Case No: B2/2008/2379
Neutral Citation Number: [2008] EWCA Civ 1631
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHAMPTON COUNTY COURT
(MRS RECORDER ROBERTS)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 16th December 2008

Before:

LORD JUSTICE PILL
LORD JUSTICE LLOYD
and
LORD JUSTICE MOSES
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Between:

	MACNAB & ANR
	Appellant	
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RICHARDSON & ANR	
Respondent	

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(DAR Transcript of 
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Mr P C Richardson & Mrs Richardson appeared on behalf of the First & Second Appellants.

Mr M Norman (instructed by Messrs Bernard Chill & Axtell) appeared on behalf of the Respondent.
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Judgment
Lord Justice Lloyd:

1.	Mr and Mrs Richardson live at 98 Pitmore Road, Albrook, Eastleigh, in Hampshire, and have done for some forty years.  Mr and Mrs Macnab moved into the property next door -- number 100 Pitmore Road -- in 1982, and lived there until 2006.  They have since moved out but they still own number 100.

2.	The present litigation concerns a 50 foot stretch of boundary between the two properties at the rear.  It is not the first between these parties on that subject.  

3.	In March 2001, following a contested trial, itself not the first, Miss Recorder Ralphs made declarations defining the boundary line as a straight line between two points on a plan.  The plan should have been appended to her order but was not.  It is, however, asserted in the Particulars of Claim in the present case, in an allegation expressly admitted in the defence and counterclaim, that it was a plan prepared by a surveyor, Mr David J Powell, in 1993, numbered 368.  A version of that plan, with some distinct later markings, is in the appeal bundle at page 454.  By the order, the parties’ surveyors were directed to peg out the boundary line with reasonably permanent markers.

4.	Mr and Mrs Macnab then put up a fence, seeking, as they said, to avoid any encroachment on the part of that fence or by its footings.  Mr and Mrs Richardson were not content with that and they started new proceedings.  At a hearing on 25 April 2002, Miss Recorder Ralphs had a site visit accompanied by the parties and their surveyors.  The surveyor acting for Mr and Mrs Richardson, Mr Vaughan, confirmed that the fence as it stood was correctly positioned on the boundary line as it had been declared in 2001.  On that day the judge made an order by consent that the boundary is correctly delineated by the south face of the existing fence.  Other orders were made not by consent with which we are not concerned.

5.	There were other issues in those proceedings -- the number of which was SO502699 -- in the Southampton County Court, as the present proceedings have been, and those other issues were resolved by a Tomlin order on 12 February 2003.  Among the terms set out in the Schedule to the Tomlin order, Mr and Mrs Macnab agreed that they would, by 31 May 2003, remove all infill material within one metre of the boundary from the south-west corner of their garage to the stream which, as I understand it, lies on the western boundary, to the extent that the infill lies above the present level of the adjacent ground in number 98.

6.	The work done in pursuance of that obligation appears to have contributed to, or provided some of the cause of complaint which led to, the present litigation.  In particular, during 2003 a contractor called Comleys did a certain amount of work, including removing infill, and, in the course of that, it is said by Mr and Mrs Richardson that they caused one or more of the fence posts to be seriously misaligned or tilted over in the direction of the Richardsons’ property.  In March 2004 other contractors -- Messrs Mowlem -- were brought in, and they, as I understand it, laid new concrete footings for the fence posts. Those were much more substantial than the previous footings and it is said that they encroached by some six inches underground on the land owned by Mr and Mrs Richardson.  The substantial concrete bases which the judge describes in her paragraph 10 were, according to Mrs Richardson, the bases installed in March 2004, rather than those installed when the fence was brand new.  That is a point of history on which nothing in particular turns save to note that from March 2004 onwards there has been, to that extent at least, an encroachment by the footings of the structure which support the fence between the two gardens.  

7.	Apart from that, what is said is that, by late 2005, the fence had moved or had been moved and was no longer on the north side of the declared boundary line.  Instead, it was some way and, Mr and Mrs Richardson said, some considerable way into their garden.  They chose not to bring further proceedings to complain of this and to have this tested and to claim the appropriate remedy.  Rather they resorted to taking action themselves.  On 1 January 2006, at a time when Mr and Mrs Macnab were away, they removed a section of the fence, including, as I understand it, three fence posts, and placed it on Mr and Mrs Macnab’s land.  Mr and Mrs Macnab found this on their return to their home and they brought new proceedings against Mr and Mrs Richardson for an injunction to restrain trespass and for damages.  

8.	These proceedings came on for trial before Mrs Recorder Jennifer Roberts on 8 and 9 August 2007.  She gave judgment on 28 September 2007.  She awarded Mr and Mrs Macnab £910 or so of damages rather than the very much larger sum that they claimed; she awarded Mr and Mrs Richardson a nominal £1 of damages, and she ordered Mr and Mrs Richardson to pay half of Mr and Mrs Macnab’s costs with £12,500 to be paid on account.  The order was originally drawn up with a slight error but was amended in March 2008.  At that stage, and throughout the proceedings in the county court in this present litigation, the number of which is 6SO00327, both sides were represented by solicitors and counsel.  

9.	During the pre-trial procedures expert surveyors on each side had attended the site to establish and, if possible, to agree the line of the 2002 fence which, according to the order made in April 2002, delineated the correct legal boundary.  The two surveyors adopted different methods and produced different lines, but the differences were no more than five centimetres out apart at the most, and Mr Vaughan, the Richardsons’ surveyor, produced the line which ran, to this very modest extent, to the south -- that is to say, rather on the Richardsons’ side than the Macnabs’ side.  The parties agreed at a directions hearing to treat Mr Vaughan’s measurement as the definitive legal boundary line, and that followed a joint statement on the part of the two surveyors dated 1 August 2006, which we have in the bundle together with the agreed plan.  

10.	After that, Mr and Mrs Richardson instructed another surveyor, Mr Bennett, and he and Mr Powell for Mr and Mrs Macnab gave evidence at the trial.  In consequence of the agreement that had been reached, at the trial the correct line of the boundary was not in dispute.  The question was whether, by the end of 2005, the fence did encroach to the south of that boundary; if so, how much, in what respect, and what had caused that?  It was admitted on behalf of Mr and Mrs Macnab that the concrete foundations of the fence posts did encroach by some 150 millimetres.  Counsel for Mr and Mrs Richardson did not contend that this, although a trespass, would justify self help or the grant of an injunction or more than nominal damages.  It was that encroachment that, quite apart from anything else that might have been proved, justified the nominal award on the counterclaim.

11.	Mr and Mrs Richardson sought to appeal on a number of grounds.  Permission was refused by Sir John Chadwick on paper but was granted, after an oral renewal of the application, by Rimer LJ.  Unusually, he reserved judgment in order to consider it, but he rejected all the grounds originally put forward and granted permission only on one limited ground which is set out in paragraph 30 of his judgment.  Mr and Mrs Richardson duly amended their grounds of appeal to limit themselves to this one point arising from what was argued to be an apparent conflict between what the judge had said at two different points in her judgment, to which I will come.  

12.	They have pursued this appeal, and still pursue this appeal, representing themselves.  Mr and Mrs Macnab have served a respondent’s notice seeking to uphold the judgment on other grounds, and they are represented as before by Mr Norman, of Counsel.

13.	The first question arises on the appellant’s notice.  The judge, in a long, full and careful judgment, having recited and described the history, identified the question which she had to decide, first in paragraph 77 of her judgment.  She said this: 

“The central question, therefore, which I have to determine is whether (if at all and save for the (admitted) technical trespass of the concrete foundations of the posts to the extent of 6 inches) the line of the Macnab’s fence moved from its 2002 position as confirmed by Mr Vaughan in his report. If it did not, the removal of the fencing along the disputed section by the Richardsons will amount in law to a trespass and I will have to go on and consider the quantum of damages to which the Macnabs should be entitled.  If it did, then the Richardsons will have established their counterclaim and may be entitled to nominal or greater damages for that trespass by the Macnabs.”

She then went on to consider the expert evidence and to review the factual evidence in order to put herself into the position in which she could answer that question.

14.	At paragraph 106 she reached a passage in her judgment which she headed “My findings” and she said that she had set out the evidence at some length in the course of her judgment because she wanted each party to feel that she had taken all matters into account in reaching her decision, but that at the end of the day the issue which she had to decide was a narrow one.  She then made a number of comments on the witnesses and, at paragraph 111, she came back to the main issue, and she posed to herself two separate questions: a) Had the line of the fence moved from Mr Vaughan’s line by January 2006?  And, if the answer to that question was yes: b) On the balance of probabilities, had such movement occurred as a result of settlement, the gradient of the land, the instability of the soil around the foundations of the fence posts, an inappropriate realignment by the contractors who carried out work to the fence in March 2004, or for some other reason?  

15.	In the following paragraph, addressing the first question, she said this, and I will read the whole paragraph: 

“112.	My answer to this question on the preponderance of the evidence and on the balance of probabilities is yes, but only marginally and to a minimal extent by way of settlement (see below).  Specifically, I reject the submission made on behalf of the Richardsons as pleaded in their amended Defence and Counterclaim that the evidence establishes that either (a) the fence was moved out of line by the actions of Comleys’ contractor in May 2003, or (b) that the fence line was effectively re-sited by Mowlems’ contractors when they attended on site in March 2004 to set the fence posts into new concrete foundations.”

16.	She then went on to explain why she rejected those two contentions on the part of Mr and Mrs Richardson, and at paragraph 121 she set out some findings, largely on the basis of her assessment of the expert evidence from the surveyors.  I can summarise that as follows.  First, the fence had moved because the ground in which it was installed had moved.  Secondly, such a fence may move due to settlement and normal movement of the terrain by up to 25 millimetres.  It would be remarkable for such a fence to remain vertical without any movement.  Thirdly, there was insufficient evidence to show the extent of any movement of the fence and the cost and work involved in the sort of survey that would have been necessary would be wholly disproportionate. Fourthly, a survey conducted on behalf of Mr and Mrs Richardson by a Mr Chalk in March 2004, which supported the theory that there had been substantial movement, was not credible because of doubts as to its methodology and the absence of comprehensive reasons, and in any event things had changed after the technical survey.  Fifthly, that surveys carried out since 2002 did indicate movement southwards but not sufficiently to establish encroachment.  Sixthly, movements will occur inevitably due to seasonal variations.  There is likely to be movement in the direction of the slope of 25 millimetres or more in a season.  The direction of the slope, as I understand it, is downhill from 100 to 98.  

17.	It is unclear whether her reference, in what is her paragraph 121(viii), to seasonal variations is to once a year or possibly to twice a year on the basis of two relevant seasons.  I would read that as no more than a reference to the possibility of annual variations and as referring to such movement being dependent on, or influenced by, the state of the weather.  It is perhaps speculation on my part, but it may be that there would be inclined to be more movement in, or as a result of, a very prolonged wet period, whether winter or summer, rather than in the course of a dry season.  It may be that if the earth is drenched by a great deal of rain it is more prone to slip, but that is possibly reading more into the judge’s judgment than I should.

18.	From those findings she proceeded to her conclusion in paragraphs 122 and 123, which I shall read: 

“122.	In conclusion, I therefore find that, apart from minimal movement due to settlement and the admitted encroachment of the concrete foundations to the extent of approximately six inches, there was no repositioning of this fence and it remained until removed for the purposes of this claim and counterclaim on its declared legal boundary.

123.	In the light of these findings, there can be no possible justification for the actions taken by the Richardsons in January 2006.  Their actions amounted to a trespass and the Macnabs are entitled to an award of damages which I shall assess in due course.”

19.	The point of the permitted ground of appeal, as Rimer LJ formulated it, is that at paragraph 112 the judge had held as a fact that they there had been a small amount of movement of the fence by way of settlement, and indeed she recognised that at the opening part of paragraph 122, but she concluded that paragraph, it seems, by saying that the fence remained until it was removed in January 2006 on its declared legal boundary. It is said by Mr and Mrs Richardson that if there had been the slightest southward movement, it must have been over the line and therefore on their side of the boundary, thereby constituting a trespass.  As is confirmed in such cases as Ellis v Loftus Iron Company (1874) LR 10 CP 10, at page 12 per Lord Coleridge CJ, the slightest encroachment on another’s land is a trespass.  So even if the extent of the encroachment in this case is that the mesh, which constitutes the fence in this present case, was over the Richardsons’ land but the fence posts were still on the Macnabs’ land then the mesh of the fence was an encroachment and a trespass.  

20.	Rimer LJ, addressing the point in his judgment on the oral renewal of the permission to appeal application, recorded a point made by Mrs Richardson as being that, because the order of 25 April 2002 declared that, as of that moment, the south face of the fence marked the boundary, any movement in a southerly direction of any part of the fence must necessarily amount to an encroachment on to number 98, even if only a minimal one, and, contrary to the finding, indicated in paragraph 122, that the fence remained on its declared legal boundary.

21.	Rimer LJ said that it seemed to him arguable that the judge’s findings meant that by January 2006 the fence was encroaching, even if only minimally, on to number 98, which would at least enable an argument by Mr and Mrs Richardson that their actions on 1 January 2006 were justified.  He went on to say at paragraph 29 of his judgment: 

“Having said that, I make it absolutely clear that I give them no encouragement whatsoever in the belief that, if their argument on this point is otherwise right, that will carry with it any vindication of those actions.  Had they sought an injunction to have the fence removed to its rightful line, I would not expect it to have been granted; and this court may well equally take the view that their recourse to their high-handed, and destructive, methods of self-help was wholly unjustified.  But if the starting point of their argument is right, they are entitled to say that its consequences were not considered by the judge; and it would not be appropriate for me to purport to rule finally on it now.”

22.	The ground of appeal that he permitted and which is being pursued is in the following terms, which it is right to bear in mind given the limited nature of the scope allowed.  
“In the light of the declaration as to the line of the boundary in the order of 25 April 2002, the judge was wrong, having found at paragraph 112 of her judgment that the line of the fence had moved “marginally and to a minimal extent by way of settlement”, to conclude in paragraph 122 that the fence nevertheless remained on its declared legal boundary until removed by the appellants in January 2006.”  

23.	As it seems to me, Rimer LJ in that passage identified the real issues on this appeal.  First of all, was the judge wrong in paragraph 122 of her judgment to the extent that she appears to hold that there had been no encroachment at all?  Secondly, if she was wrong and if there had therefore been a marginal or minimal encroachment as she said at paragraph 112, did that justify Mr and Mrs Richardson in resorting to the remedy of self help to remove the fence and the fence posts?  That is at least part of the point raised by the respondent’s notice, which includes the proposition that, if there were a trespass, Mr and Mrs Macnab would not have been required by injunction to reposition the fence and, implicitly, that the Richardsons were therefore not entitled to resort to self help any more than the admitted encroachment by the concrete foundations gave them such an entitlement.

24.	The judge had considered the self help aspect of the law of trespass at paragraph 25 of her judgment, in which she referred to it being necessary to scrutinise with care the circumstances in which the common law remedy of self help or self redress can be exercised, and she referred to the case of Burton v Winters [1993] 1 WLR 1077, which is the most recent authority on the point and to which I myself will refer before long.  

25.	Following the grant of permission to appeal and the amendment of the grounds of appeal to confine it to the point permitted by Rimer LJ, the appellants rightly no longer relied on the skeleton argument that they had put in in support of the permission application because it related to other grounds.  They did not at that stage lodge any further skeleton argument and could be taken to be relying largely on the reasoning of Rimer LJ.  The respondents filed a respondent’s notice, as I have said, and filed a skeleton in support of that and in opposition to the appeal.  The appellants filed a skeleton argument in answer, and most recently the respondents put in a supplementary skeleton in reply.  

26.	Given the limited nature of the ground of appeal permitted, it is not open to the Richardsons to challenge the judge’s findings, but they can and do argue that paragraph 122 contradicts itself: if there had been some movement southwards there must have been some encroachment and therefore some trespass.  Mrs Richardson in her oral submissions today has drawn attention to what might be thought to be a number of oddities or inconsistencies, or at any rate uncertainties, as to the scope of what the judge meant by minimal movement or marginal movement in the light of some of her comments in paragraph 121, and particularly the comment about what might be a movement of an inch, 25 millimetres, over a season.  But it is not open to her to contend that there was found by the judge to be anything more than what can properly be described as minimal or marginal movement.  There may be scope for argument, debate or speculation as to what the extent of a minimal movement is, but Mrs Richardson cannot support her appeal by seeking to persuade the court that the movement was more than merely minimal, nor can she revisit the question as to whether such movement as did occur was caused by activities on the part of the contractors in 2003 or 2004.  

27.	In the respondent’s notice two points are taken.  Firstly, that only part of the fence posts can have encroached, and that accordingly, by removing the whole of the posts, Mr and Mrs Richardson trespassed on and wrongfully interfered with Mr and Mrs Macnab’s land and property -- that is to say on that which was not trespassing.  Secondly that, accordingly, Mr and Mrs Richardson are liable in damages because Mr and Mrs Macnab would not have been ordered to remove the fence posts.  I do not myself find it necessary to consider whether the fact that a structure other than a party wall or fence (which is not this case) is in part on one party’s land and in part on another’s is relevant by itself to the availability or otherwise of the remedy of self help.  If the trespass is considered sufficient to justify resort to self help, the fact that some part of the structure might be on another’s land might not matter; but the real question on which I wish to focus, and with which Mrs Richardson has given us such help as she feels able to, is whether the circumstances in this case did allow Mr and Mrs Richardson to have recourse to self help rather than to the remedies of the law.  

28.	Mrs Richardson, advancing the appellant’s case orally today, questioned the judge’s findings, as I say, as to what the implication of the movement by 25 millimetres a season or 25 millimetres a year might be.  She showed us a number of photographs which she said illustrated the position on the ground as it had been at a number of different dates.  She invited us to view a video including sequences from various dates up to 2004.  We declined that opportunity.  For my part, it seemed to me that the assistance given by the photographs was adequate to ensure that I had a sufficient understanding of the lie of the land.  

29.	Mrs Richardson complained of Mr Macnab having declined to accept an offer by the contractor called Comleys, who had done work in 2003, to reinstate the fence in a correct line and to reinforce that, and complained of his having chosen to instruct Mowlems as a different contractor in March 2004 instead.  She also took up a hint or suggestion from the bench, or an observation from the bench, to suggest that what Mr and Mrs Macnab had done in March 2004, by way of the installing of the foundations, which are now admitted to be trespassing, amounted to an equivalent of self help, at any rate doing something for themselves without legal sanction, albeit that it would have been causing rather than remedying a trespass.  That, she said, might fairly be regarded as setting a precedent for what she and her husband had done in 2006.  

30.	The relevant authority as regards self help, to use that as a convenient label, is, as I say, Burton v Winters in the Court of Appeal, the leading judgment being given by Anthony Lloyd LJ, if I may so call him, to distinguish him from myself.  In that case the defendant’s garage had encroached by one brick’s width on the plaintiff’s land and had been built in 1975.  The plaintiff obtained a declaration that that was the position in 1990 but was refused the mandatory injunction which she sought.  The plaintiff would not accept this conclusion and she trespassed on, and interfered with, the defendant’s garage and land.  The defendants obtained an injunction to restrain her from doing so, but she continued, and she was the subject of an application for committal for contempt, and she was committed for contempt for a period of two years -- not, I should say, on the very first hearing of that application.

31.	The Court of Appeal, in the course of an appeal against the committal order, considered whether the plaintiff might have been entitled to use self help. They held that she had not been, and would not be, for several reasons, including, it is fair to say, the delay, and perhaps above all the fact that she had been refused the injunction that she had sought in 1990.  The importance of the case for present purposes is not the facts but what was said by Lloyd LJ about the relevant principles.   In particular, at page 1081 he said this: 

“Ever since the assize of nuisance became available, the courts have confined the remedy by way of self-redress to simple cases such as an overhanging branch, or an encroaching root, which would not justify the expense of legal proceedings, and urgent cases which require an immediate remedy.  Thus, it was Bracton’s view that where there is resort to self-redress, the remedy should be taken without delay.  In Blackstone’s Commentaries on the Laws of England, Book III, chapter 1, we find:

 ‘And the reason why the law allows this private and summary method of doing one’s self justice, is because injuries of this kind, which obstruct or annoy such things as are of daily convenience and use, require an immediate remedy; and cannot wait for the slow progress of the ordinary forms of justice.’  

The modern textbooks, both here and in other common law jurisdictions, follow the same line: see Salmond and Heuston on Torts, 20th ed. (1992) p. 485; Clerk & Lindsell on Torts, 16th ed. (1989) p. 36; Fleming, The Law of Torts, 7th ed. (1987), p. 415 and Prosser and Keeton, The Law of Torts, 4th ed. (1971), p.641.  In Prosser and Keeton we find: 

‘Consequently the privilege [of abatement] must be exercised within a reasonable time after knowledge of the nuisance is acquired or should have been acquired by the person entitled to abate; if there has been sufficient delay to allow resort to legal process, the reason for the privilege fails, and the privilege with it.’ 

The authority cited for this proposition is Moffett v Brewer (1848) Iowa 1 Greene 348, 350, where Greene J said: 

‘This summary method of redressing a grievance, by the act of an injured party, should be regarded with great jealousy, and authorised only in cases of particular emergency, requiring a more speedy remedy than can be had by the ordinary proceedings at law.”

32.	A little later in his judgment Lloyd LJ said this at page 1082: 

“In my opinion, this never was an appropriate case for self-redress, even if the plaintiff had acted promptly.  There was no emergency.  There were difficult questions of law and fact to be considered and the remedy by way of self-redress, if it resulted in the demolition of the garage wall, would have been out of all proportion to the damage suffered by the plaintiff.”

Then he refers to the refusal of the mandatory injunction and says this: 

“Self redress is a summary remedy, which is justified only in clear and simple cases, or in an emergency.”

33.	In relation to that authority, Mrs Richardson said that what she regarded as the emergency was the position and condition of the fence.  She said it was dangerous because it was leaning over in a dangerous way, and it prevented her and her husband from dealing with a problem that they had with a shed close to the fence.  This had been a problem for them for a long time because it leaked and it was therefore an unsatisfactory place for the valuable tools and equipment that Mr Richardson kept there.  They really could not wait any longer, they had been pressing Mr and Mrs Macnab to move the fence and have it sorted out so that they could get on with dealing with that shed and, to put it in my words rather than hers, they got fed up with waiting.  

34.	Considering the facts of this case in the light of the principles set out in Burton v Winters, it seems to me that this was very clearly not a case in which the remedy of self redress or abatement was, or should have been, regarded as available to Mr and Mrs Richardson.  The judge quoted from a letter which had been written by Mrs Richardson to the solicitors acting for Mr and Mrs Macnab on 12 December 2005 (this is in paragraph 61 of her judgment).  In that letter Mrs Richardson complained about the line of the fence and said it had been “pushed extensively onto our land”.  She said that they had been advised by counsel that they can remove the fence and put it back onto the Macnabs land and that these works would be carried out in the new year.  She also said that “you will be notified before the works commence” as would a number of other people.  As the judge records, Mr and Mrs Macnabs’ solicitors responded by a letter of 23 December in which they did not accept that the line of the fence had moved.  Mr and Mrs Richardson were warned against unilateral action and they were invited to restore the matter for adjudication in the event that they believed they had any valid claim that the fence was not in the correct position.  Notwithstanding that, as I say, on 1 January Mr and Mrs Richardson had the relevant part of the fence removed, the fence posts uprooted with their concrete foundations and other interference conducted, and Mrs Richardson in her oral evidence admitted that that was done at a time when the Macnabs were not at home because of her concerns that Mr Macnab would photograph the operation.  

35.	There was no urgency about this situation.  The situation had existed for the best part of two years since the Mowlem work done in March 2004.  There had perhaps been some seasonal variation in the marginal encroachment, or some gradual increase resulting in the marginal encroachment, but it was not a clear case and it was not a case in which, with the history of litigation between the parties, it was appropriate to resort to self help rather than to invoke the assistance of the court process.  I can quite understand the unwillingness of Mr and Mrs Richardson to undertake more litigation, but what they did and the way they did it was of course such as to provoke precisely that on the part of Mr and Mrs Macnab.  It is fair to say that Mr and Mrs Richardson may have incurred a disadvantage by their resort to self help in that it made it impossible for the court to quantify what encroachment there had been.  They did, of course, by the letter that I have referred to, give notice of their intentions, so that I suppose Mr and Mrs Macnab could have applied for an injunction at once; but they also said that they would be giving further notice before the work was actually done and they deliberately chose not to, perhaps partly in order to ensure that the process was not observed or recorded or prevented.  

36.	It seems to me plain that this was not a case for self help; nor is it a case in which, if the Richardsons had applied for an injunction requiring Mr and Mrs Macnab to move the fence back, they would necessarily have got it on the facts found by the judge.  Mrs Richardson said to us in her submissions today: does that mean, to ask a rhetorical question, that they have to put up with the gradual attrition of their garden, inch by inch, as the seasons go by and as this fence moves a little bit further each year?  Not so. While not wishing in any sense to encourage yet further proceedings, or anything other than whatever efforts could at long last be undertaken to resolve the issues as to boundaries by sensible discussion through expert collaboration on the part of the surveyors, there can be a remedy.  Whether it is a remedy by way of injunction will depend on the facts of the particular case, but in my judgment, applying the principles set out by Lloyd LJ in Burton v Winters, it is plain that when Mr and Mrs Richardson did what they did on 1 January 2006 they were not entitled to do so and they were therefore trespassing on Mr and Mrs Macnab’s land and property, and it seems to me that on that footing and for that reason the judge’s judgment was wholly justified.  I am not at all sure that Rimer LJ was correct in perceiving an internal contradiction of any significance in paragraph 122 of his judgment; but even if there is such a contradiction, and even on that footing accepting that the judge may not have expressly considered what the impact was of a marginal encroachment by the fence on Mr and Mrs Richardson’s land, in my judgment the judge’s second statement in paragraph 123 -- the matter to which she proceeded -- was entirely correct in the light of what she had already said herself at paragraph 25 about the remedy of self redress or self help, that there was no possible justification for the actions taken by the Richardsons in January 2006, and the award of damages, as I say, on a very much more modest basis than that claimed, was in my judgment entirely correct.  I would therefore dismiss this appeal.

Lord Justice Moses:  

37.	I agree.

Lord Justice Pill: 

38.	I also agree that this litigation has been unfortunate as well as costly.  Several times in the course of Mrs Richardson’s courteous submissions it was necessary, in response to some of the broader ones, for members of the court to comment as to what the court is not able to do in these proceedings.  That is because of the findings of the judge and the limited nature of the permission to appeal granted.  Those comments must not be taken as an encouragement to further litigation.  Nothing which has emerged from the bench during this hearing can be taken as an encouragement to bring further proceedings.  There has been more than enough litigation over the line of this boundary and the court has heard nothing to suggest that further proceedings would be in any way appropriate.  I agree that the appeal must be dismissed.  

Order:  Appeal dismissed