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Davis & Anor v Winner: Should Boundary Disputes Be Allocated to the Small Claims Track?
Introduction
Boundary disputes, whether concerning large or small amounts of land, are evidentially and legally complex. As a result, they often involve significant costs. In Davis & Anor v Winner,[1] His Honour Judge Mithani KC, in somewhat of a surprising judgment, stated, obiter dictum, that to prevent disproportionate costs in boundary disputes involving a small amount of land they should be allocated to the Small Claims Track (“SCT”). Davis has been subsequently relied upon by District Judges to allocate analogous cases to the SCT. However, given the complex characteristics of boundary disputes, it is necessary to undertake a detailed assessment of their suitability for the SCT.
Davis v Winner
Davis involved an allegation of 17 inches of encroachment by the Defendant following the installation of two boundary fences and two subsidiary claims for harassment and nuisance. The claim was originally allocated to the Fast Track but later re-allocated to the Multi-Track. However, cost budgets were dispensed with and the parties incurred circa £200,000 of costs.[2] The Judge asserted that these costs were wholly disproportionate since the disputed land could not “conceivably exceed the small claims monetary limit”, even with the subsidiary claims.[3] Accordingly, since the relief sought could have been obtained on the SCT pursuant to CPR 27.3, the Judge stated that “[I]f the parties had thought about…furthering the overriding objective, as they should have done, they would have sought to have the Claim initially allocated, or subsequently re-allocated, to the small claim tracks.”
Analysis
The critical question is which track de minimis boundary disputes are most suited to. When considering allocation, the Court must consider the CPR 26.8(1) non-exhaustive factors.[4]
(a) the financial value, if any, of the claim
In boundary disputes such as Davis, the land being fought over is minimal. In Davis, the Judge was likely correct that the value of the disputed land did not exceed £10,000. However, this cannot be applied as a general rule since land value substantially varies all around England and Wales. In any event, the financial value of the claim, while of course an important factor, is not determinative.
(b) the nature of the remedy sought
As stated in Davis, pursuant to CPR 27.3, a boundary declaration can be obtained on the SCT. However, this factor is not, in itself, enough to allocate boundary disputes to the SCT.
(c) the likely complexity of the facts, law or evidence
Boundary disputes of all natures involve complex law and evidence. In determining these cases, the Court must apply the principles summarised in Acco Properties Ltd v Severn.[5] However, Acco is of general application and does not make any specific provisions for disputes over small areas of land. Thus, with the lack of case law regarding minimal areas of land, these cases often involve very nuanced law. Furthermore, additional complexity is often caused by the application of The Party Wall etc Act 1996. The SCT is intended to be a litigant in person friendly procedure for “straightforward claims”.[6] However, the legal complexities in boundary disputes, especially those concerning minimal land, can perplex even the most experienced counsel. This author’s view is that these cases are too legally complex for litigants in person, and thus, the SCT.
In respect of evidence, CPR 27.2 disapplies “some of the more elaborate features of the adversarial system” including Part 18 Further Information, Part 31 Disclosure, Part 32 Evidence and the majority of Part 35 Expert Evidence.[7] However, these “elaborate” Parts are often essential for the just resolution of boundary disputes. Particularly, they almost always require expert evidence – ordinarily, at least one RICS surveyor and potentially more nuanced experts such as arboriculturists. However, on the SCT expert evidence is only allowed with the permission of the Court and the recoverable costs are limited to £750. The just resolution of boundary disputes usually requires detailed expert reports. It does not seem just that parties should be forced to pay for these detailed reports out of their own pocket instead of getting “informal” and “unpolished” reports on SCT costs.[8] Furthermore, following Mahmood v Shaw,[9] parties should not be prohibited from adducing necessary formal expert evidence simply because of the value of the claim. Simply put, in this author’s opinion, the CPR 27 procedure is not flexible enough to accommodate the evidential requirements of boundary disputes.
As a result of these evidential and legal complexities, boundary dispute trials are likely to last at least two days. While there is no SCT time limit, SCT trials are ordinarily listed for between 1.5 and 3 hours and, even where a case exceeds £10,000.00, the Court will not normally allow more than one day for the trial.[10] Boundary dispute trials often cannot be completed within the very short time frames provided for by the SCT. In conclusion, this important factor demonstrates that boundary disputes cannot be justly disposed of on the SCT in line with the CPR 1.1 Overriding Objective.
(f) the amount of oral evidence which may be required
In boundary disputes, there are often many witnesses who are required to give oral evidence including the parties, previous occupiers, landscapers and, if necessary, experts. Furthermore, it is very often necessary that there be a judicial site visit so that the Judge may appreciate the physical extrinsic evidence. It is impossible for all of these witnesses to give their evidence and for the judicial site visit to take place within the aforementioned SCT time frame. Therefore, this author’s view is that factor (f) demonstrates that boundary disputes are not practically suitable for the SCT.
(h) the views expressed by the parties
All parties seek the just and expeditious disposal of their cases. Those advising them will likely advise that only the Fast Track or Multi-Track can provide a just disposal. This is because of the flexibility of greater case management provided by these tracks and the minimal costs recovery on the SCT. It is hard to envisage any party expressing a view in favour of allocation to the SCT since any represented party will incur costs far exceeding the SCT recoverable costs. A potential consequence of allocation to the SCT is that parties will be forced to litigate without legal representation. It is strongly doubted that the courts wish to encourage this. In such circumstances allocation to the SCT will not reduce the costs incurred by the parties and will prejudice the fair administration of justice.
Conclusion
HHJ Mithani KC’s dictum that de minimis boundary disputes should be allocated to the SCT is somewhat surprising and respectfully is likely to be unhelpful in the large majority of cases. This is because, taking all of the CPR 26.8(1) allocations factors into account, boundary disputes are more often than not best suited to the Mult-Track, not the SCT. While the Learned Judge’s dictum may be appliable in some very specific and abnormally straightforward cases, every case must be considered on its own particular facts and applying a general rule would, in this author’s opinion, unnecessarily restrict the just disposal of boundary disputes. It is going to be interesting to see how HHJ Mithani KC’s dictum is interpreted by the courts going forward.
Pupil Barrister
Pallant Chambers
9 December 2022
* I would like to express my thanks to Ms Felicity Thomas and Mr Callum McClean. both of whom are barristers practising from Pallant Chambers, who have aided me in the preparation of this article.
[1] [2021] EW Misc 25 (CC).
[2] Davis (n 1), [6].
[3] Davis (n 1), [5-6].
[4] Civil Procedure Rule 26.7(1).
[5] [2011] EWHC 1362 (Ch), [11].
[6] Practice Direction 26 – Case Management – Preliminary Stage: Allocation and Re-Allocation, paragraph 8.1(1)(a)-(b).
[7] Civil Procedure Rule 27.2; Coulson LJ & Ors, The White Book 2022 (1st Supplement, Sweet & Maxwell 2022) Vol. 1, Section A, 27.2.1.
[8] The White Book 2022 (n 7), Vol. 1, Section A, 27.4.5.
[9] [2008] 2 WLUK 757.
[10] The White Book 2022 (n 7), Vol. 1, Section A, 27.4.5; Practice Direction 26 (n 6), paragraph 8.1(2).
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Commercial, Employment, Family, General Civil, Insolvency, Property and Planning, Town and Village Greens, Will Disputes