SOME THINGS MAY BE BETTER MEDIATED THAN LITIGATED: NEIGHBOUR DISPUTES FOR INSTANCE
There are some very important observations in the judgment of Norris J in the case of Bradley -v- Heslin  EWHC 3276 (Ch) today. This was given in a neighbour dispute over access and gates which could have been remedied by the installation of electronically controlled gates costing around £5,000. Here are extracts from the judgment. The particular points to look at are the recommended draft directions in neighbour and right of way disputes.
- Rather to my surprise I find myself trying a case about a pair of gates in Formby: surprise on at least two counts. First, that anyone should pursue a neighbour dispute to trial, where even the victor is not a winner (given the blight which a contested case casts over the future of neighbourly relations and upon the price achievable in any future sale of the property). Second, that the case should have been pursued in the High Court over 3 days. It is not that such cases are somehow beneath the consideration of the Court. They often raise points of novelty and difficulty and are undoubtedly important to the parties and ultimately legal rights (if insisted upon) must be determined. But at what financial and community cost?
- Sensible neighbours would have sat round a table and worked out either a regime for closing the gates at agreed hours (the one party suffering a diminution in security and the other an increase in inconvenience) or the installation of remotely operated electric gates (which might have cost £5000). There were some desultory attempts at exploring the possibility of electric gates, but (when they came to nothing) in August 2012 Mr Heslin simply padlocked the northern gate open and refused to allow the Bradleys to shut it: and in July 2013 the Bradleys commenced proceedings for declarations as to their right to use the gates and for an injunction requiring the Heslins to remove the padlock and restraining them from interfering with it. The Bradleys say that the southern pillar at the driveway entrance is built on land forming part of No.40, and they base their claimed legal rights to ownership of the northernmost pillar and gates and to close the gates upon proprietary estoppel (or alternatively upon adverse possession as to the pillar and upon prescription or “lost modern grant” as to the right to close the gates). In their Defence the Heslins deny that the Bradleys have any right to close the gates at all (asserting that the gates are purely ornamental), assert that the gates have never been closed on any regular basis and were never closed until July 2012, and claim that both of the pillars that flank the driveway belong to No.40A (as does the gate itself), though there is no counterclaim for relief.
- This entrenchment of positions is a regrettable characteristic of neighbour disputes. I add my voice to that of many other judges who urge that, even when proceedings have been issued to preserve the position, the engagement of a trained mediator is more likely to lead to an outcome satisfactory to both parties (in terms of speed, cost, resolution and future relationships) than the pursuit of litigation to trial. In Oliver v Symons  EWCA Civ 267 (a disputed easement case) Ward LJ said at :-
“I wish particularly to associate myself with Elias LJ’s pointing out that this is a case crying out for mediation. All disputes between neighbours arouse deep passions and entrenched positions are taken as the parties stand upon their rights seemingly blissfully unaware or unconcerned that that they are committing themselves to unremitting litigation which will leave them bruised by the experience and very much the poorer, win or lose. It depresses me that solicitors cannot at the very first interview persuade their clients to put their faith in the hands of an experienced mediator, a dispassionate third party, to guide them to a fair and sensible compromise of an unseemly battle which will otherwise blight their lives for months and months to come.”
SUGGESTED DIRECTIONS IN BOUNDARY AND RIGHT OF WAY DISPUTES
- Perhaps in times of scarce resources and limited (and in any event expensive) representation it is time to give those who know the worth of mediation in this context (both to the parties and to all Court users) some help. If in any boundary dispute or dispute over a right of way, where the dispute could not be disposed of by some more obvious form of ADR (such as negotiation or expert determination) and where the costs of the exercise would not be disproportionate having regard to the budgeted costs of the litigation, any District Judge (a) imposed a 2 month stay for mediation and directed that the parties must take all reasonable steps to conduct that mediation (whatever the parties might say about their willingness to engage in the process) (b) directed that the fees and costs of any successful mediation should be borne equally (c) directed that the fees and costs of any unsuccessful mediation should form part of the costs of the action (and gave that content by making an “Ungley Order”) and (d) gave directions for the speedy further conduct of the case only from the expiration of that period, for my own part (recognising that certainly others may differ) I think that such a case management decision would be difficult to challenge on appeal.
- I think it is no longer enough to leave the parties the opportunity to mediate and to warn of costs consequences if the opportunity is not taken. In boundary and neighbour disputes the opportunities are not being taken and the warnings are not being heeded, and those embroiled in them need saving from themselves. The Court cannot oblige truly unwilling parties to submit their disputes to mediation: but I do not see why, in the notorious case of boundary and neighbour disputes, directing the parties to take (over a short defined period) all reasonable steps to resolve the dispute by mediation before preparing for a trial should be regarded as an unacceptable obstruction on the right of access to justice.
- But mediation is not always successful: and this case has gone to trial. I do not by so stating intend any criticism of the case managing judges or the legal representatives. The confidentiality attending the mediation process means the trial judge can know nothing of what has gone on.
ASSESSMENT OF WITNESSES
It is worthwhile taking a quick look at the manner in which the judge assessed the witness evidence.
- t. The evidence on these matters was given (for the most part) by family, friends or employees or each of the contending parties. I had no doubt that each of these witnesses intended their evidence to be honest, and none came consciously to lie or to deceive. But from the judge’s point of view, all such evidence runs the risk (a) that considerations of loyalty lead to selective recollection and emphasis and (b) that the close connections between the witnesses means that matters are inevitably the subject of discussion in which a “collective memory” unconsciously emerges and truly independent properly nuanced evidence becomes difficult to discern. Some of the evidence (particularly that of Mrs Rosemary Bradley and of Dr Laura Bradley) had obviously been the subject of extensive consideration, self-review and analysis with a view to enhancing its credibility: but the resulting apparent precision was no more persuasive than the more raw-edged and generalised recollection of others who gave evidence about the state of a pair of gates over a 30 year period as remembered by busy people to whom they were of no immediate significance.
- By some way the most impressive witness was Margaret Cairney, who lives at 42 Freshfield Road and is the local “Homewatch” co-ordinator. She gave careful evidence supported by records as to her visits to and observations of No.40 and No.40A as a result of her being asked to keep an eye on the properties when the Bradleys and the Heslins were away. I accept her evidence.
Well either no party (or both parties) won. The issue was whether the gates could be kept open or locked.
- Mr Heslin was accordingly not entitled to padlock the northern gate open. But the Bradleys are not entitled to a declaration that they are entitled to an easement permitting the opening and closing of the gates at all times and for all purposes; but only a declaration of the right indicated.
- The law expects neighbours to behave reasonably toward one another and that the rights they have over each other’s lands will be reasonably exercised and reasonably allowed. The Court cannot write a rulebook for what may or may not be done in every eventuality. What is substantial interference with the user of the driveway has to be determined by what may be inferred about the mutual understanding of Mr Thompson and Mr Ewing at the time the arrangement was made (as to which subsequent user during the time of the Thompson and Field ownerships may throw some light). It cannot be determined by the personal need of the Bradleys for security or the personal need of the Heslins to use the driveway at 1.00am.
- But it would be unhelpful simply to leave the parties with their rights declared without indicating how they might be applied on the ground in daily life. If it helps, it is my view that until such time as adequate opening arrangements are put in place it would not be a substantial interference with the rights of the owners of No.40A if the gates were closed from 11.00pm until 7.30am, were closed whilst they were staying away from No.40A, were closed on a few additional days when there was a heightened risk of intrusion from revellers, and were closed when there was a particular need to keep someone or something within No. 40 and away from Freshfield Road. By “adequate opening arrangements” I mean an electric system that can be operated from within the car or from within No.40A such that the gate can be opened as a car approaches it and without the driver having to get out.
HOW MUCH DID IT ALL COSTS TO GET A ROTA FOR GATE OPENING AND CLOSING?
That will be interesting to find out. After it this was an open and shut case.