England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
CARDIFF DISTRICT REGISTRY

		Royal Courts of Justice Strand, London, WC2A 2LL
		1 December 2008

Mr Justice Lewison:

1. On 17 October 2008 I gave judgment in the dispute between the Vale of Glamorgan Council ("the Council") and Mr Roberts. I invited the parties to make written submissions on the question of costs, because Mr Roberts, who appeared in person, wished to consult his legal advisers. Both parties have now made written submissions. This is my ruling.
2. The Council was the successful party in that, with the exception of a section of the eastern boundary, the Council succeeded in establishing that the boundaries of Friar Point House were where they had said they were. Thus the starting point is that Mr Roberts should pay the Council's costs, unless there is good reason for making some different order. Mr Roberts submits that a different order is warranted because, he says:

i) The Council were only partially successful and exaggerated their claim;

ii) The Council unreasonably raised or pursued certain allegations and issues; and

iii) The Council failed or refused to accept "without prejudice save as to costs" offers made by Mr Roberts and failed or refused to engage in serious settlement negotiations or to participate in a mediation.

3. Partial success and exaggeration. Mr Roberts' point under this head is twofold. First, he points to the fact that he succeeded as regards part of the eastern boundary. Second, he says that some of the allegations of trespass (as opposed to assertion of title) were not proven. The determination of the boundaries of the land was primarily a question of construction of the conveyance. The construction of the conveyance was a holistic exercise and I do not consider that it should be dissected into the individual boundaries or parts of boundaries in the way that Mr Roberts suggests. Even if it could, no significant additional time or cost was incurred in dealing with the eastern boundary. Any reduction in costs on this account can be no more than nominal. It is true that Mr Roberts had not physically trespassed on parts of the land identified in the Particulars of Claim; but there is no doubt that he claimed title to those parts. The question of title to those parts of the land had, therefore, to be investigated and decided.
4. Unreasonably pursuing issues. Mr Roberts says that the Council was unreasonable in pursuing its contention about the position of the eastern boundary. Again, I do not consider that the exercise of interpretation should be dissected in the way that Mr Roberts suggests. In addition, I consider that the Council's interpretation of the plan as regards the eastern boundary was not unreasonable, even though I disagreed with it. Next Mr Roberts says that the Council adduced irrelevant evidence in the shape of evidence from officers of the Council about their subjective beliefs. It is true that such evidence was adduced, and I commented on it critically in my judgment. But the irrelevant parts of the evidence took very little trial time. I am however, persuaded by Mr Roberts that I should disallow some part of the cost of this evidence. Nevertheless Ms Cross gave relevant evidence about what happened at the auction; and Mr Beaman gave relevant evidence about how the boundaries were determined in order to rebut Mr Roberts' contention that there was some mistake in drawing up the plan. Any reduction in costs should therefore be no more than nominal.
5. Proportionality. Mr Roberts suggests that the costs are likely to be disproportionate to the matters in issue. This, unfortunately, is all too common in boundary disputes. But as Mr Keyser QC points out, there is no claim for costs to be awarded on the indemnity basis; and in a case in which costs are awarded on the standard basis, the question of proportionality will be determined at the stage of assessment.
6. Settlement. In Bradford v James [2008] EWCA Civ 837 Mummery LJ gave the following salutary warning:

"There are too many calamitous neighbour disputes in the courts. Greater use should be made of the services of local mediators, who have specialist legal and surveying skills and are experienced in alternative dispute resolution. An attempt at mediation should be made right at the beginning of the dispute and certainly well before things turn nasty and become expensive. By the time neighbours get to court it is often too late for court-based ADR and mediation schemes to have much impact. Litigation hardens attitudes. Costs become an additional aggravating issue. Almost by its own momentum the case that cried out for compromise moves onwards and upwards to a conclusion that is disastrous for one of the parties, possibly for both."

7. Unfortunately no mediation took place in the present case. Mr Roberts says first that the "entire dispute was caused" by the Council's failure to peg out the boundaries. This seems to me to be an exaggeration. On my findings, it was plain from the plans that the cromlech area, the south-western protrusion of vegetation and the herb garden were excluded from the sale. Mr Roberts contested these boundary features, which at least as regards the cromlech area and the herb garden was itself unreasonable, as well as smaller portions of land where, I agree, clarity could have been obtained by pegging out boundaries. But I do not consider that any adjustment of the costs order is warranted on this ground.
8. I have been shown a number of offers that Mr Roberts made to the Council with a view to ending the dispute. Mr Roberts' offers are, in essence, either assertions of the merits of his own case or offers to buy the land in dispute. The Council had no obligation to sell land that they legally owned, and at least in relation to the cromlech area they had good reason not to. So far as the merits of the case are concerned, on my findings, the Council were justified in their stance. Significantly, however, none of the offers made by Mr Roberts positively suggest a mediation. So there was no refusal by the Council to mediate. In those circumstances, I do not consider that the guidelines laid down by the Court of Appeal in Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002 apply. It would, I think, be going too far to disallow costs incurred by a local or public authority because that authority did not initiate suggestions for a mediation.
9. For the above reasons I have come to the conclusion that Mr Roberts should pay 95 per cent of the Council's costs, to be assessed on the standard basis if not agreed.
10. Permission to appeal. Mr Roberts asks for permission to appeal on three questions. Two are specific to the construction of these particular conveyancing documents, and raise no point of principle. I do not consider that there is a real prospect of success on these issues, and I refuse permission to appeal. The third raises the question whether section 62 of the Law of Property Act 1925 can have the effect of enlarging the conveyance so as to carry with it parcels of land that are outside the area comprised in the conveyance. This is a more general question of law. However, Mr Keyser has drawn my attention to the decision of the Court of Appeal in Hanina v Morland (2000, 22 November) in which May LJ (with whom I think that Wilson J agreed) held that section 62 did not have this effect. In those circumstances, it must be for the Court of Appeal to decide whether this is a suitable point to be considered by that court. I therefore refuse permission to appeal on that ground too.