Blake v Reeves
| Jurisdiction | England & Wales |
| Judge | Lord Justice Etherton,Lord Justice Moses,Lord Justice Mummery |
| Judgment Date | 24 June 2009 |
| Neutral Citation | [2009] EWCA Civ 611 |
| Docket Number | Case No: B2/2008/2934 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 June 2009 |
[2009] EWCA Civ 611
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WANDSWORTH COUNTY COURT
HIS HONOUR JUDGE VILJOEN
8WT101145
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lord Justice Moses and
Lord Justice Etherton
Case No: B2/2008/2934
Mr Nicholas Isaac (instructed by Messrs Penman Johnson Llp) for the Appellant
Mr Stephen Bickford Smith (instructed by Child & Child) for the Respondent
Hearing date : 16 th June 2009
Lord Justice Etherton :
Introduction
This is an appeal from a decision of His Honour Judge Viljoen in the Wandsworth County Court on 14 November 2008 concerning an award under the Party Wall etc. Act 1996 (“the 1996 Act”). Lloyd LJ granted permission to appeal limited to the following ground:
“The learned judge erred in holding that sections 10(12) and/or 10(13) of the Party Walls etc. Act 1996 (“the Act”) did not permit surveyors making an award under that Act to provide for the payment of legal costs from one party to the other, in particular advice given and steps taken in contemplation of legal proceedings for an injunction.”
The Facts
The facts relevant to the appeal may be briefly stated as follows.
The Respondent, Beatrice Blake, purchased 1 Farlow Road, London SW15 1DT (“1 Farlow Road”), an end of terrace house, in 2007. If one faces the front of that house, to the right of the flank wall there is a driveway belonging to the Appellant, Christine Reeves, which forms part of her property at 143 Lower Richmond Road, London SW15 1EZ (“143 Richmond Road”). The driveway gives access to the Appellant's garage on the right hand side of the drive. The Respondent decided to demolish 1 Farlow Road and to replace it with a new building, which would have three flats, one of which was to be a basement flat. Excavations would be required.
On 9 August 2007 the Respondent served on the Appellant a notice under the 1996 Act s.1(5) (“the first notice”), and another under s.6(1) (“the second notice”). The first notice was served on the basis that the Respondent proposed to construct a new wall on the boundary with the driveway. The second notice was served because the level of the new basement would be substantially below the level of the foundations of the garage of 143 Lower Richmond Road.
The Respondent appointed Ms Sara Burr as her surveyor, and the Appellant appointed Mr Simon Levy as her surveyor. They selected Mr David Maycox as the third surveyor pursuant to s.10(1)(b) of the 1996 Act.
There were disputes as to whether the first notice was valid in view of the fact that the Respondent's wall was the wall of a house, and also as to the details of the works, in particular the issues of supporting the excavation and underpinning.
In an award made on 20 November 2007 (“the First Award”) Mr Maycox determined that the first notice under s.1(5) of the 1996 Act was invalid, but that the second notice under s.6 was valid.
The Respondent took the view that the First Award authorised the works in respect of excavations and foundations. She gave instructions for them to be carried out, and they were begun. The Appellant, on the other hand, did not agree. She considered, correctly, that a further award was necessary before the works could proceed. The Appellant consulted her solicitors, Penman Johnson LLP, who advised her to take High Court proceedings for an injunction. On their instructions, counsel settled draft Particulars of Claim for an injunction and other relief, for issue in the Chancery Division. Draft witness statements of Mr Levy and his assistant were also prepared.
On 30 November 2007 Penman Johnson wrote to the Respondent stating that they intended to attend the High Court at 2pm that afternoon unless by that time they had received an undertaking from the Respondent to cease all further work on the boundary with the 143 Richmond Road pending further agreement with the Appellant's surveyor. On receipt of that letter, the Respondent gave an undertaking not to carry out further work to the foundations for the time being. That and subsequent undertakings were accepted, and no proceedings were ever begun. The draft Particulars of Claim and supporting draft witness statements were never issued or served, nor was the Respondent ever given copies of them.
On about 10 December 2007 Ms Burr resigned as the Respondent's surveyor for reasons of ill health. The Respondent did not appoint another surveyor in her place. Accordingly, as authorised by the 1996 Act s.10(10), the procedures under the 1996 Act were carried out by Mr Levy and Mr Maycox alone.
Mr Levy and Mr Maycox produced an award dated 25 January 2008 (“the Second Award”), which authorised and directed the content, manner and timing of work to be carried out by the Respondent. In a letter sent to the Respondent with the Second Award, Mr Maycox said:
“It is regrettable that the work progressed without the settlement of an Award thus giving the Adjoining Owner little option other than to take legal advice and with the work continuing, to instigate proceedings to stop the work until such time as an Award had been settled and delivered. Such a set of circumstances involve significant time on the part of both surveyors and solicitors and per the terms of the Award, are recoverable in accordance with Section 10(13) of the Act.
I enclose herewith the various fee accounts referred to in Clause 9 of the Award and would ask that these accounts be discharged directly. My own invoice will be rendered in due course.”
Paragraph 9 of the Second Award directed that the Respondent forthwith pay the Appellant's “solicitors' and legal fees” of £7, 651.49 plus VAT (“the Legal Costs Direction”). It is conceded, on behalf of the Appellant, that all those costs were in respect of the contemplated proceedings, for which the draft Particulars of Claim and draft witness statements had been prepared, but which were never instituted.
On appeal to the Wandsworth County Court pursuant to s. 10(17) of the 1996 Act, Judge Viljoen ordered, so far as relevant to this appeal, that the Second Award be varied by deletion of the Legal Costs Direction.
The sponsor of the Bill which was to become the 1996 Act, the Earl of Lytton, explained on the second reading of the Bill in the House of Lords that the aims of the Bill were to extend the tried and tested provisions of the London Building Acts to England and Wales: Zissis v Lukomski [2006] EWCA Civ 342 at para. [24] (Sir Peter Gibson). The 1996 does not reproduce in identical terms the provisions of the London Building Acts. It contains, for example, new provisions as to costs. Generally, however, it provides procedures, similar to those in the London Building Acts, for authorising property owners to carry out work to an existing party structure or otherwise on or near to the boundary with the adjoining property, but which at the same time protect the legitimate interests of the adjoining owner. They are intended to constitute a means of dispute resolution which avoids recourse to the courts.
Broadly, the 1996 Act is intended to apply in three situations: where an owner of land wishes to build on the boundary line with an adjoining property and there is no existing party structure (s.1); where an owner wishes to carry out work to a party structure (ss.2 to 5); and where an owner wishes to carry out certain works of excavation near to a building or structure of an adjoining owner (s.6). Section 10 of the 1996 Act provides for the resolution of disputes by one or more surveyors appointed under its provisions. This appeal is concerned with work within s.6 of the 1996 Act, and with the operation of s.10. The following provisions are particularly relevant.
6 – (1) This section applies where –
(a) a building owner proposes to excavate, or excavate for and erect a building or structure, within a distance of three metres measured horizontally from any part of a building or structure of an adjoining owner; and
(b) any part of the proposed excavation, building or structure will within those three metres extend to a lower level than the level of the bottom of the foundations of the building or structure of the adjoining owner.
(5) In any case where this section applies the building owner shall, at
least one month before beginning to excavate, or excavate for and erect a building or...
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