Ely & Anor v Simmons & Anor

This is an appeal against an order dated 14 October 2011 of HHJ Neligan in which he granted declarations as to the boundaries between the two properties owned respectively by the appellants, who were the defendants below, and the respondents, who were the claimants.

Permission to appeal was granted by Rimer LJ on one ground only, that the judge arguably erred in concluding that the parties had not entered into a boundary agreement. As pleaded in the appellants amended defence and counterclaim, it was contended that the boundary agreement had been reached:

Having asked himself the question in paragraph 6 of his judgment "was a boundary agreement made in the period February to May 2006?", the judge answered that question in paragraph 37 of his judgment. In a lengthy paragraph the judge cited the relevant authorities and concluded as follows:

“[Having considered] the emails and the letter dated 17 March addressed to the Claimants by Messrs Field Overell, solicitors instructed by the Simmons in which there was no suggestion of agreement having been made about where the boundaries lay, I find that a boundary agreement was not made. The letter dated 17 March came after the email dated 2 March which is alleged to set out the terms of an agreement."

The grounds of appeal contended that on 2 March 2006 there was an exchange of emails which resulted in a binding agreement being reached as to the position of both the southern and eastern boundaries. The contents of the emails are summarised.

It is then contended that on 17 March 2006 the appellants’ solicitor, in ignorance of the agreement which had been reached between the parties, wrote to the respondents indicating inter alia that they would also like to see the question of the boundaries settled before the building works proceeded further. In essence, the ground of appeal contends that the judge had wrongly allowed himself to be influenced by the letter of 17 March 2006 because by that date agreement had already been reached on the 2 March 2006. It is only fair to note that when granting permission to appeal Rimer LJ did not have the advantage of seeing either the email exchange on 2 March 2006 or the letter of 17 March 2006.

It is unnecessary to set out the text of the letter of 17 March 2006 because, looked at in isolation, it is wholly inconsistent with the parties having reached an agreement over the period between March and May 2006, as alleged in the pleading. However, Mrs Simmons, who has presented the appellant's case before us, now submits that the boundary agreement had in fact been reached prior to 2 March 2006, and the emails of 2 March 2006 do not constitute the making of an agreement, they merely corroborated the fact that an agreement had been made. She was not able to be precise as to when the agreement was made, but said that it was the fruit of discussions that took place between her husband and the first respondent over a period between the end of 2005 and the beginning of 2006. The way in which she put it, in a nutshell, was that the parties had reached agreement as to what the boundaries were and that all the emails of 2 March 2006 were concerned with was the mechanics or the process of recording the detail of their agreement.

So far as the letter of 17 March is concerned, she submits that it was written by their solicitor without full knowledge of the position, and that in an email of 22 March her husband effectively disavowed the letter, so the judge should not have paid any regard to it.

The difficulty with the submission that the judge erred in not finding an agreement because an agreement had, on the evidence before the judge, been concluded at some time before the 2 March, is that, first of all, that was not the way the matter was pleaded before the judge; perhaps more importantly it conflicts with the only relevant evidence about this issue that we have before us; that is to say Mr Simmons' own witness statement. Under the heading "The boundary agreement/southern boundary" he refers to discussions between himself and the first respondent and then says in paragraphs 6.3 and 6.4:

That evidence accords with the way in which the matter was put in the grounds of appeal to this court, namely that the emails of 2 March 2006 constituted a binding agreement. It seems to me that in circumstances where not only do we have no evidence which supports the proposition that there was an agreement prior to the 2 March, but we also have the position that the appellant's own grounds of appeal and his own evidence directly conflict with the proposition that there was an agreement reached before the 2 March, this submission made by Mrs Simmons must be rejected.

I move on to consider whether there might be any possible basis for contending, as was contended in the grounds of appeal to this court for which permission to appeal has been given, that the exchange of emails on 2^nd March amounted to a binding agreement. I think it unnecessary to set out the terms of the emails in detail; they are to be found on pages 210 to 212 of the court bundle. It is sufficient to say that there could not be a clearer case of parties agreeing that it would be sensible for them to agree the boundaries. But that is simply an agreement to agree if possible, it is most certainly not a boundary agreement. Thus reference is made to mechanisms available to clarify the boundaries; references to the process whereby there is an agreement to a partial transfer of some of the title; references to the payment of legal expenses and a token payment for the land. The response to that is the proffering of a plan which is offered simply as a starting point and also an attempt to clarify precisely what is meant by legal expenses.

Even if one simply looked at those emails on their own and did not have regard to any of the subsequent correspondence, it is plain, in my judgment, that as of 2 March there was no question of there being any agreement. The first respondent's email referred to the plan as a starting point. Mrs Simmons placed considerable emphasis upon the plan. However, it is apparent that the plan is on a very small scale. Mrs Simmons sought to distinguish between agreement as to the boundaries and recording the precise measurements of that which had been agreed. But it seems to me, in the context of a boundary dispute such as this where it is plain from the material that we do have that very small differences in dimensions are of considerable significance, that the precise measurements are of the essence of any agreement if it is to be reached. It is simply a false distinction to draw a difference between agreeing boundaries, and making measurements to record that agreement. The latter stage was plainly of the essence.

In any event it is not appropriate to look at the exchange of emails on 2 March in isolation; one has to consider the exchange in the context of the email correspondence as a whole and, although Mrs Simmons submitted that there was material in the subsequent emails which corroborated the proposition that there was an agreement on 2 March, with great respect to her submission it seems to me that the subsequent emails demonstrate that that simply was not the position. The subsequent emails show only too clearly that the parties were still discussing and were still negotiating. Thus simply, by way of example, we have an exchange on 22 March, which is shortly after the solicitor's letter of 17 March, in which Mr Simmons says to Mr Ely that there were a number of things that should be resolved. He also says:

To which the response from Mr Ely is that he agrees about the need to resolve the boundaries as soon as possible, and then suggests various steps that might be taken and, referring to the solicitor's letter, he expresses the view that the main concern addressed in that letter had been addressed, and concludes by saying:

So in summary I would conclude that the judge did not err in concluding that there was no boundary agreement. There is no evidence to support the proposition that there was an agreement reached prior to the 2 March, and that submission directly conflicts with the only evidence that we do have, which is from Mr Simmons himself. So far as the proposition that there was an agreement on the 2 March is concerned, that seems to me to be belied by the terms of the two emails on that date, even if those emails are looked at in isolation. But if one (as one should) looks at them in the context of a longer chain of email correspondence, it is plain that there was no agreement on the 2 March and indeed no agreement was reached subsequently. For those reasons I, for my part, would dismiss this appeal.

I agree.

I also agree.