Downsizing couple who constructed retirement residence 16inches too near their neighbours’ backyard are left residing off their state pensions after dropping £200,000 row

A retired couple are facing a £200k legal bill after they failed in a third consecutive High Court appeal to save the retirement home they built 16 inches ‘too close’ to their neighbours’ garden.

Samuel and Kathleen Horton had originally sold their £815,000 three-bed Essex home back in 2020, after converting their detached garage into a smaller two-bed property for them to move into.

However, the couple, who are both on state pensions, were hauled before the courts after being told by local planners that part of a retaining wall they had built was 16 inches too close to the garden of their neighbours, Jonathan and Carolyn Orchard.

The Hortons then claimed that the garden fence was not on the true boundary, with a fight over where it lies first going to Chelmsford County Court and then three times before High Court judges. 

Losing on each occasion, the couple were already ordered to pay the Orchards’ costs of the trial which tallied up to an estimated £145,000. 

The Hortons were also instructed to cover the costs of further applications in the case, along with £35,000 in damages, on top of their own legal bills.

At the High Court Mr Justice Miles pleaded with the pensioners to give up their legal fight after their lawyer told him they could not afford to pay.

Dismissing their latest application, he said: ‘They must face up to the fact that the boundary is where the judge has ordered. There must be an end to litigation’.

The Orchards moved into their home in Downham near Billericay in 1999, with Samuel and Kathleen Horton moved in next door six years later. 

The Hortons began construction on their new home, what was their previously detached garage, in 2019, before selling their £815,000 home the following year.

In a 2023 at Chelmsford County Court, Judge Robert Duddridge stated the new build had been ‘controversial’, with multiple complaints of trespass onto the Orchards’ land being lodged with planners at Chelmsford County Council.

‘In an email dated 10 July 2020, Chelmsford informed Mr and Mrs Orchard that the defendants had built a retaining wall to the rear of 111A 40cm too close to the boundary and the enforcement team had requested the defendants to carry out remedial works to secure compliance within two months,’ he said.

That led to the Hortons obtaining a surveyor’s report, which stated that the fence separating the two gardens was in fact on their land, and therefore their retaining wall was not too close to the boundary.

With parts of the fence removed to allow access for work, surveyors for the Hortons then placed wooden stakes in the ground on the Orchards’ side, where they said the actual boundary lay.

The Orchards countered by claiming that the stakes had been placed on their side of the true boundary and inside their garden at number 113.

‘The Orchards’ pleaded case is that the defendants positioned these wooden pegs – or arranged for them to be positioned – in order to claim compliance with the terms of their planning permission, in response to Chelmsford’s proposed enforcement action,’ said the judge.

Havin initially claimed an injunction to stop the work, the Orchards eventually went to court for a ruling on where the boundary between the properties lay.

Ruling on the case in July 2023, Judge Duddridge found that expert evidence called by the Orchards was right and that the true boundary was to the west of the line claimed by the Hortons.

‘Given the history and the way in which the dispute about the location of the boundary arose, I think it is more likely than not that it was Chelmsford’s threat to enforce the planning conditions relating to the proximity of the defendants’ structures to the boundary that prompted them to obtain the survey, which then enabled them to claim that they had complied with those planning conditions,’ he said.

‘However, insofar as the claimants’ pleaded case implies that the defendants’ new position as to the boundary was not being advanced in good faith, I do not consider that I can properly draw that inference given that they relied on [a surveyor’s] report, albeit I have found [the] method and conclusions to be erroneous.’

The Horton’s case once again returned before the county court last year, where they were ordered to pay £35,000 worth of compensation for their trespassing of the boundary line.

However, the couple battled on despite this ruling and applied to the High Court to appeal the decision. The High Court went on to uphold the original ruling, with the Horton’s returning to the court on two further occasions and being unsuccessful on both visits. 

Their barrister, Dr Sandy Joseph, argued that new evidence – comprising a 1958 title document – ‘suggests a different boundary line’ is the true dividing line.

Judge Duddridge had also failed to review all the evidence and gave too little weight to evidence of alleged physical discrepancies on the ground, she claimed.

‘This is an elderly gentleman, they’re both retired, they’re both on state pensions,’ said Dr Joseph. ‘It is very obvious they are trying very hard to right a wrong.’

Carl Brewin, solicitor for the Orchards, said that the Hortons only had themselves to blame for their massive court bill though.

‘They are in the position they are because they have contested every application, contested the claim and they have lost,’ he told the judge.

‘Ultimately, the Hortons cannot get over the fact that they lost.’

Mr Justice Miles rejected their application to appeal, telling the couple that they had to give up and accept the ruling on where the boundary lies.

‘I don’t consider there is any proper basis for the introduction of the new evidence, which all concerns a challenge to the original decision of July 2023,’ he said.

‘This appeal was doomed in the sense it never had any realistic prospect of succeeding because it is in reality an attempt to have another go at appealing the decision of July 2023.

‘I therefore certify that the application was totally without merit.’

He continued: ‘In her submissions, counsel for the appellants said that the appellants have been seeking to right a wrong.

‘I think it’s important to say that there is a principle of finality in litigation. They were parties to legal proceedings, in which they were able to put forward all of their arguments.

‘They lost those proceedings and they must abide by the order of the court.

‘The position of the boundary has been set by the order of July 2023 and, although they don’t appear to be prepared to accept it, they must do so and must live with that order.’

Before even considering their own legal expenses, the Hortons now face an astronomical bill of £200,000 to cover their neighbours lawyers and compensation.

However, Mr Justice Miles said that their inability to pay should not be factored into his ruling.

‘Counsel for the appellants said that they will not be able to pay, but inability to pay isn’t a reason why a costs order should not be made,’ said Mr Justice Miles.

‘This case has a very long history. The appellants have shown that they are simply not prepared to accept the rulings of the court and the application for permission to appeal is really an attempt to reopen the original order..’

He added: ‘It’s doubtless a very heavy burden for any litigant in the position of the appellants to have to meet orders for costs in a case of this kind, but that’s the consequences of losing legal proceedings.

‘They must face up to the fact that the boundary is where the judge has ordered. There must be an end to litigation.’