Raheel Shah v Ken Power

Hearing date: 11 th January 2022

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 Eyre

Introduction .

On 3 ^rd July 2018 the Defendants acting as appointed surveyors under the Party Wall etc Act 1996 (“the Act”) made an award (“the Award”) purportedly under the Act against the Claimant and in favour of the owners of the property which adjoined his and which was said to have been damaged by works he had undertaken. By his order of 3 ^rd March 2020 HH Judge Parfitt declared the Award to be null and void on the footing that the Defendants had no jurisdiction to make an award against the Claimant. The Defendants appeal that decision with the permission of May J on the ground that the judge erred in law and that they did have jurisdiction.

The appeal turns on the question of whether a dispute can arise for the purposes of section 10 of the Act in circumstances where works have been performed by a purported building owner who did not serve a notice under the Act; who does not accept the applicability of the Act; and who did not seek to invoke the Act but where the purported adjoining owner contends that the Act applies and seeks to invoke the dispute resolution mechanism provided by section 10 of the Act. Putting it a little more shortly: can the Act be invoked unilaterally so as to apply retrospectively to works already undertaken and in respect of which no notice under the Act has been served?

The History .

The Claimant is the owner of 34, Bull Lane, Dagenham. That is a semi-detached property adjoining and sharing a party wall with 36, Bull Lane which is owned by Sotiris and Androulla Panayiotou.

The Claimant performed works on his property in 2017. He did not serve any notice under the Act in respect of those works and he has maintained throughout that they did not fall within the scope of the Act. Mr and Mrs Panayiotou asserted that the works had caused damage to their property and that the Claimant had removed the chimney breast. The Claimant says that his works did not affect the chimney breast which had been removed previously.

Mr and Mrs Panayiotou engaged Lee Kyson, the Second Defendant. Mr Kyson took the view that the Act applied and he approached the Claimant and his planning consultant who disagreed and said that the Act had no application and who did not participate in the steps which followed. Mr and Mrs Panayiotou then appointed Mr Kyson as their surveyor under section 10 of the Act. Mr Kyson operated the default procedures laid down in section 10 and Ken Power, the First Defendant, was appointed by Mr Kyson on behalf of the Claimant.

By the Award of 3 ^rd July 2018 the Defendants determined that the works performed by the Claimant had been notifiable works under the Act; that those works had caused damage to 36 Bull Lane; that compensation of £4,223.49 net of VAT was payable together with surveyors' fees of £4,630 inclusive of VAT. The Claimant did not pay those sums and the Defendants each commenced proceedings in Sevenoaks Magistrates' Court to recover the sums payable to them pursuant to section 17 of the Act. Those proceedings were stayed when the Claimant began his proceedings in Central London County Court and which resulted in the order now being appealed.

Judge Parfitt's Reasoning .

Judge Parfitt gave an ex tempore but fully reasoned and considered judgment. He first set out the history then, at [9] – [11], he summarised the parties' contentions. The judge noted that Mr Paget put the mantra “no notice no act” at the forefront of the Claimant's case and that the case was more fully expressed as being that:

“…the dispute resolution provisions in section 10 of the 1996 Act are circumscribed to deal with disputes arising out of works or intended works which are to be carried out under the 1996 Act and such works are works for which notice under the 1996 Act has been given. Once notice has been given than the nature and extent of the matters can be brought before the surveyors for dispute resolution pursuant to the 1996 Act is relatively wide but the notice provision is a necessary and essential in group gateway prior to the surveyors having the jurisdiction given to them by Parliament under the 1996 Act.”

The judge summarised the Defendants' argument as being that:

“… The nature and width of the language used in section 10 (1) and 10 (10) of the 1996 Act is wide enough to encompass any dispute arising at work to which the 1996 Act relates or is connected, regardless of whether or not a notice has actually been served.”

The judge added that the Defendants had contended that a “wide and purposive construction” should be given to the jurisdiction of the surveyors under section 10 because of the “obvious benefit” to parties of having “the efficient dispute resolution mechanism of the 1996 Act” and because it would be unattractive if by choosing to ignore the notice requirements of the Act a building owner could deprive an adjoining owner of the benefits and protections intended to be given to that adjoining owner by the Act.

At [13] the judge explained that his analysis of the authorities had caused him to conclude that the Claimant's interpretation of the law was correct. He said that he regarded the heart of the dispute as being “an issue about the extent to and the circumstances in which the 1996 Act replaces common law rights in favour of its own dispute resolution procedures.”

Judge Parfitt then rehearsed the provisions of the Act which were of potential relevance. Having done so he noted, at [23], that it was accepted that the court had power to declare the Award invalid if the Defendants had lacked the jurisdiction to make it. The dispute before him was as to whether or not the Defendants had had jurisdiction when they made the Award. That, in turn, depended on whether the presence or absence of a notice marked the dividing line between that which was within and that which was without the surveyors' jurisdiction.

The judge next explained his analysis of the authorities noting that some of them concerned legislation which had preceded the Act and which had been in different terms.

First, at [26], the judge referred to Woodhouse v Consolidated Property Court (1993) 66 P & C R 234 which he said was “often cited as authority for the general proposition that the dispute mechanism in the Act is limited to matters defined within the Act and works that are permitted by the Act because they are consequent upon a notice having been served or works that are envisaged by a notice that has been served.” Judge Parfitt recorded that he had taken on board Mr Fain's submission that the Court of Appeal was in that case dealing with the effect of the London Building Acts ( Amendment) Act 1939 which was in materially different terms from the Act. It was in the light of that point that the judge turned to consider Blake v Reeves [2009] EWCA Civ 611, [2010] 1 WLR 1 which was a decision of the Court of Appeal decided under the Act.

The judge's understanding of the effect of Blake v Reeves was at the heart of his decision. He regarded it as directly addressing the issue which he had to determine of the division between those matters in respect of which surveyors appointed under the Act had jurisdiction and those over which they had no jurisdiction. Judge Parfitt noted Etherton LJ's characterisation, at [14], of the purpose of the Act and its predecessors as being “to constitute a means of dispute resolution which avoids recourse to the courts”. He then interposed the following passage, at [31]:

“… One of the points made most strongly, by Mr Kyson was that because the purpose of the Act is ‘a means of dispute resolution which avoids recourse to the courts' a construction of the 1996 Act which avoids recourse to the courts must necessarily be right. It seems to me that that is specious on a number of grounds. The question here is the hard edged line between the surveyors’ jurisdiction under the 1996 Act and the common law and it is no answer to that question to say well it would be very good if all these matters could be resolved by parties going to surveyors rather than going to the courts because that is [to] ignore the necessary distinction altogether on the basis that it is always better for parties to use surveyors rather than the courts. That seems to me a misunderstanding of both the intentions of parliament when it was drafting and putting into effect the 1996 Act but also a misunderstanding of what the Court of Appeal is saying. The 1996 Act and its predecessors are beneficial for neighbouring owners within their own terms and those terms do not need to be stretched without limit simply because there is a perceived public good in parties being able to remedy matters without going to the court. In short the jurisdictional issue cannot be avoided by reference to an asserted general benefit to the public from having surveyors determine their disputes.”

Judge Parfitt noted the Defendants'...