In Davis & Anor v Winner [2021] EW Misc 23 (CC) the parties between them appear to have spent over £200,000 in costs. This is a dispute over inches of land. It is not surprising that HHJ Mithani QC expressed considerable concern about the costs involved. The claimants brought an action for trespass and failed to prove their case. This could be an expensive mistake.
“it is quite beyond my comprehension to see how an encroachment such as this would warrant the substantial costs which I was informed by both counsel had been incurred by the parties, who, at one stage, were very good friends to litigate this dispute. The Claimants’ costs alone are estimated at £90,000 plus VAT. I do not think the Defendant’s costs will be substantially less.”
THE CASE
The parties were neighbours. The claimant brought an action claiming that the defendant had built fences that encroached onto their property.
THE JUDGE’S CONCERN ABOUT THE COSTS
The particulars specified in paragraph 9 of the Particulars of Claim sets out the extent of the encroachment which the Claimants allege has taken place into their property:
(a) an encroachment of 9 inches to the northern and front western boundaries of No.132; and
(b) an encroachment of 8 inches to the rear western boundary of No.132.
5 To the outside observer, the extent of the alleged encroachment – in terms of monetary value – is not substantial. I well appreciate that the parties may not view it as such. Nonetheless, it is quite beyond my comprehension to see how an encroachment such as this would warrant the substantial costs which I was informed by both counsel had been incurred by the parties, who, at one stage, were very good friends to litigate this dispute. The Claimants’ costs alone are estimated at £90,000 plus VAT. I do not think the Defendant’s costs will be substantially less.
6 The Claim was originally allocated to the fast track. However, it was re-allocated to the multi-track. Cost budgets were dispensed with, though I know not why. If the parties had thought about what little (in terms of the value of the claim) was in dispute, and had thought about furthering the overriding objective, as they should have done, they would have sought to have the Claim initially allocated, or subsequently re-allocated, to the small claims track. It is difficult to see how the value of the Claim, in monetary terms at any rate, could conceivably exceed the small claims monetary limit, even if one took into account the additional claims by made the Claimants, specified at para. 7, below [1]. In my judgment, the Claim did not need to be allocated to the fast-track, let alone being subsequently re-allocated to the multi-track. The relief sought by the Claimants could just as easily have been obtained by them (if they were successful) if the claim had proceeded in the small claims track. I do not criticise the District Judge for re-allocating the Claim to the multi-track. Where both parties invite the District Judge to do so – and substantial or significant expense has already been incurred – it is very difficult for the District Judge to allocate, or reallocate, it to another track of his or her own initiative.
THE CLAIMANTS’ FAILURE TO PROVE THEIR CASE
The judge went on to fine that the claimants had not established that there was an encroachment. Further he found that a “boundary agreement had been entered into which would have prevented the claimants succeeding in any event. A small claim in nuisance (throwing rubbish onto the property) succeeded.
(C) Has there been an encroachment?
74 On the basis of what I have said above, I cannot be satisfied, it being the Claimants’ burden to prove encroachment, that there has been an encroachment.
75 On that basis, the Claim must be dismissed, and it is not necessary for me to deal with any of the other issues which arise in relation to the Primary Claim. However, I do so in the event that the Claimants decide to take the matter further.
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