Appellant seeking to demolish and reconstruct party wall — Surveyors meeting and agreeing conditions — Respondents complaining of consequential damage — Third surveyor appointed — Appellant appealing to county court against third surveyor’s award — Appeal transferred to official referee — Nature of jurisdiction — Whether fresh evidence can be given — Whether official referee can substitute his own decision — Judgment for the appellant
The appellant occupied 14 Jockey’s Fields, London WC1, while the respondents, a firm of solicitors, owned the adjoining building. The appellant served notice of its intention to reconstruct its premises, which necessitated the demolition and its reconstruction of the party wall. Both parties appointed surveyors who met and agreed that the works should not cause damage to the respondents’ premises and to make good any structural or other damage which the works might occasion. The respondents were also to be indemnified against any justified expense. The respondents complained of consequential settlement and damage after the works had been carried out.
The two surveyors referred the matter to a third surveyor, who found that the prime cause of the movement was the appellant’s building works and that the two surveyors were to endeavour to reach agreement on quantum. The appellant lodged an appeal against that award to the county court, contesting, inter alia, that the surveyor had not sought the assistance of an expert civil engineer and that, as a finding of fact, the building works had not been responsible for the subsequent defects. The appeal was transferred to the official referee. On seeking directions, the respondents submitted that the court’s powers on appeal were limited. The appellant did not accept that contention. The summons was adjourned for directions.
Held Judgment for the appellant.
1. The London Building Acts (Amendment) Act 1939 provided a statutory scheme which had proved very successful; some measure of that success could be seen by the paucity of cases on its interpretation and there was no authority relevant to the determination of the present issues.
2. With regard to settling differences, section 55 of the Act provided, inter alia, that on an appeal to the county court against an award of a third surveyor, the county court “may rescind or modify” the award. Proceedings in the county court could be stayed and the appeal could be prosecuted in the High Court in cases where liability was in excess of £100.
3. In the absence of authority for construing section 55, the court would not conclude that an award under the Act was an arbitration award. It was sui generis and more in the nature of an expert determination.
4. Looking at the whole of that section, it was clear that the award was one which might be completely reopened if an appeal was made. Thus, the court had wide powers to alter any award; to do so, it had to have the power to substitute its own finding for the one that the surveyor(s) might have made.
5. Essentially the question which the court had to resolve was what award ought now to be made, taking into account all the facts established by admissible evidence rather than the narrow question as to whether the award was made by a competent surveyor. It could thus receive any evidence (whether of fact or opinion) relevant to an issue raised by an appeal including evidence which was not or could not have been available to surveyors when the award was made. The High Court and the county court had the same jurisdiction in relation to any issues before it.
Jonathan Howard (instructed by Mackrell Turner Garrett) appeared for the appellant; Benjamin Levy (instructed by Simmonds Church Smiles) appeared for the respondents.