COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE McCOMBE
 EHWC 1601 QB
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIX
| Scammell and others
|- and -
Smith Bernal Wordwave Limited, 190 Fleet Street
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Mr Charles Auld (instructed by Messrs Thring Townsend) for the Appellant
Crown Copyright ©
Lord Justice Rix:
The 1989 proceedings
The 1994 consent order
"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 22nd 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."
The aftermath of the consent order
"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."
"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."
"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.
The second set of proceedings: the Scammells' action
The judgment of HHJ Rudd
"Having considered the contemporaneous correspondence and heard the evidence of Mr Bourke and Mr Simpson [Mrs Dicker's solicitor in 1994], I am satisfied that the dispute about the track was not fundamental to the agreement to settle this litigation, and that such misapprehensions as either of them may have laboured under as to the fact or law or mixed fact and law in respect of the use of the track and its status, were not material to the settlement of the boundary dispute."
There was no appeal from that finding.
"33…I am satisfied that the boundary indicated is the centreline of the hedge where there was a hedge, and the centreline of where the hedge was thought to be where it did not exist. That plan conflicted with the text of the order and what the parties appear to have agreed, namely that the line was the base of the western edge of the bank, where there was a bank. Fifthly, location of the southern end of the boundary was virtually impossible from the plan. Sixthly, I am satisfied that the surveyors' task after the order was to peg the boundary as best they could, and it was subject to final agreement which never happened. Seventhly, the task of the surveyors was not to create a boundary. Their task was to locate an agreed boundary which was provided for by the order, but that was simply impossible, because firstly, the line on the plan and the words of the order conflicted; secondly, there was insufficient data to locate with certainty the points at the southern end of the boundary. Indeed, even where there was a bank, there was considerable difficulty locating that.
34. For the above reasons the consent declaration and order and plan could not possibly represent any agreement on the location of the boundary, and consequently the conclusion that I come to is that there never was a concluded agreement."
The appeal to Mr Justice McCombe
"25. It seems to me that those passages require the Court to consider whether the terms of the contract require further agreement between the parties to implement them…Also the contract must be sufficiently definite to enable the Court to give a practical meaning…The learned judge found as a fact that in certain respects the agreement was "impossible" or "virtually impossible" to implement. He further found that it was extremely difficult to locate where the bank and where its edge was. These seem to me to be findings that there was a need for further agreement to implement the order and that, therefore, the order was not sufficiently definite to give it a practical meaning…
27. I have also considered the point that in many cases a plan such as that annexed to the order, if found in a conveyance, would be seen as a luxury and the courts have managed to construe successfully plans inferior to that used here. However, one has to have regard to the purpose of the documentation. It was designed to compromise a dispute about a boundary some 200 metres in length where the terrain varied in character and there were kinks and obstructions on the ground. It was not designed simply to identify a parcel of land to be conveyed on sale. Its very object was to resolve the type of problem encountered by the surveyors on 18 February 1994. For that purpose the learned judge found (in the words of the authorities) that it was without practical meaning and needed further agreement in order to be implemented. He was clearly entitled so to find on the evidence before him."
Permission to appeal to the court of appeal
The issue of uncertainty
"There are in my opinion two grounds on which the court ought to hold that there never was a contract. The first was that the language used was so obscure and so incapable of any definite or precise meaning that the court is unable to attribute to the parties any particular contractual intention. The object of the court is to do justice between the parties, and the court will do its best, if satisfied that there was an ascertainable and determinate intention to contract, to give effect to that intention, looking at substance and not mere form. It will not be deterred by mere difficulties of interpretation. Difficulty is not synonymous with ambiguity so long as any definite meaning can be extracted. But the test of intention is to be found in the words used. If these words, considered however broadly and untechnically and with due regard for all the just implications, fail to evince any definite meaning on which the court can safely act, the court has no choice but to say that there is no contract. Such a position is not often found. But I think it is found in this case. My reason for so thinking is not only based on the actual vagueness and unintelligibility of the words used, but is confirmed by the startling diversity of explanations, tendered by those who think there was a bargain, of what the bargain was. I do not think it would be right to hold the appellants to any particular version. It was all left too vague. There are many cases in the books of what are called illusory contracts, that is, where the parties may have thought they were making a contract but failed to arrive at a definite bargain. It is a necessary requirement that an agreement in order to be binding must be sufficiently definite to enable the court to give it a practical meaning. Its terms must be so definite, or capable of being made definite without further agreement of the parties, that the promises and performances to be rendered by each party are reasonably certain. In my opinion that requirement was not satisfied in this case.
But I think the other reason, which is that the parties never in intention nor even in appearance reached an agreement, is a still sounder reason against enforcing the claim. In truth, in my opinion, their agreement was inchoate and never got beyond negotiations."
The CPR and the overriding objective
Lord Justice Ward: