The matter started life as a boundary dispute, but after a while it was just a dispute…
The above phrase goes some way to encapsulating the spiralling events, occurring over the course of a decade, which led to the weeklong trial in the case of Ogle v Hickey & Hickey (sadly unreported). I represented Dr and Mr Hickey (“the Hickeys”) who succeeded across the board at trial and went on to be awarded their costs on the indemnity basis. With that judicial vindication, the Hickeys’ desire to see the matter through to trial was understandable, despite the fact that we all know the Courts have long discouraged the litigation of boundary disputes, and we as legal advisors stress this to clients as a matter of course.
Overview
This case, however, went far beyond a standard neighbour fall-out and included everything from the covert recording of an alleged boundary agreement, the alleged intentional destruction of pivotal boundary markers, a formal expert determination (that wasn’t) and discussions between the parties at the time of the purported agreement which according to the Judge were as ‘serpentine’ as the to-be-constructed wall which eventually marked the division between two of the three relevant properties… There was a lot going on.
Fought over five days before HHJ Clarke, the facts relevant to the dispute stretched back to 2013. In a nutshell, farm outbuildings were sold off to two different parties for development. A reasonably familiar barn conversion scenario; but with two barns. The Hickeys bought one barn, the Pond Barn, and Mr Ogle the other, the Old Dairy. The remainder of the farm was retained by the vendors, Reverend and Dr King. The precise location of the boundary between the barns was the key issue in the case.
Little would have turned on the precise boundary lying, essentially, in what was once an old farmyard save for the fact that the division between two planned double garages (one for each property) fell along the line of the said boundary. There was a finite amount of space for the total garage area, such that, if the boundary did not split the area equally, not only would one party functionally receive a bigger garage than their neighbour, but the aesthetics and functionality of the smaller garage would also have been affected. Bluntly put, a lopsided and impractical result.
The Arguments
The Hickeys pointed to the conveyance documents and sales particulars and argued that the clear intention was for a 50/50 split of the relevant area. I should clarify that at the point of sale the garage buildings were present only on plans and the sale documents (so were to-be-constructed), and in real life decrepit old stores (“the Stores”) and a granary were present on the land. Interestingly the sales particulars and conveyancing plans amalgamated existing and future to-be-constructed buildings without clear distinction, which begat at least some of the confusion in the case.
The Hickeys’ main contention on the boundary question was this: their sale completed first and thus defined the boundary, and they reasonably understood that they were getting a 50-50 split of the available garage space based on the sale documents and what they saw on the ground. There was, however, substantial factual dispute over what was or was not there to be seen – an array of boundary stakes, painted marks on the Stores and paint on the ground were variously in dispute. The Hickeys argued that the boundary was intended to bisect the available area, ending with the known boundary of the retained land – a serpentine wall (“the Serpentine Wall) which was one of the to-be constructed existences shown on all the conveyance documents, but which was not in existence at the time of the relevant sales. There were, however, it became clear at trial, serpentine paint-marks on the ground at the time when the parties viewed the barns.
Mr Ogle argued his share of the garage space was larger than his neighbours’. He relied upon, in the alternative:
(1) A binding boundary agreement allegedly formed during a covertly recorded conversation in the presence of “the Expert” (see below…) who had been instructed in respect of the boundary and who produced an expert report of sorts;
(2) An alleged expert determination by the said Expert, though where the Expert’s instructions and conclusions were plainly of a higgledy-piggledy nature; and
(3) A boundary determination as at the time of the conveyances based on various somewhat cherry-picked planning documents which suggested that the rickety old Stores sited where the garages would lie were to be retained and converted, not demolished, and which allegedly showed the boundary to be a clear and ascertainable physical point – a visible gable on the Stores.
The Decision
After significant cross examination, including a few surprises from the witness box, the Judge decided the following:
a) There had been no binding expert determination;
b) There had been no binding boundary agreement;
c) There were sufficient physical markers at the time of the conveyance, when combined with what was shown in the conveyance documents themselves, to tell a reasonable buyer that the to-be-constructed garage space was to be bounded by the to-be-constructed Serpentine Wall. Further, the clear intention at the time of the sale was for the relevant available space to be split precisely in two – with the relevant bisection forming the line of the boundary. This was, for the avoidance of doubt, what the Hickeys had contended for.
As with nearly all such cases, much turned on the facts as opposed to the law, and given that the matter was some 12 years in the making, the facts were quite labyrinthine (as well as serpentine…).
The Judge was still, however, faced with various legal issues to resolve.
First, the boundary agreement allegedly formed during a meandering conversation between the parties and the Expert around the time of (but separate from) the alleged expert determination. The Judge noted that the Court of Appeal had found implied boundary agreements in Burns v Morton [2000] 1 WLR 347 and Stephenson v Johnson [2000] EG 92 (CS) and had recently confirmed in White v Alder [2025] EWCA Civ 392 that boundary agreements may be oral or implied from conduct. That being so, a boundary agreement of the kind contended for was certainly viable in principle. However, on the facts the relevant conversation, which had been recorded and thus was available in full by way of transcript at trial, was too uncertain, unwieldy and predicated on misunderstandings and caveats to constitute a final and binding agreement. In some senses, the full recording actually worked against the party who had covertly made it, as it highlighted that sentences which were said, and which prima facie appeared like real agreements in their immediate context, were in fact part of a cobweb of ambiguity and talking at cross-purposes.
In respect of the boundary construction issue, the Judge applied Pennock v Hodgson [2010] EWCA Civ 873 and found that evidence of the physical features on the land was of great significance in determining what the reasonable man would have thought they were buying at the point of sale. When viewed in the round the sale documents, even including some confusing planning documents which might have pointed to a different conclusion, combined with the paint markers on the Stores and on the ground, meant that the 50-50 split based on a boundary with the Serpentine Wall was the correct outcome. This was what the Hickeys had always contended for. Interestingly and by way of a partial aside, the correct location of the Serpentine Wall (a different boundary) had itself been functionally decided by an implied boundary agreement between Mr Ogle and the Kings, the original vendors and owners of the retained land. Mr Ogle had in effect acquiesced in the siting of the Wall, and even purported to rely upon the position of the same, leaving his later suggestions that it had been put in the wrong place unpalatable and unconvincing.
Mr Ogle also contended that the parties had agreed to a binding expert determination of the boundary, which the Expert had resolved in his favour. This was, from a distance at least, a fair contention: an expert had been involved with the agreement of the parties, and the Expert himself produced a report and suggested he had resolved the boundary issue. However, the Judge disagreed with Mr Ogle and found for the Hickeys on this issue too. The Expert had in fact been instructed simply to measure, mark and draw up a scale map of the boundary as set out in the transfer plan – not to tackle the far larger issue of determining the boundary once and for all.
Costs & Conclusions
Because – (1) the Hickeys won on all key contested areas in the case, (2) the Judge’s boundary determination was perfectly in line with their contention, and (3) they had beaten an offer they made way back in September 2022 – they were awarded their (significant) costs on the indemnity basis from the time of the said offer onwards. Thus while it is still very much the case that the Courts strongly discourage litigating boundary matters, this case perhaps provides some comfort that parties who stick to their guns, but who also make sensible offers and are ultimately correct in their analysis, will be vindicated by the Courts both in the substantive outcome and on costs.
One other thing that stands out in this case is the danger which arises when a clear boundary is not described in the sale documents at the point of sale. This is especially so when what will be constructed in the future is a key part of what is being sold in the present. In this matter presently existing and future to-be-constructed buildings sat side by side and intermingled on the transfer plans. With hindsight, a recipe for ambiguity, if not disaster. Further, there were no measurements on the transfer plans and no clear references to existing features or even the marks made on the ground, which all added to the scope for argument between the parties. Surveyors, estate agents and solicitors involved in the conveyancing of conversion properties would be well advised to avoid similar pitfalls going forward.
Another point worth highlighting is that expert evidence played an extremely limited role in the trial of this matter. Neither party’s expert had access to information regarding the existence of contemporaneous marks on the Stores and on the ground, in part because there was so much factual disagreement regarding the same. As a result, their evidence was more or less wholly superseded by the factual findings.
Taking a big step back, amidst the undulations of the legal arguments, facts (and walls…) involved, the outcome represented a victory for common sense. A one-second glance at the transfer plan and a 15-second sprint round the land at the point of the sales, noticing what had been marked there, with one-second further to make a decision, would in all likelihood have pointed to the 50-50 split bounded by the to-be-constructed Serpentine Wall marked out in paint. It is no coincidence that over a decade later the result was entirely in line with that. This itself serves as reminder to lawyers about the dangers of overcomplication.
Lastly, while the matter represented vindication through the Courts for the Hickeys, bearing in mind the outcome from Mr Ogle’s perspective, the case must also serve as a further warning to those tempted to litigate rather than resolve a neighbour dispute; the costs of a 5-day trial are by no means insubstantial, especially when paid on the indemnity basis.