Carter Jonas
Carter Jonas

Victory – but at what cost?

Boundary disputes can be expensive but a study from the Ministry of Justice (MoJ) suggests there are better ways to achieve a good, if not necessarily fair, result.

The sad fact is that going to court can be expensive, as the case Gilks v Hodgson [2015] EWCA Civ 5 ably demonstrates.

The dispute was over a lane – the Gilks wanted to use it but the Hodgsons said doing so upset the alpacas on their farm. The County Court agreed with the Gilks, the Hodgsons appealed. The Court of Appeal allowed the appeal in part. It determined that the boundary was in the middle of the ditch, not the middle of the lane as the County Court had ruled, but did not overturn the finding of an easement by prescription (though the evidence of 20 years use was "light"). The Court's decision meant neither party “won”.

Mr Justice Clarke lamented the absurd waste of both parties’ effort, time and cost. The area of land was small and not essential to either. The Gilks won damages of £3,500, yet the case cost approximately £500,000.

The MoJ study considers whether more should be done to encourage, or require, out of court settlement. Ultimately its decision was to do nothing.

Many people believe litigation brings a certain outcome, others rely on mediation as the better approach. But as Gilks v Hogdson shows, the outcome at one court can be changed at another, higher, court hearing.

Mediation relies on a degree of cooperation between the parties. They must be persuaded to be realistic about their cases. This is often hard but usually perfectly possible. It is not the same as being reasonable or cooperative but involves an accurate assessment of the risks and costs of going forward and a clear understanding of what the Court can really do. The background in boundary disputes is that the fight can stretch back over many years and the lack of cooperation often stems from issues that have little to do with the boundary issue. What’s needed is to separate the boundary dispute from other issues and resolve them separately.

A respondent to the scoping study consultation by the MoJ suggested that mediation was successful in possibly 95% of cases in which it was used and that the involvement of a RICS member enabled resolution without court proceedings in a large percentage of cases.

The MoJ reasons that the figure is more likely to be 75 per cent as the same respondent observed that 25 per cent of cases involving RICS members proceed to court. Even at the lower figure, mediation would appear to be well worth trying. The MoJ quotes figures of perhaps £1,000 to £1,500 per party for mediation against typical court costs of £10,000 to £50,000. As Gilks v Hodgson shows, the MoJ figure may be slightly conservative!

steven carter jonas

Steven McLaughlinFRICS FAAV

Partner

Steven is a Partner based in our Rural Team in Oxford and is head of Rural Valuation for the firm. He advises private and institutional clients on a diverse range of rural asset valuations for all pur...

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