Nick Isaac’s hubris gets the better of him and costs his client circa £200,000
Another two important party wall cases heard where Philip Antino Acted for the Claimants on the 16.03.20 before HHJ Roberts CLCC
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 who 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 Queens Bench Division in 2009 at the Royal Courts of Justice, London, UK
In October 2019 Mr. Patel (defendant) started excavations and piling works to two separate properties within the Lockesfield State (on the Isle of Dogs East London) without serving notice under the Party Wall etc. Act 1996.
The works comprised of excavations for a reinforced concrete slab and driven cast-insitu driven piles. The Zaher’s and MacLachlan (“Adjoining Owners”) instructed Philip Antino to provide preliminary advice.
Philip Antino downloaded drawings from the Tower Hamlets planning portal, and noted the extent of the proposed works, and identified notice required under s. 1(5), (3) (2) and s. 2(2), s.6(5) for works under s.6(1) and (2). The drawings also showed an intention to project special foundations on to the Adjoining Owners properties which required written consent under s.7(4) without such would have been unlawful.
Philip Antino emailed Mr Patel requesting an undertaking that he stop all works until party wall matters were completed. The neighbours were advised and instructed Mr. Ashley Bean of Littlestone Cowan Solicitors who also wrote in the same terms requesting an undertaking on both the 19th & 20th October 2019 and having been warned there would be an application for an injunction.
Mr. Patel did not give any undertaking. The two injunctions were obtained on the 21st of October 2019 before HHJ Parfitt.
On the 23rd October 2019 Mr. Patel appointed Mr. Simon Dove MRICS who served s.1(5), (3) (2) and s.2(2), s.6(5) for works under s.6(1) and (2). notices for those works that Philip Antino had identified.
Mr. Dove rather bizarrely stated in his s.1 (6) notice that there was no intention to project special foundations on to the neighbours properties.
On the evidence contained within the engineer’s drawings, it was abundantly clear that there would be a special foundation that projected onto the adjoining owners’ properties. Philip Antino challenged the validity of the notices on several grounds Mr. Dove simply refused to accept he had got everything wrong.
Simon Dove’s excuse was that he had served the notices on a “catch-all basis” and that they were “vague” in order to ensure that they captured everything.
Mr Dove MRICS (NO LESS) appears not to understand the purpose of a notice is to provide accurate information regarding the proposed notifiable works.
Catch-all and Vague simply does not justify poorly written notices.
Mr. Patel instructed solicitors and Mr. Nicholas Isaac QC. Not unsurprisingly Mr. Isaac took exception to the injunctions claiming that they were wrongly obtained because he believed that : -
(i) Driven cast in situ steel-lined piles did not create an excavation and therefore was not notifiable. Because (wait for it) Compressing the soil into the ground to make a void was not the same as digging out the ground and removing it from site therefore not notifiable under section 6 (1);
(ii) The excavations for the reinforced concrete slab were de minimis and therefore not notifiable under the Act.
Not unsurprisingly Philip Antino’s advice to the two sets of claimants remained unchanged and that Mr. Isaac was simply wrong in law and non-sensical.
Mr. David Mayall of lamb Chambers acting for Ms. MacLachlan presented his case to HHJ Roberts.
Mr Salis for the Zaher’s was due to make his submissions after lunch.
When the Judge rose for lunch, Mr. Isaac approached the Zaher’s and settled the claim against Mr. Patel on favorable terms for the Zaher’s. This was a clear indication that Mr. Isaac recognized that his case was a forlorn hope and effectively Mr. Isaac had thrown the towel in.
After lunch Mr. Isaac began his submissions during his attempts to persuade HHJ Roberts in addressing Mr. Isaac made the following candid observations: -
“it’s all very Alice in wonderland Mr. Isaac”
“Your position does not attract water let alone hold it”
“Your clutching at straws Mr. Isaac”
It was quite clear that Mr. Isaac’s rather bizarre and unrealistic interpretation of the Act had not persuaded HHJ Roberts.
Before the hearing, he had asked the Court for a finding of law that his interpretation on driven piles was correct. HHJ Roberts stated, “I am not going to make that ruling because this hearing was a return date hearing for the injunction and not a trial and the ruling would require a full trial”.
HHJ Roberts rose and advise that he would be returning within about 30 – 45 minutes with his judgment.
As soon as HHJ Roberts left the Court Mr. Isaacwas out of the court, faster than a greyhound out of the starting block, taking his client outside then came in and made an offer to settle which was rejected. It was clear Mr. Isaac did not want a Judgment going against him.
Nonetheless, another offer was made by Mr. Isaac, was also rejected. Then another one rejected, then Ms. MacLachlan settled on very favorable terms (£47,000) regrettably as the matter had settled there was no requirement for His Honour Judge Roberts to hand down a judgment.
However, he thanked the parties for making his job easier, he also complimented both Counsel David Mayall of lamb Chambers and the Claimants expert Philip Antino for the claimants (Zaher and MacLachlan).
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 driven cast in situ steel-lined piles are notifiable and more importantly excavations of a reinforced concrete slab are not de minimis.
Rather bizarrely two days after the hearing Mr. Patel then wrote to Philip Antino and congratulated him and then tried to encourage him to act for him on his party wall matters Philip Antino declined.
Then a week later Mr. Dove wrote an email criticizing HHJ Roberts and Nick isaac’s interpretation of what is a structure, more to follow on Mr. Dove.