“For what do we live, but to make sport for our neighbours, and laugh at them in our turn”
Boundary disputes are notorious for the substantial legal costs which they can incur and which often seem totally out of proportion to the issues in dispute. The mainstream media can never resist the opportunity to report on cases where the parties have spent huge sums arguing over a few centimetres. In 2017 the Times reported that a London family had to sell their £600,000 home in order to pay costs of £132,000. I have personally acted in cases where the costs for one party were in the region of £150,000 to £200,000. It is not surprising that Judges frequently conclude cases by admonishing the parties for failing to resolve their differences at a much earlier stage. However, this is often easier said than done, particularly when one party has very deep pockets and refuses any invitation to act reasonably.
There is now a positive duty on lawyers to warn their clients of the potential costs. In Ali v Lane  EWCA Civ 1532, Carnwarth LJ stated:
“…it is less easy to understand why the parties are continuing to litigate over the boundary. It was disturbing that neither of the experienced leading counsel before us was able to give a clear indication of the practical significance of the strip to their respective clients, nor to inform the court what, if any, attempts have been made at mediation. It is sadly a commonplace that boundary disputes can be fought with a passion that seems out of all proportion to the importance of what is involved in practical terms. In such cases, professional advisers should regard themselves as being 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. Potential litigants can now obtain assistance from the Boundary Disputes Protocol produced by the Property Protocols website with the backing of the Property Litigation Association. As the authors state the protocol is intended to “…ensure that neighbours exchange sufficient information in a timely manner to minimise the scope for disputes between them; and to enable any such disputes to be readily resolved, including by alternative disputes resolution (ADR), keeping costs to a minimum.” While the protocol has not yet been adopted by the courts as part of the suite of protocols within the Civil Procedure Rules, a failure to follow its guidance could have adverse costs consequences for either party.
The principal steps recommended by the protocol are as follows:
- If a boundary dispute arises, the parties can agree to use the protocol. The date on which this occurs is the “Start Date” [SD].
- Within 2 weeks of the SD the parties should provide the other party with official copies of the Land Registry title information relating to their property (assuming the properties are registered); seek to agree whether any determined boundary exists or whether there is any boundary agreement in the official copies – if either exists, that should resolve the dispute.
- Within 4 weeks of the SD the parties should exchange all documents relevant to the dispute, e.g., past conveyances, photographs. At the same time if a party considers that it has an adverse possession claim, they should inform the other party and set out the basis for their claim;
- Within 6 weeks of the SD, if an adverse possession claim has been advanced by one party, the other party should explain the basis for opposing the claim;
- Within 7 weeks of the SD the parties should seek to agree whether they have the First Conveyance (“FC”) by which the properties passed into separate ownership.
- Within 8 weeks of the SD the parties should discuss whether they wish to negotiate or mediate.
- If the parties are still not able to settle the dispute, they may wish to adduce expert surveying evidence. The protocol recommends a single joint expert should be appointed. The expert should be instructed within 5 weeks of the FC being identified and a short report should be produced within a further 4 weeks.
- If experts are instructed on both sides, the reports should be exchanged within 4 weeks after instructions are provided and the experts should meet with 2 weeks of exchange in order to identify to what extent they can agree. A short summary of their discussion should be prepared and provided to the parties.
- The parties should then meet within 2 weeks at the location of the boundary together with the expert or experts in order to see whether they can agree the boundary. The meeting should be on a “without prejudice” basis.
- If they still cannot agree, then they should consider whether some form of alternative dispute resolution would be appropriate.
- If they cannot agree on ADR or the ADR is unsuccessful, then the dispute can be referred to Court or the First-tier Tribunal.
This is a brief summary of the steps recommended. The full version of the protocol can be obtained here. The protocol is at pains to emphasise the substantial and disproportionate costs consequences should the parties fail to reach agreement under the protocol and litigation becomes necessary.
Personal experience of using the protocol is that it is a valuable tool in focusing the parties’ minds at an early stage on the principal issues and the consequences of failing to reach an early settlement. The process provides valuable opportunities for the parties to assess the strength of their own case and also to appreciate and evaluate the evidence for the other side. In particular, the early meeting between the experts usually serves to resolve many of the outstanding issues. While the timetable can appear very tight, the parties should remain sensible and constructive and agree reasonable extensions of time where necessary.
The most important point for any party to grasp is that once court proceedings are commenced, the costs are going to increase exponentially and can be difficult to control. Moreover, it is likely that settlement will be more difficult to achieve because of the costs factor. It is also worth noting that if a party wants to withdraw from proceedings, either because the costs are proving prohibitive or their case seems weaker than they first thought, they will have to pay the costs to the date of discontinuance.
In conclusion, parties to a boundary dispute should ensure that they follow the guidelines set out by the protocol prior to resorting to litigation. By doing so, they will significantly increase their chances of achieving an early settlement and avoiding the potentially ruinous costs consequences of a court action.
To read Part 1 and Part 3 of the Boundary Dispute article series please take a look here.
This is not legal advice; it is intended to provide information of general interest about current legal issues.
If you wish to discuss this or any other matter related to property litigation please contact me on 01435 502011.