Kuligowski v Kuligowski [2003] EWCA Civ 1896

Case No B2/2003/1727

[2003] EWCA Civ 1896

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM BURY COUNTY COURT

(Mrs Recorder Wilby)

Venue Royal Courts of Justice

Date Thursday, 11th December 2003

Strand

London, WC2

B E F O R E:

LORD JUSTICE PETER GIBSON

LORD JUSTICE JACOB

SIR MARTIN NOURSE

Between

EDWARD PETER KULIGOWSKIAppellant

SHARON LORRAINE KULIGOWSKIAppellant

-v-

Between

PETER KENWARDRespondent

MAUREEN OLIVE EMILIA KENWARDRespondent

(Computer-Aided Transcript of the Palantype Notes of

Smith Bernal Wordwave Limited

190 Fleet Street, London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

MR WILSON HORNE (instructed by John Hardman & Co, Manchester M3 2JA ) appeared for Appellants.

MR SIMON BURRELL (instructed by Howarth Maitland, Bury, Lancashire BL9 0EX) appeared for Respondents.

J U D G M E N T

(As Approved by the Court)

Thursday, 11th December 2003

J U D G M E N T

LORD JUSTICE PETER GIBSON:

Sir

[1]Martin Nourse will give the first judgment.

SIR MARTIN NOURSE: This is a boundary dispute between the owners of two properties on an up-market residential estate at Ramsbottom in Lancashire. The estate was owned by a development company called Rosebank Developments Ltd ("Rosebank”), which sold it off as a group of self-build building plots. In January 1994 the defendants, Peter Kenward and his wife, Maureen Amelia Kenward, became the owners of Plot 7, on which they built the house that is now 21 Rosebank. In January 1995 the claimants, Edward Kuligowski and his wife, Sharon Lorraine Kuligowski, became the owners of Plot 8, on which they built the house that is now 19 Rosebank.

[3]The defendants became the owners of Plot 7 by an agreement in writing dated 7th January 1994 and made between Rosebank and themselves, by which Rosebank agreed to execute a transfer in their favour in the form annexed thereto. For reasons which have not been explained to us, no transfer had been executed by the time of the hearing in the court below. However, no objection to that was taken by the claimants and the matter proceeded on the footing that a transfer in the form annexed to the agreement (“the 1994 transfer”) had been duly executed and the defendants registered as the proprietors of Plot 7. The 1994 transfer referred to the property transferred as:

“PLOT NUMBER 7 Rosebank Estate ... as more particularly described in Schedule One.”

Schedule 1 described the property as being:

“ALL THAT LAND shown edged red on the [annexed] Plan being part of the Estate.”

[4]The outcome of the dispute depends, in the first instance, on the true construction and effect of the plan annexed to the 1994 transfer (“the 1994 plan”). It must therefore be considered with some care in the light of the surrounding circumstances. The estate formerly comprised the site of an old mill and its associated buildings. Plot 7 is higher than Plot 8, the boundary between them running along the line of a wall of a weaving shed (“the old wall”), the rest of which was demolished in order to make way for the housing development. Curiously, the 1994 plan appears to have had no compass points marked on it. For descriptive purposes, I will assume that north is at the top, south at the bottom and so on. The old wall, which runs from north to south, had buttresses protruding on its western side facing Plot 8. Plot 7 is on the east. Within the red edging, at a point about half way along the boundary, appears, in the handwriting of Mr Edward Carswell, the managing director of Rosebank, the following legend:

“BOUNDARY 600MM FROM REAR. OF RETAINING WALL.”

There is also an arrow running from the B of “BOUNDARY”, the head of which runs up to, but not beyond, the red edging. On the western side is drawn the line of the old wall, showing the buttresses facing Plot 8. It is not in dispute that both the legend and the arrow were written on the plan before the agreement of 7th January 1994 was entered into. OF RETAINING WALL.”

[5]The claimants became the owners of Plot 8 by virtue of a transfer made by Rosebank in their favour dated 16th January 1995. Except that it related to Plot 8 and not to Plot 7, that transfer was in the same form as the 1994 transfer, that is to say, the land transferred was described as the land shown edged red on the plan attached thereto. The red edging on that plan delineated Plot 8 and it showed the same legend and the same arrow, together with the old wall. In other words, the plan was exactly the same as the 1994 plan, except that it delineated Plot 8 and not Plot 7.

[6]In his witness statement the first defendant said that, because Plot 7 was raised above Plot 8, he felt it would be necessary to shore up the bank between them in order to stop his land falling into Plot 8. He added that one way of achieving that was to erect gabions, which are metal cages filled with stone and rock, placed on top of each other and stepped to achieve a retaining wall. Accordingly, in June 1994, before the claimants had acquired Plot 8, excavations were started on Plot 7 and the first defendant employed Mr Raymond Kershaw of Kermac Construction to install three rows of gabions. In his witness statement Mr Kershaw stated that the gabions were positioned 600mm from the side of the old wall facing Plot 8. He said that the installation took place over a period of three weeks approximately and was completed during the first week of July 1994. At the end of 1995 or the beginning of 1996 a fourth row of gabions was laid on top of the three existing rows.

[7]In their witness statements the claimants said that, although they saw the first three rows of gabions going up, contacted Mr Carswell and raised objections with the first defendant, asking him to move the gabions off Plot 8, they did not have the time or money to force the issue at the time. After further disputes with the defendants about other matters, the claimants commenced the present action in the Bury County Court on 9th September 2002. By their particulars of claim they alleged that, upon the true construction of the 1994 plan, the boundary between Plots 7 and 8 was 600mm (about two feet) from the side of the old wall facing Plot 7. In consequence, as they further alleged, parts of the first three rows of gabions encroached over the boundary and accordingly amounted to a trespass. Further or alternatively, they alleged that the gabions constituted an actual or apprehended nuisance. They claimed, first, a declaration in accordance with their construction of the 1994 plan, secondly, an injunction compelling the defendants to remove the gabions insofar as they encroached over the boundary, thirdly and in the alternative, an order that the defendants should take such steps as the court should think fit to prevent the movement and collapse of the old wall and the gabions.

[8]By their defence the defendants admitted that the boundary was 600mm from the edge of the retaining wall, but they averred that that measurement was to be taken from the side facing Plot 8. They further averred that Kermac Construction placed the gabions in the position which had been agreed between the defendants and Mr Carswell on behalf of Rosebank, and that the placing of the gabions was done with the full knowledge and consent of Rosebank. The allegation of trespass was denied. They raised an alternative claim in estoppel to which reference will be made in due course. The allegations of nuisance were denied. The defendants counter-claimed for a declaration that the boundary was 600mm from the side of the old wall facing Plot 8. They also counter-claimed for further relief, but that claim was not pursued at trial.

[9]The trial took place before Mrs Recorder Wilby at Bury on 17th, 18th and 19th June 2003. She had before her witness statements, amongst others, by the claimants and Mr Carswell on one side and by the first defendant and Mr Kershaw on the other. There were also expert reports by Mr K W Skelhorn, a chartered surveyor, on behalf of the claimants and Mr D J Clarke, an architect, on behalf of the defendants. The two experts put in a short joint report summarising the points on which they were agreed and those on which they disagreed, together with an agreed sketch plan showing the old wall with measurements from it based on the contentions of each side. Finally, there was a report by Mr C R Carley, a civil engineer jointly instructed by the parties, which related only to the claim in nuisance. The Recorder heard oral evidence from all of these witnesses. We have not seen any transcripts of that evidence, no doubt because the costs of obtaining them would add far more than they would be worth to the costs already incurred. This does, however, mean that we cannot rely on the written evidence on any controversial matter in respect of which the Recorder did not expressly or impliedly make findings.

[10]On 19th June, the third day of the trial, the Recorder delivered an ex tempore judgment running to nearly 19 pages of transcript, which she prefaced with an expression of regret that, though quite satisfied with the conclusion she had come to, her judgment might not be as polished as it might have been had she had more time to perfect it. On the primary question as to the true construction of the 1994 plan, having described it, the Recorder said she accepted Mr Clarke’s evidence on behalf of the defendants that the line of the boundary and the arrow had not been put on the plan with the intention of being precise. She therefore found it necessary to look at extrinsic evidence in order to define the parties’ actual intention and, having discussed that evidence at some length, concluded, on the balance of probabilities, that it was where the defendants claimed it was. Because of her findings on the primary question she did not think that she needed to go on to find whether there was a case of proprietary estoppel. She then considered, and rejected, the claimants’ claim in nuisance. In the result, the Recorder dismissed the action with costs and made a declaration that the boundary was “commensurate with the front edge of the bottom gabion, facing the side on the Claimants’ house at 19 Rosebank, Ramsbottom, Lancashire”. The counter-claim was dismissed with no order for costs.

[11]By letter dated 30th June 2003 the claimants’ solicitors applied to the Recorder for permission to appeal, but the application was refused. On 30th September 2003, after an oral hearing, permission was granted by Lord Justice Carnwath, who thought it realistically arguable that the Recorder had not addressed the critical issue of construction, and certainly had not addressed it in the correct way by seeking to construe the 1994 plan with such materials as were permissible as aids to construction.

[12]I start with the true construction and effect of the 1994 plan. In her written reasons for refusing permission to appeal, the Recorder said:

“In summary this case rested largely on findings of fact. In respect of the trespass I preferred the evidence of the defendants’ expert architect to that of the claimants’ surveyor on the interpretation of the plan.”

With all due respect to the Recorder, two objections may be taken to that. First, a question of construction of an instrument of title to land, though its outcome may be influenced by the surrounding circumstances, in particular by the topographical features existing at the time, is a question not of fact but of law. Second and more important, evidence of an expert witness's opinion as to the interpretation of a conveyancing plan is inadmissible; and no extrinsic evidence is admissible at all if the construction and effect of the plan, when considered in the light of the surrounding circumstances, is clear.

[13]In the present case the effect of the 1994 plan, when considered in the light of the circumstance that the old wall was an existing topographical feature at the time, is clear. The boundary is declared by the plan (with the assistance of the arrow) to be 600mm “from rear of retaining wall”. It is not now in dispute that the retaining wall referred to, though not originally built as such, was the old wall, retaining as it did the lower part of the slope up from Plot 8 to Plot 7. The only question is which of the two sides of that wall was intended to be described as the “rear” of it? The first defendant has consistently maintained that it was the side which had the buttresses on it, that is to say the side facing Plot 8; see, for example, his letter to his solicitor dated 4th July 1996. I would accept that that might well have been correct in relation to the old wall as it stood before the development began. However, that does not mean that that was the intention, objectively ascertained, of the parties to the 1994 transfer, in which it was described as a “retaining wall”. As a matter of plain English the rear of a retaining wall must be the side which is the nearer to that which is retained, in this case Plot 7. Moreover, the defendants’ contention would have had the very odd result that the 600mm measurement included the wall, itself of a width of 440mm, leaving a gap of only 160mm, or less than six inches.

[14]For these reasons I would decide the question of construction in favour of the claimants. On that footing, it is clear that parts of the lower two rows of gabions, perhaps part of the third row as well, constitute an encroachment over the boundary into Plot 8. Although the claimants originally claimed an injunction compelling the defendants to remove the gabions in so far as they encroached, in this court they have claimed damages in lieu of an injunction, which, by reference to the value of the land encroached upon, they put at £3,000. Mr Horne, for the claimants, has submitted that that question ought to be referred to the County Court for determination.

[15]The question of construction having been determined in favour of the claimants, it becomes necessary to consider the defendants’ claim in proprietary estoppel, which, most regrettably, the Recorder did not think it was necessary for her to deal with. I put it in that way because she had heard all the evidence in relation to that claim and would have been well able to make specific findings in relation to each constituent of it. She could hardly have thought that her decision on the question of construction was one which would not in any circumstances have to be considered by this court. For us it is doubly regrettable, in that we have seen no transcripts of the oral evidence on which we might have been able to make findings of our own. However, the Recorder’s method of dealing with the question of construction led her to make certain findings which Mr Burrell, for the defendants, has submitted can be treated as findings in relation to the claim in proprietary estoppel. Those findings will have to be carefully considered. First, it is necessary to refer to the pleadings in greater detail and to parts of the evidence in the witness statements which bear on this issue.

[16]In paragraph 5 of the particulars it is averred (h) that Kermac Construction placed the gabions in the position which had been agreed between the defendants and Mr Karswell on behalf of Rosebank and (j) that the placing of the gabions was done with the full knowledge and consent of Rosebank, the registered proprietor of Plot 8. In paragraph 7 it is averred (e) that by reason of the matters set out in paragraph 5, the claimants, as successors in title to Rosebank, are estopped from asserting that the gabions are not on land which is part of Plot 8 and (f) that if, which is denied, the gabions or any of them have been placed on Plot 8, by reason of the matters set out in paragraph 5, the claimants are estopped from denying the defendants’ right to do so. In paragraph 10 it is averred, first, that the gabions have been in place for over 8 years; secondly, that they have been in place since the claimants moved into their property; thirdly, that the claimants have acquiesced in the positioning of the gabions or have delayed in seeking their removal; fourthly, that by reason of their delay or acquiescence the claimants are not entitled to the injunction claimed or any other injunctive relief.

[17]I turn to the reply, by which paragraphs 5(h) and (j), 7(e) and (f) and 10 of the defence are denied. Moreover, in paragraph 7 it is averred that the defence fails to disclose any cause of action and denied that it discloses a claim in proprietary estoppel, the existence of each of the three constituents of that claim (see below) being specifically denied.

[18]I take the witness statements in chronological sequence. In his statement dated 12th December 2002 the first defendant, having referred to the installation of the first three rows of gabions in July 1994, said:

“9. The owner of both plots at the time, Mr Carswell, was fully aware that the gabions were being installed. He approved the positioning of the gabions, and in fact his contractors, Ruttle Plant Hire, excavated the foundations for the gabions, although Kermac Construction actually installed the gabions, Ruttle Plant Hire actually filled the gabions with the stone and also back-filled onto the restraining straps of the gabions, which are known as geogrids. 10. There is absolutely no doubt that when the gabions were installed it was with the full knowledge and approval of Mr Carswell.”

[19]In his statement dated 17th December 2002 Mr Carswell, who gave evidence for the claimants, said:

“5. I am aware that there has been something of a dispute over the erection of the gabions on the property plot number 7. I did object to Mr Kenward directly in June or July 1994 when the gabions were first erected but he ignored what I said and refused to remove the gabions. I objected because the gabions had been built on top of the boundary between the two plots, and I did not think that such structures were suitable at all as the wire must inevitably rust through in time. Another objection I had was to the use of the gabions at all as they are very unsightly in such an up-market development. I was owner of Plot 8 at the time. This was subsequently sold to Mr & Mrs Kuligowski who inherited the boundary dispute.”

In his statement dated 17th March 2003 Mr Kershaw, having referred to the installation of the first three rows of gabions, said:

“3. At no time did anyone approach me to complain about the position of the gabions although the installation was over an approx three week period and plant was available for any move if required on a daily basis.”

[20]I now refer to the material passages in the Recorder’s judgment. At page 36A she said that the first defendant was not a man who would deliberately go and put something on somebody else’s land. At page 36G she accepted the first defendant’s evidence that if Mr Carswell had made a fuss about the gabions, he would have negotiated with him and, if necessary, would have paid him a bit more money. At page 37C she said it was possible that Mr Carswell did think at one time that the boundary was in a different place from what the first defendant thought. She continued:

“I believe that Mr Carswell would be visiting the site regularly. I do not think anybody can say at exactly what stage he saw the gabions going up, but they were going up over a period of some time and I would defy Mr Carswell really to remember that in too much detail after all these years. At all events, while the men were still on site, while the gabions were still going up, Mr Carswell sees them. I think that he did have a conversation with the defendant. To some extent that is confirmed in this letter [dated 4th July 1996], albeit some time afterwards, where he stated that his original intention was for the 600 millimetres to be taken from the face of the wall nearest. He may have said something along those lines and a discussion took place, and what I think happened is roughly what the defendant said: that the defendant went and got some of his plans and essentially Mr Carswell caved in; he said, more or less, ‘Well, you know, I’ll go along with what you say -- if that’s essentially what you want, I agree with your wording. You may be right.’ Something along those lines. He was not going to argue about the boundary. He was going to agree that the interpretation that the defendant had put on it was the right one.”

[21]Having then referred to the actions of Mr Carswell in answering preliminary enquiries on the sale of Plot 8 (he had said that there was not a dispute about the boundary), the Recorder said, at page 38E:

“He said in his evidence that he knew there had been a trespass, but it was for a reasonable purpose and he was not bothered about it. However, he was bothered about it because he was bothered about the appearance of the gabions and he was bothered about planning consent in relation to the appearance ... So, he was bothered about it. If he really thought there was a trespass, that would be the obvious thing to do something about, to get these gabions down. But he does not; he goes along the planning permission line.”

[22]At page 39E-F, the Recorder said:

“Therefore, my belief is that, on the balance of probabilities, essentially the defendant said to Mr Carswell, ‘These gabions are on my land -- I’ll show you the plan.’ Mr Carswell accepts this, says, ‘Yes, you’re right. Your interpretation, I’ll go with it’ and that effectively he accepted that the end part of the gabion was on the defendants’ land. If Mr Carswell had not done that, I think he would have raised it and tried to negotiate some additional payment for the land which had been wrongly taken from him. However, I do not think he wanted to tangle with the defendant; he was quite prepared to go along with what the defendant wanted.”

Finally, at page 41B, when saying that she did not really think she needed to go on to find whether there was a case of proprietary estoppel, the Recorder said:

“If I needed to do that as an alternative, I think it is fairly clear that on the evidence that I have heard I am satisfied as to the veracity of the defendant’s recollection in that regard.”

[23]Despite the form of the pleadings, it appears to have been accepted by the claimants at the trial, and it has been accepted in this court, that the claim in proprietary estoppel is one which is open to the defendants. On that footing, and in the circumstances of this case, what the defendants had to establish was, first, that Mr Carswell, on behalf of Rosebank, had encouraged them to believe that they would enjoy a right to install and maintain the first three rows of gabions partly on Plot 8, secondly, that in reliance on that belief they acted to their detriment to the knowledge of Rosebank and, thirdly, that the claimants, as successors in title to Rosebank, have sought to take unconscionable advantage of the defendants by denying them that right.

[24]As to the first of these requirements, the Recorder’s findings amply demonstrate that Mr Carswell, by consenting, however reluctantly, to the installation of the gabions partly on Plot 8, encouraged the defendants to believe that they would enjoy the right to install and maintain them. As to the second, the Recorder having found that the material discussion between Mr Carswell and the first defendant took place while the gabions were still going up, it seems equally clear that the defendants, in reliance on their belief, thereafter acted to their detriment both by completing the installation of the first three rows of gabions and indeed by erecting the fourth row at the end of 1995 or the beginning of 1996. Mr Horne has argued that the third requirement has not in any event been satisfied. However, the claimants cannot be in a better position than Rosebank, which, through Mr Carswell, must have known, first, of Rosebank’s proprietary rights in the land affected, secondly, of the defendants’ expenditure in completing the first three rows of gabions and, thirdly, of their belief that they had or would acquire an interest in or over the land affected. In these circumstances I am satisfied that the claimants, claiming through Rosebank, have sought to take unconscionable advantage of the defendants by denying them the right to install and maintain the gabions partly on Plot 8.

[25]I hold that the claim in proprietary estoppel is made out. It remains to consider the manner in which the court ought to give effect to the equity. There has been little discussion with counsel as to what order should be made. As a matter of pleading the defendants have counter-claimed only for a declaration as to the line of the boundary, and the Recorder has made the declaration for which they asked. That may be sufficient for their purposes. But the court has jurisdiction to go further and order the claimants to transfer to the defendants the part or parts of Plot 8 on which the gabions have been installed. Further discussion of this point can take place after judgment.

[26]I turn to the claim in nuisance. Generally speaking, nuisance is only actionable on proof of damage. No case has been advanced by the claimants based on actual loss or damage. They seek a quia timet injunction. Mr Horne has made some suggestions as to what such an injunction should require the defendants to do or not to do. He says that that question, like the question of damages for trespass, ought to be referred to the County Court for determination. His problem is that before the claimants can establish a right to any injunction they must show that their property is in imminent danger of substantial damage owing to the faulty construction of the gabions.

[27]It is very difficult to understand on what basis this claim was ever advanced. The only material allegations in the particulars of claim are, first, that the erection of the gabions and their continued presence amount to an actual or apprehended nuisance and, second, that there is the possibility that either the old wall or the gabions might move, whereby Plot 7 would collapse onto Plot 8. That comes nowhere near an allegation of imminent danger of substantial damage.

[28]The starting point before the Recorder was the report of Mr Carley, the civil engineer, in which one of his conclusions was:

“I have found the structural condition of the gabion retaining wall at the present time to be satisfactory. The wall is acceptably plumb and free from structural distress. The wall, in my view, is adequately retaining the garden to 21.”

Later, further questions were put to him in correspondence, and it is said by Mr Horne that his answers demonstrated a significant retreat from his earlier conclusion. The Recorder considered that point and said that there was a possibility that the two lower rows of gabions did not have the correct geogrids at the back and, further, that the geogrids were not of the correct length. She added that there was a suspicion that the excavations were not made far enough back.

The Recorder continued, at page 42D:

“One puts on one side Mr Carley’s evidence; his opinion formed as an expert from looking at the video, etc. On the other hand, one considers, as I say, the character of the defendant. He does not strike me as a man who would cut corners. This is his dream house. He does not want that banking collapsing; he is putting his garden on top of it. Did his builder cut corners? But he is there, he is watching, he is videoing it. It would be difficult for Mr Kenward not to do essentially what he is told... Then we have the evidence of Mr Kershaw who seemed a very honest witness, who remembered doing this. Again, as I say, memories fade. He might be wrong, but equally he might not, and he confirmed that they were done and he described how he did it and so on. Either his memory is failing or he is telling terrible lies. He did not seem to me like a man who was going to tell a lot of lies.”

After further consideration of the evidence, which she described as being fairly evenly balanced, the Recorder stated her conclusion, at page 44G:

“To my way of thinking, however widely one interprets the phrase ‘imminent risk’, I do not think that the claimants would get home on this even if they were able to prove on a balance of probabilities that this construction was not to the correct standards.”

[30]In my judgment it is quite impossible for this court to interfere with the Recorder’s finding as to the absence of imminent risk or, as it may more correctly be put, imminent danger of substantial damage. I would therefore affirm her decision to reject the claim in nuisance. I desire to emphasise that nothing in this judgment is intended to prejudice any future claim by the claimants in nuisance based on actual loss or damage or imminent danger of substantial damage. Clearly, the defendants will wish to take, and the claimants will wish to allow them to take, such steps as may from time to time be necessary to prevent the occurrence of any such eventuality.

[31]The claimants having failed on both proprietary estoppel and nuisance, I would dismiss their appeal.

LORD JUSTICE JACOB: I agree. I only wish to add this, that this case is a good example of how cases can mushroom if not properly controlled, as this one was not.

[34]I have in mind particularly the allegation of nuisance. The particulars of claim merely said this:

"8. Further or alternatively, the Claimants allege that the erection of the gabions and their continued presence amount to an actual or apprehended nuisance. Further or alternatively, the Claimants will rely upon the doctrine of Rylands v Fletcher. In fact there is the possibility that either the Retaining Wall and/or the gabions might move whereby Plot 7 would collapse onto Plot 8."

[35]There was no indication of the cause of the alleged possibility. Somehow the case was allowed to develop into one whereby it was alleged that the gabions had not been properly constructed. This was, it seems, supposed to give rise to an inference, never actually made explicit, that the consequence was a real and present danger of collapse.

[36]I am not clear how the expansion took place. One major cause, however, is clearly the failure to give the joint engineering expert the proper instructions as to what he was being asked to do. He thought he was being asked to report on the gabions -- but that was clearly not good enough. He was never asked whether there was an imminent danger or risk of collapse.

[37]It is vitally important that all expert witnesses should know what they are about. This means that they should have clear instructions as to the topic and questions of opinion or fact on which they are asked to report. Where the expert is called by a party he will receive instructions from that party's lawyer. Even then, particularly in complicated cases, it is desirable that the opposite party's expert addresses the same questions. It is often desirable that the lawyers agree the questions which the experts should address -- the very process of doing this sometimes causes a settlement, for instance where the parties realise that their respective cases are as ships passing in the night. Case management powers can be used to encourage agreement as to what questions should be addressed.

[38]The need for clear instructions is much greater in the case of a single joint expert. Without them he or she is left trying to work out what they are supposed to be doing. Here the expert, quite understandably, thought he was being asked whether the gabions were properly constructed. That is not same question as to whether there was imminent risk of collapse. From his first report the problem mushroomed so that by trial questions as to whether geogrids at the back of the gabions had been properly laid, whether they had been laid by making trenches contrary to health and safety requirements, whether little stones might debauch from the front and what if anything could be done about that if that was likely. Questions as to whether a concrete slurry could be put over, or should be put over, whether a narrow mesh should be provided. All were raised.

[39]The costs of all this must have been disproportionate to the claim and the whole sorry affair comes about because, first, nuisance was never properly identified and, second, because the expert was never properly instructed.

LORD JUSTICE PETER GIBSON: I also agree that this appeal must be dismissed. I add a few words of my own on two points.

[41]The first is a question of construction on which turned the issue whether there had been a trespass by the defendants through the erection of the gabions. The Recorder's approach to this question was unconventional.

[42]She started her reasoning by general comments, stressing where the burden of proof lay and the witnesses' difficulties of recollection about events eight or nine years past, and said that what was quite instructive was to look at how people acted. In giving permission to appeal Carnwath LJ justifiably commented that arguably the Recorder had, in effect, conflated the two issues of construction and estoppel.

[43]True it is that she acknowledged, at page seven of the transcript, that if the plan attached to the draft transfer, which in turn was attached to the written agreement of 7th January 1994, did "really say it all," then "that is that", but she rejected that possibility because of what the defendants' expert, Mr Clarke, had said in evidence. He had said that the line edged red on the plan and the arrow pointing to that line with the legend "boundary 600mm from rear of retaining wall" were not put on the plan with the intention of being precise, nor were they sufficiently precise that the drawing could be relied on to give the boundary a delineation with precision to the number of millimetres indicated in that legend. Mr Clarke said that if such subtlety was being demanded from a plan, then it should have been made clearer on the plan. That led the Recorder to hold that it was necessary to look at the extrinsic evidence to define what the parties' actual intention was.

[44]I am unable to agree with the Recorder's reasoning. Her first duty was to construe the parcels clause against the background of facts known to both parties in order to ascertain what objectively was the intention of the parties. That is a question of law, not of fact. The background of facts included the existence of the outer wall of the former mill building behind which the ground rose and which, it was agreed, served at least in part to retain the soil of that rising ground. It is plain from the description of the property to be transferred in the draft transfer that the parties intended that that property be defined by the plan with the red edging indicating the boundary of the property. Moreover, the purpose of the legend, with its exact measurement in terms of millimetres and with the arrow pointing to the boundary, was plainly to identify what was the precise location of that boundary. Provided that the retaining wall and what was the rear of the wall were certain, no extrinsic evidence nor the opinions of experts were admissible to contradict what the plan indicated was the boundary.

[45]For my part I cannot see how any real uncertainty exists. There was only one candidate for the retaining wall, the wall of the old mill building, and even Mr Clarke accepted that it performed the secondary function, in addition to that of being the outer wall of the building, of retaining the soil of Plot 7 which rose immediately behind the wall. As for what was the rear of the retaining wall, again that was surely obvious, as a matter of ordinary language, as referring to the side against which the retained soil lay. Given that the intended boundary line was to be on the Plot 7 side of the retaining wall, it would be bizarre to indicate on the plan that the 600 millimetres should be measured from the far side of the wall facing the remainder of Plot 8. Had that been intended the legend would surely have indicated 160 millimetres from the side of the wall nearest to Plot 7. In effect the Recorder has given no significance whatever to the legend, and that because of Mr Clarke's views, despite the clear indication from the draft transfer that the plan was to be determinative. In my judgment what Mr Clarke said on this was neither admissible nor correct, and in arriving at her views the Recorder fell into manifest error. I would add that her conclusion on the boundary as being on the line of the gabions had not been contended for by either side, the dispute between the parties having been whether the 600 millimetres were to be measured from the side of the wall facing Plot 7 or from the side of the wall facing Plot 8.

[46]The second point relates to the way the Recorder dealt with the defendants' alternative case based on proprietary estoppel. Although evidence and argument had been directed to that issue, the Recorder expressed difficulty in dealing with that alternative case because it was inconsistent with her finding as to where the boundary lay. But just as parties frequently have to plead alternative cases to cover the eventuality that the primary case is wrong, so a trial judge, charged with making findings of fact, is called on to decide issues in the alternative in case he or she is wrong in his or her conclusion on the primary way that the claim is put. A trial judge must bear in mind the possibility that, were he or she to be reversed on appeal on his or her primary conclusion, the appeal court might be forced to remit the case for further findings to be made unless the trial judge has been diligent in making adequate findings on the alternative claim. In these CPR days where courts are required to have regard to the costs of litigation and the proper use of court time, the additional costs and the waste of court time, if a remission has to be ordered, are always highly regrettable.

[47]However, I am relieved to find that in the present case, despite the somewhat cursory treatment by the Recorder of the estoppel issue, there are sufficient findings of fact to make such remitter unnecessary and that the defendant's claim of proprietary estoppel has been made out such that it would be unconscionable for Rosebank and its successors in title, the claimants, to resile from Rosebank having observed but stood by while the defendants erected the gabions on what can now be recognised to be part of Plot 8. I agree that we should hear counsel as to what is the minimum equity to be ordered to do justice to the defendants.

[48]I agree with the observations of Jacob LJ.

[49]For these as well as the reasons given by Sir Martin Nourse, I too would dismiss this appeal.

Order

Appeal dismissed. The claimants should pay 80% of the defendant's costs both here and below. Order as per agreed minute.