Joyce v Rigolli
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,Lady Justice Arden,Sir Martin Nourse,Lord Justice Thorpe |
| Judgment Date | 12 February 2004 |
| Neutral Citation | [2004] EWCA Civ 79,[2003] EWCA Civ 1019 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2003/0899 CCRTF,B2/2003/0899 |
| Date | 12 February 2004 |
[2003] EWCA Civ 1019
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EPSOM COUNTY COURT
(His Honour Judge Hull QC)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Peter Gibson
B2/2003/0899
MR HUTCHINGS (instructed by Taylor Willcocks, London WC2R 3AA) appeared on behalf of the Applicant
The Respondent did not appear and was unrepresented.
Thursday, 26th June 2003
This is a renewed application by the claimant, Catherine Joyce, for permission to appeal from the order of His Honour Judge Hull QC in the Epsom County Court on 3rd April 2003, the judge, and, on application to this court, Chadwick LJ on the papers, having refused permission. By the judge's order the action brought by Mrs Joyce to establish the boundary between her and that of her neighbour, the defendant, Mr Rigolli, on a particular line was dismissed. Instead the judge granted a declaration that the boundary line lay, as Mr Rigolli had claimed, where it was marked by a fence which Mr Rigolli had erected.
Before 1984 a Mr Southon was the owner of the house and garden known as 6 Chanton Drive, Cheam, Surrey, and Mrs Joyce's husband, Mr Joyce, then purchased all that property less the northern part of the garden. The boundary between the reduced garden and Mr Southon's part was a line running from north-west to south- east, but it was not defined by measurement or mark on the ground. The retained part I will call "the quadrilateral" from its shape. In 1987 that was sold by Mr Southon to Mr Joyce. In 1988 Mr Joyce transferred 6 Chanton Drive and the quadrilateral to Mrs Joyce. They regarded the land as their joint property. Mr Joyce acquired from the owners of the land immediately to the north of the quadrilateral a piece of land which I will call "the rectangle" from its shape.
The quadrilateral and the rectangle were thought to be sufficient in extent for a new house to be built on it and planning permission was obtained for such a house. Mr Joyce decided that the rectangle and most of the quadrilateral should be sold to White Oak Homes Ltd ("White Oak"), retaining a strip of land at the southern end of the quadrilateral of uniform width so that the northern boundary of the strip would run parallel with the former boundary between the quadrilateral and 6 Chanton Drive. The transfer by Mrs Joyce to White Oak was the subject of an agreement dated 21st March 2000 ("the March agreement") and took place on 27th April 2000. The land transferred was given a separate title number at the Land Registry and became 7 Chanton Drive.
Both the March agreement and the transfer have a fairly crude plan of 7 Chanton Drive. The plan showed a point marked C at the northern corner of the building at 6 Chanton Drive and a point marked D on a line from a point marked A where 7 Chanton Drive at its north- east corner abuts Chanton Drive to a point marked B at the north-west corner of 7 Chanton Drive. The March agreement and transfer contain a provision purporting to define the new boundary, that is to say that the line CD should be at right angles to the line AB and should be 27'6" in length. Both documents provided for Mr Rigolli to construct a close-boarded fence between points A and B.
After Mr Rigolli's purchase of 7 Chanton Drive in September 2000 there was a meeting on site in November 2000 between Mr Joyce and Mr Rigolli, whose engineer, Mr French, was also present. Mr French's evidence, which the judge accepted, was that he wanted the boundary to be agreed on the ground before he went ahead with the building works, including the garage for 7 Chanton Drive which was to be placed in the south- east corner of that property. Mr Rigolli also claims that the purpose of the meeting was to agree the position of the boundary on the ground and that they did so agree, but, because a cherry tree, which Mrs Joyce wanted to retain, was on the boundary, it was agreed that the boundary fence would be erected leaving the cherry tree on Mrs Joyce's side of the boundary. Mr Rigolli claimed that the line was therefore not a straight line. Mr Rigolli said that stakes were inserted, connected by a string, to identify the boundary. He also said that the foundations of his garage were laid on the basis of the agreed boundary, the garage being completed in March 2001. A close-boarded fence marking Mr Rigolli's southern boundary was erected by July 2001. Mr Joyce disagrees with parts of what Mr Rigolli claims and, in particular, with the claim that there was an agreement as to where the boundary lay.
Mrs Joyce commenced proceedings on 1st March 2002. In short she claimed that Mr Rigolli had erected the fence not on the true boundary line, but wholly on her land, and that the garage also lay across the boundary line. Mr Rigolli by his defence and counterclaim relied on the agreement as to the boundary which, he says, was reached in November 2000 and counterclaimed for the declaration which the judge was to make.
The judge at the trial lasting five days heard evidence from Mr and Mrs Joyce, Mr Rigolli and Mr French and from two experts, Mr Francis, a surveyor, for Mrs Joyce, and Mr Maskell, an architect, for Mr Rigolli. The judge first considered the transfer by Mr Joyce to White Oak to see whether he could determine where the paper title placed the boundary. He said that the boundary provision failed to define the new boundary AB, which would merely be any tangent to a circle of a radius of 27'6" inches in length with its centre at point C. The judge then considered the expert evidence. He praised the very high quality of Mr Francis' work, which he called very careful and impressive, but said that if he had to choose between the views of Mr Francis and Mr Maskell he would be obliged to prefer Mr Maskell's opinion, and he noted that even on that opinion a very small part of the land in Mrs Joyce's paper title was taken by Mr Rigolli.
The judge then turned to the rival accounts of the meeting in November 2000. The judge found Mr French to be an extremely frank and trustworthy witness, corroborated to an extent by Mr Rigolli, and the judge was content to act on Mr French's evidence. The judge found, as Chadwick LJ noted:
(i) the purpose of the site meeting in November 2000 was to agree the line of the boundary for the purpose of setting out the works which, as Mr Joyce knew, Mr Rigolli intended his contractor carried out;
(ii) Mr Joyce acted as Mrs Joyce's agent for that purpose;
(iii) that at that meeting a boundary line was agreed and defined on the ground; and
(iv) that Mr Rigolli and his contractor acted upon the agreement in carrying out the works.
The judge referred to the judgment of Megarry J in Neilson v Poole [1969] 20 P&CR 909 and said that the parties had reached a binding agreement, which the court must recognise, in regard to the line of the boundary. He therefore dismissed the action.
Mrs Joyce appeals on three main grounds:
(i) the judge failed to determine the paper title boundary line, which could be accurately determined from the March agreement and should have been determined in the position contended for by Mrs Joyce, with the consequence that any boundary agreement was entered into under a mistaken assumption of fact, lacked consideration and fell foul of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989;
(ii) there was no sufficient evidence of the boundary agreement clearly establishing the boundary line;
(iii) the boundary found by the judge differs from the position which was agreed.
Chadwick LJ, in refusing permission to appeal, in effect dealt only with the second ground. He said nothing on the first and third grounds, save perhaps that finding (iv) might relate to the third ground.
I will consider the three grounds in turn.
The judge having said that his first task was to determine where the paper title placed the boundary either did not determine it or, if he did so when he expressed the view that if he would have to choose between the experts he would have to prefer Mr Maskell, does not appear to have appreciated that Mr Francis had carried out the exercise proposed by Mr Maskell, whose opinion the judge preferred, but that Mr Francis' results differed from those of Mr Maskell. The judge did not resolve that conflict. For the reasons given by Mr Hutchings in his helpful skeleton, it is properly arguable that the judge did not perform that first task or do so adequately. It seems to me properly arguable that the conveyancing documents were rather more helpful than the judge acknowledged and that more assistance can properly be derived from the file plans, which are, of course, derived from Ordnance Survey plans. The judge referred to the general boundaries rule, but in my judgment that rule is more applicable in cases where on the ground there are features, such as hedges and ditches, which have to be taken into account to determine the actual boundary on the ground. But in this case there was no assistance to be derived from the ground other than by taking measurements and following the directions provided in the March agreement.
I have more doubts as to the consequences, if Mr Hutchings' submission thus far is correct. If a boundary agreement establishes on the ground what it was that the transfer directed, then in accordance with Neilson v Poole it can be argued that it is an effective agreement, even if it results in some land being conveyed by one party to the other. It can be argued that a boundary agreement is, in...
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