Sarah Douglas v Ronald Channon

This is an appeal against two Orders of His Honour Judge Mitchell, dated 26 August 2025 and 5 September 2025, which were made following a trial at Plymouth County Court between 18 and 26 August 2025.

By Order dated 5 February 2026, Lambert J gave permission on the papers to appeal on two of the appellant’s four grounds of appeal: Grounds 1 and 4. There was no renewed application for permission in respect of the Grounds 2 and 3.

Given that the issues which I am required to determine are considerably narrower in scope than they were at the trial, it is not necessary to set out the background to the dispute nor the issues between the parties in the level of detail which the Judge did in his careful and well-reasoned judgment.

In broad summary, Ms Douglas is the freehold owner of 43 Mead Road in Torquay and has been since 2017. Mr Channon has been the freehold owner of number 41 since 2021. Number 43 is located to the north of number 41, and the boundary between the properties is at the southern border of number 43: the northern border of number 41.

There was a dispute between the parties as to the precise position of the Boundary, but they made various other claims and counterclaims in the proceedings, which were issued on 29 September 2023.

Again, in view of the issues in the appeal, it is only necessary to give a broad summary of the Judgment, with a little more detail in relation to the part of the Judgment which is now challenged.

The Judge identified the issue as to the position of the Boundary as “by far and away the stand-out issue in the case”. The evidence in relation to this issue included expert reports from Mr Rackham and, on behalf of Mr Channon, Mr Barber who was a civil engineer by qualification. There were also various conveyancing documents and photographs, as well as drone footage, of the relevant parts of the land. There was some evidence from the predecessors in title of both Ms Douglas and Mr Channon, and the Judge himself went to the trouble of undertaking a site visit.

The Judge noted that the applicable law was agreed between Counsel. He identified his task as “to construe the earliest Conveyance that creates the boundary between the respective Properties. To the extent that is unclear, topographical features on the ground can be considered to illuminate the position as at the date of that Conveyance.” He went on to cite passages from French v. Hannah [2025] UKUT 190 (LC), Chadwick v. Abbotswood Properties Limited [2004] EWHC 1058 (Ch) and Cameron v. Boggiano [2012] EWCA Civ 157 as to the approach which he was required to take. The appeal does not involve any criticism of the Judge’s account of the relevant legal principles.

The Judge noted that the conveyancing history in respect of both properties was common ground, although the interpretation of certain of the relevant plans was a matter of dispute. He then reviewed the relevant conveyancing documents and summarised aspects of the evidence of the predecessors in title about the position of the Boundary, and how it was demarcated, before noting that the boundary experts disagreed on the correct interpretation of the conveyancing plans “as transposed on the ground”. He then summarised their competing positions before noting that the experts had plotted their respective proposed boundary lines on a plan.

By the time of the Judge’s decision, the competing cases as to the location of the Boundary were as between a line “A1-H1-B” marked on the plan by Mr Rackham and a line “A-H-B” contended for by Mr Barber. At [62] the Judge said that the dispute as to the boundary line ultimately came down to three questions:

“i)

Does the western end of the boundary (in other words, where it meets Mead Road) start from Point A, which is Mr Barber's conclusion, or Point A1, which is Mr Rackham's?

ii)

Does the boundary from A/A1 run to Point H, which is Mr Barber, or H1, which is Mr Rackham? Essentially, that is the straight stretch of boundary shown in the title plans.

iii)

Does the boundary from H/H1 to B run in a straight or a curved line? Essentially, this is where the boundary was originally constituted by hedging.”

The Judge accepted Mr Barber’s position on the first two questions, and these conclusions are not challenged in the appeal. He found that the Boundary began at Point A and ran to Point H. He then said that point B was agreed: the third issue was whether the boundary between H and B was a straight or a curved line. Put another way, the issue was how to treat the line of the hedge which, historically, had run between the two points but had been removed. He said that this was probably the more difficult of the issues in the case.

For reasons which the Judge gave, he said that he was initially attracted to Mr Ward’s submission (on behalf of Ms Douglas) that the hedge was the boundary and that, as it was conveyed with number 43, the boundary line must be the southern extreme of the foliage facing number 41. However, he noted that there were problems with this conclusion, including that it would mean that the boundary line would be “a moveable feast as the hedge grows and, shifts position”. Moreover, the owner of number 43 had an obligation to maintain but would have no obvious means to discharge that obligation unless some sort of implied right of entry onto number could be construed. Conversely, the owner of number 41 could not legally trim back the hedge because at all times the boundary would be wherever the outer foliage lay.

On the basis of Collis v. Amphlett [1920] AC 271, which was followed in AvonEstates Limited v. Evans [2013] EWHC 1635, the Judge held that the boundary line should be taken, as it was in those cases, to be a line drawn along the growers of the hedge, rather than a line drawn by reference to the extent of the outer foliage. The key paragraphs of the Judgment on this issue for the purposes of the appeal are [85] to [87] where the Judge said:

“85.

So it seems to me….that this line of authority supports the proposition that, where the boundary separating two properties is demarcated by a hedge which belongs within the curtilage of one of the properties, the boundary will run along the outer edge of the growers or trunks or stems. That avoids the problems already identified. The boundary is then more or less a fixed point, and the owner of No. 41 can cut back the hedge on the No. 41 side, providing he or she goes no further than the outer edge of the growers in order, for example, to abate a trespass.

86.

My conclusion, therefore, first is that I accept Mr Ward's submission that a plain reading of the conveyancing documentation alone shows that ownership of the hedge passed with the title of No. 43, but, second, the practical effect of that on the ground is that the boundary line between H and B is the outer line (in other words, the No. 41 facing side) of the growers of the hedge.

87.

Mr Barber has drawn a line simply through the middle of the hedge, in effect. That I accept is not precisely the same as a line along the outer face of the growers. However, looking at the photographs that were taken when Mr Hodgson undertook the hedge removal, one can easily surmise that the growers were not the width of a tree trunk or anything of that sort. They were relatively thin stems. Mr Barber's line, H-B, will therefore be marginally out by the width, or perhaps half the width, of the growers, but the difference is a matter of mere millimetres or de minimis. I therefore conclude that the boundary line is A-H-B, as shown on the experts' Joint Plan 3 at E1061; in other words, the line plotted by Mr Barber.”

Having come to this conclusion the Judge went on to deal with the other claims and counterclaims in a way which is not challenged in the appeal. In short, all of these were dismissed. Some of his conclusions, such as on the issues related to trespass, followed from his conclusions as to the location of the Boundary. Others were free-standing, but the Judge was able to determine them more rapidly than the boundary dispute, and there is no appeal from either side against his decisions on these issues.

The Judge received detailed written submissions from the parties on the issue of costs. As noted above, his decision was that Ms Douglas should pay 70% of Mr Channon’s costs. He explained that decision as follows:

“Brief Reasons

The starting point in determining liability for costs is to determine who is the successful party (CPR 44(2)(a)).

Undoubtedly, the successful party on the Claim is the Defendant.

The Claimant brought the claim primarily to seek a declaration as to the boundary line that has not succeeded and compensation regarding stabilisation works that, again, has proved unsuccessful.

Other aspects of the claim also failed.

Ultimately the Court decided the boundary along the points A-H-B per the Defendant’s expert’s view (even if an evolved view).

Equally the successful party on the Counterclaim is the Claimant.

The Defendant’s monetary claims failed. The Counterclaim for a Declaration on the boundary was, in reality, a reflection of the Defence to the Claim.

It is long recognised that to make a split order i.e. Claimant to pay the costs of the Claim and the Defendant those of the Counterclaim is singularly unhelpful in terms of assessment.

The Court therefore undertakes an evaluative exercise on the level of costs incurred in the Claim and Counterclaim.

In this instance the bulk of costs fall under the Claim which incorporated the two most important issues of the boundary line and stabilisation.

That said, the Counterclaim caused not insubstantial costs.

A fair apportionment (necessarily with a degree of broad brush) is that the Claimant should pay 70% of the Defendant’s costs of the proceedings.

I have had regard to whether this figure should be further adjusted, having regard to all the circumstances and the factors referred to at CPR 44.(4) but decided not.

There has been intransigence on both sides and the Defendant’s part 36 offer has not, in fact, been beaten…..

It is appropriate to make a payment on account order.

Adding VAT, the budgeted costs would appear to be £309720 x 70% = £216840.

I have allowed 50% as a payment on account.”

As is well known, CPR Rule 52.21(1) provides that, save in circumstances which are not relevant here, “Every appeal will be limited to a review of the decision of the lower court”. Rule 52.21(3) provides that:

“(3)

The appeal court will allow an appeal where the decision of the lower court was—

(a)

wrong; or

(b)

unjust because of a serious procedural or other irregularity in the proceedings in the lower court.”

Mr Ward’s position appeared to be that the decision of the Judge on the Boundary issue was “wrong”. Generally, this will mean that the court erred in law, in fact or in the exercise of its discretion. He (rightly) did not allege error of law in terms of the Judge’s self-directions as to the law which he was required to apply. As far as the second and third categories of error are concerned:

There is no challenge to the Judge’s interpretation of the Collis and the Evans cases. On the contrary, Mr Ward positively relies on that interpretation.

Ground 1 of the grounds of appeal is that “The Court was wrong to determine the boundary as it did as a matter of fact”. This ground is then pleaded as 7 sub grounds as follows:

It will be seen that this is essentially an argument that, for various reasons, the Judge should not have found that the difference between the line plotted by Mr Barber and the line indicated by Collis and Evans was marginal - “a matter of mere millimetres or de minimis” - and should not have declared that Mr Barber’s line was the Boundary. Instead, he should have directed that the experts plot the boundary indicated by Collis and Evans and, absent agreement, the matter should then be determined by the court.

Mr Ward did not submit a skeleton argument for the hearing. He relied on the pleaded grounds of appeal and the skeleton argument originally submitted in support of those grounds, albeit that skeleton stated that it had been written before sight of the Judgment and did little more than reiterate the pleaded grounds. In his oral submissions Mr Ward focussed his argument, but it has to be said that some of his points were unheralded.

In addition to his grounds of appeal and written arguments, Mr Ward submitted that the effect of the Judge’s decision was that any attempt by Ms Douglas to regrow the hedge would necessarily involve trespass by her, albeit one which was not actionable. This was a further reason why the Judge was wrong to find that the difference between a line through the middle of the hedge or the growers and the line of the south face of the growers was de minimis. He added that the land had been altered by the removal of the hedge and it would not be possible to restore it. It remained his case that the Judge should have remitted the matter to the experts for the “true” line to be plotted and, in the absence of agreement, there should have been a further hearing to determine the matter.

I reject Mr Ward’s submissions on Ground 1.

As is well known, the full maxim is “de minimis non curat lex” which means “the law does not concern itself with trifling matters”. Mr Ward did not suggest that this maxim is inapplicable to boundary disputes or actions in trespass and nor do I see any reason why it would not be. Indeed, this maxim was applied by the Judge in dismissing an aspect of Mr Channon’s claim in trespass. The Judge’s view, in effect, was that the difference between the line plotted by Mr Barber and the line suggested by Collis and Evans was so minor that it could be disregarded. It was not material.

The question whether the difference between the two lines was de minimis was one of fact for the Judge and his finding was based on the evidence as [85] of the Judgment, cited above, makes clear. He read, saw and heard all of the evidence and, indeed, undertook a site visit, and his finding was plainly open to him. Indeed, it is wholly unsurprising for the reasons which he gave. He found that the growers were relatively thin stems and that the relevant section of Mr Barber's line, H to B, would therefore be “marginally out by the width, or perhaps half the width, of the growers” i.e. “a matter of mere millimetres”. Contrary to the implication of one of Mr Ward’s arguments, there was no need for him to hear further evidence in order to come to this conclusion. He had received all of the evidence which he needed in order to come to his view.

Mr Ward’s arguments that the difference between the two lines in relation to this section of the Boundary cannot have been de minimis because the Judge’s decision deprived Ms Douglas of an action in trespass and/or meant that she would be guilty of trespass if she took steps to re-grow the hedge are unsound. Any such claim would be met with the answer that any trespass was de minimis. Similarly, the answer to Mr Ward’s argument that the Judge’s ruling deprived Ms Douglas of part of her land is that, to the extent that it did so, this was de minimis.

Finally, given that the difference between the line plotted by Mr Barber and the line indicated by Collis and Evans was de minimis it was entirely open to the Judge to adopt Mr Barber’s line. The difference between the two lines was, the Judge permissibly found, immaterial. The Judge was also fully entitled to take the view that it certainly would not justify the continuation of the litigation by requiring the experts to plot what the southern line of growers would have been if the hedge had not been removed in 2018, with the possibility of a further hearing if they were unable to agree. The costs of the litigation were already very substantial. As the Judge said, and I entirely agree:

“this is a wholly unfortunate dispute which, from any objective viewpoint, should plainly not have got to this point, but, given that it has, clearly it has caused a significant amount of stress and upset, let alone cost.”

Insofar as Mr Ward’s complaint about the Judge determining the matter, rather than first directing the expert witnesses to attempt to reach agreement, is said to amount to a procedural irregularity for the purposes of Rule 52.21(3)(b), I do not accept that it was, still less that it was “serious”. But, in any event, the Judge’s approach did not render his decision unjust given that any difference between his declaration and what might have been agreed by the experts or subsequently determined by the court was de minimis.

Ground 1 is therefore dismissed.

Ground 4 is that the court was wrong to order Ms Douglas to pay any of Mr Channon’s costs. Here, there are 8 pleaded sub-grounds. However, with respect, these are repetitive. The essential pleaded arguments were that the Judge erred and/or reached a conclusion which was perverse:

In addition to his written grounds/arguments, summarised above, Mr Ward emphasised 3 principal points in his oral submissions:

Mr Ward submitted, as he did to the Judge, that the right order was “no order as to costs”. And he referred to the commentary in the 2026 White Book at 44.2.14, which summarises the approach of Mann J in The Square Mile Partnership Ltd v Fitzmaurice McCall [2006] EWHC 236 (Ch). Mann J held that it was appropriate to treat both parties as successful in a case where the claimant got a substantial judgment in its favour and the defendant resisted a very large part of the claim and succeeded on the counterclaim. Mann J explained that, in these circumstances, the starting point was that the claimant should be awarded the costs of the claim, and the defendant the costs of the counterclaim, but he noted that that was not an order which the parties would welcome given the difficulties it would raise on assessment. Taking that into account, and also the time, effort and costs incurred in dealing with various issues at trial, the appropriate order was “no order as to costs”.

In the present case, there was no challenge to the Judge’s decision not to make a “split order” and no suggestion that he should have made an issues based order. Indeed, Mr Ward did not suggest, in his written submissions to the Judge on costs, that either type of order was appropriate in this case and he expressly recognised the difficulties on assessment which there might be if such an order were made.

As is well known, costs are in the discretion of the court. CPR Rule 44.2(2) provides that:

“(2)

If the court decides to make an order about costs—

(a)

the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but

(b)

the court may make a different order.”

Rule 44.2(4) provides that in deciding what order, if any, to make about costs the court will have regard to all of the circumstances including the conduct of all the parties, and “(b) whether a party has succeeded on part of its case, even if that party has not been wholly successful;”.

Rule 44.2(5) provides guidance as to what the conduct of the parties includes, as follows, so far as material:

“(a)

conduct before, as well as during, the proceedings…;

(b)

whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(c)

the manner in which a party has pursued or defended its case or a particular allegation or issue;

(d)

whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim; and

(e)

….”

I have set out the approach to appeals against a judge’s exercise of discretion at [17(ii)], above. In this case it is also important to note that the Judge had conducted the trial and was therefore in a far better position than this court to assess which was the successful party, which were the more important/costly aspects of the litigation, issues of litigation conduct etc. The Judge also received detailed written submissions from the parties which relied on wider considerations in support of their positions on costs than are raised in this appeal. Moreover, perhaps recognising that the function of this court on appeal is to review the Judge’s decision, Mr Ward did not begin to engage in the sort of detailed analysis which would enable me to go behind the views of the Judge as to what were the key issues, where the bulk of the costs were incurred etc. All of these considerations mean, in my view, that I should be slow to interfere with the Judge’s findings and the exercise of his discretion on the basis of what were essentially assertions by Mr Ward about some aspects of the overall case which was before the Judge.

In my view, the Judge was fully entitled to find that Mr Channon was the successful party in this case given that he had won on the issue which the Judge found to be the “stand out issue in the case”. It is worth noting that there is no dispute that Mr Channon won on the first two issues in relation to the Boundary which the Judge identified. Mr Ward’s argument that, in effect, Mr Channon had not won on this issue because the line suggested by Collis and Evans was different to the line plotted by Mr Barber only goes to the third issue or section of the Boundary. As I have said, in my view that argument is in any event wrong. The Judge permissibly found that the difference between the two lines was not material, whereas the difference with Mr Rackham’s proposed line was. As Mr Channon’s case was not materially different from the case which the Judge accepted, he was the successful party on the most important issue to be determined.

Secondly, as for Mr Ward’s argument that Mr Barber’s position had evolved over the course of the case to the one which the Judge accepted, obviously this did not mean that Mr Channon was not the successful party on the Boundary issue. Insofar as the evolution of Mr Barber’s position was relevant to the conduct of the proceedings for the purposes of assessing costs, the answer to Mr Ward’s complaint is that, as noted above, the Judge expressly took this factor into account in exercising his discretion. He was best placed to assess the significance of the changes in Mr Channon’s case and to decide what weight should be given to this consideration.

Thirdly, in terms of which was the successful party, the Judge also relied on Ms Douglas’ claim for compensation in respect of the stabilisation work. He found that this claim and the Boundary issue had been her primary reasons for bringing the claim. He also found that the bulk of the costs fell under the claim, which incorporated these two issues. The claim failed in its entirety. Again, as the trial Judge he was fully entitled to make these findings. Mr Ward did not subject them to a sufficiently detailed analysis to put me in anything approaching a position to go behind them and, in any event, they are unsurprising given, for example, that there was also expert evidence from structural engineers on both sides in relation to the stabilisation claim.

As far as Mr Ward’s other arguments are concerned, the Judge expressly took into account the fact that Mr Channon’s counterclaim had failed save insofar as it mirrored his defence on the Boundary issue. He also took into account that the counterclaim “caused not insubstantial costs” and he was obviously aware of the purported value of the counterclaim. The weight to be given to these factors was a matter for the Judge and it is important to note that he gave them significant weight in making a deduction of 30% from the costs which Ms Douglas was liable to pay.

It is also important to note that the Judge then considered whether any further adjustments should be made bearing in mind the terms of Rule 44.2(4) and concluded that they should not be. In relation to Mr Ward’s argument that the counterclaim had been pursued aggressively, it is clear that both sides pursued their respective positions robustly. The Judge also expressly took into account that there had been “ intransigence on both sides”.

For all of these reasons, then, I consider that the Judge’s exercise of his discretion in relation to costs was entirely open to him and I dismiss Ground 4.

I therefore dismiss the appeal.