The old adage that an English person’s home is his/her castle has never rung so true. I have been struck by the number of boundary disputes hitting the headlines recently. The reports often focus on the financially ruinous nature of such disputes rather than how they can be avoided or why they occur.
There was recently an article about a couple (Mr and Mrs Bateson) who apparently blew their life savings of £45,000 over a dispute about 2 fence panels which cost £80. The dispute has lasted 5 years after a neighbour erected a fence on a shared driveway.
Driveways and fences/hedges can be flashpoints for a dispute and my advice is always try to speak to your neighbour before doing anything that might be perceived to be encroaching or taking possession of land. People can argue over the smallest area of land and such disputes are costly..
At the other end of the scale in Poole, home of multi millionaires, two neighbours Robert Heffer and Ashley Faull had a dispute over a wall which lead to a compensation payment of £350,000 and legal costs of over £145,000 which was only an interim figure. It has also been reported that David Beckham has located beehives near the boundary of his property.
I have mediated a few boundary disputes and it is incredible how highly charged they can be and how neighbours can become enemies and often the relationship deteriorates further. For the sake of a few metres or centimetres of land a person can lose their home or make it unsaleable to anyone else. No system of land registration is perfect and there is often room for argument over indistinct or inaccurate boundaries.
It seems to me that the underlying issue is the increased value of land and property in the UK. Access rights and development potential is extremely valuable. People are very conscious of their property rights in the UK.
Given the costs involved in bringing or defending claims in the Courts and the risks involved it is not surprising that people are increasingly turning to mediation to help resolve disputes between neighbours, but by its very nature it involves compromise. Sometimes a middle path can be found through mediation which might not be available in Court. The benefits of mediation include having a third party independent person assisting so that the personal animosity can be avoided. A mediator with land law knowledge is also beneficial in my experience.
in a recent case which went to the Land Tribunal which often deals with these kinds of disputes, concerning a right of way, the tribunal looked into whether a refusal to use mediation should result in a party being penalised in costs. (Nicholson & Anor v Hale & Anor (Land Registration – Easements – claim to the acquisition of a right of way by prescription) [2024] UKUT 210 (LC) (29 July 2024)). In this case a claim to a right of way failed as it had not been used for 20 years.
The parties had not mediated or had a joint settlement meeting, but in this case the judge decided that there should not be any penalty because the case was always going to go to the tribunal. This is not always the case however and clearly there is a real risk that if a party fuses to use ADR or mediation they may not recover all of their legal costs if the judge decides that this was not reasonable.
The judge said as follows:
“Mr Hale’s submission was, in summary, that the Respondents had offered ADR in relation to both the FTT Proceedings and the Appeal and Cross Appeal, which the Appellants had not accepted.
The refusal to participate in ADR was, so Mr Hale submitted, unreasonable, and should attract a sanction in costs.
.I was taken to a good deal of the correspondence between the parties in this context, and the submissions were fairly detailed. Ultimately however I am not persuaded that this is a case where it is appropriate for me to apply a sanction to the Appellants, in terms of costs, on the basis of a failure to engage with ADR. So far as the letter of 3rd December 2020 was concerned, it did receive a lengthy response from the Appellants, which set out their case at length and made reference to what was alleged to have been a previous offer to re-site the Staircase. This letter in reply did not respond specifically to the offer of ADR, but what is apparent from this letter, and from the terms of the offer of ADR which I have quoted above, and from subsequent correspondence between the parties is that this was, unfortunately, one of those cases where neither side were willing commit themselves to a negotiation where meaningful concessions could or might be made.
The positions of both parties appear to me to have been pretty
entrenched from the outset. Unfortunately, this case seems to have been one of those cases where the dispute was always going to have to be resolved by a decision of the FTT and any appeal against that decision.
So far as the later offer of the round table meeting was concerned it appears, from the correspondence which I was shown, that this offer was not actually rejected by the Appellants. Rather, the offer does not appear to have been pursued by the parties. The correspondence which I was shown did not appear to reach any final position, but instead petered out. Again, however it seems to me that the appeal proceedings were always going to have to be resolved by a decision of the Tribunal.
I therefore conclude that there should be no discount in respect of either the FFT Costs or the UT Costs on the basis of unreasonable refusal of ADR.
This leaves pre-action conduct. I do not consider that it is appropriate to apply any discount in relation to pre-action conduct. As matters have turned out, the Appellants were entitled to remove the Staircase. So far as the circumstances in which that removal took place are concerned, I do not think that there is any justification to apply a discount to the Appellants’ recoverable costs.
I therefore conclude, so far as the incidence of costs is concerned, that the Respondents should pay the Appellants’ UT Costs, and that the Respondents should pay 75% of the Appellants’ FTT Costs.
The party who won the case was a litigant in person and the judge only allowed him to claim £19 per hour rather than a higher rate plus his barrister’s costs.
The costs payable still amounted to the sum of £7,993.42 (£10,657.90 x 75%), and the sum of £14,565. So the costs payable exceeded £25,000 which could have been avoided or reduced if the parties had managed to resolve the case earlier.
Conclusion
It is always worthwhile trying mediation or other forms of ADR in order to minimise or avoid paying legal costs. If you or your clients are in this position please get in touch and we at ProMediate can set up a mediation for you.