Blog | Trivial pursuits: can you steer your clients off costly court battles?

fullsizeoutput_13a7How can we stop neighbour disputes finding their way to court, wonders Jean-Yves Gilg

4 September 2017

Neighbour disputes are not popular with judges and the Dickinsons’ case will do little to change that perception. A dispute, that can only be described as trivial, escalated into a four-year legal battle that could cost the couple as much as £200,000. Last month the Court of Appeal ruled against them, agreeing with the findings of the county court judge, and anybody reading the judgment will wonder: how did they even get this far?

The case started when the couple’s neighbour, Mojgan Casillas, brought proceedings against them in 2013. Her gas and electric meters, although attached to her property, can only be accessed via their drive. Similarly, inspecting the wall of her property to assess whether repairs are needed may only be done from the Dickinsons’ land.

Casillas had sought permission from the Dickinsons to read the meters and check the wall. They refused, objecting she had no such rights. The schedules to the property transfer, they argued, provided strictly that entry to the property was solely for maintenance and repairs, not for inspection purposes. They also put up a locked gate barring access to their drive.

Having reached a dead end, Casillas applied to the county court for a declaration that she had a right of inspection and a right to read her meters, and for an injunction preventing the Dickinsons from interfering with her rights.

In a judgment highly critical of the Dickinsons, the judge at first instance found in Casillas’s favour. Upholding the ruling on appeal, Lord Justice David Richards was equally scathing.

On costs, Richards LJ also left the judge’s findings untouched: “Where most neighbours would have found a sensible solution to the problems that arose between them, Mr and Mrs Dickinson took their stand on what they considered to be their strict legal rights. To their great cost, they were wrong about those rights.”

What prompted that remark is the legal bill presented by Casillas, which is “well over £200,000” and “an extraordinarily high figure for a case involving a minor property dispute”.

Two Part 36 offers were made and rejected, meaning the costs will be assessed on an indemnity basis, removing the need for the costs to be proportionate. They will still need to be reasonably incurred, but they are likely to remain high.

We don’t know whether there was an attempt at mediation. The suggestion is that the relationship between the parties has been difficult almost from the day Casillas bought her property in 2002. The ruling also refers to the Dickinsons’ “failure to engage in any genuine or realistic attempt to settle the case”. And there is a further suggestion that they had a “collateral agenda”, which was to get the meters removed. This may be a perfectly legitimate objective but how was a case like this allowed to reach the Court of Appeal?

Judges have repeatedly warned against taking calamitous neighbour disputes to court, they have criticised refusals to compromise, and reminded prospective litigants about the immeasurable human misery this creates. These warnings have fallen on deaf ears.

In recent years, a new front has opened. Senior judges are suggesting mediation could be made compulsory. Lord Neuberger, the Supreme Court’s outgoing president, has brought his support to the extension of MIAMs to some civil cases. And the online court project, backed by the likes of Lord Justice Briggs, is giving small claims’ mediation further momentum too.

Before such alternatives get traction, however, a deeper cultural shift needs to take place. On appeal, the Dickinsons’ counsel – perhaps in a last minute attempt to keep a looming adverse costs order under control – submitted the matter could “conveniently be dealt with by notice to Mr and Mrs Dickinson when access is required”. That suggestion came four years too late – and was rejected by Richards LJ, who said the Dickinsons’ past conduct indicated otherwise.

Were the Dickinsons offered mediation, what was their response, and why did their lawyers take on the case? We may be missing some information about what went on but this is yet another reminder that more needs to be done to steer clients in such cases away from court, and much more actively so than at present. Perhaps it’s time to think about a positive duty on lawyers. It would need to be very clearly defined, but in the light of this case, there appear to be few options left to curb unreasonable behaviour.

This story was first published on Solicitors Journal on 4 September 2017 and is reproduced by kind permission

 

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