Ash v Trimnell-Ritchard 19 November 2020
Andrew Scofield of www.https://schofieldsurveyors.co.uk/entered into an award with Stuart Birrell of www.murraybirrell.co.uk was the third surveyor both FRICS members have justifiably come under considerable scrutiny and scathing criticism ( quite right too)about their Award in Ash v Trimnell-Richard 19 November 2020 that was wholly and substantially overturned on appeal,
HHJ Parfitt noted within the Award that in fact, the Award did not get off to a good start at all
In the introduction at (iv) the surveyors decided it would be a good idea to have a paragraph that starts:
“As a record but not forming part of this determination, the surveyors agree that the adjoining owner has undertaken works to the party wall in connection with which notice in accordance with the provisions of the Act was required and was not served.”
11. That was wholly irrelevant, it was contentious, it should not have been in that award. It did nothing apart from indicate to any reasonable person reading the award that the surveyors were not carrying out their function, or appeared not to be carrying out their functions in a way that would fit their quasi-judicial roles. It is unfortunate that that was there, albeit it can be safely ignored, but it begs the question as to why the surveyors thought it was necessary or appropriate to put such a prejudicial comment in an award. That is not the least problem that this award has.
continuign at para 16
“And obtain their approval of a description of the proposed works and an itemized estimate of cost.”
16. So far from the award determining the right to execute the work which is the subject of the award, and the time and manner of executing that work, what this award purports to do is to authorise investigations on the part of the Respondent, the building owner, and then envisages the preparation of a schedule of works following those investigations, a description of the proposed works, together with an itemised estimate of cost and then the surveyors potentially authorising those works. It is obvious that an award cannot authorise works for which there is no specification or any determination that works might be required.
One of the other problems with the award is that for the Appellant reading it there is a clear but unevidenced and undetermined assumption that he is responsible for the leak. It reads in a way that would give a reasonable reader in the Appellant’s position the impression that it was biased against him and because of that I think that this ground is fairly made out. It looks like it is determining his responsibility for a nuisance. The surveyors have no power to do that.
31. Putting those two bits together, first, they do not go through the gateway and, secondly, that actually it does look like it is trying to determine he is liable for nuisance or, at least, it is going to investigate and we are pretty sure that you are going to be liable but we just give ourselves some backs doors so that potentially if you comply with our self-imposed requirement to give us notice in five days then we might reconsider the position, is grossly unfair. In purporting to assume common law liability without establishing jurisdiction under the Act, the Award is bad and this ground succeeds.
read the whole transcript but clearly these two surveyors got the whole process wrong acted ultra viries and therefore fundamentally did not act in accordance with the Act.