Years ago when I was very new to the law, I was instructed in a boundary/right of way dispute and sent to a site view in a small Berkshire town. My client was an old lady who owned quite a bit of the town. The dispute centred on a strip about 50 yards long, maybe several feet at its widest, tapering to nothing.
The dispute looked more ridiculous on the ground than it did on paper and my advice to the old lady was that she was wasting her time and money. She smiled sweetly, thanked me cordially and I left. By the time I reached home, the phone was ringing. It was my clerk. Much to his chagrin, I had been sacked.
Telling people what they do not want to hear seldom goes down well in the law, especially where boundaries and rights of way are concerned. Maybe I could have taken a more emollient approach, having ensured the prospects were fully explained and that she knew the score, and fought the two week trial that subsequently unfolded at the County Court, and which she lost spectacularly. Maybe I should have made greater allowance for the facts that she owned land that would benefit from a right of way of greater proportions and this was a trial of strength with a local developer whom she despised to a degree that the Hatfields and McCoys would have understood.
I recite this tale to illustrate the problems that face lawyers when representing litigants in cases like this. I have lost count of the times when a client would remind me that Lord Denning had said that an Englishman’s home is his castle. I am still getting it now as a mediator. Trouble is that where the boundaries of the castle begin and end is often very complex and obscure and sometimes is only resolved after one side ends up paying so much in costs that he has to sell his castle.
Most litigants have no idea how complex these matters are. Plans are often inaccurate and at variance with what is on the ground, the rules governing the admission of extrinsic evidence are a minefield. There are all kinds of arcane principles that are not always easy to apply and adverse possession is as tricky as ever to make out. Currently also, the FTT and the UT are sending out mixed messages regarding their jurisdiction under Section 60(3) of the Land Registration Act 2002 and all the foregoing is before you get to the biggest lottery of all, the judge you get on the day.
Trying to explain all of this to the litigant in his castle in the first flush of the case and having no understanding of the English Legal System or how it can chew him up and spit him out is not easy, particularly when he has an unshakable belief in his case (these days supported by a little selective research on the internet) and, more often than not, a degree of antipathy towards the other party.
But this is the time when the litigant in his castle needs to be firmly directed towards mediation. If there is ever an area of dispute resolution where that direction should be mandatory it is this. Absent that, persuading parties to these kinds of property disputes to mediation at an early stage is a must. If nothing else, it can represent another independent perspective that can encourage the parties to look at the case from more enlightened and constructive perspectives and hopefully avoid the potential car crash ahead.