Civil practice and procedure – Transfer of proceedings – Immunity from suit – Point of importance and complexity – Claimant applying to transfer claim against defendant concerning third party wall award from Central London County Court to Technology and Construction Court – Whether county court being correct place for this litigation – Whether complex issue raised being point of public importance – Application dismissed
The claimant was in dispute with his neighbours who were developing their site, giving rise to problems of noise and vibration. The Technology and Construction Court gave a judgment on an application by the claimant for an injunction in relation to those problems: Chliaifchtein v Wainbridge Estates Belgravia Ltd [2015] EWHC 47 (TCC); [2015] PLSCS 29.
Following that judgment, a third party wall award was made between two party wall surveyors, one of whom was the defendant appointed under section 10(1)(b) of the Party Wall Act 1996. For reasons which were not apparent, the claimant’s surveyor was not involved. Despite the settlement of an appeal challenging the validity of the award and the issue of costs on terms which were favourable to him, the claimant issued two sets of proceedings arising out of the third party wall award.
The proceedings against the neighbours’ surveyor were in the Technology and Construction Court (TCC). The proceedings against the defendant were in the Central London County Court where he contended that he was immune from suit. The maximum value of the two claims was around £17,000. The claimant applied to transfer his claim against the defendant to the TCC on the basis that the immunity from suit issue raised by the defendant was a point of importance and complexity which justified the transfer to the TCC.
Held: The application was dismissed
(1) The claim against the defendant, with a likely value of £17,000, was far below the figure of £250,000 which Akenhead J in West Country Renovations Ltd v McDowell [2012] EWHC 307 (TCC) had indicated as being the cut-off for claims in the TCC. On the basis of value, the claim against the defendant had been started in the right place. Given the value of the claim, the experience of the judges in Central London County Court, and the imminent costs and case management hearing, all of the factors pointed the same way: the present was a claim that should stay in the Central London County Court, where it had been commenced: West Country Renovations Ltd v McDowell [2012] EWHC 307 (TCC); [2012] PLSCS 48 applied. Brynley Collins v Drumgold [2008] EWHC 584 (TCC) considered.
(2) There was no doubt that the point taken by the defendant in his defence was interesting, although issues of immunity often arose in claims against a person exercising a determinative function. It was certainly not limited to the position of a third party wall surveyor under the 1996 Act. However, the court was not sure that it was a matter of great public importance, because it was not an issue that had so far arisen out of the legislation, even though the Act was 20 years old. Moreover, even accepting that the point was interesting, it was not particularly complex and the judges of the Central London County Court would be well able to deal with it. Most important of all, any submission that could be made about the interesting or complex nature of the issue was completely overwhelmed by all of the other considerations referred to. The likely value of the claim alone made it imperative that the present claim stayed in the Central London County Court.
(3) It also followed that the other claim had been issued in the TCC in error and should be transferred to the Central London County Court as soon as possible.
Per curiam: Although the particular facts of this case allowed no other result, the TCC was deciding all transfer applications squarely on the basis of the guidance in the West Country case. As a general rule, basic costs considerations would usually take precedence over points of alleged legal interest or complexity. It was now very rare for claims worth less than £250,000 to be allowed to remain in the TCC and there was increasing pressure to increase that cap.
Nicholas Isaac (instructed by Morrisons Solicitors LLP) appeared for the claimant; Tim Chelmick (instructed by Kennedys Law LLP) appeared for the defendant.
Eileen O’Grady, barrister
To read a transcript of Chliaifchtein v Jessop click here
