Freetown v Assethold Ltd (Respondent/Claimant)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Slade |
| Judgment Date | 21 May 2012 |
| Neutral Citation | [2012] EWHC 1351 (QB) |
| Court | Queen's Bench Division |
| Date | 21 May 2012 |
| Docket Number | Case No: QB/2012/0010 |
[2012] EWHC 1351 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Slade DBE
Case No: QB/2012/0010
Lawrence Power (instructed by The Chancery Partnership) for the Appellant
David Nicholls (instructed by Greenwood & Co) for the Respondent
Hearing dates: 14 th March 2012
Freetown Limited ('Freetown') appeals from the judgment of Mr Recorder Hochhauser QC on 16 th December 2011 in which Freetown's statutory appeal to the County Court from a party wall award made by a third surveyor, was struck out on the basis that the appeal was out of time. The issue which is to be determined in this appeal is when the 14 day time limit for appealing an award under Section 10(17) of the Party Walls etc. Act 1996 ('the 1996 Act') begins. Mr Power for Freetown contended that when the award is sent by post, time begins to run on the date the award is received or was deemed to have been received by a party. Mr Nicholls for Assethold Limited ('Assethold') contended that when the method of service of the award is statutorily specified as an option, in this case, sending the award by post, the date on which time begins to run is when it is posted.
Relevant Facts
Freetown is the freeholder of land known as 12 Westport Street London E1. Assethold is the long lessee of land known as 4 Westport Street which is immediately to the south of Freetown's land. On 20 th January 2011 Freetown served notices under the 1996 Act in relation to development work it intended to carry out on 12 Westport Street. Assethold dissented from the notice so that there was a dispute between the parties. The parties each appointed a surveyor who selected a third surveyor in accordance with Section 10(1) of the 1996 Act. The third surveyor made an award dated 22 nd July 2011 ('the Award'). Freetown sought to appeal the Award to the County Court. Assethold applied to strike out the appeal on grounds that it was lodged out of time.
The Recorder found that the Award was sent by post by the third surveyor on either Friday 22 nd or Saturday 23 rd July 2011. It was received by Freetown on Monday 25 th July 2011. The appeal was lodged on 8 th August 2011.
It was common ground before the Recorder that if the 14 day period within which an appeal from the Award must be lodged started on the date the Award was posted, the last day for lodging an appeal was Thursday 4 th or Friday 5 th August 2011. Mr Power on behalf of Freetown accepted that if either of those dates was the relevant date by which the appeal should have been filed, it was out of time. Since there was no discretion to extend time, Assethold's application to strike out the appeal would succeed.
At the hearing before the Recorder, Mr Nicholls acknowledged that if time for the appeal started running on the date the Award was consigned to the post, because the court office was closed on Sunday 7 th August, as a consequence of the decision in the House of Lords in Mucelli v The Government of Albania [2009] UKHL 2, Freetown had until the next day, 8 th August 2011, in which to lodge the appeal and it would have been in time.
Relevant Statutory Provisions
The Party Walls etc. Act 1996
Section 10:
"(1) Where a dispute arises or is deemed to have arisen between a building owner and an adjoining owner in respect of any matter connected with any work to which this Act relates either—
(a) both parties shall concur in the appointment of one surveyor (in this section referred to as an "agreed surveyor"); or
(b) each party shall appoint a surveyor and the two surveyors so appointed shall forthwith select a third surveyor…
…
(11) Either of the parties or either of the surveyors appointed by the parties may call upon the third surveyor selected in pursuance of this section to determine the disputed matters and he shall make the necessary award.
…
(15) Where an award is made by the third surveyor—
(a) he shall, after payment of the costs of the award, serve it forthwith on the parties or their appointed surveyors; and
(b) if it is served on their appointed surveyors, they shall serve it forthwith on the parties.
…
(17) Either of the parties to the dispute may, within the period of fourteen days beginning with the day on which an award made under this section is served on him, appeal to the county court against the award…"
Section 15:
"(1) A notice or other document required or authorised to be served under this Act may be served on a person—
(a) by delivering it to him in person;
(b) by sending it by post to him at his usual or last-known residence or place of business in the United Kingdom; or
(c) in the case of a body corporate, by delivering it to the secretary or clerk of the body corporate at its registered or principal office or sending it by post to the secretary or clerk of that body corporate at that office.
(2) In the case of a notice or other document required or authorised to be served under this Act on a person as owner of premises, it may alternatively be served by—
(a) addressing it "the owner" of the premises (naming them), and
(b) delivering it to a person on the premises or, if no person to whom it can be delivered is found there, fixing it to a conspicuous part of the premises."
The Interpretation Act 1978 Act
Section 7:
"Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expression "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
Section 23(1):
"Any notice, request, demand or other instrument under this Act shall be in writing and may be served on the person on whom it is to be served either personally, or by leaving it for him at his last known place of abode in England or Wales, or by sending it through the post in a registered letter addressed to him there… and in the case of a notice to a landlord, the person to whom it is to be served shall include any agent of the landlord duly authorised in that behalf."
The judgment of Mr Recorder Hochhauser
The Recorder relied on the judgment of the Court of Appeal in CA Webber (Transport) Ltd v Railtrack Plc [2004] 1 WLR 320, in particular paragraph 41 of the judgment of Peter Gibson LJ, to hold that the Award was served on the parties and therefore time for the purposes of an appeal started to run on the date it was posted by the third surveyor. The Recorder acknowledged that the judgment of the Court of Appeal in Webber concerned a different Act, the Landlord and Tenant Act 1954. The issue was whether a notice sent by a primary method for service specified in Section 23 of the Landlord and Tenant Act 1927 ('LTA'), which governed services of notices under Section 25 of the 1954 Act, was deemed served on the date of receipt or the date on which it was sent. Mr Recorder Hochhauser agreed with the submission of Mr Nicholls for Assethold, that service for the purposes of Section 10(17) of the 1996 Act has the same meaning as that in the Landlord and Tenant Act 1927 and that when a document is sent by post, the date of service 'on a person' is the date it is consigned to the post. In reaching this conclusion the Recorder had considered the submissions of Mr Power on behalf of Freetown that such a construction would lead to injustice and would deprive Freetown of the right to a fair trial in breach of Article 6 of the European Convention on Human Rights ('ECHR'). In accordance with the Human Rights Act Section 3(1) of the 1996 Act should be construed compatibly with that right.
The submissions of the parties
Mr Power submitted that the Recorder erred in holding that he was bound by the judgment of the Court of Appeal in Webber to hold that an award served by post in accordance with Section 15 of the 1996 Act was served when posted not when it was received. He contended that the content and context of Section 23 of the LTA which the Court of Appeal considered in that case, was distinguishable from Section 15 of the 1996 Act. Second that there is nothing in Section 15 to indicate a contrary intention to Section 7 of the Interpretation Act 1978 ('the 1978 Act') applying to Section 15. This is an argument which was not raised before the Recorder but no objection was taken by Mr Nicholls to Mr Power doing so in this Court. Third that the Human Rights Act 1998 (' HRA') requires the court to adopt the construction of Section 15 for which he contends.
Mr Power submitted that Webber, in which the provisions of the Landlord and Tenant Act 1954 ('LTA') were considered, was distinguishable from the case under appeal. In Section 23 LTA, postal service was required to be by registered post. This was a material difference from the provisions of Section 15 of the 1996 Act in which the postal primary method of service did not require the post to be registered. That registered post is likely to arrive at its destination supports the view that this primary method of service casts the risk of non-delivery on the intended recipient. Paragraph 26 of the judgment of Peter Gibson LJ in Webber shows that allocation of risk on the intended recipient was a material consideration in deciding that service was effected under the LTA on the date an item was posted. The same cannot be said of items consigned to the ordinary post. There is less certainty that a document sent by ordinary post will reach its destination. This method of service does not cast risk of non-delivery on the intended recipient.
Mr Power...
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