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For sale: £6.8million property. Might not have a garden.

The recently reported case of Hermann v Withers is an interesting insight into the choices people make and how bloody minded litigants and lawyers can become.

Legal commentators are pointing out the significance of the costs orders made in the case and the principle that claimants should always look to mitigate their losses.  This is all entirely correct.  However, the little asides that the judge made are much more juicy.

The Hermanns bought a rather expensive house in Knightsbridge and then had an argument with anyone and everyone about whether they could have access to the gated garden opposite the house (think the film Notting Hill, only slightly less ‘whoopsy daisy’ and more battering rams).  The garden committee initially refused to give them a key and then offered a key for £25,000.00, which the Hermanns rejected.

Mr and Mrs Hermanns are an American retired trial attorney and an investment banker respectively.  When they bought the property they fought for a key to the gardens, which ended up in the High Court, where they lost.  They then turned their guns on their conveyancing solicitors, who were found to be negligent for declaring that the Hermanns definitely had a right to access the garden due to an 1851 Act rather than warning that this was only their opinion and could be challenged.

The details are all in the judgment reported here.  The Judge sets out the full history of the increasingly entrenched and bitter battle (signs on the gates saying ‘that new lot aren’t welcome’, retaining a QC to advise on the definition of a square, that kind of thing).   The most telling statement, though, is at paragraph 34 of the judgment.  Apparently, a wife of one of the garden committee suggested that a hand written note to the head of the committee ‘should do the trick’.  The Hermanns were advised that ‘a handwritten letter…and an invitation to drinks might be the next step.’

The Hermanns kind of followed that advice; they got their solicitors to write a threatening letter of claim demanding the immediate delivery of a key.

Two High Court battles and hundreds of thousands of pounds in legal fees later, the Hermanns still haven’t got access to the garden.

Some might say that £25,000 for a key to a garden is daylight robbery and the Hermanns were right to fight.  I would suggest that, whilst £25,000 is a lot of money to a mere mortal, work it out as a percentage of £6.8million…

I would also suggest that a smile, a couple of gin and tonics and an offer to mow the lawn occasionally might have avoided the whole sorry affair.

Mark Baldwin

mark@macnamaraking.com

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