Party wall – Award – Surveyor’s fees – Awards made under Party Wall etc Act 1996 in respect of proposed works to appellants’ property – Parties’ surveyors unable to agree on basis for calculating fees of respondents’ surveyor to be paid by appellants – Whether respondents’ surveyor serving valid notice to act effectively on appellants’ surveyor for purposes of section 10(7) of 1996 Act – Whether appellants’ surveyor thereafter refusing or neglecting to act effectively so as to entitle respondents’ surveyor to make ex parte award in respect of own fees – Appeal allowed
The appellants proposed to carry out building works to their property in respect of which the procedures under the Party Wall etc Act 1996 were triggered. The respondents were the owners of three adjoining properties affected by the works. Pursuant to section 10(1) of the Act, the appellants and the respondents each appointed a surveyor, who together selected a third surveyor. Awards relating to all three of the respondents’ properties were made by October 2011; each provided for the appellants to pay the reasonable expenses of the respondent’s surveyor in connection with the preparation of the award and one subsequent inspection.
The respondents’ surveyor proposed that his fees should be calculated according to his total time commitment, to be ascertained from his timesheets. The appellants’ surveyor considered that much of the time spent was unnecessary and inappropriate, and indicated that he instead intended to judge the fees according to the time that a competent surveyor should have spent on the matter. He did not respond to correspondence from the respondents’ surveyor seeking his agreement to a meeting to work through timesheet records. The respondents’ surveyor sent a further letter in late December 2011, indicating that the appellants’ surveyor was to take it as a notice to act effectively, under section 10(7) of the Act, but that he would not regard the relevant 10-day notice period as expiring until the holiday period had been adjusted for.
The appellants’ surveyor did not respond within the adjusted 10-day period. Shortly thereafter, he sent a letter reiterating his previous position with regard to the timesheets, rejecting the fee proposed by the respondents’ surveyor and putting forward his own figure; he suggested that if the respondents’ surveyor was unhappy with a fee at that level he should proceed with a referral to the third surveyor. In February 2012, the respondents’ surveyor proceeded to issue three ex parte awards in respect of his own fees.
In proceedings between the parties, issues arose as to whether the appellants’ surveyor had refused or neglected to act effectively, so as to empower the respondents’ surveyor to act ex parte in issuing the fee award pursuant to section 10(6) or (7). The county court made preliminary rulings that: (i) the December 2011 letter was a valid “request” to act effectively, for the purposes of section 10(7); (ii) the absence of a response from the appellants’ surveyor within the adjusted 10-day period was not determinative; but (iii) the terms of his response thereafter amounted to both a refusal to act effectively and neglecting to act effectively. The appellants appealed.
Held: The appeal was allowed.
The request contained in the letter of December 2011 was not invalidated, for the purposes of section 10(7), by the statement that the respondents’ surveyor would not consider the 10-day notice period to have expired until the holiday period had been adjusted for. The 10-day period under section 10(7) was laid down by the statute. The fact that the requesting surveyor indicated an intention to allow a longer period for a response neither affected the statutory period nor invalidated the request.
The judge had correctly held that the absence of a response from the appellants’ surveyor within the 10-day period was not determinative of the right of the respondents’ surveyor to act ex parte. Section 10(7) created a continuing state of affairs, so that a surveyor who neglected to act effectively within the 10-day period could still act effectively after that period, and thereby preclude the requesting surveyor from acting ex parte in respect of the subject matter of the request, provided that the requesting surveyor had not yet proceeded to act in that way. The purpose of section 10(7) was the avoidance of delay occasioned by the failure of one of the surveyors to act effectively in relation to a particular matter. If that surveyor neglected to act effectively for a period of 10 days after service of a request on him, the requesting surveyor could get on with the matter by proceeding to act ex parte. If, however, the surveyor in receipt of the request acted effectively after the 10-day period but before relevant action had been taken by the requesting surveyor, the rationale for empowering the requesting surveyor to act ex parte disappeared and there was no reason why the normal procedures under section 10 should not apply.
The appellants’ surveyor had not failed to act effectively in response to the December 2011 request. Whether that request was read as a request to the appellants’ surveyor to agree the fee proposed by the respondents’ surveyor, or as a request to review the timesheets with a view to agreeing the fee, the appellants’ surveyor had acted effectively by his response. Although he had refused to review the timesheets, he had given a reasoned justification for that refusal and put forward a reasonable alternative basis on which he said the fee should be calculated. He had engaged head-on with the subject matter of the request and set out his position in respect of it. He was acting effectively as the building owners’ surveyor by crystallising and identifying a dispute that had been apparent since at least September 2011, and which was a classic situation for the involvement of the third surveyor, not for an ex parte award by one of the parties’ surveyors. The respondents’ surveyor did not have the power under section 10(6) or (7) to act ex parte in relation to the costs awards and those awards should be quashed accordingly.
Nicholas Isaac and Cecily Crampin (instructed by Morrisons Solicitors LLP, of Wimbledon) appeared for the appellants; the third respondent appeared in person on behalf of the respondents.
Sally Dobson, barrister
