Appeals can be costly

Ignoring the Party Wall Act can be costly: Rasheed v Sharif [2014] EWCA 3 Civ 377

In a decision recently handed down in the Court of Appeal (Civil Division) on appeal from the Central London Civil Justice Centre. The Appeal was before Lord Justice Jackson and Lord Justice Elias.

Mr Mark Glover appeared for the appellants and Mr Oriel Hinds for the respondents. The case was specifically about an appeal of a boundary dispute, which could have been avoided if the Act had been initiated. The central issues were whether the defendants’ had committed a trespass by constructing a shed at the end of their garden, using part of an historic wall at a point where the claimants back garden and the defendants met and whether the defendants should demolish the north wall of their shed.

Upon hearing the matter at the Central London County Court District Judge Langley held that the historic brick wall (at the point where the two gardens met) belonged to the claimants. The ownership of the wall had not been challenged and after a period of 19 years after the construction of this historic wall by a previous owner, the claimants had therefore established a right to the land, adopting adverse possession principles.

District Judge Langley granted an injunction and ordered that the rear wall of the shed be removed and to reinstate the historic wall. The matter was appealed and the appellants advanced a number of detailed points, however their Lordships concentrated on the main points that were advanced during the oral hearing of the appeal.

There was evidence from Mr Hussain (the previous owner of the property) that he had replaced a previously existing wooden fence with a brick wall (referred to as the historic brick wall) and that he had maintained that wall ever since. Mr Hussain further alluded to the fact that he had built the wall on his land along the line of the boundary. In party wall matters this is defined as a wall on the line of junction and not a party fence wall.

However, since the historic brick wall was 225mm thick it was held that it did not necessarily confirm that the wall had been built on Mr Hussain’s property and in paragraph 7 of his statement he suggested that the natural inference was that it was a party fence wall in other words a wall built partly on the land of both parties properties.

The matter turned on Mr Hussain’s witness statement, having been interviewed by the claimants solicitor their Lordships considered that if Mr Hussain was willing to say that he had built the entire width of the wall on his own garden, the solicitors should surely have included that in the witness statement. Indeed, it would have been the most important part of his witness statement. Mr Hussain’s witness statement contained no such assertion!

Their Lordships considered that District Judge Langley fell into error on this particular point and that the brick wall was not built entirely on Mr Hussain’s land (now the claimants land) that it was therefore a party fence wall and held that adverse possession was created following the complete use and occupation of the wall.

The Judge had rejected the defendants evidence that the claimants had agreed to what the appellants were doing and therefore the defendants were not entitled to carry out such substantial works to the party fence wall without (a) serving appropriate notice under the Party Wall Act, and (b) following the statutory procedures. Accordingly, it was held that the defendants works to the party fence wall constituted a trespass. Their Lordships rejected the injunction handed down by District Judge Langley and determined that whilst there was a trespass it was very modest and assessed the appropriate remedy for the damages for trespass as a financial payment in lieu of an injunction and awarded £300 compensation. However, the sting in the tail is the determination on the costs, their Lordships determined that each of the parties will bear its own costs of the entire litigation.

Now disclosure of the costs for this litigation is not known and will probably never be known because each party will have to pay their own costs and there will be no detailed assessment, but taking an appeal to the High Court is a costly process and could easily be circa £50 - £50k per party.