MacNab & Anor v Richardson & Anor

Self-help or abatement for trespass is confined to clear and simple cases, or cases requiring an immediate remedy. A long-standing and factually disputed boundary encroachment does not justify a landowner removing a fence and its posts without invoking the court process. The availability of a court remedy, including an injunction, depends on the facts and does not make unilateral action lawful. Even where a structure may have marginally encroached, the proper course is ordinarily to seek adjudication, particularly where the parties have an extensive history of boundary litigation.

The parties owned adjoining residential properties and had previously litigated the position of their rear boundary. Orders made in 2001 and 2002 identified the boundary by reference to the south face of an existing fence. In later proceedings, the county court found that the fence had moved only marginally through settlement, while its concrete foundations admittedly encroached by about six inches. The Richardsons nevertheless removed part of the fence and its posts while the Macnabs were away.

The county court awarded the Macnabs approximately £910 damages, awarded the Richardsons nominal damages on their counterclaim, and made a costs order against the Richardsons. Permission to appeal was limited to an alleged inconsistency between the finding of marginal movement and the conclusion that the fence remained on the declared boundary. The central issues were whether any marginal encroachment justified self-help and whether the county court’s conclusion should stand.

1. Appeal dismissed. The Court of Appeal held that the permitted ground could not be used to reopen the county court’s factual findings. The only relevant finding was of movement that was marginal and minimal, and the admitted encroachment of the concrete foundations justified only the nominal damages awarded on the counterclaim.
2. The court accepted that the slightest encroachment on another’s land is a trespass, citing Ellis v Loftus Iron Company (1874) LR 10 CP 10. Even assuming that marginal movement caused some encroachment, that did not determine whether the Richardsons were entitled to remove the fence.
3. Applying Burton v Winters [1993] 1 WLR 1077, self-redress is a summary remedy confined to clear and simple cases or emergencies requiring an immediate remedy. This was neither. The alleged problem had existed for nearly two years, involved disputed facts and expert evidence, and arose against a substantial history of litigation. The Richardsons had been warned against unilateral action and should have sought the assistance of the court.
4. The court did not decide whether the fact that only part of a structure encroached affected the availability of self-help. That issue was unnecessary to the result. Nor did the judgment foreclose a possible remedy, including an injunction, if future proceedings were brought on facts warranting it.
5. Even if the county court’s paragraph 122 contained an internal tension, its conclusion that there was no justification for the January 2006 removal, and its award of damages, were correct. Lord Justice Moses and Lord Justice Pill agreed with Lord Justice Lloyd.

• Court of Appeal (Civil Division): [2008] EWCA Civ 1631. Permission to appeal was granted on one limited ground after renewal. The appeal was dismissed.
• Southampton County Court: Mrs Recorder Roberts gave judgment on 28 September 2007 after trial on 8 and 9 August 2007. The Macnabs received approximately £910 damages; the Richardsons received nominal damages of £1 on their counterclaim, and were ordered to pay half of the Macnabs’ costs with £12,500 on account.