Boundaries – Determination – Independent expert – Appellant and respondents owning adjoining residential properties – Parties jointly instructing independent expert to determine position of disputed boundary – Whether expert’s decision final and binding on parties – Whether expert exceeding his powers by determining question of law – Appeal dismissed
The appellant and the respondents were the owners of adjoining residential properties in Peacehaven, East Sussex. After purchasing his property in 2011, the appellant removed a timber marker post and hedge between the two properties and replaced it with a fence in a different position. A dispute arose as to the correct position of the boundary, with the respondents contending that the new fence encroached onto their property.
After instructing their own separate surveyors, who were unable to agree, the parties then jointly appointed a chartered building surveyor to act as an independent expert and identify the correct line of the boundary. The parties agreed to be bound by his decision. After taking into account the Land Registry plans and the physical evidence on site, the independent expert concluded that the boundary was defined by the position of the previous timber marker post on the road frontage, with a line running back from that post at a right-angle so that the front and rear measurements of the plot were equal.
The appellant applied to the court for a determination as to whether the joint letter of instruction to the independent expert was a binding agreement and, if so, whether the independent expert’s decision was a final award which was binding on both parties.
Meanwhile, the respondents’ former solicitors discovered a copy of a conveyance dating from 1965 of which the parties and the independent expert had previously been unaware. In light of that new evidence, and pursuant to an order of the court, a joint report was prepared by the appellant’s appointed surveyor and the independent expert, which concluded that the boundary line identified in the original award was correct, subject only to a slight adjustment of 160mm to the west. In reaching that conclusion, the independent expert considered that the boundary shown in the 1965 conveyance was erroneous, although the appellant’s surveyor considered that there were two possible boundaries and that the difference between the two lines could only be resolved as a matter of law by lawyers, not by surveyors.
In the county court, the judge held that the independent expert had been appointed to act as an expert, not as an arbiter or mediator, and that the parties had agreed to be bound by his decision. He found that the expert had carried out his instructions and that his award was not vitiated by any mistake.
The appellant appealed. He contended that the independent expert had exceeded his powers and/or the proper scope of his instructions, since, by treating the 1965 conveyance and the attached plan as erroneous, he was usurping the role of the court.
Held: The appeal was dismissed.
It was apparent both from the letters of instruction and from the response of the expert that he was appointed as an independent expert, under the CPR, to decide where the boundary line lay. He was not acting as an arbitrator. His instructions were first to identify the legal boundary and then to decide whether the existing physical boundary, in the form of the new fence, accorded with it. It was not a straightforward task to identify the legal boundary, since neither party, even with the help of surveyors and lawyers, had been able to do so to the satisfaction of the other. The fundamental reason for the dispute was that the parties had competing views as to the correct legal boundary. In determining the disputed legal boundary, it was expressly envisaged that the independent expert would have to examine and interpret legal documents, such as Land Registry title and plans and conveyances, as well as consider legal submissions. His instructions were not limited to factual matters or matters of expert opinion. Importantly, his decision was to be final and binding on the parties, without recourse to the courts. It was neither envisaged nor agreed by the parties that questions of law arising in the course of determining the legal boundary would not be decided by the independent expert, but would instead have to be referred to a court for determination.
There was no rule that a determination by an expert could not, as a matter of principle, include determination of a disputed question of law. Neither party could appeal against the award merely on the basis that it was mistaken. Where parties had agreed to be bound by the report of an expert, then, in the absence of fraud or bad faith, the report could not be challenged on the ground that mistakes had been made in its preparation unless it could be shown that the expert had departed from the instructions given to him in a material respect: Jones v Sherwood Computer Services plc [1992] 1 WLR 277; [1989] EGCS 172 applied. In reality, the appellant was seeking to challenge the merits of the award, contending that the independent expert should have treated the plan attached to the 1965 conveyance as decisive, in preference to the other evidence to the contrary.
In his report, the independent expert had painstakingly analysed the material before him in reaching his conclusions on the correct boundary line. In the later joint report, he had carried out a full and careful analysis, taking into account the 1965 conveyance and concluding that the revised boundary line was about 160mm to the west of the boundary line identified in the award. While the appellant disagreed with the conclusions of the independent expert, the independent expert’s analysis and exercise of judgment was well within the scope of his instructions, whether his conclusions were right or wrong, and it was accordingly not open to challenge.
The judge had not misunderstood or overlooked the extent of the agreement and disagreement between the joint experts, based on the documentary evidence. He had correctly focused on the decision made by the independent expert, and whether the award ought properly to be set aside. The appellant’s surveyor was not the appointed joint expert for the purposes of the award, and so, even if he disagreed with the independent expert as to the boundary line, that would not of itself affect the validity of the award.
Kevin Leigh (instructed by Dean Wilson LLP, of Brighton) appeared for the appellant; Nicholas Barnes (instructed by Henchleys) appeared for the respondents.
Sally Dobson, barrister
