"Paranoia, personal insults, obfuscations and fabrications" permeate neighbours' legal row

Sunday 19 March 2023

Setting aside allegations of "paranoia, personal insults, obfuscations and fabrications", the Royal Court has resolved a boundary dispute between two St. Brelade neighbours.

Timo Schlaefer had applied to the Court for summary judgment against Professor Howard Morris, in a case involving alleged encroachments at adjoining properties on Les Ruisseaux Estate.

The two properties were the subject two years ago of a Vue de Vicomte – a special hearing involving a site visit by the Viscount – to determine exactly where the boundary between the two lay.

Mr Schlaefer claimed that there were a number of encroachments as a result of a restrictive covenant preventing "any building, construction, edifice or thing whatsoever on the property at a distance closer than six imperial feet from the south-west limit of the property", other than essential drainage and a swimming pool located on the adjoining property.

However, Professor Morris claimed that wooden structures erected in 2019 provided disability access, and he denied that they were in breach of the restrictive covenant or any principle of customary law.

Considering their respective skeleton arguments, the Bailiff, Sir Timothy Le Cocq, who was sitting with Jurats Jerry Ramsden and David Le Heuzé, said that they dealt with "a number of matters which we view as wholly irrelevant to our determination".

"There are explanations as to sequences of events, allegations about motivation, paranoia, personal insults, obfuscations and fabrications, none of which have any place in our determination of the issue before us.

"That issue is whether, on any reasonable interpretation of the defendant’s pleaded case, he has a realistic prospect of defending the plaintiff’s claim,’" the Bailiff said.

Sir Timothy noted that, in spite of dissatisfaction expressed by Professor Morris about aspects of the Vue de Vicomte, a determination had been made confirming the location of the boundary.

This, he said, had not been legally challenged, so the location of the boundary had been confirmed and the Court now had to determine the effect of the covenant.

In his judgment, Sir Timothy asked: "Does this matter turn on facts which are not currently before the court and which, to the extent that they are material, are in dispute? It seems to us that they do not. The Vue remains the definitive statement of the boundary. In our view, we see no basis in law for arguing that the restrictive covenant can or should be disapplied.

"It was established by hereditary contract and that contractual position has not altered."

Nevertheless, the Bailiff said that it was not completely clear from Mr Schlaefer’s summons whether there were any additions to his neighbour’s property which did not fall within the definition of encroachment.

The Court therefore ordered that all those encroachments defined as falling within the principles set out in its judgment should be removed. He allowed the parties to apply to the court for clarification, if necessary.