No compulsory mediation or expert determination for boundary disputes?

This article was first published for the Property Litigation Association in 2015.

Everybody agrees that, if possible, neighbour disputes about boundaries, rights of way and the like ought to be settled without ever going near court.  However, the Ministry of Justice (the MoJ), in its study “Boundary Disputes: A Scoping Study” (published in January 2015), rejected a proposal to introduce compulsory mediation or expert determination as a way of keeping “unduly bitter, expensive and time-consuming” boundary disputes out of court.

The MoJ recommended no “radical change” to the current system for determining disputes. In reaching this conclusion, the MoJ relied upon the fact that many boundary disputes are caused by, or are symptoms of, personal disagreement or antipathy between neighbours. This is undoubtedly true. Most practitioners have heard otherwise sensible and commercially minded clients stating that they want to litigate on “principle” and that the maxim “an Englishman’s home is his castle” has never been more important to them.  In these cases, the advice that the litigation is not cost-effective, and even for the winner the irrecoverable legal costs will be higher than the value of the land, almost inevitably falls on deaf ears.  As Norris J observed in the recent case of Bradley v Heslin [2014] EWHC 3267 (Ch) “those embroiled in [boundary disputes] need saving from themselves”. The MoJ may have rejected compulsory mediation but, as Norris J also noted that although truly unwilling parties cannot be forced to mediate, 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”. Norris J went on to rule that the Court can direct the parties to take (over a short, defined period) all reasonable steps to resolve the dispute by mediation before preparing for a trial. He suggested that Court could in “a notorious case of boundary and neighbour disputes” make an order: (a) imposing a 2 month stay for mediation and direct 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) direct that the fees and costs of any successful mediation should be borne equally, (c) direct that the fees and costs of any unsuccessful mediation should form part of the costs of the action, (d) make an “Ungley Order”, and (e) only upon expiration of the 2 months, give directions for the speedy further conduct of the case.

An Ungley Order is an order staying proceedings while the parties mediate or, at the very least, consider mediation. If one party considers that the case is not suited for mediation, they must file a witness statement explaining why. The Court will then consider the explanation when dealing with costs. Unless there are exceptional circumstances justifying a party’s refusal to mediate, it appears almost inevitable that a refusal will attract costs sanctions.

If the other side refuses to mediate, inviting the Court to make a Norris J type order may be an astute tactical move, and the next best thing to compulsory mediation (albeit introduced by the judiciary rather than the legislature). Mediation will not always work, but experience suggests that even the most reluctant participants can, with the help of a good mediator and sensible legal advisors, find an acceptable middle ground. It is, therefore, usually worth a try.

Expert determination – and alternative

In some boundary disputes the solution may be to have an independent surveyor determine the boundary by way of “expert determination”. The drawback, of course, is that an expert determination will be hard to challenge even when the expert gets it wrong. And experts do get it wrong sometimes. Before advising a client to agree to be bound by a determination, it is imperative to ensure that the client understands this and is willing to accept the expert’s decision regardless. It is also crucial to ensure that the appointed expert is satisfactorily qualified and experienced. The cheapest option may well not be the best.

When matters proceed to trial

Inevitably some cases will go to trial. However, prominent judges have made no secret about their aversion to neighbours’ disputes being fought out in court. In Devon Cameron v Angela Boggiano, Craig Robertson [2012] EWCA Civ 157 Mummery LJ said at [7]:

“The court would be failing in its duty if it did not draw on the extensive experience to warn others that the only certainty in this kind of case is that the financial outlay is almost always more than the disputed property is worth.” …“If the court’s warnings are ignored, there will one day be a final reckoning of the total expenditure and immeasurable human misery, and the hoary maxim “he that goes to law holds a wolf by the ears” will strike a chord.”

Almost as if to “punish” litigants who ignore the warning, judges often make orders that render the litigation nothing more than a disproportionately costly pyrrhic victory for the winner. So how can practitioners protect a client from the wrath of judges when, for whatever reason, they end up fighting a boundary dispute at trial? Offers, offers and offers! This is because when it comes to the question of costs, the Court ought to consider all offers made and may give credit to a party for at least trying to settle.

It is not always easy to persuade a client to make a sensible offer. Creative thinking will be key!  If agreeing to give up the disputed land is an absolute no-no for the client, offer damages in lieu. Who knows, in the uncertain world of litigation the offer may just be accepted. However, when no attempts to settle have been made, a costs order which can only be described as “a plague on both of your houses“, becomes almost a certainty.