Loathe thy neighbour
Boundary disputes between neighbours should be kept out of the courts – practitioners have a duty to warn clients of the potentially costly consequences and to strongly recommend mediation, warns Paul Denham
The Court of Appeal on several occasions in recent years has considered the vexed question of boundary disputes. The latest concerns a few feet of land on an open plan estate in Cheltenham (Charalambous v Welding [2009] EWCA Civ 1578). As Lawrence Collins LJ said in Haycocks v Neville [2007] EWCA Civ 78, it was easy to agree with the outside observer that such disputes produced feelings 'bordering on despair'. Boundary disputes are indeed a costly exercise and should be embarked upon only with the greatest degree of caution. In Charalambous, the value of the land was probably less than £5,000, but by the time the full Court of Appeal heard the case (after two preliminary appeals) the costs involved were the best part of a quarter of a million pounds.
In Haycocks the issue was not entirely dissimilar, as the dispute was between neighbours about the location of the boundary between the front gardens of their houses and the authenticity of the Land Registry line which was based upon a poorly drawn original plan. The trial judge in effect rejected the evidence of both parties' experts and, paying attention to certain topographical features, drew her own line. The Court of Appeal accepted that extrinsic evidence was not admissible for the construction of a written contract, but it was permissible to have regard to extraneous evidence of a probative value to the precise issues in dispute '“ a point also emphasised in Liaquat Ali v Robert Lane [2006] EWCA Civ 1532, where regard was had to Megarry J's comments in Neilson v Poole [1969] 20 P&CR 909: 'The court cannot simply say that the boundaries are uncertain, and leave the plot conveyed fuzzy at the edges, as it were. Yet modern conveyances are all too often indefinite or contradictory in their parcels. In such circumstances, to reject any evidence afforded by what the common vendor has done in subsequent conveyances seems to me to require justification by some convincing ground of judicial policy'¦'
In Alan Wibberley Building Limited v Insley [1999] 1 WLR 894, Lord Hoffmann noted that in conveyancing plans 'the scale is often so small and the lines marking the boundaries so thick as to be useless for any purpose except general identification'. In this instance, the defendant, on appeal, was found to have been in possession of a disputed strip of land, and as the burden was on the plaintiff to show a better title, so here a reference to the OS map had not displaced a hedge and ditch presumption.
Similar difficulties had arisen in the much earlier Privy Council case of Watcham v Attorney-General of the East Africa Protectorate [1919] AC 553, where it was held that later evidence could be admitted as an aid to construction. In Ali, which involved a dispute of an area of land under an acre in south Worcestershire, there was also an issue of adverse possession, which was a matter that similarly arose in Charalambous.
The need in such cases for mediation or ADR (alternative dispute resolution) is certainly apparent, as emphasised by the Court of Appeal in Piper v Wakeford [2008] EWCA Civ 1378. In this case, there was sufficient evidence to show that a fence erected some time after a conveyance dating back to 1908 signified an intention to clarify the precise location of an unclear boundary. Indeed, in Piper there was a more unusual aspect since it appeared that there was land between the two boundaries which belonged to neither litigant.
But Lord Justice Lloyd also said: 'In other respects, the dispute has all too many features that are usual and familiar: on the one hand the need for the parties to have their disputes resolved by the court, rather than by any process of sensible discussion, accommodation or mediation (though such processes were at least attempted) and on the other hand the fact that the issue turns on the interpretation of a conveyance and its plan, executed 100 years ago'¦ in relation to which there is very little information available as regards the relevant surrounding circumstances, and where the information given by the document itself is inadequately detailed.'
In Charalambous, where Mr Charalambous was the losing appellant, mediation had been attempted twice but appeared doomed from the outset. When the respondent, Dr Robert Welding, a consultant physician, commenced proceedings in the Gloucester County Court in the summer of 2007 '“ he had moved into his property exactly a year before and relations with his neighbours deteriorated rapidly '“ it was not clear whether court officials might allocate the dispute to the small claims track, but after a number of hearings before the district judge it became obvious that the case would be allocated to the multi-track (irrespective of any of Lord Woolf's good intentions in Access to Justice in 1996) and from that moment the taxi-meter started to tick very fast.
The importance of ADR
Lord Justice Carnwarth noted in Ali: 'It is sadly a commonplace that boundary disputes can be fought with a passion which seems out of all proportion to the importance of what is involved in practical terms. In such cases, professional advisers should regard themselves as under a duty to ensure that their clients are aware of the potentially catastrophic consequences of litigation of this kind and of the possibilities of alternative dispute procedures.'
In Charalambous, Lord Justice Stanley Burnton said a sad feature of the case was that the relationship between the litigants had broken down amid 'extreme ill-feeling', while the previous neighbours had lived in harmony, cutting each other's lawns when the other was on holiday. 'The case is even sadder when one considers the evidence of their predecessors, which shows that formerly relations between neighbours were good in the extreme.' But to overturn the judgment of Judge Harington in Gloucester County Court in late 2008, Mr Charalambous needed to show the trial judge's findings of fact were 'perverse', or 'unsupported by the evidence' or 'ignored relevant other evidence'. This Mr Charalambous had signally failed to do, for there had been evidence on which the judge could properly conclude the previous owners had not discussed and agreed a boundary line.
Burnton LJ continued: 'It seems to me that those findings were entirely open to the judge on the evidence. In my judgment, it has not been shown that the judge was not entitled to make the findings of fact made.' Lord Justice Ward (in this two-man court) commented that the behaviour of the previous owners, treating the plants as all but a boundary, did not undermine the county court ruling as it was 'not sufficient to displace the fact there was no firm agreement'.
It was a close run thing as to whether the appeal was heard at all. In a paper application permission to appeal was refused by Lord Justice Aikens in the spring of 2009. He said: 'This case, concerning a boundary dispute between neighbours, depended entirely on issues of fact'¦ The judge made his findings of fact after he had heard oral evidence from the protagonists and he had considered the joint report of the parties' experts. There is no reasonable prospect of upsetting the judge's findings of fact upon which he reached his conclusions that there was no boundary agreement or proprietary estoppel.' In essence, the full Court of Appeal followed this line, but in the summer of 2009 at an ex parte oral hearing Lord Justice Jacob reluctantly overturned the Aikens' refusal, when at one point he said to counsel for the appellant: 'What I think you are saying is that all the expert evidence should have been binned.' Later he said: 'I am going to give you permission to appeal'¦ but I do it with some trepidation'¦ I probably will get into frightful trouble with my brothers and sisters when they hear the case'¦'
Charalambous had originally involved a number of issues, but by the time it reached a full hearing before the Court of Appeal, the argument simply turned upon the nature of the boundary line at common law and the purported absence of any boundary agreement. From a practical point of view in this instance, the claimant (Dr Welding) was clearly an intelligent man who undertook most of the preparatory legal work himself without legal representation until the issues became more complex.
The defendants (the appellants) managed to use four different solicitors and two different barristers, which may not have made for the best legal continuity or consistency in argument; nor were Mr Charalambous and his partner aided by contradictory evidence from their witnesses, one of several critically fatal factors.
Adverse possession, proprietary estoppel and harassment
The other features involved at the trial in Gloucester County Court included adverse possession, equitable (proprietary) estoppel and harassment.
In respect of the latter, it had been alleged by the second defendant that the claimant had waved a pickaxe at her 'manically', and the police had been called but they soon lost interest.
In fact the claimant maintained that he was out with a pick to excavate the root from a shrub and that he was merely occupying his property, which evidence the judge preferred to believe although he did find the claimant 'very stubborn and determined and perhaps even a little obsessed about the issue of where the boundary line ran'.
The claimant abandoned the allegation of harassment and the defendants' counterclaim for damages was dismissed. The claimant was awarded indemnity costs in Gloucester County Court, but only costs on the standard basis in the Court of Appeal for the appeal hearing.
On the question of adverse possession it was found that possession of the land had not in effect been sufficiently exclusive, and neither this issue nor proprietary estoppel were pursued upon appeal '“ it can certainly be argued that the latter not being further argued was one of the fatal elements in Mr Charalambous' appeal.
In such cases, consistency of evidence in respect of shrubs or plants marking the boundary can be key. But it is very doubtful that we have heard the last of moving plants and shrubbery and vexatious neighbours, let alone pickaxes, assorted gardening implements and escalating legal costs ofseveral hundred thousand pounds for some time to come.