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On to the decision of Mr Justice Norris in Bradley v Heslin [2014] EWHC 3267 (Ch) Liverpool in which he stated that “Rather to my surprise I find myself trying a case about a pair of gates in Formby: surprise on at least two counts. First, that anyone should pursue a neighbour dispute to trial, where even the victor is not a winner (given the blight which a contested case casts over the future of neighbourly relations and upon the price achievable in any future sale of the property). Second, that the case should have been pursued in the High Court over 3 days. It is not that such cases are somehow beneath the consideration of the Court. They often raise points of novelty and difficulty and are undoubtedly important to the parties and ultimately legal rights (if insisted upon) must be determined. But at what financial and community cost?

This is a very good question. Neighbour disputes cause financial misery and by definition unpleasant arguments between neighbours can be fraught.

The Heslins when leaving their property had to stop their car on the driveway and open the gates, or when gaining access, they have to stop their car on the road and then open the gates in order to use the driveway to reach No.40A. In a nutshell, the argument revolved around wanting to be able to open some gates.

Clearly the litigation has had a financial and personal cost for Mr Heslin, who at 73 would probably prefer a peaceful retirement. He has been quoted as saying that he is on medication for heart problems as a result of the stress caused by the legal battle and said the dispute showed no signs of ending. He claimed they have been “legally attacked” by their neighbours and commented “We have already spent £50,000 and we’re not done yet, we have solicitors and barristers doing things for us and they have to be paid. The unfortunate thing is that if they don’t accept the electric gates option then our solicitors are saying we will have to go to another court and have to appeal, that could be another £20,000.”

The judge commented that sensible neighbours would have sat round a table and worked out either a regime for closing the gates at agreed hours (the one party suffering a diminution in security and the other an increase in inconvenience) or the installation of remotely operated electric gates (which might have cost £5000). There were some desultory attempts at exploring the possibility of electric gates, but (when they came to nothing) in August 2012 Mr Heslin simply padlocked the northern gate open and refused to allow the Bradleys to shut it: and in July 2013 the Bradleys commenced proceedings for declarations as to their right to use the gates and for an injunction requiring the Heslins to remove the padlock and restraining them from interfering with it.

The judge commented that this entrenchment of positions is a regrettable characteristic of neighbour disputes and that, even when proceedings have been issued to preserve the position, the engagement of a trained mediator is more likely to lead to an outcome satisfactory to both parties (in terms of speed, cost, resolution and future relationships) than the pursuit of litigation to trial. In Oliver v Symons [2012] EWCA Civ 267 (a disputed easement case) Ward LJ said at [53]:-

“I wish particularly to associate myself with Elias LJ’s pointing out that this is a case crying out for mediation. All disputes between neighbours arouse deep passions and entrenched positions are taken as the parties stand upon their rights seemingly blissfully unaware or unconcerned that that they are committing themselves to unremitting litigation which will leave them bruised by the experience and very much the poorer, win or lose. 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.”

Perhaps in times of scarce resources and limited (and in any event expensive) representation it is time to give those who know the worth of mediation in this context (both to the parties and to all Court users) some help. If in any boundary dispute or dispute over a right of way, where the dispute could not be disposed of by some more obvious form of ADR (such as negotiation or expert determination) and where the costs of the exercise would not be disproportionate having regard to the budgeted costs of the litigation, any District Judge (a) imposed a 2 month stay for mediation and directed that the parties must take all reasonable steps to conduct that mediation (whatever the parties might say about their willingness to engage in the process) (b) directed that the fees and costs of any successful mediation should be borne equally (c) directed that the fees and costs of any unsuccessful mediation should form part of the costs of the action (and gave that content by making an “Ungley Order”) and (d) gave directions for the speedy further conduct of the case only from the expiration of that period, for my own part (recognising that certainly others may differ) I think that such a case management decision would be difficult to challenge on appeal.

The judge considered that it is no longer enough to leave the parties the opportunity to mediate and to warn of costs consequences if the opportunity is not taken. In boundary and neighbour disputes the opportunities are not being taken and the warnings are not being heeded, and those embroiled in them need saving from themselves. The Court cannot oblige truly unwilling parties to submit their disputes to mediation: but the Court did not see why, in the notorious case of boundary and neighbour disputes, directing the parties to take (over a short defined period) all reasonable steps to resolve the dispute by mediation before preparing for a trial should be regarded as an unacceptable obstruction on the right of access to justice.

The judge therefore endorsed the approach of requiring the parties to take all reasonable steps to resolve a neighbour dispute before going to trial. Certainly in this case and any other neighbour disputes, the parties would be well advised to mediate before things get out of hand.