Court admits secret recordings as evidence in boundary dispute

15 June 2011 – new case law 

Boundary disputes are notorious for the strong feelings they engender. The public manifestations of those feelings are often seen in the vigour with which litigation is pursued. In this case, though, one party’s private feelings of animosity were on display. Unusually, one neighbour had surreptitiously recorded the other talking about the dispute. 

The County Court allowed those recordings to be admitted as evidence. Subsequently, the Court of Appeal also relied on the recordings when resolving a costs dispute. The recordings showed that the recorded neighbour was likely to try and avoid paying any costs order made against him. That was one of the reasons why the Court required him to pay £50,000 into courts as security for his neighbour’s costs. 

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What happened? 

  • Neighbours in Broxbourne, Hertfordshire were engaged in a protracted boundary dispute. 

  • What made the dispute slightly unusual was that one neighbour made secret recordings of the other discussing the case with a friend. 

  • Litigation ensued before the County Court. The Court allowed the neighbour to admit the recordings as evidence. No attempt was made to challenge that ruling. 

  • The neighbour who made the recordings effectively won the case. 

  • The losing neighbour sought permission to appeal from the Court of Appeal. He was granted permission but on conditions. The neighbour was required to pay into court £20,000 as security for the other neighbour’s costs in defending the appeal. 

  • The winning neighbour thought £20,000 was insufficient. He applied to the Court of Appeal for an order increasing the amount of security. 

What did the Court of Appeal decide? 

  • The Court allowed the winning neighbour’s application. 

  • The Court said that £20,000 was a “wholly inadequate” estimate of the likely costs of the winning neighbour in defending the appeal. This had been extraordinarily expensive litigation and there was no reason to suppose that the appeal would not follow the costly pattern of the earlier proceedings. The Court thought costs would be at least £50,000. 

  • In addition, there were other factors in favour of increasing the amount of security required. The winning neighbour had not yet received any of the costs awarded to him in the County Court. Also, the winning neighbour had a conditional fee agreement with his solicitors for the appeal proceedings under which the neighbour was obliged to pay his solicitors’ costs if the appeal was successfully defended even if no costs were recovered from the other neighbour. So the appeal involved significant financial risks for the winning neighbour. 

  • Finally, the Court of Appeal took into account the secret recordings referred to above. These suggested that the losing neighbour may try to evade any order for costs made against him. One of the recordings was described as follows by the Court of Appeal judge: 

“I’m going to mortgage the house up as much as I can so there’s hardly anything in it”.  He said that he would “speak to the accountants and find out whether they can do anything towards the firm”.  He said “I’m gonna cover all angles”.  He[said] he would tell the respondent “you can have what I’ve got in my pocket -- that’s my tube fare” and that, when asked whether he had a business, he proposed to reply, “No, I don’t own no business no more.  I sold it, mate”. And then he suggested...that “the f***ing colour [would drain] out of [the respondent’s] face”. 

  • For those reasons and also because the Court was satisfied that requiring further costs would not “stifle the appeal”, there was a compelling reason for varying the security for costs order. The Court increased it by £30,000 to £50,000. 

Case name: Cooper v Silverman, May 2011. For further details, including judiciary and citation details, see Issue 75 of the Housing & Property Law Review (forthcoming).