Letter fuelled fence dispute

Press, 15 February 1989, Page 15

Letter fuelled fence dispute

An ongoing dispute between neighbours at Redcliffs, involving a fence, a boundary and a right-of-way, escalated when a lawyer’s letter containing alleged offensive remarks was sent to one party’s lawyer, Mr Justice Jeffries was told in the High Court yesterday. The hearing of evidence in a series of actions against a number of lawyers, some of whom have since become High and District Court Judges, and two legal firms, started yesterday. The proceedings have been brought by William Andrew McKaskell, a school teacher, and Mary Patricia McKaskell, his wife, who allege defamation, negligence and conversion. Damages are claimed.

Three separate series of actions have been consolidated into one and are being heard together. All the defendants deny all allegations, most of which arose when they took the McKaskell’s case in their dispute with their neighbours, the Robertsons.

Defendants are Mr Justice Williamson and Mr Justice Tipping, of the High Court in Christchurch; Judge Willy of the District Court at Dunedin; Mr Graham Ken Panckhurst, Mr Brian John Pelham, and Mr Peter Gonville Benseman, solicitors; and Raymond Donnelly and Co., and Wynn Williams and Co., legal firms.

Mr and Mrs McKaskell are representing themselves and have alleged that they could not obtain legal counsel to appear for them.

Messrs lan McKay and

Nicholas Till appear for all defendants, apart from Messrs Benseman and Pelham, who are represented by Mr Tom Weston and Ms Storm McVay. The hearing started on Monday, but Mr McKaskell did not finish his opening address until 10.45 a.m. yesterday.

The Court was told that the contents of the letter which has disappeared, were not in dispute. Mr McKaskell said that he had been informed that the contents were “red hot and highly objectionable.”

It has been agreed that the lawyer’s letter sent to the McKaskells’ legal representative at the time, stated “Are your clients considering moving? Their behaviour is more suitable to those living in a State house area.”

In his address, Mr McKaskell said that he and his wife had great difficulty in finding a solicitor to act for them.

At one stage they had consulted Mr Graham Brockett, who had since died.

He said that he was ashamed of what the legal profession had done to the plaintiffs.

While Mr Brockett had said that he would not represent them in Court, he would help them to draw up their statement of claim. He referred them to Mr Andrew Tipping, who advised lawyers when they were having difficulties.

Mr McKaskell said that Mr Brockett had told him that the act of conversion had been committed by the failure to produce the letter and no matter what othersolicitors told plain-

tiff that he could claim damages. Solicitors had an obligation to carry out their clients’ instructions, Mr McKaskell said.

The lawyers, who did not take steps to find out the contents of the letter which had been described to him as “red hot and highly objectionable,” were negligent and were in breach of their duty of. care.

This whole case revolved around the efforts to obtain the letter. Had the solicitors involved been open with the plaintiffs, none of the stress and inconvenience to the plaintiffs would have happened. Without his knowledge or consent, the letter had been removed from his file and returned to the person who wrote it with the advice that the offending material be removed and that a substitute letter be sent, Mr McKaskell said.

That had resulted in the plaintiffs being deceived, and it was still not clear as to whether the original letter existed or not.

One lawyer had told him that the letter would be an embarrassment to the legal profession and the Court. Efforts had been made by their own legal advisers to get the plaintiffs to move from their home at Redcliffs.

Eventually, when he learned of the contents of the letter, Mr McKaskell said that he was shocked that a solicitor would write such remarks about people living in State housing areas. He was disgusted. The requests for discovery of the letter were

not followed up, and as a result of the breach of duty owed by the various solicitors to the plaintiffs they suffered grief, strain and anguish and involved much time and effort by the plaintiffs to get the whole matter cleared up, said Mr McKaskell. Brian John Pelham, a solicitor called by the plaintiffs, said that he was aware of the bitterness between the McKaskells and their neighbours, the Robertsons. Mr Benseman had dealt with the purchase of the property for the McKaskells and had then handed the file over to witness.

The property purchased by the McKaskells was on a back section and owned the right-of-way of which the Robertsons had right of use.

The Robertsons had a garage at the back of the right-of-way, immediately in front of the McKaskells’ property. There was a fencing dispute, and it appeared from his research that the McKaskells had an excellent case.

There was good case law to support a fence

being erected on the boundary, with a gate for access to the garage.

Mr Pelham said that he had been dealing with the Robertsons’ solicitor, Mr Rohan Wills of Dougall Stringer and Co. A fencing notice was issued on the Robertsons, but he could not remember the exact details. He became aware of the very tense, if not bitter situation, between the McKaskells and the Robertsons.

Before the receipt of the disputed letter from Mr Wills, he became aware of a series of events which he found disconcerting. The police had been called on three occasions — twice by the Robertsons, and once by the McKaskells — about minor assaults.

Regular springing traps were set up and down the boundary, survey pegs were being moved nightly by both parties, one of the McKaskells’ children had a foot run over by a car, and the McKaskell children were sent to Coventry.

“It seemed to me that this whole thing was get-

ting seriously out of hand.

“A letter from Mr Wills arrived which contained two sentences which I considered to be completely unacceptable. “It appeared to me that the solicitor was entering into the affray of his clients and that it needed to be stopped immediately,” Mr Pelham said.

He discussed the letter with his principal at the time, Mr Benseman, who had already read it when the mail was opened that morning.

They were both concerned about the contents.

Without mentioning any names, he discussed the letter with other practitioners to obtain their opinions on how to handle the matter, t

It was suggested to him that the letter should be returned to the writer with the request that the offensive remarks be deleted.

The situation was extremely volatile and matters were getting completely out of hand. The primary motivation was that a solicitor had made comments about a client which were unacceptable, Mr Pelham said.