Adjudication-v- Litigation

 The following case demonstrates the benefits of avoiding litigation at all costs

if the case had gone thought the traditional route say with counsel and solicitors appointed by both sides and then the usual disclosure, case management hearings, and hearing before a judge the parties would have been exposed to several years of delay and costs estimated to be £200,000 plus

Mr & Mrs E Husein v Mr S Dassu (2107) Adjudication, N. A. Dight

Philip Antino acted for the respondent (Dassu) in this building dispute. The referring party (Husein)  engaged the respondent to undertake significant building works to their property with a final contract sum of £138,004 plus vat. A dispute arose, the respondent made allegations of poor workmanship alluded to in a report prepared by Mr Campbell of Land Commercial Chartered Surveyors.

N.A .Dight  was the adjudictaor appointed to resolve the dispute, recorded “I agree with Mr Antino’s opinion that Mr Campbells report is akin to a snagging report rather than an experts report identifying by factual evidence and expert opinion alleged defects” Mr Antino’s report had identified minor snagging items and incomplete works estimated at  £6876 by way of abatement. The referring party rejected this opinion and sought £100,000. The adjudicator dismissed the claim accepting again Mr Antino’s evidence and awarded after adjustments the referring party pay to the respondent a final payment of £15,078.00. in addition the referring party were ordered to pay theadjudicators costs of paid the costs£12,602.88.  From anticipating a windfall of £100,000, the Referring party (Hussein) ended up paying £28,000 plus their own costs.

Posted on September 26, 2017 .

ETHICS – A DISAPPEARING PRINCIPLE

 

ETHICS – A DISAPPEARING PRINCIPLE

As a Party Wall Surveyor, I have noted a considerable decline in the standards and ethics being adopted and implemented by various Party Wall surveyors and indeed the judiciary.  Indeed, some of the more prolific violators are those which are wrongly held within the Party Wall community as “respected eminent Party Wall surveyors”.

The following scenarios are true. I have withheld the surveyor’s identity, because they have been reported to their professional body (RICS) and are currently facing investigation.

Case number 1

As the Adjoining Owners surveyor (“AOS”) and post service of the Parent Award, the Building Owner’s surveyor (“BOS1”) was replaced by BOS2 at the request of the BO on spurious grounds of incapacity.  The BOS1 then wrongly deemed himself incapable of acting.  This approach by BOS2 is a standard tactic that he uses to achieve an appointment.  The difficulties that flowed after BOS2 involvement are substantial.  There were breaches of the parent Award, blatant refusals by BOS to engage with and follow the award. BOS2 refused to allow the AOS onto site to carry out inspections as explicitly set out within the Award. BOS2 encouraged the builders to ignore monitoringlevels within the award. As a consequence, damage was caused to the Adjoining Owner’s property in the region of £250,000 plus vat.

Fortunately, as the Adjoining Owner’s surveyor, I had advised the Adjoining Owners to request security of expenses and the agreement reached between AOS and BOS 1 was such that £150,000 was held in an escrow account and to this date, remains secured as there are outstanding matters.

As the AOS, I wrote to BOS2 with a simple request as follows:

I would be grateful if you could please provide the drawings, specifications, method statements for the additional notifiable works now being undertaken by the Building Owner’s.

And received the following response:

Dear Mr Antino there are no drawings specifications method statement for these works (emphasis added)

A few days later, I received a call from the AO’s solicitor advising me that he had received an email that he had currently sent to the Law Society to seek advice on whether he could disclose the email to me.  He was unable to explain the content of the email until he had a response.

The Law Society confirmed that the email, sent by BOS2 to the BO’s solicitor, BO and his Barrister was not considered legal privilege, and could be disclosed.

The BOS had, sent the following email:

Hi ?? (solicitor)

 Have you seen Antino’s latest request, if we give him this information he will spot the mistakes. 

 In the BOS indecent haste to withhold the documents that plainly existed the BOS2 had inadvertently included the AO’s solicitor, in the email chain.

The game was up, BOS2 had by his own impetuous and dishonest conduct exposed himself to be a dishonest surveyor. 

The alledged dishonesty flows from:

  1. BOS2 refused to acknowledge documentation that existed and not working impartially,

  2. Took advice from a solicitor, which is by definition, conspiracy. 

  3. BOS 2 gave false statement as to the existence of relevant and appropriate documents

BOS2 conduct was clearly a gross error of negligence, dishonesty and breached just about every ethical rule that the RICS professional body seeks to impose members.

The fallout was such that the BO’s solicitor cried “stop, don’t give this email to Antino, it is legal privilege”.  When advised by the AO’s solicitor that the email was not covered by legal privilege the panic started to set in within the BO’s camp.

The parties agreed that they would be bound by an independent mediator’s decision and indeed, so confident in their arrogance that they were right, the BO’s team suggested that if they were wrong, they would agree to pay £50,000 plus costs to the Adjoining Owner.

As a consequence of BOS 2’s conduct, the Building Owner is now circa £100,000 out of pocket.

RICS have now confirmed that BOS2 conduct does NOT breach RICS Rules on ethics. 

 

Case number 2

In this matter I was the Adjoining Owner’s surveyor (AOS).  The BOS had prepared and served notices for a basement.  In response to the notices, it was pointed out that these incorporated special foundations the AO, adopted Section 7(4) veto.  The BOS, immediately accepted that the scheme did contain special foundations.

Now you might think that there is nothing strange in that, but the issue here is that when a notice is served, the surveyor has a duty to provide all of the relevant information to the Adjoining Owners in order for them to be able to make an informed decision.  Had they consented or decided to accept BOS as an agreed surveyor (AS), the question had to be raised as to whether or not the BOS would have actually advised the AO of their rights to exercise a Section 7(4) veto.

The BOS’s response was that he would arrange for the drawings to be changed, by which in fairness, he meant that the Building Owner’s architect/engineer would remove the special foundations.  All that had happened is that the engineer inserted 2 concrete rails beneath the proposed basement slab.  This, in my view, did not remove the special foundations and/or the Section 7(4) veto.

There was difficulty in agreeing the selection of the Third Surveyor (TOS), the BOS provided a list of names, one of which included BOS 2 referred to in case 1 above.  Alternative names were put forward by myself which were equally rejected, ultimately, the BOS adopted Section 10(8), but chose not to explain the difficulties regarding those names put forward.  Low and behold, one of the names on the BOS’s rejected list was selected as the Third Surveyor.

On receipt of the Third Surveyor’s letter confirming his willingness to accept the selection, the Third Surveyor made an unsolicited statement as follows:

Dear Mr Antino

 I do not consider the proposed scheme falls within the special foundations criteria and if you do not agree to sign the Award, I shall proceed with BOS and produce an Award.

Now, that is most certainly not evidence of a Third Surveyor acting with any degree of impartiality and clearly he had been covertly discussing the matter with BOS.

The BOS and TS then joined together and produced an Award, contrary to all of the advice of myself the scheme still incorporated special foundations.

The Adjoining Owner immediately filed an appeal on the position and advice given by the AOS, and subsequently solicitors and counsel were instructed by the AO.

The BO agreed to set aside the BOS and TS Award and paid the Adjoining Owner’s costs.  Those costs claimed by the Adjoining Owners are circa £20,000.  In addition to which the BO would have to pay his own costs, plus the wasted costs of the BOS, TS and AOS.

The BO has now served notices for a completely different scheme.

 

Posted on September 14, 2017 .

Institue of Party Wall Surveyos meets CABE

The President of CABE meets the CEO of IPWS

On the 9th June David Taylor, President of CABE met with Tony Copeland, the CEO of the Institute of Party Wall Surveyors at their offices.  This is what the President had to say.

The Institute has made a big impact on the professional environment of party wall surveyors since its inception and its growth is on the increase.  David had the pleasure of meeting with Tony and discussing the ambiguity of the Party Wall etc. Act and the current environment of surveying practice.  The need for an ethical practical guide for party wall compliance is, in David’s opinion, long overdue, and he was thrilled that the IPWS has been set up.

The meeting with Tony and his management team was arranged to discuss the collaboration and member connection routes for both organisations.  CABE members are best placed to act in the wide realms of the Party Wall etc. Act and David was pleased to hear that Tony agreed.

Posted on July 5, 2017 .

Hart V Spencer (2017) Injunction Romford County Court

 Hart v Spencer (2017) Injunction Romford County Court for failure to comply with the Party wall Act before HHJ Davies

 In October 2016 Mr Spencer commenced excavation works within 3m of Mrs Hart’s property.  Mr Spencer despite being a self-professed developer had not served any notices under s.6(1) of the Party Wall Act and was asked to stop.  He declined to do so.

He then caused minor damage to Mrs Hart’s boundary wall and was again requested to stop and threatened with an injunction.  He refused, continued causing the collapse of a boundary wall falling onto Mrs Hart’s property.  Mr spencer was threatened with an injunction and his solicitors gave an undertaking not to do any further works until the party wall procedures were in place.

There then followed a period of inactivity until April 2017 when Mr Spencer appointed a surveyor from Cheshire for a project being undertaken in Loughton, Essex.  Mrs Hart having previously appointed Mr Antino to deal with party wall matters.

Discussions/negotiations were under way when on the 9th June Mr Spencer decided to commence piling works for his project.  Overall there was approximately 200 plus piles to be excavated, but he chose to do the 17 or so within 3m and 6m of Mrs Hart’s property and structures therein.

This was contrary to an undertaking being given previously in 2016 not to do any notifiable works until an Award was in place.  On the 9th June Mr Antino was instructed to carry out an urgent inspection to record the on going activities in preparation of an injunction.  Mr Spencer became extremely aggressive threatening and was subsequently arrested and received a police caution for causing criminal damage to Mr Antino’s video and photographic equipment plus ordered to pay compensation for the damage caused.  Mr Spencer was served with a notice of injunction hearing on the 12th June 2017.

Undeterred by this situation, Mr Spencer then on the morning of the 12th June continued with the piles.

Mr Spencer did not attend Romford County Court despite being notified of the hearing, and having  sealed up all of the letter boxes on site.  Mr Antino was instructed to attend late on the 12th June to photograph any further activities that were notifiable following the injunction being served at approximately 4.00pm.  The injunction remains in place until September.

 

 

 

Posted on June 15, 2017 .

Institute of Party Wall Surveyors (IPWS)

Philip Antino FIPWSwas yesterday confirmed as a Fellow of the Institute of Party Wall Surveyors.

For details of this exciting new professional institute go to ipws.co.uk   for members details, information and/or to apply to join

Posted on May 19, 2017 .

Philip Antino on Special Foundations, basements and s7(4) veto

 An Appeal against Special Foundations and the refusal to recognise s.7(4) veto

 J P Ferguson & F E Ferguson v A G Lloyd-Baker (2017) Central London County Court

The Award was withdrawn by Mr Lloyd-Baker following legal advice, accepting that the Award was as Mr Antino had contended all along  invalid.  
 

Mr & Mrs Ferguson (the appellants) filed an appeal at the Central London County Court challenging an Award, served by Mr Mark Behan appointed by Mr Lloyd-Baker and Mr Simon Price, the third surveyor selected under s.10(8) of the Party Wall etc. Act 1996.

Mr Philip Antino was Mr & Mrs Ferguson’s surveyor.  Mr Lloyd-Baker wanted to construct a basement beneath his end of terrace house which adjoined the appellant’s property and other notifiable works. Mr Mark Behan prepared and served notices for the basement which surprisingly, incorporated special foundations extending across the boundary line.

Mr Antino experienced considerable difficulties with Mr Mark Behan in selecting a third surveyor.  Mr Mark Behan insisted that it should be someone from his list of preferred surveyors.   Included in that list was Mr Simon Price, a chartered surveyor and director of the Faculty of Party Wall Surveyors of which Mr Mark Behan is also a member.

Mr Antino declined the nominations put forward by Mr Mark Behan and provided alternatives.  Some of who were and/or were not members of the Faculty of Party Wall Surveyors.  Mr Mark Behan refused to accept anyone unless it was someone he suggested.

Regrettably there was no agreement on the selection of the third surveyor and Mr Mark Behan approached the local authority who subsequently selected Mr Simon Price.

Mr Mark Behan had been asked by Mr Antino to notify the local authority of all those names previously submitted by both parties to ensure that they were not included in the selection process, thus avoiding any potential conflict of interest. It appears from Mr Simon Price’s subsequent selection that Mr Mark Behan did not take Mr Antino’s advice.

Mr Antino’s primary concern given that Mr Mark Behan appeared not to understand what a special foundations and or indeed the s.7(4) veto that any selected the third surveyor was both independent and had the appropriate skills, knowledge and experience to be able to deal with special foundations and or indeed the s.7(4) veto.  To Mr Antino’s surprise the local authority selected Mr Simon Price, despite his earlier rejection.

Mr Mark Behan immediately wrote to Mr Simon Price claiming that there were no special foundations and sought his agreement to prepare an award.  Mr Simon Price’s first email to Mr Antino was to suggest wrongly as it transpires, that there were no special foundations in the proposed scheme.  Mr Antino rejected this contention explaining that there were special foundations and that Mr & Mrs Ferguson had exercised their right under s.7(4) and in the absence of any written consent, an Award could not be served, because the Act specifically prohibited such works under s.7(4).

Mr Simon Price and Mr Mark Behan, then proceeded to work together to produce an award, leaving Mr Antino out of the statutory procedures. It took some 7/8 months for Mr Simon Price and Mr Mark Behan to eventually serve an Award.  On receipt of service Mr Antino advised Mr & Mrs Ferguson that the Award was ultra viries because it sought to authorise special foundations across the boundary line and without their written consent was therefore unlawful.

Mr & Mrs Ferguson filed their appeal within the 14 day statutory period, and Mr Lloyd-Baker having taken legal advice agreed to withdrew the Award by consent and agree to pay Mr & Mrs Ferguson’s substantial legal costs in defending the appeal.

The appointed surveyors must act impartially, however, from the first instance, Mr Simon Price did not engage with Mr Antino under section 10(11), despite Mr Antino’s  numerous request to be included in the award process. Mr Mark Behan and Mr Simon Price  chose not to include Mr Antino. This is particularly frustrating and disappointing because Mr Simon Price duty as the Third Surveyor was to remain neutral and impartial. For reasons that are not clear, he simply joined with Mr Mark Behan to serve an invalid Award. They simply pushed ahead (to the detriment of Mr Lloyd-baker) ignoring all of Mr Antino’s advice concerns and/or observations that the scheme could not proceed as set out in the drawings attached to the notices. 

Indeed Mr Lloyd-Baker sent an email to Mr & Mrs Ferguson shortly before service of the Award stating “I am glad to hear it seems our party wall award is now finally resolved to the satisfaction of the third adjudicating surveyor.  Whilst I really hope this draws a line under it, I am aware your party wall surveyor Philip Antino is rather familiar with legal proceedings, mostly it seems to the detriment of his clients.  So if he hasn’t already, I imagine he will be lobbying your representative with all sort of reasons (sic) you should appeal the decision at your own costs and risk”.

Mr Lloyd-Baker is correct Mr Antino not only knows the legal proceedings, he was plainly more knowledgeable about the correct interpretation of special foundations and how the s.7(4) veto applies under the Act. Given, Mr Lloyd-Baker’s acceptance that the Award was invalid, and agreement to pay Mr & Mrs Fergusons costs this has been an expensive exercise for Mr Lloyd-Baker.

The Award was withdrawn by Mr Lloyd-Baker following legal advice, accepting that the Award was as Mr Antino had contended all along  invalid.  

 

 

 

Posted on May 13, 2017 .

Injunction stopping breach of Party Wall Act

Gibson & Gibson v Frisby (2017) Bow County Court

Injunction for breach of party wall legislation, Trespass, Boundary dispute, Nuisance andDamages. Mrs Frisby had under taken excavations within 3m and 6m of Mr & Mrs Gibson's property without serving notice. Mr Philip Antino was instructed to provide and experts report in support of the injunction. Mrs Frisby gave an undertaking and surveyors were appointed under the Act.  

Posted on May 11, 2017 .

Philip Antino succesfully appeals planning enforcement in Green Belt

 

Epping Forest Council v Mr & Mrs Craft Enforcement Notice breach of s.171A(a) of the Town & Country Planning Act 1990

 Planning appeal upheld, enforcement quashed in metropolitan greenbelt area

 Mr & Mrs Craft (the appellants) live within the Metropolitan green belt area and following a catastrophic fire at their house which required complete demolition, undertook to construct a new house albeit to a smaller footprint and smaller ridge height, but in an altogether different style, comprising a commercial steel frame lightweight powder coated profiled roof and external finishes incorporating a heavy timber cladding material.  A retrospective planning application was field but rejected.

They did not obtain planning permission for the new house, wrongly assuming they were entitled to rebuild because it was smaller in scale (some 50%) than the original house that was destroyed in the fire. Epping Forest District Council (EFDC) issued an enforcement notice alleging a breach of s.171A(a) of the Town & Country Planning Act 1990 (APP/J1535/C/16/3153786 and APP/J1535/C/16/3155445).

EFDC council were seeking to have the house demolished and to be rebuilt to the existing footprint and form and finishes as they considered the current structure was detrimental to the Metropolitan green belt area, and that the materials were inappropriate to its location and the green belt policies.

EFDC alleged that the proposed structure was also contrary to the National Planning Policy Framework (NPPF) as adopted since March 2012 and in particular referred to paragraphs 214 “that due weight should be given to the relevant policies and existing plans according to their degree of consistency within the framework”.

The appellants took legal advice from Mr Charles Newman of Messrs Edwards Duthie solicitors who referred them to Philip Antino.  Mr Antino immediately filed grounds of appeal with the planning inspectorate, setting the extraordinary grounds of why the house should be allowed to remain and that the enforcement was in fact a frivolous act. The planning inspectorate issued their decision upholding both Appel A and B, the enforcement notice was quashed and planning permission was granted in the terms set out in the formal decision.

The appellants were able to keep their house as constructed and finished.

 

 

Posted on May 2, 2017 .

Breaking News: Notable Party wall case has major implications for party wall legislation

 

This judgment is a  ground breaking decision that will affect recent and future judgements and the way in which surveyors conduct party wall procedures.

Following a recent judgment in the magistrates court regarding the procedures for dealing with party walls fees have been turned upside down. This ground breaking case will be discussed by one of the barristers involved in the case on the 27th April at Cambridge university party wall seminar hosted by Party wall solutions

There is limited availability  Contact Francesca on

+44 (0)1245 228 928or   Francesca@partywallsolutions.net

 

Posted on April 10, 2017 .

Keddie & Keddie v Day (2017) Chelmsford County Court - Injunction

Mrs Day commenced s.6(1) excavations prior to serving notice on 7th February.  Mr & Mrs Keddie were the applicants for an injunction against Mrs Day the neighbouring owner who had started building works without service of party wall notices.  Mr & Mrs Keddiehad instructed Mr Antino as their expert who wrote on the 7th February a letter which was hand delivered to the defendants house explaining that the commencement of excavations was in breach of s.6(1)(a) & (b) for their foundations and new drainage, and that they should stop works.

The defendants drawings indicated a public sewer running through the claimants’ property which the defendant wanted to connect to this required excavating the claimants’ driveway.  They denied this was an excavation.

What they had failed to accept when advised by Philip Antino, is that the excavation of drains were notifiable works and furthermore that these drains were indicated as connecting onto drains and inspection chambers positioned wholly on the adjoining owners land.  This would require a right of access, only applicable after notice, and indeed would create structural damage to the claimants paths, driveways etc. A request to stop works was made with the advice that unless an undertaking was given not to continue an inunction would be obtained.

Connecting to a public sewer also required a license from Anglia waterwhich had been applied for.  Disappointingly, Mrs Day continued with the excavations on the following morning, the 8th February despite having been advised that continuation of works could lead to an injunction. A request to stop works was made with the advice that unless an undertaking was given not to continue an inunction would be obtained.

On the following morning of the 8th February Mr & Mrs Keddie advised Philip Antino of ongoing works and he recommended that they take legal advice.  They did this immediately, and instructed Mr Ashley Bean of Littlestone Cowan Solicitors and Mr Richard Power of Lamb chambers who prepared the appropriate letter to the defendant requesting an undertaking that they stop works and serve the appropriate party wall notices, or an injunction would be applied for.

They completed the foundations to the front of their property; the drain excavations had not been started.  Without the appropriate undertaking, Chelmsford County Court issued an immediate injunction to stop any and/or further notifiable works under s.6(1)(a) & (b).

The building owner disputed the need for notices claiming that they had a right to do these works because it was a shared drain and not notifiable.  What they had failed to further recognise and understand is that if their contention that the drains were a shared drain they became a public sewer, and accordingly fell within the domain of Anglian Water Authority and it was the defendants obligation to obtain a building over, near to licence prior to these drainage works.  They had not obtained the licence, and had no intention of doing so. 

Furthermore, Philip Antino submitted that the excavations were below the concrete path, driveway, garage base, and indeed the claimants drains were all structures, and accordingly an excavation below those structures, was inevitable given the invert level depth and therefore notifiable works.  The injunction was therefore granted.

The building owners were aware of the without notice application they indicated that they would be at Court but then chose not to participate.  As a consequence of the building owners reluctance/refusal to accept their statutory obligations and give an undertaking the injunction was granted.

 The Judge arranged for a return date hearing for the 14th February at Chelmsford County Court to give the defendants an opportunity to either undertake not to do any further notifiable works thereby lifting the injunction, or to explain why they believed that the Party Wall etc. Act did not apply.

 A resolution was achieved without the need for further legal determination.

Posted on February 19, 2017 .