Neutral Citation Number: [2007] EWHC 1809 (Ch)
Case No: CC/2007/PTA/0116
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 31 July 2007

Before :

THE HONOURABLE MR JUSTICE KITCHIN
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Between :

	(1)	GEORGE WORRALL
(2)	JOSEPHINE WORRALL	
Appellants	
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	(1)  IVOR TOPP	Respondent	

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Richard Oulton (instructed by Coyle White Devine) for the Appellants
Desmond Kilcoyne (instructed by Reynolds Parry-Jones) for the Respondent

Hearing date: 17 July 2007
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 Judgment

Mr Justice Kitchin : 

Introduction 

1.	I have before me an appeal against an order of HH Judge Elly dated 14 February 2007 whereby he refused to set aside the decision of a surveyor, Mr Caruth, dated 11 May 2006, on the grounds that it was procedurally unfair.  Permission to appeal was granted by Henderson J on 3 April 2007.  
2.	The appellants and the respondent are neighbours and they live at 73 and 79 Lincoln Park, Amersham respectively.  The two properties share an accessway  which is owned  by the appellants but over which the respondent, as owner of number 79, has the benefit of a right of way.  Unfortunately, this has led to the parties falling out.  The appellants originally complained that the respondent parked his car on the accessway outside his garage which is built largely but, they contended, not exclusively, within the boundary of number 79, thereby obstructing the accessway.  They also contended that a number of people visiting the respondent had parked on, and so obstructed, the accessway.  
3.	The respondent, for his part, claimed to be entitled to park his car on the accessway and maintained that his garage was built entirely within the boundary of number 79. He also contended that if and in so far as the garage encroached into the land owned by the appellants then their rights to any such land had long since been extinguished.  
4.	Unable to resolve these differences, the appellants issued proceedings against the respondent in the High Wycombe County Court.  Those proceedings were settled on terms embodied in a consent order dated 25 August 2004.  As part of the settlement it was ordered that, in default of agreement, the issue as to the position of the boundary between numbers 73 and 79 should be determined by an independent expert surveyor in accordance with the terms contained in Schedule 2 to the order.  The appellants acknowledged, however, that the garage itself had been exclusively occupied by the respondent or his predecessors in title for a period exceeding 12 years and that by virtue of that occupation he was entitled to freehold title absolute of the garage and the land upon which it stands.
5.	So far as material, Schedule 2 provided:
“4.	The parties shall be at liberty to set out their factual evidence in support of their contentions as to the position of the boundary by a date to be agreed or determined by the surveyor but will not be permitted to rely on any other expert evidence.
5.		The surveyor shall determine the position of the remainder of the boundary between 73 and 79 Lincoln Park, save for the area of the garage but including the area of its foundations and/or footings, having considered the evidence and documents placed before him and the position on the ground.
6.		The surveyor shall provide the parties with a plan delineating the boundary between the properties in accordance with his determination thereof.
7.		The decision of the surveyor shall be binding between the parties (save in relation to any issues of law) and the parties acknowledge and agree that they will accept the said decision as being the true position of the remainder of the boundary.”
6.	In due course, Mr Caruth of the Frost Partnership was appointed to make the determination.  He was provided with over 200 pages of documents by the parties and agreed, at the request of the appellants, to inspect and measure the boundary to the rear (that is to say, the north) of number 79 in case this had a bearing on the position of the front boundary with number 73.  It seems that all documents supplied to Mr Caruth by one party were copied to the other save for an e-mail of 1 March 2006 together with four attachments sent to Mr Caruth by Mr Hill, the solicitor acting for the respondent.  This is an important communication and it forms the basis of the appeal before me. It reads:
“Mr Topp has e mailed me certain plans, which are attached to this e mail.  These are:
1)	A portion of the plan in Miss Abrahams' conveyance of 79 Lincoln Park to Mia Redding.
2)	A plan provided by Chiltern DC in November 2000.
3)	Mr Topp’s own software plan of No 79.
4)	An enlarged view of the position of the chain link fence erected by No 27 Little Reeves.

These illustrate that the chain link fence erected between 79 and Little Reeves is not in fact on the boundary as shown in the conveyancing documents, but on the Little Reeves side of the boundary, and Mr Topp would like to be sure that you appreciate this, as he believes you carried out measurements in this area when you visited the property on 3rd February.”
7.	On 11 May 2006 Mr Caruth issued his determination.  He noted that he had considered all of the papers submitted to him, inspected the site, taken relevant measurements and inspected original title plans in the offices of the parties’ solicitors.
8.	He then recorded that several of the plans which he had inspected were not consistent.  In particular, he considered the plan annexed to the conveyance of number 73 dated 11 October 1979, the plan annexed to the conveyance of number 79 dated 19 July 1972 and Land Registry plans for both properties.  He then proceeded to record the substance of a statement of a Mrs Miar Redding dated 11 March 2005.  She owned number 79 at the time the garage was built.  It seems that, essentially in the light of this statement, he reached the conclusion which he expressed at paragraph 3.3.5 of his determination that the front of the garage formed part of the boundary.  In accordance with his instructions, he provided a plan delineating the boundary at Appendix 9 of his determination.
9.	In paragraph 3.5 of his determination, Mr Caruth addressed the various representations made on behalf of the Appellants. One of these concerned the boundary between two properties to the rear of number 79, namely number 25 and number 26 Little Reeves Avenue.  The position of these properties is shown on the plan of the boundary at Appendix 9 of the determination.  In relation to this representation, Mr Caruth said:
“3.5.3	That the original mild steel angle post at the rear end of the boundary between 25 and 26 Little Reeves Avenue is behind the front of the garage whereas the best copies of title plans  show the boundary (between 25 and 26 Little Reeves Avenue) to be in line or a little in front of the garage front wall.  There is therefore an apparent discrepancy between the position on the ground and information on the plan.  However, I do not consider this can be taken as evidence that the front of the garage was built in advance of “the boundary”.  Features such as Nos. 73 and 79 Lincoln Park, the garage and the boundary between 25 and 26 Little Reeves Avenue were all in their present positions when they were surveyed for the Ordnance Survey map from which the title plans are taken.  The relative position of these features shown by the O.S. is the best indication possible within surveying and mapping constraints and it cannot be the case that the front of the garage has crept forward independently across “the boundary”.  As made clear by Land Registry Public Guide 7 “…the title plan only shows the general position of the property’s boundaries and not the exact line”.
…..
3.5.5	On behalf of the Claimants, it has been suggested that “the boundary” should be considered to run from the metal boundary marker between Nos. 25 and 26 Little Reeves Avenue joining the garage wall at a right angle; then along the outside surfaces of the garage walls and door to the front left gate post; across to the front face of the right hand post; along the curved wooden fence and then in a straight line to the footpath.”
10.	It is apparent from the determination that, at least at this stage, Mr Caruth did not regard the points advanced as persuasive.  
11.	Finally, in paragraph 3.7, Mr Caruth referred to the measurement of the boundary to the rear of number 79, adjoining the rear of the properties in Little Reeves, and the further plans sent to him by the Respondent’s solicitor under cover of the e-mail of 1 March 2006.  He attached all these plans to his determination as Appendix 8 and described them in the following terms:
“3.7	In a further attempt to resolve the assertion at 3.5, and as requested on behalf of the Claimants, I have also considered and measured the North side boundary of 79 Lincoln Park which adjoins the rear of properties in Little Reeves.
3.7.1	Plan No.1 at Appendix 8 is the best copy of the plan used in the Conveyance of 73 Lincoln Park.  That plan shows  a measured dimension of 138 feet - 42.06m say 42 metres – for the said North side boundary.
3.7.2	The Defendant’s plans at Annex 8 suggest a total of 45.06m, say 45 metres.
3.7.3	Both Land Registry plans scale 45m at 1:1250.
3.7.4	The total length based on site measurements taken by me is also close to 45 metres.
3.7.5	I consider the 138 feet (42 metres) dimension noted on Plan No.1 at Appendix 8 to be less reliable than the 45 metre measurement,
•	it is the odd one out
•	the rear corner of the site has been altered and probably extended over the years.
3.7.6	I am not convinced that any aspect of the further research I have carried out into the said North boundary is sound evidence that the garage is set too far forward and that the land to the sides of the front of the garage is therefore rightfully in the ownership of No. 73 Lincoln Park.”
12.	It is this aspect of the determination which lies at the heart of the submission advanced by the appellants that the determination was procedurally unfair.  In short, it is said that it is clear that Mr Caruth relied upon the attachments to the e-mail in forming his view that the northern boundary of number 79 should measure approximately 45 metres and these were not documents upon which the appellants ever had an opportunity to comment. 
13.	Following receipt of the determination, the appellants’ solicitors wrote to Mr Caruth by letter of 16 May 2006 seeking clarification of various points.  In relation to paragraph 3.7 they asked, inter alia:
“(b)  please clarify why the Defendant’s measurements (paragraph 3.7.2 of your report) have any relevance to your conclusions in circumstances where you have produced your own measured survey of the site?
...
(d)   as a matter of law, please clarify why you consider the 138ft measurement identified in the key conveyance of number 79 to be less reliable than the Defendant’s own plans.”
14.	They also asked for clarification of the basis for his conclusion that “the rear corner of the site has been altered and probably extended over the years”.
15.	Mr Caruth copied the letter to the respondent’s solicitors who asked him whether he intended to respond to the questions raised.  They were told that Mr Caruth was going to consider the matter and take advice.  
16.	On 28 July 2006, Mr Caruth replied to the questions raised and apparently did so without further reference to the parties.  In relation to paragraph 3.7 he said:
“(b)  the Defendant made representations with regards to this boundary.  I think it right to consider and report on these as has been done with the representations from the Claimants.
…
(d)  the title plan which has a roughly written “138 feet” measurement, shows a different shaped rear corner to later plans, the measurement is not confirmed in the text and on balance I prefer my site measurement - despite intervening trees and other vegetation.”
In relation to the further question concerning his conclusion as to the extension of the corner of the site, he observed that the fencing to the rear corner of the site was relatively new, the shape of the corner was not as indicated on the title plans and “it may be that the length of this boundary had been extended over the years”.
17.	He then proceeded to revise the opinion given in his earlier determination of 11 May 2006. He concluded that the correct boundary line was “wrapped” around the front of the garage and he therefore produced a revised Appendix 9.  This shows the boundary as being in line with a disused mild steel angle post close to the boundary between numbers 26 and 25 Little Reeves Avenue and set back 0.5 metres from the front of the garage.
18.	Faced with this revised determination, the respondent issued proceedings in the Reading County Court seeking a declaration that the original determination of Mr Caruth was a binding decision and that he had no power to revise it. Therefore, he contended, the letter of 28 July 2006 did not affect the determination and should be ignored.  The respondent also argued that if Mr Caruth was entitled to make the second determination then it should not stand because of unfairness, Mr Caruth never having intimated he was proposing to revise his original decision.  The appellants responded by contending that the determination of 11 May 2006 was itself unfair because Mr Caruth took into account information gleaned from the documents sent to him by the respondent’s solicitors under cover of the e-mail of 1 March 2006.
Decision of HH Judge Elly
19.	The matter came before HH Judge Elly on 14 February 2007. In summary, he concluded that Mr Caruth had no power to revise his original determination of 11 May 2006.  It was a final determination and at that point his role was complete.  He also found that the second letter could not stand in any event in view of the unfairness arising from the circumstances in which it was arrived at and also the lack of any clear reasoning within it as to why Mr Caruth had changed his decision on the vital points.  Therefore, he held, the determination of 11 May 2006 must stand unless he was satisfied that it had been arrived at unfairly.  As to this, he concluded it had not. His reasoning is set out in paragraphs [12] to [15] of his judgment:
“12.	As I have said, this document of the 11th May 2006 only stands if I am satisfied that it has not been influenced in some way unfairly. Is it unfair? What is said by the claimants is that it is unfair because the expert took into account information gleaned from copies of plans sent to him by the defendant's solicitors in March 2006, which had not been copied to them and they were unaware of the fact that they had been sent. A great deal of the submissions on this point turn primarily on a plan which was attached to a conveyance of the property now owned by the defendant, which is dated the 19th July 1972, and was made between Marjorie Anne Abrahams, the vendor, and Cyril John Redding, Mair Redding, his wife, and James Redding, who are collectively the purchasers, and there is a plan attached to that document which shows that one of the boundaries of the property is 138 feet. On measurement that boundary is said to be 45 metres, or thereabouts, which is a difference of about 3 metres between what is indicated on the conveyance as the length of the boundary and what Mr. Caruth measured on the site. Mr. Caruth's measurement also agrees with the measurement which was made by the defendant and which was shown on another of the plans which was sent in at that stage. It is said that had the claimants realised that this document was being sent in they would have focused their attention on it, because of course it does support their case. If it is indeed only 138 feet from front to back then their case is the stronger, and to start with, as I have said, submissions were being made that it was unfair that this document had been sent in. Unfortunately for the claimants, however, it becomes clear on further inspection of the court file that this document was indeed a document which was attached to the consent order, and is referred to in the consent order but in schedule 1, so it is quite clear that that document was attached there, and although I appreciate that copies of it become increasingly faint in the recopying process it seems to me that the figure of 138 feet is visible on the document which is on the court file.

13.	The claimants then argued that, looking at the document on the court file, it was not at all clear that there was a kink in the boundary around the place where the front of the garage is, and that that may have been something relied upon by Mr. Caruth in his consideration. That is quite right, the poor copy of the plan on the court file does not make the kink clear although it is clear on the copy which was sent on the 1st March 2006. However, their submissions upon that point are undermined by Mr. Caruth's decision letter of the 11th  May, because in para.3.2.1 he actually refers to this document and to the fact that there had been correspondence in July 2005 between the defendant's then solicitors and the claimants' solicitors as to this particular kink, and indeed the expert very sensibly inspected the original document and was able to confirm that the original conveyance does show that that line is kinked. It seems to me that the claimants have had plenty of opportunity of considering the effect of this document, the kink, the measurement, and everything else which is shown on that plan upon which they would now wish to rely to support their case. There was the opportunity for an inspection of the original if there was any disagreement between the solicitors as to the interpretation of it, and it seems to me that on that point, so far as that plan is concerned, certainly it cannot be unfair that a copy was sent in on the 1st  March 2006. 
14.	As to the other plans which were sent in, one was a copy of a plan taken from the possession of Chiltern District Council, which appears to be based on the Ordnance Survey plan, and which does not seem to have been relied upon by Mr. Caruth in his decision, and, as far as the other two plans are concerned, they are the ones prepared by Mr. Topp himself and, in response to questions, Mr. Caruth merely says that he was referring to them for completeness as representations made by Mr. Topp.  Certainly he does not seem to rely upon those plans, and indeed not surprisingly, since he carried out a measurement of the boundary himself, albeit that it produced the same figure or broadly the same figure, and certainly none of the plans appear to therefore have been decisive in the decision-making process. Indeed, he has rejected the measurement on the plan on the conveyance of the 19th July 1972. 
15.	It does seem to me that it would have been sensible if communicating with an expert who is jointly instructed, and particularly one here, who has been asked to make a determination as opposed to give an opinion for the benefit of the court, to have copied any documentation which was sent to him, but it does not appear to me that from these plans, certainly as far as the first one is concerned, that it should have come as any surprise to the claimants because it was always available to them, and is indeed referred to, according to Mr. Caruth, both in solicitors’ correspondence and also, as I said, a copy of it is attached to the consent order lodged with the court on the 25th August 2004. It does not seem to me that any of the other plans have in any sense influenced the decision which has been reached by Mr. Caruth. Therefore I cannot see that there is any unfairness which has actually been caused by the fact that those plans were sent in by Mr. Topp's solicitors without, as I say, taking the sensible course of copying them to the other side. What the claimants seem to be complaining about mainly is the fact that more emphasis was not put by them on this 138 foot measurement in the 1972 conveyance, but that, as I said, is a matter which they could have raised at any stage as they were well aware of it, and I cannot see that there is any unfairness caused in that respect as a result of any actions taken by the defendant.”
The Appeal
20.	In the end, I did not detect there to be much difference between the parties as to the principles I must apply.  The starting point is the terms of the contract.  In this case the relevant terms are set out in Schedule 2 and recited in paragraph [5] of this judgment.  Clause 4 simply provides that the parties were at liberty to set out the evidence in support of their contentions by a date to be agreed or, in default of the agreement, determined by the surveyor.  As I understand it, no date was in fact agreed, nor was any date specifically set by the surveyor.  Thereafter, by clause 5, he was to determine the position of the boundary, save for the area of the garage, having considered the evidence, the documents placed before him and the position on the ground.  There was therefore no express contractual prohibition against the consideration by Mr Caruth of the documents sent to him under cover of the e-mail of 1 March 2006.  
21.	Nevertheless, I am satisfied there was an implied obligation upon Mr Caruth to act fairly.  Clearly it is highly desirable that any communications between one party and an expert in the position of Mr Caruth are copied to all other parties.  Fairness must generally demand that each party should have an opportunity to respond to contentions made by any other party.  If this course is not followed then a court may hold that any decision reached by the expert cannot stand.  Whether it does so or not must depend upon all the circumstances and, in particular, the nature of the communication, the extent to which it concerned matters of which the other party or parties were already aware and the effect it had on the expert in reaching his decision.  
22.	In the present case the appellants contended that Mr Caruth plainly did not act fairly.  In particular, they argued, it is apparent from paragraphs 3.7.1 to 3.7.5 of his determination that he relied upon the plans supplied to him under cover of the e-mail of 1 March 2006 in reaching his determination.  Focusing on paragraph 3.7.2 and 3.7.5, it was submitted that Mr Caruth evidently considered the plans prepared by the respondent and derived from them a figure for the northern boundary of 45 metres which he then preferred over the dimension of 138 feet (42 metres) because the shorter dimension was “the odd one out”.
23.	It was further submitted that had the appellants known that evidence of this nature was being placed before Mr Caruth they could have taken steps to counter it.  In particular, they could have pointed out to Mr Caruth that the measurement of 138 feet written on the plan appended to the original conveyance of number 79 in 1972 was highly likely to be a better guide to the true length of that boundary than the 45 metre measurement relied upon by the respondent.  The course taken by Mr Caruth deprived them of that opportunity.  
24.	Further, while it was true that the appellants did have a copy of the plan appended to the conveyance of 1972, and while it was also true that the appellants had asked Mr Caruth to measure the northern boundary of number 79, what they did not know was that the respondent had put forward plans which would enable Mr Caruth to derive support for his conclusion that the correct length of the northern boundary was 45 metres.  
25.	I have to say that I have considerable sympathy for the appellants.  Nevertheless, I have reached the conclusion that these submissions must be rejected for all of the following reasons.  First, it is important to have in mind that the first document supplied with the e-mail of 1 March 2006, namely the plan appended to the conveyance of number 79, was a document which, on the face of it, assisted the appellants not the respondent.  This identifies the northern boundary as being 138 feet in length and was support for the appellants’ contention that the boundary between number 79 and number 73 in fact lay some three metres back from the front of the garage.  
26.	Second, as found by the judge and, indeed, acknowledged by the appellants during the course of the hearing before me, this was a measurement of which the appellants were at all material times well aware.  Nevertheless, it was not a measurement to which they had apparently attached any significance. It is not mentioned in the record of the representations made on their behalf in paragraph 3.5 of the 11 May 2006 determination.  In my judgment, the supply of a further copy of this document with the e-mail could not give rise to any suggestion of unfairness.  
27.	Third, it is clear from the e-mail itself that all of the attached documents were supplied to illustrate a quite different point, namely that the chain link fence erected between number 79 and Little Reeves was not on the boundary between those properties as shown in the conveyancing documents.  This is a point which appears to be entirely peripheral and was not something upon which Mr Caruth placed any reliance at all.  
28.	Fourth, the second document attached to the e-mail, namely the plan provided by Chiltern District Council in November 2000 was completely irrelevant to any issue that Mr Caruth had to decide and forms no part of the reasoning in his determination.
29.	Fifth, the other two documents attached to the e-mail, namely the two plans produced by the respondent, are indeed referred to in paragraphs 3.7.2 and 3.7.5 of the determination and it seems clear that Mr Caruth derived from them for himself the dimension of 45 metres for the northern boundary.  This was consistent with the Land Registry plans and the site measurement that he had taken at the invitation of the appellants.  In paragraph 3.7.5, Mr Caruth picked up on the 138 feet dimension shown on the plan attached to the conveyance of number 79 but thought it less reliable than the 45 metre measurement derived from each of the other three sources, namely the respondent’s plans, the Land Registry plans and his own site measurements.  But importantly, as he noted in paragraph 3.7.5, it was not only the odd one out but also his site inspection had revealed that the rear corner of the site (that is to say the corner opposite the boundary he was asked to determine) had been altered and probably extended over the years.  Consequently, the 138 feet dimension for the northern boundary could not be relied upon to provide a reference point for the boundary between number 73 and number 79.  Whilst the figure of 45 metres derived by Mr Caruth from the respondent’s plans seems, on the face of the first determination, to have provided a measure of support for his reasoning, when considered in context I think it is overwhelmingly likely that he would have arrived at exactly the same conclusion without it. He had derived the same dimension from the Land Registry plans and his site measurements. So the 138 feet dimension would still have been the odd one out. Further, and significantly, he would still have been left with his opinion that this dimension was not in any event a sound reference point because he believed the boundary had been extended over the years.
30.	Sixth, that conclusion is reinforced by subsequent events.  The response by Mr Caruth to the questions raised by the appellants’ solicitors in their letter dated 16 May 2006 made clear that he considered carefully the 138 feet dimension shown on the plan appended to the conveyance of number 79 but preferred his site measurement because it seemed that the rear corner of the plot had changed over time.  Further, and to my mind very significantly, his revised plan of the boundary between number 73 and number 79 did not show the boundary set back three metres from the front of the garage, but rather set back 0.5 metres and in line with the disused mild steel angle post which appears at one time to have marked the boundary between number 25 and number 26 Little Reeves Avenue.  Thus, even after his attention been specifically drawn by the appellants to the primacy of the 138 feet dimension shown on the plan attached to the original conveyance, Mr Caruth was still not prepared to accept it but instead revised his opinion as to the position of the boundary based upon the position of the disused mild steel angle post. 
31.	Reverting to the decision of the judge, he explained in paragraph 12 that the appellants must have been aware of the 42 metres dimension shown on the plan appended to the conveyance of number 79.  He was right so to conclude, as was confirmed in the course of the hearing before me.  
32.	In paragraph 13 he observed, in my judgment correctly, that the appellants had plenty of opportunity to consider the effect of the plan and everything shown on it.  There was no unfairness in attaching a further copy of this plan to the e-mail.
33.	In paragraph 14 the judge referred first to the plan taken from the Chiltern District Council. He correctly found that this was not relied upon by Mr Caruth. As for the plans prepared by the respondent, he concluded that Mr Caruth had referred to them for completeness but, once again, did not seem to have relied upon them.  I agree with this conclusion.  It was a fair one to draw from the determination itself and was confirmed by Mr Caruth’s response to the questions sent to him by the appellants’ solicitors on 16 May 2006 following the initial determination.  
34.	Finally, in paragraph 15, the judge once again reiterated that it did not seem to him that any of the other plans had influenced the decision reached by Mr Caruth.  For the reasons I have given, I agree with that conclusion.  
35.	In my judgment it was indeed most unfortunate that the e-mail of 1 March 2006 and the various plans attached to it were not copied to the appellants.  But, in all the circumstances, this was not a serious lapse and it had no effect on the decision making process.  The decision reached by Mr Caruth was a decision made in accordance with the terms of the contract. Accordingly, this appeal must be dismissed.