Philip Antino clarifies HHJ Bailey's representation on certain cases
On 12 November 2020 the retired judge HH Bailey presented a webinar on behalf of the FPWS the subject of which was “The Proper conduct for the Party Wall Surveyor”
This missive was brought to my attention on 21 January 2021. Having now read the contents, I was aghast to note the substantial number of inconsistencies, misleading facts and circumstances in relation to the various cases referred to by HH Bailey. Given that the majority of cases involved myself, not only can I speak with considerable authority on these relevant points, I feel it is incumbent upon me to point out those errors so that the independent reasonably minded observer (reader) is able to form their own opinion as to whether or not the decisions ultimately handed down were in fact based on just and sound administration of the law, or simply non-sensical.
I have inserted my comments in italics. To ensure that the numbered paragraphs are consistent and to make this reply manageable I have removed the narratives to certain paragraphs where I have no comment/observation to make. I have retained paragraph numbering to ensure consistency.
1. No comment necessary
2. No comment necessary
3. No comment necessary
4. No comment necessary
Picking up that last point, the doctrines of waiver and estoppel apply in party wall matters, see Judge Hazel Marshall QC in Manu v Euroview Estates Ltd  1 EGLR 165. Where there are procedural or other irregularities but nevertheless the Building Owner and Adjoining Owner engage constructively in a dispute, then it is possible that the court will find that irregularities have been waived, (a legal point that HH Bailey completely overlooked/ignored in Reeves v Young and Young and Antino)or the Adjoining Owner is estopped from relying on them. However, the doctrines of waiver and estoppel are not always straightforward in practice, and it may not be possible to waive that which was statutorily improper. This is not the place to embark on a consideration of such matters. (I will expand upon this further within my corrections to the position set out herein.)
5. No comment necessary
Consistent with the quasi-judicial nature of the party wall surveyor’s role is the requirement that all appointments and selections must be in writing and shall not be rescinded by either party, s10(2) 1996 Act. (A fundamental point overlooked by HH Bailey in Mohammed v Antino and Stevens)
6. No comment necessary
7. No comment necessary
8. Two significant differences between the position of the party wall surveyor and a judge.
(1) Duty to appointing owner s 10(1)(b)
A significant difference between the party wall surveyor and a judge is that the party wall surveyor is appointed by one or other owner or selected by the owner-appointed surveyors. In this respect, the position of the party wall surveyor is in some respects comparable with an arbitrator. It is open to parties to an arbitration to agree on a sole arbitrator, or each party may appoint an arbitrator. In cases where the parties appoint their own arbitrator, the party-appointed arbitrators must appoint a chairman, or umpire, and ensure an odd number of arbitrators, see s 15 Arbitration Act 1996. In contrast, a judge is not chosen by the parties. But nonetheless, the Judge has a higher duty to act impartially and without bias, irrespective of any relationships that they encourage, enjoy and participate with any parties (Counsel and Organisations) involved in the matter before them.
9. No comment necessary
10. No comment necessary
11. Appointments in writing and shall not be rescinded, s10(2)
Written appointment: This statutory provision is clear enough and is consistent with the quasi-judicial role of the party wall surveyor. (HH Bailey’s statement is inconsistent to his decision in the Mohammed v Antino & Stevens. The owners remained in dispute over the surveyor’s fees, and many other points including damage caused by notifiable work. They rescinded the surveyor’s appointments, substituting them with another surveyor to make a determination on notifiable matters) Given the role of the party wall surveyor in the making of awards, a written appointment is well-advised lest there be an occasion for dispute as to the surveyor’s appointment. Such appointment documents as I have seen, usually in the form of a letter, have been short and to the point. None the worse for that. But all the work necessary to make an award takes time and effort, and the surveyor will expect payment “for the laborer is worthy of his hire” (Luke 10:7). In many instances, party wall surveyors rely on the provisions of s10(12)(c) of the Act which provides that an award may determine “any other matter arising out of or incidental to the dispute including the costs of making the award” in order to get paid. This is fine, provided always that there is an award.
There will however be occasions, hopefully rare, where no award is made (that’s going to depend on whether judges wrongly uphold injunctions that prevent surveyors from making awards on matters which are clearly within their statutory jurisdiction).Might the surveyor who has applied himself for many hours find himself without payment? The answer
It would be open to the surveyor to argue that the court should accept that his appointment by his appointing owner was contractual and that it was an implied term of that contract that the surveyor would be paid even where no award was made. But I would not give any encouragement to the surveyor to rely on such an argument, even where the reasons for there being no award were completely outside the surveyor’s control. (This statement is all the more shocking given the decision in Mohammed v Antino and Stevens, where HH Bailey agreed with the building and adjoining owner strategy. However as will be seen as the you read through these comments, the strategy proved flawed and extremely costly to both the adjoining owner in relation to contractual obligations with myself, the alleged independent expert who awarded Mr Stevens fees against the Mohammeds, and the ongoing costs that the Mohammed and Takhar families are continuing to incur in the ongoing litigation over the disputes which were alleged not to exist)
Contractual terms may only be implied where ‘necessary’, and it is well arguable that it is not necessary to imply a term of payment absent an award. Better for the surveyor to secure his appointing owner’s agreement to written terms of contract which protect the surveyor against such an eventuality. (This is one point I agree with HH Bailey however the Takhar family did not appreciate this and were ultimately drawn into arbitration with myself situation which they lost substantively and found liable for the balance of professional fees owed to Philip Antino. In addition to which they had to pay the arbitrators fees in their entirety, had the party wall matters been allowed to proceed to it’s natural conclusion, I would have been more than happy to accept whatever was awarded by the independent third surveyor) Such terms would have to be carefully drawn, for the surveyor should not seek to put himself in a position to require payment where it is his responsibility that no award has been made, but I see no objection in principle to a surveyor adopting such a course.
12. Rescinding the appointment
. Subject always to the terms of the agreement under which he is appointed, a professional man’s appointment will always be capable of revocation by his employer. But the 1996 Act elevates the party wall surveyor to the role of dispute resolution tribunal. It is plainly inappropriate that an appointing owner be in a position to remove a surveyor for any reasons of the owner’s own. Hence the appointment may not be rescinded.
This is contrary to Mohamed v Antino & Stevens HH Bailey must now accept that his decision in the case referred to above and below was fundamentally wrong. The building and adjoining owners with the assistance of HH Bailey removed both Philip Antino statutory appointment and that Mr Raymond Stevens selection is the third surveyor, which allowed the building and adjoining owners to agree another surveyor to make a determination on those outstanding disputes that they claimed did not exist. Well this strategy has well and truly bitten both the Mohammed’s and the Takher’s in the backside because four years later there still fighting and going to another court case.
13. The position of a party wall surveyor who finds himself side-stepped by the owners was considered in Mohamed and Lahrie v Antino and Stevens (CLCC 12.12.2017)2, a decision to which I refer in paragraph 31 below. The owners there agreed to refer all their existing and (future party wall disputes “existing disputes” therefore it was clearly a rescission of the appointments and selection of the tribunal.)to determination by an independent surveyor, with the result that there ceased to be a ‘dispute’ on which s.10 could bite. The Defendants argued that this agreement between the owners was in effect a rescission of their appointments as party wall surveyors, and was therefore unlawful. In the course of argument counsel for the Claimants relied on a section of the judgment of Akenhead J. in Dillard v F&C Commercial Property Holdings Ltd  EWHC 1219 QB where he stated:
“It is accepted rightly that the parties may contractually opt out of the Act, as the parties have done here in part at least relating to the relief set out in Clauses 7 and 10 of the Deed.”
The Defendants took grave exception to this comment, and they were right to do so. It is plainly wrong. But in the context of the judgment as a whole it is evident that these words should not be taken at their face value. What the parties were doing was not contractually opting out of the Act, but so arranging their affairs that the Act did not apply; ‘contractually opting out of the effect of the Act’ might be another way of putting it, but at the risk of misinterpretation.
HH Bailey’s confirms the owners were “arranging” for the appointment of another surveyor. If there were no disputes why did they need to appoint another surveyor?
This strategy is by any definition a blatant attempt to rescind the surveyors’ appointments and/or selection. It is of notable concern that a Judge with HH Bailey’s experience and knowledge of the Act could not see this for what it was.
Applying the sensible, proper interpretation of the law, HHJ Bailey should have rejected Isaac’s tatics and allowed the surveyors to make an award on the fees. Then the building or adjoining owners could appeal the award, if they felt it was wrong. Granting an injunction to prevent two professionals from completing their statutory duty was a blatant abuse the use of injunctive relief. Why? (1) there were disputes and (2) The parties would have had a right to appeal the award if they felt aggrieved.
14. The third surveyor’s selection is also protected against rescission by s10(2): “All appointments and selections made under this section shall be in writing and shall not be rescinded by either party”. Not according to Bailey in the Mohammed case because Mr Stevens was the third surveyor and HH Bailey facilitated the rescission.
In Reeves v Young, Young and Antino (CLCC 3.01.2017)2 counsel for the Defendants argued that as s.10(2) prohibited the rescission of the selection of the third surveyor ‘by either party’ a third surveyor selection remained open to be rescinded by the owner-appointed surveyors, as the surveyors were not parties. I rejected this argument. Owner-appointed surveyors may not have second thoughts about their selection of the third surveyor.
HH Bailey’s narrative above does not provide the reader with a full understanding of the facts: -
An award was served and relied upon by the building owner to undertake the notifiable works under section 6 (1). The award recorded Philip Antino as the third surveyor. After the completion of notifiable works, the two surveyors threatened to serve an addendum award that would unlawfully grant access for non-notifiable works. The adjoining owner made a referral to the third surveyor named within the award being “Philip Antino,” whose award determined that the surveyors could not make an addendum award for works outside their jurisdiction.
The building owner appealed and represented by Mr Stuart frame, who quite astonishingly openly accepted in its entirety the contents of Philip Antino’s third surveyor findings within his award. However, he suggested the award was invalid because there had been a conversation between the building and adjoining owners’ surveyors (who work for the same firm) that they were discussing selecting Mr Alistair Redler, as the third surveyor. Before committing that selection to write (only having a conversation) they without contacting either Alistair Redler or Philip Antino served the award that undeniably recorded in writing the selection Philip Antino as the third surveyor.
HHJ Bailey ignored all of these facts, and given his narrative in relation to estoppel at para 4 above, it was of shocking concern to the defendants that HH Bailey also ignored the comprehensive and detailed written submissions (which are available to anyone who is interested) of Mr Richard Power Head of Lamb Chambers that the building owner was estopped from arguing that Philip Antino was not the properly selected third surveyor, because she had relied on the very award that named him to be able to undertake her statutory works of excavation
15. No comment necessary.
16. No comment necessary.
17. No comment necessary.
18. No comment necessary.
19. No comment necessary.
20. No comment necessary.
21. No comment necessary.
22. (iii) “Deems himself incapable of acting” is plainly subjective and must surely import more than incapacity, for otherwise, the provision is otiose. The only reasonable interpretation, therefore, is that it is a matter for the individual surveyor to decide, which is consistent with the way in which the 1996 Bill was introduced into the House of Lords: (“the Bill provides for instances where surveyors are unwilling or unable to act”). That at least was my decision in Mills v Savage  EGLR 43 see paragraphs 87 to 107. I do not believe that this decision is controversial, (it most certainly is) at least in that respect, but I may be wrong.
However, HH Bailey decision in Mills was diametrically opposite to his decision in Bibizadeh v Dodosh where counsel for the Bibizadeh submitted, that a surveyor must have justified reasons for deeming himself incapable, to which HH Bailey plainly stated “I entirely agree” It is this inconsistency with the interpretation of the Act that leads to plainly fundamentally wrong judgments. The following link provides further clarity.
23. No comment necessary.
24. Occasionally both owners instruct surveyors from the same firm. If this is as a result of persuasion by the first surveyor instructed it would be difficult to justify. Even where the two appointments are made quite independently a conscientious party wall surveyor should think long and hard before agreeing to act for an owner where a member (employer) of his own firm has already been instructed by the other owner. (‘Long and hard’ incidentally is my way of saying “don’t, unless there are very compelling circumstances to lead you to do so.) In this connection a reading of the judgment in Reeves v Young, Young, and Antino CLCC (03.01.2017)5 (yes indeed - another one of mine) might be of interest. Both surveyors came from the same firm, there was uncertainty as to whether a letter informing one of the owners of the appointment of Mr Alastair Redler as third surveyor was sent, and it appeared that all the work required of the two owner-appointed surveyors was in fact being carried out by a single employee of the firm. In some mysterious manner (at least to the court) Mr Redler was replaced by the Third Defendant and there was trouble over fees (not over the selection). The end result was an expensive CPR Part 7 claim to the county court. Arranging for the work of the Party Wall Surveyor to be conducted by an employee of the Surveyor’s firm is perfectly acceptable, provided of course the employee has the necessary competence, but if only one employee does the work of both surveyors that must surely be unsatisfactory. If the owners wanted an agreed surveyor, they could have agreed to appoint one. Incidentally, it is clear (I suggest) that the Award should be written by the appointed party wall surveyors or, at the very least, read and approved by the party wall surveyors. Award writing is the one area of the party wall surveyor’s work that should not be delegated.
The following link sets out the facts clearly and comprehensively
25. See paragraph 22
26. No comment necessary.
27. No comment necessary.
28. No comment necessary.
29. No comment necessary.
30. The award must also be in respect of matters in dispute between the owners. In Mohamed and Lahrie v Antino and Stevens (CLCC 12.12.17) both owners (incorrect it was only the building owner not the adjoining owner) became so exasperated at the number and cost of party wall awards (two in total) made by the party wall surveyors that they held a mediation in which they entered into an agreement by which they agreed to refer all existing and any future disputes to the determination of an Agreed Surveyor. Incidentally, these disputes included any dispute as to what reasonable fees should be paid to three of the party wall surveyors involved. It was plain that the aim of the agreement was to take away from the party wall surveyors (which to any reasonably informed observer is by definition a rescission of the appointment contrary to HH Bailey at paragraph 11 above IGNORES his clear advice!!) and the court any involvement in or jurisdiction over both existing and future disputes. The agreement was embodied in a consent order which was approved by the court.
This case had a disastrous outcome for Mr. Hearsum, Mohammed’s solicitor, and Mr Redler
31. This did not go down at all well with two of the surveyors concerned. They maintained that the consent order (the surveyors had no say in the consent order)was an improper way of rescinding their appointment and selection contrary to s10(2) of the Act. They threatened to make further awards and the owners (incorrect it was only the Building owner)sought an injunction to restrain them. Before the court, the surveyors argued that they remained appointed/selected and could continue to make awards. It was plain to the court (myself) that the consent order did not seek to rescind the appointment and selection. I leave it to the reasonably minded independent observer to understand exactly what this is!There was no breach of s10(2). Any reasonably minded independent observer could see this for what it was, unfortunately, HH Bailey could not or just simply did not want to. What the mechanism embodied in the consent order did do was resolve all the various disputes between the owners to which the Act did or would apply, both existing and future, albeit by referring the issues arising in any dispute to a single expert for determination. (It remains of notable concern that HHJ Bailey still cannot recognise a recission) There was, therefore, no dispute (see Para 13 above the BO and AO were clearly in dispute as to who was liable for the surveyor’s fees) remaining (section 10 (13)) under the Act in respect of which the surveyors could make an award (YES THERE WAS). Accordingly, I made a declaration that the Defendants had no standing to make any further awards, and an injunction restraining the making of any such awards. The distinction between the dispute resolution procedure under the Act not applying because there were no disputes (that is not correct the parties agreed to the appointment of an independent surveyor to resolve the disputes, common sense would dictate that if there were no disputes then why did they have to appoint an independent surveyor) and the parties contracting out of the Act was not one which appealed to the Defendants!
Ultimately, this strategy proved disastrous for the Mohammed’s with the independent expert making his ruling, (covered by confidentiality. Five years later the BO and AO are locked in litigation, the Mohammed’s are now appealing that decision (which is another dispute about the dispute that HH Bailey said did not exist, really!!!!) and it will ultimately come within the public domain and be open to all to recognise that moving away from the party wall Act is not the sensible approach. Ironically, as HHJ Bailey suggested at paragraph 31 they wanted to move away from the courts!
Well clearly, they did not work at they’re back in court now on an appeal. The adjoining owners bitterly regret having been persuaded to go down this flawed and ridiculous route. Years on there still in litigation resolving the disputes that HHJ Bailey claims did not exist.
I leave it to the reasonably minded independent observer to form their own opinion as to the logic and reasonableness of HHJ Bailey’s decisions.
33-78 No comments necessary.
79 Service of the Award
The facts discussed under ‘The Service Issue’ paragraphs 108 to 116 in
Mills v Savage gave rise to real concern, and are and will remain, I trust, unique.
One would hope that another judge would not be so easily duped by a building owner (represented by Mr. Stuart frame) who simply claimed ‘we did not receive the award’ to avoid the implications of the Award. I leave it to the reasonably minded observer to form their own opinion as to the legitimacy of the building owner’s claim, especially when there are certificates of postings, and it was of notable concern given that every other party that were served an award received it!!!!!!
The interested reader might want to follow this link.
80 No comment necessary
Edward Bailey’s commentary i
Philip Antino commentary in italics 15.02.21
I leave it to the reasonably minded independent observer to form their own opinion as to the logic and reasonableness of HHJ Baileys decisions