Party Wall Surveyor Negligence s.12(1)
Party Wall Surveyor Negligence
The circumstances surrounding this case are quite straightforward and relate to a development in the North of England.
- Building owners (BO) (company A) served notice under s.6(1) of the Act on an adjoining owner (a residential property).
- The AO accepted the appointment of the BO surveyor as an agreed surveyor (AS) (s.10(1)(a)).
- Works commenced substantial damage was caused to AO property.
- AS awarded costs against building owners (company A) approximately £25,000 exclusive of VAT damages and special damages.
- BO (company A) did not have insurance and subsequently sold the site to company B.
- Directors of company A also owned company B. Company B proceeded with the completion of the development works (2 residential houses).
- AO approached AS asking for assistance in recovery of costs, AS advises that AO should make a claim on his buildings policy.
- AO makes claim, insurers reluctantly accept liability and seek legal assistance in respect of recovery against the directors of company B who were also directors and owners of company A.
- Solicitors identify the relevance of the Party Wall etc. Act 1996, and instruct Philip Antino of APA to provide an initial report.
- Philip Antino notes the correspondence and contacts the AS who refuses to provide any information as he considers his involvement is now finished and wants payment in advance.
- Philip Antino checks files documentation and notes that AS did not advise the AO that they were entitled to request security of expenses prior to commencement of the works under s.12(1).
- Report is provide to insurers solicitors who immediately initiate pre-action protocols to recover costs from AS for negligence, specifically he had an expressed duty of care towards the AO to advise them of their rights, under the Act, which he failed to do.
- Pre-action discussions take place between AO’s insurers and AS’s insurers.
- Threats of legal action for negligence, AS insurers immediately make a Part 36 offer.
- Proceedings are issued, AS’s insurers make an increased Part 36 offer.
- AO Reject second Part 36 offer, discussions take place. AS insurers settle claim in full on a without prejudice basis.
Now unfortunately because this matter settled and did not proceed to trial we do not have a judgment and/or any documents that are within the public domain. I am therefore unable to produce any of the documents, which is disappointing. Notwithstanding this case which involved a northern surveyor of some experience, shows how precarious the party wall surveyors position is. Even more so when acting as an agreed surveyor. It is fundamental when accepting an appointment that the party wall surveyor makes sure that every party is advised of their rights under the Act. Because this surveyor failed to advise that the AO that he was entitled to security of expenses under s.12(1) and because of the rather bizarre and accepted unusual circumstances about the conduct of company A and/or company B, the surveyor was ultimately found liable for the costs.
However, all of this could have been avoided if the agreed surveyor had simply issued a letter to the AO advising him of their right under s.12(1). If the AO had failed to exercise their right then the AS would not have been held responsible because he had discharged his duty of care and advised an owner of their rights. Even if they had declined to exercise those rights the AS cannot be criticised.
To date I have not found any evidence of any claims of negligence in party wall matters that have proceeded to trial. I am sure that the above case is not an isolated incident but because they settled, it does not come to the forefront of everybody’s attention. My advice to everyone is check the Act, understand the rights each owners have and make sure that you advise them of their rights and therefore you are protected against any potential claim of negligence etc.