Howe v Hawkes

In a boundary dispute, the paper title is not displaced by trivial or equivocal conduct between neighbours. Boundary presumptions are rebuttable, but must be assessed against reliable evidence, including measurements and acts of ownership. Informal conduct may establish a boundary agreement, yet permission to build or plant up to a boundary does not necessarily alter ownership, particularly where it is accompanied by an express reservation of title.

A specific defence of adverse possession requires findings comparing the alleged encroachment with the former structure and addressing both factual possession and the intention to possess. A damages award cannot exceed the properly pleaded and particularised claim. Where reopening the assessment would be unfair and disproportionate, the court may refuse a retrial and substitute nominal damages.

The respondent, Mr Hawkes, succeeded before Mr Recorder Hurst QC in a trespass claim concerning a narrow strip between adjoining garages. The Recorder found that the appellant, Mr Howe, had encroached by approximately 2½ inches, rejected an alleged boundary agreement, and awarded £2,904.75, including £904.75 for damage to foundations and £2,000 in general damages.

On appeal, Mr Howe challenged the boundary finding, alleged an informal boundary agreement, relied on adverse possession under the Limitation Act 1980, and disputed the general damages award. The central issues were whether the evidence established the true boundary or an agreed alteration, whether the Recorder had made sufficient findings on adverse possession, and whether the damages award was supported by the pleadings and evidence.

1. Boundary. The appeal was dismissed on the location of the boundary. The Recorder was entitled to find that it ran from the midpoint of the brick pillar and along the relevant line between the properties. The taper shown by one boundary could not safely be used without evidence about the corresponding boundary. The presumption concerning the ownership of a wooden fence was rebuttable, but the evidence relied on concerning neighbouring fences was insufficient by itself. The accepted measurements, the position of the fence and posts, and the historical arrangement supported the conclusion that the fence belonged to Mr Hawkes.
2. Boundary agreement. The appeal was dismissed on this issue. Informal conduct can establish a boundary agreement if, on the balance of probabilities, the parties’ conduct shows such an agreement, as explained in Stevenson v Johnson and Neilson v Poole. However, planting up to a fence, permitting a flowerbed, or allowing a façade to abut a garage was too trivial or equivocal. The permission concerning the façade was, at most, a limited licence and expressly preserved ownership.
3. Adverse possession. The appeal was allowed because the Recorder had failed to make necessary findings. The court had to compare the position of the new garage with the former garage and determine whether the earlier occupation for 12 years or more established factual possession accompanied by the necessary intention to possess. The issue was factual and was remitted for further consideration.
4. Damages. The appeal was allowed on the general damages award. The re-amended particulars identified £904.75 for reinstating the foundations and otherwise relied on trespass being actionable without proof of loss. They did not give notice of a claim for substantial general damages. The £2,000 award had no evidential basis and could not stand. A retrial was refused under the overriding objective in Part 1 of the Civil Procedure Rules 1998, because it would be unfair and disproportionate. The award was reduced to £906.75, comprising £904.75 and £2 nominal damages, subject to the outcome of the adverse possession issue.

• Court of Appeal (Civil Division): the appeal from the judgment of Mr Recorder Hurst QC in the Central London County Court was allowed on adverse possession and the general damages award, remitting adverse possession for further consideration and reducing damages to £906.75; the appeals concerning the boundary and alleged boundary agreement were dismissed.