Kupfer & Anor v Dunne

An exact boundary between neighbouring residential properties is determined by the whole evidential picture, not simply by an old conveyance plan or an assumption that the original line remained straight. Long-standing fences, walls and other physical landmarks may be decisive, although alterations over time can affect the boundary once the relevant limitation period has expired. Credibility findings do not by themselves establish a boundary; photographs, plans and physical evidence must also be analysed. For loss allegedly caused by an injunction, the but-for test applies, but damages require a sufficiently effective causal link after considering other factors. A wrongly made order may justify limited recompense for proved expenditure. Costs may be apportioned by issue and responsibility.

The appellants owned No. 8 and the respondent owned the neighbouring No. 6. The parties disputed the boundary, particularly the position of a concrete fence post and the line of a replacement fence. The Willesden County Court declared the boundary, ordered removal of fencing and posts, and awarded the respondent £20,625 in damages. The Court of Appeal considered whether the judge had properly evaluated the physical and documentary evidence, and whether the injunction and boundary dispute caused the claimed loss.

1. Appeal and boundary. The appeal was allowed in part. The trial judge’s boundary declaration and mandatory injunction requiring removal of concrete posts and fencing could not stand. The declaration that the three brick piers were on the respondent’s land was upheld.
2. Evidence required. A boundary cannot be determined solely from approximate dimensions in an old conveyance or from an assumption that the original boundary was a straight line. Following Alan Wibberley Building Limited v Insley [1998] 1 WLR 893, the court must assess topographical and other evidence. This includes the history and alignment of fences, walls and other physical features. A trial judge’s credibility findings do not by themselves determine the boundary; the photographs, plans and physical implications of those findings must also be analysed.
3. Application. The 1980 fence was accepted as having marked the boundary. The concrete posts west of Datum B were positioned on its continuation. Between Datum B and the gatepost, the boundary ran parallel to the extension at a distance of 165mm. From the southern face of the gatepost to Datum A, it ran in a straight line. The relevant physical evidence could not be displaced merely by adverse credibility findings or surveyors’ opinions.
4. Causation and recompense. The £20,625 damages order was reversed. The but-for test applied, but the court had to analyse all relevant circumstances and competing causes. The injunction concerning the brick piers was not an effective cause of the respondent’s failure to build the extension. No damages were awarded for that loss. The court had jurisdiction to recompense the appellants for expenditure incurred pursuant to the wrongly made order, limited to proved expenditure and capped at £500.
5. Costs. The court made global, issue-sensitive costs orders. The appellants were awarded 30 per cent of their costs below and 60 per cent of their costs in the Court of Appeal.

• Court of Appeal (Civil Division) — allowed the appeal in part: [2003] EWCA Civ 1549. The boundary declaration, removal injunction and damages award were set aside or varied; the declaration concerning the brick piers was upheld.
• Willesden County Court — His Honour Judge Peter Latham, on 6 and 13 February 2003, determined the boundary, ordered removal of fencing and posts, awarded £20,625 damages plus interest, and ordered costs. Permission to appeal was refused but later granted by Peter Gibson LJ on the papers.