Patel & Anor v Peters & Ors
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
- LORD JUSTICE RICHARDS
- LORD JUSTICE BRIGGS
Areas of Law
- Property and Real Estate Law
- Construction Law
- Civil Procedure
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
The Court of Appeal, per Lord Justice Richards with Lords Justices Beatson and Briggs concurring, reviewed a fee dispute under the Party Wall etc Act 1996 arising from proposed works at 36a Courthope Road affecting neighbouring properties at 34, 34a, and 38. The appellants’ surveyor, Justin Burns, and the respondents’ surveyor, Grant Wright, disagreed over the proper basis for Wright’s fees, with Wright urging time-sheet calculation and Burns proposing a competence-based assessment and referral to the third surveyor, Alex Frame. After Wright’s 21 December 2011 section 10(7) request, Burns replied on 6 January 2012 without reviewing timesheets, proposing a fee and referral. Wright later issued ex parte addendum awards for his own fees. The Court held section 10(7) creates a continuing state allowing effective action after ten days until ex parte action begins, found Burns’s response constituted effective action rather than refusal or neglect, and concluded Wright lacked power to act ex parte; the addendum awards were quashed.
Judgment
Lord Justice Richards :
This is an appeal against an order of His Honour Judge Hand QC, sitting in the Central London County Court, on preliminary issues in proceedings under the Party Wall etc Act 1996 (“the Act”). The procedures under the Act were triggered by building works proposed to be undertaken by the appellants at 36a Courthope Road, London NW3, a property of which they are leaseholders. The works affected three adjoining properties (numbers 34, 34a and 38 Courthope Road) of which the various respondents are either the freehold owners or leaseholders. By virtue of section 20 of the Act, the appellants and the respondents are all treated as “owners” of their respective properties for the purposes of the Act.
The central issue is whether the appellants’ surveyor refused or neglected to act effectively, within section 10(6) or (7) of the Act, with the consequence that the respondents’ surveyor was empowered to act ex parte in issuing awards in respect of his own fees.
The legislative framework
Section 10(1) of the Act provides that where a dispute arises or is deemed to have arisen between a building owner and an adjoining owner in respect of any matter connected with any work to which the Act relates, either (a) both parties shall concur in the appointment of one surveyor (referred to as an “agreed surveyor”) or (b) each party shall appoint a surveyor and the two surveyors so appointed shall forthwith select a third surveyor.
The section contains detailed provisions as to the powers of the surveyors so appointed or selected. The provisions directly in issue are subsections (6) and (7) but the award-making powers under subsections (10) and (11) are also relevant:
“10 … (6) If a surveyor –
(a) appointed under paragraph (b) of subsection (1) by a party to the dispute …
refuses to act effectively, the surveyor of the other party may proceed to act ex parte and anything so done by him shall be as effectual as if he had been an agreed surveyor.
(7) 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 either party or 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 done by him shall be as effectual as if he had been an agreed surveyor.
…
(10) The agreed surveyor or as the case may