Dispute over right of way is road to ruination

By Chris Moore

A Co Down couple are on the verge of bankruptcy and homelessness because of a land dispute that began five years ago and which they say was based on an incorrect map used in court.

Robert and Deirdre Shaw could lose their home on Creevytennant Road at Boardmills near Ballynahinch before the end of the year if they cannot persuade a court that they have become victims of a miscarriage of justice.

In 2007 a neighbour succeeded in getting an interim court injunction to stop the Shaws building a wall around their property on the basis that the wall was going to narrow an already narrow laneway and right of way at the side of the Shaws’ property.

But the Shaws say the map used in the initial court hearing was flawed.

And they say they can prove that rather than narrow the laneway, they were widening it.

“Everything that has happened legally since May 2007 is based on that incorrect map,” said Robert Shaw.

“We have been in front of 13 or 14 judges to try to get this mapping error highlighted,” Mr Shaw told The Detail, “but have failed to have the error corrected.

“Successive courts have continued to ratify the ruling against us based on that incorrect map. All our problems stem from that.”

Ruination faces the Shaws over legal costs of around £150,000.

Yet they have been representing themselves for most of the subsequent courtroom appearances to try to get the court to look again at their case and to use the correct map that was established in previous land disputes in 1988 and 1997 and which resulted in a court decree.

Mr Shaw told The Detail: “Had the correct map been used at the first court hearing we would never have been inside a courtroom.

“There just would not have been a case to answer.”

FROM THE BEGINNING…..

Robert and Deirdre Shaw began building a wall around their home in the spring of 2007.

They had purchased the land to build their home 10 years earlier in 1997.

Access to their home was along a narrow laneway from the main road. The laneway passed the end of their property and it was a right of way for farmers with land up the laneway and for another family living further up the lane.

“But we were being robbed,” said Mr Shaw a joiner by trade. “The back of our house afforded easy access and we noticed that stuff was being stolen from our property.

“So we decided to build a wall.”

Little did the Shaws know that this would just be the beginning of their problems.

A neighbour believed the wall the Shaws were building would present difficulties in getting large livestock carrying vehicles up the laneway. He took out an injunction to stop work on the wall.

He succeeded.

Mr Shaw said: “Based on what the judge was told, it was right that an injunction be granted.

“We only found this out years later when we got hold under discovery of the map used in that first court hearing.

“It had been drawn up only a matter of days before the court hearing. But it contained flaws.”

Robert Shaw also discovered from another neighbour that there had been two previous land disputes over the same stretch of laneway in 1988 and 1997.

“We were told that as a result of those land disputes two courts had established a recognised map based on the Ordnance Survey map,” said Mr Shaw.

The Shaws got a hold of the maps.

Robert Shaw says he can read maps and take measurements from them.

“It’s part of what I do as a joiner,” he said.

Using the incorrect map and the correct map, he was able to mark out the disputed area of the laneway. In the photograph below, you can see three lines in different colours.

The black line is the line Robert Shaw was building his wall.

The red line is the boundary of his property.

The blue line is where the wall was being built – according to the incorrect map.

The Shaws agree that based on the incorrect map, the judge was right to grant the injunction to prevent work continuing on the wall being built by the Shaws.

In fact during the period of an interim injunction, the judge in the initial case visited the laneway and then granted a full injunction with permission to build a wall that would meet certain specifications.

The judge instructed the neighbour who had secured the injunction to reduce the size livestock vehicle being used and ordering him to pay the Shaws £150 in damages.

THE COURTROOM BATTLES BEGIN

The Shaws embarked on a series of court cases and appeals to try to have the injunction overturned on the basis that the wrong map was used.

They represented themselves in these ongoing court cases and they admit they became extremely unpopular within judicial circles.

In March 2010, Mr Justice Deeny ruled their appeal was an abuse of process given that it was an attempt by the Shaws to punish someone for a subversion or omission of a map at an interlocutory hearing whereas the map was irrelevant to the decision of the lower court to grant the injunction.

Mr Justice Deeny also had this to say: “The respondent [the neighbour who sought the injunction] here is in my view entitled to say that there is considerable evidence of vexatiousness and of the sort of obsessive behaviour that sadly befalls some litigants from time to time and casts doubt on whether these are bona fide proceedings.

“But it is worse than that. Complaints have been made to a wide ranging series of public officials, Assemblymen, MPs, the Lord Chief Justice and the Prime Minister – all seeking complaints to be heard and inquiries to be heard.”

Mr Justice Deeny’s ruling was reinforced at a later hearing in the High Court when the Shaws attempted to sue a firm of solicitors before Mr Justice McCloskey who found the Shaws’ claims in court to be “scandalous, vexatious, frivolous and constitute a misuse of the court’s process.”

Now that firm of solicitors is suing the Shaws for bankruptcy.

The Shaws have unsuccessfully attempted to have the Bar Council and the Law Society adjudicate on their behalf.

Mr Justice Deeny referred to the Law Society complaints from the Shaws about the firms of solicitors involved.

“I haven’t named them,” he said, “but I don’t want in any way to imply that the court finds there is any substance in those complaints. In fact that has not been the case and the Law Society rejected the complaints.”

The Shaws have found little sympathy within the judiciary and outside the courtroom there has been little support for their cause. They were delighted however when their MP came on board.

Jeffrey Donaldson, the DUP Lagan Valley MP believes the Shaw family have a valid case.

“It is clear the Shaws have been making discoveries as they have contested the original court ruling,” he said, “and the effect of that is they have a case of miscarriage of justice.”

Mr Donaldson said he hoped the Department of Justice would take an interest in the Shaws’ case and if the Department found there had been a wrong then it would act – as in past cases of wrongs – to correct that wrong.

FINANCIAL RUINATION IS NEAR

In court they have been described as ‘vexatious litigants’ and they feel this is because no one wants to admit the original court made a judgement on a map that was incorrect.

“It has taken us years to discover what has been going on legally,” said Mrs Shaw, “and we just feel we are being made to suffer the consequences of a mistake that should not have occurred and which is being perpetuated by successive courts.”

So with the clock ticking on their tenure as homeowners on Creevytennant Road, Ballynahinch, the Shaw family says they can demonstrate that the wall they were building was widening the laneway…not narrowing it as the court ruled.

As we walked along the right of way part of the lane looking at the coloured markings Robert Shaw had made on the ground to correspond with the photograph above, he said it was clear his wall was actually widening the laneway, not narrowing it.

“Just look at where the wall is,” he said in a tone of bewilderment.

“I am widening the lane by between two and four feet and yet we face financial ruin because a court has accepted I am narrowing the laneway based on a map that is flawed.”

Deirdre Shaw said: “Where is the justice in this? We are victims of a miscarriage of justice and no one seems to care that we are on the verge of losing our home…everything.”

As the legal bills mounted, Deirdre Shaw had to give up her job at a bank to get a severance package that allowed her to pay £15,000 towards a legal bill.

The Shaw family face an uncertain future.

For now all they can do is reflect on Mr Justice Deeny’s ruling where the judge referred to an acceptance by the solicitor for the neighbour who succeeded in stopping the Shaws build their wall that “there is a slight degree of uncertainty whether the relevant maps were before the court at the time of the interim injunction…”

For Robert and Deirdre Shaw that ‘slight degree of uncertainty’ is pushing them towards almost certain ruination.

They will be in court again this Friday. If they can’t avoid bankruptcy, the axe will fall soon after.