respondents in his report, the appellant hired another independent surveyor, Mr Powell, in August 2013 to consider Clarke’s report. Subsequently, the respondents issued a claim under CPR Part 8 as to whether the joint letter of instruction to Clarke was a binding agreement and, if so, was Clarke's award a final award that was binding on both parties.

However, in October 2014, new evidence came to light after the respondent’s former solicitors found a conveyance dated 1965 relating to the same plots of land where the parties’ houses were built. Clarke and Powell were jointly ordered to prepare a joint report which was signed in November 2014 and confirmed Clarke’s original findings subject to a slight boundary adjustment of six inches.

Before HHJ Simpkiss at Brighton County Court, the appellant submitted that Clarke's award ought to be set aside because it was invalid. However, this was rejected because the parties had entered into the binding compromise agreement.

On appeal, the appellant contended that Clarke had exceeded the proper scope of his instructions by not considering the 1965 conveyance when determining the boundary in accordance with the law. Further, that the judge had erred in deciding that Clarke had acted in accordance with his instructions.

Lang J rejected both of these arguments: ‘The appellant's submission that determination by an expert could not, as a matter of principle, include determination of a disputed question of law was not consistent with the modern law on expert determinations.’

She continued: ‘Mr Clarke painstakingly analysed the material before him in reaching his conclusions on the correct boundary line… In the November 2014 joint report, he carried out a full and careful analysis, taking into account the 1965 conveyance.

‘Whilst I understand that the appellant disagrees with Mr Clarke's conclusions, in my view, Mr Clarke's analysis and exercise of judgment was well within the scope of his instructions, whether his conclusions were right or wrong. Therefore it is not open to challenge.’

Nicholas Barnes, a barrister at 2 King’s Bench Walk, who represented the respondents, told Solicitors Journal that he hoped the case would highlight that expert determination is an ‘extremely useful way’ of resolving disputes without incurring the disproportionate fees arising from litigation.

‘The case reaffirms that if you choose expert determination as a form of alternative dispute resolution then you’ll be bound by it. It is a perfectly useful and viable alternative for those who may not have the money to enter boundary disputes.’

Correction: This article has been amended from the original version published on 30 November 2016. We are happy to confirm that the issue was whether Mr Clarke’s award was enforceable as a matter of law, not whether the initial award was ‘mistaken’.

Matthew Rogers is a reporter at Solicitors Journal

matthew.rogers@solicitorsjournal.co.uk | @lex_progress

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