by Martin Burns, RICS
When neighbours go to court, both risk losing more than just an argument. The consequences of litigating a residential neighbour dispute is that the winner is often also a loser. Litigation can be inordinately expensive. Both neighbours will inevitably lose a great deal of money, and many can end up damaged emotionally and socially.
After months, maybe years, of dispute, involving a long and expensive route to court there will be a few days of emotionally charged judicial hearing and the immediacy of a judge’s decision. Then, in the days and weeks that follow the court’s judgment, each neighbour must contemplate the future. The neighbours may continue living next to each other, albeit most likely in continued state of hostility. Alternatively, one or both neighbours may decide to sell up and move away, only to discover that litigating their dispute has had a negative impact on the price they can achieve in the sale of their property.
Against this cheerless view of the reality of residential disputes, there is hope for the future. This comes in the form of high level commitment from the government and judiciary to find and implement ways to help neighbours resolve disputes quickly and amicably, and avoid the need for court action. The Civil Justice Council (CJC) at the request of the Ministry of Justice (MoJ), has been looking at ways to improve the resolution of neighbour disputes. A Working Group set up by the CJC has been consulting with the Royal Institution of Chartered Surveyors (RICS) and the Property Litigation Association (PLA), which have been working together to develop helpful guidance and alternative methods to resolve disputes between neighbours.
The PLA has recently published a protocol for neighbour disputes which places Alternative Dispute Resolution (ADR) as central to resolving boundary issues. RICS receives 1000s of phone and email enquiries each year from residential owner/occupiers, who have fallen out with their neighbours. RICS provides comprehensive guidance on boundary issues and currently offers a specialist neighbour disputes ADR service.
Given that it is unlikely to find favour with senior judiciary, it seems the CJC Working Group will not recommend a pre-action protocol. However, in considering the input it has received from RICS and the PLA, it could well include in its final report to the MoJ recommendations for courts to encourage would be litigants to use a joint RICS/PLA dispute resolution procedure.
A real challenge for the CJC, and others, is overcoming the intransigence of neighbours who want their day in court. Neighbour disputes often involve people who have gone well past the point where they are ready to have an open dialogue with each other. Disputing neighbours, who are already exploring the litigation option, are seldom able to maintain an open mind. Many will have let go of the ability to accept evidence or information that may cast doubt on their cast iron assumptions on a matter such as the location of their boundary line.
Because of its adversarial nature, litigation can only serve to increase polarisation of views, but steering disputing neighbours away from litigation represents a big challenge. Even so, it is apparent that all those involved in the CJC initiative are committed to finding a way to imbed a default ADR system into the preaction stages, and head off disputes before the court stage where battle lines tend to be very firmly drawn. The PLA and RICS are now in discussions about a joint ADR system, which will be reliable and cost effective. Current thinking is that the ADR system should provide disputing neighbours with options e.g. for non-binding determination or mediation. It should also give them access to impartial professionals who have legal and/or technical expertise, and genuine experience in dealing with residential boundary disputes. Once the new ADR system is set up, which should be soon, it will be possible for the CJC and judiciary to construct some robust messages to encourage ADR and perhaps also warn on cost consequences if the messages are ignored. This will hopefully improve the uptake of ADR, and reduce the number of residential neighbour disputes that end up in court.
Martin Burns – 29 March 2018