Nick Isaac’s argues de minimis works are not notifiable REALLY !!!!!!!
This blog follows on from our earlier blog
This is the second element of these two important party wall cases heard on the 16.03.20
Zaher and Oger-Zaher v Patel (2020) CLCC F20CL100 and
MacLachlan v Patel (2020) CLCC F20CL099
The two cases were before HHJ Richard James Lloyd Roberts is a Circuit Judge, deployed to the South Eastern circuit, based at Central London and Mayors and City of London County Court He was appointed as a Master of the Queen’s Bench Division in 2009 at the Royal Courts of Justice, London, UK
Excavations are de minimis claims Mr. Nicholas Isaac QC mmm well let’s just analyze that statement.
The Defendant (Mr. Patel) was building rear extensions on two separate properties these involved excavating the ground to create a 300 mm thick reinforced concrete slab that would be sitting on a series of cast in situ steel-lined driven piles.
Injunctions were obtained and at the return date hearing on the 16th March 2020 Mr. Isaac claimed that the excavation for the slabs was de minimis because the excavation only went lightly lower than the foundations of a boundary wall built on the line of junction within the ownership of Ms. MacLachlan,
Surprisingly he ignored the paving slabs, patio, and in relation to both ZaherMs. MacLachlan essentially contradicting what he promotes in his book where Mr. Isaac accepts that paving slabs, paths, paviours patios are structures, and any excavation that goes lower than these structures is notifiable under the Act.
Why on earth would Mr. Isaac argue against his own book, well that remains one of life’s great mysteries but it’s not the first time that Philip Antino has successfully caught Mr. Isaac out and quoted Mr. Isaac’s book back to him?
Indeed, in the Mohammed v Antino and Stevens case, he had the audacity to congratulate Mr. Antino before HHJ Bailey (now retired) for successfully quoting his book back at him. The arrogance of it!!!!
In any event, Philip Antino’s opinion in relation to the de minimis claim was that Mr. Isaac was simply wrong in law, for the following reasons; -
1) The Act does not recognize de minimis works, if you excavate below the structure or foundations of an adjoining owner’s property even if it is only for an inch or so, it is notifiable.
2) Excavating for Mr. Patel’s slab required breaking out and the removal of just over 7 tonnes of hardcore, earth, paving slabs, patios, stones, etc. That cannot be de minimis works.
3) It also required the pouring 7 tonnes of reinforced concrete, which cannot be considered de minimis.
4) The slab had to be designed by a structural engineer, any structure requires this level of professional design input cannot by any definition be de minimis.
5) These works were subject to building control approval and inspection, anything that requires building control inspection and approval cannot by definition be de minimis.
On any analysis of the works, it must be correct as suggested by Mr. Philip Antino’s that Mr. Isaac’s submission that these de minimis work and therefore not notifiable under the Act were simply nonsense.
The learned Judge, HHJ Roberts in addressing Mr. Isaac sated: -
“This all seems to be Alice in Wonderland”
“your submission does not attract water, let alone hold it, Mr Isaac”.
“You are clutching at straws Mr. Isaac.”
just about says it all really!!!
A very common-sense analysis of a rather bizarre and erroneous argument which cost Mr. Patel a pretty penny in Costs (£200,000).
The Judge rose to advise that he would be returning about 30 – 45 minutes which his judgment.
Mr. Isaac took his client outside then came in and made several offers to settle.
Whilst there has not been a judgment it is clear that Mr. Isaac’s case was to quote Frazer from Dad’s Army “DOOOOOMED” to failure. This was an amazing result for both David Mayall, Ashley Bean, and Philip Antino and their clients, it was also a fantastic result for the party wall community who can draw comfort that not all that Mr. Isaac suggests is correct in fact far from it.
Rather bizarrely two days after the hearing Mr. Patel then wrote to Philip Antino and tried to encourage him to act for him on his party wall matters. Philip Antino declined.
