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13 February 2015

Entrenched position over ditch to cost thousands

In the case of Gilks and Gilks v Hodgson and Hodgson, EWCA, two couples who entered into a protracted legal argument over the ownership of a ditch have been left facing legal costs of £500,000 after the dispute ended up in the Court of Appeal.

The dispute arose when one of the couples asserted the right to drive across the ditch and down the adjoining track to their property. Their neighbours, who breed wallabies and alpacas on their land, claimed that this disturbed their animals and that the couple had no right to cross the ditch.

The couple used the track to access the road as it was considerably shorter than the alternative way out of their property via their driveway.

The issues in the case were complex and the plans showing the title to the land were less than clear. The Court has to decide whether or not a 'right by habitual use' has been established and whether the couple who wish to use the track have the right to do so if the boundary between the two properties runs down the middle of the track.

It is a case in which the principle that the 'loser pays' is likely to mean a massive bill for the loser, but also a very substantial cost for the winner, as the legal costs are unlikely to be fully met by the loser.

The Appeal Court judge commented that the value of the disputed right of way must be 'rather less' than the costs of the case before it reached the Court.

A decision is expected in early 2015.

B P Collins LLP property litigator Sarah McLoughlin commented, "When positions become entrenched, costs can rise rapidly and in some cases the cost of the argument can greatly exceed the value of what is being argued about.

"Litigation is normally a last resort. We can help you resolve disputes as economically and amicably as possible."

For further information or advice, please contact Sarah by calling 01753 279035 or emailing disputes@bpcollins.co.uk.

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