Expert evidence and fine margins in boundary disputes – Goodmans Autos Limited v Maverstone Properties Limited [2023] EWHC 1882 (KB)

Goodmans concerned an appeal brought by Goodmans Autos Limited (“GAL”) on the basis that the judge at first instance was wrong to dismiss its claim against Maverstone Properties Limited (“MPL”) and Byoot Develop Limited (“BDL”) for:

1. Damages for trespass to its premises by excavating approximately 6 inches of the GAL Site and removing concrete fence posts on the land and;
2. For an injunction requiring the Defendants to remedy the trespass to its premises caused by concrete poured for the foundations of a building erected by the Defendants flowing over into the excavated space and therefore into the GAL Site. 

Mr Justice Murray dismissed the appeal. The case highlights the need to extensively scrutinise expert evidence before pleading a case and before collecting witness evidence in boundary disputes that often involve fine margins. 

Relevant facts 

GAL is the owner of a site (“the GAL Site”) and operated its business of repairing and servicing etc. motor vehicles from premises on the GAL Site. MPL is the freehold owner and developer of a site known as Majestic House (“the Majestic House Site”). The Majestic House Site is contiguous to the GAL Site. BDL is the contractor engaged by MPL to carry out the development of the Majestic House Site. 

Whilst the development of Majestic House was being carried out, a fence on the GAL Site that had run along the line of the boundary with the Majestic House Site was taken down by JJ Waste, a sub-contractor of BDL, by agreement with GAL. In due course, a replacement fence was erected by GAL, although on GAL’s case it was forced to construct the fence further into its own site than it should have had to do, due to the manner and extent of the excavation on the Majestic House Site, which GAL alleged had involved removing up to six inches (about 150 mm) of earth from the GAL Site. 

GAL’s Amended Particulars of Claim (“the APOC”) alleged that the Defendants removed approximately 6 inches of GAL’s land including many of the concrete fence posts and that the method of supporting the replacement fence required the Claimant to lose the use of four parking spaces within the Claimant’s premises which in turn reduced the volume of cars that the Claimant could repair/service. GAL also pleaded that, “The piled foundations extend underneath the Claimant’s Premises and, if the rear wall of the building is built on the capping beam as constructed, the rear wall itself is likely to extend onto the Claimants [sic] Premises.” 

GAL alleged that the presence of the foundations on its premises amounted to a trespass and that it was MBL’s intention to build the rear wall of the Development on the capping beam which would also amount to a trespass. 

MBL and BDL pleaded in the Defence that it was not admitted that the Defendants had excavated the Development Site beyond the boundary between the Development Site and the GAL’s Premises or that approximately six inches of the GAL’s land has been removed. It was denied that the piled foundations extended under GAL’s premises and/or that any wall placed atop the capping beam was ‘likely to extend onto’ GAL’s premises. It was positively stated that, “The piled foundations, the capping beam (and consequently any walls built off of the capping beam) are on the Development Site.” The Defendants consequently denied the allegation of trespass. 

Judgment at first instance 

The judge at first instance noted that he needed to determine as a question of fact whether the piling foundations, capping beam, and wall now placed on them by BDL trespassed on the GAL Site and if they did, whether he should grant GAL a mandatory injunction or order damages in lieu. 

The judge accepted the expert evidence of the Defendant’s expert, Mr French, as to where the boundary line lay and by the time of the trial GAL accepted Mr French’s evidence as to the position of the boundary. Having accepted the position of the boundary, GAL was also required to accept that, apart from the question of concrete overspill onto the GAL Site (which remained in dispute), the foundations, capping beam, and wall for Majestic House were all constructed within the boundary of the Majestic House Site. 

The judge stated that trial pits were a much better basis to ascertain what in fact took place than the photographs upon which GAL relied.  Two trial pits were dug, one on each site. The judge relied on the trial pit on Goodmans Yard as demonstrating there was no trespass in respect of the piling foundations and the cap. 

The judge noted that there was a thin layer of concrete that was not laid as part of the piling foundation and piling cap and that could be used and was used to support a new fence. The judge accepted Mr French’s evidence that the concrete seen was for the fence and not overspill and stated “however the case of GAL is not about minor concrete overspill but very serious trespass of a wall on Goodmans Yard.” 

The judge held that GAL’s pleaded case was that the foundations of Majestic House trespassed on the GAL Site but that was based on a mistaken view as to the true boundary line. The judge also rejected the pleaded case that there were “six inches (or similar mm) of concrete foundations and pile cap on Goodmans Yard” and that any wall built on those foundations would extend onto the GAL Site. 

The judge stated at paragraph 167 of the judgment, “Accordingly the pleaded case on foundations is not proven by GAL as they are required in this trial and if for any reason there might be some concrete overspillage though on balance I find it to be fence footings that has nothing to do with case in the Re Amended Particulars of Claim in this trial.” 

Judgment on appeal 

On appeal the Claimant contended that the judge at first instance was wrong to make a factual finding that there was no trespass on the basis of the evidence provided by the Claimant including the witness and photographic evidence. 

The Claimant also sought to argue that the judge’s pleading point was answered by the fact that the capping beam was formed by a single pour of concrete and the trespassing concrete, whether properly characterised as “overspill” or not, forms part of that single mass of concrete which constitutes part of the foundation of Majestic House. The Claimant therefore contended that the foundations claim pursued at trial was properly within the pleaded case. 

Mr Justice Murray did not accept the Claimant’s contentions: 

1. The judge considered the Claimant’s witness evidence and found that it was too heavily reliant on the evidence of the Claimant’s expert, Dr Antino. The judge largely rejected Dr Antino’s evidence on the boundary and the foundations where it differed from the Defendants’ expert, Mr French. 
2. The judge at first instance made clear that the photos were not particularly helpful and the Court was not able to say on an appellate basis that there was any error in the Judge’s approach or assessment. 
3. The trial pit dug on the GAL Site showed that no concrete from the foundation crossed the boundary line. The trial pit dug on the Majestic House Site was less conclusive but the judge agreed with Mr French’s conclusion that, to the extent the concrete crossed the true boundary line by between 100 and 150mm, it made no difference whether that occurred accidentally or deliberately to form part of the concrete base of the fence. There was no basis to disturb the judge’s findings on appeal. 
4. Mr Justice Murray found that the judge was not wrong to conclude that the possible extension of concrete over the boundary line by between 100 and 150mm was not a trespass because (i) there was always intended to be a concrete poured fence base below GAL’s fence posts, (ii) from a technical perspective it makes no difference that the concrete in question is connected to the capping beam, and (iii) it makes no difference that it was done as part of a single pour of concrete. It was therefore a reasonable and compelling inference that GAL’s contractors adopted the concrete on GAL’s behalf to form the base for the fence. 
5. The judge was not wrong to conclude that the case eventually pursued at trial by GAL regarding concrete trespassing by overspill was not within the APOC. Once the boundary articulated by Mr French was found to be the true boundary, it could not be said that the “piled foundations extend underneath the Claimant’s Premises” or that the “foundations” were on the GAL Site, as pleaded. GAL could and should have sought to re-amend the APOC if it wished to pursue the trespass by overspill claim, which it did not do. 

Mr Justice Murray therefore dismissed the appeal. 

Analysis 

This case demonstrates the importance of extensively scrutinising expert evidence prior to pleading a case and prior to the formulation of witness evidence. The Claimant’s case was pleaded, in reliance on its expert, on a mistaken view as to the true boundary line and that meant that the Claimant lost sight of and did not plead the case that would subsequently become pivotal at trial i.e. whether there was a trespass by overspill.  

Notwithstanding the pleading point, Mr Justice Murray found that the judge at first instance was not wrong to conclude, on the evidence as a whole, including Mr French’s evidence, that the possible overspill was not a trespass in any event. It was held to be a reasonable/compelling inference from the evidence that GAL’s contractors adopted the concrete ‘overspill’ on GAL’s behalf to form the base for the fence. The extent to which that inference rested on Mr French’s evidence again indicates the importance of extensively scrutinising expert evidence before pleading a case.  

Article by Kort Egan