Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MRS JUSTICE LANG DBE
Between :
|
ADRIAN JONES |
Appellant |
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- and - |
|
|
(1) FRANK MURRELL (2) PENELOPE MAY MURRELL |
Respondents |
Kevin Leigh (instructed by Dean Wilson & Son) for the Appellant
Nicholas Barnes (instructed by Henchleys) for the Respondents
Hearing date: 8 November 2016
Judgment
Mrs Justice Lang :
The Appellant appeals against the order of HH Judge Simpkiss, made on 19 May 2016 at the Brighton County Court, in which he held that the boundary award made by the independent expert (Mr D. Clarke) on 10 July 2013 was final and binding upon the parties.
The claim arose out of a boundary dispute between next door neighbours. The Appellant resides at 10, Stanley Road, Peacehaven, East Sussex BN10 7SP and the Respondents live next door at 8, Stanley Road. There is a strip of land along the boundary between the properties, which both parties lay claim to. The Respondents, who have owned No. 8 since 1994, contend that the boundary line was marked by a timber post at the front of the two properties (though the properties were physically separated by a broad hedge). When the Appellant purchased No. 10 in 2011, and subsequently built a house on site, he removed the timber post and hedge, and erected a fence, that the Respondents claim is nearer to their house than the legal boundary.
After instructing their own separate surveyors, who were unable to agree, the parties then jointly appointed Mr D. Clarke, a chartered building surveyor, to act as an independent expert and identify the correct line of the boundary. The parties agreed to be bound by his decision.
Mr Clarke upheld the Respondents’ representations in his report, stating:
“10.01 From my assessment of the Land Registry plans and the physical evidence on site, my Award is that the boundary between No 8 and No 10 Stanley Road is defined by the position of the previous timber marker post on the Stanley Road frontage, now indicated by the white line. The boundary runs from that point at a right-angle to the frontage to a point some 530 mm to the west of the west face of the rear wall pier so that the front and rear measurements of the plot are equal. The plot width is taken at 15.40 m but that should be re-checked by measurement from the white line to the wall of No. 6 Stanley Road. I have marked in red in Appendix 6, 7 & 8 the general boundary line to be fixed with site adjustments.”
The Appellant was dissatisfied with this award, and instructed another surveyor, Mr David Powell, to consider Mr Clarke’s report. He wrote a letter dated 5 August 2013, setting out his concerns.
The Respondents issued this claim under CPR Part 8 seeking the decision of the court on two questions. First, was the joint letter of instruction to Mr Clarke, dated 23 January 2013, a binding agreement? If so, secondly, was Mr Clarke’s award a final award which was binding on both parties?
In October 2014, when the Respondents’ former solicitors were clearing out their offices, they discovered in their files a copy of a conveyance dated 22 December 1965, of which the parties and Mr Clarke were previously unaware. A Mr Weeden was the owner of three adjacent plots of land, carved out of a larger estate in 1950, and known as Nos. 206, 207 and 208. The properties now known as Nos. 6, 8 and 10 Stanley Road were subsequently built in the southern sections of those three plots. The plots were sub-divided, enabling houses to be built in the northern section of the plots too (known as 7, 9 and 11 The Compts). The 1965 conveyance showed that Mr Weeden sold a property known as 8 Stanley Road to a Mr and Mrs Kemp, which was described in the conveyance as comprising part of plot No. 207 and part of plot No. 206, as delineated on the attached plan. The plan attached to the 1965 conveyance marked in pink the boundary of the land conveyed to the Kemps. The pink line was shown as being three feet to the west of the boundary line between plot No. 207 and plot No. 208. An existing house, called Fernbank, was situated towards the rear of plot No. 207, with part of it protruding so close to the boundary with plot No. 208 that the pink line was diverted around it. Plot No. 208 was not built upon at that stage.
In the light of this significant new evidence, pursuant to an order of the court, the parties jointly instructed Messrs Powell and Clark to prepare a joint report. The joint report, signed on 15 and 17 November 2014, concluded that the boundary line identified in the original Award was correct, subject only to a slight adjustment of 160 mm (6 inches).
Upon publication of the joint report, the Appellant’s solicitor posed questions which, in effect, invited the two experts to reach a different conclusion, more favourable to his client. The experts exchanged views and then issued further separate statements in response.
At the hearing before the Judge, the Appellant was unrepresented but had the benefit of grounds drafted by counsel. The Appellant agreed with the Respondents’ primary submission that the parties had entered into a compromise agreement, the terms of which were that the award by the independent expert would bind both parties. However, the Appellant submitted that Mr Clarke’s award ought to be set aside because it was invalid.
The Judge considered the correspondence appointing Mr Clarke and concluded that he had been appointed to act as an expert, not as an arbiter or mediator. The parties had entered into a compromise agreement, the terms of which were that Mr Clarke would determine the correct line of the boundary and the parties would be bound by his decision and not dispute it. The Judge directed himself on the legal principles which applied to a challenge to a determination by an expert. The Judge then considered the Appellant’s criticisms of Mr Clarke’s report and Award. I do not need to mention here those points which are no longer pursued by the Appellant. His conclusions on the issues which remain relevant were as follows:
“31. The long and the short of it is that Mr Clarke was asked to produce a line. His conclusion did not take into account the 1965 conveyance because it was not before him and no one suggested that that itself vitiates the award. What has happened is that that the defendant now wishes to challenge the award on the ground that there is a mistake in ignoring the 1965 conveyance. However, both Mr Powell and Mr Clarke agreed that it did not change things, and Mr Powell’s position statement subsequently is that that is what it says on the conveyance and issues are matters of law.
32. There is no evidence to say that there was a mistake being made by Mr Clarke. In fact, an explanation has been put forward by Mr Clarke, which suggests that an earlier title document is more relevant and that, somewhere along the line, 3 ft has gone missing. However, there is no evidence that the 3 ft belongs to the [Defendant (Footnote: 1 ) ]. The long and the short of it is that, in my judgment again, this is not an appeal against Mr Clarke’s award. It is not a question of whether Mr Clarke’s award was wrong in its conclusion. The issue is whether or not he has carried out his instructions, which he has. There is therefore no ground for setting aside the award on that point.”
Permission to appeal was granted by Lewis J. on 4 October 2016 only on one amended ground:
“The expert’s task was to reach a conclusion acting as a properly instructed demarcation surveyor. This exercise included considering and taking account of legal documents. The Claimant’s title derives from the 1965 conveyance. The expert erred in law in concluding that as part of his role he could treat the 1965 conveyance (especially its plan) as erroneous.”
On appeal, the Appellant submitted that Mr Clarke had exceeded his powers and/or the proper scope of his instructions by not determining the boundary in accordance with the law. It was not open to Mr Clarke to treat the 1965 conveyance and the attached plan as erroneous; he was usurping the role of the court. Thus, the Judge had erred in deciding that Mr Clarke had acted in accordance with his instructions. Moreover, the Judge erroneously believed that Mr Powell agreed with Mr Clarke’s determination of the boundary line, when Mr Powell’s position statement indicated that he disagreed with him.
In my judgment, it is clear from the letters of instruction and Mr Clarke’s response that he was appointed as an independent expert, under the CPR, to decide where the boundary line lay. As the Judge said, in paragraph 24 of his judgment, he was not acting as an arbitrator.
The joint letter of instruction dated 23 January 2013 stated, inter alia:
“An issue has developed between Mr Jones and Mr and Mrs Murrell as to the correct and finite line of the boundary between the two properties.
Notwithstanding discussion between the parties, their advisers and John M Wade RICS on behalf of Mr Jones and David F. Smith MRICS on behalf of Mr and Mrs Murrell the parties have been unable to agree that correct boundary line.
In order to avoid litigation before the Courts, the parties have agreed that the issue of the correct line of the boundary should be referred to you as a third party independent Surveyor acting as an expert and they have all further agreed that by signing this letter of instruction … that they will be bound by your decision and will not dispute the same thereafter.
The parties further agree that they will immediately following the publication of your Report and award do all things jointly and severally reasonably required to register the defined line of the boundary with H.M. Land Registry. To this end, when producing your award we would ask that you also provide the parties with a Land Registry compliant plan that may be utilised in making the appropriate Land Registry Application.”
In his response dated 29 January 2013, Mr Clarke said, inter alia:
“My general terms of reference are agreed and as asset out in your letter…..It is assumed that some title deed plans exist and one or both titles are recorded with the Land Registry. As I understand it, the issue is deciding whether the physical boundary now corresponds with the legal boundary and it is not proposed to change the legal boundary…
…..
The parties will decide what evidence they wish me to consider but clearly evidence should be reasonable and relevant to the issue in dispute. I expect to be provided with:
Title deeds and registered plans.
The building plans showing the alterations of No. 10.
The surveyor reports of Mr Wade and Mr Smith.
Any observations from the parties on the two surveyor reports, identifying what are agreed facts and observations and what is disputed.
Any other statement by way of facts, opinions and legal submissions that may be relevant to the issue.
Full copies of any reference material cited.
Any photographs showing the situation before, during or after the works.”
On my reading of the instructions, as confirmed by Mr Clarke, Mr Clarke first had to identify the legal boundary and then decide whether the existing physical boundary (i.e. the fence) accorded with it. Plainly it was not a straightforward task to identify the legal boundary, since neither party, even with the help of surveyors and lawyers, had been able to do so to the satisfaction of the other. Indeed, the fundamental reason for the dispute was that the parties had competing views as to the correct legal boundary. In determining the disputed legal boundary, it was expressly envisaged that Mr Clarke would have to examine and interpret legal documents, such as Land Registry title and plans and conveyances, as well as consider “legal submissions”. His instructions were not limited to factual matters or matters of expert opinion. Importantly, his decision was to be final and binding upon the parties, without recourse to the courts. It was neither envisaged nor agreed by the parties that questions of law arising in the course of determining the legal boundary would not be decided by Mr Clarke, but instead have to be referred to a court for determination.
The Appellant’s submission that determination by an expert could not, as a matter of principle, include determination of a disputed question of law was not consistent with the modern law on expert determinations. The law is helpfully summarised in Kendall on Expert Determination 5th Ed., Chapter 11 – Jurisdiction of the Expert:
“Re Davstone
11.5-3
In Re Davstone Estates Ltd’s Leases, Manprop Ltd v O’Dell and Others [1969] 2 Ch. 378, leases provided that the certificate as to the lessor’s expenses issued by the surveyor appointed by the lessor was to be “final and not subject to challenge in any manner whatsoever”. Ungoed-Thomas J held:
that the question of what expenses were within the ambit of the clause was a question of interpretation of the agreement and therefore a question of law, and this question was not a matter for decision by the surveyor; and
that if (contrary to (a) above) the clause purported to confer on the surveyor the power to decide what expenses fell within the ambit of the clause, the clause was void as contrary to public policy, since it purported to oust the jurisdiction of the courts on questions of law.
…
Re Davstone not followed
11.5-4
Ungoed-Thomas J’s decision that a clause conferring on an expert the exclusive power to decide issues of law would be contrary to public policy was not necessary to his decision, as he had held that the clause before him did not confer such a power. But this part of the decision in Re Davstone has not been followed in more recent cases. In Nikko Hotels (UK) Ltd v MEPC Plc [1991] 2 E.G.L.R. 103 Knox J was referred to Re Davstone in support of the proposition that the courts lean against excluding the courts from deciding questions of law. Knox J referred to the opinion of Lord Wright in FR Absalom Ltd v Great Western (London) Garden Village Society Ltd[1993] A.C. 592 at 615, as negativing any suggestion that there is a rule of public policy that prevents parties from agreeing to remit to the exclusive and final jurisdiction of an expert a pure question of law. He referred also to the legislative change in s.3 of the Arbitration Act 1979, allowing parties to agree to exclude the right to appeal from an arbitrator’s award on a question of law, as showing that Parliament no longer considered it improper for citizens to exclude resort to the court in particular circumstances, He went on:
“I do not accept that there should be in today’s climate any [leaning against excluding the court from deciding questions of law]. It seems to me that if there is a leaning to be discerned, it is in favour of allowing the parties to do what they wish and keeping the parties to their agreement, if they make one, that an expert, as opposed to the courts, should decide particular issues. The parties may very well have all sorts of very justifiable reasons for preferring an expert’s decision in such a matter over the decision that might be reached in the courts, and I do not, myself, discern any particular policy of the law as being likely to lead to any different result in that regard.” (at 109)
The judge therefore decided that the question of the interpretation of the words said to have been misconstrued was within the remit of the expert, and his decision was binding on the parties. Knox J’s decision was approved by Chadwick LJ (with whom Sir Brian Neill agreed) in Brown v GIO Insurance Ltd [1998] Lloyd’s Rep. I.R. 201 at 208:
“I am satisfied that there is no rule of public policy which prevents parties from agreeing to submit the final and conclusive decision of a third party some issue which involves questions of construction or of mixed fact and law.”
In West of England Shipowners Mutual Insurance Association (Luxembourg) v Cristal Ltd (The Glacier Bay) [1996] 1 Lloyd’s Rep. 390, at 377 Neill LJ referred to Nikko as showing that expert determination has become established as a “partial exception” to the rule against ouster of the jurisdiction of the court. The opinion of Lord Mustill in the House of Lords in Channel Tunnel Group Ltd v Balfour Beatty Construction also provides strong support for Knox J’s approach that parties should be required to comply with their own agreement. Courts are now expressly required to encourage the parties to use an alternative dispute resolution procedure if the court considers that appropriate (CPR 1.4(2)(e)). The hostility to ousting the jurisdiction of the courts has been referred to as a “dated concept” (Yorkshire Water Services Ltd v Taylor Woodrow Construction Northern Ltd (2002) 90 Con. L.R. 139 per Judge Humphrey Lloyd QC at [18]) and in Inmarsat Ventures Plc v APR Ltd [Lawtel, May 15, 2002] Tomlinson J said this:
“It is clear to me that the parties have entrusted this question [of construction of the contract] to the exclusive competence of the appointed expert, and that this is a bargain which the law permits them to make. Indeed, I am inclined to think that, in these days, this is not simply a bargain which the law permits parties to make but it is one which the law positively encourages them to make.”
It is clear from the above cases and others that a clause empowering an independent third party expert to decide a question of law will not be held to be void as being contrary to public policy….
The jurisdiction of the court cannot be totally excluded
11.5-5
While it is clear that a clause conferring on an expert the exclusive power to decide questions of law is not void, it does follow that, however wide the language of the clause, all decisions by the expert could be unchallengeable on any basis, including decisions outside the expert’s jurisdiction or decisions obtained as a result of fraud or collusion. As the Court of Appeal confirmed in Barclays Bank Plc v Nylon Capital LLP, the court always has power to decide whether the expert has exceeded the ambit of his jurisdiction [2011] 2 Lloyd’s Rep 347, [2011] EWCA Civ 826 at [23]. Thus the principle that the jurisdiction of the court cannot be totally ousted still applies, to the limited extent that the court, despite the apparent width of the wording of an expert determination clause, always retains jurisdiction to decide whether the expert has exceeded his jurisdiction. It would not be necessary to “sever” the clause, in the manner rejected by Ungoed-Thomas J in Re Davstone, as the court can decide as a matter of construction that the only decisions which cannot be challenged are those properly made by the expert within the limits of the expert’s decision-making authority. It is likely that a clause stating that the certificate cannot be set aside even on the ground of fraud or collusion would be ineffective…..”
I was also referred to passages in Kendall, Chapter 14 – Challenging the Decision:
“14.3 GROUNDS FOR CHALLENGE
14.3-1 Where a contract provides for a matter to be decided by an expert, the decision is binding on the parties because that is what they themselves have determined should be the position. It is of course necessary that the expert’s decision should be a decision which is within the expert’s jurisdiction … and which has been made in accordance with the terms of the contract, and the decision will not be binding on the parties if in reaching that decision the expert has departed from his instructions to a material extent. Older cases were decided on the wider basis that the court could interfere in cases where the expert had made a mistake … but this no longer represents the law. …
14.4 EXCEEDING JURISDICTION
14.4-1 The decision of the expert can be challenged if it is a decision which the expert did not have jurisdiction to reach. As explained in Chapter 11, there are different ways in which an expert’s decision may be found to have been outside his decision-making powers:
the expert determination clause may expressly confer on the expert jurisdiction to decide a particular kind of dispute, and the dispute may involve a dispute of a different kind …; and
the court may find that the expert determination clause, properly interpreted implicitly did not confer on the expert jurisdiction to decide some or all of the questions of law which arose, including disputes about the meaning of a term of the contract which is relevant to the matter to be determined … or disputes about the meaning of a term containing a condition precedent to the expert’s being conferred with jurisdiction ….
If the court considers that the expert has reached a wrong decision on a question of law, the court might decide (instead of reaching a decision on the basis of lack of jurisdiction) that the particular expert determination clause implicitly required the expert to reach a correct decision in accordance with relevant legal principles, and that a decision based on incorrect legal principles involved failure to carry out the task which the expert was required to carry out and was, as a result, based on a material departure from instructions ….”
“14.9 OTHER POINTS OF LAW
14.9-1 The approach applicable to questions of interpretation of the agreement also applies to other points of law, unless the agreement provides otherwise. Suppose the expert’s reasons made it clear that the expert reached a decision on the basis of what he considered to be fair, without regard to whether or not the legal position might be different. Where, as is usually the case, the contract is interpreted as requiring the expert to reach a decision which is in accordance with English law, a clear failure to apply English law at all is likely to be considered to be a departure from the expert’s instructions, so that the expert’s decision will be held to be of no effect.”
In the leading case of Jones & Ors v Sherwood Computer Services PLC [1992] 1 WLR 277, the Court of Appeal held that, where parties had agreed to be bound by the report of an expert, the report could not be challenged on the ground that mistakes had been made in its preparation unless it could be shown that the expert had departed from the instructions given to him in a material respect (absent fraud or bad faith).
In my judgment, the Judge correctly directed himself as to the law on expert determinations, holding that neither party could appeal against the award merely on the basis it was mistaken. I share the Judge’s view that, in reality, the Appellant was seeking to challenge the merits of the award, contending that Mr Clarke should have treated the plan attached to the 1965 conveyance as decisive, in preference to the other evidence to the contrary.
In the July 2013 report, Mr Clarke painstakingly analysed the material before him in reaching his conclusions on the correct boundary line, set out at paragraph 4 of my judgment. In the November 2014 joint report, he carried out a full and careful analysis, taking into account the 1965 conveyance, concluding that the revised boundary line was about 160 mm (6 inches) to the west of the boundary line identified in the award. In his ‘Answers to Questions’ dated 5 December 2014, he set out the apparent inconsistencies between, on the one hand, the plan attached to the 1965 conveyance, and on the other hand, all the other evidence - plans, Land Registry titles, the physical site, and evidence as to the use and occupation of the disputed land by owners past and present over the past 50 years. Mr Clarke concluded that the most probable explanation for the conflict was that the plan attached to the 1965 conveyance, which was not drawn to scale, incorrectly marked the boundary line between plots No. 207 and No. 208 (this was not an error in the delineation of the land conveyed, shown by the pink line). In confirmation of his view, when the Respondents recently applied to the Land Registry to register ownership of the disputed land, based on adverse possession, the Land Registry replied in its letter of 22 January 2015 that a claim was neither required nor possible since the disputed land was already included in the registered ownership of No. 8 and there were no changes recorded to the registered plot boundaries. Crucially, Mr Clarke also concluded that, even if the 1965 conveyance correctly showed that plot No. 207 was narrower than the Respondents maintained, there was no evidence (factual or legal) to suggest that the disputed land had ever been added to plot No. 208, now owned by the Appellant. The Appellant did not produce his title deeds to Mr Clarke. So the boundary of No. 10 would not shift, and there would be a strip of no man’s land between the two properties. Whilst I understand that the Appellant disagrees with Mr Clarke’s conclusions, in my view, Mr Clarke’s analysis and exercise of judgment was well within the scope of his instructions, whether his conclusions were right or wrong. Therefore it is not open to challenge.
I was referred to some apt passages about the problems of “sloppy conveyancing” in Joyce v Rigolli [2004] EWCA Civ 79 where Arden LJ said, at [22] & [23]:
“22. In Scarfe v Adams, this court warned conveyancers that, where a property was divided, it was absolutely essential that the transfer or conveyance should describe the property to be conveyed with sufficient particularity and precision so that there was no room for doubt about the boundaries of each. As Cumming-Bruce LJ in that case said:—
“The facts of the present case are really very simple, but I hope that this judgment will be understood by every conveyancing solicitor in the land as giving them warning, loud and clear, that a conveyancing technique which may been effective in the old days to convey large property from one vendor to one purchaser will lead to nothing but trouble, disputes and expensive litigation if applied to the sale to separate purchasers of a single house and its curtilage divided into separate parts. For such purposes it is absolutely essential that each parcel conveyed shall be described in the conveyance or transfer deed with such particularity and precision that there is no room for doubt about the boundaries of each, and for such purposes if a plan is intended to control the description, an Ordnance map on a scale of 1:2500 is worse than useless. The plan or other drawing bound up with the deed must be on such a large scale that it clearly shown with precision where each boundary runs. In my view the parties to this appeal are the victims of sloppy conveyancing for which the professional advisers of vendor and purchasers appear to bear the responsibility. We are not concerned in this appeal with determining or apportioning that responsibility. This court has to try to reduce to order the confusion created by the conveyancers.”
23. In this case, the judge was rightly critical of what he also termed “sloppy conveyancing”. I agree with his comment that this case illustrates the time and trouble which can be caused by sloppy conveyancing. It would have been far more satisfactory to the vendor, Mrs Joyce, if the boundary had been fixed in a proper manner before she sold 6 Chanton Drive to Mr Rigolli's predecessor in title. This case is an object lesson for conveyancers. Boundary disputes are costly in terms of the money, court resources, and the strain they impose on the parties individually and in their relations as neighbours. It is in the interests of consumers of legal services and the public generally that conveyancers should take careful note of the warnings about imprecise boundaries given and now repeated by this court in several cases.”
I turn now to the question whether the Judge made a material error in his assessment of the expert evidence by not appreciating that Mr Powell’s position differed from that of Mr Clarke.
The Judge correctly recorded that, in the joint report, dated November 2014, Messrs Powell and Clarke reviewed the evidence, including the 1965 conveyance, and set out their conclusions on the position of the boundary between No. 8 and No. 10 Stanley Road. Each proposition was set out first by Mr Clarke, and then Mr Powell had the opportunity to agree or disagree with him, adding his own comments where required. It is notable that Mr Powell agreed with Mr Clarke throughout the joint report and in the conclusion, namely, that Mr Clarke’s original award was correct, subject to an adjustment of about 160 mm, or 6 inches. It is clear from the report that this conclusion was reached taking into account the new evidence of the 1965 conveyance, upon which both experts commented.
In paragraph 10.11 of the joint report, Mr Powell also effectively withdrew his earlier criticisms of Mr Clarke’s award, saying:
“10.11 I am satisfied that Mr Clarke has approached the boundary matter with an open mind. As a Chartered Building Surveyor his specialty and background is different to mine as a Chartered Land Surveyor and so we are bound to have differing approaches and even produce differing results. His methodology certainly cannot be described as “perverse and unacceptable”. Mr Clarke has now gone on to examine the recently obtained paper-title documents, as have I, and we agree with the result (having independently plotted the dimensions on different base topographic surveys).”
After publication of the joint report, the Appellant’s solicitor, Mr Perkins, intervened to seek to alter its conclusions in a manner which would advance the Appellant’s contrary case. Mr Powell, who was of course instructed by Mr Perkins and the Appellant, responded to Mr Perkins’ intervention by departing somewhat from the agreed position in the Joint Report, whilst at the same time sending a private email to Mr Clarke (28 November 2014, at 16.57) confirming that he was still in agreement with him.
A later email from Mr Powell to Mr Clarke, dated 6 January 2015, summarised the sequence of events:
“1. Our Joint Report was produced on 17th November 2014. Signed by both of us.
2. On or about 20th November 2014, Mr Perkins contacted me to say that we had not paid enough attention to the “47ft matter” in the Joint Report. I responded by saying that this could either be dealt with by a Joint Addendum or by him presenting us both with written questions. After some back-and-forth with Mr Perkins, a suggested Amendment was prepared and I sent this to you (unsigned) on 21st November 2014 and asked that you add your comments to it. You did not wish to do so and so the document remained unsigned and with no authority.
3. On 26th November I received written questions from Mr Perkins.
4. I answered (and signed) the written questions on 28th November 2014.
5. You answered (and signed) the written questions on 5th December 2014.
…..”
Mr Powell subsequently provided a ‘position statement’ dated 5 March 2015.
The position which Mr Powell adopted, after the joint report was issued and following Mr Perkins’ intervention, was that there were two potential boundary lines: the boundary line agreed in the joint report and the boundary line marked on the plan to the 1965 conveyance. He expressed the view that the difference between the two lines “could only be resolved as a matter of law” by lawyers, not surveyors.
The Judge, at paragraphs 26 to 32 of his judgment, accurately summarised the effect of the joint report and Mr Powell’s subsequent position statement. I do not consider that the Judge misunderstood or overlooked the extent of the agreement and disagreement between the experts, based on the documentary evidence. The Judge expressly noted that Mr Powell’s subsequent position statement referred to the boundary line as set out in the 1965 conveyance and opined that the issues raised were matters of law (paragraphs 29 to 31).
However, the Judge correctly focused on the decision made by Mr Clarke, and whether the award ought properly to be set aside. It is important to bear in mind that Mr Powell was not the appointed joint expert for the purposes of the award, and so even if he disagreed with Mr Clarke as to the boundary line, this would not of itself affect the validity of the award. Moreover, Mr Powell’s opinion on whether surveyors or lawyers ought to determine the correct boundary line was of little value to the Judge, who had to apply established principles of law on the scope of expert determinations by non-lawyers, including surveyors.
For the reasons I have set out above, I have concluded that the Judge’s decision was not “wrong” or “unjust” within the meaning of CPR r.52.11, and therefore the appeal must be dismissed.