A High Court judge has said that it is “no longer enough” for the courts to warn quarrelling neighbours of the costs consequences of litigation, and instead district judges should stay proceedings until they had attempted mediation.
“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,” Mr Justice Norris said.
“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.”
Giving judgment in Bradley v Heslin  EWHC 3267 (Ch) , Norris J began: “Rather to my surprise I find myself trying a case about a pair of gates in Formby.
“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 three 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?”
Norris J said that in 1977 the owner of an Edwardian villa sold off the house and built a bungalow on former paddock land at the back of the garden. The bungalow was later sold but retained ownership of a driveway.
The judge said that “sensible neighbours would have sat round a table” and agreed either a regime for closing the gates to the drive at agreed hours or the installation of remotely-operated gates.
Norris J said the “entrenchment of positions” was a regrettable characteristic of neighbour disputes and mediation was more likely to produce an “outcome satisfactory to both parties”.
He said that in any boundary dispute or dispute over rights of way, where the costs would not be disproportionate, it would be difficult to challenge on appeal any district judge who imposed a stay of two months and directed the parties to “take all reasonable steps” to conduct mediation, directed that the costs of mediation would be borne equally, directed that costs of an unsuccessful mediation should form part of the costs of the action and gave directions for the “further speedy conduct of the case”.
Mr Justice Norris ruled that the gates at issue in the case should usually be kept closed from 11pm until 7.30am until an electronic system, operated from a car, could be installed.