Scammell and Another v Dicker
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rix,Lord Justice Ward |
| Judgment Date | 14 April 2005 |
| Neutral Citation | [2005] EWCA Civ 405 |
| Docket Number | Case No: B1/2003/1692 & B1/2003/1692/A |
| Court | Court of Appeal (Civil Division) |
| Date | 14 April 2005 |
[2005] EWCA Civ 405
Lord Justice Ward and
Lord Justice Rix
Case No: B1/2003/1692 & B1/2003/1692/A
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE McCOMBE
[2003] EHWC 1601 QB
Mr George Laurence QC (instructed by Messrs Jacksons) for the Respondent
Mr Charles Auld (instructed by Messrs Thring Townsend) for the Appellant
This is an appeal about a boundary dispute between neighbours, but perhaps unusually for such a dispute it is one where the parties have been let down by the legal process as much as by their own irreconcilable differences.
The essential issue on this appeal is whether a consent order made in February 1994, compromising original proceedings between the parties which were commenced in 1989, was void for uncertainty, thereby throwing the parties back into unfinished litigation. A second set of proceedings was commenced in August 1995, challenging the consent order. Following a three day trial in 2002, HHJ Rudd gave judgment in August 2002 declaring the consent order to be void for uncertainty, and in July 2003 Mr Justice McCombe dismissed an appeal.
Thus the litigation from which this second appeal arises has been going on since 1989. Mr and Mrs Scammell and Mr Donald Green ("the Scammells") and Mrs Dicker occupy adjoining properties near Wimborne in Dorset. The property owned by the Scammells is called Glenwood Farm and that owned by Mrs Dicker is known as Hillside. Glenwood Farm (the Scammells) is to the west of Hillside (Mrs Dicker). The properties are contiguous over a distance of about 200 metres. In the area of the boundary between the two properties is a track running roughly north/south. A hedgerow runs for most of that distance on a bank to the immediate west of the track, but the hedgerow does not continue to the northern or southern ends of the properties.
The 1989 proceedings
When in 1989 Mrs Dicker commenced the original set of proceedings against the Scammells in order to determine the precise line of the boundary the difference between the parties was measured in feet rather than inches. Mrs Dicker said that the boundary was some four feet to the west of the hedge. The Scammells said that it lay along the western edge of the track. The Scammells were concerned about maintaining access off the track to their farm. Mrs Dicker was concerned about the encroachment of farm buildings on what she said was her property at its northern end.
The original proceedings dragged on in a desultory way until 1994. The Scammells' solicitor in those proceedings was a Mr Bourke. He admits to being so negligent in his preparations for trial that he came to advise the Scammells that they had little option but to find a compromise, which they no sooner made than they appear to have regretted. The compromise had been discussed in correspondence but ultimately was drawn up in the form of a consent order lodged on 10 February 1994, signed by solicitors on behalf of the respective parties. The consent order referred to and annexed a coloured plan (the "consent order plan") the original of which has been lost, but an uncoloured copy of which has been established: it has been referred to as "plan D4". This plan, which was signed by the parties' solicitors, shows the agreed boundary line drawn on it between point A in the north, via points C, D and F, to point B in the south. Just to the north of point C a telegraph pole is marked on the plan a little to the west of the boundary line. This plan in its original form was dated 25 June 1992 and is on a scale of 1:500.
The 1994 consent order
The consent order required the Scammells inter alia to remove a barn and green box container from Mrs Dicker's land, to pay her mesne profits and damages in the sum of £2,000, and to pay her costs. For present purposes, however, its critical wording is as follows:
"BY CONSENT IT IS HEREBY DECLARED that the boundary between [Mrs Dicker's] land and [the Scammells'] land is the line coloured red between the points "A" and "B" on the plan annexed to this Order and signed by the respective parties Solicitors
and BY CONSENT IT IS ORDERED that:—
1. [The Scammells] do, on or before 22 nd March 1994:
b) take down the lines of fencing along the hedgerow and re-erect along the western bank of the hedgerow (being the declared boundary between the respective parties lands) between the points marked "C" and "D" on the plan annexed hereto fencing posts and railings suitable for restraining cattle and other animals from trespassing on [Mrs Dicker's] land, the said fencing posts and railings thereafter belonging to [Mrs Dicker];
c) take down the fencing between the points marked "D" and "B" on the plan annexed hereto and re-erect between the points marked "D", "F" and "B" on the plan annexed hereto fencing posts and railings suitable for restraining cattle and other animals from trespassing upon [Mrs Dicker's] land, the said fencing posts and railings thereafter belonging to [Mrs Dicker."
Thus the hedgerow went between points C in the north and D in the south. North of C and south of D there was no hedgerow. The order said that "the western bank of the hedgerow" was "the declared boundary" (para 1(a) of the order). North and south of the hedgerow the plan showed the agreed boundary line extending in both directions in a straight line. At the northern end of this straight line the boundary line turned to the east for a short distance at an angle of about 60% until it reached point A at a kink in the parish boundary as marked on an Ordnance Survey extract. At the southern end of this straight line the boundary turned (at point F) for an even shorter distance almost due east until it reached point B.
The aftermath of the consent order
The boundary line drawn on the consent order plan if measured to the scale of the plan is some three feet thick. The parties contemplated that where this line was to go on the land itself would be measured, agreed and pegged out by surveyors acting for the parties. Mr West (for Mrs Dicker) and Mr Pollard (for the Scammells) attended on site. They encountered a number of difficulties, which they attempted to work around in the spirit of compromise. HHJ Rudd described a difficulty they encountered to the south in the following passage:
"At the southern end of the boundary they had nothing to go on at all from the order plan to locate the various points at that end of the boundary. They looked at what has been described as a soil line to show where a fence had been, but neither of them were certain it was the line of the old fence. It could have been a cow track; it could have been anything or nothing."
On this appeal, however, Mr George Laurence QC, on behalf of the Scammells, has not concentrated on the southern end as much as on the northern end, where the difficulties, such as they were, were more complex, in part because there had not in the past been any physical division between the properties. Thus, as I have mentioned above, the consent order plan, plan D4, shows the boundary line extending in a straight line to the north, passing immediately to the east of a telegraph pole. The effect of this was to place the telegraph pole on what was agreed to be the Scammells' land. The surveyors discovered, however, that on the ground such a line, if extended northwards beyond the northern end of the "western bank of the hedgerow", would in fact pass to the west of the telegraph pole, thus placing it on Mrs Dicker's land. However, they agreed to accommodate that displacement in order to produce a boundary line on the ground which otherwise fitted the requirements of plan D4. They pegged out their agreed line on the ground, and they annotated a copy of plan D4 with their findings and comments and signed it, adding the date 18 February 1994. This annotated version of plan D4 has become known as plan D5.
Plan D5 says, of the area towards the northern end of the hedgerow:
"This area was the subject of discussion and is subject to solicitors' formal approval. Pegs have been positioned at the bottom of the western edge of the existing bank. Please note the existing timber shed encroaches over Mrs Dicker's boundary into the bank. Verbal agreement has been reached on site with both parties that the building shall remain for its natural life. All other buildings within the hatched area are on the [Scammells'] land."
As for the telegraph pole, the surveyors endorsed plan D5 as follows:
"The telegraph pole is on [Mrs Dicker's] land but it is agreed that it shall remain in its existing position unhindered and that the services fixed to it shall remain."
The surveyors also wrote on the plan –
"All notes and dimensions have been agreed on site between Mr Pollard and Mr West"
and they signed and dated it.
Unfortunately, as HHJ Rudd found, the surveyors' agreements were subject to further instructions and it was Mr Bourke, as that judge also found, who was the source of disagreement. The fence, having been put up once, was taken down and moved. At any rate a fence was put up, and remains there to this day. The effect of the fence was to block the Scammells' existing access points from the track into their farm: but contemporary correspondence shows that this was known by them at the time of the consent order. Although it is not formally in evidence before us, the court was told that the Scammells had "limped on" in their farming over the following decade by using an alternative route.
Plan D3
One...
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