Zissis v Lukomski
| Jurisdiction | England & Wales |
| Judge | Sir Peter Gibson,Lord Justice Wilson,Lord Justice Brooke |
| Judgment Date | 05 April 2006 |
| Neutral Citation | [2006] EWCA Civ 341 |
| Docket Number | Case No: B1/2006/0097 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 April 2006 |
[2006] EWCA Civ 341
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BRENTFORD COUNTY COURT
DISTRICT JUDGE JENKINS
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Brooke
Vice-President of The Court of Appeal
(Civil Division)
Lord Justice Wilson and
Sir Peter Gibson
Case No: B1/2006/0097
Stephen Bickford-Smith (instructed by Messrs Prince Evans Solicitors) for the Appellant
Martin Hutchings (instructed by Messrs Kosky Seal & Co) for the First Respondent
Mr Carter appeared in person
Approved Judgment
Hearing date: 1st March 2006
On an application for permission to appeal which came before this court on 1 st March 2006 we gave permission to appeal and made certain orders. We indicated that we would give our reasons later. In this judgment I set out my reasons for the conclusions which we reached.
The facts
The appellant, Mrs Marianne Zissis, sought permission to appeal from parts of the order made by District Judge Jenkins in the Brentford County Court on 1 st December 2005. By those parts of that order the District Judge dismissed the claim which Mrs Zissis had brought under CPR Part 8 against the Defendant, Mr Andrew Lukomski, that an addendum award purportedly made by a surveyor appointed under the Party Wall etc Act 1996 ("the Act") be rescinded. He did so on the basis that an appeal against an award under the Act must be brought under CPR Part 52.
Mrs Zissis is the owner of a house at 8 Birkdale Road in Acton. Mr Lukomski is the owner of an adjoining house at 10 Birkdale Road. In 2003 she wished to carry out works which came within the provisions of the Act. As the building owner, on 29 th May 2003 she served on Mr Lukomski, as the adjoining owner, a notice under section 6(1) of the Act. A dispute as to the works arose. Pursuant to section 10(1) (b) each party appointed a surveyor, Mrs Zissis appointing Mr Michael Bovington and Mr Lukomski appointing Mr Richard Carter, and the two surveyors selected Mr James Cosgrave as the third surveyor. Mr Bovington and Mr Carter could not agree the terms of an award. Mr Cosgrave alone made an award on 12 th February 2004, authorising the works subject to various conditions to safeguard Mr Lukomski's property. Mr Cosgrave assessed the costs of making the award in the sum of £810 plus VAT and ordered Mr Lukomski to pay £610 plus VAT and Mrs Zissis to pay £200 plus VAT. He did not deal with Mr Carter's fees.
Mr Lukomski, on Mr Carter's advice, sought to appeal against Mr Cosgrave's award and to have it varied so that Mrs Zissis would be ordered to pay Mr Carter's fees and Mr Cosgrave's fees would be disallowed. However, that appeal did not proceed.
Mr Bovington and Mr Carter continued to disagree. On 8 th September 2004 Mr Cosgrave declared himself "incapable of acting" within section 10(9) (c) of the Act. That day by letter to Mr Lukomski Mr Carter observed that the Act required the other two surveyors to select another surveyor in Mr Cosgrave's place. However that did not happen. Mr Carter wrote about his own fees to Mr Bovington who had said he would speak to Mrs Zissis about them. Mr Carter continued:
"Can you please advise me of the present position and let me have your best proposal within ten days of your receipt of this letter."
He said that this was a request in the terms of section 10 of the Act.
Section 10(7) of the Act provides (so far as material) :
"If a surveyor …..
(a) appointed under paragraph (b) of subsection (1) by a party to the dispute …
neglects to act effectively for a period of ten days beginning with the day on which ….. the surveyor of the other party serves a request on him, the surveyor of the other party may proceed to act ex parte in respect of the subject matter of the request and anything so done by him shall be as effectual as if he had been an agreed surveyor."
When Mr Bovington did not reply, Mr Carter alone made the addendum award purportedly under section 10(17) . In it he asserted that Mr Bovington had neglected to act effectively for ten days in response to Mr Carter's request that Mr Bovington make his best offer. He proceeded to award himself £15,825 plus VAT , which he required Mrs Zissis to pay within fourteen days.
On 3 rd December 2004 Mrs Zissis commenced her Part 8 proceedings in the Brentford County Court against Mr Lukomski. In paragraph 4 of the Particulars of Claim she pleaded:
"The Addendum Award ought to be rescinded, and the Claimant has by the proceedings herein appealed against the Addendum Award."
In the particulars given of that averment it was pleaded that because another surveyor in place of Mr Cosgrave had not been selected, the addendum award was invalid. It was also pleaded that Mr Bovington did not neglect to act effectively for the purposes of the Act.
In paragraph 5 it was pleaded:
"Further, and in the alternative, and without prejudice to the foregoing , the Addendum Award ought to be modified, and the Claimant has by the proceedings herein appealed against the Addendum Award."
This averment was particularised, and among other things complaint was made that Mr Carter's costs were not reasonable.
The substantive orders claimed were:
"(1) An Order under the …. Act ….s.10(17) that the Addendum Award be rescinded,
Or, in the alternative:
(2) An Order under the ….Act …s.10(17) modifying the Addendum Award."
A first hearing of Mrs Zissis' proceedings before the District Judge was fixed for 25 th January 2005. On 18 th February Mr Lukomski wrote to Mrs Zissis' solicitors, Prince Evans. He had received legal advice that the addendum award was made without jurisdiction. He said that it was fatally flawed, that there was no valid award to appeal and that the award was not enforceable against Mrs Zissis. He also said that he had been advised that Mrs Zissis should have brought her appeal under Part 52. To save costs he proposed that a consent order be agreed between them for the rescission of the addendum award, with no order as to costs. That proposal was overtaken by events.
On 22 nd February 2005 Mr Carter applied to be substituted as defendant in place of Mr Lukomski, who made an application to the like effect the next day. On 25 th February the District Judge adjourned Mr Carter's application and although both Mrs Zissis and Mr Lukomski indicated that they regarded the addendum award as invalid, the District Judge directed that at the adjourned hearing the court would consider whether or not the Part 8 claim should have been brought under Part 52.
Mr Carter, through a company controlled by him, Procarson Ltd., sought to enforce the addendum award against Mrs Zissis by obtaining permission on 23 rd May 2005 from Brentford County Court to enforce the award in the sum of £19,144.64. Mrs Zissis on 31 st May applied to set aside that order.
The adjourned hearing ordered by the District Judge was fixed for 7 th July 2005. Mr Lukomski continued to press Mrs Zissis for a settlement to avoid this hearing. He proposed a consent order to which they would agree and by which Mrs Zissis' costs would come out of any fees ordered to be paid to Mr Carter, but that, if the order was rejected by the court, he would pay her fees up to 30 th June 2005. However that came to nothing, Prince Evans advising that Mr Carter's consent was needed. The hearing on 7 th July did not take place by reason of the London bombing, and the District Judge ordered that all outstanding applications in both the Part 8 proceedings and the enforcement proceedings be adjourned until a further date to be fixed. On 21 st November Mr Lukomski made a further application to join Mr Carter as Second Defendant to the Part 8 proceedings as the person responsible for the addendum award who should be responsible for Mr Lukomski's costs. On 26 th November Mr Carter gave notice withdrawing his application to be substituted as a party and opposing Mr Lukomski's application.
At that further adjourned hearing on 1 st December the District Judge heard argument from counsel for Mrs Zissis and counsel for Mr Lukomski and from Mr Carter in person. The District Judge at the end of the hearing gave his decision and indicated that his reasons would follow later.
In his judgment of 23 rd December the District Judge identified four issues:
(A) whether the addendum award was valid;
(B) whether Mr Carter should be joined as a Defendant to the Part 8 proceedings;
(C) whether proceedings were properly brought against Mr Lukomski or should have been brought against Mr Carter;
(D) whether proceedings were properly brought under Part 8 or should have been brought under Part 52.
The District Judge decided those issues as follows:
(A) without a third surveyor the panel of surveyors was improperly constituted and accordingly the addendum award was invalid;
(B) it was appropriate for Mr Carter to be joined so as to be bound by the decision and so that his responsibility for costs could be taken into account;
(C) Mr Lukomski, as the adjoining owner, was the correct defendant and Mrs Zissis had no cause of action against Mr Carter;
(D) the appeal by Mrs Zissis was a statutory appeal which should have been brought under Part 52.
On issue (D) the District Judge said that whilst it would seem that the present claim was exactly the type of dispute for which Part 8 was designed, he was firmly of the mind that this was a statutory appeal and so should have been commenced under Part 52. He did not accept that any authority which predated the CPR had any bearing on the issue. He considered that the appeal fell within the definition of statutory appeals in paragraph 17.1 of the Part 52 Practice Direction. He referred to the...
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