2013 Moot Appeal Judgment – Smith v Jones

image of the rolls building

It has been a long-held view that party wall surveyors can only make valid awards if the building owner has served the correct notice.

This was the view expressed by the Court of Appeal in Louis v Sadiq in respect of the earlier London Building Acts, and certainly was the case under section 55(i) of the London Building Acts (Amendment) Act 1939 which expressly referred to a notice being served. If a notice had not been served then no award could be made.

However, this view was questioned in relation to the Party Wall etc. Act 1996 by the High Court in Rodrigues v Sokal . In that case the Court decided that the Surveyors did have jurisdiction to issue retrospective awards.

So, where the building owner starts works without serving notice, can the adjoining owner avoid the cost of an injunction and simply appoint a surveyor instead?

On 06 November 2013 I organised a moot appeal before Mr Justice Akenhead at the Technology and Construction Court. The cases for and against each view were argued by Nick Isaac of Tanfield Chambers, Elizabeth Repper of Keating Chambers and Stuart Frame of Staple Inn Chambers.

The “judgment” of Mr Justice Akenhead can be downloaded here. Although it is drafted in the form of a law report, the decision is in no way binding legal authority, but is a useful example of judicial thinking on the issue.

In essence, his Lordship thought that broader language in section 10(1) of the 1996 Act, when compared with the equivalent provision in section 55(i) of the 1939 Act, meant that Parliament intended the surveyor’s jurisdiction to be wider than before. Surveyor’s could, he thought, make awards without notices being served.

However, the surveyors must be careful not to stray beyond their jurisdiction. For example, although the surveyors could award a declaration that a wall was built in breach of the 1996 Act, they had no jurisdiction to award what was effectively an injunction requiring it’s removal.

During the moot appeal Mr Justice Akenhead also reviewed section 1(8) of the 1996 Act, and noted that the right to put foundations on the adjoining owners land was qualified by the requirement that it must be “necessary” to do so.