Surveyors Appointment Invalid

N THE COUNTY COURT AT CENTRAL LONDON CLAIM NO. B00RM033

B E T W E E N :

(1) HESHMAT HASSAN BIBIZADEH

(2) JANET CATHERINE BIBIZADEH Appellants

- and -

ANA DODOSH Respondent

Before HHJ Bailey

This is the summary of a two day preliminary hearing written by Mr Philip Antino Surveyor to the Respondents

This appeal was brought by the appellants raising a number of preliminary points to be decided before a part 7 claim and an appeal under Part 52. Before moving to the substantive points before HHJ Bailey it is important and necessary to set out the context of this appeal, because as HHJ Bailey quite rightly asked on numerous occasions throughout the hearing, “ Why are you appealing an award that lets you do the work you want to do”

Background

The appellants (Building Owners) set the Party Wall matters in motion when they served notice of their intent under section 6 (1) and 1(5) to do certain works. The appellants suggested an RICS firm (not a named person) as an Agreed Surveyor. Mrs Dodosh (the Adjoining Owner/respondent) contacted the company and spoke to Mr Flight MRICS of ATP, and subsequently appointed him. Mr Flight correctly introduced himself to the appellants offering his services as an Agreed Surveyor, whilst pointing out an error/discrepancy within the section 1(5) notice. The Building Owners took exception and then made derogatory remarks, threatening to report Mr Flight to his professional body RICS, whose advice was to rescind the appointment. Mr Flight rescinded his appointment under s. 10(5) and the Respondents appointed Mr Philip Antino. The appellants purported to withdraw their notices on the basis that The Party Wall Act no longer applied, clearly, a fundamental error in their strategy because the excavations required notice under the Act, irrespective of the s.1(5) difficulties.

The Building Owners started works and were asked to stop and to give an undertaking not to proceed with the works until party wall matters had been concluded. Disappointingly (perhaps indicative of the Building Owners attitude) they gave the undertaking but decided to carry on with the excavations on a Sunday. Mr Antino was called out and the works stopped. In view of the breach of the undertaking Mr Bean of MLC with Mr Richard Power of Counsel on behalf of the respondents obtained an ex-parte injunction in the Romford County Court.

Mr Antino and indeed Mr Bean on numerous occasions (7 in total) requested, advised or invited the Appellants to appoint a surveyor. The appellants took advice from Mr Maunder-Taylor who advised the works were seized of the PWA and that they should appoint a surveyor. The Appellants refused and the Adjoining Owner’s Surveyor issued a section 10(4)(b) request in October 2014 requesting the Appellants to appoint a surveyor, there solicitors “Gisby Harrison” having previously advised “ our client will not appoint a surveyor” contrary to the advice of Mr Maunder-Taylor. After 10 days Mr Antino appointed Mr Stevens under s.10(4). Mr Stevens wrote to the Appellants who on legal advice were told to ignore Mr Stevens letter. Mr Antino and Mr Stevens selected a Third Surveyor to complete the tribunal and proceeded to produce an award.

The Appellants continued to argue the point and sought advice from Child & Child Solicitors (third set of solicitors) and purported to appoint Mr Alistair Redler on the basis of a letter of appointment dated December 2014. Mr Redler did not disclose the letter of appointment, although wrote to Mr Stevens advising that there were difficulties with the s.10(4) appointment that should be settled by the solicitors. Mr Redler attempted to engage with the surveyors requesting details of what they were going to award, as he was not a party to the tribunal neither surveyor gave any ground to his request. Mr Redler also suggested that “there may be a referral to the Third Surveyor” although that never materialised.

An Award was served dealing with the partially completed excavations, the trespass and damage caused by the Building Owners unauthorised works which commenced after the notices were served and the appointment of Mr Flight. Based on the drawings which had been provided by the Building Owners the surveyors found as fact that a trespass had occurred, and damage caused to the Adjoining Owners property.

The Respondents had instructed Mr Bean of MLC, and Mr Richard Power of lamb Chambers, the building owners decided to appeal the Award, and the injunction.

The preliminary issues as pleaded by the Appellants are:

Mr Flight had no grounds to rescind his appointment and therefore remained the respondents appointed surveyor

The surveyor. appointed under s.10(4) was not validly appointed as the Respondents’ party wall surveyor (Mr Antino) had no jurisdiction to make an appointment.

Mr Antino could not by virtue of point 1 above have been validly appointed.

The Appellants had appointed Mr Redler, and therefore the surveyor appointed by Mr Antino must be invalid.

Section 10(5)

The provisions as set out under s.10(5) are relatively straightforward, and explicitly sets out the basis that a surveyor can rescind his appointment. Given that s.10(2) does not entitle anyone to request a surveyor to rescind his appointment, it must naturally follow that unless a surveyor has either died or is incapable of continuing, he must proceed with the statutory appointment to its natural conclusion. It was argued by the appellants that although Mr Flight had received an aggressive email correspondence from the appellants it was simply unprofessional for him to walk away from the situation. The surveyor must complete their statutory duties. Whilst HHJ Bailey accepted that party wall surveyors should bring their statutory procedures to their natural conclusion, there are occasions where an incapacity gives rise to the recession of the appointment. The appellants counsel was asked to give an indication of what would be satisfactory grounds to demonstrate incapacity. Counsel for the appellants suggested hospitalisation, mental incapacity and when pressed further by HHJ Bailey expanded that to include retirement moving away from the area, or some other means which physically prevented the surveyor incapable of conducting his statutory procedures effectively and correctly.

HHJ Bailey quite properly considered the letter of resignation and the explanation given by Mr Flight and it was quite clear that having been advised by the RICS, Mr Flight should “walk away” from a situation where there was an allegation of impropriety. HHJ Bailey accepted this as a justified reason to render Mr Flight incapable of acting. Had he continued to act he would effectively have been acting against the explicit advice given by his professional body which HHJ Bailey accepted were reasonable grounds to deem himself incapable otherwise he could expose himself to criticism by RICS.

It is therefore important that surveyors recognise their statutory obligations and the commitment that they give when taking that appointment unless they can demonstrate the incapacity to the reasonable satisfaction of the appointed surveyors or if necessary to the Court as in this case.

Mr Antino’s Appointment

During the appellants submissions on their arguments under s.10(5) Counsel was asked to explain what she thought would be appropriate action for the adjoining owner (the respondent) when faced with a letter of resignation. Counsel submitted that the adjoining owner should go take out an injunction and force the surveyor to continue with their statutory obligations. Now that in itself may be a legal option at common law. The issue is whether it is reasonable action for the adjoining owner/layperson to either be aware of or be exposed to simply because a surveyor has written to the layperson and rescinded their appointment?

Is it reasonable for an adjoining owner to incur these costs? In my opinion it is not and it falls upon stony ground to submit in my view an argument on that basis. HHJ Bailey did not accept the submission as a credible argument. In this case the respondent did what any reasonable minded adjoining owner would do and appointed another surveyor to represent them, being Mr Antino.

Mr Antino wrote to the building owners in an attempt to progress matters to their natural conclusion with an Award, although unfortunately the building owners jumped the gun and started the works which resulted in an injunction.

There were numerous invitations served upon the building owners who declined to engage with Mr Antino purporting to rely on the flawed principle that the statutory legislation did not apply, contrary to their surveyor’s Mr Maunder Taylor recommendation.

Mr Antino followed the statutory legislation to bring matters to their natural conclusion and issued a s.10(4)(b) request that the building owners appoint a surveyor within 10 days. The letter was sent to the building owners, although it was denied that the letter was ever received, because the last letter of the postcode was wrong. In his judgment HHJ Bailey acknowledged that the last letter of a postcode has little significance but accepted that the building owners had not received the request. However the numerous invitations made by both Mr Antino and indeed Mr Bean of MLC upon the building owners to appoint a surveyor resulted in them refusing to with the consequence that the adjoining owners surveyor was entitled to appoint a surveyor on their behalf.

It is important to note that there are two distinct limbs within s.10(4), they are not mutually exclusive and accordingly Mr Stevens was appointed.

Mr Redler’s Appointment

Mr Richard Power on behalf of the Respondents produced the following skeleton argument in respect of Mr Redler’s purported appointment.

The Court will be aware of the Order for Directions [1/130] vacating the hearing date listed for 11/5/15, and the fact that the hearing dated listed for 22/7/15 was also vacated because there was no court time available. By letter dated 28/8/15 [1/281] solicitors for the Appellants for the first time disclosed and sought to include within the Appeal Bundle a letter dated 11/12/14 from the Appellants to Mr Alistair Redler [1/25A]. It appears to be the Appellants’ intention at this very late stage to develop the argument only hinted at in Paragraph 4 of the Appellants’ skeleton [1/124] that Mr Redler was appointed by the Appellants pursuant to Section 10. This skeleton is intended to show that Mr Redler was not and did not consider himself appointed pursuant to Section 10.

The letter dated 11/12/14 [1/25A] from the Appellants is as follows, with my emphasis:

“We hereby authorise you Alistair Redler … to sign, issue, receive and respond to any Notices arising and required in connection with the works proposed at the above address. In the event of a dispute or disputes arising, we appoint you, Alistair Redler … as our Surveyor, in accordance with Section 10 of the Party Wall etc. Act 1996 …”.

That is a standard form of authority used to authorise surveyors to serve notices required under the Party Wall etc. Act 1996 (“PWA”), for example under Sections 1 and 6. With that authority, the surveyor instructed would then serve notices on adjoining owners, which in this case would have been in the form of the notices dated 28/7/14 [1/1A - 1D]. In the present case Mr Redler was obviously made aware that

notices had already been served;

that a dispute had already arisen;

that Mr Antino and Mr Stevens considered that they had already been appointed pursuant to Section 10 [see 1/37, 38 & 47]; and

that a Defence had been served on 20/11/14 in which the Appellant’s position was (a) that the Respondent’s claim should be struck out because she had purported to appoint Mr Stevens on the Appellant’s behalf, and (b) that the PWA was in the circumstances ‘otiose’.

In those circumstances, Mr Redler did not serve fresh notices pursuant to Sections 1 or 6 of the PWA; he obviously recognised that appointments under Section 10 cannot be rescinded by either a building owner or an adjoining owner [see Section 10(2)]; and he did not seek to comply with Section 10(1)(b) and “forthwith select a third surveyor”. In other words, he took no steps consistent with his having been appointed under Section 10.

Mr Redler is a surveyor distinguished for his membership of the working group of the RICS Boundaries and Party Walls Panel responsible for issuing professional guidance to promote “understanding and best practice in the areas of neighbour disputes such as party walls, land transfer …”, and so on [1/290], and he would have known the contents of the guidance he helped to draft:

“If an appointment is invalid, then a subsequent award may also be invalid …” Therefore, appoi nted surveyors are recommended to provide each other with copies of their written appointment before proceeding with any work to negotiate an award”.

The selection of a third surveyor should be made by exchange of letters between the appointed surveyors …” [1/291].

Mr Redler did none of the things he recommends surveyors should do in these circumstances, and, it is submitted, the reason why he did not do so is because he knew that he could not be and/or had not been appointed pursuant to Section 10 in relation to the disputes that had already arisen. His appointment was in respect of future notices, works and disputes.

It is submitted that the authority dated 11/12/12 was an attempt by the Appellants to start the PWA process for a second time and to forget about the notices dated 28/7/14 [1/1A - 1D] and everything that had happened since then.

That submission is borne out by the letter from the Appellants’ then solicitors, Gisby Harrison, dated 12/12/14 [1/60 - 61] containing an open offer to the effect that the Appellants:

would appoint Mr Redler (please note: Gisby Harrison did not consider that Mr Redler had already been appointed);

the Respondent could appoint Mr Redler as ‘Agreed Surveyor’ or any other surveyor (the reference to ‘agreed surveyor’ being plainly intended as a reference to that term as defined in Section 10(1)(a)); and

for the avoidance of doubt, the surveyors presently appointed or purportedly appointed, Mr Antino and Mr Stevens, be ‘released’ and “shall not be further engaged in any respect regarding the operation of the PWA”.

Obviously, the ‘release’ of Mr Antino and Mr Stevens would have been a rescission within the meaning of Section 10(2), and therefore prohibited by that section, rendering the offer incapable of acceptance.

The offer actually goes further than that. By their offer, the Appellants, through their solicitors, seek to restrict the Respondent’s right to choose her own surveyor and prevent her from instructing either Mr Antino or Mr Stevens in the future even if she were prepared to start the PWA procedure afresh.

Gisby Harrison continue and say: “… insofar as notice for the purposes of s10(4) of the Act has now been served, less than ten days have passed since the service of such notice, and our client[s] nominate and appoint Mr Alistair Redler as their Party Wall Surveyor without prejudice to their pleaded case …”.

That ‘election’ is based on the premise that the Appellant’s did not receive the letter dated 23/10/14 [1/12] from Mr Antino. That is not accepted and never has been [please see Paragraph 27 of the Respondent’s main skeleton]. Further, even if that letter had not been received, the Appellants refused, within the meaning of Section 10(4)(a), on a number of occasions to appoint a surveyor under Section 10(1)(b).

It is further submitted that it is impossible to appoint a surveyor under Section 10(1)(b) and at the same time contend, as the Appellants do by their Defence and this appeal, that:

the PWA does not apply in respect of the proposed building works;

no notice under the PWA was required and no works were or would be in breach of the Act;

the PWA is ‘now otiose’ and surveyors appointed under the PWA have no jurisdiction once a claim for damages is issued.

Judgment

HHJ Bailey set out in a comprehensive and detailed oral judgement the reasons for his decision but the decision in respect of these preliminary issues are as follows:

In respect of the preliminary issues as set out above HHJ Bailey ordered as follows.

Mr Flight grounds to rescind his appointment under s.10(5) were justified.

The adjoining owners were entitled to appoint Mr Antino and he was the adjoining owners appointed surveyor.

The refusal to the request under s.10(4)(a) is sufficient to entitle the adjoining owners to appoint Mr Stevens as the building owners surveyor.

Mr Redler’s appointment was invalid.

The Appellants have now filed a note of is discontinuance, costs have been awarded against Bibizadeh to be assessed if not agreed.