Beldam LJ, Otton LJ, Mantell LJ
Boundary dispute – Parties agreeing to consent order embodying two plans – Order calling for execution of deed and providing for further determination by court if contents not agreed – Order subsequently shown to be ambiguous – Judge ruling in favour of plaintiff after receiving further evidence – Whether such evidence rightly received – Defendant’s appeal dismissed
On May 3 1994 the parties consented to the making of a county court order designed to settle a dispute over the precise location of the irregular 250-yard boundary running east to west between their fields at Hunston, near Chichester. The order declared that the true boundary ran along the line of a ditch between two points shown on plans 1 and 2, “which line is located on the ground in accordance with the offset measurements [taken from a datum line] appearing on plan 2”. The order went on to require the parties to enter into a deed (with plan) to be prepared by the plaintiff’s solicitors and approved by the defendant. Failing such approval, either party could apply to the court to determine the terms of the deed. On February 1 1995 the court directed that the order be amended so as to identify certain points on the plans by reference to specific trees. At a further hearing on August 15 1997, the defendant, who owned the fields to the south, argued that the effect of the amendment was to move the agreed boundary several feet to the north of the line contended for by the plaintiff. At that hearing, the judge became aware for the first time of a significant discrepancy between plan 1 and the measurements shown on plan 2. Having received evidence to resolve the resulting ambiguity in the order, the judge decided in the plaintiff’s favour. The defendant appealed, contending that the judge’s sole task was to construe the amended order as it stood and that, accordingly, the additional evidence should not have been received.
Held The appeal was dismissed.
Boundary dispute – Parties agreeing to consent order embodying two plans – Order calling for execution of deed and providing for further determination by court if contents not agreed – Order subsequently shown to be ambiguous – Judge ruling in favour of plaintiff after receiving further evidence – Whether such evidence rightly received – Defendant’s appeal dismissed On May 3 1994 the parties consented to the making of a county court order designed to settle a dispute over the precise location of the irregular 250-yard boundary running east to west between their fields at Hunston, near Chichester. The order declared that the true boundary ran along the line of a ditch between two points shown on plans 1 and 2, “which line is located on the ground in accordance with the offset measurements [taken from a datum line] appearing on plan 2”. The order went on to require the parties to enter into a deed (with plan) to be prepared by the plaintiff’s solicitors and approved by the defendant. Failing such approval, either party could apply to the court to determine the terms of the deed. On February 1 1995 the court directed that the order be amended so as to identify certain points on the plans by reference to specific trees. At a further hearing on August 15 1997, the defendant, who owned the fields to the south, argued that the effect of the amendment was to move the agreed boundary several feet to the north of the line contended for by the plaintiff. At that hearing, the judge became aware for the first time of a significant discrepancy between plan 1 and the measurements shown on plan 2. Having received evidence to resolve the resulting ambiguity in the order, the judge decided in the plaintiff’s favour. The defendant appealed, contending that the judge’s sole task was to construe the amended order as it stood and that, accordingly, the additional evidence should not have been received.
Held The appeal was dismissed.
1. It was plain from the documents and plans before the court that the order was ambiguous and had indeed been rendered even more ambiguous as a result of the 1995 amendments. Since it was impossible to resolve that ambiguity without hearing further evidence, the judge had undoubtedly taken the right course of action.
2. Though the plaintiff had not taken the point, it was very doubtful whether the defendant had, in any event, a right of appeal against the ruling made in 1997, as the judge was no longer deciding issues in the original action, but was rather acting, with the consent of the parties, as an arbiter: see Burgess v Morton [1896] AC 136, HL.
Peter Arden (instructed by Blake Lapthorn, of Fareham) appeared for the plaintiff; Charles Taylor (instructed by Arnold Cooper & Tompkins, of Chichester) appeared for the defendant.
Alan Cooklin, barrister
