20 January 2015Print This Post

MoJ rejects compulsory mediation or expert determination for boundary disputes

boundary fence

Boundary disputes often “unduly bitter” and expensive

The Ministry of Justice (MoJ) has rejected compulsory mediation or use of experts as a way of keeping “unduly bitter, expensive and time-consuming” boundary disputes away from the courts.

In a scoping study published last week, the MoJ recommended no “radical change” to the current system for determining disputes.

The MoJ said the study was prompted partly by proposals by Conservative MP Charlie Elphicke for the introduction of a compulsory expert determination process similar to the Party Wall Act 1996.

The MoJ argued that if this kind of procedure was compulsory and there were still a “significant number of appeals” to the courts, then “this would simply have the effect of adding an extra layer to the proceedings which would add to the costs rather than reducing them”.

It went on: “In addition, the early appointment of experts may itself frontload costs in cases that might have resolved in other ways.

“A single mandatory procedure for such a varied set of problems may be unduly restrictive as it would be an attempt to impose a single solution on a disparate problem.”

On mediation, the study said “litigation is certain but relatively expensive, whilst mediation is cheaper but relies on a degree of co-operation that is not always present and may depend for its success on the existence of legal proceedings.”

The study proposed only that use of expert determination and mediation should be more widely publicised.

The ministry argued that the reasons why boundaries are disputed “may lie as much in the personalities of the neighbours as their legal history and the law”.

It said boundary disputes could be divided into legal and technical disputes about the position of a boundary and “personal disputes between neighbours, where the boundary dispute may just be a pretext for conflict or only one of a number of areas of disagreement”.

It was “perhaps small comfort”, officials argued, “that the vast majority of boundaries – of which there must be many millions or even billions – are not disputed”.

The MoJ concluded: “We are not persuaded that there is anything significantly wrong with the present general law relating to boundaries or that there is anything to be gained by unsettling boundaries that already exist by changing the law in relation to them.

“We will however discuss this with the Land Registry and consider whether there are ways in which information about ways to settle boundary disputes can be made available more generally and at times when it is needed”.

The ministry said boundary disputes were “not alone in being considered expensive” and the government was “taking action to bear down on the cost of litigation generally” which would help reduce the cost of boundary disputes.

“We consider that the piecemeal improvement of the current system without impinging on its flexibility is likely to be a better approach to making boundary disputes easier and less expensive to resolve than adopting an untried and radical solution.”

Giving judgment in a boundary dispute earlier this month, judges in the Court of Appeal attacked the “absurd waste of effort, time and cost” involved in what they described as a “Dickensian” case.

By Nick Hilborne

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