Devon Cameron v Angela Boggiano and Another

JurisdictionEngland & Wales
JudgeLord Justice Mummery,Lord Justice McFarlane,Lord Justice Rimer
Judgment Date21 February 2012
Neutral Citation[2012] EWCA Civ 157
Docket NumberCase Nos: B2/2010/2402 & 2957
CourtCourt of Appeal (Civil Division)
Date21 February 2012

[2012] EWCA Civ 157

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT

HHJ HAZEL MARSHALL QC

CHY08581

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Mummery

Lord Justice Rimer

and

Lord Justice Mc Farlane

Case Nos: B2/2010/2402 & 2957

Between:
Devon Cameron
Appellant
and
(1) Angela Boggiano
(2) Craig Robertson
Respondent

MR ANDREW SKELLY (instructed by Berrymans Lace Mawer LLP) for the Appellant

MR ALEXANDER DUMBILL (instructed by JH Powell & Co) for the Respondents

Hearing date: 13 th July 2011

Lord Justice Mummery

General

1

This is a protracted boundary dispute between neighbours in Peckham.

2

Mr Devon Cameron (the claimant) owns a brick built mews property, No 7 Choumert Mews, London, SE15, and an area of cobbled courtyard in front of it.

3

Miss Angela Boggiano and Mr Craig Robertson (the defendants) own a three storey terraced property, No 60 Choumert Road, which, together with neighbouring properties Nos 60A and 58 Choumert Road, backs onto the courtyard in the T-shaped mews. The east/west bar of the mews courtyard at the back of those properties is parallel to Choumert Road at the front of them.

4

The trial judge said that the litigation had taken "an unusual procedural course." Quite apart from the procedural complications, it is highly regrettable that the case got to court at all. The parties have spent a lot of money, time and energy quarrelling about the ownership of a thin strip of land in a corner of the courtyard. The dispute followed on the re-development of the mews. The parties' predecessor in title, Blueperch Limited, participated in the re-development in 2000/2001 and sold No 7 to the claimant in 2001 and No 60 to the defendants in 2003.

5

Suing and being sued by neighbours is a stressful and unpleasant experience. Bad feelings all round do not finish with the final judgment. The lawsuit could have unwanted long-term consequences that a sensible compromise might have avoided. One side "wins" at trial, and/or on appeal, but, in the long run, both sides lose if, for instance, litigation blight has damaged the prospects of selling up and moving elsewhere.

6

After the case is over the litigants and their professional advisers will not be at their most receptive to judicial guidance about the downside of boundary litigation. Of course, parties and their advisers know there are risks and they talk and try to settle; but, when all else fails, the court has no choice but to decide, in accordance with the evidence and the law, what the parties have been unable to sort out themselves. The court's rulings may be unwelcome to both sides. That is the case here. Both sides appeal against different parts of the judgment of the trial judge, HHJ Hazel Marshall QC.

7

The court would be failing in its duty if it did not draw on the extensive experience, which it has acquired impartially, 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. Financial factors do not seem to count for much when the parties are protecting what they believe belongs to them. The territorial imperative is the driver in boundary litigation. 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.

The proceedings

8

Pared to essentials the issue is simply whether the boundary between No 7 Choumert Mews and No 60 Choumert Road runs in a straight line along the flank wall at the back of No 60. The claimant says it does. The defendants say that it does not. According to them the true boundary stops 4ft short of the back wall and follows the straight line of a metalled drain or gulley with grating over the top parallel to the back wall of No 60.

9

The application of the established legal principles to the facts found at trial by the judge is not quite so simple. The case was argued elaborately at trial and in this court on two main points: (a) the construction of the title documents of No 7 and (b) rectification of them in order to reflect the relevant continuing common intention, if, owing to a common mistake, the title documents do not correctly record the boundary.

10

At trial the judge decided the construction point in the claimant's favour. It is cross-appealed by the defendants, who are respondents to the claimant's appeal on the rectification point. That became a live question below when the defendants obtained permission, after the judge had reserved judgment on the construction point and in the face of understandable opposition from the claimant, to make a late amendment to their counterclaim. The defendants sought rectification of the title documents to No 7 on the ground of common mistake. Permission to amend was granted by the judge on terms as to costs to protect the claimant. After a further hearing the judge decided the rectification point against the claimant. He appeals against an order that effectively deprived him of the fruits of his success on construction.

11

On 23 September 2010 the judge handed down a very detailed 78 page judgment carefully covering and clearly explaining all her findings and conclusions on both points. The construction hearing had lasted for 3 days in May 2009. The rectification hearing had lasted for 3 days of further evidence and argument in August 2010.

More background facts

12

The two freehold properties had been in the common ownership of Blueperch, which was the alter ego of a Mr Bruno Narcisi, before the claimant bought No 7 from Blueperch in 2001. In November 2003 the claimant was also registered as freehold owner of some land at the back of No 58 Choumert Road (Title No 95573), to which access was gained from the courtyard through a gate installed by him in September 2006. The claimant accused the defendants of trespassing on his property and of obstructing access to the gate by erecting a shed in front of it. Both of the claimant's properties were occupied and used for the purposes of a property development and management business carried on by his firm, the Cee Cee Partnership.

13

Disagreements about the boundary began a couple of years after the defendants had bought No 60 (Title No LN 11 12798) from Blueperch in 2003. Their title was registered on 21 May 2003. In about May 2005 they erected a white picket fence along the line of what they say is the boundary between the back of No 60 and the courtyard area fronting No 7. In August 2007 the defendants replaced the picket fence with a low parapet brick wall. They reduced the size of the shed. The claimant complained that there was still an obstruction. The claimant began proceedings in 2008 for a declaration, an order for removal of the wall and damages for trespass. The defendants' initial defence was confined to the construction of No 7's title documents.

14

As the soil of the disputed area between the parallel lines of the drain and the back wall of No 60 and No 60A was covered with gravel at the relevant time, and was not cobbled like the rest of the courtyard area, it was described in the proceedings and will be referred to in this judgment as "the gravel strip." Photographs in close up and in colour show the location, physical appearance and extent of the gravel strip. It was agreed that the relevant photos produced by Mr Narcisi showed the gravel strip and related features as they were when the claimant purchased No 7 in 2001.

15

The gravel strip is along the side of the wall of a single storey extension constructed over the whole width of the back of No 60. The extension was used for storage or warehouse purposes. Planning permission was granted in November 2000 for the demolition of the rear extension to No 60 and its replacement by a garden. The extension has not been demolished.

16

The title documents of No 7 comprise a contract of sale dated 24 May 2001, a Transfer of Part (TP1) Title No TGL 195907 dated 9 October 2001 and a plan (Plan A), in the form of a magnification of a former Ordnance Survey map and based on and scaled up from the Land Registry File Plan. The same Plan A was attached to the contract and to the TP1. It was prepared in the offices of the solicitors acting for Blueperch, apparently without ever having made a visit to the site.

17

According to the terms of the contract and the TP1 Transfer, the property purchased by the claimant was a unit/building at No 7 Choumert Mews coloured pink on Plan A and the adjoining courtyard area in front of it coloured blue. The coloured areas were two simple squares. The judge commented that the "colouring of the plan was not particularly good" (paragraph 54). The boundary between No 7 and the back of No 60 was shown on Plan A as a single straight line running east-west. The claimant was granted rights of way over the rest of the courtyard.

18

In the initial negotiations for the sale of No 7, which required a complete fit-out, the courtyard area in front of the building was not included and no parking rights were offered for No 7. Possible difficulties about the right to lay and connect services to No 7 were identified. The claimant made it clear that (a) No 7 was not acceptable to him without parking rights and (b) he was not prepared to share parking rights in the courtyard in common with No 60. (No 60 in fact had parking facilities on a paved area at the front between the house and the public pavement along Choumert Road.) The claimant wanted to own all of the land in front of No 7. There were negotiations, including...

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