Costelloe v Mortimer-Moore

Permission to appeal in a boundary dispute should be refused where the trial judge’s factual findings are supported by the evidence and disclose no arguable error of law. Measurements in title documents may provide no assistance where the properties never formed part of a common title, the measurements are approximate, and their points of reference are uncertain. A judge may rely on admissible factual and expert evidence to identify the boundary, notwithstanding that a jointly instructed expert exceeded the limits of his brief, where sufficient independent evidence supports the result. Acquiescence may found estoppel where reliance on the apparent acquiescence has caused detriment, including substantial expenditure and the consequential litigation burden.

The claimant owned No.79 Montpelier Terrace and the defendant owned adjoining No.81. After the claimant’s father constructed a new plinth wall and railings near the disputed boundary, the defendant alleged that the wall encroached on her property. The claimant sought declarations as to the boundary and relied alternatively on estoppel or acquiescence.

The Gloucester County Court held that the plinth wall lay wholly within No.79 and that the defendant was estopped from complaining. The drawn order, however, inaccurately placed the boundary along the eastern face of an adjacent brick wall. The defendant applied for permission to appeal, challenging the treatment of expert evidence, title measurements and estoppel.

1. Application dismissed. Permission to appeal was refused. The order was directed to be corrected so that, from the buttress northwards, the boundary ran along the eastern side of the new plinth wall, consistently with the trial judge’s judgment. Costs were summarily assessed at £5,000 including VAT.
2. The trial judge was entitled to refuse permission for the defendant to call additional expert witnesses. The District Judge had directed that there should be a single jointly instructed expert on issues of measurement, and there was no basis for challenging the trial judge’s decision not to disturb that direction. The judge was aware of his discretion concerning the admission of expert evidence.
3. The jointly instructed expert exceeded his brief by expressing an opinion on the true boundary. That error did not undermine the decision. The trial judge had substantial independent evidence, particularly the position of the support stone and the evidence of Mr Coates. Having found that the eastern face of the support stone formed part of the boundary, and that the buttress, support stone and plinth wall were aligned, the conclusion that the relevant part of the arch pier belonged to No.79 followed almost inevitably.
4. Measurements in the title documents were properly treated as unhelpful. The properties had never formed part of a common title, the measurements were expressed as approximate, and it was impossible to identify precisely from where they had been taken. Their degree of accuracy was therefore immaterial.
5. The challenge to estoppel or acquiescence was unarguable. The trial judge’s factual findings were unchallengeable, including that the defendant could see exactly where the plinth wall was being constructed. Detriment could be established by the claimant’s reliance on that apparent acquiescence, having regard to the expenditure and the substantial time and resources consumed by the boundary dispute if the boundary were ultimately found to lie elsewhere.

1. Gloucester County Court: Mr Recorder Belben found that the new plinth wall was wholly within No.79 and that the defendant was estopped from complaining. The order subsequently drawn did not accurately reflect those conclusions.
2. Court of Appeal (Civil Division): In [2001] EWCA Civ 1213, the application for permission to appeal was dismissed with costs, subject to correction of the order to reflect the trial judgment.