Gibson & Anor v New & Anor [2021] EWHC 1811 (QB) (01 July 2021)

Gibson & Anor v New & Anor [2021] EWHC 1811 (QB) (01 July 2021)

The appeal was dismissed because the appellants failed to plead the 'land surveyor' point in their Defence, and the judge was entitled to exclude it. The settlement agreement was a valid boundary agreement not requiring all legal owners or compliance with section 2 of the 1989 Act. The expert determination by a RICS building surveyor was sufficient. The costs order, including indemnity and pro bono costs, was justified due to the appellants' unreasonable conduct.

Citation
[2021] EWHC 1811
Parties
Respondent/claimant: Stephen Wayne Gibson; Respondent/claimant: Karen Gibson; Appellant/defendant: Philip New; Appellant/defendant: Denise New
Jurisdiction
England and Wales
Judgment Date
01 July 2021
Procedural Posture
Civil Appeal / High Court Appeal From County Court Preliminary Issue Judgment
Outcome
Appeal dismissed
Legal Topics
Boundary Disputes, Expert Determination, Settlement Agreements, Pleading Requirements, Costs (indemnity and Pro Bono)
Property Law Civil Procedure Boundary Disputes Expert Determination Settlement Agreements Pleading Requirements Costs (indemnity and Pro Bono)

Case Brief

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Parties

Stephen Wayne Gibson

Respondent/claimant

Karen Gibson

Respondent/claimant

Philip New

Appellant/defendant

Denise New

Appellant/defendant

Procedural Posture

Civil Appeal / High Court Appeal From County Court Preliminary Issue Judgment

Legal Issues

  1. 1 Whether parties are bound by the expert determination under a settlement agreement despite the expert not being a 'chartered land surveyor' as specified
  2. 2 Whether failure to plead a point in Defence precludes reliance on it at trial
  3. 3 Whether a boundary agreement requires all legal owners to be parties or to consent

Ratio Decidendi

The appeal was dismissed because the appellants failed to plead the 'land surveyor' point in their Defence, and the judge was entitled to exclude it. The settlement agreement was a valid boundary agreement not requiring all legal owners or compliance with section 2 of the 1989 Act. The expert determination by a RICS building surveyor was sufficient. The costs order, including indemnity and pro bono costs, was justified due to the appellants' unreasonable conduct.

Court Disposition

Appeal dismissed

Orders

  • Declaration that parties are bound by the Stephenson Report demarcating the boundary between 24 and 25 Sunnymede Close, Benfleet, Essex SS7 3QT
  • Defendants to pay claimants' costs on the indemnity basis, including pro bono costs under s.194 Legal Services Act 2007