Cameron v Boggiano & Anor

A defining conveyance plan remains central to the construction of a transfer. If it clearly identifies the boundary, physical features on the ground cannot displace it. If, however, the plan is insufficiently clear to enable a reasonable layman to identify the boundary, the court may use the contemporaneous topography to elucidate the plan without contradicting or replacing it.

Rectification for common mistake requires a continuing objectively ascertained common intention, an outward expression of accord, and proof that the document failed to record that intention. An ancillary transaction plan may provide the necessary outward expression even though it is not the defining conveyance plan.

The claimant bought No 7 Choumert Mews and an adjoining courtyard from a common vendor in 2001. The respondents later bought the neighbouring No 60 Choumert Road from that vendor. They disputed ownership of a gravel strip, a projecting brick column, and steps beside No 60.

The Central London County Court held that the 2001 contract, transfer and defining plan placed the boundary at No 60’s rear wall. It nevertheless ordered rectification of those documents on the ground of common mistake, so that the boundary followed a drain about four feet from the wall. The claimant appealed against rectification, while the respondents cross-appealed on construction. The central issues were whether the plan was sufficiently clear to exclude topographical evidence and whether an ancillary services plan evidenced an outward expression of accord for rectification.

1. The respondents’ cross-appeal was allowed and the claimant’s appeal was dismissed. Mummery LJ held, with whom Rimer LJ and McFarlane LJ agreed, that the 2001 plan was too deficient in scale, detail, colouring and precision to establish the exact boundary without assistance.

2. A plan which defines the land conveyed cannot be ignored in favour of the appearance of the site. If clear, it controls despite an apparent mismatch with physical features. That was the lesson of [2011] EWCA Civ 1612 and [2003] EWCA Civ 1883. But where a reasonable layman, taking the plan to the land, cannot identify the intended boundary from the plan alone, the court may use the contemporaneous topography to elucidate the plan. It does not thereby substitute the ground features for the contractual document.

3. Applied to this plan, the clear physical features showed that the sensible intended boundary was the line of the drain, not the rear flank wall of No 60. The 2001 transfer therefore did not include the gravel strip, column, platform or steps. Rimer LJ separately agreed that the contrary construction produced an apparently absurd result and that the drain was the obvious intended line.

4. Although unnecessary to determine title after allowing the cross-appeal, the court upheld the rectification ruling. Under the common-mistake principles stated in [2002] EWCA Civ 560, the evidence established a continuing common intention that the sale stopped at the drain, sufficient outward expression of accord, and a failure of the documents to record that intention. Plan C, though prepared to show conducting media and not as the defining plan, objectively expressed and was sufficient evidence of that accord. The claimant’s appeal against rectification was therefore dismissed.

• Court of Appeal (Civil Division) — in [2012] EWCA Civ 157, allowed the respondents’ cross-appeal on construction and dismissed the claimant’s appeal on rectification.
• Central London County Court — HHJ Hazel Marshall QC held that the defining plan placed the boundary at the rear wall of No 60, but ordered rectification of the 2001 contract, transfer and plan so that the boundary followed the drain.