Saving the parties to a property dispute.

Disputes over land can blight a property, and a recent case shows that Judges don’t like hearing them either [Bradley v Heslin [2014] EWHC 3267 (Ch)].

The Judge set the tone by opening with “Rather to my surprise I find myself trying a case about a pair of gates in Formby….”. While he quite correctly gave the case the serious consideration that the parties would expect, he reinforced the message that parties to property disputes should make sure that they have fully exhausted alternatives to Court, or at the very least make sure that they can demonstrate that they have done their best to do so.

The facts of the case were no doubt important to the parties, and so deserve a mention, even though they will eclipsed by the Judge’s comments about the case having reached him at all. They revolved around gates that one party had erected on a drive, and that the other did not want there. Having failed to resolve their differences, the Defendants simply padlocked them open.

The Judgment would not have made comfortable reading for the parties. The Judge said “Sensible neighbours would have sat round a table and worked out either a regime for closing the gates……or the installation of remotely operated electric gates.” Needless to say they did not and Court proceedings followed.

The Judge went further and suggested that parties to a neighbour dispute needed “saving from themselves” and it is no longer enough to simply leave them to dictate how they conduct their case.

He gave clear guidance that the Court should give directions to the parties to take all reasonable steps to resolve the dispute by mediation, and set out what those directions might include; a stay, a direction that mediation costs be borne equally and form part of the costs of the case, and directions to a speedy conclusion of the case after the stay.

So parties can expect their solicitors to push them very firmly towards a solution outside the Court room. The Judge quoted from another case, which said “It depresses me that solicitors cannot…..persuade their clients to put their faith in the hands of an experienced mediator”.

While heeding the Judge’s warnings here, it is still important to prepare your case properly and understand your strengths and weaknesses. The Judge also pointed out that property litigation can “raise points of novelty or difficulty”. Legal advice provides that background and lays the ground work for better terms if you can settle, or a successful conclusion if you can’t.

The Court is there to provide a medium to decide those cases that cannot be resolved outside a Court room. However the Courts are likely to continue to push parties towards mediation, especially in property disputes.

For further information about this article please contact our Commercial Property Team

Mark Fabian
Partner, Head of Commercial Property
Direct Dial: +44 (0)1242 246420
Mobile: +44 (0)7834 573 572
Syed Alam
Senior Associate
Direct Dial: +44 (0)1905 746482
Mobile: +44 (0)7715 060 309
Philip Parkinson
Partner, Head of Commercial Property - Worcester
Direct Dial: +44 (0)1905 744813
Mobile: +44 (0)7917 777 893