Sukhbinder Singh Takhar v Lahrie Mohamed

Hearing date: 06 December 2022

Approved Judgment

This judgment was handed down remotely at 12.00pm on 31 August 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Mrs Justice Foster DBE

Mrs Justice FosterDBE:

THIS APPLICATION

The application before the Court is an appeal stated to be against three related Orders of the Court by HHJ Parfitt. The last in time is an Order dated 12 January 2022 following arguments as to the meaning and scope of an earlier decision of the Judge's dated 21 November 2021 (the second Order) which decided a number of disputes arising on the proper construction of a settlement contract scheduled to a Tomlin Order between the parties dated 11 May 2016 (“the Tomlin Contract”). The earliest Order dated 7 January 2021 decided some similar issues, and the right to appeal it was reserved with leave of the Court. HHJ Parfitt decided that the parties had agreed to an appeal process in the County Court for which it could take jurisdiction, and that process, called by him a “challenge”, was to be by way of a re-hearing, rather than a review. He held that the Liberty to Apply in the Tomlin Order of the Court could give effect to it.

The underlying disputes compromised by the Tomlin Contract derived from certain building works carried out by the Mohameds and the effect of those works upon the property of their neighbours the Takhars. The works were described in a decision by HHJ Bailey in 2017 made following an injunction application brought by the Mohameds against previous Party Wall etc. Act 1996 (“1996 Act”) surveyors as:

“2.… construction of a multi-layered basement development, including lifts to take cars to underground parking, a sub-level swimming pool, and a sunken garden to the rear of the property. These works necessitated extensive excavation up to the property's boundaries, works which were notifiable under the provisions of s.6 of the 1996 Act.”

Further details of the works in question are not relevant to this appeal which concerns construction of the Tomlin Contract and its consequences.

The parties are referred to here as “the Takhars” (the Appellants) and “the Mohameds” (the Respondents).

Originally four different claims had been issued by the parties, and appeals had been lodged against certain 1996 Act awards. Those claims were compromised during a mediation process and the compromise reflected in a Tomlin Order made by HHJ Bailey. In due course an award was made in respect of an aspect of the building works and the Mohameds sought to appeal it in the County Court, arguing the Tomlin Contract characterised the disputes in question as subject to the 1996 Act and thus subject to the 1996 Act jurisdiction of the County Court. The Takhars sought to strike out that appeal in November 2021.

The broad issue before the Judge in November 2021 was described by him as:

“ 2. The difference between the parties is whether on its proper construction, the Tomlin Order took the parties' disputes outside of the Party Wall etc. Act 1996 (“the 1996 Act”) altogether or only in part and whether the Appellants are estopped from asserting that the 1996 Act should, in part, be read into the Tomlin Order as a result of their conduct before the court which led to an order drawn on 28 December 2017.”

HHJ Parfitt held against the Mohameds to the effect that there remained no 1996 Act right of appeal to the County Court, but also held that it was possible to preserve jurisdiction for a differently founded appeal or “challenge” to the County Court in the following terms:

“… the [Takhars] are correct in both their contentions and consequently, the court has no jurisdiction to consider this appeal. However, I am satisfied that the court does have jurisdiction pursuant to the Tomlin Order to hear an appeal from the Award pursuant to the permission to apply provision in the Tomlin Order. I will give directions that the Appellants' N161 shall be treated as an application pursuant to CPR Part 23.1 and list a CMC to consider what further directions are required to progress that application to a conclusion.”

The January 2022 Judgment considered issues described by the Judge and reasoned as follows:

“ 1. … two scope issues which arise out of a decision that I made on 25 November 2021. I will start with my judgment of 25 November 2021. In the course of agreeing with the [Takhars] that the [Mohameds] were wrong to bring an appeal under the Party Wall etc. Act because the parties were not able to give the court jurisdiction in relation to such an appeal by their contractual agreement, and agreeing with the [Takhars] that, in any event, the [Mohameds] were estopped because of the position they had already taken before this court in previous proceedings, I then addressed what I described in that judgment as the [Mohameds] saving argument. In particular, I said at [48] that the most obvious route to make matters regular appeared to be the permission to apply under the Tomlin order. I did not understand Mr Butler or his team [i.e., the Mohameds' representatives] to disagree with this comment if I was against him on the main issues, and then at [49] I said:

“I see no injustice to the parties in this case in allowing that to happen and directing that the appeal notice can be treated for all purposes as if it was an application under CPR Part 23.”

2. And then skipping on in that paragraph:

“The [Takhars'] position on the substantive appeal has been that the award is unappealable for the reasons given in the order and it would be wrong for the court to allow the Mohameds to open up the compensation dispute from the beginning. At most, the court's role should be limited to seeing that the expert is kept to his instructions. This scope issue, to be determined as a matter of proper construction of the Tomlin order, will be a matter for further argument at the CMC, which I will direct following the handing down of this judgment.”

3. In broad terms, that is the scope issue which I am now going to address, and the parties' arguments have rightly, it seems to me, broken that down intotwo separate heads of challenge, one of which is in relation to the nature of the exercise that the court is being asked to undertake. It is the [Takhars'] position that because the court can have no jurisdiction to hear an appeal in circumstances of this kind, really for the reasons I set out in my judgment dated 25 November 2021, then the court should be looking at this particular challenge as a challenge from an expert determination and, in those circumstances, there are only limited grounds for such a challenge. The court can look to see whether or not the expert has done the job that he or she was appointed to do and has acted within that contractual requirement, and if the expert has, then that is pretty much the end of it.

4. On the other hand, what the [Mohameds] say is that they do not disagree with the principle that one looks at the contract, but they say if you do look at the contract in this case that that leads to the conclusion that a wider, essentially re-hearing type of challenge is appropriate, because that is what the parties agreed to when they made reference to treating the challenge as being something which would be as if it was under the Party Wall etc. Act. Broadly, that is the first scope issue.

5. The second scope issue relates to what, in fact, the expert did in this case in his determination which is dated 13 October 2020; the respondent saying that he made two separate determinations. One in relation to the damage that was caused as a result of works done by the applicants to their property, which caused damage to the respondent's property, and then a second determination in relation to the quantum arising out of that damage, and the [Takhars] say that, as a matter of construction of the Tomlin Order, it is only the quantum determination that falls within the scope of the appeal or the challenge.

6. The [Mohameds] say on a proper construction of the Tomlin Order, and on the basis of what the parties did and on the basis of what the expert did in his determination of 13 October 2020, that this was all within paragraph 6 of the Tomlin Order and so all is subject to the re-hearing type challenge that they say is appropriate under the first limb of the scope of the problem.”

ISSUES ARISING

Before this Court the Takhars argue:

a. (Ground 1 of the Notice of Appeal.) The Judge was wrong to hold that the Court had jurisdiction to hear any appeal or challenge to an Award made by the Agreed Surveyor appointed pursuant to the Tomlin Order, and so wrong to devise a mechanism to afford jurisdiction in the Court to hear an appeal. (“ a. Is there any appeal?”)

b. The Mohameds are in particular estopped from arguing that the 1996 Act has any effect given their position before HHJ Bailey. (“ b. Is there an estoppel?”)

c. (Ground 2 of the Notice of Appeal.) If contrary to a. and b. above, there was a right of challenge to the County Court, such challenge should take place by way of a review, not a re-hearing. (“ c. Review or re-hearing?”). Further;

d. (Ground 3 of the Notice of Appeal.) The scope of such challenge did not include the issue of the extent of damage caused to the Takhar's property: it is limited to the issue of the quantum of damages. (“ d. Damages —...