London Building Acts (Amendment) Act 1939 — Appeal from surveyor’s award — Whether appellate court entitled to receive additional evidence not before surveyor — Whether appellate court’s jurisdiction limited
In October
1987 the appellant society served notice under the London Building Acts
(Amendment) Act 1939 on the respondent firm that it proposed certain building
words, which would affect the party wall between their respective properties.
The two surveyors, who were appointed by each party respectively, made an award
by which the appellant had liberty to demolish and reconstruct the party wall
subject to certain conditions. Following the works the respondents claimed that
their building had suffered damage and the two surveyors appointed a third
surveyor who made an award identifying the appellant’s works as the prime cause
of movement to the respondents’ property; the award also contained directions
if the parties’ surveyors could not agree the quantum of damages. On October 27
1993 the appellant appealed that award to the county court under section 55(n)(i)
of the Act contending that the third surveyor was wrong in finding that its
works caused damage to the respondents’ property. The appeal was transferred to
the High Court as official referees’ business where, at a hearing of certain
preliminary questions and issues, the respondent argued that the power of the
court on an appeal under section 55(n)(i) was limited and additional
evidence not before the third surveyor could not be admitted.
the court has jurisdiction in order, if required, to rescind or to modify an
award in such manner as it thinks fit and for that purpose to receive any
evidence (whether of fact or opinion) relevant to an issue raised by the
appeal, including evidence which was not or could not have been available to
the surveyor(s) when the award was made. On an appeal under section 55(n)(ii)
and (o) the High Court has the same jurisdiction and powers in relation to
any issue before it. The appellant was entitled to pursue an appeal under
section 55(n)(ii), although in fact the appeal was before the
High Court, following transfer from the county court, under section 55(n)(i).
One could not conclude from section 55(a) to (l) (if it were
necessary to reach a decision) that an award under the Act was an arbitration
award; it is sui generis and more in the nature of an expert
determination. Section 55(m) plainly excludes the Arbitration Acts. The
award was one which may be completely reopened if an appeal is made; the court
has wide powers to alter any award and to do so must have the power to
substitute its own finding or conclusion for any finding or conclusion that the
surveyor presumed to have made. Essentially, the question the court has to
resolve is 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.
The following
case is referred to in this report.
Ladd v Marshall [1954] 1 WLR 1489; [1954] 3 All ER 745, CA
This was the
hearing of certain preliminary questions and issues ordered to be heard on a
summons for directions in an appeal made by Chartered Society of Physiotherapy,
under section 55(n)(i) of the London Building Acts (Amendment) Act 1939
from a decision of a surveyor appointed under the Act, to Clerkenwell County
Court, which had been transferred to the High Court under section 42 of the
County Courts Act 1981 to which Simmonds Church Smiles was respondent.
Jonathan
Howard (instructed by Mackrell Tumer Garrett) appeared for the appellant;
Benjamin Levy (instructed by Simmonds Church Smiles) represented the
respondent.
Giving
judgment, Judge Humphrey Lloyd QC
said: Chartered Society of Physiotherapy (the appellant) occupies 14 Jockey’s
Fields*, WC1 and is its building owner for the purposes of Part VI of the
London Building Acts (Amendment) Act 1939 (the Act). Simmonds Church Smiles
(the respondent) is a firm of solicitors and is the adjoining owner (as defined
by the Act) of the premises next door at 13 Jockey’s Fields. In October 1987
the appellant served notice on the respondent of its intention to reconstruct
its premises which necessitated work to the party wall with the respondent’s
premises. The appellant appointed Mr J E S Webb frics to act as its surveyor under the statutory procedure
(to which I shall later refer) and the respondent (which dissented from the
appellant’s notice) appointed Mr J B Anderson frics
as its surveyor.
*Jockey’s
Fields in so far it runs parallel to Bedford Row was known in the C18 as
Bedford Row Mews and until relatively recently retained the character of a
mews. (John Abernethy the founder of the Medical School at St Bartholemew’s
Hospital lived at 14 Bedford Row.)
The two
surveyors met and inspected the premises and made an award dated (surprisingly)
December 25 1988 by virtue of which the appellant was permitted to demolish the
party wall and to construct a new wall. The appellant’s liberty granted by the
award was made conditional on compliance with a number of conditions both
special and general. In para 2 it was recorded that:
It was agreed
that in executing these works the following measures or construction will be
implemented: —
(a) That the
works will be executed in such a manner as not to impose any stress sufficient
to cause damage on the existing retained structure of the adjoining premises.
Para 4
provided:
That if the
Building Owner exercises the above rights he shall: —
…
(b) Take all
reasonable precautions and provide all necessary support to retain the
Adjoining Owner’s land and buildings.
(c) Make good
forthwith all structural, decorative and other damage to the Adjoining Owner’s
buildings occasioned by the said works in materials to match existing works,
the extent of the said damage to be established by reference to the Schedule of
Condition (which was attached to the Award).
(d) That the
Building Owner shall be liable for and shall indemnify the Adjoining Owners
against any justified expense, liability, loss, claim, or proceedings
whatsoever arising under statute or at common law in respect of injury to or
the death of any person or damage to property caused by, or in consequence of,
the execution of the said works.
The award
further provided:
7. That the
works shall be carried through with reasonable expedition after commencement
and so as to avoid any unnecessary inconvenience to the Adjoining Owner or
occupiers.
9. That the
said Surveyors reserve the right to make and issue any further Award or Awards
that may be necessary, as provided in the said Acts.
The appellant
went ahead with the rebuilding of 14 Jockey’s Fields. It seems that the work
affected the respondent’s adjacent property at 13 Bedford Row* for it was
alleged that it had thereby suffered settlement and consequential damage. This
was not accepted by Mr Webb so the two surveyors referred the matter to Mr John
Anstey frics, who had been appointed
by them as the third surveyor under the Act.
*Gillian
Bebbington in London Street Names (1972) suggests that the name owes its origin
to its use in the C16 when the Lord Mayor and aldermen rode ceremonially to
inspect the City conduit beside the Tyburn River. However, Bedford Row was so
named as it stood on hunting land given to Bedford Grammar School by Sir
William Harper (when Lord Mayor).
Mr Anstey
inspected the site, listened to the parties’ surveyors, read and considered
reports, drawings and photographs and on October 13 1993 made an award in which
he decided:
The prime
cause of the movement of the rear addition of 13 Bedford Row was the works
undertaken to 14 Jockey’s Fields/Bedford Row.
I have, as
yet, formed no firm conclusion as to the extent of the works necessary for
remedying the defects and damage caused by the settlement, but I should
indicate to both surveyors that I am inclined to the view that the element of
betterment is higher than the figure quoted by the Adjoining Owner’s surveyor.
If, therefore, the two surveyors are unable to agree upon quantum, I would
invite them to submit further argument to me on that subject.
I hereby
direct that, within 14 days after the 14 days for appeal against this award
shall have run, the two surveyors shall endeavour to reach agreement on
quantum. Failing such agreement, they shall make submissions to me within a
further 14 days, and within 7 days after receipt of each other’s submissions
they shall submit their respective comments thereon to me.
On October 27
1993 the appellant lodged an appeal in Clerkenwell County Court. The material
grounds of appeal were set out in para 2 (the first ground is no longer
pursued):
(a) The Third
Surveyor, not being himself a qualified civil engineer, made his award without
obtaining the assistance of an expert civil engineering assessor
(b) The Third
Surveyor made his award without taking any or any adequate account of the
opinion, expressed by Martin Moore of Ellis and Moore, expert civil engineer in
written reports dated September 1992 and September 1993
(c) The Third
Surveyor erred in finding as fact that:
(i) the
defects in the rear extension to No 13 Jockey’s Fields complained of by the
Respondents were caused by the works carried out by the Applicant to No 14
Jockey’s Fields covered by the party wall award bearing the date 25 December
1988 …
(ii) the
remedial works carried out by the Respondents in 1992 and 1993 were reasonably
necessary to remedy defects caused as aforesaid
(d)
Alternatively, the Third Surveyor’s said findings were contrary to the weight
of the evidence.
The appeal was
transferred (by virtue of section 42 of the County Courts Act 1984) to the High
Court as official referees’ business on May 25 1994. The appellant sought
directions in the usual way. Mr Benjamin Levy, for the respondent, made it
clear that it would be argued that the court’s powers on the appeal were
limited. This contention was not accepted by the appellant. Since its outcome would
affect the appropriate directions that would need to be given I adjourned the
summons for directions to December 19 1994 and ordered that the following
questions or issues should then be determined:
(A) What is
the extent of the court’s jurisdiction and the nature of its investigation
including the extent to which evidence not before the third surveyor can be
admitted:
(i) under
section 55(n)(i) of the London Buildings Acts (Amendment) Act 1939;
(ii) under
section 55(n)(ii) of the London Buildings Acts (Amendment) Act 1939;
(B) Whether
the appellant is entitled to prosecute an appeal under section 55(n)(ii).
Part VI of the
Act allows a building owner in London, if he complies with its provisions, to
enter his neighbour’s land and to carry out operations and thus to avoid
liability in tort for trespass or nuisance. Its provisions continued a policy
that had been established for a long time and in practice the statutory scheme
has proved to be very successful. Some measure of its success may be seen by
the paucity of cases on the interpretation of the Act or of its predecessors.
Counsel told me that they had been unable to find any authority relevant to the
determination of the issues set out above. This suggests that awards made under
the Act rarely reach the courts on appeal.
Sections 45
and 46 of the Act set out the rights available to owners of contiguous
properties. Sections 47 and 48 make it incumbent on an owner to serve a party
structure notice and entitle the adjoining owner to serve a counter-notice.
Section 49 provides that unless there is consent to the party structure notice
or to the counter-notice there is deemed to be dissent and a difference between
the parties. Sections 50 and 52 also require notices to be given for certain
further measures.
Section 55
deals with the settlement of differences. It states (so far is relevant to the
issues):
Where a
difference 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 this
Part of this Act relates the following provisions shall have effect:
— Paras (a)
to (j) then deal with the appointment of surveyors and a third surveyor
and the making of awards and I refer later to certain of them —
(k)
The award may determine the right to execute and the time and manner of
executing any work and generally any other matter arising out of or incidental
to the difference …
(m)
The award shall be conclusive and shall not except as provided by this section
be questioned in any court;
(n)
Either of the parties to the difference may within fourteen days after the
delivery of an award made under this section appeal to the county court against
the award and the following provisions shall have effect: —
(i) Subject
as hereafter in this paragraph provided the county court may rescind the award
or modify it in such manner and make such order as to costs as it thinks fit;
(ii) If the
appellant against the award on appearing before the county court is unwilling that
the matter should be decided by that court and satisfies that court that he
will if the matter is decided against him be liable to pay a sum exclusive of
costs exceeding one hundred pounds and gives security approved by the county
court to prosecute his appeal in the High Court and to abide the event thereof
all proceedings in the county court shall be stayed and the appellant may bring
an action in the High Court against the other party to the difference;
(o)
Where an appellant against an award brings an action in the High Court in
pursuance of the last preceding paragraph the following provisions shall have
effect: —
(i) If the
parties agree as to the facts a special case may be stated for the opinion of
the court and may be dealt with in accordance with or as nearly as
circumstances admit in accordance with the rules of the court;
(ii) In any
other case the plaintiff in the action shall deliver to the defendant an issue
whereby the matters in difference may be tried;
(iii) The
issue shall be in such form as may be agreed between the parties or in case of
dispute … as may be settled by the court;
(iv) The
action shall proceed and the issue shall be tried in accordance with or as
nearly as circumstances admit in accordance with the rules of the court;
…
The
respondent’s first submission was that as a result of the transfer from county
court there was before the court the appeal which was formerly before the
county court, and not the type of proceedings in the High Court for which
provision made in section 55(o) of the Act. Although it would therefore
be technically open to this court to apply section 55(n)(ii) (as the
conditions there set out would be satisfied since the appellant was insured and
the value of any award was clearly
proceedings to be brought in the High Court, it would not be sensible to do so.
The respondent is clearly right in this submission and for practical purposes
issue (B) disappears, but it will be answered in the affirmative. I did not
understand the appellant to submit to the contrary once it became clear that
the respondent accepted that the appeal was before the High Court, by virtue of
the transfer, as an appeal under section 55(n)(i).
The
respondent’s principal submissions were however directed to the nature of the
appeal. Its case was that an award is made conclusive by section 55(m)
and, with one exception, the court’s powers on appeal were akin to those of the
Court of Appeal hearing an appeal from the High Court after a trial of fact and
law so that, for example, no new evidence could be admitted which was not
before who ever made the award. The exception related only to evidence to
enable the court to know what might have been seen on site prior to the award
where work had subsequently been carried out. These submissions in turn require
a consideration of the nature of an award under the Act for that may determine
the ambit of an appeal.
It is, in my
judgment, clear from the general framework of the Act and particularly from the
provisions relating to notices, counter-notices and how a difference is deemed
to arise, that it is expected that the exercise of a right will be agreed.
Indeed for this purpose the time for giving a counter-notice is in practice
frequently extended by agreement. If a difference arises (and it cannot be
resolved by agreement) then it is settled by the award of the agreed sole
surveyor or, commonly in practice by the two surveyors appointed by the
parties, or, if the third surveyor has to be brought in, by an award of any two
of the three (see section 55(i)) or, if two surveyors cannot agree, then
by an award of the third surveyor (section 55(j)). In some respects the
Act suggests that the difference is resolved by something in the nature of a
statutory arbitration. The words ‘difference’, ‘settle’ and ‘award’ and the
provisions for the appointment of a sole ‘agreed surveyor’ and for decisions by
two of three surveyors or in default by the third surveyor are consistent with
a judicial or quasi-judicial process. But the Act makes no provision for the
parties to be heard or for the surveyor(s) to proceed as one might expect to
proceed an arbitrator to act. Furthermore, the Act envisages that if three
surveyors are to be appointed, a party-appointed surveyor while no doubt
retaining his professional independence is not obliged to act without regard to
the interests of the party who appointed him. In practice matters in difference
are regularly resolved by agreement between the two party-appointed surveyors
without the need for the intervention of the third surveyor. Thus, the Act
works well. The relevant owner leaves it to the surveyor and has no need to
prepare a case. The facts are elicited informally by inspection and by perusal
of proposals and counterproposals, as probably happened in this case in 1988.
In the absence
of authority I would not conclude from section 55(a) to (l) (if
it were necessary to reach a decision) that an award under the Act was an
arbitration award. An award under the Act is, in my judgment, sui generis
and is more in the nature of an expert determination. The Act does not
require the award to be a ‘speaking’ award and there is no apparent obligation
for the award to contain findings of fact or conclusions of law and, of course,
awards are customarily and commendably direct and to the point. Furthermore,
section 55(m) plainly excludes the Arbitration Acts.
Mr Levy
submitted that a purposive construction should be given to paras (n) and
(o) and that ‘appeal’ meant therefore what he called a ‘true appeal’ as
opposed to an appeal by way of rehearing, ie the appellant would have to
satisfy the appellate court that the surveyor(s) had conducted the inquiry in
such a way or had reached a result which could be shown to be wrong by the
application of the principles which govern appeals to the Court of Appeal. Para
(m) in permitting an award which was otherwise conclusive to be
‘questioned’ did not contemplate the appellate court conducting its own
investigation. In particular the appellate court should not receive evidence
which was not before the surveyor(s): the principles in Ladd v Marshall
[1954] 1 WLR 1489 should apply. Mr Jonathan Howard argued to the contrary.
He submitted that a court would have to have some evidence as to what was the
situation in which a right was sought to be exercised, and if what was being
questioned required a determination about a matter which the surveyor had found
or concluded or which he ought to have found or concluded, a court ought to be
able to determine whether ‘new’ evidence should be admitted. It was contrary to
the interests of the parties and to the public interest that a question
relating to an award should be decided on an erroneous or incomplete basis. In
any event an appeal only required the court to reconsider that part of the
award which was being questioned and not necessarily the whole award: see the
procedure to be adopted under section 55(o).
Looking at the
whole of section 55(n) and (o) it is, in my judgment, clear that
the award is one which may be completely reopened if an appeal is duly made.
Section 55(n)(i) provides that the county court may, ‘… modify it in
such manner and make such order as to costs as it thinks fit’. In my view, the
words, ‘as it thinks fit’ plainly qualify ‘modify in such manner’ and are not
limited to an ‘order as to costs’ for otherwise ‘such manner’ is left hanging in
the air. Thus, the court has, in my judgment, wide powers to alter any award
and to do so must have the power to substitute its own finding or conclusion
for any finding or conclusion that the surveyor(s) made or may be presumed to
have made.
There is nothing
in the Act to suggest that an appellant who satisfied section 55(n)(ii)
would be unable to obtain from the High Court on appeal a result which could be
obtained in the county court or vice versa. On the contrary if the
appeal were substantial enough to warrant being heard in the High Court there
is every reason to conclude that under the procedure for the trial of issues
the High Court should be able to arrive at a result at least as favourable to
the appellant as that which the county court had power to achieve under section
55(n)(i). By the same token if the appellant is entitled to have an
issue tried in the High Court he must be able to do the same in the county
court. Counsel helpfully pointed out that until very recently (and certainly at
the date of the Act) there were statutory restrictions on transfers from the
county court which would have precluded an appellant reaching the High Court
without the special provisions of the kind set out in section 55(n) and
(o) and they accounted for the form of section 55(o).
Nevertheless it is, in my judgment, clear that although section 55(o)
begins in subpara (i) by describing a procedure akin to an appeal on a question
of law by way of case stated, eg by a special case under section 9 of the
Arbitration Act 1934, it continues by making provision for the appellant to
obtain a full-scale trial of whatever has to be determined to enable the
appellant to succeed. Mr Howard drew attention to subpara (ii), which refers to
the plaintiff delivering an issue ‘whereby the matters in difference may
be tried’. In my judgment, he was correct to submit that the words emphasised
referred back to the earlier occasions where ‘difference’ was used (eg the
opening words of the section and paras (b), (c), (d), (i),
(k) and (n)) and showed that the intention of the Act was that an
appellant could reopen any matter in difference, which had otherwise been
conclusively resolved by the award. Therefore the court (whether county court
or High Court) has, in my judgment, the power, if the appellant brings himself
within the Act, to question anything decided by the award and to substitute its
own decision.
This
conclusion does not of course dispose of the respondent’s principal submission
that although the court may have wide powers they are nevertheless appellate
and an appellant is therefore subject to the same limitations as an appellant
in the High Court. Mr Levy persuasively submitted that since the court is not a
qualified surveyor it did not make sense for there to be a complete rehearing
which is a course that is acceptable where an appeal lies to someone just as
well qualified as the original tribunal, eg to a county court or a High Court
judge in chambers. An appellant ought not to be able to go over all the ground
again before a less qualified tribunal. Accordingly, an appellant must be
limited to the material before the original tribunal. Mr Howard pointed out
that there was no such limitation in the Act and it would be contrary to the
interests of justice as between the
of the process by which the award was made was not like a trial in the county
court or High Court (or like a hearing in an arbitration).
I do not
consider that Mr Levy’s submissions are right. First, as I have concluded,
there is no necessary limitation in the statute on the powers of the court.
Second, if, as Mr Levy accepted, the court may have to be put in the picture by
receiving evidence about what was seen or to be seen by the surveyor(s) there
must be some evidence before the court which was not given (in ordinary sense)
to the original tribunal. Since in many (and probably) the majority of cases
this evidence is likely to come from a professional person it seems to me to be
unrealistic to suppose that such evidence will be purely factual. If the issue
related to the condition of a party wall or chimney, evidence confined to the
extent of weathering without some assessment of its effect would be of little
real value.
Third, para (o)(iv)
clearly envisages that in the High Court there would be a trial of such an
issue (ie as to what was there to be seen), which is to be conducted ‘in
accordance with or as nearly as circumstances admit in accordance with the
rules of the court’. Thus, in my judgment, the issue will be tried as an
original action and will not be re-examined as if the High Court were the Court
of Appeal. There will therefore be a ‘rehearing’ of that issue. The same must
apply in the county court. It must be remembered that the appeal will only be
concerned with that aspect of the award which is questioned and not with the
whole of the original difference. This may of course mean that a court will
receive evidence about a matter of fact or opinion which was not available to whoever
made the award, but which proves to be determinative of the appeal. I do not
consider that it is a sufficient objection that the award might be rescinded or
modified because of evidence (or arguments which might have been but were not)
considered by the surveyor(s). If it were it would mean a building owner might
(or might not be) able to exercise a right or an adjoining owner might or might
not be able to object to such rights being exercised or be otherwise
prejudiced. That cannot be right. There are sufficient powers available to a
court (eg by orders as to costs) to ensure that a party is not necessarily
prejudiced if ultimately the appeal succeeds on grounds not available to the
original tribunal.
Fourth, Mr
Levy’s submissions assume that there is some record of what the original
tribunal had before it. All that may have happened is that a surveyor (‘agreed’
or ‘third’) visited the site and made a short non-speaking award which referred
only to the building owner’s proposal and to the counter-notice. The procedure
would be investigatory and not necessarily ‘adversarial’. I do not believe that
the Parliament envisaged that, on an appeal, the court would first be asked to
decide what evidence might be adduced to reconstruct the situation obtaining at
the time of the award so as to provide the ‘record’ which would then set the
scene for the appeal and for further argument as to whether ‘new’ evidence
might be admitted. Such a procedure would be unnecessarily costly and contrary
to the statutory scheme which is self-evidently intended to provide a
relatively inexpensive method of resolving differences. If there is to be an
appeal — and as I have already noted it seems rare for appeals to be pursued to
a hearing — I am sure that the best and most efficacious course would be to
enable the court to be as fully informed as possible about the point or points
at issue and not to proceed on an artificial basis shutting out relevant facts
or opinions merely because they were not before the original tribunal, even if
they might have been available to it.
A fortiori if, for example, during the course of the work facts are discovered
which if they had been known to the original tribunal might have affected the
award, it does not, in my judgment, make any sense to exclude those facts from
the evidence before the court hearing an appeal. Essentially the question which
the court has to resolve is what award ought now to be made, taking into
account all the facts established by admissible evidence, rather the narrow
question contended for by the respondent which is close to an investigation as
to whether the award was made by a competent surveyor or surveyors. Depending
on the point or points at issue on the appeal there may have to be a rehearing.
As I have stated that indeed is, in my judgment, exactly what is envisaged by
section 55(o)(iv).
Accordingly,
the questions or issues are to be answered as follows:
(A)(i) On
appeal under section 55(n)(i) of the Act the county court and this court
by virtue of the transfer to it of the appeal before the county court has
jurisdiction in order, if required, to rescind or to modify an award in such
manner as it thinks fit and for that purpose to receive any evidence (whether
of fact or opinion) relevant to an issue raised by the appeal, including
evidence which was not or could not have been available to the surveyor(s) when
the award was made.
(ii) On an
appeal under section 55(n)(ii) and (o) of the Act the High Court
has the same jurisdiction and powers in relation to any issue before it.
(B) Yes.
