The parties had entered into a consent order compromising a boundary dispute that had arisen between them. The consent order attempted to define the boundary between the parties’ respective properties through the use of a plan. Surveyors appointed to measure, agree and peg out the boundary encountered a number of difficulties in carrying out their duties. Part of the difficulties arose from the fact that at certain parts of the boundary there had never been any physical division between the properties, thereby rendering the plan attached to the consent order of little value in respect to those parts.
Nonetheless the surveyors, in the spirit of compromise, attempted to work around the difficulties and pegged out a boundary line, which they stated was “subject to solicitors’ formal approval”.
The solicitors could not reach agreement as to the boundary line. Proceedings were subsequently commenced challenging the consent order, and in 2002 judgment declaring the consent order to be void for uncertainty was made. In 2003 an appeal against that judgment was dismissed. The appellant appealed.
The essential issue was whether the consent order was void for uncertainty.
The court held that the conclusions reached in the lower courts were erroneous. It was not impossible to implement the parties’ agreement. The surveyors had in fact implemented it. Although the parties were entitled to dispute the surveyors’ solution it was different to dispute that the consent order was uncertain.
The court pointed out that parties to contracts are always disagreeing about the contracts which they make. However, they take those arguments to court for resolution. That does not make a contract uncertain. For a contract to be uncertain it had to be legally or practically impossible to give the parties’ agreement any sensible content.
In this particular case, the fact that there may have been a difficulty or even considerable difficulty in delineating the boundary did not amount to impossibility.
The appeal was therefore allowed
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*Full case details
Scammell & Ors vs Dicker, Court of Appeal, QBD, 14 April 2005
An interesting decision for parties in such situation and particularly surveyors who may be increasingly required to overcome problems in order to make consent orders and/or settlement agreements work.