Party wall — Surveyor’s award — Appeal — Civil Procedure Rules — Whether action commenced under correct rule of procedure — Appeal allowed in part
The appellant and the respondent owned adjoining houses. The appellant wished to carry out works under the Party Wall etc Act 1996 and served on the respondent a notice under section 6(1).
A dispute arose over the works and, in accordance with section 10(1)(b) of the Act, each party appointed a surveyor, who elected a third surveyor (C). The parties’ surveyors were unable to agree, and C alone made an award authorising the works subject to various conditions to safeguard the respondent’s property. C assessed the costs of making the award at £810 plus VAT and ordered the respondent to pay £610 and the appellant £200, both plus VAT. He did not deal with the respondent’s surveyor’s fees.
The parties’ surveyors continued to disagree. C declared himself “incapable of acting” within section 10(9)(c), but was not replaced. The respondent’s surveyor subsequently requested that the appellant should pay his fees and, when he received no reply, he alone made an addendum award relating to his fees, purportedly acting under section 10(7).
The appellant started proceedings in the county court under CPR 8, appealing against the addendum award and seeking to rescind it. While the parties were negotiating a settlement, the respondent’s surveyor applied to be substituted as defendant in place of his client. The district judge adjourned that application and directed that the court should consider whether the appellant should have brought her claim under CPR 52 rather than CPR 8. At the adjourned hearing, the district judge decided that: (i) without a third surveyor, the panel of surveyors was improperly constituted so as to render the addendum award invalid; (ii) the respondent’s surveyor should be joined, although the respondent was the correct defendant since the appellant had no cause of action against his surveyor; and (iii) the appellant’s action was a statutory appeal within the definition in para 17(1) of the CPR 52 practice direction and should have been brought under CPR 52. The appellant appealed against the dismissal of her action.
Held: The appeal was allowed in part.
CPR 52 was intended to cover a statutory appeal such as the present and its provisions were sufficient for justice to be done.
Paragraph 9(1) of the practice direction to CPR 52 specifically recognised that an appeal could be brought against a decision that had been reached without a hearing. There were powers under CPR 52(11) to enable the court to receive evidence and, in the exercise of any power or discretion, the court would be aware of the overriding objective of dealing with the case justly. Since an award under the Act was non-speaking and made without a hearing, the appeal by way of a rehearing would ordinarily require the county court to receive evidence in order to reach its own conclusion on whether the award was wrong: EI Du Pont De Nemours & Co v ST Dupont [2003] EWCA Civ 1368 considered.
In the light of the overriding objective of the CPR, and with a view to saving expense and not wasting court resources, the district judge had been wrong to dismiss the claim when he found that the addendum award was invalid. He should either have allowed the amendment of the particulars of claim, so that the relief sought was a declaration that the award was a nullity, or allowed the case to proceed under CPR 52. There was no reason why an appellant appealing against an award should not be able to claim, under CPR 52, that the award was a nullity or, alternatively, should be varied.
Stephen Bickford-Smith (instructed by Prince Evans) appeared for the appellant; Martin Hutchings (instructed by Kosky Seal & Co) appeared for the first respondent; the second respondent appeared in person.
Eileen O’Grady, barrister
