Mediation
Manchester

The matter related to a dispute arising from an area of land measuring approximately 2.5m x 2.5m which was claimed by the Defendant (D) through adverse possession. This area of the land although shown in the Freehold and sales Leasehold plan as belonging to 10 H Street, it was argued by the D that the land has been in the possession of 12 H Street since 1984 when the predecessor in title acquired the property.

It was the D’s contention that the contested land had always been used and maintained by the owners of 12 H Street, which included the predecessor in title as well as the current owners.

At no times had the fence lines been altered and the boundary features had been set in their position since the predecessor in title acquired the property (12 H Street) in 1984 and had at all times been used by the predecessor in title as part of their garden.

It was averred that the original fences that distinguished the boundary line were post and wire and had been replaced twice subsequently with the fences that are in place now.

The D argued that no objections or disputes were raised regarding the land in dispute being enclosed within the features of 12 H Street, until now, by the Claimants (C’s) who acquired their property in 2018.

The D was claiming acquisition of the land in dispute by way of adverse possession, pursuant to the Land Registration Act 2002, under the new rules, for all land that is registered.

The D contended that in accordance with the Land Registration Act 2002 it had been established and proven that there was and has been factual possession of the land for the requisite period of 10 years.

The D stated the current owner as well as the predecessor in title have shown clear intention to possess the land during the factual period by enclosing the land within 12 H Street and using and maintaining the contested land as part of their garden.

The D’s would argue that the disputed area of land had been acquired through adverse possession or at the very least was in the process of being recorded with land registry at the time of purchase. The D’s made a concerted effort to establish the acquisition of the disputed land by obtaining a statutory declaration signed on behalf of the predecessor in title dated in December 2016.

This was a five year dispute, which was settled by online mediation, within ten hours. 

The Claimant (C) was the freehold owner of land situated at and known as 189 X Road, Halifax, HX1.  As well as the freehold owner of land (used as a car garage) to the West and Northwest of 125 X Road, which has a common boundary with numbers 22 and 23 M Avenue.

The Defendants (Ds) were the freehold owners of 22 M Avenue, Halifax. In dispute was a Right of Way (RoW) contained in a conveyance dated in 1918 over the backstreet leading to the northwest corner of C premises which was referred to in C’s land title documents. There was no such reference of the 1918 conveyance and the RoW in D’s land title documents. The issues in dispute were as follows.

C contended that the D’s have during 2021 by themselves or instructing others to do so obstructed the RoW by erecting a fence over the RoW, locking a gate across the RoW, creating a garden and footing of a building on the RoW.

The D’s will state that the fence and gate were in situ prior to the purchase of their property and appears on the title plan of D’s land. C knows or ought to have known about the fence and gate for a considerable period of time before C commenced legal action against the D’s. The fence and gate were not erected by the D’s. The D’s will state that the only construction carried out by them is the garden and footing within their boundary, which construction was commenced in 2021 and lies within their boundary/title plan.

Following the D’s purchase of 22 M Avenue, in September 2019, the perimeter fence enclosing their land was there and known to both parties. Subsequently the D’s became aware of a dispute when a group of men hired by C arrived armed with sledge hammers to forcibly dismantle the gate and perimeter fence. This was prevented as the police were called.

C contended that prior to commencing proceedings they requested the D’s to remove the said obstructions from the RoW and that the D’s never responded.

The D’s stated that an acknowledgement was provided to C’s letter of claim and a response was duly provided with a clear indication of the D’s willingness to reach an amicable solution with C.

C contended that he had suffered loss of use of the RoW and sought removal of any obstructions on the RoW, an injunction and damages for interference of the use of the RoW.

The D’s argued that C has by his own actions or that of others obstructed the RoW by erecting a fence round the land to the West and Northwest of X Road which he owns which lies within the RoW. Any damage or loss claimed is as a result of a breach of C’s covenants in the 1918 conveyance as contained in C’s title document. The D’s argued that the C suffered no loss of the use of the RoW as he has an alternative access to his premises on X Road.

The D’s argued that the right of way had already been extinguished. In both the C’s reply and their witness evidence, they confirmed that the C’s Land and the D’s Land were in the common ownership by the C’s brother, before first the D acquired their property and then the C acquired his.

Unity of ownership extinguishes easements. In line with established case law and the fact that access over the right of way was blocked by the original owner whilst in common ownership, this itself confirms that the owner at the time impliedly, released by his own actions, the right of way over the back street. The ROW was abandoned.

Had this gone to a full tiral the D’s would have urged the court to dismiss the C’s claim on the basis that the C cannot establish the right of way, let alone substantial interference.

Both parties relied on the expert witness report of a surveyor’s report, making it abundantly clear that both parties own upstanding features which lie within the RoW.

The D’s proposed to keep the layout of each parties fencing as it was on the plans as it stands. Further as the C brought the claim prematurely, he should bear the D’s cost to date.

And both parties draw back their perimeter features by 2 feet. (The perimeter fencing of the C’s car pitch encroaching the back street and the perimeter fencing and wall of the D’s back garden facing the ROW).

This mediation took place via zoom, took ten hours and a solution was found that both parties could live with.

The claimant brought proceedings against the defendant for £20,000 for damage caused to his property. The tenant claimed the property was in disarray on her moving in. The report from the letting agents stated otherwise, that the property was in good and working order, and defect free. The list of the defects were numerous.

The bath was cracked and the bath panel broken. The toilet pipe was damaged and was leaking. The bath tap, landing window and garage shutter had all been broken. The garage side door had been damaged, both the keys were missing so the landlord had to change the lock. Holes in the walls were not filled where the curtain rails and other decorative items had been removed.

The house was left in a very bad state of repair. Sanitary disposals, banana skins, half eaten sandwiches, used teabags and other bits of rubbish were shoved behind radiators. All the light bulbs were removed from the house even though the tenant was given the property part furnished with bulbs. The energy metres were changed to coin meters without the landlords consent, even though it was specified in the tenant’s tenancy that she could not do that.

The mediation took place in person, lasted three hours, and a settlement was found.

The three claimants, and four defendants had been in dispute one way or another for approximately 10 years.  This was the third time that proceedings had been underway. 

The dispute fall into a number of categories, the most significant of which was the argument over the passing off claim.  And theft of a trademark.

The claimants believed that there was no issue in relation to the ‘old product’.  This was because that although the order for summary judgment was overturned, this was on the basis of the ownership of the patent rather than an argument over the design of the product.  The claimants believed that the evidence not only supports their assertion of infringement in respect of the ‘old product’ but also for the ‘new product’.

The expert evidence, the reports dealt with whether or not the omission of the second layer of insulation in the ‘new product’ amounted to an infringement or not.  At present the reports took opposing views.

The risks of litigation, the claimants believed that the defendants faced considerable risks, not least because one of them was being sued in their personal capacity.  An offer had been made for a licence to be granted to the Defendants though so far this has not been accepted or rejected.  If the court determined that the Defendants are liable for infringement through the ‘new product’ the damages would be significant. 

Further, in view of the personal liability which could attach to the third and fourth Defendants, this is not one of those situations where a defendant can simply put a company into liquidation and then start with a new company doing the same thing. This mediation took place in person and lasted seven hours. 

A cohabiting couple went their separate ways. However, during the course of their relationship, the Claimant advanced the Defendant £110,000. Stating it was always to be a loan for various debts, business interests. The Defendant vehemently argued the money was a gift, and was never meant to be a loan. The mediation was in person, lasted eight hours, and was resolved amicably.

This was a contract dispute over the supply of printing equipment which was leased via two separate agreements for a three-year period.

Interpretation of the leases and payments, led to a dispute between the two businesses leading to court proceedings and a claim for around £14,000. The mediation took place in person, lasted three hours and settled. Read the testimonial here.

This was a claim for repayment of £26,000.00 in restitution, or alternatively as money had and been received by the Defendant (D), together with interest of £11,960.32. The D was a pharmacist, and worked for the Claimant (C).

Due to a system glitch, the D had been overpaid over a series of months. The D had no entitlement to the sum of £26,000.00 which was paid to him under and as a result of a mistake of fact.

Despite requests for payment and the fact that it must have been obvious to the D from the moment he received the payments as set out in the claim he had no entitlement to the same, the D had failed to repay the C the £26,000.00.

The Claimant limited company was incorporated on the 16 February 2009. On the 31 August 2012 the Claimant purchased the intellectual property, customer base, work in progress, goodwill and information technology from the previous company owner, which was placed into administration on the 28th August 2012.

The company was involved in the manufacture and distribution of household cleaning products to customers including the UK’s leading supermarkets.

In early August 2012, the Claimant had started to use the delivery services of the Defendant a logistics company. The Defendant raised various invoices to the previous business owner’s company up to and including 31 August 2012.

Following the Claimant’s purchase of previous companies assets as set out above, the Claimant continued to place orders with the Defendant to utilise its delivery services. On the 6th of September 2012, the Claimant received a call from the Defendant.

Who phoned to say that he had noticed that the previous company had been placed into administration and wanted to know what the position was.

It was then communicated and explained that although the previous business had been placed into administration, the Claimant wanted to keep the account with the Defendant and said that he would review any outstanding amounts. The Defendant informed the Claimant that they would require £7,000 on account if the business relationship was to continue.

During the course of the 6th & 7th of September 2012 when the Defendant was clearly aware that the previous business had been placed into administration and so it was dealing with the Claimant, the Defendant continued to collect goods from the Claimant up to close of business on Friday the 7th September 2012. On the 10th of September 2012 when chased, the Defendant informed the Claimant that the Defendant was asserting a lien in respect of the stock it held.

Which it was fully aware was stock belonging to the Claimant until the outstanding previous business invoices had been paid. A further invoice was raised to the previous business on the 7th September 2012 in the sum of £4,860.60 (this invoice clearly related to orders that had been placed by the Claimant).

As the action threatened by the Defendant would result in huge problems for the Claimant with its customers and potentially substantial losses and loss of customers, the Claimant instructed solicitors to write to the Defendant.

Ultimately, as a means of getting the stock delivered to the Claimant’s customers it was agreed that a sum of £15,000 (which would more than cover the outstanding invoices raised to the previous business by the Defendant) would be deposited with the Claimant’s solicitors subject to an undertaking (recorded in the letter from the Claimant’s solicitors attached to the Particulars of Claim).

An agreement was signed on 14 September 2012 pursuant to which it was agreed that the Defendant would carry out various deliveries, would return various goods to the Claimant and would allow the Claimant to collect certain goods from its premises. The Agreement dated the 14th of September 2012 also provided that the Claimant would commence proceedings against the Defendant by no later than 4pm on 16 October 2012 (time being of the essence) in default of which the £15,000 would be unconditionally released to the Defendant’s solicitors.

The Claimant issued a claim on the 15th October 2012 for losses suffered as a result of the action taken by the Defendant in seeking to assert a lien it was not entitled to assert in the sum of approximately £35,000 and for a declaration that the £15,000 deposited with the Claimant’s solicitors should be returned to the Claimant.

The Defence put forward on behalf of the Defendant was that the orders in question were placed by the previous business with their user names and passwords being used. The Defendant asserted that during the order process the customers tick a box indicating their agreement to be bound by the RHA

Terms and Conditions of Haulage 2009. The Defendant denied that there was any contractual relationship in place with the Claimant but went on to assert in its Counterclaim that the £15,000 (which was clearly money belonging to the Claimant) should be paid over to the Defendant.

The Claimant had very much sought to take a commercial view in respect of the proceedings and was mindful of the costs and management time that would be utilised by both parties should this matter run to Trial.

The Claimant had put forward two very reasonable offers (both of which had been rejected by the Defendant). On the 4th of December 2012 a written offer to the effect that the £15,000 be divided by paying £5,750 to the Defendant and £9,250 to the Claimant and that the Defendant would pay the Claimant’s costs to date.

A verbal offer on the 12th of February 2013 that the £15,000 would be divided as above but that the parties bear their own legal costs.

Both of the above offers constituted the Claimant effectively agreeing not to pursue its claim for loss of profits and the other costs and expenses caused by the Defendant’s actions in seeking to assert a lien it was not entitled to assert in relation to the Claimant’s goods.

In the circumstances, the Claimant was very surprised that the Defendant so readily dismissed these offers which would have put the Defendant at significant risk in terms of costs.

After being urged to do so on the 13th of February 2013 the Defendant put forward an offer of £25,000 (i.e. for the Claimant to pay to the Defendant the sum of £25,000) in full and final settlement including costs and interest.

This offer did not even begin to reflect the legal position, the commercial reality in terms of costs and management time or the litigation risk faced by the Defendant.

In particular, the Claimant’s solicitors had sought clarification as to how the Defendant could argue in the Defence that all contractual relationships were the previous business and then in the Counterclaim that it was entitled to the £15,000 (monies that clearly belonged to the Claimant with whom the Defendant claimed to have no contractual relationship).The two positions were entirely inconsistent.

The Defendant’s explanation was that it was entitled to the £15,000 because the Claimant paid those monies to discharge a lien in respect of the previous business goods. This argument was entirely flawed and did not work for the following reasons.

It was not accepted that the goods were the previous businesses (and the Defendant knew this was the case when it sought to assert the lien and when it continued to collect goods from the Claimant during the course of the 6th – 7th of September 2012).

It was not accepted that the Defendant was entitled to assert a lien. The Claimant did not pay the £15,000 to discharge a lien. The monies were paid to its solicitors (not to the Defendant as has been implied) as a result of a commercial decision by the Claimant.

It was the only option (given the unreasonable stance being taken by the Defendant) to ensure that goods could be delivered to the Claimant’s customers (thus avoiding losing customers and seeking to avoid potential breach of contract claims against the Claimant).

The money was paid in mitigation of the potential losses the Claimant could suffer as a result of the Defendant’s stance (i.e. if goods were not delivered to the Claimant’s customers) and pursuant to an Agreement which clearly stated “This Agreement is without prejudice to the parties’ legal positions as at the 10th of September 2012”. The mediation took eight hours, was in person and settled.