Stephen Wayne Gibson v Philip New
Jurisdiction | England & Wales |
Judge | Mr Justice Murray |
Judgment Date | 01 July 2021 |
Neutral Citation | [2021] EWHC 1811 (QB) |
Docket Number | County Court Case No: E00SS423 |
Court | Queen's Bench Division |
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM THE ORDER OF
HHJ PUGH DATED 5 MARCH 2021
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Murray
County Court Case No: E00SS423
Appeal Ref: QA-2021-000072
Mr Ted Loveday for the Respondents/Claimants
Mr Paul Wilmshurst for the Appellants/Defendants
Hearing date: 26 May 2021
Approved Judgment
I direct that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Murray
This is an appeal from an order of HHJ Pugh dated 5 March 2021 (sealed on 15 March 2021) (“the Order”) in which he made a declaration following a trial of a preliminary issue and made certain consequential orders. The appellants also appeal against the judge's award of costs to the respondents and that those costs were awarded on the indemnity basis.
The appellants appeal against the Order with the permission of Andrew Baker J, granted in his order dated 21 April 2021. Andrew Baker J gave permission to appeal on all of the Grounds of Appeal other than Ground 4.
Background
This is a longstanding dispute between neighbours concerning the boundary between their residential properties on Sunnymede Close, Thundersley, Benfleet, Essex SS7 3QT. The disputed boundary runs between the gardens of 24 and 25 Sunnymede Close.
The respondents, who were the claimants below, Mr Stephen Wayne Gibson and Mrs Karen Gibson, have lived at 25 Sunnymede Close for many years. The property has belonged to Mrs Gibson's family since 1976 and now belongs to Mrs Gibson, who has a 50 per cent share, and her three adult children, Mr Nicholas Roy Gibson, Mrs Kelly Jane Hatton, and Ms Jade Caroline Gibson (“the Gibson Children”). Mrs Gibson and the Gibson Children are on the register of title. The Gibson Children are not parties to these proceedings, however a recital to the Order records that they have consented to be bound by the boundary determined in this litigation.
The appellants, who were the defendants below, Mr Philip New and Mrs Denise New (formerly named in the proceedings as Ms Denise Bolton), have lived at 24 Sunnymede Close since 2006.
It is common ground that around April 2010 Mr New began erecting sections of garden fence between the properties. Around May 2012, Mr New replaced three fence panels towards the far end of the gardens. An older section of fence remains in place at the nearest end of the gardens, between the appellants' garage and their summerhouse. Between 2012 and 2015, the neighbours fell out badly over the new sections of fence.
Mr and Mrs Gibson and Mr and Mrs New attended two mediations arranged by the Mediation and Advice Project (“MAP”) in relation to their dispute. At the second mediation on 30 September 2015 the parties concluded a settlement agreement. It is evidenced by a short, single-paged document (“the Settlement Agreement”) that reads in its entirety as follows:
“ Summary of Arrangements between: Karen and Steve Gibson and Phillip [sic] and Denise New
Date of agreement: 30 th September 2015
The above parties participated in mediation on the above date in order to resolve their current dispute relating to Mr [and] Mrs Gibson's garden fence.
All parties have contributed to the process by having an open exchange of views around a number of topics that have concerned them, and have reached an initial agreement about how to improve the relationship between them.
They all have expressed satisfaction that they have gone through the mediation process. They all agree that this is with a view to end their dispute permanently and would like to carry on with their lives.
All parties agree that:
Although they cannot change the past, they will draw a line under previous events and move forward as neighbours in good faith and act reasonably.
All parties agree:
1. As both parties cannot agree on which Royal Institute of Chartered Surveyors (RICS) LAND SURVEYOR to use, BOTH parties suggested The Mediation and Advice Project (MAP) will impartially pick a Royal Institute of Chartered Surveyors (RICS) LAND SURVEYOR at random and a MAP administrator will pass the details of the Surveyor to each party to arrange an appointment.
2. That they will divide the total cost of the Surveyor equally between them.
3. The appointment will take place within 2 weeks at a mutually convenient time.
4. Both parties will accept the result of the RICS Surveyor and the dispute will come to an end.”
(use of bold, underlining and capital letters as in the original)
The Settlement Agreement was signed by the two accredited mediators who conducted the mediation. The Gibson Children did not attend the mediation. It is common ground that they are not parties to the Settlement Agreement.
There was a factual dispute between the parties as to whether the MAP had:
i) identified W.G. Edwards Surveyors Ltd (“WGES”) as a company of RICS surveyors that could provide a surveyor to resolve the boundary dispute, which was the position of Mr and Mrs Gibson; or
ii) specifically identified Mr Adrian Cowell FRICS, who is the Director and principal of WGES, which was the position of Mr and Mrs New in their response dated 12 March 2019 to a Request for Further Information from the Gibsons.
In this regard, I note that in Mr Gibson's witness statement dated 31 July 2019, prepared for the trial below, he refers to an email that he received from Ms Anne Cates, Mediation Co-ordinator at the MAP, on 9 October 2015 and which was exhibited to the witness statement. It reads as follows:
“Dear Mr & Mrs Gibson
I apologise for the delay in replying. It's been a very busy week.
The name has been selected at random by me.
WG Edwards tel 01277 810 820 – Confirmed by Land/Boundary Surveyors by RICS
[Kind] Regards
Anne Cates
Mediation Co-ordinator”
WGES is a small company that describes itself as specialising “in professional property concerns with particular reference to boundary disputes and all types of commercial, industrial, residential and historical buildings”. The company is based in Ingrave in Essex.
Following contact by the parties, WGES offered the services of Mr Malcolm Stephenson FRICS, a consultant to WGES, as a surveyor who could carry out the boundary survey.
Mr Stephenson spoke with the parties to arrange his visit. Mr and Mrs New confirmed their instructions by letter dated 12 October 2015, which Mr New sent to WGES as an email attachment on 14 October 2015. Mr and Mrs Gibson sent an undated letter to WGES on or about 20 October 2015 to similar effect. No objection was raised at that time by the News or the Gibsons to a surveyor from WGES carrying out the boundary survey, even though neither Mr Cowell nor Mr Stephenson is a land surveyor. Both are building surveyors and Fellows of the Royal Institution of Chartered Surveyors (RICS).
Mr Stephenson attended the properties on 2 November 2015. He produced his report on 18 November 2015 (“the Stephenson Report”).
The News were not happy with the Stephenson Report. Mr New contacted Mr Stephenson by telephone and then sent him an email on 23 November 2015, in which he set out a number of observations regarding matters that he considered needed to be taken into account in determining the boundary, some or all of which were, by implication, inconsistent with the conclusions of the Stephenson Report. Subsequently, the News were in contact with Mr Cowell to express dissatisfaction with the Stephenson Report.
Mr Cowell visited the site on 16 December 2015 with a view to finding a solution to the boundary dispute acceptable to both parties. He produced a report on 22 December 2015 (“the Cowell Report”), which reached a different determination of the boundary from that reached by Mr Stephenson. The News, however, were also dissatisfied with the Cowell Report, sending an email on 28 December 2015 to WGES saying that they would not be accepting the findings of either Mr Stephenson or Mr Cowell.
The boundary dispute therefore remained live between the Gibsons and the News after the Stephenson Report and the Cowell Report, notwithstanding the Settlement Agreement.
On 26 March 2018 the Gibsons sent a pre-action letter to Mr and Mrs New seeking their agreement that the parties were bound by the boundary determined by Mr Stephenson as set out in the Stephenson Report and their undertaking to remove their fence, summerhouse and shed within 14 days of the letter, failing which the Gibsons reserved their right to issue a claim in the County Court for a declaration as to the true boundary, together with an injunction, damages for trespass and costs.
The Gibsons received no response to their pre-action letter.
Procedural history
On 10 August 2018 the Gibsons issued their claim form initiating these proceedings, together with brief Particulars of Claim. There was some confusion as to whether the claim had been issued under Part 7 or under Part 8 of the CPR, resulting in a hearing on 6 November 2018 before DJ Humphreys in the County Court at Southend. The district judge directed that the claim should continue under Part 7 and that the News should file and serve their Defence by 4:00 pm on 4 December 2018.
On 4 December 2018, the News filed their Defence and Counterclaim. (As no issue arises on the Counterclaim, in the remainder of this judgment I will simply refer to their “Defence”.) In their Defence, the News did not object to the Stephenson Report on the basis that Mr Stephenson was...
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