Drawing a Line Under Boundary Disputes

There appears to be little let-up in the flow of press coverage relating to examples of legal costs in boundary disputes between neighbours reaching astonomical figures. These disputes are usually fought with disproportionate ferocity, considering the value of the land, and regularly go all the way to trial, when most other disputes would have settled out of court.

Of all the possible arguments, disputes over boundary land seem to invoke the strongest primal instincts, often leading to an almost irrational "tunnel vision" mentality, where neither side will concede. But this is hardly surprising when you consider that almost every war fought between neighbouring countries over the centuries has had a disputed boundary as the core issue.

There have been recent calls for legal professionals to try to force these disputes away from trial, towards being settled at mediation, but this may ultimately be a futile exercise. Some disputes are just not appropriate for mediation. Where two parties have polar opposite views and winning is a matter of principle, in many cases, heavy discouragement as to costs risks seem to leave people unfazed in their determination to win outright.

During the management of a dispute a judge will always ask whether a mediation has been attempted. Often, however, this is little more than a box-ticking procedure - merely a hurdle to leap before the trial can be listed. For very good reasons the judge cannot know what occurred at the mediation and it might have been the case that both parties refused to move towards a negotiated settlement and sat there all day with their arms crossed!

The nature of these disputes undoubtedly accounts for a large number of them reaching trial. Lack of clarity in this area of law is most likely another valid reason. Recent cases have been decided using a variety of methodology and it is pure chance which way a judge will go.

The fact the loser pays the winner's costs at the end of litigation can be an unfortunate prolonging factor in these cases. Parties feel forced to progress to an appeal as they simply cannot afford to lose. In essence they are forced to gamble and go 'double or quits'. Judges have full discretion to award a proportion of costs against the victorious party, if they feel that they have dragged their heals when they should have settled. That said, in the main they would need good reason to depart from the loser pays principle. Furthermore, boundary disputes are not usually cases where offers of financial sums are exchanged, so it is much harder for the judge to decide which party should have settled and when.

It is a basic principle of law that conduct after the creation of a contract cannot be an aid to interpreting the terms of that contract. In plain English, only information existing at the time the contract was created can show what the true intentions of the parties were. This has meant that over the years, the exact placement of a boundary has been determined by reference to the plan and/or the description of the land noted in the transfer document. Over the years, verbal descriptions have been phased out with sole reliance now being placed on the accuracy of the plan. Leaving aside the issue of whether the plan has been drawn accurately in the first place, there is the problem that having been scaled down so much, a line of ink may represent a relatively large amount of land on the ground and as is so often the case with these disputes, the areas fought over are small.

The recent cases of Ali v Lane [2006] EWCA Civ 1532 and Haycocks v Neville [2007] EWCA Civ 78 were both decided in a very practical, common sense way which moved away from the strict approach of boundary interpretation. The judges in these cases looked at features on the ground such as tree placement, historic fence posts and topography to decide the most likely intended boundary line. This method of interpretation can only be used when the boundary plan or description in the transfer is ambiguous as to the precise location of the boundary.

But then in the case of Charalambous v Welding [2009] EWCA Civ 1578 when presented with facts very similar to those in Haycocks the judge avoided considering the shrubs on the ground as evidence of the boundary, finding them to be irrelevant. Although other factors came into it, the decision as to the exact boundary line was made purely by reference to a possibly inaccurate plan.

Two even more recent Court of Appeal cases of Bowler v Wallis [2010] Unreported and Huntley v Armes [2010] EWCA Civ 396 followed the same reasoning as Charalambous. Both these decisions in the Court of Appeal overturned first instance decisions that located the boundary looking at ground features and again used the original plan for the property as the sole guide.

It has been said that a Supreme Court decision featuring one of these types of disputes would set a strong precedent for the methodology required to decide all future ones. This would lead to greater certainty of how each party would stand early on and would make it easier for legal professionals to advise on the likelihood of being successful. The problem with this is that it can already cost hundreds of thousands of pounds for the loser in legal costs for the dispute to reach the Court of Appeal, so with the extra hours of preparation to get to the Supreme Court, the costs will be even greater.

Once clarity is achieved, the number of early settlements should go up but human history would indicate that it is unlikely people will stop fighting wars over what they claim is their land.