EWCA Civ 305
There is no new law in the case. However, there is a passage in the judgment that may assist solicitors when drafting a direction relating to a single joint expert or indeed drafting instructions to any boundary expert. Toulson LJ at para 7:
- "On the issue of the boundaries the directions to the expert should have been that he should do the following: 1) Inspect all relevant plans; 2) Carry out a site examination; 3) Examine any available objective evidence, eg photographs, showing changes to the properties or boundary markers since the properties had been built; and 4) Prepare a report and plan, possibly with photos, a) showing the position of the properties and any relevant features, such as fences, and b) transposing onto the plan, if and insofar as this was possible, the lines of the boundaries shown on the original transfer plans. If that was problematic or uncertain, the report needed to explain the reasons."
 EWHC 3036 (QB)
In a boundary dispute between neighbours a jointly instructed independent expert's interpretation of a conveyance could not be overturned. The joint expert had acted in accordance with his instructions, the parties had agreed to be bound by the expert's decision and there were no vitiating factors.
The parties were neighbours and a boundary dispute arose between them. After instructing their own separate surveyors, who were unable to agree, the parties then jointly appointed, C, a chartered building surveyor, to act as an independent expert and identify the correct line of the boundary. The parties agreed to be bound by his decision; C upheld R’s claim. A was dissatisfied with this award, and instructed another surveyor, P, to consider C’s report. Subsequently, R’s solicitors discovered a 1965 conveyance with a plan annexed, which provided further evidence as to the position of the boundary. The parties instructed both surveyors to prepare a joint report. During the preparation of that report, C concluded that the plan attached to the 1965 conveyance, which was not drawn to scale, incorrectly marked the boundary line. He also concluded that, even if the 1965 conveyance correctly showed that R's plot was narrower than they maintained, there was no evidence to suggest that the disputed land had ever been added to A’s plot. P agreed with C in the joint report, which concluded that the boundary line identified in C’s award was substantially correct save for a slight adjustment. After the issue of the joint report, P made a position statement giving his opinion that the boundary line agreed in the joint report and the one marked on the plan attached to the 1965 conveyance were both potentially correct and that the difference could only be resolved as a matter of law. At first instance the County Court held that C had acted as an expert in accordance with his instructions. Further the parties had agreed to be bound by his decision and not to dispute it. A appealed to the High Court.
Whether a jointly instructed expert's finding could be overturned where had acted in accordance with his instructions, the parties had agreed to be bound by his decision and there were no vitiating factors.
The High Court dismissed the appeal. C had been appointed as an independent expert to decide where the boundary line lay. It was clear that he was not acting as an arbitrator or mediator. It was expressly envisaged by the parties that C would have to examine and interpret legal documents and consider legal submissions in carrying out his instructions, which were not limited to factual matters or matters of expert opinion. It was also expressly stated by the parties that his decision was to be final and binding upon them without recourse to the courts. Therefore, it had been neither envisaged nor agreed by the parties that questions of law arising in the course of determining the legal boundary would be referred to the court for determination.
Where parties had agreed to be bound by an expert's report, that report could not be challenged on the ground that mistakes had been made in its preparation unless it could be shown that the expert had departed from the instructions given to him in a material respect, or had acted fraudulently or in bad faith; Jones v Sherwood Computer Services Plc  1 W.L.R. 277 followed. The Judge had correctly directed himself as to the law on expert determinations; holding that neither party could appeal against the award merely on the basis it was mistaken.
As P was not the appointed joint expert, it would not affect the validity of the award if he disagreed with C as to the boundary line.
Is it a good idea to appoint a surveyor as an expert to determine a boundary dispute? The boundary surveyor’s role is to determine features on the boundary; what is there now, and what might have been there at different stages in the past. They do not have the legal skills to make a proper determination of where a boundary lies. Nor, unless they are specifically appointed as a mediator, do they consider the issues that invariably underlie boundary disputes.