Nicholas John Knight v Basil Constantine Goulandris
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hamblen,Lord Justice Henderson,Lord Justice Patten |
| Judgment Date | 20 February 2018 |
| Neutral Citation | [2018] EWCA Civ 237 |
| Docket Number | Case No: A1/2016/3438 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 February 2018 |
[2018] EWCA Civ 237
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
(TECHNOLOGY AND CONSTRUCTION COURT)
HH Judge Bailey
B20CL129
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Patten
Lord Justice Hamblen
and
Lord Justice Henderson
Case No: A1/2016/3438
Michael Wheater and Ms Emily Betts (instructed by Fox Williams LLP) for the Appellant
Mr Tom Weekes QC (instructed by Ward Hadaway) for the Respondent
Hearing date: 1 February 2018
Judgment Approved
The parties to this appeal are neighbours in Belgravia. In 2013 Mr Knight began work on his house at 19 Chester Square which included the creation of a larger basement. This involved the extension of a party wall. The work to 19 Chester Square took two years to complete after which each party appointed his own surveyor to assess the damage which the works had caused to Mr Goulandris's property at 18 Chester Square. It was common ground that the works had caused some damage but the extent and the cost of remedying the damage were very much in dispute.
The surveyor appointed by Mr Goulandris (Mr Nicholas Fenton) considered that, in order to restore 18 Chester Square back to its original condition, it would be necessary to carry out extensive works of cleaning and re-decoration which would necessitate Mr Goulandris and his family moving to alternative accommodation while the work was carried out. He assessed the compensation due to Mr Goulandris as the Adjoining Owner to be £821,210.49 of which £640,000 represented the cost of alternative accommodation.
Mr Denis Holley, the surveyor appointed by Mr Knight, disputed that the decorative condition of 18 Chester Square was solely attributable to the works and contended that many, if not most, of the defects fell to be rectified as part of the usual wear and tear in the life of the building. He therefore rejected Mr Fenton's assessment of the compensation payable.
In the absence of any agreement between the parties, the surveyors took steps to resolve the matter by selecting a third surveyor (Mr Alistair Redler) under the provisions contained in s.10(1)(b) of the Party Wall etc Act 1996 (“the 1996 Act”). On 2 September 2015 Mr Redler issued his award in which he determined that much of the damage relied on by Mr Fenton such as hairline cracking pre-dated the works to 19 Chester Square and that other defects were comparatively minor. The works for which Mr Knight was responsible were, he decided, not urgent and could reasonably be carried out without the need for Mr Goulandris and his family to vacate their property. Mr Redler assessed the compensation payable under the 1996 Act in the sum of £55,001.61.
Mr Goulandris has appealed against the award. The procedure for such an appeal is contained in s.10(14)-(17) as follows:
“(14) Where the surveyors appointed by the parties make an award the surveyors shall serve it forthwith on the parties.
(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.
(16) The award shall be conclusive and shall not except as provided by this section be questioned in any court.
(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 and the county court may—
(a) rescind the award or modify it in such manner as the court thinks fit; and
(b) make such order as to costs as the court thinks fit.”
Mr Goulandris issued his appeal in the Central London County Court on 17 September 2015. Mr Knight contends that it was issued out of time because the 14 day period under s.10(17) expired on either 15 or 16 September. The dispute centres on when the third party surveyor's award was served on Mr Goulandris. Mr Redler's award was not served directly on the parties as it could have been under s.10(15)(a). What happened was that on 2 September at 08:45 Mr Redler e-mailed his award to both parties' surveyors. On the same day but at 23:19 Mr Fenton forwarded the e-mail to Mr Goulandris to which was attached the award in a pdf format. It is common ground that Mr Goulandris did not read the e-mail until early the following day. Also on 3 September Mr Fenton received a hard copy of the award in the post but neither he nor Mr Redler ever sent a hard copy of the award to Mr Goulandris.
It is, I think, common ground that the references to “serve” and “served” in s.10(15) and 10(17) respectively must have the same meaning so that the issue is whether the receipt by Mr Goulandris of the award in electronic form constituted service of it on him for the purposes of s.10(17) either on 2 September when the e-mail was actually received in his in-box or at least on 3 September when he read it together with the attachment.
Service of documents is dealt with in s.15 of the 1996 Act which provides as follows:
“(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.
(1A) A notice or other document required or authorised to be served under this Act may also be served on a person (“the recipient”) by means of an electronic communication, but only if—
(a) the recipient has stated a willingness to receive the notice or document by means of an electronic communication,
(b) the statement has not been withdrawn, and
(c) the notice or document was transmitted to an electronic address specified by the recipient.
(1B) A statement under subsection (1A) may be withdrawn by giving a notice to the person to whom the statement was made.
(1C) For the purposes of subsection (1A)—
“electronic address” includes any number or address used for the purposes of receiving electronic communications;
“electronic communication” means an electronic communication within the meaning of the Electronic Communications Act 2000; and
“specified” means specified in a statement made for the purposes of subsection (1A).
(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 provisions of subsections (1A)-(1C) were introduced as amendments with effect from 6 April 2016 by the Party Wall etc Act 1996 (Electronic Communications) Order 2016 (2016 No. 335) (“the 2016 Order”) pursuant to the power contained in s.8 of the Electronic Communications Act 2000 which allows the Minister by order to modify the provisions of any legislation “for the purpose of authorising or facilitating the use of electronic communications … for any purpose mentioned in subsection (2)”. The only purposes specified in s.8(2) that were applicable to s.15 of the 1996 Act were
“(a) the doing of anything which under any such provisions is required to be or may be done or evidenced in writing or otherwise using a document, notice or instrument;
(b) the doing of anything which under any such provisions is required to be or may be done by post or other specified means of delivery;”
The 2016 Order was preceded by an impact assessment published by the Department for Communities and Local Government which makes clear that the view taken by the Department at the time was that s.15 of the 1996 Act in its original form did not permit documents such as the third party surveyor's award to be served electronically. They had, it said, to be delivered in person or by post. The evidence received by way of responses to the consultation indicated that only about 1% of party wall notices out of an annual total of 226,800 notices were served in person so that the electronic service of documents under the 1996 Act could, according to the assessment, be regarded as an efficient, low-cost alternative which was likely to be taken up in a significant proportion of cases.
On 26 May 2016 HH Judge Bailey heard a preliminary issue on the question of whether Mr Goulandris has issued his appellant's notice within the 14-day time limit under s.10(17). The judge held that the service by Mr Redler of his award on Mr Fenton did not constitute service on Mr Goulandris and there has been no challenge to his decision on this point. He therefore considered whether the e-mail which Mr Fenton sent to Mr Goulandris containing the award in pdf format amounted to service under s.10(15)(b) so as to set time running for an appeal under s.10(17). Having referred to some of the relevant authorities which I will come to shortly, he expressed the initial view that s.15 does not provide an exhaustive list of the means by which a document such as an award can be served. At [39] he said:
“Whatever the merits of this argument, the conclusion must be wrong. ‘May’ in Section 15 can only be permissive. It is not only a common English word, readily understood, but it is a word commonly used in English statutes. It indicates the permissive not compulsion. It really cannot reasonably be construed as precluding any other form of service.”
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