England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HHJ HAZEL MARSHALL QC
CHY08581

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/02/2012

Lord Justice Mummery:

General

1. This is a protracted boundary dispute between neighbours in Peckham.
2. Mr Devon Cameron (the claimant) owns a brick built mews property, No 7 Choumert Mews, London, SE15, and an area of cobbled courtyard in front of it.
3. Miss Angela Boggiano and Mr Craig Robertson (the defendants) own a three storey terraced property, No 60 Choumert Road, which, together with neighbouring properties Nos 60A and 58 Choumert Road, backs onto the courtyard in the T-shaped mews. The east/west bar of the mews courtyard at the back of those properties is parallel to Choumert Road at the front of them.
4. The trial judge said that the litigation had taken "an unusual procedural course." Quite apart from the procedural complications, it is highly regrettable that the case got to court at all. The parties have spent a lot of money, time and energy quarrelling about the ownership of a thin strip of land in a corner of the courtyard. The dispute followed on the re-development of the mews. The parties' predecessor in title, Blueperch Limited, participated in the re-development in 2000/2001 and sold No 7 to the claimant in 2001 and No 60 to the defendants in 2003.
5. Suing and being sued by neighbours is a stressful and unpleasant experience. Bad feelings all round do not finish with the final judgment. The lawsuit could have unwanted long-term consequences that a sensible compromise might have avoided. One side "wins" at trial, and/or on appeal, but, in the long run, both sides lose if, for instance, litigation blight has damaged the prospects of selling up and moving elsewhere.
6. After the case is over the litigants and their professional advisers will not be at their most receptive to judicial guidance about the downside of boundary litigation. Of course, parties and their advisers know there are risks and they talk and try to settle; but, when all else fails, the court has no choice but to decide, in accordance with the evidence and the law, what the parties have been unable to sort out themselves. The court's rulings may be unwelcome to both sides. That is the case here. Both sides appeal against different parts of the judgment of the trial judge, HHJ Hazel Marshall QC.
7. The court would be failing in its duty if it did not draw on the extensive experience, which it has acquired impartially, to warn others that the only certainty in this kind of case is that the financial outlay is almost always more than the disputed property is worth. Financial factors do not seem to count for much when the parties are protecting what they believe belongs to them. The territorial imperative is the driver in boundary litigation. If the court's warnings are ignored, there will one day be a final reckoning of the total expenditure and immeasurable human misery, and the hoary maxim "he that goes to law holds a wolf by the ears" will strike a chord.

The proceedings

8. Pared to essentials the issue is simply whether the boundary between No 7 Choumert Mews and No 60 Choumert Road runs in a straight line along the flank wall at the back of No 60. The claimant says it does. The defendants say that it does not. According to them the true boundary stops 4ft short of the back wall and follows the straight line of a metalled drain or gulley with grating over the top parallel to the back wall of No 60.
9. The application of the established legal principles to the facts found at trial by the judge is not quite so simple. The case was argued elaborately at trial and in this court on two main points: (a) the construction of the title documents of No 7 and (b) rectification of them in order to reflect the relevant continuing common intention, if, owing to a common mistake, the title documents do not correctly record the boundary.
10. At trial the judge decided the construction point in the claimant's favour. It is cross-appealed by the defendants, who are respondents to the claimant's appeal on the rectification point. That became a live question below when the defendants obtained permission, after the judge had reserved judgment on the construction point and in the face of understandable opposition from the claimant, to make a late amendment to their counterclaim. The defendants sought rectification of the title documents to No 7 on the ground of common mistake. Permission to amend was granted by the judge on terms as to costs to protect the claimant. After a further hearing the judge decided the rectification point against the claimant. He appeals against an order that effectively deprived him of the fruits of his success on construction.
11. On 23 September 2010 the judge handed down a very detailed 78 page judgment carefully covering and clearly explaining all her findings and conclusions on both points. The construction hearing had lasted for 3 days in May 2009. The rectification hearing had lasted for 3 days of further evidence and argument in August 2010.

More background facts

12. The two freehold properties had been in the common ownership of Blueperch, which was the alter ego of a Mr Bruno Narcisi, before the claimant bought No 7 from Blueperch in 2001. In November 2003 the claimant was also registered as freehold owner of some land at the back of No 58 Choumert Road (Title No 95573), to which access was gained from the courtyard through a gate installed by him in September 2006. The claimant accused the defendants of trespassing on his property and of obstructing access to the gate by erecting a shed in front of it. Both of the claimant's properties were occupied and used for the purposes of a property development and management business carried on by his firm, the Cee Cee Partnership.
13. Disagreements about the boundary began a couple of years after the defendants had bought No 60 (Title No LN 11 12798) from Blueperch in 2003. Their title was registered on 21 May 2003. In about May 2005 they erected a white picket fence along the line of what they say is the boundary between the back of No 60 and the courtyard area fronting No 7. In August 2007 the defendants replaced the picket fence with a low parapet brick wall. They reduced the size of the shed. The claimant complained that there was still an obstruction. The claimant began proceedings in 2008 for a declaration, an order for removal of the wall and damages for trespass. The defendants' initial defence was confined to the construction of No 7's title documents.
14. As the soil of the disputed area between the parallel lines of the drain and the back wall of No 60 and No 60A was covered with gravel at the relevant time, and was not cobbled like the rest of the courtyard area, it was described in the proceedings and will be referred to in this judgment as "the gravel strip." Photographs in close up and in colour show the location, physical appearance and extent of the gravel strip. It was agreed that the relevant photos produced by Mr Narcisi showed the gravel strip and related features as they were when the claimant purchased No 7 in 2001.
15. The gravel strip is along the side of the wall of a single storey extension constructed over the whole width of the back of No 60. The extension was used for storage or warehouse purposes. Planning permission was granted in November 2000 for the demolition of the rear extension to No 60 and its replacement by a garden. The extension has not been demolished.
16. The title documents of No 7 comprise a contract of sale dated 24 May 2001, a Transfer of Part (TP1) Title No TGL 195907 dated 9 October 2001 and a plan (Plan A), in the form of a magnification of a former Ordnance Survey map and based on and scaled up from the Land Registry File Plan. The same Plan A was attached to the contract and to the TP1. It was prepared in the offices of the solicitors acting for Blueperch, apparently without ever having made a visit to the site.
17. According to the terms of the contract and the TP1 Transfer, the property purchased by the claimant was a unit/building at No 7 Choumert Mews coloured pink on Plan A and the adjoining courtyard area in front of it coloured blue. The coloured areas were two simple squares. The judge commented that the "colouring of the plan was not particularly good" (paragraph 54). The boundary between No 7 and the back of No 60 was shown on Plan A as a single straight line running east-west. The claimant was granted rights of way over the rest of the courtyard.
18. In the initial negotiations for the sale of No 7, which required a complete fit-out, the courtyard area in front of the building was not included and no parking rights were offered for No 7. Possible difficulties about the right to lay and connect services to No 7 were identified. The claimant made it clear that (a) No 7 was not acceptable to him without parking rights and (b) he was not prepared to share parking rights in the courtyard in common with No 60. (No 60 in fact had parking facilities on a paved area at the front between the house and the public pavement along Choumert Road.) The claimant wanted to own all of the land in front of No 7. There were negotiations, including a site meeting, which resulted in an agreement to sell an area of the courtyard in front of No 7 to the claimant with Blueperch retaining rights of way over it. There were differences of recollection about the meeting. On the question of credibility the judge found that, in general, the evidence of Mr Robertson and Mr Narcisi was more reliable than that of the claimant.
19. The defendants' case is that the gravel strip is part of No 60 together with a 5ft to 6ft high brick plinth or column built into the corner of the extension, almost to the height of the door in the back wall that gives access from the extension to the gravel strip, via a 2 feet high raised platform area and a step. The column by the back door projects from the wall towards the courtyard. The platform area and step extend into the courtyard area by about 4 feet from the back wall. The defendants say that the common boundary of No 60 and No 7 is a straight line following the side of the step and the course of the grating that covers the metalled gulley or drain (the drain) parallel to the back wall of the extension to No 60. The gravel strip thus occupies all the space between the parallel lines of the drain and the wall. There are trellis panels on the rear and west facing walls of the extension. Pots containing climbing plants have been positioned on the gravel strip.
20. The claimant's case is that the gravel strip, the brick column and the platform area and step down from the back door are all on and are part of the courtyard area acquired by him on the purchase of No 7. The courtyard land in front of No 7 thus extends, he says, right up to the rear wall of No 60's extension. The importance of the front area of the courtyard to the claimant is that it provides him with car parking space for use in connection with his business use of No 7 and of the additional land at the back of No 58.
21. Solicitors acted in Blueperch's sale of No 7 and No 60. When the claimant bought No 7 and the courtyard area in 2001, he used a solicitor, Miss Sheikh, in the firm of solicitors Ashley & Co. There has since been a Law Society intervention in that practice and the relevant conveyancing files are unavailable. Miss Skeikh did not give evidence at trial. Blueperch's solicitor was Mr Stanley Solts of Pritchard Joyce & Hinds. It does not appear that Mr Solts ever visited the site during the negotiations about the inclusion of courtyard land in the sale of No 7. Mr Solts gave evidence at the trial. When the defendants bought No 60 from Blueperch in 2003 their solicitor was a Mr Hill.

The appeals and the issues

22. Six days in court is a long time to spend on evidence and argument about who owns a gravel strip of small size and little money value. The judge appreciated, and this court appreciates, that the question of ownership matters a great deal to the parties and their successors in title, even though it may be of little concern to anyone else. As is the usual practice, the judge visited the site at the time of the hearing. In an impressive judgment she carefully examined all the documents, analysed the witness evidence and explained the law.
23. The two appeals from her order of 23 September 2010 were heard together. The attitude of each party is that, on examination, the judgment is a curate's egg: part good, part bad, depending on which side it favours. That stance on a judgment of obvious quality creates presentational problems for the advocates in this court: both sides argue that the judge, though plainly right on one issue, was obviously wrong on the other.
24. The issue on the rectification appeal (No 2402) brought by the claimant, with the permission of the judge, is whether the judge was wrong, on the defendants' amended counterclaim pleading a common mistake (not, the claimant was anxious to point out, a unilateral mistake), to order rectification of the 2001 contract, the TP 1 Transfer of No 7 and Plan A and to order him to pay £350 damages for trespass.
25. The issue on the construction cross-appeal (No 2957) brought by the defendants, with the permission of the Court of Appeal, is whether the judge's construction of the 2001 contract, the TP1 Transfer and Plan A was wrong.
26. Blueperch was not a party to the action or the appeal. Mr Narcisi gave evidence at trial, having been served with a witness summons. A lot of the argument on both issues focuses on plans created and used in connection with the contract and the transfer by Blueperch to the claimant. I have already mentioned the use of Plan A in connection with the contract and the TP1 Transfer. At the same time as Plan A was sent by Blueperch's solicitors to the claimant's solicitors, two other plans, B and C, were also produced and sent. Plan B relates to easements and is of no particular assistance. Plan C is more important. It was created to show the location of conducting media in and under neighbouring land for providing services to No 7. On Plan C, which originated in the offices of the claimant's surveyor, the property sold to the claimant was shown edged red and the boundary with No 60 was shown along the drain (described on it as "ACO Trapped Gulley"). The gravel strip between the drain and the back wall of No 60 was clearly shown as excluded from the red edged area served by the conducting media to No 7.
27. Plan C was treated by the judge as a critical document on the rectification point. However, on the construction point she held Plan A to be the defining document, being a form of plan that was attached to both the sale contract and the TP 1. In submissions on behalf of the claimant it is emphasised that Plan C was prepared for a specific purpose (to show services and conducting media to No 7) different from the specific purpose for which Plan A was prepared.
28. The judge also found that on 15 May 2001 Mr Solts had sent on to Miss Sheikh an earlier plan prepared by Mr Narcisi for the information of Mr Solts. That plan, which the claimant denied seeing at the time, clearly showed that the sale of No 7 was not intended by Mr Narcisi to include the gravel strip.
29. The judge concluded that Plan A clearly showed the true common boundary as aligned fully to the back wall of the extension to No 60 and as running in a straight line eastwards. As she held that that plan was not ambiguous, the judge ruled that extrinsic evidence was not admissible to contradict it, such as by showing that the boundary ran along the drain and that the gravel strip was not included in the sale or transfer of No 7.
30. It followed from the judge's construction that the gravel strip could not be part of No 60 when Blueperch sold and transferred it to the defendants in May 2003. Although (a) Blueperch's Sales Particulars for No 60 showed that it was intended to sell and transfer the gravel strip to the purchaser of No 60 and (b) the judge found as a fact that Mr Narcisi wanted to retain and had not intended to sell and transfer the gravel strip to the claimant in 2001, it would have been legally impossible for Blueperch to transfer to the defendants in May 2003 any part of the courtyard area that it had already transferred to the claimant in October 2001.
31. The defendants appeal against the judge's construction of the 2001 contract, the TP1 Transfer and Plan A on the ground that those documents are ambiguous. They contend that the judge should have applied the context principle to construe them in the setting of the actual circumstances surrounding their execution. On that approach it is submitted by the defendants that (a) the true common boundary is along the line of the drain about 4 ft in advance of the wall of the rear extension of No 60 and (b) the purchase of No 7 by the claimant in 2001 did not include the gravel strip, the protruding brick column, or the platform and step down from the back door to the gravel strip.
32. The defendants' case in response to the claimant's appeal against rectification of the title documents of No 7 is that the judge made the right order, excluding the gravel strip, the brick column and the platform and step from the 2001 contract, the TP1 Transfer and Plan A on the ground. The judge found that there was a continuing common intention that they should not be included in the sale and transfer to the claimant in 2001. The claimant's objection to rectification is that there never was any common intention that the gravel strip should be excluded from the sale and transfer and that there was no "outward expression of accord" of such an intention. On the claimant's case the common intention was that he should acquire the courtyard land right up to the back wall of No 60, that there was no mistake in the contract or transfer or in Plan A and that it would be inequitable on the grounds of acquiescence to order rectification. The last point did not figure very greatly in the trial and was not an issue on the appeal.
33. I should mention that the costs orders are also appealed. The judge ordered the defendants to pay the claimant's costs up to and including the first hearing on 20 May 2009 and the costs of obtaining transcripts of the evidence given at that hearing on the standard basis. As for the costs of the action after 25 June 2009, the judge ordered the claimant to pay the defendants' costs to date on the indemnity basis.
34. I turn first to the defendants' cross-appeal on construction. It is more logical and convenient to deal first with the cross-appeal on the legal effect of the 2001 title documents before deciding the claimant's appeal on whether it was right or wrong to order those documents to be rectified.

A.Construction appeal

The judgment

35. The judge held that the plans in the form of Plan A on the 2001 contract and the transfer TP1 were sufficiently clear as to the property intended to be conveyed by Blueperch to the claimant. She accepted that the plan corresponded with the claimant's case on the position of the boundary between No 7 and No 60 as being along the rear flank wall of No 60 and projecting in a straight line eastwards. The claimant's case is depicted in the coloured plan annexed to the Particulars of Claim.
36. In her reasons for finding that the boundary was in the position clearly marked by a heavy black solid straight line on Plan A and for ruling that extrinsic evidence was not admissible to construe it, the judge said:

"133. Looking at the property as shown in the photographs and on my inspection before the trial, and looking at the line marked on the plan, it seems to me that the plan is, in fact, clear as a matter of impression, and that Mr Skelly is correct. The plan boundary does represent a straight line, and it appears to do so upon the line of an apparent boundary feature marked as a heavy black line on the plan itself. There is certainly a problem in that there is no such straight line feature on the ground. Neither the rear wall of No 60 nor the rear wall of No 60A extends across the whole of the distance in question in a single straight line. They are off-set. However, given this inconsistency on the ground, but the obvious intention that the boundary is a straight line, the obvious intention then appears to be that the boundary is the line of the first significant boundary feature encountered as one moves from 7 Choumert Mews across towards Choumert Road, namely the line of the rear wall of No 60, extrapolated across behind the rear of No 60A, if only for the obvious reason that this makes reasonable sense, whereas if it is the line of the rear boundary wall of No 60A extrapolated across the rear of No 60, it takes in about 3 feet of the rear room of No 60, which would be absurd.

134. It simply cannot, sensibly (however) be the line of the drain. This is because, in that case, there is no boundary feature marked on the plan at all in respect of either of the two extant rear walls of No 60 and No 60A (off set as they may be), from which to get some indication of the intended notional picture of the boundary. Moreover, there is even an apparent feature on the map or plan between No 60 and No 60A, extending as far as the denoted boundary line, which corresponds with nothing at all if that boundary is the drain.

135. The above, of course, tends to assume that the heavy black solid lines on Plan A are intended to mark boundary features. It is of course the case that they can well be black lines which are the result of photocopying earlier plans on which lines have been heavily coloured in red to mark a previous title boundary. It would then be unclear whether any such heavy lines represented actual features or only previous notional boundaries.

136. However, if that is the case, then it seems to me that there is one further piece of evidence which it is permissible to consider, and that is that such a heavy black line is apparently shown as the boundary of a larger title out of which the pink and blue land is being conveyed as part. The intention of the parties which then seems to be abundantly clear is that of conveying the rear part of the "L" shaped title comprising No 60 Choumert Road at the front and No 7 Choumert Mews and the courtyard between at the rear, so as to convey a rectangular plot and leave a rectangular plot. That would make the relevant boundary of the land being conveyed the line where Blueperch's title widened out from the narrow width of No 60 to the full width of the land at the rear. On the evidence, that line is the line of the rear wall of No 60. It is certainly not the drain. I do not regard this evidence or inference from the nature of the apparent thick black line on the file plan to amount to extrinsic evidence.

137. I therefore do not find that there is really any ambiguity in this document and I do not think that one can be conjured up by Mr Dumbill's criticisms of the plan, whatever general merit they might have. Mr Dumbill was at pains to tell me that of course if he submitted a plan other than a plan based on the ordnance survey to the Land Registry, it would have been rejected. I accept that. However, that does not seem to me to alter the fact that this plan itself is the one that has been used, and it is sufficiently clear.

138. I do not think the general boundaries rule comes into it because it seems to me that I am operating exactly the same approach as would operate under the general boundaries rule by asking myself what, as a boundary being conveyed under the general boundaries rule, does the intended boundary appear to me to be in fact.

139. I do not think that the fact that the plan has inaccuracies with regard to features of other properties which have no bearing at all on the identification of the intended boundaries of the subject matter matters. The parties would have no reason to scrutinise or amend such features. I have dealt with the inaccuracies and the poor colouring and the absence of measurement. None of these seems to me to produce any real ambiguity.

140. With the plan sufficiently clear, I therefore reject the submission that extrinsic evidence, and certainly evidence of the subjectively held intention of either party, is admissible on this issue of construction. The only admissible evidence would, in my judgment, be of facts known to the parties in the general sense, and which might therefore be reasonably taken to have affected their intentions as meant to be expressed in the instrument. As to this, if I am wrong that the inference of the nature of the heavy black lines is not extrinsic evidence, then I would regard it as being admissible under this head, and thus providing an aid to interpretation of the line of the boundary, as I find it to be."

37. The judge added that the existence of other plans was not material to construction. Plan A was the plan adopted for the purpose of the definition and registration of the land sold and transferred to the claimant. Viewed objectively, it was sufficiently clear as to what was apparently intended to be conveyed and it corresponded with the claimant's case on where the boundary between his property and the defendants' property was.

Defendants' submissions

38. On behalf of the defendants Mr Dumbill submits that the judge was wrong about the position of the common boundary. She should have held that it was about 4 feet (125 cms) in advance of the rear wall of No 60 along the line of the drain. The gravel strip belongs, he says, to the defendants, along with the brick column by the door and the platform and step down from the back door to the gravel strip.
39. In the first place, it was apparent from an actual inspection of the topography of the site and from the photographs showing the positions of the brick column, the step from the door and the gravel strip, as they were at the relevant dates in 2001, that the boundary was more likely to be in the position claimed by the defendants than that asserted by the claimant.
40. In the second place, Plan A relied on by the claimant was inherently unclear and ambiguous. According to decisions of this court, such as Liaquat Ali v. Lane & Anor [2006] EWCA Civ 1532, where information contained in the conveyance is unclear or ambiguous, it is permissible to have regard to extrinsic evidence, including, possibly, evidence of subsequent conduct, subject always to that evidence being of probative value in determining what the parties intended. The increasing modern tendency, where the plan is imprecise in showing the boundary, is towards admitting evidence in boundary disputes, including evidence of the physical features of the land at the material time, and assessing the weight of that evidence rather than excluding it altogether: see Beale v. Harvey [2004] 2 P& CR 18. In brief, where the court looking at the plan concludes that it needs some help to determine its effect, it is entitled to get that help by admitting probative extrinsic evidence.
41. In the third place, Plan A had been produced by magnifying and scaling up from a small scale original filed plan based on the OS map that did not show the physical features on the ground, such as the drain, or purport to fix precise boundaries. The plan detail bore no relation to the layout of the area at the time of the 2001 contract and transfer to the claimant and it showed details that were not correct on the ground. The pink and blue colouring was carelessly applied to Plan A. There were no measurements or accurate scaling on it. In those circumstances extrinsic evidence was admissible to clarify and construe Plan A as attached to the contract and the TP1 Transfer.
42. Finally, the extrinsic evidence in this case included evidence of subsequent conduct, namely the Sale Particulars prepared by Blueperch for the sale of No 60 showing that it was intended that the transfer of No 60 should include the gravel strip.

Claimant's submissions

43. Mr Andrew Skelly for the claimant supports the judge's construction. He contends that the contract, the TP1 Transfer and Plan A are clear. There is therefore no need or justification for recourse to extrinsic evidence. Evidence to contradict clear terms in the documents was inadmissible. In any event, it is said that there is nothing in the extrinsic evidence to suggest that the boundary is in fact along a line not plotted on Plan A.
44. The basic legal principles of construction are well established and are relied on by Mr Skelly. Evidence of the subjective intentions of the parties to the relevant transaction (Blueperch to the claimant) is obviously irrelevant and inadmissible. The critical question on construction is an objective one: "What would a reasonable layman think he was in fact buying?" Where, as here, the property transferred was defined by reference only to what is shown coloured on a plan, there is no escaping the conclusion that that plan was the dominant description and must be given its full weight. If the transfer did not truly express the bargain between vendor and purchaser, the only remedy was by way of rectification of the transfer.
45. At the oral hearing Mr Skelly emphasised particular points.
46. First, Plan A was not stated to be "for the purposes of identification only". It was based on the filed plans and was the definitive description of the property sold by Blueperch to the claimant before the defendants ever arrived on the scene.
47. Secondly, Plan A was prepared on behalf of Blueperch for the purposes of the transfer of No 7 to the claimant. It plotted the material physical features. It showed the wall dividing No 7 from the land at the rear of No 58 Choumert Road, and the rear structural walls of Nos 64-66, as well as No 60. All the land up to the rear wall of No 60 is coloured blue on the plan as the area of the courtyard sold and to be transferred to the claimant. On the defendants' case the boundary was along the drain that was within the land coloured blue. The drain was not plotted on the plan at a distance of 4ft from the rear wall of No 60, or at all.
48. Thirdly, the reasonable layman reading the contract, the TP1 Transfer and Plan A would think that he would be acquiring all the land coloured blue on Plan A in addition to the area of the building coloured pink. The colouring on Plan A was the definitive and dominant description of the property transferred. The defendants' case involves ignoring Plan A entirely as being an ambiguous or uncertain plan.
49. Fourthly, even if the extrinsic evidence were admitted and relied on, it would not counter the fact that No 7 was defined by Plan A, which showed all the land up to the rear wall of No 60 as being part and parcel of No 7.
50. Finally, no reliance can be placed on Plan C, as it was prepared for the specific purpose of showing the location of the various conducting media, and not the extent or boundaries of the property sold. There was nothing in it to show that the boundary between the two properties was along the line of the drain.

Discussion and conclusion

51. Even after the necessary process of analysing the purpose, structure and language of a document is over, the meaning conveyed may still remain a matter of overall impression of the document in its unique setting. It is not particularly surprising to find that different readers of a document sometimes have different impressions of its meaning.
52. I begin by accepting that the contract, the TP 1 Transfer and Plan A are, taken objectively, capable of having the legal effect for which Mr Skelly contends and the judge agreed. I agree that evidence of the subjective intentions of the parties, of the pre-contract negotiations between the parties and of the existence of other plans, such as Plan B and Plan C, are not available for the construction of the title documents to No 7.
53. It would also be quite wrong to approach construction by disregarding the contents of the title documents to be construed and by relying only on the topographical features shown in the photographs and apparent on a visit to the mews. That was the error committed by the Recorder whose decision was recently overturned by this court in Dixon & Anor v. Hodgson & Ors [2011] EWCA Civ 1612. As the judgments in that case were only handed down on 20 December 2011, they were not available to counsel or to the court at the hearing of the appeal. The case was helpfully brought to the attention of the court by Mr Skelly in his letter to the court on 10 January 2012.
54. In Dixon v. Hodgson there are salutary warnings about the danger of deciding where a boundary is by simply relying on the physical appearance of the ground features to the neglect or exclusion of the title documents. There are some striking similarities between that case and this. In that case the Recorder found that the boundary ran alongside a low wall. The Court of Appeal unanimously held that, in so finding, he had wrongly discarded the transfer plan completely because of its lack of clarity and had construed

"65. …the Transfer by looking at the physical features on the ground as at the date of the Transfer without the plan in his hand. A reasonable layman without the plan no doubt would have concluded as the Recorder did that the low wall was the boundary but he would have been engaged in the exercise of construction without one of the most important pieces of evidence." [my emphasis added]

55. Black LJ, with whom Sir David Keene and Longmore LJ agreed, added:

"66. I differ from the Recorder reluctantly as he went about his task with conspicuous care and he had the great advantage of being able to visit the site itself. I have not found the issues here at all easy to determine as the sight of an obvious boundary structure, such as the low wall, in place at the time of the Transfer, naturally gives rise to the assumption that that is indeed the boundary. However, as Beale v.Harvey shows, that natural assumption is not the end of the matter and I would allow the appeal…"

56. In Beale v Harvey [2003] EWCA Civ 1883 the Court of Appeal held that the line on a plan, which defined the property rather than being a plan "for identification only", determined the boundary. The description of the property in the parcels clause in that case was confined to that which was shown edged red on the plan. The plan showed the boundary as a straight line, but the line of a retaining wall and fence on the ground did not accord with the plan. That discrepancy between the plan and appearance of the property gave rise to the problem as to what was intended by the parties: whether the boundary was intended to follow the line on the plan, or whether the retaining wall and fence had been placed by the developer with the intention of marking the boundary and the plan was inaccurate. It was argued that the line of the wall/fence would be apparent to any reasonable purchaser who came to the site and who would automatically assume that that was the boundary. The Court of Appeal concluded in that case that the line on the plan was the boundary, because the property transferred was defined by reference only to what was edged red on the plan. The colouring was the dominant description and must be given its full weight. The erection of the wall/fence was in error, being inconsistent with the straight red line on the plan.
57. On the basis of those authorities, I agree that, if the transfer and/or the transfer plan is clear and unambiguous, the approach of the judge to the construction issue in this case would undoubtedly be correct. A mismatch between a clear plan and the actual physical features on the ground is not in itself a reason that could possibly justify ditching the title documents and determining the position of the disputed boundary by reference to the topographical features alone.
58. However, it is well settled that the approach to construction and to the use of extrinsic evidence of topographical features is different when the title documents and plans are not sufficiently clear about the position of the boundary. In her lead judgment in Dixon v. Hodgson Black LJ cited from another recent decision of this court. Pennock v. Hodgson [2010] EWCA Civ 873 was decided just before the second part of the trial in this case. It was neither cited to the judge nor at the hearing of this appeal. The case contains a discussion on the construction of parcels in a conveyance based on two binding decisions of the House of Lords: Eastwood v. Ashton [1915] AC 900 at 906 and Alan Wibberley Building Limited v. Insley [1999] 1 WLR 894. Pennock was cited with approval in the recent case of Brown v. Pretot [2011] EWCA Civ 1421.
59. The main ground of appeal in Pennock was that the trial judge had construed an unambiguous conveyance by relying on inadmissible evidence of physical features of the land conveyed that were neither mentioned in it nor identified in an attached plan that was stated to be "for the purpose of identification", meaning that it did not define exact boundaries. It was also a case in which the properties were previously in common ownership. It concerned title to the bed of a narrow stream shown by a black wiggly line on a plan taken from the Ordnance Survey map, which does not fix precise boundaries, and attached to the conveyance of the part of the land sold off first.
60. The Court of Appeal upheld the decision of the trial judge on the ground that the key plan attached to the conveyance was insufficiently clear to establish the exact position of the boundary. The plan did not contain any relevant measurements that fixed the position of the boundary. A general boundary was shown by quite thick coloured lines in the vicinity of a stream that the claimants said was a boundary feature belonging to them. It was held on appeal that the judge was entitled to take the plan in his hand and look at the physical features on the ground as at the date of the relevant conveyance. That was not a breach of the exclusionary principle regarding extrinsic evidence, which would contradict the clear terms of the documents. The judge was right to conclude that the conveyance did not define the boundaries of the property conveyed and that it was necessary, in order to determine the boundary on the conveyance plan and to render it certain, to take account of topographical features. In that case they included a post and wire stock fence as part of the surrounding circumstances that would indicate to a reasonable person what were the boundaries of the property being conveyed.
61. A similar approach was taken by Lewison J in Chadwick & Ors v. Abbotswood Properties Ltd &Ors [2004] EWHC 1058 (Ch) where he said:-

"43. …Where the definition of the parcels in a conveyance or transfer is not clear, then the court must have recourse to extrinsic evidence, and in particular to the physical features on the ground…"

"44. The question is one to be answered objectively: what would the reasonable layman think he was buying? Since the question must be answered objectively, it follows that evidence of the parties' subjective intentions, beliefs and assumptions are irrelevant; as are their negotiations."

62. In that case, as here, the reference to the plan was not qualified by the expression "for identification only" suggesting that the plan was intended to control the description of the property. However, it was held that extrinsic evidence of surrounding circumstances was admissible to identify the property described in the parcels clause as "known as."
63. Where the lack of sufficient clarity is in a plan marked "for identification only" it is, in my view, easier to justify regard to the topography to assist in construing the contract/transfer plan than in a case like this where the plan was not so designated and has been prepared as a defining document. Even so, if that document is insufficiently clear to the reasonable layman with the plan in his hand to determine the position of the boundary of No 7 Choumert Mews, the court is entitled to seek assistance on the construction of the plan and title documents by taking account of the topographical features at the relevant date.
64. In this case the point at which I would, with great respect, differ from the trial judge is in her conclusion that the position of the boundary shown on Plan A is sufficiently clear and unambiguous as to make inadmissible evidence of the actual topographical features in Choumert Mews at the date of the 2001 contract and transfer.
65. I agree that Plan A was part of the transaction agreed between Blueperch and the claimant and that, as such, it cannot be altered by the court. The issue for the court on construction is to identify what was agreed by the parties about the boundaries of the transaction land. In that exercise the transaction plan must, as experts sometimes say, be contextualised. It was not entered into and is not to be construed in a vacuum. In more mundane terms this means that the reasonable layman would go to the property with the plan in his hand to see what he is buying. The reasonable layman is not a qualified surveyor or a lawyer. If the plan is not, on its own, sufficiently clear to the reasonable layman to fix the boundaries of the property in question, topographical features may be used to clarify and construe it. As the judge said at paragraph 114 about the proper approach to interpreting plans in this situation:

"…the correct approach is to take the plan to the land and see what, on the face of it, the plan appears to show is intended to be the relevant boundary feature position. Only if, when you do this, you find that you are indeed in difficulties about what the plan is intended to represent can the plan be regarded as ambiguous."

66. In this case the plan on its own is, in my view, an insufficiently clear guide to the position of such features as the boundaries. The small scale of the plan, the lack of measurements and area size on it or in the other title documents, the thickness of the black lines drawn on it, the rather poorly, even slapdash, pink and blue colouring on a plan based on an OS map that does not fix precise boundaries and its deficiencies as an accurate plan of the area at the time of the transaction make it difficult, in my view, to say that the position of the boundary on the plan is clear and unambiguous. There is no clear or reliable way by which the reasonable layman can know from the plan alone (a) whether the lines marked on it follow actual physical features, such as the back wall of No 60, or the drain, or (b) whether they are merely imaginary lines drawn on paper.
67. The recourse of the reasonable layman to the topography of Choumert Mews for enlightenment does not mean ditching the title documents of No 7. It is not a case of substituting the physical features on the ground for the boundaries shown on the plan. It is a matter of sticking with the plan in the hand and, because it is insufficiently clear on the matter of boundaries, to use the topography at the crucial date to inform and to make sense of where the boundaries of what is being transacted.
68. The judge made very clear findings about the topography of Choumert Mews as it would appear to the reasonable layman on a site visit. After noting the defendants' evidence that they had been told by Mr Narcisi that No 60 was to include the gravel land at the rear, she said:-

"64. I have to say that looking at the photographs you can see exactly why they thought that, and indeed I think anyone looking at the property, would assume this, although the sale particulars do not include the yard end area, wrapping around to No 60A. This is the reason why I think looking at the photograph is so important. When one does look at the property, as it stood at that time, it certainly appears that the gravel area has in effect been laid out as an amenity around the back of No 60 and No 60 A. It certainly does not appear to be part of any land that would be intended to go with No 7. That does not directly affect, though, the question of what land may actually have been sold."

69. As appears from the passage already cited from her judgment, the judge took the view that, looking at the photographs and her inspection before the trial and looking at the line marked on the plan, it seemed clear to her that the obvious intention was that the boundary is a straight line, as marked by a straight heavy black line on the plan, that in fact there was no such straight line feature on the ground and that it could not be the line of the drain.
70. As she recognised, however, that approach involved assuming that the heavy black solid lines on the plan were intended to mark boundary features and were not, for instance, the result of photocopying earlier plans on which lines had been coloured heavily in red to mark a previous title boundary. For the reasons given by her the judge found no ambiguity in the plan: it was sufficiently clear that the boundary went up to the back wall of No 60.
71. However, as I have explained above, I cannot agree with that conclusion about the position of the boundary looking at the plan alone. I do not have as much confidence as the judge had in the exact position on the ground of the single feature of a straight line drawn on a plan that is so deficient in detail and exactness in almost every other respect. In the circumstances of this case I feel more confident in construing Plan A by reference to the position of the clear topographical features in relation to the two properties at the relevant date in 2001.
72. I note what the judge went on to say, when discussing the rectification issue, about the topographical impact. She described how the property would appear to any prospective purchaser at the time. She said that no prospective purchaser of No 7, being told that he could also have the land "in front of" No 7, would naturally and reasonably imagine that that included the landing and the steps outside No 60. He would naturally assume that what was intended was the land up to the line of the drain. (paragraph 219) The judge added that no such purchaser intending to purchase all the land up to the physical rear of the properties opposite No 7 (ie Nos 60 and 6A) would, when seeing that land represented on a plan, accept a plan with a straight line boundary without query or demur (paragraph 220).
73. For all the above reasons I would allow the defendants' cross appeal on the construction point.

B.Rectification appeal

General

74. If the above conclusion on the construction issue is correct, it is not strictly necessary to decide the claimant's rectification appeal. However, the judge had to decide it in view of her conclusion on construction. The rectification issue was fully argued on appeal. Although usually reluctant to go further than is necessary for the purposes of disposing of an appeal, I think that a decision on the point in this case is desirable. It is the plank of the claimant's appeal. It is the reason why this appeal was brought in the first place, the construction issue being the subject of the defendants' cross-appeal. The decision on the rectification issue could affect the matter of costs, both of the hearing below on that issue and on the costs of the appeal. The particular point argued is also of some interest on the scope of the general law relating to rectification of documents.
75. A special feature of the case is that the claim for rectification is not of a contract or other document entered into between the parties. There was no contract or transfer of property between them. Their contracts were both with, and the transfers to them were both from, the common vendor, Blueperch. It is, however, common ground that the defendants would have, as against the claimant, any right to rectify the claimant's title documents to No 7 that Blueperch might have had against him. The essential point was therefore whether Blueperch would have been entitled to rectify the TP1 and the plan on the sale contract in order to amend them so as to show that the land being conveyed extended only up to the drain. The judge found this the most difficult point in the case (paragraph 148).
76. The legal principles governing rectification on the ground of common mistake are clearly laid down in the authorities. It was for the defendants to show that the claimant and Blueperch had a common intention in respect of the land to be transferred to the claimant; that there was some outward expression of accord; that the intention continued at the time of the transfer; and that by mistake the transfer did not reflect that common intention: Swainland Builders Ltd v. Freehold Properties Ltd [2002] EWCA Civ 560 at paragraph 33. The continuing common intention has to be objectively ascertained and it has to be disclosed or demonstrated in the words or conduct of the parties. Cogent evidence or convincing proof is required before the court will displace what is stated in the agreed documents.
77. The main focus in the arguments in this case is on the point that, before rectification can be granted, the court must find a sufficient "outward expression of accord" in relation to the relevant intention.
78. The claimant also resisted rectification on the ground that there was no mistake in the contract or the transfer of No 7 that required to be rectified in relation to their common intention about the boundary with No 60. The intention of the parties was that the claimant should acquire the courtyard area right up to the back wall of the rear extension of No 60.

The judgment

79. In looking for the common intention of the parties immediately before the execution of the relevant instruments the judge closely examined the sequence of correspondence and the course of events in detail and she made findings.
80. First, the judge considered the evidence of the common intention of Blueperch and the claimant immediately before the contract. She found that the intention of Blueperch was to sell to the claimant the area of courtyard up to the line of the drain. On that point she accepted the evidence of Mr Narcisi as true and honest. His evidence was that he never intended to sell the land beyond the drain to the claimant.
81. The issue was therefore whether or not that was also the intention of the claimant at that time. It really came down to what happened in relation to the particular letter of 15 May sent by Mr Solts to Miss Sheikh with Mr Narcisi's marked up plan of what was to be sold and transferred. That letter, read by reference to the plan, plainly showed that the property Mr Narcisi was selling was intended to include the forecourt area in front of No 7 up to the drain.
82. The claimant said that he never saw the letter or plan at that time. The judge heard no evidence from Miss Sheikh about what happened. The judge found that she received the letter and that, when she received it, it became apparent to her what the intention was as to the front extent of the land to be sold. The judge made the following crucial findings:-

"218. … First, I am satisfied that Miss Sheikh did receive Mr Solts's letter of 15^th May 2001. I also find that this included the 'red edged' plan prepared by Mr Narcisi (passing things on was Mr Solts's manner of working). Third, I find that the letter of 15^th May conveys quite clearly to any reasonable reader that it is the detail provided by the red-edged plan which is to be definitive of what is to be sold, in case of any apparent conflict with the previously delineated 'yellow land'. I note that the next response from Miss Sheikh is to put forward Plan A, showing land delineated in the same way as the yellow land had been, for use as a contract plan, with no further comment to Pritchard Joyce & Hind. I conclude and find, therefore, that she believed that Plan A in fact corresponded to the land shown in more detail on the red-edged plan. I further conclude and find that she did so because that had been her instructions and therefore her understanding and intention, from [the claimant], either at that particular time or from some time previously. I conclude, therefore, that Mr Dumbill is correct, and [the claimant] did indeed, at the relevant time, have the intention to purchase the land up to the drain only."

83. The judge then considered the photographs of the property as it appeared to any prospective purchaser at the time and said:-

"219. …It seems to me that, looking at it, no prospective purchaser of No 7, being told that he could also have the land 'in front of' No 7, would naturally and reasonably imagine that this included the landing and the steps outside No 60. He would naturally assume that what was intended was the land up to that feature which plainly has the air of being part of an entrance to No 60, ie the land up to the drain."

84. The judge concluded that:-

"225. I am therefore satisfied that at the time of the negotiations and up to the time of exchange of contracts, which crystallised the position, [the claimant] did indeed believe and intend to purchase the land in front of No 7 Choumert Mews up to the line of the drain only, which indeed looked like "the rear of the property" opposite.

….

230. What I find is that generally up to, and certainly immediately prior to, the exchange of the contract documents, [the claimant] intended to acquire land in front of No 7, with a straight line boundary that was "the back of" the properties opposite, and this was seen as the line of the drain. I find that subsequently, being of an inquisitive nature, he studied the actual plan more closely, and realised that on the face of it it looked as if it actually conveyed further land, up to the rear on No 60. This may have been about the time of his enquiry to his solicitor which prompted the letter of 16^th July 2001 informing him that the "recess" behind No 60A was not owned by Mr Narcisi. I think it was this later realisation, only after exchange of contracts, which now later led [the claimant] to assert that he had earlier relied on what was shown on the plan (rather than his natural observation) to assert a right to the land up to the wall of No 60."

85. The judge turned finally to the "most difficult question." That was whether there was a sufficient " outward expression of accord" in relation to the common intention. It was an aspect of the rectification point that had troubled her:-

"233. …If it is a common mistake, the authorities show that there must be not only sufficient evidence of the parties' common intentions, but that this must be not merely subjective, and thus possibly entirely separate and coincidental, but that there must be a sufficient outward accord to show objectively that this was the shared intention of the parties.

234. On the basis of the evidence that I have seen, I have come to the conclusion that the inclusion with the letter of 18^th May of Miss Sheikh's plan C, with the clearly designated relevant area and intended boundary line, is such a sufficient expression of an outward accord as to this point. It seems to me that it is plain that while that is stated to be a document that is produced for the purpose of showing where the conducting media are going, nonetheless it makes no sense except on the basis of an expression of accord as to what land those conducting media were serving.

235. That fact combined with the fact that it really can only have come, in my judgment, from receipt of the letter of 15^th May from Mr Solts which produced the plan that showed what Mr Narcisi was intending, shows an acceptance of that boundary.

236. I am therefore satisfied that there was in this context a sufficient outward expression of accord in the use of that plan to fulfil the requirement of showing this for the purpose of sustaining a claim for rectification.

237. Thus, the clear inference is that when proffering Plan A, Miss Sheikh did so on [the claimant's] behalf in the belief that it in fact represented the "detailed" land edged red on the unsuitable development plan. That was a mistake, and it was shared by Mr Solts, who was not very good at plans and allowed the paperwork to go forward on the same basis. I am aware that Mr Narcisi also, eventually signed Plan A as a true plan, for the purpose of the copy annexed to the actual TP1. However, this was again a mistake. I am satisfied that Mr Narcisi signed what came to him for that purpose from Mr Solts, believing that as he had made his intentions perfectly clear at the time of contract, the subsequent documents put back to him must implement these.

238. Provisionally, therefore, I would rectify the Plan on the contract and the TP1, apart from the question of any defence which [the claimant] could maintain as to laches or acquiescence, which is a pleading made.

239. I am not satisfied in the circumstances that there is any inequity in now allowing rectification of this contract, which is effectively what these defences amount to."

Claimant's submissions

86. The claimant's first ground of appeal is that the judge was wrong to find a continuing common intention that the area to be acquired by the claimant excluded the gravel strip. Mr Skelly contends that there was no common intention and no such continuing intention as to the extent of the land to be conveyed to the claimant.
87. Mr Skelly emphasises that, in ascertaining the common intention of the parties, the matter has to be viewed and approached objectively. What matters are the words and conduct of the parties, not their inward undisclosed thoughts and intentions. In this case the judge erred in principle in her approach by finding that, on looking at the photographs, nobody could sensibly conclude that No 7 was intended to include all the land up to the back door of No 60. That approach failed to take into account or give sufficient weight to a number of material facts. The judge had wrongly allowed the physical features to get into her mind and gain ascendancy over her judgment of the rectification point.
88. The claimant was aware of planning permission for the demolition of the rear part of No 60, which would remove the significance that would have attached to the step on the gravel strip. Further, the correspondence and plans passing between the claimant and Mr Narcisi evinced a changing position regarding the parties' intentions as to the area of land to be transferred to the claimant. In particular, the plans produced on behalf of Mr Narcisi repeatedly included the gravel strip. The area being sold to the claimant was referred to as being "coloured red" or "coloured red and yellow" and included all of the land in front of No 7 up to the rear wall of No 60. That was so at the initial stage, when the proposal was that the claimant would have parking rights in common with others over the land in front of No 7. When later plans were prepared and sent they were for different purposes. The key plan was Plan A, which was used in the contract and the TP1. It showed the land being transferred as including all the land in front of No 7 up to the rear wall of No 60.
89. On Mr Narcisi's own evidence there was no meeting between him and the claimant to discuss the extent of the area of land to be transferred. The common intention, as manifested in the words and conduct of the parties, was that the whole of the land in front of No 7 up to the rear wall of No 60 was to be included in the transfer to the claimant.
90. The second ground was that the judge was wrong to decide that Plan C was a sufficient outward expression of accord. Mr Skelly makes three points. They are all aspects of the argument that the Plan C relied on by the judge as an outward expression of accord about the extent of the land acquired by the claimant was prepared for a different specific purpose.
91. First, various plans were created and referred to in the course of the negotiations for various specific purposes. Thus the claimant's solicitor sent Plan A, Plan B and Plan C together with the TP1 to Mr Narcisi's solicitor. Each plan was expressly referred to for a specific purpose: Plan A to show what land was being acquired by the claimant; Plan B to show the easements; and Plan C sent at the same time was intended to show the location of services in and under the neighbouring land.
92. Secondly, Mr Skelly points out that neither Mr Narcisi nor his solicitors ever made any express reference to the gravel strip or to the step and none of the correspondence indicated that there was any intention that that area was to be included in the transfer to the claimant.
93. Thirdly, two authorities were cited as illustrating the sort of circumstances in which the courts have found that there was a sufficient outward expression of accord: James Hay Pension Trustees Ltd v. Cooper Estates Ltd [2005] EWHC Ch.36 and Munt v. Beasley [2006] EWCA Civ 370 were both instances of the expression of accord relied on coming some time before the subject transaction. In this case the plan prepared by the vendor's solicitor during the course of the negotiations to show the extent of the land transferred to the claimant showed the whole of the land in front of No 7 up to the rear wall of No 60. The plans were coloured in a similar way to the TP1 plan and the Land Registry filed plan, which included all that land. The vendor Blueperch could not be heard to say that the plans were intended to mean anything other than that which they convey to the objective reader.
94. Finally, Plan C relied on by the judge was not prepared by the claimant to show what land was being acquired by him. That particular purpose was served by Plan A. Plan C was used for a very different purpose. Both plans were sent under cover of the same letter specifically referring to each plan and explaining their respective purposes. The use of Plan C recording the location of services under neighbouring lands was not an expression of the claimant's accord with Mr Narcisi's intention that the gravel strip should be otherwise than as shown in Plan A.

Defendants' submissions

95. Mr Dumbill does not dispute the relevant legal principles. He makes the following points for the defendants.
96. First, the judge was clearly correct in concluding that anyone looking at the photographs of the gravel strip and the steps would reasonably assume that they formed part of No 60 and that No 7 would not include all the land up to the back door of No 60- the gravel strip, the brick column tied into the rear wall or the steps serving the rear door of No 60.
97. Secondly, the planning permission for the demolition of the rear part of No 60 and its replacement with a garden should not carry weight. There was no convincing evidence that the claimant was aware of it at the date of his purchase of No 7, or that it was discussed with Mr Narcisi or his solicitors.
98. Thirdly, the judge was correct in holding that, whatever the course of the negotiations, immediately prior to exchange of contracts the claimant intended to acquire land in front of No 7 with a straight line boundary at the back of No 60 which was seen as the line of the drain and that was in line with the intention of Mr Narcisi.
99. Fourthly, the judge correctly held that it was only after the exchange of contracts that the claimant realised that, on the face of it, the plan looked as if it conveyed more land up to the wall of No 60 and he later relied on that to assert his claim to the gravel strip.
100. Fifthly, although the draft transfer contained 3 plans and the land was defined by reference to Plan A, that plan was inherently incapable of showing the precise boundary, being scaled up from the filed plan which did not fix precise boundaries but indicated general boundaries only.
101. Sixthly, the judge correctly held that the claimant had seen the latter of 15 May and a more detailed plan showing the extent of the land which Mr Narcisi intended to sell coloured yellow and later shown edged red on Plan A.
102. Seventhly, Plan C relating to services was relevant. It emanated from the office of the claimant's solicitors, or his surveyor, and the pink coloration on it showed the dominant land being purchased in relation to the services which accommodate it. Like the other plans it was scaled up from the filed plan.
103. Eighthly, the judge was correct in finding that Plan C was a sufficient outward expression of accord for the reasons given by her.

Discussion and conclusion

104. I am not persuaded that the judge's decision on the rectification issue was wrong either on the common intention point or on the point of the requirement of an outward expression of accord.
105. The judge's finding on the common intention issue was one of primary fact that she was entitled to make on the evidence and by justified inference.
106. The judge made a clear finding that the claimant intended to buy the land up to the line of the drain and that he did not intend to buy the gravel strip and steps at all. She did not accept his assertion that, if it had been made clear to him that he could not acquire the gravel strip, he would not have bought No 7 at all, or at any rate not at that price.
107. The judge did not regard the claimant as a reliable witness. She disbelieved his oral evidence on a number of points, including his evidence about his intentions regarding the boundaries of the land purchased and transferred. His was the only evidence on his side. I have already noted that Miss Sheikh did not give evidence. The judge did not find the claimant to be "a reliable or satisfactory witness at all (paragraph 96), his evidence being "riddled with inconsistencies and highly implausible statements, and it changed over time, sometimes improving with pressure, and sometimes being retracted and revised"(paragraph 99). The judge criticised, in particular, the manner of his rigid reliance on Plan A, when he was questioned about whether it was intended to include the raised 2 feet high platform, the step and the brick column tied into the back wall of No 60. The judge did not accept his professed actual reliance on the contract plan at the time, or his account of how his tampering with the land registry plan came about when he attempted to deceive Mr Robertson. By use of a false plan, the claimant tried to get Mr Robertson to retreat about the position of the boundary along the back wall of No 60, and even right back to No 60A, when it was clear that the claimant knew he did not own that land. The judge did not believe his evidence of his positive intention or understanding that he was buying land to the back wall of No 60 and that he was even acquiring the pots and the trellises (paragraph 106).
108. In my judgment, the judge's acceptance of Plan C as a sufficient "outward expression of accord" was not wrong in law and it was justified by the evidence.
109. Plan C was an expression of intention by the claimant, through his surveyor and his solicitor, relating to No 7. The plan clearly showed the extent of No 7 that would be served by the conducting media. The gravel strip was not shown as part of No 7. The plan was prepared in connection with his re-fit of No 7. It was sent to and accepted by Blueperch's solicitors and was used as a transaction plan.
110. The fact that Plan C was prepared for the specific purpose of showing the conducting media, rather than to be the defining plan of the extent of property a transferred, is not incompatible with that document being an outward expression of accord. I agree that it is not the defining plan. That was Plan A. However, the evidential aspects of the requirements for rectification do not limit the outward expression of accord to a particular type of document, such as a defining plan. Plan C is sufficient outward objective evidence of the accord between the parties about their common intentions regarding the extent of the property to be sold and transferred to the claimant.

Result

111. For the above reasons I would (a) allow the defendants' cross appeal on the construction issue and (b) dismiss the claimant's appeal on the rectification issue.

Lord Justice Rimer:

112. Her Honour Judge Marshall QC delivered a careful and comprehensive judgment in this difficult case. Her conclusion was that Plan A attached to the 2001 transfer of No 7 showed conclusively that the northern boundary of the courtyard area transferred to the claimant by the transfer of 9 October 2001 is on a line flush with the southern flank wall of No 60. She gave full reasons for arriving at that conclusion and Mummery LJ, whose judgment I have read in draft, has set them out. If the plan is so interpreted, it does, however, produce the apparently remarkable consequence that part of a brick column in that wall is comprised in No 7's title. This does not, by itself, prove that the northern boundary is not on the aforesaid line. It is, however, sufficiently odd to require a court of construction to consider with care whether that was its effect – that is, whether that really was the parties' intention.
113. The transfer transferred the land 'on the attached plan … coloured pink and blue'. It did not say that the plan was 'for the purposes of identification only', a formula that, for the purpose of identifying on the ground the limits of the land transferred, ordinarily gives predominance to the verbal description of the land. It instead identified the land only by reference to the colouring on Plan A and so gave the plan predominance for the purpose of identifying on the ground the limits of what was being transferred. As a conveyancing technique, that is fine if the plan is a carefully drawn one that readily enables the relevant boundaries to be identified. If Plan A were such a plan and showed beyond reasonable question that the line of the northern boundary was along the line of the southern flank wall of No 60, that would probably be the end of the construction inquiry. Even if the practical results of such an interpretation might appear odd, that would not justify a judicial re-drawing of the plan so as to identify a boundary line that the court might regard as a more sensible one for the parties to have agreed. Whether there might in such event be a case for a rectification of the plan would raise other considerations.
114. Plan A was not, however, a carefully drawn one. Mummery LJ has, in [66], summarised its manifest deficiencies. Given such deficiencies and the apparent absurdity of a construction that attributes to the parties an intention to mark the relevant boundary as on a line with No 60's southern flank wall, the court can, and in my view must, have regard to all admissible evidence with a view to elucidating the true sense of the transfer. Such evidence will not of course include the parties' prior negotiations or their expressed subjective intentions as to the land to be transferred. It will, however, include a consideration of the topography of the relevant land at the time of the transfer. Recourse can be had to such evidence not for the purpose of contradicting Plan A but for the purpose of elucidating the true sense of its uncertain elements, in particular the line of the northern boundary. The court's interpretation is ultimately guided by the answer that the reasonable man, armed with the relevant material, would give to the relevant question.
115. The reasonable man visiting the site in October 2001 for the purpose of identifying the relevant boundary by reference to the transfer and Plan A would in my view have real doubts as to whether the plan could fairly be interpreted as showing that the line of No 60's southern flank wall marked the relevant boundary. He might regard that as a possible interpretation. Given, however, the apparent absurdity of such a conclusion and the uncertainties inherent in the precise identification of the relevant line from a plan so unsatisfactory as Plan A, he would ask himself whether that really was the most likely interpretation of the plan and, therefore, of the intentions of the parties to the transfer. I consider that he would have no hesitation in rejecting such a possibility. Having done so, it is my view that he would, having considered the topography of the immediate area (explained by Mummery LJ in [68] by reference to the judge's findings), also have no hesitation in concluding that the boundary intended to be identified by the plan must be along a line lying to the south of No 60's flank wall; and the obvious such line is that of the drain. The consequence of that conclusion would be that the transfer did not include the gravel strip. That is the sensible interpretation to attach to the transfer; and it is the one most likely to reflect the true intentions of the parties to it.
116. I would therefore, in agreement with Mummery LJ, also allow the defendants' cross appeal on the construction issue. It follows that it is strictly unnecessary to consider the claimant's appeal against the judge's decision on the rectification issue, which only arises if the judge's decision on the construction issue is to be maintained. Mummery LJ has, however, dealt fully with it. I wish to say no more than that I agree with him, for the reasons he has given, that the judge's decision on that issue should be upheld.

Lord Justice McFarlane:

117. I agree.