Alistair Redler FRICS Senior partner at Delva Patman

Alistair Redler FRICS – Manor Road Senior Partner Delva Patman

During the past 20 years since the Act was invoked, it has been somewhat surprising that my path did not cross with Mr. Alistair Redler (Delva Patman Redler) in either a professional or social capacity until late 2014. Yet since that first meeting our paths have crossed on three separate party wall matters being Bibizadeh v Dodosh, Mohamed v Takhar, and Hart v Spencer.

First experience

In Bibizadeh v Dodosh Mr. Redler was purported to have been appointed by the Bibizadeh’s as their party wall surveyor. Despite the fact that a s.10(4) notice had been validly served upon the Bibizadeh’s and their refusal to appoint a surveyor, (perhaps driven by the misconceived contention of their solicitors) as noted in para 38 of the judgement “my clients are not prepared to give the undertakings you seek, nor serve a new notice, nor appoint a party wall surveyor”. It should come as no surprise to anyone that I executed the statutory procedures and appointed a surveyor on their behalf.

As HHJ Bailey observes in his Judgment, they were content with this arrangement and the replacement surveyor engaged with them and Mr. Antino in order to move matters forward. Then we received a document purporting to be a letter of appointment for Mr. Redler signed, dated after the appointment of the s.10(4) surveyor. The Bibizadehs and Indeed Mr. Redler were made aware again of the s10(4) appointment.

Undeterred, the Bibizadeh’s maintained that Mr. Redler was their surveyor and did not engage with the replacement surveyor. Those of you that are familiar with the statutory procedures would know that Mr. Redler did not have any statutory position as he did not form part of the Tribunal.

Not unsurprisingly, the matter ended up in Court and before HHJ Bailey, where it required the Learned Judge to state at para 79, “Mr. Stevens appointment was valid”. Thus Mr. Redler appointment was invalid.

In December 2014 I joined with the s.10(4) surveyor and produced an Award, that Award was subsequently appealed, the appeal failed and the Bibizadeh’s were exposed to considerable legal costs of many thousands of pounds.

Second experience

My next experience of Mr. Redler was just over a year later in the Mohamed v Takhar matter, where the Mohamed’s had appointed Mr. Michael Osborn as the building owner’s surveyor and I had been appointed as the adjoining owner’s surveyor. The third surveyor was jointly selected and the tribunal completed. There were significant technical defects in the building owners design of a basement construction of epic proportions, but nonetheless with skillful assistance of the adjoining owner’s engineers, the building owner’s engineers were able to be directed and advised as to what would be structurally stable and acceptable.

Mr. Osborn could not or more appropriately would not proactively engage with Mr. Antino to agree his fees. Despite Mr. Osborn’s reluctance, Mr. Antino had suggested and indeed encouraged Mr. Osborn to at least sign and serve the Parent Award absent of any fees so that the building owners could commence their works.

Then up pops Mr. Redler’s name when the building owner sent an email stating that he had instructed Mr. Redler, now those of you that are familiar with the Act understand the principle of s.10(2). A letter of appointment claiming Mr. Redler was now the building owner’s surveyor was produced. The only circumstances that could allow Mr. Redler to be appointed was for Mr. Osborn to deem himself incapable under s.10(5), which of course he had not done so at the time that the Building owners email was circulated claiming to have appointed Mr. Redler. Mr. Osbourn was plainly not incapacitated.

Surprisingly, that is exactly what Mr. Osborn did on the day after Mr. Redler’s letter of appointment was dated and signed by the building owner. WHAT A COINCIDENCE THE BUILDING OWNER WAS ABLE TO PREDICT AN ALLEGED INCAPACITY OR WAS HE !!!!!!

It occurred to me that Mr. Osborn’s purported incapacity was not based on genuine grounds, and a request for an explanation regarding the mysterious incapacity was requested. Mr. Osborn was reluctant to give any indication of what the purported incapacity was.

Interestingly in the Bibizadeh case HHJ Bailey At para 78 “plainly the formalities of the Act have to be complied with, and complied with strictly”. At para 84 Judge Bailey continues “it is agreed at the Bar, and certainly it is my view, that the expression becomes or deems himself incapable of acting is to be interpreted more widely than referring to an incapability by way of physical or mental disability but there is no guidance in the Act as to what constitutes incapability for the purpose of s.10(5)”.

Whilst it is not a requirement that private and personal information is disclosed, it is reasonable that an explanation should be given, i.e. retirement, moving away from the area etc.

Again, with reference to the Bibizadeh case in which Mr. Redler was held not to be validly appointed, Counsel for the Bibizadeh’s gave an explanation as to what would be the grounds for a deemed incapacity.

At para 85 Judge Bailey records “Miss Holmes submits that for a surveyor to deem himself incapable of acting does require a proper basis”, HHJ Bailey response is “I entirely agree…..” It was therefore not unreasonable of Mr. Antino to make enquiries as to the reasonable conduct and grounds for Mr. Osborn’s purported incapacity. Mr. Antino was quite justified in being cynical of this purported incapacity, the timing of the purported appointment of Mr. Redler. in litigation were The Mohamed’s were represented by Mr. Nicholas Isaac of Counsel in his book at para 7-24 “appointments shall not be rescinded observe the parties cannot rescind appointments under s.10 is regularly a source of dismay to appointing owners who, for whatever reason, have fallen out with their surveyors. However, it is clear that appointments (and selections) under s.10 are indeed irrevocable …..”

Against this background it is difficult to understand why Mr. Redler believed he was validly appointed

It is notable that with some reluctance by email dated 23.09.15 at 10:46 that Mr. Mike Osborn wrote “with reference to previous correspondence there is no obligation to give any reason to deeming myself incapable of acting. Notwithstanding this and to obviate any further unnecessary correspondence I set out my reasons below.”

“I am out of the country from the 30th of this month for three weeks and on my return, I will have to go to Spain to finalize some medical treatment. In addition, my wife will be having major operation before Christmas. In the run up to Christmas I shall therefore be out of circulation for approximately 7 -8 weeks”.

The important point here to note is that by Mr. Osborn’s own hand his incapacity did not bite until the 30th September “I am out of the country from the 30th of this month….” Mr. Antino accepted this as a genuine ground to deem oneself incapable of acting,

However, Mr. Osborn’s was available to carry on with his statutory duties for a further 7 days, Mr. Antino served a request under s.10(6) dated 23.09.15 stating “I am sympathetic to your situation; however, you have been and remain available to continue with your statutory duties at the present time. Accordingly, I now request you join with me and reach agreement of my fees which for the avoidance of doubt are as follows….”

It is perhaps somewhat bizarre to note that the deemed incapacity was first notified and served on 07.09.15 by Mr. Osborn some 23 days before his intended departure for Spain without some coincidence actually 1 day prior to the purported appointment of Mr. Redler dated the 08.09.15 by the Mohamed’s.

It is clear to see that Mr. Osborn had sufficient time to deal with the outstanding matters but chose not to. A full explanation of that has never been given by Mr. Osborn. Ironically, and without any coincidence on the 23.09.15 an email from Mr. Redler was received at 12:27 in the following terms:

“Dear Mr. Antino, I note your letter and continue to disagree with you. You will now have received an email from Mike Osborn giving his reasons for standing down, so I hope that you will now accept that. At that point, do write to me as the appointed surveyor.”

Mr. Antino responded by email on the 23.09.15 at 15:20 in the following terms: “Dear Mr. Redler, in response to your email of today at 12:27 I do not agree with your contention and further I do not accept that Mr. Osborn has satisfied the grounds under s.10(5) and therefore remains the validly appointed surveyor for your clients the building owners.” (emphasis added).

Mr. Antino received a bounce back email from Mr. Redler at 23:09.15 at 15:21, which advised in the following terms: “I am out of the office until Wednesday 30th September but will be picking up emails intermittently. If matters were urgent please contact my office on 020 7936 3668.”

So here we have Mr. Osborn deeming himself incapable some 23 days prior to the alleged/purported incapacity biting on the 30th September, and ironically Mr. Redler was himself by virtue of his email of 23.09.15 at 15:21 also incapable of acting until 30.09.15.

Mr. Antino proceeded in accordance with the s.10(6) request and prepared and served an ex-parte Award dealing with those costs. The Award was not appealed, but a claim by the building owners that they did not receive the Award was made. An alarmingly similarity with the defense put forward by Mr. Frame in the Mills v Sell and Mills v Savage cases. Unfortunately, the Mohamed appeal has never been heard because, (and this will be dealt with in a further substantive blog), the building owners and adjoining owners entered into mediation to resolve outstanding matters.

Those matters which do have a relevance to this blog were discussed in open court on 14.11.17 and 19.12.17 and are now in the public domain and not covered by any non-disclosure clause. At a hearing on the 14.11.17. Mr. Antino expressed in clear terms his concern about the behavior of Mr. Redler who made an untrue statement about the existence of certain drawings, method statements etc. It was later discovered that that in fact did exist. That led to an adjudication where Mr. Daniel Getty of Hardwicke chambers determined that the information requested by Mr. Antino from Mr. Redler should have been disclosed under the terms of the Osbourne/Antino award and determined that the Mohammed’s should pay the takhers £50,000 compensation plus costs.

At the hearing of 14.11.17 Mr. Antino acting as Counsel raised his concern about the purported appointment of Mr. Redler and whether there were substantial grounds and evidence proving that Mr. Osborn was in fact not incapacitated until the 30th September.

In HHJ Bailey’s Judgement (Mohamed v Antino & Takhar 2017) Judge Bailey records in his judgement at paragraph 4 “shortly thereafter, on 09.09.15, Mr. Osborn declared himself incapable of acting, and the building owners appointed Mr. Redler in his place. Whether Mr. Redler’s appointment as the building owner’s surveyor was effective from 09.09.15, when it was made, or from 30.09.15, as Mr. Antino (with some justification) ………………….”

Plainly even though that particular issue was not a matter in relation to the Mohamed v Antino & Stevens case, HHJ Bailey felt it appropriate to make the observation that Mr. Antino’s concerns were justified.

So, in a nutshell this was now the second time that there were justified grounds to confirm that Mr. Redler was not the appointed surveyor as purported to be. Given Mr. Redler’s reputation, it is difficult to understand how a professional of his experience knowledge and involvement with the Party Wall Act could not understand the basic principles which must be fundamental to the proper appointment of a tribunal of surveyors.

It is also important to note that immediately on the 30.09.15, Mr. Antino was prepared to and in fact did engage with Mr. Redler with further outstanding party wall matters. It is disappointing but important to note that the administration of the party wall matters following the Parent Award agreed and served by Mr. Antino and Mr. Osborn in the first instance were not adhered to and this led to considerable issues and concerns which caused circa £225,000 of damage to the adjoining owners property of which Mr. Redler assisted with a QS calculated the value to be £2,000.

Third experience of Mr. Redler

It is against the aforementioned background that in 2017 Mr Redler’s path crossed for the third (hopefully the final) time in a party wall matter. A In this case (Hart v Spencer) Mr Antino was the adjoining owner’s surveyor for Mrs. Hart, a Mr Johnson was the surveyor for the building owner.

The property was located in Loughton, Essex, Mr Johnson is located in Chester. A third surveyor selection was never reached and a referral by Mr Johnson to the local authority was made and yes you guessed it, Mr Redler was selected.

One would have thought against the aforementioned background of Bibizadeh and the Mohamed cases, that Mr Redler might have decided that accepting this selection could create tensions and concerns with a perceived conflict of interest, undeterred he indeed accepted the selection.

Prior to any Award being in place the building owner commenced his notifiable excavations, Mr Antino was called out to record the evidence so that an injunction could be obtained. During that inspection Mr Spencer assaulted Mr Antino causing damage for which he was arrested. Mr. Spencer admitted the charge of criminal damage and received a police caution and ordered to pay damages.

Mr Redler then subsequently having been approached by Mr Johnson took fees directly from the building owner and had a site meeting. Mr Redler had notified Mr Antino by email, despite the fact that Mr Antino had expressly rejected as was his right, electronic communications as a means of service of documents etc. It is difficult to understand Mr. Redler’s approach given his position in the P&T and the current addition of the green book which recognizes the legal rights not to exchange documents by email. Perhaps, Mr. Redler’s had a reason for only giving notification of the meeting within 24 hours, but t none has ever been given. however, clearly this is another irregularity that raises concern with Mr. Redler’s conduct and application of the Act.

The discussion at that meeting was never disclosed by way of any handwritten notes by Mr Redler, he appeared to be engaging directly with the building owner and his surveyor and again it is therefore not surprising that Mr Antino has some reservations regarding the administration of statutory procedures.

Conclusion

There are a number of consistencies and similarities between the Bibizadeh’s, Mohamed’s and Spencer’s, the building owners had all breached the party wall procedures in one way or another, they sought to then antagonize and complicate matters by simply refusing to adhere to the party wall procedures.

Unfortunately, the building owners simply proceeded to abuse the statutory legislation to the effect that the Act is now in Mr Antino’s opinion, becoming an unworkable piece of legislation, and it exposes adjoining owners to abuse, trespass, damage, financial exposure the likes of which should never ever occur.