P. Antino v Burke & Johnny (2016) Barking Magistrates Court

Issues: The 1996 Act – s.6(1) – s.1(5) – s.8(1) – s.12(1) – withdrawal of notifiable works– s.10(7) request for costs – ex parte award – s.17 complaint as civil debt.

The Facts: The building owners were intending to build an extension across the rear of their property up to the boundary with projecting fascia, gutter and eaves detail which extended past the external line of the wall. Notices were served under s.1(5) and s.6(1) by the architects/building owners surveyor and Mr Antino was appointed by the adjoining owner. Mr Antino challenged the s.1(5) notice because the roof projection past the wall face being built on the line of junction created a trespass.

The building owners surveyor was also the architect and he subsequently redesigned the roof detail to avoid trespassing gutter, fascia and eaves detail by moving the wall away from and wholly (onto the building owners land) the line of junction. The adjoining owners raised a request under s.12(1) for security of expenses in relation to potential damage that could reasonably flow from the close proximity of the building works. The building owners rejected the request and it therefore fell upon the appointed surveyors, under s.12(1) to reach an amicable solution. Mr Antino had requested £10,000 which the building owners surveyor rejected out of hand, offering £500. The building owners served a request under s.8(1) to erect scaffolding on the adjoining owners land, which was in turn rejected, as this was not notifiable works.

The building owners having no realistic way of building the extension without the permission from the adjoining owners redesigned the extension moving the wall a further 1m back from the boundary to allow a scaffold to be erected and all of the works therefore undertaken from within the building owners boundary. The building owners decided to redesign the foundations so that they did not triggers either distance and/or depth under s.6(1). A revised scheme was submitted to Mr Antino on the grounds that notice under s.6(1) was no longer required and therefore the notices were purported to have been withdrawn. Mr Antino on consideration of the drawings pointed out that the revised scheme still extended to a depth lower than the adjoining owners foundations and/or structure, relying on the fact that a structure includes a path, drains, wall, foundation etc. The building owners redesigned the foundation for the third time purporting to have removed the obligation to serve notice under s.6(1) and upon consideration by Mr Antino was rejected. The building owners then produced a fourth revision which Mr Antino accepted no longer triggered s.6(1) notices.

The notices now falling away Mr Antino prepared his account and served this upon the building owner’s surveyor offering. a without prejudice 20% reduction in his fees if an agreement was reached within 7 days with payment 7 days thereafter. If no agreement being reached or the building owners surveyor neglected to respond, Mr Antino would exercise his right to proceed ex parte. The building owner’s surveyor neglected to respond to the request. Mr Antino served a s.10(7) request setting out the nature of the costs seeking full payment with additional costs incurred for the preparation of the s.10(7) request and this was ignored. The building owners surveyor simply did not make any counter offers or observations as to what elements of the fees were reasonable and which were not, and upon the expiry of the 10 day notice Mr Antino served an ex-parte Award under s.10(7).

The building owners did not appeal the award and following the expiry of the 14 days refused to pay the sums awarded, Mr Antino laid a complaint under s.10(17) in the Barking Magistrates Court.

The Decision: On attendance at the Magistrates Court, Counsel and instructing solicitors for Mr Antino identified a procedural irregularity in the Summons issued against Mr Johnny and bought it to the Courts attention. The Court had made a typing error and it was therefore submitted that the Summons was not properly served upon Mr Johnny and therefore could not have been served and the case against Mr Johnny could not proceed. The Magistrates ordered that the Summons against Mr Johnny should be reserved and the case adjourned until a later date.

The Magistrates held that the Summons in respect of Ms Burke had been valid served both by the Court and by instructing solicitors on behalf of Mr Antino and proceeded to hear the complaint absent of Ms Burke.

Counsel for Mr Antino explained the background to the statutory legislation, that the Award had been served and was not appealed, and therefore was a binding Award that could no longer be challenged in any Court and was binding upon the parties.

Counsel asked Mr Antino to give a brief background to the circumstances and Mr Antino explained to the Magistrates that the surveyors had a duty to act under the statutory legislation, acted in a quasi-judicial position as the Court of First Instance subject only to an Award being appealed in the County Court.

Mr Antino explained that his accumulated total fees of £1,205 were presented to the building owners surveyor together with a 20% discount to entice early settlement and that offer was ignored. Mr Antino explained the purpose of s.10(7) request and on passing of the 10 day period was entitled to act ex-parte and produce an Award which is now before the Court.

Mr Antino awarded his £1,205 in total plus an additional £200 for the preparation of the Award total costs of £1,405.

Counsel for Mr Antino . submitted that in addition to those costs, there were the legal costs incurred for the filing of the Court Summons and Mr Antino’s additional costs in attending at Court which should be recoverable at the same hourly rate of £250 per hour as noted in paragraph 3 of the Award plus the accumulated legal costs including instructing solicitors and Counsels fees. The accumulated total of legal costs being £9500 were added in addition to the sum of £1,405 awarded. The Bench retired and on return held that the Summons was valid, Mr Antino’s Award was valid they took note of Mr Antino’s earlier offer to reduce fees and accordingly therefore felt that his fees should be awarded in full plus the additional legal costs in full and the single debt Order was awarded in favour of Mr Antino.