News & Insights

Give and take is better than all or nothing

Battling with your neighbour through the courts can be distressing and expensive.  The Court of Appeal will now expect the parties to try to work things out before a court case comes to trial.

It all seemed to be quite simple.  As is not unusual, the leases in a block of flats in central London contained covenants that the flats should be carpeted (in order to minimise noise nuisance to the neighbours downstairs).  The leaseholder removed the carpets as part of a redevelopment that had been agreed with the landlord, installing instead underfloor heating and oak flooring (with, apparently, modern noise-insulating materials).  Subsequently, the neighbours downstairs complained about the racket from above and everyone ended up in Court.  So far, so sad but so common.

The actual outcome of the case (Faidi v Elliott Corporation) is interesting to the parties themselves and to lawyers involved in such matters.  What deserves broad attention, however, is the comments by two of the three Judges in the Court of Appeal when the matter arrived before them.  To say that they were less than impressed that the matter had been to the High Court and the Court of Appeal and involved QCs on both sides appears to be an understatement.

Lord Justice Jackson felt strongly about the way that the parties had pursued the case.  The Courts can and will resolve black and white questions.  But he noted that a skilled mediator could have brought the parties to a sensible compromise – something which the Courts cannot do.  He said this:

“In the present case a mediator … would have been helping the parties to find a sensible resolution of the practical problem which had arisen.  I have little doubt that such a mediation would have been successful …

As it is, neither side wrote to the other proposing mediation until shortly before the hearing in the Court of Appeal. …[T]he total costs thrown away amount to £140,134.”

He then concluded, archly:

“If the parties were driven by concern for the wellbeing of lawyers, they could have given half that sum to the Solicitors Benevolent Association and then resolved their dispute for a modest fraction of the monies left over.”

Lord Justice Ward was equally robust:

“I wish enthusiastically to associate myself with the observations of my Lords on the desirability of mediation in neighbourhood disputes. To repeat what I recently said in Oliver v Symons, a boundary dispute:

“… All disputes between neighbours arouse deep passions and entrenched positions are taken as the parties stand upon their rights seemingly blissfully unaware or unconcerned that they are committing themselves to unremitting litigation which will leave them bruised by the experience and very much the poorer, win or lose. It depresses me that solicitors cannot at the very first interview persuade their clients to put their faith in the hands of an experienced mediator, a dispassionate third party, to guide them to a fair and sensible compromise of an unseemly battle which will otherwise blight their lives for months and months to come.”

Not all neighbours are from hell. They may simply occupy the land of bigotry. There may be no escape from hell but the boundaries of bigotry can with tact be changed by the cutting edge of reasonableness skilfully applied by a trained mediator.”

FSP’s property disputes team have decades of experience between them of resolving disputes with nightmare neighbours.  It is not always possible, no matter how desirable, to put things in the hands of a mediator from the moment a client comes to us for advice.  But nonetheless, mediation is one of the various “tools in the box” that we do successfully use to achieve the results that our clients need.  Bulldozing cases like this through to trial may appear very macho to some, and there are parties who are desperate to “have their day in Court”.  But litigation is not therapy and Lord Justice Ward’s parting comment, from which we have drawn the title of this article, is crucial for neighbours to remember:

“Give and take is often better than all or nothing.”

If you have a problem relating to property, whether it is enforcement of leasehold covenants as in Faidi, problems with your neighbours or a debated boundary, our property litigation team can help.  Contact Mark Banham: [email protected].