Boundary disputes, as Lord Hoffmann said, “are a particularly painful form of litigation.”
He went on: “Feelings run high and disproportionate amounts of money are spent. Claims to small and valueless pieces of land are pressed with the zeal of Fortinbras’ army.”
The recent case of Bethell v St John Baptist College in the University of Oxford and Peter Hiorns is arguably a perfect example of such litigation - involving what the judge described as what had become the “most expensive hedge in Warwickshire.”
Tony Bethell (the claimant) wanted to maintain the ancient hedge running between his property and the college’s field (tenanted by Mr Hiorns). The defendants argued that the hedge was a party feature – jointly owned by both parties – so that the boundary runs down its centre line. They would not allow him to touch their side.
Ultimately, Mr Bethell resorted to litigation; in November 2013 he issued a claim seeking, among other things, a declaration that the hedge belongs to him and an order under the Access to Neighbouring Land Act 1992, requiring the defendants to allow him on to their land for maintenance of the hedge.
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During the course of the litigation, Mr Bethell made two open offers, offering to agree that the boundary was the centre of the hedge, and also proposing to compensate Mr Hiorns for any subsidy he might have lost as a result.
He offered to “drop hands” on costs but these offers were rejected. Moreover, the college bursar made it clear they would not meet or discuss the matter with Mr Bethell under any circumstances.
At the pre-trial review in March this year, the judge echoed the sentiments of Lord Hoffmann, commenting that the parties might as well “pile up £30,000 each in a field and light a huge bonfire” for all the good continuing the litigation would do them.
He observed that the parties could be satisfied that they were arguing over what must now be “the most expensive hedge in Warwickshire”.
Mr Bethell ultimately succeeded on the material issues at trial in April: the whole hedge belongs to him, and he was granted the access order sought. The recorder found it “perplexing and bizarre” that Mr Bethell’s offers had not been accepted by the defendants. As a result the defendants were ordered to pay Mr Bethell’s costs, on the indemnity basis.
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Parties considering embarking on litigation over a boundary are plainly well advised to bear in mind Lord Hoffmann’s words at every turn.
They should stand back and review their position, and consider how it will appear to the court. Judges almost invariably take the view that boundary disputes should be capable of settlement through alternative dispute resolution, and will expect the parties to have made real efforts to find a middle ground (no pun intended).
Andrew Skelly is a barrister at Hardwicke and represented Mr Bethell