Party wall – Party Wall etc Act 1996 – Award – Service – Surveyor being appointed in party wall dispute – Surveyor’s award being sent to parties by email – Appeal against award – Whether appeal brought outside 14-day period permitted by section 10(17) – Whether service by electronic means valid – Appeal allowed
The appellant and the respondent were neighbours in Belgravia, Central London. In 2013, the appellant began work on his house at 19 Chester Square which included the creation of a larger basement. That involved the extension of a party wall. The work took two years to complete after which each party appointed his own surveyor to assess the damage which the works had caused to the respondent’s property. The extent and cost of remedying the damage were very much in dispute. In the absence of any agreement between the parties, the surveyors took steps to resolve the matter by selecting a third surveyor under section 10(1)(b) of the Party Wall etc Act 1996. On 2 September 2015, the third surveyor emailed his award to both parties’ surveyors assessing the compensation payable in the sum of £55,001.61.
The respondent appealed against the award to the County Court on 17 September 2015. The appellant contended that it was issued out of time because the 14-day period under section 10(17) of the 1996 Act expired on either 15 or 16 September. The judge held that his surveyor e-mailing the award to the respondent did not constitute effective service under section 10(15)(b) to set time running for an appeal under section 10(17).
Section 15(1) set out the methods by which a person “may” serve notices and other documents. The judge reached his conclusion largely on the basis that, after the service of the award, section 15 had been amended by the Party Wall etc Act 1996 (Electronic Communications) Order 2016, which provided for electronic service of notices and other documents under the 1996 Act; and that it had been amended on the assumption by government and the surveying profession that the 1996 Act did not previously recognise the service of documents by electronic means. The appellant appealed.
Held: The appeal was allowed.
(1) For the purpose of construing section 15, little or no weight could be attached to the fact that most members of the surveying profession together with the government had considered that the valid methods of service for the purposes of the 1996 Act were restricted to those set out under section 15 or at least did not include electronic service. That was a question of statutory construction on which there was no direct authority and which turned on the wording of section 15 itself. The fact that the government or its advisers might have misconstrued the legislation and that they did so in common with the majority of the profession was enough to give the court pause for thought, not least because it might give rise to arguments that the 2016 Order was not only unnecessary but also ultra vires in so far as it limited the circumstances in which electronic service was now permissible. The position taken by government provided no additional authority for treating section 15 as an exhaustive code and the judge had been wrong if he treated it as persuasive, let alone decisive.
(2) It was evident from the 1996 Act and the consultation exercise preceding the 2016 Order that the system was based on the service of party wall notices and counter-notices. Other documents would also be required to be served, such as plans, sections and particulars. It was therefore relevant to bear in mind the range of documents to which section 15 could apply, the need for certainty and the relatively short time allowed for the service of counter-notices or, as in the present case, an appeal from an award. The 2016 Order was therefore relevant insofar as it could be said to recognise those factors by making electronic service dependent on the consent of the receiving party rather than merely adding to the optional methods of service available to the serving party. Service by e-mail of documents in a pdf format produced high-quality copies of the relevant document, assuming that the originals were themselves legible. In one sense the introduction of electronic service as a result of the amendments introduced by the 2016 Order was a recognition of that. But in any event it was difficult to infer that Parliament intended under section 15 to create an exhaustive list of the possible methods of service so as to avoid difficulties inherent in service by e-mail or fax. If the serving party chose to use a method of service outside section 15 then the burden was on him to establish receipt of the document in a legible form.
(3) The most attractive way of presenting the argument against section 15(1) being merely permissive was the construction of “may” adopted by Longmore LJ, dissenting, in opted in Ener-G Holdings plc v Hormell [2012] EWCA Civ 1059; [2012] 3 EGLR 61 where he stated that “may” was explicable by reference to the choice that the section gave the serving party between the specified alternative methods of service and did not therefore require to be read as permitting further unspecified methods of service that would satisfy the common law requirement of receipt. However, that construction had been rejected in relation to section 23 of the Landlord and Tenant Act 1927 and more generally by the Court of Appeal in Hastie and Jenkerson v McMahon [1990] 1 WLR 1575. It had also failed to be accepted in a contractual context in the Ener-G case. Although those were decisions in relation to different statutes and contracts, the language under consideration was sufficiently close to that of section 15 to make that an unconvincing ground for distinguishing those cases which provided at least highly persuasive Court of Appeal authority for construing section 15 in the same way. In the absence of any other circumstances or internal indications in the statutory provisions themselves, there was no justification for giving “may” in section 15 a different meaning: Hastie and Jenkerson v McMahon [1990] 1 WLR 1575 and Ener-G Holdings plc v Hormell [2012] EWCA Civ 1059; [2012] 3 EGLR 61 followed. Stylo Shoes Ltd v Prices Tailors Ltd [1960] 1 Ch 396, Galinski v McHugh (1988) 57 P&CR 359, Freetown Ltd v Assethold Ltd [2012] EWCA Civ 1657; [2013] 1 EGLR 57 and Greenclose Ltd v National Westminster Bank plc [2014] EWHC 1156 (Ch) considered.
Michael Wheater and Emily Betts (instructed by Fox Williams LLP) appeared for the appellant; Tom Weekes QC (instructed by Ward Hadaway) appeared for the respondent.
Eileen O’Grady, barrister
