Higson and Another v Guenault and Another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Aikens,Lord Justice Elias,Lord Justice Fulford
Judgment Date21 May 2014
Neutral Citation[2014] EWCA Civ 703
Docket NumberCase No: B2/2013/3321, 3322 & 3322(A)

[2014] EWCA Civ 703





Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Aikens

Lord Justice Elias


Lord Justice Fulford

Case No: B2/2013/3321, 3322 & 3322(A)

Higson & another
Guenault & another

Jamal Demachkie (instructed by DWF LLP) for the Appellant

Richard Lander (instructed by Oglethorpe Sturton & Gillibrand LLP) for the Respondent

Hearing date: 01/05/2014

Lord Justice Aikens

I. The case so far.


This appeal concerns two orders of DJ Forrester made in the Lancaster County court on 2 May 2013 and 24 September 2013. It relates to the boundary of a right of way along a narrow track. The area of land in dispute is very small, measuring only about 6 inches wide and some yards in length. As Mummery LJ said in Pennock v Hodgson, 1 in the case of boundary disputes, particularly on appeal, the unfortunate consequences are that, in the absence of any compromise, someone wins, someone loses, it always costs a lot of money and usually generates a lot of ill-feeling that does not end with the litigation. None of those things are good for neighbours. This case is no exception.


The appellants, Mr and Mrs Higson, own a house and garden at 11 Barton Road, Lancaster. I will refer to them as "the Higsons" and their property as "the Higsons' property" or "11 Barton Road". The respondents are representative members of the Bowerham Lawn Tennis Club. For convenience I will refer to the respondents as "the Club". The Club has its grounds at the end of the narrow track which runs from Barton Road alongside the Higsons' property and then over a bridge across a brook or beck, called Burrow Beck. The track, which was called "the lane" in the hearings before the judge and before us is just about wide enough for a largish lorry to pass down to the grounds of the Club the other side of the beck. The bridge was widened, at the Club's expense, in 2009. The disputed boundary is on the south side of this lane, next to 11 Barton Road. The lane is about 32 metres long overall. On the lane there is access to the Higsons' property at the end nearest Barton Road.


There is an abutment of about a foot's width at the south western end of the bridge over the beck. Attached to that abutment is the eastern end of a larch lap fence of substantial construction mounted on concrete posts which the Higsons erected in 2004, which I will call "the 2004 fence" in order to distinguish it from another, temporary fence, which had been erected in approximately the same position in 1997. For reasons I will explain I will call the earlier fence "the Peill fence". The abutment is now entirely inside the line of the 2004 fence. The 2004 fence runs on the outside, ie. the north side, of a hedge that itself lies between the Higsons' property and the lane on the lane's south side. The judge found, on the evidence, that this hedge originally ran the whole length of the lane from Barton Road to the beck, but part of it was cut down at some stage to in order to create two access points from the lane to the Higsons' property.


The detailed nature of the case and the issues involved have changed in this court for reasons I shall explain. However, the essential dispute is whether the Club has a right of way up to the hedge on the south side of the lane or whether the right of way is only up to the 2004 fence. The Club says that the issue is of vital importance to it because, without those extra few inches, large vehicles cannot, with any ease, get down the lane to the tennis courts for the purpose of maintenance and, in particular, to deliver loads of hot tar macadam needed to do resurfacing work of the courts from time to time.


Matters came to a head in 2006, when the Club wished to resurface the tennis courts. The Club intended to contract with Doe Sport Limited, a company run by Mr Gore. He gave evidence before DJ Forrester which the judge accepted. Mr Gore said that when the Club contracted with him to resurface the courts in 2006, the drivers of the independent contractor lorries used to deliver the tar-macadam for resurfacing said that they were unable to get down the lane to offload the material. In the end the tarmac was dumped half way down the lane and removed by a smaller loader to just beside the clubhouse. Mr Gore said that this solution was unsatisfactory because the tar-macadam was kept hot in the insulated lorries and dumping the macadam in the lane meant it was difficult to get the hot macadam where it was needed before it cooled down. There were no satisfactory smaller lorries available and he doubted whether contractors would be able to carry out further work of this nature if insulated lorries could not get down the lane. The dumping was "unplanned" and he doubted any contractor would have been prepared to do that if it was what had originally been proposed. The only alternative was to dump the tarmac on Barton Road itself, which would require a road closure which Mr Gore thought the local authority would not sanction. The judge described this difficulty as "a huge problem for the club". 2


The Club instructed solicitors in February 2007. The matter remained unresolved, so the Club began proceedings against the Higsons on 4 May 2010, which led to the trial before DJ Forrester in May 2013. The original claim and the amended version of the particulars of claim that were before the judge asserted that the 2004 fence was on the Club's land and so the Higsons were committing a trespass. At the trial, therefore, the issue between the parties was the precise delineation of the boundary between the lane, which the Club contended it owned, and the Higsons' property. The Club claimed a mandatory injunction ordering that the Higsons remove the 2004 fence. It also claimed damages, which were unparticularised in the claim, but limited to £25,000.


After the first trial, which lasted 2 days, the judge held that the boundary of the land between the Higsons' property and the lane, which he determined was owned by the Club, was as contended for by the Club in its pleadings, ie. effectively, that it was along the line of the centre of the hedge (or where it would have been had it not been removed in part), on the south side of the lane. This conclusion was displayed visually on a plan that was annexed to District Judge Forrester's order of 2 May 2013.


The parties were unable to agree the issue of appropriate remedies. At the 2 May hearing the judge dealt with the Club's claim for damages. He held that the Club was entitled to recover most, but not all, of the costs of the work of widening the bridge over the beck which the Club said had been necessitated by the erection of the 2004 fence which had narrowed its right of way along the lane. The judge thus awarded the Club a total of £3150 damages plus interest and also the costs of the matter up to and including the 2 May hearing. The Higsons say that the judge was wrong to award any damages because the only thing the judge had was a schedule of damages produced at a late stage by the solicitor for the Club, who signed a statement that the facts in the schedule were true. The schedule, which claimed damages (under various "options") of £18,036.66, was supported by numerous invoices. At the trial no oral evidence was called in support of the claim. Counsel for the Higsons objected to the

way that the issue of damages was presented to the judge, but DJ Forrester awarded the Club the sum of £3150 nonetheless

The Club's claim for a mandatory injunction against the Higsons was not determined by the judge at the May hearing because the Club was in negotiations with the owner of land on the opposite side of the lane from the Higsons, a gentleman called Mr Wood. He had indicated to the Club that he would be prepared to "sell" to the Club a small strip of land on the north side of the lane which was roughly equivalent to the area between the 2004 fence and the hedge on the Higsons' side of the lane. His "price" was lifetime membership of the Club. However, those negotiations had not been completed at the time of the May 2013 hearing and it seemed sensible to all not to tackle the injunction issue until the negotiations between the Club and Mr Wood had been completed one way or another.


Unfortunately the negotiations were not resolved when the judge re-listed the matter in September 2013. By the time of the renewed hearing the Higsons and the Club had both modified their positions on removal of the 2004 fence. The Higsons were willing to remove three of the larch lap panels of the fence, but the Club said that would be insufficient. On its side the Club indicated that it would be satisfied if six panels were removed. The judge granted the Club a mandatory injunction ordering that the Higsons remove the six panels as requested by the Club. He also awarded the Club the costs of the second hearing.


Permission to appeal was granted by Lewison LJ on the papers on 3 January 2014. He granted a stay of execution of the injunction and the payment of the damages pending this appeal hearing. We were told at the hearing of the appeal on 1 May 2014 that the strip of land which the Club had been negotiating to buy from Mr Wood had now been conveyed to it. We dubbed this piece of land "the Wood strip".

II. The history of the conveyances of the relevant land and the judge's conclusions on the conveyances and the boundary.


Before the judge the principal issue was: where did the boundary between the lane and the property known as 11 Barton...

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1 cases
  • Higson and Another v Guenault and Another
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 22 July 2014
    ...1 This is the judgment of the court on the issue of the costs of this appeal, in which we handed down judgment on 21 May 2014: see [2014] EWCA Civ 703. The appeal was dismissed. The respondents, whom we called "the Club" in the main judgment now seek an order for costs against th......

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