Where one of the owners has failed or refused to comply with the terms of an award, most commonly in respect of payment of their fees, many surveyors attempt to enforce the award in Court themselves. However, this approach is questionable.
In July 2010 I organised a mock appeal on this point which was based on hypothetical facts. The “Appeal” was heard by Mr Justice Akenhead, the judge in charge of the Technology and Construction Court, and was argued by leading barristers Nick Isaac, Laura Collignon and Michael Jefferis.
[pullquote_right]…party wall awards are only enforceable (or appealable) by the parties to it…[/pullquote_right]It is not a binding decision and should not be taken as advice or an indication that a similar case will be decided in a similar way. However, it is a helpful example of judicial thinking on the issue.
A full report of the same can be found here.
In summary, the judge found that if Parliament had intended surveyors to be able to enforce an award of their fees, then it would have been a simple matter for Parliament to have spelt it out in the Act. Parliament did not include such a provision for the clear reason that party wall awards are only enforceable (or appealable) by the parties to it i.e. the Building Owner and Adjoining Owner.
Surveyors therefore have no standing to enforce the terms of an award, even if it provides for fees to be paid to them directly.