Costs Disaster Follows Appeal on Land Dispute Failure

Boundary disputes are by no means uncommon, especially in rural areas, where the apparent boundaries can move over time and of which maps, which are never exactly precise, tend to be less accurate than those covering urban areas.



Accordingly, over time a legal rule of thumb has arisen called the ‘hedge and ditch rule’, which is a legal presumption that the boundary line of an agricultural property that is bounded by a hedge and ditch will lie on the opposite edge of the ditch from the hedge.



The idea behind the rule is that anyone digging a ditch will dig it at the extremity of their own land, but not on their neighbour’s land.



In a recent case, the County Court heard the original dispute regarding the boundary between two properties and concluded that the hedge and ditch rule applied.



The decision was then appealed by the losing party, who brought new evidence requiring the Court of Appeal to examine the issue again.



The details of the case (which was essentially about whether the plan showing the boundary was incorrect and whether a strip of land had been retained on an earlier sale) are of lesser import than the costs of the case relative to the value of the land in question.



The writing was clearly on the wall for the litigants when Lord Justice Briggs remarked in his judgment that ‘the result is that the analysis of the critical question whether the presumption underlying the hedge and ditch rule can be rebutted in the present case has needed to be conducted afresh in this court. It is only a small mercy that this (together with other issues) has taken two, rather than four days. The result is that the challenge to the applicability of this simple rule has occupied two courts and four judges for no less than six days of painstaking analysis, not to mention time for pre-reading and judgment writing, and the involvement of four counsel, including senior leading counsel in this Court, all in relation to a dispute which, however riveting for the parties, can only sensibly be described as modest, in terms of value at risk other than costs.’



The Court rejected the appeal and supported the original decision that the hedge and ditch rule applied. The loser now faces a very large bill for legal costs over land of a small value.



This is yet another case in which the parties ‘dug in’ and the desire to ‘have their day in court’ overruled their common sense.