Girvan, Peter Michael and Jonathan Harris Edwin Hool and Gillian Patricia Hool
| Jurisdiction | Northern Ireland |
| Judge | Humphreys J |
| Judgment Date | 20 December 2021 |
| Neutral Citation | [2021] NICh 26 |
| Court | Chancery Division (Northern Ireland) |
| Date | 20 December 2021 |
1
Neutral Citation No: [2021] NICh 26
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: HUM11717
Delivered: 20/12/2021
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
CHANCERY DIVISION
___________
Between:
PETER MICHAEL GIRVAN
Plaintiff
and
JONATHAN HARRIS EDWIN HOOL
and
GILLIAN PATRICIA HOOL
Defendants
___________
Richard Coghlin QC and Alistair Fletcher (instructed by Russell & Co) for the Plaintiff
Mark Orr QC and Graeme Watt (instructed by Agnew Andress Higgins) for the
Defendants
___________
HUMPHREYS J
Introduction
[1] In Hamlet, Act IV scene IV, one of Fortinbras’s captains explains to the Prince:
“We go to gain a little patch of ground. That hath in it no
profit but the name.”
[2] Hence in Alan Wibberley Building v Insley [1999] UKHL 15, Lord Hoffman
memorably commented:
“Boundary disputes are a particularly painful form of litigation.
Feelings run high and disproportionate amounts of money are
spent. Claims to small and valueless pieces of land are pressed
with the zeal of Fortinbras's army.”
2
[3] Boundary disputes are notoriously time consuming, expensive, emotional and
difficult to resolve. However, the parties to this dispute and their advisors are to be
commended on their industry and resolve in their approach to this matter.
Constructive agreement on preliminary issues, together with focussed evidence and
legal submissions, has allowed for substantial progress within just eight months of
proceedings being served.
Background
[4] The plaintiff is the owner of premises situate at and known as X Ballygrainey
Road, Holywood, Co Down, comprised within Folio DN 159109, having purchased
these from his parents, Sir Paul and Lady Karen Girvan, in June 2014. The
defendants are the owners of the neighbouring premises at Y Ballygrainey Road,
being comprised in Folio DN 186337, their title having been acquired in March 1991
by way of a conveyance from Elizabeth Gracey.
[5] The plaintiff’s predecessors in title successfully applied for first registration
under section 16 of the Land Registration (Northern Ireland) Act 1970 (“the 1970
Act”) on 21 September 2007. The defendants followed suit in May 2012. The
registered title to each of the Folios in question is shown on the plan at Annex 1 to
this judgment.
[6] On 3 May 2016 outline planning permission was granted to the defendants for
the construction of a dwelling house and garage to the east of Ballygrainey Road,
adjacent to the boundary with the plaintiff’s lands. Approval for reserved matters
was granted on 17 April 2019. This house was to be constructed at the top of the site,
close to the Ballygrainey Road.
[7] In late October 2019 the defendants caused the removal of a large hedge
which had represented the physical boundary between the respective parcels of
land, such work being preparatory to the construction of the new dwelling house.
As a result, the plaintiff sought legal advice and instructed a surveyor to report on
the location of the boundary.
[8] In February 2021 a series of exchanges began between the parties where
differing views were expressed on the boundary issue. The plaintiff issued
proceedings that month and served them in April 2021. Matters came to a head
when an unseemly incident occurred at the site on 5 May 2021. This precipitated an
application to the court for an interlocutory injunction. Mutual undertakings were
given and the parties sensibly agreed a set of preliminary issues for determination.
The Boundary Dispute
[9] The plaintiff’s case is that the boundary between the respective properties is
properly represented by the centre line of the hedge which was removed in October
2019. This is as shown in red on the map at Annex 2.
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