Court of Appeal — Anonymised summary of judgment (delivered by Judge Pepperall)
Factual and Procedural Background
This appeal concerns a dispute between neighbours about the true boundary between two adjoining properties, referred to in the proceedings as Property A (owned by the Appellants) and Property B (owned by the Respondents). The dispute proceeded to trial in the County Court before Judge Berkley. In a reserved judgment dated 1 August 2024 the trial judge found that the parties had entered into a binding agreement to accept the boundary as determined by a jointly instructed surveyor from Company A (the surveying firm).
The Appellants obtained permission to appeal (granted by Judge Sheldon). The appeal challenges whether the trial judge was correct to find that a binding agreement existed to accept the surveyor's report (grounds 1–5) and, if that finding were wrong, whether the judge should have concluded that the legal boundary ran along a particular line described in a 1958 conveyance (the "60-foot line") (ground 6).
Legal Issues Presented
- Whether, on the correspondence and factual matrix, the parties entered into a binding agreement to accept the conclusions of a jointly instructed surveyor (i.e. an agreement to submit the boundary dispute to expert determination).
- If such an agreement existed, whether the terms included an obligation that the surveyor's determination would be conclusive and binding.
- Whether the surveyor, in his report, in fact defined the boundary such that the parties could be bound by it (or whether the report was merely a draft or non-final and therefore did not conclude the dispute).
- Whether the trial judge erred procedurally by overlooking or failing to take account of particular witness material (the Appellants' earlier witness statement and related material).
- Whether, alternatively, the judge should have construed historical conveyances (including a 1958 conveyance referring to "sixty feet or thereabouts") so as to conclude that the boundary was the 60-foot line.
Arguments of the Parties
Appellants' Arguments
- The Appellants submitted that their letter of 12 December 2016 did not accept the Respondents' counter-offer to be bound in advance by the result of the jointly instructed surveyor; it only agreed to instruct a surveyor to "assess" the boundary (i.e. not to determine it conclusively).
- They argued that words and conduct must be analysed by reference to conventional contractual principles: an acceptance must be a final and unqualified assent to the terms of an offer (relying on Chitty on Contracts).
- They further argued that, even if there was an agreement that the surveyor should define the boundary, the surveyor's report did not in fact define it—he described the exact legal boundary as impossible to reproduce and proposed a pragmatic solution rather than a definitive legal determination. The Appellants highlighted the surveyor's later emails describing the report as unfinished and not invoiced or paid for.
- The Appellants also contended that the trial judge ignored or failed to consider material from an earlier witness statement (allegedly relevant to the factual matrix) and that this omission was a procedural irregularity.
- Finally, on the alternative ground, they argued the judge should have construed the historic conveyances so that the true boundary was the 60-foot line from the 1958 conveyance.
Respondents' Arguments
- The Respondents maintained that the correspondence in December 2016, read objectively against the factual matrix, established a binding agreement: the Appellants' letter of 12 December unequivocally accepted the Respondents' proposal to appoint Company A and accept the expert's result.
- They argued that an acceptance need not mirror the exact words of the offer and that the question was the thrust of the Appellants' letter (acceptance rather than continuing negotiation).
- The Respondents submitted that the surveyor's report, although acknowledging evidential difficulties, did define and recommend a boundary line (points A–G1) and that the parties had agreed to be bound by the surveyor's assessment; any later statements by the surveyor about invoicing or draft status did not affect formation of the contract between the parties.
- They contended that the alleged omitted witness statement contained largely inadmissible material (subjective intentions, argument) and that any inadvertent failure to refer to it did not materially affect the outcome.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Neilson v. Poole (1969) 20 P.&C.R. 909 |
Distinguishes boundary agreements that are contracts to convey land from those that merely demarcate/confirm a boundary; presumption that many boundary agreements are merely to demarcate and not to convey. |
The court relied on Neilson's general presumption that many boundary agreements are merely demarcations (not dispositions of land) and are therefore favoured and enforceable without the formalities required for conveyances. |
| White v. Alder [2025] EWCA Civ 392 |
Affirmed and approved Neilson's approach; described boundary demarcation agreements as acts of peace to be encouraged. |
The court noted White's recent approval of Neilson and relied on White for the proposition that boundary demarcation agreements are encouraged by the law. |
| Joyce v. Rigolli [2004] EWCA Civ 79 |
By parity of reasoning, an agreement fixing a boundary (even if it results in a small parcel being given up) may still be a contract merely to demarcate and thus not fall within formalities for disposition of land. |
The court cited Joyce to support the view that the parties' purpose (to fix a boundary rather than to sell/dispose of land) meant the agreement was not subject to the written formality requirement of s.2 of the 1989 Act. |
| Bradley v. Heslin [2014] EWHC 3267 (Ch) |
Caution that the law should favour properly proved boundary agreements but must not convert simple neighbourliness into legal rights or abandonment of legal rights without proper proof. |
The court cited Bradley to emphasise that, while boundary agreements are favoured, caution is required and a court must not find an agreement where none exists. |
| Stephenson v. Johnson (unreported, 12 July 2000) and Burns v. Morton [2000] 1 WLR 347 |
Examples where the Court of Appeal found implied agreements as to the true boundary. |
The court observed that other authorities support the approach of finding implied boundary agreements in appropriate cases. |
| Gibson v. New [2021] EWHC 1811 (QB) |
Example of boundary agreements providing for expert determination. |
The court noted Gibson as an example where parties had provided for expert determination and applied that contextual point when assessing whether the parties had agreed to expert determination here. |
| Midgulf International Ltd v. Groupe Chimique Tunisien [2010] EWCA Civ 66 |
Establishes that an acceptance need not reproduce every term of the offer; statements not intended to vary terms do not preclude acceptance (failure to set out all conditions does not necessarily render the response a counter-offer). |
The court applied Midgulf in construing the December correspondence: the Appellants' letter need not mirror the exact words of the Respondents' letter and silence on a term did not necessarily mean rejection of it where an objective reading indicated agreement. |
| European Film Bonds A/S v. Lotus Holdings LLC [2021] EWCA Civ 807 |
Reminds that the court's task is to ascertain what the contract means, not whether it could have been better expressed. |
The court relied on this authority to reject arguments based on "why not say it" and to emphasise objective construction rather than focusing on hypothetical alternate expressions. |
Court's Reasoning and Analysis
The court proceeded from the foundational statutory and doctrinal context. Section 2 of the Law Reform (Miscellaneous Provisions) Act 1989 requires written and signed contracts for dispositions of an interest in land; however, the court explained that many boundary agreements do not operate as dispositions but merely demarcate the parties' boundary and so are not caught by s.2.
The judge applied the established line of authority (principally Neilson and its subsequent approvals) that treats boundary demarcation agreements as favoured by the law, normally not constituting dispositions of land, and thus potentially enforceable even if informal. The court also recognised the cautionary principle from Bradley that the law should not convert simple neighbourliness into legal rights without proper proof.
Turning to the correspondence (the December 2016 letters) and the factual matrix, the court considered conventional contractual principles of offer and acceptance as articulated in Chitty and applied by Midgulf:
- The Appellants' letter of 6 December proposed a joint surveyor to assess both the wall foundations and the disputed boundary; it did not expressly propose that the parties agree in advance to be bound by the surveyor's conclusions.
- The Respondents' letter of 9/11 December was properly characterised by the court as a counter-offer: it accepted the idea of a jointly instructed surveyor for the boundary but added specific additional terms (agreement beforehand to accept the result, a methodology for briefing and documents, cost-sharing, and the proposed identity of the surveyor — Company A).
- The Appellants' letter of 12 December accepted the appointment of Company A, confirmed they would supply documents, and asked the Respondents to contact the firm; it did not expressly address whether the parties would be bound in advance by the surveyor's result.
The central constructional question was whether, objectively read against the factual matrix (neighbourly dispute, desire to avoid expensive litigation, mutual recognition that a jointly instructed surveyor could provide a low-cost solution), the Appellants' letter accepted the Respondents' counter-offer in full (including the term that the parties would accept the surveyor's result).
Applying Midgulf and Chitty, the court held that an acceptance need not mirror the precise words of the offer and that silence on a specific added term is not automatically decisive if the overall correspondence and surrounding circumstances objectively indicate agreement. The court therefore concluded that the Appellants' 12 December letter, when read objectively against the matrix and the state of the negotiations, accepted the Respondents' counter-offer to appoint Company A and to be bound by the firm's conclusions — in other words, the parties agreed to submit the boundary dispute to expert determination.
The court addressed the Appellants' contention that the surveyor's report was non-final or merely a draft. It observed that the report was not labelled "draft," that the surveyor's own misunderstanding of the scope (his belief that the report might require subsequent agreement) could not alter the parties' prior concluded bargain, and that although the surveyor acknowledged evidential difficulty in locating the exact legal boundary, he nonetheless recommended and described a specific boundary line (points A–G1). The court found that the surveyor had, for the purposes of the parties' agreement, defined the boundary and that the parties were bound by that assessment.
On the procedural complaint that the trial judge overlooked an earlier witness statement, the court examined the contents of that statement and concluded that much of it was argument or subjective intention (inadmissible or irrelevant to the objective construction question) and that any omission of that material did not amount to a material irregularity affecting the outcome.
Because the court concluded that a binding agreement to accept Company A's determination existed, it did not need to decide the alternative conveyancing argument about the 1958 "60-foot line."
Holding and Implications
HOLDING: The appeal is DISMISSED. The Court concluded that the parties had entered into a binding agreement to jointly instruct Company A and to accept the surveyor's conclusions as to the boundary between Property A and Property B, and that the surveyor's report provided a sufficiently defined boundary for that purpose.
Implications:
- The trial judge's judgment — that the parties were bound by the jointly instructed surveyor's report and that the report delineated a boundary line for enforcement between the properties — stands.
- Because the court treated the agreement as a boundary demarcation rather than a disposition of land, the written-form formalities of s.2 of the 1989 Act did not apply to invalidate the agreement.
- No broader change of legal principle was announced; the decision applies established principles of contract construction, the settled approach to boundary-demarcation agreements (as in Neilson and subsequent authorities), and the objective assessment of correspondence against the factual matrix. The judgment emphasises that courts should encourage reasonable boundary demarcation agreements but must not find an agreement where none exists; in this case the court found that an agreement did exist on the facts found by the trial judge.
This summary has been prepared strictly from the content of the provided opinion and has been anonymised to replace personal and entity identifiers with generic labels. No information has been invented or inferred beyond what appears in the opinion text.