Adrian Jones v Frank Murrell and Another

JurisdictionEngland & Wales
JudgeMrs Justice Lang
Judgment Date29 November 2016
Neutral Citation[2016] EWHC 3036 (QB)
Docket NumberCase No: 3BN00522 / QB/2016/0124
CourtQueen's Bench Division
Date29 November 2016

[2016] EWHC 3036 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mrs Justice Lang DBE

Case No: 3BN00522 / QB/2016/0124

Between:
Adrian Jones
Appellant
and
(1) Frank Murrell
(2) Penelope May Murrell
Respondents

Kevin Leigh (instructed by Dean Wilson & Son) for the Appellant

Nicholas Barnes (instructed by Henchleys) for the Respondents

Hearing date: 8 November 2016

Mrs Justice Lang
1

The Appellant appeals against the order of HH Judge Simpkiss, made on 19 May 2016 at the Brighton County Court, in which he held that the boundary award made by the independent expert (Mr D. Clarke) on 10 July 2013 was final and binding upon the parties.

2

The claim arose out of a boundary dispute between next door neighbours. The Appellant resides at 10, Stanley Road, Peacehaven, East Sussex BN10 7SP and the Respondents live next door at 8, Stanley Road. There is a strip of land along the boundary between the properties, which both parties lay claim to. The Respondents, who have owned No. 8 since 1994, contend that the boundary line was marked by a timber post at the front of the two properties (though the properties were physically separated by a broad hedge). When the Appellant purchased No. 10 in 2011, and subsequently built a house on site, he removed the timber post and hedge, and erected a fence, that the Respondents claim is nearer to their house than the legal boundary.

3

After instructing their own separate surveyors, who were unable to agree, the parties then jointly appointed Mr D. Clarke, a chartered building surveyor, to act as an independent expert and identify the correct line of the boundary. The parties agreed to be bound by his decision.

4

Mr Clarke upheld the Respondents' representations in his report, stating:

"10.01 From my assessment of the Land Registry plans and the physical evidence on site, my Award is that the boundary between No 8 and No 10 Stanley Road is defined by the position of the previous timber marker post on the Stanley Road frontage, now indicated by the white line. The boundary runs from that point at a right-angle to the frontage to a point some 530 mm to the west of the west face of the rear wall pier so that the front and rear measurements of the plot are equal. The plot width is taken at 15.40 m but that should be re-checked by measurement from the white line to the wall of No. 6 Stanley Road. I have marked in red in Appendix 6, 7 & 8 the general boundary line to be fixed with site adjustments."

5

The Appellant was dissatisfied with this award, and instructed another surveyor, Mr David Powell, to consider Mr Clarke's report. He wrote a letter dated 5 August 2013, setting out his concerns.

6

The Respondents issued this claim under CPR Part 8 seeking the decision of the court on two questions. First, was the joint letter of instruction to Mr Clarke, dated 23 January 2013, a binding agreement? If so, secondly, was Mr Clarke's award a final award which was binding on both parties?

7

In October 2014, when the Respondents' former solicitors were clearing out their offices, they discovered in their files a copy of a conveyance dated 22 December 1965, of which the parties and Mr Clarke were previously unaware. A Mr Weeden was the owner of three adjacent plots of land, carved out of a larger estate in 1950, and known as Nos. 206, 207 and 208. The properties now known as Nos. 6, 8 and 10 Stanley Road were subsequently built in the southern sections of those three plots. The plots were sub-divided, enabling houses to be built in the northern section of the plots too (known as 7, 9 and 11 The Compts). The 1965 conveyance showed that Mr Weeden sold a property known as 8 Stanley Road to a Mr and Mrs Kemp, which was described in the conveyance as comprising part of plot No. 207 and part of plot No. 206, as delineated on the attached plan. The plan attached to the 1965 conveyance marked in pink the boundary of the land conveyed to the Kemps. The pink line was shown as being three feet to the west of the boundary line between plot No. 207 and plot No. 208. An existing house, called Fernbank, was situated towards the rear of plot No. 207, with part of it protruding so close to the boundary with plot No. 208 that the pink line was diverted around it. Plot No. 208 was not built upon at that stage.

8

In the light of this significant new evidence, pursuant to an order of the court, the parties jointly instructed Messrs Powell and Clark to prepare a joint report. The joint report, signed on 15 and 17 November 2014, concluded that the boundary line identified in the original Award was correct, subject only to a slight adjustment of 160 mm (6 inches).

9

Upon publication of the joint report, the Appellant's solicitor posed questions which, in effect, invited the two experts to reach a different conclusion, more favourable to his client. The experts exchanged views and then issued further separate statements in response.

10

At the hearing before the Judge, the Appellant was unrepresented but had the benefit of grounds drafted by counsel. The Appellant agreed with the Respondents' primary submission that the parties had entered into a compromise agreement, the terms of which were that the award by the independent expert would bind both parties. However, the Appellant submitted that Mr Clarke's award ought to be set aside because it was invalid.

11

The Judge considered the correspondence appointing Mr Clarke and concluded that he had been appointed to act as an expert, not as an arbiter or mediator. The parties had entered into a compromise agreement, the terms of which were that Mr Clarke would determine the correct line of the boundary and the parties would be bound by his decision and not dispute it. The Judge directed himself on the legal principles which applied to a challenge to a determination by an expert. The Judge then considered the Appellant's criticisms of Mr Clarke's report and Award. I do not need to mention here those points which are no longer pursued by the Appellant. His conclusions on the issues which remain relevant were as follows:

"31. The long and the short of it is that Mr Clarke was asked to produce a line. His conclusion did not take into account the 1965 conveyance because it was not before him and no one suggested that that itself vitiates the award. What has happened is that that the defendant now wishes to challenge the award on the ground that there is a mistake in ignoring the 1965 conveyance. However, both Mr Powell and Mr Clarke agreed that it did not change things, and Mr Powell's position statement subsequently is that that is what it says on the conveyance and issues are matters of law.

32. There is no evidence to say that there was a mistake being made by Mr Clarke. In fact, an explanation has been put forward by Mr Clarke, which suggests that an earlier title document is more relevant and that, somewhere along the line, 3 ft has gone missing. However, there is no evidence that the 3 ft belongs to the [Defendant 1]. The long and the short of it is that, in my judgment again, this is not an appeal against Mr Clarke's award. It is not a question of whether Mr Clarke's award was wrong in its conclusion. The issue is whether or not he has carried out his instructions, which he has. There is therefore no ground for setting aside the award on that point."

12

Permission to appeal was granted by Lewis J. on 4 October 2016 only on one amended ground:

"The expert's task was to reach a conclusion acting as a properly instructed demarcation surveyor. This exercise included considering and taking account of legal documents. The Claimant's title derives from the 1965 conveyance. The expert erred in law in concluding that as part of his role he could treat the 1965 conveyance (especially its plan) as erroneous."

13

On appeal, the Appellant submitted that Mr Clarke had exceeded his powers and/or the proper scope of his instructions by not determining the boundary in accordance with the law. It was not open to Mr Clarke to treat the 1965 conveyance and the attached plan as erroneous; he was usurping the role of the court. Thus, the Judge had erred in deciding that Mr Clarke had acted in accordance with his instructions. Moreover, the Judge erroneously believed that Mr Powell agreed with Mr Clarke's determination of the boundary line, when Mr Powell's position statement indicated that he disagreed with him.

14

In my judgment, it is clear from the letters of instruction and Mr Clarke's response that he was appointed as an independent expert, under the CPR, to decide where the boundary line lay. As the Judge said, in paragraph 24 of his judgment, he was not acting as an arbitrator.

15

The joint letter of instruction dated 23 January 2013 stated, inter alia:

"An issue has developed between Mr Jones and Mr and Mrs Murrell as to the correct and finite line of the boundary between the two properties.

Notwithstanding discussion between the parties, their advisers and John M Wade RICS on behalf of Mr Jones and David F. Smith MRICS on behalf of Mr and Mrs Murrell the parties have been unable to agree that correct boundary line.

In order to avoid litigation before the Courts, the parties have agreed that the issue of the correct line of the boundary should be referred to you as a third party independent Surveyor acting as an expert and they have all further agreed that by signing this letter of instruction … that they will be bound by your decision and will not dispute the same thereafter.

The parties further agree that they will immediately following the publication of your Report and award do all things jointly and severally reasonably required to register the defined line of the boundary with H.M. Land Registry. To this end, when producing your award we would ask that you also provide the parties with a Land Registry...

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