Bradley & Anor v Heslin & Anor

MR JUSTICE NORRIS: The first issue for decision is to whether the substance of the declaration in paragraph 4 should reflect the right that I have declared to exist or should extend to include my personal assessment of what would be appropriate use which did not cause substantial interference as matters stand today.

I am clear that my intention was to declare the legal rights in the terms that I did in the course of the judgment. I was conscious that in so doing I would leave open the possibility of dispute over what the declaration might mean on the ground. To that end I gave what I hope were observations to guide the parties. It would be wrong to turn those helpful observations into a legal rulebook which forms part of the declaration. The whole thrust of that part of the judgment was that the law expects parties to behave reasonably and cannot attempt to prescribe a complete rulebook. The declaration accordingly will be in the form of paragraph 4 as contained in the draft order without the specification of any additional times or any other qualifications to the right. Those will need to be worked out between reasonable neighbours as circumstances change.

The second point at issue on the draft order is whether it should contain an injunction. The granting of an injunction is a discretionary remedy. The court will not grant an injunction unless persuaded that it is necessary in the interests of justice so to do. I am not so persuaded. The Heslins locked the gate open in (as Mr Jones correctly described it) a “heightened atmosphere”. They have subsequently removed the lock. It seems to me that the order might properly contain and should contain immediately before the declaration a recital to this effect: “and it appearing to the court that the defendants will not seek to lock the gates open or otherwise obstruct their normal operation”. That is the sense of what I have gathered from Mr Jones’s submissions on behalf of the Heslins. It is not practical to embody that in an undertaking but it is entirely right to recite in the order the circumstances in which I am declining to grant injunctive relief, and I so determine.

What is perhaps a matter of equal importance to the determination of the legal rights on the ground is the question of who should bear the costs of that exercise. Mr Jones submits that I should make no order as to costs. Notorious as boundary disputes are for entrenching the position of the parties and for causing them to argue their legal rights at length, there is no general rule that costs are not awardable in boundary dispute cases. In dealing with boundary appeals the Court of Appeal does not apply special rules; nor should I sitting at first instance. Mr Jones says that applying the ordinary principles this is an appropriate case in which simply to make no order as to costs without a detailed examination of the individual factors which I am directed to address if I do decide to make an order about costs. He says that, taking a broad view of what has occurred, this is a case in which the Bradleys did not secure that for which they asked: a prescriptive right to open and close the gates at all times for all purposes connected with the occupation of number 40. They achieved only what Mr Jones described as “a pale right” in comparison with their claim. He says that on that broad view it cannot be said that the Bradleys are the successful party and unless one can identify who is the successful party, the general Rule contained in CPR Part 44 cannot be applied. In the real world, Mr Jones submits, this was a draw.

I do not agree that it is impossible to identify who was the successful party. I consider that the Bradleys were the successful party. Whether one looks at what this case was all about or whether one looks at the individual issues, it seems to me that the Bradleys succeeded; not to the extent that they hoped, but they succeeded. This case was all about whether the Bradleys had a right to close the gates. It grew into a dispute about who owned the gates and who owned the pillars on which the gates were hung. In that dispute the Bradleys succeeded in establishing ownership of the southern pillar, they succeeded in establishing ownership of the northern pillar, they succeeded in establishing ownership of the gates themselves and they secured a right, a declaration that they had a right to close the gates. They also incidentally succeeded in obtaining a removal of the lock that held one of the gates open, though no order was necessary in that regard. They did not succeed on obtaining permanent injunctive relief because I considered that the position could be governed otherwise. But there is in my judgment no doubt that the Bradleys were the successful party.

In those circumstances the general rule applies unless in all the circumstances of the case some other order is just. I think in the instant case some other order is just. In my judgment I emphasised how important it was for neighbours to seek to resolve their differences otherwise than by resolution at court. I emphasised the advantages of mediation in a case such as this since the practical answer to the neighbours’ difficulties is the installation of some automatic gate mechanism whereby they can both conveniently open and close them at will, but that is not a solution at which the court can arrive applying legal principles. It requires agreement between the parties and the creation of all sorts of ancillary rights and obligations such as the provision of an electricity supply or a telephone line or maintenance agreements.

The court could not provide the pragmatic solution that the parties really needed, but the parties themselves did their best to try and reach such an agreement, so on 4 September 2013, soon after the issue of the proceedings, the Heslins obtained a quotation for electronic gates to be installed and made suggestions as to how the cost of installation and the ongoing maintenance might be borne. The offer did not address (perhaps not surprisingly) many of the detailed questions that would arise if electronic gates were to be installed.

On the Bradleys’ side, they did not dismiss out of hand that suggestion but insisted that there must be recognition of their rights “to open and close the gates whether that be the existing gates or any new gates”. They said that the Heslins’ proposal provided no assurance that they, the Bradleys, would not be prevented from opening and closing any new gates by the Heslins either in the immediate or the longer term future. Their response concluded with the words: “Any gates are useless to our clients unless your clients recognise our clients’ right to open and close them”.

The same principle was reiterated in a contemporaneous without prejudice response to the Bradley’s approach which contained a suggestion that the Bradleys would be prepared to agree to retain the existing gates and only close the gates at night on a routine basis not before a time to be agreed. They also proposed that they were willing to keep the gates open on any particular evenings that the Heslins required them to be kept open, although the Bradleys expressed doubt that such an occurrence would be infrequent. Their proposal concluded with a reiteration of a demand for a right in these terms:

“Our clients would of course require your clients to acknowledge within a formal agreement our clients’ entitlement to open and close the gates generally, and our clients will agree insofar as your clients are concerned only to exercise these rights in accordance with the aforementioned proposal. Suitable wording can clearly be agreed if our clients’ offer is in principle of interest to your clients.”

(Quote unchecked)

From that it is apparent both that the Bradleys were insisting that they had a right to open the gate and also, it seems to me, that that right was an unrestricted right though they were willing to submit to voluntary restraint in respect of the Heslins.

These approaches and indeed a mediation came to nothing, but what is of importance is that both sides were endeavouring to reach by one means or another an accommodation of their respective positions. The Bradleys were insisting upon an unrestricted right and this they did not obtain. The Heslins were refusing to acknowledge the existence of any right and in this they were proved at trial to be wrong. In my judgment the fact that the Bradleys asked for more than they ultimately achieved and the fact that the Heslins were prepared to go a long way to achieve a negotiated outcome and were the party who were proposing a pragmatic solution to the legal difference that had arisen must both be reflected in the order for costs. The fact that the Bradleys succeeded must be reflected in an order for costs in their favour. The fact that they did not succeed in obtaining the full breadth of the right which they sought and the fact that the Heslins themselves seriously entered into negotiations with a view to avoiding a trial means that the amount of costs recovered should be restricted.

In my judgment the Bradleys will have an order that the Heslins shall pay 50 per cent of the costs incurred. In reaching that conclusion I have left out of account the amount of the costs that I suspect each side has incurred. One has in making an order about costs to distinguish questions that are relevant to issues of liability and questions that are relevant to issues of assessment. What costs it is reasonable and proportionate to incur in a case about the ownership of gate posts and gates is fundamentally part of the process of assessment, bit so far as liability is concerned I am satisfied that the fair and just order is that the Bradleys should recover 50 per cent of their costs.

Mr McDonald asked me to make an order that part of those costs should be payable on the standard basis and part on the indemnity basis. The basis of the submission that part of the costs should be payable on the indemnity basis is that in their letter of 13 September 2013, which contained a willingness to impose a regime upon the operation of the existing gates as an alternative to the erection of new automatic gates, the Bradleys effectively offered that which they obtained at trial. I do not agree that this is so. The Bradleys wanted (as I read the offer) an acknowledgement that they had an unrestricted right to open and close the gates but were willing to submit to a voluntary restraint in respect of the Heslins’ use of the gates. That is not the outcome of the trial. I therefore do not think that that offer is an appropriate foundation for an order for indemnity costs and I accept Mr Jones’s submission that if costs are ordered they should be on the standard basis throughout.

I accordingly order that the Heslins shall pay 50 per cent of the Bradleys’ costs of the action, those costs to be assessed on the standard basis in default of agreement, it being for the costs judge conducting the assessment to decide what costs it was reasonable and proportionate to incur in a case of this sort.