IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
(MR RECORDER SPON-SMITH)
B e f o r e :
Vice President of the Court of Appeal, Civil Division
LORD JUSTICE SEDLEY
LORD JUSTICE JACOB
|HORN & ANOTHER||Claimants/Respondents|
|PHILLIPS & ANOTHER||Defendants/Appellants|
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR P INFIELD (instructed by Edward Harte & Co, Brighton) appeared on behalf of the Respondents
Crown Copyright ©
Thursday, 18th December 2003
"And the starting point is that extrinsic evidence is not admissible as an aid to its construction [that is of the transfer] unless the relevant provisions of the deed are uncertain, contradictory or ambiguous."
A little later, on dealing with the particular transfer with which he was concerned, he said this:
"I find its meaning uncertain, contradictory and ambiguous on the definition of boundaries between lots 6 and 5."
In short, he focused on the matter that was said to be relevantly ambiguous.
Order: Application to adduce new evidence allowed. Appeal allowed. The appellants to receive their costs of the appeal, to be assessed if not agreed, but they should not receive any costs in relation to the application to adduce new evidence. No order as to the costs below up to 21 days after 25th October 2002, but the claimants to pay the defendants their costs thereafter, including the trial.
(Order does not form part of approved judgment)
"Alternatively [there were two proposals, this was the second], our clients propose a boundary between the houses as defined by Mr Leon's 'Intended line' as shown between points 'F' and 'J' [that is ultimately what was agreed between the surveyors]. This line may not provide the two metres clearance of the boundary that is significant for Mr and Mrs Phillips' planning permission. This line passes west of the central pillar certainly not less than the current fence line, but the final position to be ascertained by Mr Leon. From point 'J' we offer the line in the field following Mr Leon's 'Overlay Line'."
So that is exactly the line that your Lordships have now found to be our boundary, though what is Mr and Mrs Phillips' boundary is a moot point. My Lord, we say that we have done as well as that ultimately, though I do not resile from the point I made about the costs of the appeal, because we opposed the appeal and have lost, but as to the costs of the trial from 18th September 2002, in our submission we ought to have our costs.
"We refer to previous correspondence in relation to the above matter and the recent offers of settlement, the most recent of which is set out within our letter to you of the 8th October and whilst it appears that we have had no direct response --
"... it appears from the further correspondence that we have received, both on an open and without prejudice basis, from you that the offer of settlement is declined.
We believe we have already indicated to you that our Clients are not prepared to meet your Clients' costs of this action and that remains the position.
However, our Clients are prepared to offer from the 61 metre point in the southern most boundary a straight line to Point J and then from Point J in a straight line running through the chestnut paling fence to the decorative wall continuing on, along the picket fencing at the front in a straight line to Point F. We suggest that the parties' surveyors attend to agree exactly where this line should fall.
This is almost identical to your Clients' proposal no 2 in your letter of the 18th September. The main difference of course is that of costs.
Our Clients' proposal is that each side bare their own costs.
If costs are the stumbling block for your Clients and they are satisfied with the line agreed upon, then reluctantly our Clients would agree a second option on costs that each party have the opportunity of recovering their costs of the action, all other matters having been agreed, before the Court with an appropriate time estimate."
"(unchecked) You have of course now seen our client's expert evidence served last week. This report (inaudible) in proposal 2 almost in its entirety reflects the existing boundary between the parties' properties, except, insofar as the report is concerned, for a small gain to our client taking the boundary from J to the centre point pillar of the dividing wall between the two properties."
"(unchecked) Our client remains of the sensible view that this matter should be taken to resolution without litigation, we agreed. You will also know that until the boundary is determined and/or agreed, then both our clients face difficulties should they wish to sell their properties. As you have no doubt advised your client, boundary disputes are rarely commercially worthwhile. Accordingly, we hope you will advise your client that compromising this dispute would be beneficial to both sides. Our client has already made offers in an attempt to compromise this dispute, both on their own and through us. Thus our clients feel that any litigation is both unnecessary and regrettable. They presently feel that proceedings may have to be issued and accordingly, unless a response is received to this letter within the time set out below, then our instructions are to brief counsel to settle the necessary application for a declaration of appropriate orders. As we understand it, both parties have made offers on the basis of straight lines solutions, differing only in the points through which the line is projected. Indeed, as long ago as 28th October last year our clients wrote that we would accept any straight line projection through point A --
"(unchecked)-- with yourselves choosing any other reasonable point to (inaudible), that remains our client's offer. Taking the survey (inaudible) by your client's surveyor, Mr Dickin, at the rear of the garden [that is point J] on the centre line of the hedge as a point of reference, our client is prepared to accept any sensible straight line boundary projected through that point. If this can be agreed then we would direct that a legal rectification is drawn up, together with amended plans so that any agreement is clearly documented to avoid any future disagreement. If such an offer is not acceptable, then we believe the only possible resolution is for a joint surveyor to be retained to adjudicate on the matter. This was initially proposed by your client in their letter of 26th November 1999. This is also something that your clients agreed to on a number of occasions in (inaudible) means of resolving this dispute. Indeed, in our initial letter to you of 14th September 2000 we suggested that a surveyor be appointed, and again we were going to take the client's instructions as to whether they would agree with such an appointment. If this is the case, then again we suggest that both parties (inaudible) three potential surveyors from whom we can select one. A joint letter of instruction can then be granted and sent to the surveyor and a site inspection can follow."
Then it contains the usual part 36 paragraph:
"(unchecked) This offer of any sensible straight line through point A or (inaudible) a surveyor is to remain open for 21 days from the date it is made and may be accepted (inaudible) open if the parties agree to liability for costs or the court gives permission."
"In any event, I can see no logical reason why costs consequences which follow from an offer which fulfils the requirements of part 36 and which is made after the commencement of proceedings should not equally follow from an offer which also fulfils those requirements --"
"Indeed, I can see very good reasons why the consequences should be the same."