Another brick in the wall

Validity of awards

In Zissis v Lukomski [2006] 2 EGLR 61, the first case to reach the Court of Appeal, it was decided that the method of appeal against an award under s.10 (17) of the Act was by way of CPR part 52. However, taking into account that awards do not contain reasons, and that they may be challenged on the merits, the court should in appropriate cases allow further evidence to be adduced on appeal.

Previous to this case, authority established that while a valid award could only be challenged on appeal, an award that was a nullity (for example because it authorised works outside the powers of the Act) could be ignored, even if not appealed. The decision in Zissis does not affect this position, but states that it is proper for nullity issues to be included in an appeal. The moral is that a party dissatisfied with an award should always pursue a part 52 appeal if in time, both to preserve his arguments on the merits and to avoid the risk of a court holding that it has no jurisdiction to consider his challenge in the absence of an appeal.

More recently, in Manu v Euroview Estates [2008] I EGLR 165, HH Judge Marshall QC considered a number of issues on the validity of awards under the Act. The points decided included the following:

 a party may validly appoint a surveyor under s.10(1) prior to service of a party structure notice (PSN). Such an appointment will take effect prospectively once a dispute arises, or is deemed to arise, under the Act;

 a PSN referring to underpinning need only specify the nature and particulars of the proposed work under s.3. It does not have to provide details of the site and depth of the excavation for the underpinning under s.6(6);

 a drawing containing details under s.6(6) must be clear and intelligible. It is not sufficient for the drawing to show the finished dimensions of the foundations, it must also show the depth of excavation proposed;

 whether a surveyor has refused to act effectively within s.10(6) depends on what the refusal consists of and the context in which it occurs; and

 when allocating expenses under s.11(4)(b) based on responsibility for the defect or want of repair concerned, the surveyors are not required to carry out a complex investigation into legal liability, including whether the damage has been caused by a third party, but rather to apportion in a common sense way expenses as between the parties, according to the effect on the wall of the use made by the parties to the dispute.

The decision in Manu is to be welcomed as clarifying some obscure points and adopting a robust and practical approach.

Interim relief

Meanwhile, the decision in Udal v Dutton [2007] EWHC 2862 (TCC) affirms the willingness of the courts to grant interim relief against unlawful incursions not authorised by awards. The demolition was not authorised by the party wall award which had been made, which contemplated that the wall would remain. The judge said that the whole point of the Act is to provide a mechanism by which agreements can be reached or disputes identified, and to avoid this sort of sly destruction.

Notice not necessary

Onigbanjo v Pearson (Mayors and City of London Court 20 June 2008) has clarified that it is not necessary for a notice under s.4 to be served for a dispute to be deemed to have arisen, so conferring jurisdiction on the surveyors to award solicitors' and barristers' fees by way of costs under s.10(13), provided that they are directly related to the giving of advice on and the operation of the procedure under s.10, and that they are reasonable. The point is not controversial, but is certainly useful to have it settled albeit only at county court level.

Work done prior to the Act

The question of whether an award protected the building owner from civil liability where the works had been started prior to the procedures under the Act being invoked was considered by Judge Toulmin QC in Rodrigues v Sokal [2008] EWHC 2005 (TCC). The award in question purported to deal with and authorise both these works and future works. The claimant claimed in the proceedings that some of the works had destabilised his property. The defendant relied on the findings of the surveyor in the award that this was not the case as conclusive.

The judge upheld the contention of the defendant, finding that if the building owner subsequently obtains authority for building works which were started without authority, that authority abates the common law rights from the time of the subsequent consent, or when the Party Wall etc Act procedure was successfully invoked.

This decision is arguably inconsistent with Louis v Sadiq [1997] 1 EGLR 136, but is probably to be welcomed as practically convenient. The message is that it is possible for an award to apply to works which that were carried out prior to service of a PSN or the making of the award. This does not however mean that such works lose their unlawful character unless and until an award is made. It still remains possible to seek injunctive relief and damages where works are started without the building owner complying with the Act.

By and large the Act has stood the test of time, and the courts are anxious to give it a fair wind, but the number of appeals against awards both on legal and merits grounds is growing.