Melhuish v Fishburn
Jurisdiction | England & Wales |
Judge | Lord Justice Jacob,Sir William Aldous,Lord Justice Tuckey |
Judgment Date | 19 November 2008 |
Neutral Citation | [2008] EWCA Civ 1382 |
Docket Number | Case No: B2/2007/2157 |
Court | Court of Appeal (Civil Division) |
Date | 19 November 2008 |
[2008] EWCA Civ 1382
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM GUILDFORD COUNTY COURT
(HIS HONOUR JUDGE REID QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Tuckey,
Lord Justice Jacob And
Sir William Aldous
Case No: B2/2007/2157
Mr J Critchley (instructed by AWB Partnership) appeared on behalf of the Appellant.
Mr C Auld (instructed by Messrs Draper & Co) appeared on behalf of the Respondent.
Lord Justice Tuckey
This is an appeal by the claimant, Gordon Melhuish, from a judgment of HHJ Reed QC given in the Guildford County Court in which he declared where the boundary was between the defendant's garden and the claimant's adjoining land by a reference to an agreed plan.
This plan had compared the Land Registry filed plan with the boundary as it had been erected by the defendant on the ground. It showed that the defendant had given up a strip of land in exchange for three small additional pieces of land. Overall, the defendant had increased the size of his garden by 6.53 square metres or 1.8 %.
At the beginning of his judgment the judge defined the issue he had to decide as whether:
“…as the claimant says, there has never been any agreement for the alteration or clarification of boundaries as between what is shown on the Land Registry plans and what now stands on the ground, or whether, as the defendant says, there was agreement that subject to any necessary equalisation payment (because he, the defendant, was obtaining a small additional amount of land) that the boundaries should be as they presently stand.”
After a two-day trial the judge resolved this issue in favour of the defendant by accepting his evidence and rejecting that of the claimant. On this appeal the claimant, through counsel and solicitors, who did not appear for him at trial, says that this trial was unfair and that it was not open to the judge to find for the defendant in the way that he did because of the way the defendant's case had changed in the course of the trial and that the judge's reasons for making the finding he did were inadequate. It is further contended that the informal oral agreement relied on by the defendant fell foul of Section 2 of the Law Reform Miscellaneous Provisions Act 1989.
The claimant is a property developer. In March 2001 he agreed to sell to the claimant what is now 4 Leas Farm Barn, which is a barn conversion. The property was transferred to the defendant in November 2001, by which time the conversion was said to be complete, although disputes between the parties about snagging and payment for extras persisted until the trial.
The Land Registry plan showed the boundary of the garden as straight lines, but it was not laid or marked out on the ground at the time of the transfer. This did not happen until April 2002. It was the defendant's case that towards the end of 2001 he had orally agreed with the claimant where the boundary should be. The claimant had been concerned that the straight line boundary marked A to B on the agreed plan would restrict access to his other land between that boundary and the corner of an existing barn, so they had agreed that the boundary would be curved so as to create a wider access and that, in exchange for the loss of land which this involved, the defendant would be given an extra small nib of land to allow him access from the end of his garden to a nearby public footpath.
This agreement was reflected in plans for the layout of his garden which the defendant had prepared by a garden architect in November 2001. The garden was laid out in accordance with these plans in April and May 2002 when the defendant was on honeymoon by a garden contractor, Mr Porter. Mr Porter's evidence, which the judge accepted, was that he had marked out and agreed the layout of the garden with the claimant before carrying out any work. This included the precise line of the curved boundary to which I have referred. Mr Porter said that he had carried out the work, which included the construction of brick walls, in accordance with this agreed layout.
The claimant's case, on the other hand, was that he had agreed nothing with the defendant. The defendant had simply, as he said, stolen his land. He had not even met Mr Porter, let alone agreed the layout of the garden with him. The agreed plan to which I have referred was prepared in June 2002 by a local surveyor, Mr Marvin, and paid for jointly by the parties. It was the defendant's case that it had been prepared to show how the garden, as laid out, differed from the Land Registry plan so as to enable the latter to be amended. It was the claimant's case that it had been prepared to show the defendant how much land he had misappropriated.
It is apparent from what I have said so far that there was an acute conflict of evidence between the parties as to what had or had not been agreed by or on their behalf about the garden boundary. The defendant's case was that the boundaries had been agreed; the claimants that nothing had been agreed. This issue was clearly drawn in the pleadings, in the skeleton arguments prepared by counsel for the purposes of the trial, and in the evidence given by the parties at trial, which was properly and fairly tested in cross-examination.
What was not clear before trial was the defendant's position about whether it had been agreed that he should make what the judge described as “any necessary equalisation payment” for any additional land which he gained by the exchange and the right of way over the claimant's land from his garden gate to the footpath. In correspondence he had maintained that no such payment was due, but had offered £200 to settle the matter amicably. This offer had been rejected by the claimant, who was saying that what the defendant had gained was worth £10,000 to £15,000.
At the outset of the trial, counsel for the defendant, then as now Mr Auld, made what he described as an open offer to the claimant. In doing so he said:
“The defendant's case is that it was agreed that he would give up certain pieces of land in exchange for other pieces of land given to him by the claimant. The claimant denies this. The defendant's position is that he does not resile from that but for the sake of settling the case the value of that land is such that he would pay whatever is a proper price for it because the cost of arguing in court over it is probably more than the value of the land.”
So the defendant was making an open offer to pay whatever was the proper price for the additional land which the Marvin plan showed he had acquired by the agreement.
The trial then proceeded. The defendant was cross-examined at some length about the agreement he alleged. Fourteen pages into the transcript counsel for the claimant, Ms Perkins, had her Perry Mason moment, which can be seen from the following exchanges:
“Q. …I just do not understand your case. Is it that there was an agreement to transfer like for like, or is that there was an agreement to acquire the land for a price? I just do not see evidence of either, I am sorry.
A. There was an agreement to do a swap of parts of the land and if need be to pay for the extra 5 square metres. That is not documented anywhere, I am afraid.
…
JUDGE REID: Just going back, the agreement was to exchange land and for an equalisation payment.
Q. Yes, that was why the Marvin plan was raised.
JUDGE REID: If that was why the Marvin plan was raised, why was it raised at that late stage and not immediately after the agreement?
A. I think the various events of Mr Melhuish's stroke and my marriage and other events, we just didn't get round to it, I'm afraid.
MS PERKINS: I suggest to you that it was because the Marvin plan was commissioned directly after you constructed your garden using incorrect boundary positions, which immediately became apparent to...
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...even if not a disposing purpose. 32 In this connection the appellants referred me to the later decision of the Court of Appeal in Melluish v Fishburn [2008] EWCA Civ 1382. There, the defendant relied on an oral agreement fixing the boundary subject to the making of an equalisation payment i......