Call to prioritise ADR in boundary disputes

boundary fence

Boundary disputes: Party Wall Act procedure not right

Neighbours involved in boundary disputes should be steered towards alternative dispute resolution (ADR), and cases that reach court must be closely controlled, the Civil Justice Council (CJC) has said.

Court powers should include compulsorily staying proceedings to enable the parties to attempt ADR, a working party has recommended.

The CJC was tasked by the Ministry of Justice (MoJ) in 2016 with putting forward recommendations on how to improve the resolution of boundary disputes.

This followed an MoJ scoping study which revealed concerns among MPs and “a widespread acknowledgment that such disputes were often bitter, expensive and time consuming”.

However, the study rejected compulsory mediation or use of experts as a way of keeping boundary disputes away from the courts, recommending no “radical change” to the current system.

The CJC review acknowledged that, given the parties were likely to remain neighbours after any litigation, and probably on worse terms than previously, “it followed that the most appropriate way of dealing with disputes of this nature was to try to avoid litigation altogether or, if it could not be avoided, then to ensure that the case was prepared at proportionate cost with both parties exchanging all relevant documentation at an early stage”.

The working party was chaired by CJC member District Judge William Jackson and comprised representatives of interested parties such as mediators, the Property Litigation Association, the Property Tribunal and the Royal Institute of Chartered Surveyors (RICS).

It has made five recommendations, including publicising a guide for potential litigants in boundary disputes that encourages them to use alternative forms of dispute resolution – such as the RICS Neighbour Disputes Service – “yet at the same time emphasising the benefit to be gained from solid advice from lawyers and/or contact with an expert approved by RICS”.

It decided against the oft-floated idea of a system akin to the Party Wall Act procedure. This involves each building owner appointing their own surveyor – or a joint surveyor – to settle the dispute in line with the Act; if either owner disagrees with the outcome, they can appeal to the county court.

“Boundary disputes throw up the potential for too many other issues whether legal or social to enable the matter to be determined in a similar manner to the Party Wall Act,” the working party concluded.

“There were often issues involving adverse possession, prescriptive rights, rights to light and rights of way, and a delineation of a boundary per se would not resolve those issues.

“Secondly the proposal was predicated on the basis that both parties would instruct expert surveyors and in the event of a dispute between them a third expert would be required. The level of expenditure would therefore be appreciable.”

The working party said the “somewhat underused” adjudication process enabled by the Land Registry division of the First-tier Tribunal (Property Chamber) should instead by promoted more extensively.

“This scheme has the benefit of its free mediation service and a level of expertise from a tribunal judge experienced in this area of the law,” it said.

If legal proceedings nonetheless take place, the working party recommended that the powers available to judges for effective case management “should be considered and must be used”.

It continued: “These would include compulsorily staying the proceedings to enable the parties to attempt ADR, working on the premise that a jointly instructed surveyor should be the default option, requiring the parties to attend the initial costs and case management conference for the purposes of negotiation and limiting the parties’ ability to recover more than fixed costs on the basis that these types of cases would be suitable for the intermediate track envisaged by Lord Justice Jackson in his most recent report.”

The final recommendation was that “overall the documentation available to both professionals, the voluntary advice sector and potential litigants must stress the need to produce a cost-effective solution and regard legal proceedings as a last resort”.

The committee also said that any pre-action protocols that emerge for boundary disputes, “whether sanctioned by the Civil Procedure Rule Committee or otherwise”, would have to be light touch and easy for individuals acting in person to operate.

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