Kaye v Lawrence

Hearing dates:

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

THE HON. MR.JUSTICE RAMSEY

The Hon. Mr. Justice Ramsey:

Introduction

This appeal raises an important practical question on the extent to which security may be required under section 12(1) of the Party Wall etc. Act 1996 (“the 1996 Act”). Although a similar provision has been in existence in Inner London since the Metropolitan Building Act 1855 and more recently has been generally applicable in England and Wales under the 1996 Act, there appear to be no reported decisions on the meaning of that subsection.

The only relevant commentary on section 12(1) of the 1996 Act is contained at page 106 of the Party Wall Explained (2nd Edition) produced by the well respected Pyramus & Thisbee Club (“the Green Book”). That society of people interested in party wall matters is named after the adjoining owners in Roman mythology who, unlike some owners these days, exchanged words of affection through a crack in the party wall.

In the commentary on section 12(1) in the Green Book the authors say as follows:

“Security can only be requested if the building owner intends to exercise rights “conferred by this Act”, ie he is proposing to carry out some work to the adjoining owner's land or property. If he is simply excavating his own land then the adjoining owner has no right to receive security under this section.”

The central question on this appeal from an award under the 1996 Act is whether security can be requested when works are being carried out only on the building owner's land and not just when works are being carried out on the land of the adjoining owner, as suggested in that commentary.

These proceedings

Under section 10(17) of the 1996 Act appeals from an award of the third surveyor under the Act are to be brought in the County Court. These proceedings were commenced in the Bournemouth County Court. The parties applied to have the matter transferred to the Technology and Construction Court at the High Court in London. As the statutory appeal is required to be made to the County Court I raised the question of my jurisdiction and, after the hearing, received written submissions from the parties on this issue.

In the event, the parties are agreed that I can proceed by using the powers under section 5(3) of the County Courts Act 1984 which provides that “…every judge of the High Court…shall, by virtue of his office, be capable of sitting as a judge for any county court district in England and Wales…”. In addition the parties agree not to take any point on the basis that I do not have jurisdiction to decide this appeal.

The parties also referred me to section 42 of the County Courts Act 1984 which provides at section 42(2) that “a county court may order the transfer of any proceedings before it to the High Court”. They also refer to the decision of the Court of Appeal in Zissis v Lukomski [2006] EWCA Civ 341 at para 24 where Sir Peter Gibson referred to the decision of His Honour Judge Humphrey LLoyd QC in Chartered Society of Physiotherapy v Simmonds Church Smiles [1995] EGLR 155. In that case Judge LLoyd QC had dealt with an appeal under the relevant section of the previous 1939 Act which had been transferred to the High Court as official referees’ business.

In Zissis the Court of Appeal did not deal with the question of whether the appeal could be brought in the High Court because the appeal in that case was from Brentford County Court and the issue was whether CPR Part 52 applied to an appeal under section 10(17) of the 1996 Act. In such circumstances I do not consider that the decision in Zissis supports the ability to bring an appeal in the High Court by transferring an appeal to the County Court to the High Court under s.42 of the County Courts Act 1984.

However, in the Chartered Society case Judge LLloyd QC said at 156 that “the appeal was transferred (by virtue of section 42 of the County Courts Act 1984) to the High Court as official referees’ business on May 25 1994.” That was an appeal under the 1939 Act which provided at section 55(n) that:

“Either of the parties to the difference may within fourteen days after the delivery of an award made under this section appeal to the county court against the award and the following provisions shall have effect:—

(i) Subject as hereafter in this paragraph provided the county court may rescind the award or modify it in such manner and make such order as to costs as it thinks fit;”

Under the 1939 Act section 55(n)(ii) then provided that if the matter related to a claim for more than £100, “all proceedings in the county court shall be stayed and the appellant may bring an action in the High Court against the other party to the difference.” Section 55(o) then dealt with such an action brought in the High Court. Judge LLoyd QC had to deal with an issue, Issue (B), which was “Whether the appellant is entitled to prosecute an appeal under section 55(n)(ii).”

In dealing with Issue (B) he said this at 156:

“The respondent's first submission was that as a result of the transfer from county court there was before the court the appeal which was formerly before the county court, and not the type of proceedings in the High Court for which provision made in section 55(o) of the Act. Although it would therefore be technically open to this court to apply section 55(n)(ii) (as the conditions there set out would be satisfied since the appellant was insured and the value of any award was clearly going to be over £100) and thus to stay the proceedings and to require fresh proceedings to be brought in the High Court, it would not be sensible to do so. The respondent is clearly right in this submission and for practical purposes issue (B) disappears, but it will be answered in the affirmative. I did not understand the appellant to submit to the contrary once it became clear that the respondent accepted that the appeal was before the High Court, by virtue of the transfer, as an appeal under section 55(n)(i).”

In that case there was therefore acceptance that the appeal under section 55(n)(i) was before the High Court because of the transfer and the court went on to consider the main issue which was the nature of an appeal, whether it was by way of review or re-hearing.

In my judgment, because an appeal under section 10(17) of the 1996 Act is a creature of statute, this court cannot ignore the fact that the county court is the appropriate court and seize jurisdiction which has not been given to it. However, given the importance of the matter and the fact that the parties have agreed that the appeal should be determined in the TCC in London, I consider that it was appropriate for this appeal to be dealt with in the High Court. In the circumstances I consider that the proper route for me to deal with this case is for me to sit as judge of the County Court under section 5(3) of the County Courts Act 1994 having transferred the case to the Technology and Construction Court at the Central London Civil Justice Centre.

In the event, as the parties have expressly consented to my dealing with this matter in the High Court then, as in the Chartered Society case an alternative route would be for me to transfer the case to the High Court under section 42 of the County Courts Act 1994.

Background

The Appellant, Mr Geoffrey Kaye, is the adjoining owner who lives at 126 Panorama Road, Sandbanks, Poole a house which, as shown in a photograph produced at the hearing, is of modern construction and has a glass facade. The Respondent, Mr Matthew Lawrence, is the building owner and he owns a site at 124 Panorama Road where he intends to carry out construction works. By a Notice dated 29 June 2009 Mr Lawrence gave Mr Kaye notice under section 6(1) and 6(2) of the 1996 Act that “it is intended to build within 3 and 6 metres of your building and to a depth as defined in the Act, by carrying out the works as detailed below.” In capital letters it said “IT IS NOT PROPOSED TO UNDERPIN OR OTHERWISE STRENGTHEN THE FOUNDATIONS OF YOUR BUILDING”.

The Notice stated that if Mr Kaye did not consent to the works within 14 days he was deemed to have dissented under section 6(7) of the 1996 Act and a difference would be deemed to have arisen. It further stated that, in such a case, Mr Lawrence would appoint Mr Darren Frias-Robles as his Surveyor. On the standard form attached to that notice Mr Kaye responded on 8 July 2009 to say that he dissented from the above works and confirmed that a dispute had therefore arisen between himself and Mr Lawrence and he appointed BE Willis Partnership as his Surveyor for the purpose of resolving the dispute in accordance with section 10 of the 1996 Act. The two surveyors then appointed Mark Whittingham as the third Surveyor and by an award dated 19 January 2010 Mr Whittingham determined certain disputed items pursuant to section 10(11) of the 1996 Act.

In respect of disputed item 1, the potential for vibration induced or subsidence damage to Mr Kaye's property during the work to 124 Panorama Road, Mr Whittingham...