Scammell & Ors v Dicker

This is an appeal about a boundary dispute between neighbours, but perhaps unusually for such a dispute it is one where the parties have been let down by the legal process as much as by their own irreconcilable differences.

The essential issue on this appeal is whether a consent order made in February 1994, compromising original proceedings between the parties which were commenced in 1989, was void for uncertainty, thereby throwing the parties back into unfinished litigation. A second set of proceedings was commenced in August 1995, challenging the consent order. Following a three day trial in 2002, HHJ Rudd gave judgment in August 2002 declaring the consent order to be void for uncertainty, and in July 2003 Mr Justice McCombe dismissed an appeal.

Thus the litigation from which this second appeal arises has been going on since 1989. Mr and Mrs Scammell and Mr Donald Green (“the Scammells”) and Mrs Dicker occupy adjoining properties near Wimborne in Dorset. The property owned by the Scammells is called Glenwood Farm and that owned by Mrs Dicker is known as Hillside. Glenwood Farm (the Scammells) is to the west of Hillside (Mrs Dicker). The properties are contiguous over a distance of about 200 metres. In the area of the boundary between the two properties is a track running roughly north/south. A hedgerow runs for most of that distance on a bank to the immediate west of the track, but the hedgerow does not continue to the northern or southern ends of the properties.

When in 1989 Mrs Dicker commenced the original set of proceedings against the Scammells in order to determine the precise line of the boundary the difference between the parties was measured in feet rather than inches. Mrs Dicker said that the boundary was some four feet to the west of the hedge. The Scammells said that it lay along the western edge of the track. The Scammells were concerned about maintaining access off the track to their farm. Mrs Dicker was concerned about the encroachment of farm buildings on what she said was her property at its northern end.

The original proceedings dragged on in a desultory way until 1994. The Scammells’ solicitor in those proceedings was a Mr Bourke. He admits to being so negligent in his preparations for trial that he came to advise the Scammells that they had little option but to find a compromise, which they no sooner made than they appear to have regretted. The compromise had been discussed in correspondence but ultimately was drawn up in the form of a consent order lodged on 10 February 1994, signed by solicitors on behalf of the respective parties. The consent order referred to and annexed a coloured plan (the “consent order plan”) the original of which has been lost, but an uncoloured copy of which has been established: it has been referred to as “plan D4”. This plan, which was signed by the parties’ solicitors, shows the agreed boundary line drawn on it between point A in the north, via points C, D and F, to point B in the south. Just to the north of point C a telegraph pole is marked on the plan a little to the west of the boundary line. This plan in its original form was dated 25 June 1992 and is on a scale of 1:500.

The consent order required the Scammells inter alia to remove a barn and green box container from Mrs Dicker’s land, to pay her mesne profits and damages in the sum of £2,000, and to pay her costs. For present purposes, however, its critical wording is as follows:

“BY CONSENT IT IS HEREBY DECLARED that the boundary between [Mrs Dicker’s] land and [the Scammells’] land is the line coloured red between the points “A” and “B” on the plan annexed to this Order and signed by the respective parties Solicitors

AND BY CONSENT IT IS ORDERED that:-

1.

[The Scammells] do, on or before 22^nd March 1994:

b)

take down the lines of fencing along the hedgerow and re-erect along the western bank of the hedgerow (being the declared boundary between the respective parties lands) between the points marked “C” and “D” on the plan annexed hereto fencing posts and railings suitable for restraining cattle and other animals from trespassing on [Mrs Dicker’s] land, the said fencing posts and railings thereafter belonging to [Mrs Dicker];

c)

take down the fencing between the points marked “D” and “B” on the plan annexed hereto and re-erect between the points marked “D”, “F” and “B” on the plan annexed hereto fencing posts and railings suitable for restraining cattle and other animals from trespassing upon [Mrs Dicker’s] land, the said fencing posts and railings thereafter belonging to [Mrs Dicker.”

Thus the hedgerow went between points C in the north and D in the south. North of C and south of D there was no hedgerow. The order said that “the western bank of the hedgerow” was “the declared boundary” (para 1(a) of the order). North and south of the hedgerow the plan showed the agreed boundary line extending in both directions in a straight line. At the northern end of this straight line the boundary line turned to the east for a short distance at an angle of about 60% until it reached point A at a kink in the parish boundary as marked on an Ordnance Survey extract. At the southern end of this straight line the boundary turned (at point F) for an even shorter distance almost due east until it reached point B.

The boundary line drawn on the consent order plan if measured to the scale of the plan is some three feet thick. The parties contemplated that where this line was to go on the land itself would be measured, agreed and pegged out by surveyors acting for the parties. Mr West (for Mrs Dicker) and Mr Pollard (for the Scammells) attended on site. They encountered a number of difficulties, which they attempted to work around in the spirit of compromise. HHJ Rudd described a difficulty they encountered to the south in the following passage:

“At the southern end of the boundary they had nothing to go on at all from the order plan to locate the various points at that end of the boundary. They looked at what has been described as a soil line to show where a fence had been, but neither of them were certain it was the line of the old fence. It could have been a cow track; it could have been anything or nothing.”

On this appeal, however, Mr George Laurence QC, on behalf of the Scammells, has not concentrated on the southern end as much as on the northern end, where the difficulties, such as they were, were more complex, in part because there had not in the past been any physical division between the properties. Thus, as I have mentioned above, the consent order plan, plan D4, shows the boundary line extending in a straight line to the north, passing immediately to the east of a telegraph pole. The effect of this was to place the telegraph pole on what was agreed to be the Scammells’ land. The surveyors discovered, however, that on the ground such a line, if extended northwards beyond the northern end of the “western bank of the hedgerow”, would in fact pass to the west of the telegraph pole, thus placing it on Mrs Dicker’s land. However, they agreed to accommodate that displacement in order to produce a boundary line on the ground which otherwise fitted the requirements of plan D4. They pegged out their agreed line on the ground, and they annotated a copy of plan D4 with their findings and comments and signed it, adding the date 18 February 1994. This annotated version of plan D4 has become known as plan D5.

Plan D5 says, of the area towards the northern end of the hedgerow:

“This area was the subject of discussion and is subject to solicitors’ formal approval. Pegs have been positioned at the bottom of the western edge of the existing bank. Please note the existing timber shed encroaches over Mrs Dicker’s boundary into the bank. Verbal agreement has been reached on site with both parties that the building shall remain for its natural life. All other buildings within the hatched area are on the [Scammells’] land.”

As for the telegraph pole, the surveyors endorsed plan D5 as follows:

“The telegraph pole is on [Mrs Dicker’s] land but it is agreed that it shall remain in its existing position unhindered and that the services fixed to it shall remain.”

The surveyors also wrote on the plan –

“All notes and dimensions have been agreed on site between Mr Pollard and Mr West”

and they signed and dated it.

Unfortunately, as HHJ Rudd found, the surveyors’ agreements were subject to further instructions and it was Mr Bourke, as that judge also found, who was the source of disagreement. The fence, having been put up once, was taken down and moved. At any rate a fence was put up, and remains there to this day. The effect of the fence was to block the Scammells’ existing access points from the track into their farm: but contemporary correspondence shows that this was known by them at the time of the consent order. Although it is not formally in evidence before us, the court was told that the Scammells had “limped on” in their farming over the following decade by using an alternative route.

One difficulty about the reading of both plan D4 and plan D5 is that the thick line drawn on them to represent the agreed boundary line makes other aspects of them difficult to read. For instance, the precise location of the telegraph pole is, at any rate on the copies available in court, very hard to pinpoint. However, these plans had developed out of an earlier plan, known as D3, which is based on the same drawing dated 25 June 1992 as the other plans, but does not have the thick agreed boundary line drawn on it. It does however have other details on it which have either not survived onto plans D4 and D5 or have been obscured by the thick boundary line drawn on them. Thus the telegraph pole can be clearly seen on plan D3 closely sandwiched between two separate lines. It is immediately to the west of a broken line of dashes which appears to be a northern extension of an unbroken line which plan D3 notes is “centre line of hedge”; and also lies immediately to the east of a broken line of dashes and dots which, although running essentially parallel to the “centre line of hedge”, manages (as one proceeds from south to north) to begin contiguously with the centre line of hedge, then to move slightly to the east of it, then to move back towards it and finally to cross it and move slightly to the west of it. In other words the two lines, or one at least of them, are not entirely straight.

On D4 and D5, however, these two lines cannot be seen and have been replaced or covered by the thick agreed boundary line. Moreover, the legend “centre line of hedge”, which in any event would not make sense in the absence of the line to which it refers, has been removed.

It was not long before the Scammells dispensed with Mr Bourke’s services and new solicitors were on the scene by April 1994. Some sixteen months later, on 21 August 1995, the second and still current set of proceedings were commenced, this time by the Scammells as plaintiffs, to set aside the consent order as being void either for uncertainty or mistake. By then, the Scammells’ litigation was being funded by the Solicitors Indemnity Fund. As HHJ Rudd was to find, Mr Bourke “was one of the most dilatory and incompetent solicitors I have had the misfortune to see and indeed hear in evidence for a long time”. The Scammells’ original particulars of claim were signed by Mr Laurence QC. To begin with Mrs Dicker supported the renewed litigation privately, but by April 1998 she was having to rely on legal aid. HHJ Rudd said that she had been “reduced to poverty by a decade of litigation”.

The Scammells’ action came to trial in March 2002. The matter had become complicated. The surveyors gave evidence about what their understanding of things had been back in 1994. Mrs Dicker relied not only on the consent order, but also on correspondence leading up to it in which additional details had been discussed, such as the following of a soil line in the southern area, and the pegging out of the boundary by the parties’ surveyors. Such matters were addressed in detail in a lengthy letter from Mrs Dicker’s solicitors dated 3 February 1994, to which Mr Bourke had replied on the same day to say that “It would appear that agreement has now been reached and I will instruct Mr Pollard to liaise with Mr West to peg out the agreed boundaries”. However, Mr Laurence on behalf of the Scammells had been the first to rely on this correspondence in order to introduce the concept of the “centre line of hedge” as a purportedly agreed concept. It is clear from the Scammells’ pleadings and Mr Laurence’s skeleton argument for trial that the question of the Scammells’ access points from the track was the major bone of contention. It is also clear from that skeleton argument that Mr Laurence had four grounds on which he submitted that the consent order should be set aside, and that the argument from uncertainty was only the fourth of them: the first three relied on mutual mistake as to the status of or rights over the track or even on Mrs Dicker’s solicitor’s alleged attempt to promote and take advantage of Mr Bourke’s mistaken belief as to these matters.

The judge rejected entirely the Scammells’ case based on mistake. He found (at para 44):

“Having considered the contemporaneous correspondence and heard the evidence of Mr Bourke and Mr Simpson [Mrs Dicker’s solicitor in 1994], I am satisfied that the dispute about the track was not fundamental to the agreement to settle this litigation, and that such misapprehensions as either of them may have laboured under as to the fact or law or mixed fact and law in respect of the use of the track and its status, were not material to the settlement of the boundary dispute.”

There was no appeal from that finding.

Before coming to the argument regarding the uncertainty of the settlement, the judge appears to have been strongly influenced by his view, having considered the conveyances, that the parties’ true boundary was a parish boundary, unmarked on the ground, but to be found four feet to the east of the centre line of the hedge. He said (at para 9): “This is one of the most obvious boundaries I have seen for a long time because of the position of the parish boundary being relevant and located.” If this was right, then the consent order would have been over-generous to Mrs Dicker by a factor of five or six feet, as the judge pointed out (at para 24).

The judge plainly regarded the consent order plan as the determinative document and said so. He appears to have viewed the boundary line on the plan as being the centre line of the hedge, citing the evidence to that effect of Mr Mackay, a surveyor called by the Scammells as an expert witness at trial, and found that the western edge of the bank was “extremely difficult to locate” (para 31). His critical reasoning is in the following passage:

“33…I am satisfied that the boundary indicated is the centreline of the hedge where there was a hedge, and the centreline of where the hedge was thought to be where it did not exist. That plan conflicted with the text of the order and what the parties appear to have agreed, namely that the line was the base of the western edge of the bank, where there was a bank. Fifthly, location of the southern end of the boundary was virtually impossible from the plan. Sixthly, I am satisfied that the surveyors’ task after the order was to peg the boundary as best they could, and it was subject to final agreement which never happened. Seventhly, the task of the surveyors was not to create a boundary. Their task was to locate an agreed boundary which was provided for by the order, but that was simply impossible, because firstly, the line on the plan and the words of the order conflicted; secondly, there was insufficient data to locate with certainty the points at the southern end of the boundary. Indeed, even where there was a bank, there was considerable difficulty locating that.

34.

For the above reasons the consent declaration and order and plan could not possibly represent any agreement on the location of the boundary, and consequently the conclusion that I come to is that there never was a concluded agreement.”

The judge cited no authorities or principles in relation to the question of uncertainty. He made no order as to costs.

Mrs Dicker appealed on the uncertainty issue and the Scammells cross-appealed on the question of costs. There was no appeal on the mistake issues.

Mr Justice McCombe dismissed both appeals. There is no further appeal on the question of costs.

On one matter at any rate Mr Justice McCombe found in favour of Mrs Dicker. He considered that the order properly construed said that the declared boundary was the western bank of the hedgerow and that therefore, where there was such a hedge or bank, the plan was intended to represent the western bank of the hedgerow itself. The question was whether the order as so construed was sufficiently certain to be effective. He next referred to certain passages on the issue of certainty from Lewison on The Interpretation of Contracts, 2^nd ed 1997 and to Lord Wright’s speech from Scammell v. Ouston [1941] AC 251, and concluded as follows:

“25.

It seems to me that those passages require the Court to consider whether the terms of the contract require further agreement between the parties to implement them…Also the contract must be sufficiently definite to enable the Court to give a practical meaning…The learned judge found as a fact that in certain respects the agreement was “impossible” or “virtually impossible” to implement. He further found that it was extremely difficult to locate where the bank and where its edge was. These seem to me to be findings that there was a need for further agreement to implement the order and that, therefore, the order was not sufficiently definite to give it a practical meaning…

27.

I have also considered the point that in many cases a plan such as that annexed to the order, if found in a conveyance, would be seen as a luxury and the courts have managed to construe successfully plans inferior to that used here. However, one has to have regard to the purpose of the documentation. It was designed to compromise a dispute about a boundary some 200 metres in length where the terrain varied in character and there were kinks and obstructions on the ground. It was not designed simply to identify a parcel of land to be conveyed on sale. Its very object was to resolve the type of problem encountered by the surveyors on 18 February 1994. For that purpose the learned judge found (in the words of the authorities) that it was without practical meaning and needed further agreement in order to be implemented. He was clearly entitled so to find on the evidence before him.”

There was an additional argument addressed to him by Mr Charles Auld, who appeared for Mrs Dicker as he does again on this appeal, to the effect that it was contrary to the overriding objective of the CPR, and unjust, to permit the Scammells to litigate anew when they had had their opportunity in 1994 and had instead resolved to settle. The judge however rejected that submission, on the ground that the CPR could not override substantive law.

The obtaining of permission for this second appeal has not run smooth. Following Mr Justice McCombe’s judgment, Mrs Dicker’s solicitors sought legal aid for obtaining advice concerning an appeal. There was confusion about whether legal aid had been granted. Mrs Dicker’s solicitors in the meanwhile filed a holding notice of appeal on 25 July 2003. That notice of appeal was in limited terms, in essence taking the point about the effect of the overriding objective under the CPR. On 4 August 2003 the legal services commission (“LSC”) extended Mrs Dicker’s certificate to allow for taking counsel’s advice about an appeal: Mr Auld’s opinion was forwarded to the LSC on 18 August 2003 and on 22 August 2003 substituted grounds covering in addition the issue of uncertainty, and a full skeleton argument in support, together with the bundles required by the Civil Appeals Office were forwarded to that Office, somewhat out of time. In the meantime an extension of time had been requested, but it does not seem to have been dealt with. Lord Justice Chadwick dealt with the application on paper on 26 September 2003 and granted permission to appeal on the CPR issue as a question of principle fit to be heard on a second appeal. Although, as it emerged, the substituted grounds and full skeleton argument had not been put before Lord Justice Chadwick, his reasons for his decision began with the comment: “In my view there is much force in the point that the agreement reached between the parties to the 1989 action…was not, itself, open to challenge on the grounds of uncertainty.”

Because of the terms in which permission had been given, on 13 October 2003 Mrs Dicker’s solicitors wrote to the civil appeal office to enquire whether the substituted grounds had been seen by Lord Justice Chadwick and asking that the matter be referred back to him in case they had not. The answer given was to the effect that he had only seen the original grounds, and that if an application was to be made to amend the original grounds, that should be done at the hearing.

That was what happened at the opening of this appeal. The application to amend and to grant permission to appeal on the issue of uncertainty was made by Mr Auld at the beginning of the hearing and opposed by Mr Laurence. In a short ex tempore judgment given on behalf of the court by my Lord, Lord Justice Ward, permission to amend and to appeal on the issue of uncertainty was granted. Whether or not, once permission for a second appeal on one ground had already been granted, it was strictly necessary for the additional ground itself to pass the hurdle for second appeals laid down by CPR 52.13, the court considered that the issue of uncertainty also raised an important point of principle, and that the delay was sufficiently explained.

Mr Laurence was asked in the course of his submissions if he could cite any case in which a consent order of the court had ever been declared to have been void on the ground of uncertainty: but he was unable to say that that had ever happened. In theory it is, I suppose, possible, just as a consent order may be set aside for misrepresentation or fraud or for mistake. However, given that the court is always on hand to lend its assistance in the working out of its orders or in their clarification, it cannot be a mere difficulty in interpretation or execution that can undo what with due formality has been entered as an order of the court in settlement of litigation before it.

HHJ Rudd cited no principles or precedents for the conclusion to which he came, but the basis of his decision appears to have been that the task of locating the boundary on the ground was “simply impossible”, in part because of the conflict between order and plan and in part because of the insufficiency of physical data. Mr Justice McCombe did consider the principles involved and went further than HHJ Rudd in giving meaning to the order, but he appears to have concluded that the parties’ apparent agreement was vitiated because “there was a need for further agreement to implement the order” and also because HHJ Rudd had found on the facts that “it was without practical meaning”.

In my judgment, however, these conclusions were erroneous. In the first place, as a matter of fact, it was not impossible to implement the parties’ agreement. The surveyors, Mr West and Mr Pollard, in fact did so implement it. Although I am content to assume that the surveyors’ agreement on the pegging out of the boundary line did not bind the parties (although I can see a strong argument for saying that there was a collateral agreement between the parties that it should do so) and that therefore the parties were entitled to dispute the surveyors’ solution, nevertheless it is simply a non sequitur to argue from a disagreement about the meaning and effect of a contract to its legal uncertainty. Parties are always disagreeing about the contracts which they make. They take those arguments, if necessary, to the courts, or to arbitration, for their resolution: and sometimes the resolution is very difficult indeed to arrive at. That is equally true of disputes as to the meaning of contracts and of disputes as to the application of contracts to the facts and of disputes as to the proper understanding of the facts. None of that makes a contract uncertain. For that to occur – and it very rarely occurs – it has to be legally or practically impossible to give to the parties’ agreement any sensible content.

Although HHJ Rudd said it was “virtually impossible” to find the southern end of the boundary and that it was “simply impossible” to locate the agreed boundary (at para 33 of his judgment), the only examples he cited were (1) the difficulty of interpreting a soil line at the southern end, (2) the difficulty of locating the western edge of the bank, and (3) the conflict between order and plan. None of these matters amounted to an impossibility. As for (1) the southern end: although HHJ Rudd said that a line in the soil could have been anything and not necessarily the line of an old fence, the fact appears to be that some such line could be detected (and it is referred to in correspondence without any dispute); it ran in the area delineated on the plan; the circumstance that one could not be positive as to its origin seems to me to be neither here nor there, for one is not seeking certainty in such matters; and if necessary, even in the absence of any guidance from a soil line, the boundary could be plotted from the plan in a straight line from the western bank of the hedgerow. As for (2), the line of that bank or hedgerow, HHJ Rudd said that there was “considerable difficulty” in locating it, and Mr Justice McCombe referred to that finding; but there was plainly a bank and a hedgerow, and the fact that there may be difficulty or even considerable difficulty in delineating it does not amount to such an impossibility as might be a destroyer of contract. As for (3), it is for the parties to resolve any disagreement as to interpretation arising from apparent or even real inconsistencies between different parts of a document or several documents making up a contract. Such inconsistencies, apparent or real, are the everyday stuff of contract and of commerce. If the parties cannot resolve such problems, they go to tribunals to find an answer: and the courts should strain to be the preserver and not the destroyer of bargains, especially where, as here, the parties have acted upon their apparent agreement (viz, by settling their litigation, standing down their preparations for trial, erecting a fence which has stood to this day even if disputed, etc). As Mr Justice McCombe held, the declared boundary was, where the hedge existed, the western bank of the hedgerow, and the plan was to be interpreted accordingly, if it could be.

On all these three points which so influenced both judges below, Mr Laurence in this court was unable to show an impossibility, and barely tried in submission to do so. Instead he focussed almost exclusively on a difficulty at the northern end to which neither judge alluded, and that was the problem about the telegraph pole. It will be recalled that the consent order plan, plan D4, showed the telegraph pole just to the west of the drawn boundary line, whereas the surveyors pegged their line so that it stood just to the east of it. It was common ground before us that for the purposes of identification it is generally possible to look to extrinsic evidence, and so it was that neither party objected to consulting plan D3 in order to understand why the surveyors encountered this difficulty resulting in them drawing a line on the ground which conflicted with the boundary line drawn on the consent order plan.

The answer as it emerged appeared to be that the thickness of the agreed boundary line, equal, as HHJ Rudd found, to some three feet on the ground, embraced an area from the centre line of the hedge to the western bank of the hedgerow. Where the hedge and its bank existed, the order made it clear that the boundary went along the western edge of the bank. North and south of the hedge, the boundary line was to proceed in a straight line. But the fixed position of the telegraph pole showed that a straight line could not be extended to the northern end of the boundary so as to leave the telegraph pole on its west. That could only be achieved if a line were drawn from the centre of the northern end of the hedge to the northern end of the boundary, rather than a continuation of a line from the western edge of the hedgerow’s bank.

In these circumstances, how was the parties’ agreement to be interpreted? It seems to me that there were only four possibilities. One is the solution adopted by the judges below – although not in explicit recognition of this point about the telegraph pole at the northern end – to say that the agreement was impossible to operate and thus legally uncertain.

The three other possibilities represent an attempt to give the parties’ agreement a consensual application objectively ascertainable from the terms of their consent order and plan. One (i) is to draw a straight line extension of the boundary line in the area of the hedgerow from the northern end of the western edge of the bank to the northern end of the boundary. (I say northern end of the boundary, but it will be recalled that at the northern end the boundary turns some 60% to the east for a short distance. That turning point can be described as point X, and was so described by the surveyors in their markings on plan D5. For present purposes I refer to that as the northern end of the boundary.) That is what the surveyors did in February 1994. It was a perfectly sensible solution. It achieved a straight line boundary as marked on the plan; it achieved a straight line extension of a boundary which passed along the western edge of the bank in the area where the hedge stood, just as the consent order required of the “declared boundary”. The only small incompatibility with the plan was that it produced a line which went the wrong side of the telegraph pole, a matter of some six inches or so.

The second (ii) is to produce as straight a line as possible from the northern end of the western edge of the bank to the northern end of the boundary (point X) but to deflect it from complete straightness just enough to carry it on the eastern side of the telegraph pole. That means that the telegraph pole remains on the correct side of the agreed boundary line, but the parties’ aspiration of an entirely straight boundary line is marginally departed from.

The third (iii) is to step the boundary back at the northern end of the hedge, so that its northwards extension runs not from the western edge of the bank but from the centre of the hedge. If that happens, then an entirely straight line, stepped back to the east from the boundary line along the hedge but parallel to that boundary line, can be drawn northwards to the northern end of the boundary (point X) so as to leave the telegraph pole to its west, as shown on the plan.

In my judgment, it hardly matters which of these three solutions is adopted, and there is much to be said for each of them, but the one I would prefer is solution (iii). This is because it fulfils all the requirements of the consent order and the plan, namely a straight line extension of the boundary to its northern end, with the telegraph pole just to its west. The step back, although in one sense not marked on the plan, is to be found there in the thickness of the boundary line which covers an area at the northern end of the hedge from the western edge of the bank to the centre line of the hedge. Indeed, it was Mr Laurence’s own submission, using an extract from plan D3 to help identify the lie on the ground of the boundary line adopted, that plan D5 showed an extended boundary line at the northern end as a continuation of the centre line of the hedge.

Any of these three solutions would do justice to the parties’ agreement, as working out a detail of it. The applicable legal motto is: that is certain which can be rendered certain (id certum est quod certum reddi potest). What would to my mind be a complete injustice would be, just because of the difficulty about the precise position of the boundary line in immediate juxtaposition with the telegraph pole, to conclude that the parties had completely failed on the grounds of uncertainty to settle their litigation at all, although that is what they plainly intended to do and what they did in fact do with the aid of a detailed consent order and plan.

As for Mr Justice McCombe’s conclusion that the consent order was uncertain because it needed further agreement in order to be implemented, I respectfully disagree. The most that could be said is that its implementation, in this matter of the telegraph pole, threw up a relatively small practical problem of detail which in turn involved a problem of interpretation. Mr Justice McCombe derived his principle from a statement now found at para 8.09 of Lewison on The Interpretation of Contracts, 3^rd ed 2004, which he cited (from the second edition of that work) at para 24 of his judgment, to the effect that “A contract, or provision in a contract, may be uncertain…where the terms of the contract require further agreement between the parties in order to implement them”. Lewison goes on to develop that principle at paras 8.14ff under a section heading “Save in exceptional circumstances the court will not recognise an agreement to agree as having any legal effect”. However, the parties’ consent order did not contain “terms requiring further agreement” or any agreement to agree. And even if they had, the legal consequences cannot be simply stated: see Mamidoil-Jetoil Greek Petroleum Co SA v. Okta Crude Oil Refinery AD [2001] EWCA Civ 406, [2001] 2 Lloyd’s Rep 76 at para 69. In particular, it is only in the absence of agreement as to essential terms that a contract is in danger of failing for uncertainty because further agreement is required. The world is otherwise full of perfectly sound contracts which require further agreement for the purpose of their implementation. Furthermore, I am impressed by the submission that if problems of interpreting plans for the purpose of identifying boundaries were to lead to the failure of contracts, then plans would have to be as large as the area of land in issue.

As for Scammell v. Ouston, a rare case of uncertainty of terms, the agreement there was for a purchase “on hire-purchase terms”. It was held that that expression was so vague, because there were many kinds of hire-purchase agreements in widely different terms, that no definite agreement could be ascribed to the parties. Lord Wright said (at 268/9):

“There are in my opinion two grounds on which the court ought to hold that there never was a contract. The first was that the language used was so obscure and so incapable of any definite or precise meaning that the court is unable to attribute to the parties any particular contractual intention. The object of the court is to do justice between the parties, and the court will do its best, if satisfied that there was an ascertainable and determinate intention to contract, to give effect to that intention, looking at substance and not mere form. It will not be deterred by mere difficulties of interpretation. Difficulty is not synonymous with ambiguity so long as any definite meaning can be extracted. But the test of intention is to be found in the words used. If these words, considered however broadly and untechnically and with due regard for all the just implications, fail to evince any definite meaning on which the court can safely act, the court has no choice but to say that there is no contract. Such a position is not often found. But I think it is found in this case. My reason for so thinking is not only based on the actual vagueness and unintelligibility of the words used, but is confirmed by the startling diversity of explanations, tendered by those who think there was a bargain, of what the bargain was. I do not think it would be right to hold the appellants to any particular version. It was all left too vague. There are many cases in the books of what are called illusory contracts, that is, where the parties may have thought they were making a contract but failed to arrive at a definite bargain. It is a necessary requirement that an agreement in order to be binding must be sufficiently definite to enable the court to give it a practical meaning. Its terms must be so definite, or capable of being made definite without further agreement of the parties, that the promises and performances to be rendered by each party are reasonably certain. In my opinion that requirement was not satisfied in this case.

But I think the other reason, which is that the parties never in intention nor even in appearance reached an agreement, is a still sounder reason against enforcing the claim. In truth, in my opinion, their agreement was inchoate and never got beyond negotiations.”

Lord Wright’s second reason has no application here, but it sets the scene for his first reason. In any event, nearly everything that Lord Wright there said is directly contrary to the approach of the judges below. In the present case there was use of detailed and precise language, aided by a plan, and a clearly ascertainable and determinate intention to contract, which received the formal approval of the court’s own order. The court, with the parties’ consent, acted upon that intention by dispensing with trial and bringing the original proceedings to an end, and the parties acted upon that intention by settling their litigation and preparing for and building a fence. Their agreement was sufficiently definite to enable the surveyors and, pace the courts below, this court, to give it practical meaning. Its terms were not “all left too vague”. It was capable of being made definite without further agreement. It was reasonably certain.

Nothing was done formally to challenge that settlement for over a year. The Scammells did not seek the assistance of the court to clarify any uncertainty or difficulty in implementation: but went, after that lengthy period, straightway to try to set the order aside. The result, when the courts below accepted the Scammells’ submission, which in reality was clearly based on their regret and second thoughts about agreeing a plan which would block the access to their farm, albeit they always knew that would happen, was not to do justice but to render injustice by condemning the parties to further rounds of litigation. And all in defence of a solicitor’s negligence which, if it be the case, as HHJ Rudd said, that the parish boundary was “one of the plainest boundaries I think I have ever seen”, would itself provide the Scammells with the basis for compensation for its consequences.

I would therefore allow the appeal.

In the circumstances it is unnecessary to approach the matter from a procedural as distinct from a substantive point of view. Mr Auld’s submission was that, by reason of the overriding objective found in CPR 1 and the court’s power under CPR 3.1(2)(f) to stay proceedings, and by reason of the justice of the matter, the court should have stayed the Scammells’ 1995 proceedings. It appears from Mr Auld’s skeleton argument of 17 January 2002, which was before HHJ Rudd, that the argument, in reliance on CPR 1.1 and 3.1, that the Scammells’ action should not be allowed to proceed, was made, even though it does not figure expressly in his written closing submissions nor in the learned judge’s judgment. I agree with Mr Justice McCombe that mere matters of procedure cannot override substantive rights, but I have some sympathy with the submission, as indeed Lord Justice Chadwick appeared to have also, that an element of procedural principle may enter into the question of a claim to set aside the court’s own order, even if it was entered by consent, when that order had stood unchallenged for over a year and when the 1995 proceedings had themselves taken nearly seven years to reach trial. It may be, however, that we know too little about the events of those years. In any event, it seems to me that there is no need to go any further into these matters as the Scammells’ claim to set aside the consent order of February 1994 for uncertainty must in any event fail on its merits.

I agree.