Powles and Another v Reeves and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice David Richards,Lord Justice Longmore |
| Judgment Date | 12 October 2016 |
| Neutral Citation | [2016] EWCA Civ 1375 |
| Docket Number | Case No: A2/2014/3359 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 October 2016 |
[2016] EWCA Civ 1375
Lord Justice Richards
Lord Justice Longmore
Case No: A2/2014/3359
IN THE COURT OF APPEAL
ON APPEAL FROM CHICHESTER COMBINED COURT CENTRE
(DISTRICT JUDGE ELLIS)
Royal Courts of Justice
Strand
London, WC2A 2LL
Mr Joshua Swirsky (instructed by Duncan Lewis) appeared on behalf of the Appellant
Mr James Sutherland (instructed by Irwin Mitchell) appeared on behalf of the Respondent
This is an appeal brought with permission granted by Sales LJ against an order for the costs of an action made after the parties settled the substantive claims in the action shortly before trial.
The proceedings concerned a disputed boundary between two residential properties in Bognor Regis. The claimants, Mr and Mrs Powles, have at all material times owned 23 Shrubbs Drive, Middleton-On-Sea, Bognor Regis. From May 2010 to April 2014 the first defendant and appellant, Mr Reeves, owned a neighbouring property at 25 Old Point, Bognor Regis. In April 2014 Mr Reeves sold his property to the second and third defendants, Mr Lyons and Ms Myers, who are not parties to this appeal and who I will call "the purchasers".
The dispute concerned the boundary between the two properties at the rear of their respective gardens. The claimants maintained that the boundary between the properties lay along the centre line of a hedge. Mr Reeves maintained that the boundary lay along the line of a screening fence that the claimants' predecessor in title had erected in 2004 on what they said was their side of the boundary.
The dispute arose shortly after Mr Reeves purchased his property, when he began works which the claimants said encroached on their property. Attempts to resolve the issue failed and relations between the parties deteriorated, as is apparent from some of the claims made in the proceedings.
The proceedings were issued in December 2012. In their claim form and particulars of claim the claimants sought a declaration that the boundary lay along the line of the hedge and they also sought damages for trespass and an injunction restraining any future trespass.
In his defence and counterclaim Mr Reeves denied that the boundary was as alleged by the claimants in their particulars of claim. He asserted that the true boundary lay along the line of the fence, but he offered a resolution of the dispute in his defence, saying that he would accept a boundary close to the hedge, although not along its centre line. He also claimed damages for trespass on the basis that the land between the hedge and the fence was his land, and there were also claims made, amongst other things, for damages for slander, libel and blackmail.
Experts were instructed by both parties. In due course they met pursuant to an order of the court and produced a joint report in November 2013 in which they agreed the location of the conveyance boundary line. In broad terms, it ran close to the hedge but not along its centre line. The precise position of the boundary that the experts agreed was changed slightly following a question raised by the claimants.
The line that the experts actually pinned out on the ground, rather than marking on a plan, was, as I say, not one that accorded with the position of either party in their pleadings, and it was in dispute whether it was the same as the boundary line that the defendant offered by way of compromise in his defence. It was the claimants' intention, if the matter went to trial, to challenge the conclusion of the experts at trial and it was their intention to maintain that the boundary lay along the midline of the hedge, as they had always contended.
Following the sale by Mr Reeves of his property to the purchasers, the claimants were granted permission in July 2014 to join the purchasers as additional defendants and to amend their claim form and particulars of claim so as to delete the claim for a declaration as to the true position of the boundary as against Mr Reeves but to claim a similar declaration as against the purchasers. They took the position, rightly as I would think, that as Mr Reeves no longer had any interest in the property the proper parties to the claim for a declaration were the purchasers, not him. In any event, neither Mr Reeves nor the purchasers objected to the amendments and they were allowed, as I have mentioned, by the court.
It would appear that the purchasers had no interest in maintaining that the boundary was anywhere other than the centreline of the hedge, as the claimants had asserted, and the proceedings as between the claimants and the purchasers were settled on the terms set out in a schedule to a consent order made on 15 September 2014, albeit probably agreed a few days earlier. That consent order stayed the proceedings, save for the purposes of carrying the agreed terms into effect, and further provided that there should be no order for costs in respect of the claim as between the claimants and the purchasers.
There remained the claims and counterclaims for damages as between the claimants and Mr Reeves and they were settled by a consent order made on 15 September 2014. The order provided that the claims and counterclaims be stayed for the purpose of enforcement of the scheduled terms. The scheduled terms provided for Mr Reeves to pay £200 in full and final settlement of the claims against him and further provided that he discontinued his counterclaims.
The consent provided in paragraph 2 that "the costs of the claim and the counterclaims be determined by the court at the hearing listed for the trial of this matter on 15 September 2014", Accordingly, the only issue that fell to be determined on 15 September 2014, which, as that order recited, was the date fixed for trial of the action, was the order for costs.
In her judgment District Judge Ellis, sitting in the County Court at Chichester, reviewed the history of the dispute and the proceedings and the various offers and counter-offers for settlement that had been made. Having rejected two preliminary submissions made on behalf of Mr Reeves, against which there is no appeal, the judge dealt with a submission on behalf of Mr Reeves that if the case had proceeded to trial the most likely outcome would have been a decision that followed the boundary on which the experts were agreed. It was submitted that in view of offers made by Mr Reeves it would not therefore be appropriate to make a costs order against him. As to this, the judge said in paragraph 27:
"This is a difficult matter to comment on because nobody knows what the outcome of the trial would have been because we have not had a trial. Insofar as it is relevant, it does seem to me that if this matter had gone to trial then it is likely that a judge would have accepted Mr Reeves' argument, or the argument put forward on behalf of Mr Reeves, that the most likely outcome would have been an acceptance of the joint experts' report. But where I disagree with Mr Swirski is where he said that this would have meant that there would have been no costs against the first defendant. I cannot accept that the offer that he put forward in his defence, as being prepared to accept the boundary along the north of the hedge, is the same as the joint experts' recommendation which follows a slightly different line. These matters may only be matters of millimetres, but as the correspondence shows, as sadly many boundary disputes show, every millimetre matters on these occasions. Also the offer put forward by Mr Reeves in his defence is an offer to settle and as the correspondence to which I have been referred shows, it has not been possible for a settlement to be reached in this case. It would always have been the consequence for Mr Reeves putting forward an offer to settle after proceedings had been issued that he would have to have paid the costs of the claimants and he has not been prepared to do so."
The judge then considered whether it could properly be said that the claimants had been successful in the case. She considered that they had been, because they had obtained a declaration in the terms they were originally seeking. When Mr Reeves sold the property without imposing any terms or requirements on the purchasers as to this dispute, he took the risk...
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