Ely & Anor v Simmons & Anor

A boundary agreement requires a concluded agreement on the boundaries themselves, including precise measurements where small differences are significant. An exchange expressing willingness to agree, identifying mechanisms for clarification, offering a plan as a starting point, or leaving land transfer, costs and responsibilities unresolved is an agreement to agree, not a binding boundary agreement. The correspondence must be assessed as a whole and in context. Subsequent negotiations may demonstrate that the parties had not reached a concluded agreement.

The appellants, who were defendants below, appealed against declarations made by Plymouth County Court concerning the boundaries between their property and that of the respondents. Permission to appeal was granted on the question whether the parties had entered into a boundary agreement. The appellants relied principally on email exchanges dated 2 March 2006, alternatively arguing that an agreement had already been reached before that date. The central issue was whether the correspondence established a concluded and binding boundary agreement.

The appeal was dismissed. The Court of Appeal upheld the finding that no boundary agreement had been reached.

1. The alternative submission that an agreement had been concluded before 2 March 2006 was rejected. It had not been the case advanced below, there was no supporting evidence, and it conflicted with the appellant’s own pleaded case, grounds of appeal and witness statement.
2. The emails of 2 March 2006 did not amount to a binding boundary agreement. They showed an agreement that it would be sensible to agree the boundaries, but left unresolved the mechanisms for clarification, a possible partial transfer, legal expenses and payment for the land. The plan was offered only as a starting point.
3. The distinction between agreeing the boundaries and later recording their precise measurements was unsustainable in the circumstances. Where small differences in dimensions are materially significant, precise measurements are of the essence of the agreement.
4. The emails had to be considered in the context of the correspondence as a whole. Later exchanges showed that the parties were still discussing matters requiring resolution and were continuing to negotiate. They therefore supported the conclusion that no agreement had been reached on 2 March or subsequently.

Lord Justice Sullivan gave the judgment, with Lord Justice Patten and Lady Justice Arden agreeing. Order: appeal dismissed.

1. Court of Appeal (Civil Division): In Ely & Anor v Simmons & Anor, [2012] EWCA Civ 1674, the appeal was dismissed.
2. Plymouth County Court: On 14 October 2011, His Honour Judge Neligan granted declarations concerning the boundaries between the parties’ properties.