Factual background: It was common ground that the building and adjoining owners had not appealed the first award which selected Mr Antino (as recorded within the recitals) as the third surveyor. It will come as no surprise to those familiar with the law that the defendants are going to appealHHJ Baileys decision.
This application was a Part 8 claim for a declaration of invalidity of both the parent award and the third surveyors award, which flowed from the third surveyors’ s.17 complaint in the magistrates court. The Third surveyors award had rejected the building owners (Reeves) request for access under s.8(1) for non-notifiable works. The claimants accepted the third surveyors determination that there were no rights of access under s.8(1) was correct. To avoid payment of the third surveyors costs, they challenged his selection. The building owner relied on two unsigned letters (not posted to the owners) purportedly between the appointed surveyor’s Mr Gold and Mr Westway both of Vincent brown. The letters suggested that they had in in the first instance selected Mr Alistair Redler as the third surveyor. There was no documentary evidence to support Mr Redler having been informed of his selection, or indeed having accepted it. In fairness to Mr Redler he may not even be aware of this case. The claimants counsel (Stuart Frame) surprisingly chose not to call any witnesses to support the contention that Mr Redler was the selected third surveyor or to provide any other documentation to support the claimants position.
Stuart frame argued that the surveyors’ could not deselect the purported first third surveyor under s.10(2), irrespective of the fact that the parent award recorded Mr Antino as the third surveyor was not appealed. Stuart frame argued that the purported letters were sufficient to render the parent award and subsequent third surveyors award invalid. The defendants accept the s.10(2) prohibitive restrictions save that estoppel applied when they the owners failed to appeal the parent award.
HHJ Bailey ruled that the selection of Mr Antino was invalid preferring to rely on the two unsigned letters purporting that they had initially selected Mr Redler. HHJ Bailey rejected an email that confirmed the two surveyors had changed their mind prior to service of the award and had selected Mr Antino as the third surveyor, because he was also the third surveyor in relation to the party wall matters on the opposite side of the building owners (Reeves) property. HHJ Bailey held that the purported change in selection was contrary to s.10(2) and thatthe two surveyors could not de-select Mr Redler’s purported selection. Surprisingly this decision contradicts HHJ Bailey decision in the Mills v Sells and Savage cases (also subject to appeal) where he held that a rescission of a building owners appointment was not contrary to s10(2).
Mr Richard Power’s (Counsel for the defendants) submitted that Reeves was now estopped from claiming that the parent award was invalid, given that Reeves had relied on the award to execute the notifiable works under s.6(1).
To assist those unfamiliar with the legal doctrine of estoppel:
estoppel. a bar or impediment (obstruction) which precludes a person from asserting a fact or a right, or prevents one from denying a fact. Such a hindrance is due to a person's actions, conduct, statements, admissions, failure to act, or judgment against the person in an identical legal case.
estoppel is a collective name given to a group of legal doctrines in common law legal systems whereby a person is prevented from making assertions that are contradictory to his or her prior position on certain matters before the court - the person is said to be "estopped".
HHJ Bailey rejected the established principals estoppel arguments.