Dickensian boundary disputes: alive and well in Bermuda?

In his 21 April 2017 judgment in the case of Pearman v Fray [2017] Sc Bda 29 Civ, Mr. Justice Hellman of Bermuda’s Supreme Court has had to determine a property dispute about the ownership of a portion of a private roadway in St. David’s Parish in Bermuda.

The facts of the case, as summarized by the Judge, are almost Dickensian – although this is true of many neighbour boundary disputes in Bermuda, as in England and Wales, as the English Court of Appeal judges, Bean LJ and Christopher Clarke LJ, both noted in Gilks v Hodgson [2015] EWCA Civ 5.

One of the particular problems, in Bermuda, is that land has been held in unregistered form for many years, with the Land Title Registration Act 2011 still in the process of being implemented.

Mr. Justice Hellman’s judgment provides a fascinating insight into the method by which unregistered land ownership in Bermuda may need to be proved, in the event of a dispute, with his careful review of conveyancing deeds and documents dating back as far as 1949 (some available, some missing); his assessment of expert evidence on local conveyancing practice from a Bermudian conveyancing attorney; his review of surveyors’ plans and Parish Vestry records dating back to the 1960s; his assessment of the evidence of numerous witnesses of fact (including Patricia Dangor, a retired Judge); and his review of the doctrine of ‘lost modern grant’ in Bermuda.

The case was also interesting for the fact that relevant property had at one time been conveyed to Edward Trenton Richards, who was to become Premier of Bermuda and a Knight, and the father of Patricia Dangor.

The procedural history of the case seems to have been particularly convoluted, with the proceedings lasting nearly 4 years from commencement to trial; with multiple (and belated) amendments to the pleadings; with unsuccessful interlocutory applications for strike out and summary judgment; and with the trial itself being adjourned twice part-heard. It seems that both parties were equally responsible for this state of the affairs – as if they had never heard of the ‘overriding objective’ that has been at the heart of civil litigation in Bermuda, since amendments to the rules of Court in 2006.

If nothing else, this case is a vivid illustration in support of the proposition that Land Registration cannot come soon enough to Bermuda.

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