[2025] EWHC 2638 (KB)

Further, Mr Auld criticises the judge for taking into account his conclusion that Mr Crea would have made it abundantly clear if he had not intended to be bound by the surveyor’s work and for considering the parties’ subjective intentions.

Charles Irvine, who appears for Mr and Mrs Camp as he did at trial, responds that the question of whether a contract was formed is a mixed question of law and fact. He argues that the Creas’ letter of 12 December was an unequivocal acceptance of his clients’ offer. He argues that an acceptance does not need to mirror exactly the words of the offer and that the question for the court is whether the thrust of the Creas’ letter was an acceptance of the offer. He argues that this is not a case of continuing negotiations and that Mr Brown’s later understanding of the parties’ agreement is irrelevant. Mr Irvine submits that the court is entitled to consider extrinsic evidence as to the facts known to the parties and that would include the judge’s unassailable finding as Mr Crea’s character.

Further, Mr Irvine argues that there was no basis for finding a term requiring the parties’ further input after receipt of the report.

Issues as to whether the parties entered into a binding agreement and, if so, on what terms raise questions of fact and law. An appeal court will not interfere with a trial judge’s findings of fact save where the findings are perverse. The appeal court is, however, in as good a position as the trial judge to determine the ultimate questions of law as to whether on the facts as found by the judge there was a binding agreement and, if so, upon what terms.

The alleged agreement in this case did not of itself fix the boundary but rather is said to have bound the parties to accept the expert determination of their boundary by a jointly instructed surveyor from Lewis Brown. In that there are parallels with Gibson. Notwithstanding the fact that the law looks on boundary agreements with favour, I do not consider that there is any special rule in favour of construing the parties’ correspondence in this case as giving rise to a binding agreement to submit to expert determination of their boundary. Such question must be addressed on conventional contractual principles by reference to the parties’ letters and any other admissible evidence.

By their letter of 6 December 2016, Mr and Mrs Crea identified the impasse that had been reached in their negotiations. They asserted confidence in their own position but then indicated that they remained committed to minimising costs for both families. It was against that comment that they then proposed a means by which the situation should be resolved. Such solution was in two parts: the appointment of a surveyor to determine the required remedial works to the foundations of their wall and separately a proposal that the surveyor also be asked jointly to “assess the disputed boundaries”.

Such joint instruction would not of itself resolve the dispute unless the parties accepted the surveyor’s conclusions. The letter of 6 December did not, however, go as far as to propose that the parties should agree in advance of seeing the report that they would be bound by its conclusions.

By their letter of 9/11 December 2016, Mr and Mrs Camp made no proposals in respect of appointing a jointly instructed expert to survey the alleged damage to the wall but focused instead on the dispute as to the true boundary line. They said that they sought to identify a low-cost solution to the definition of the boundary and proposed the instruction of an impartial boundary surveyor on terms that they agreed in advance to accept the result of the surveyor’s work. To that end they proposed that both sides should be able to brief the surveyor and provide him with all known documents. They proposed that the cost be shared and that Lewis Brown should be appointed to provide this service.

Properly analysed, this was in my judgment an acceptance of the Creas’ proposal that a jointly instructed expert should be appointed to assess the true boundary. While Mr Auld advanced a semantic argument seeking to distinguish between the Creas’ proposal that an expert be instructed to “assess” the boundary and the Camps’ suggestion that such instruction could be a low-cost solution to the “definition” of the boundary, I do not accept that there is merit in the distinction that he sought to draw. As well as accepting that element of the proposal, Mr and Mrs Camp proposed four further matters:

The letter concluded by stating that Mr and Mrs Camp would contact Lewis Brown to arrange a date if the Creas agreed to these terms.

In my judgment, this was a counter-offer; namely a response to the Creas’ original offer which, while accepting the kernel of the original offer in respect of the boundary, proposed some additional terms as to the proposed joint instruction and implicitly rejected the offer to agree a joint instruction for the purposes of surveying the alleged damage to the wall.

By their further letter of 12 December, Mr and Mrs Crea plainly agreed the joint instruction of Lewis Brown and asked the Camps to proceed with contacting the firm. They confirmed that they were sending their documents as suggested by the Camps. They did not press their original suggestion that the parties should also agree to the damage survey. The real question is therefore whether their letter accepted the Camps’ counteroffer that the parties should agree beforehand to be bound by the surveyor’s report, or whether the Creas’ silence on that point indicates that such term was not accepted.

In addressing this question, I take into account the obvious and immediate factual matrix:

Chitty defines an acceptance in contract law, at para. 4-032, as “a final and unqualified expression of assent, whether by words or by conduct, to the terms of an offer.” Plainly a communication which attempts to vary the terms of the offer or which introduces a new term or only partially accepts the offer cannot amount to an acceptance and may instead constitute a counteroffer.

Chitty then states the following principle at paragraph 4-039:

“On the other hand, statements that are not intended to vary the terms of the offer, or to add new terms, do not disqualify the acceptance, even where they do not precisely match the words of the offer.”

That statement of principle in an earlier edition of Chitty was approved by the Court of Appeal in Midgulf International Ltd v. Groupe Chimique Tunisien [2010] EWCA Civ 66, [2010] 2 Lloyd’s Rep. 543, at [45]. In Midgulf, a fax was sent by a commercial party purporting to confirm the purchase of 23,000 tonnes of sulphur “at the following conditions”. The fax then set out the principal commercial conditions stipulated in the offer. The court held that the fax’s failure to set out all of the conditions in the offer did not mean that it should be considered a counteroffer rather than an acceptance of GCT’s offer. Toulson LJ added, again at [45]:

“As the judge acknowledged, the document did not invite a further discussion of terms, but appeared to treat a contract as having been concluded. In my view the most reasonable interpretation is that this was indeed its effect.”

Applying these principles to this appeal, the Creas’ letter did not purport to introduce any new term. While there was no express acceptance of the terms of the Camps’ counteroffer, equally no qualification was expressed. In my judgment, the Creas’ failure to address the term that the parties should be bound by the expert’s determination of the boundary, whether by either expressly accepting or rejecting such term, is not of itself decisive. The issue is whether on an objective reading of this exchange of correspondence against the factual matrix already identified, the parties entered into a binding agreement on the terms of the Camps’ counteroffer. In assessing that question, I take into account the fact that the Creas’ letter did not invite further discussion of the terms and appeared to treat the parties’ agreement as having been concluded. As in Midgulf, the most reasonable interpretation of that fact was that the parties had indeed entered into a binding agreement.

Taking all of these matters into account, in my judgment, the judge was right to find that the parties entered into an agreement that they would jointly instruct Lewis Brown on terms that they would be bound by the firm’s conclusion as to the boundary between their properties. Such agreement was essentially an agreement to submit their dispute to expert determination.

Although the 1989 Act is not pleaded by way of defence to the counterclaim, I consider, for completeness, that the principal purpose of the agreement was to define the boundary and not to dispose of land. Accordingly, the agreement was not subject to the requirement of signed writing imposed by s.2 of the Act.

In reaching this conclusion, I reject the argument that something can be made of Mr Crea’s failure to say in terms that he rejected the proposal that the parties should be bound by the expert’s report. Although the judge weighed this in the scales, such arguments always cut both ways and the conventional approach to contractual construction is not to place weight on “why not say it” arguments. As Stuart-Smith LJ pithily put in European Film Bonds A/S v. Lotus Holdings LLC [2021] EWCA Civ 807, at [52]:

“The question for the court is what the contract entered into by the parties means, not whether it could have been better or differently expressed: see Lewison, The Interpretation of Contracts (7^th Ed.), at [2.113]-[2.116].”

Further, although the parties both led and cross-examined evidence as to the parties’ actual intentions, I consider that such evidence of subjective intention was inadmissible on the question of law as to whether upon a proper construction of their correspondence set against the factual matrix their objective intention was to be bound by Lewis Brown’s work.

Like the judge, I conclude that Mr Brown’s incomplete understanding of the true bargain that had already been concluded between the parties (as reflected in his recitation of his instructions and his subsequent suggestions that his findings were subject to the parties’ approval) cannot have any bearing on the questions of whether the parties reached a concluded agreement and, if so, on what terms.

I therefore reject grounds 1 and 2.

Again, it is convenient to take these grounds together. Mr Auld relies on Mr Brown’s email sent on 20 June 2017 in which he wrote that he had never finalised his report because communications broke down and described his own report as essentially a draft that had neither been invoiced nor paid for.

Further, Mr Auld argues that Mr Brown did not define the boundary. Rather, he found it impossible to identify the true legal boundary and concluded that it was in one of two places. Yet he did not define either as the boundary line and simply suggested a pragmatic solution to create a new boundary on the ground. Absent a term of the agreement that, if he could not identify the true boundary, Mr Brown could simply do the best that he could, Mr Auld argues that the parties could not be bound.

Mr Irvine responds that there was nothing to indicate that the report was draft at the time of its preparation. Further, he submits that there was no pleaded case that Mr Brown failed to comply with his instructions, or that the boundary was newly created rather than newly determined.

Mr Brown’s report was not marked as draft. Upon the expert’s mistaken understanding of the parties’ bargain, he appears to have thought that the report needed to be agreed before it bound the parties, but neither that misunderstanding nor the later dispute that arose once the Creas rejected the report and alleged that Mr Brown had been biased, are reasons to find that the report did not define the boundary. Equally the fact that he might have originally intended to redraw his findings as a definitive determined boundary plan did not prevent the report from providing a binding answer to the boundary.

The parties’ agreed joint expert did not find it easy to identify the true boundary line. Mr Brown said in terms that it was not possible to determine the exact legal boundary and that he “believed” that the original boundary had been intended to be either the blue or the red line that he drew on his plan. Both parties had, however, erected buildings that straddled those lines and he considered it “ridiculous” to suggest that either should now be required to demolish buildings. Rather than simply concede defeat, he proposed a boundary line that agreed with his findings and which provided what he described as a “practical solution to an unanswerable question”.

Mr Auld is right to submit that Mr Brown did not purport to determine the exact legal boundary but rather that he proposed a boundary line that was the best he could do in view of the limited evidence. Had the parties agreed only that Mr Brown should be instructed to identify the precise legal boundary, it might be that that would not suffice. Their agreement was, however, that Mr Brown should assess or define their boundary. Even though Mr Brown concluded that it was not possible to identify the true legal boundary, he did define a boundary line between their neighbouring properties. The parties having so agreed, I conclude that the judge was right to find that they were indeed bound by Mr Brown’s assessment. I am fortified in that conclusion by consideration of the fact that the law favours the enforcement of boundary agreements.

Although Mr Brown had intended to prepare a determined boundary plan, the preparation of such plan was not a condition precedent to the parties’ being bound by his assessment that the boundary lay along the line marked A, B, C, D, E, F, G1 and G.

By his evidence in chief, Mr Crea confirmed the truth of his main witness statement in the proceedings but also his shorter statement made in March 2023 in opposition to the Camps’ applications for summary judgment and to strike out the claim. Mr Auld argues that the judge overlooked this evidence since he observed at paragraph 29 of his judgment that he was not aware of the material or arguments that had been placed before the district judge on the summary judgment application. Further, since this material was not cross-examined, he argues that the judge ought to have accepted the evidence. When in argument I asked him what turned on the judge’s failure to consider material that was largely inadmissible, Mr Auld responded that it was a moot point but that the statement set out part of the admissible factual matrix. He did not elaborate as to what evidence that was both admissible and relevant to the judge’s findings was thereby overlooked.

Mr Irvine responds that the statement consisted of inadmissible evidence as to Mr Crea’s subjective intentions, an unpleaded case about representations, a further unpleaded case that there was a term of any contract arising from the RICS guidance (on which in any event Mr Crea was cross-examined and the judge made findings of fact), and argument. Any failure to take such “evidence” into account was, he submits, immaterial.

Mr Crea’s first witness statement dealt with the following areas:

While it is unfortunate that the judge appears to have overlooked the fact that this statement was put in evidence, much of it was argument which had no place in a witness statement. In so far as it contained evidence, I consider that such evidence was variously inadmissible evidence of the Creas’ subjective intentions; admissible evidence that was irrelevant to the pleaded cases and, in particular, the questions of whether the parties entered into a binding agreement for expert determination and were bound by Mr Brown’s report; or evidence that was in any event given again in Mr Crea’s witness statement for trial or challenged by cross-examination and considered by the judge. If the judge did indeed overlook the March 2023 statement it did not, in my judgment, give rise to any material irregularity.

Accordingly, I reject ground 5.

This ground does not arise in view of my conclusion that the parties were bound by Mr Brown’s determination of the boundary.

For these reasons, I therefore dismiss this appeal.