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Capper, M (1) and Capper, R (2) v Macey, B (1) & Antino, P. (2) – (2021) The County Court at Central London H20CL135.

The law is a precise instrument and therefore accuracy is necessary to avoid any challenges on technical errors. This case relates to a party wall matter and is therefore important to those surveyors and practitioners who operate within this field.

This case is also related to an earlier situation

http://apaproperty.com/blog/2020/4/13/insurer-accept-rics-members-party-wall-surveyors-liability

Specifically, this case relates to an appeal of a Third Surveyor’s Award by the Building Owners (Mr. & Mrs. Capper). 

Although the issues have yet to be heard, this blog focusses on the importance of ensuring that the Appellants and/or their legal advisers follow the correct procedures to ensure the validity of the s.10(17) appeal process under the Party Wall etc. Act 1996.

Why? well s.10(17) imposes a strict 14-day window to file the appeal, miss it and/or get the procedure wrong and the applicant cannot rectify the error within the 14-day period they lose the right to appeal as held in Zissis v Lukomski & Carter [2006] EWCA Civ 341.

In this case the Claimants instructed Mr. Stuart Frame, Junior Counsel at Tanfield Chambers www.tanfieldchambers.co.uk to prepare the grounds of appeal. 

Upon being notified by the first Respondent (Mr. Macey) that Dr. Antino had been recorded in the appeal, enquiries were made and legal advice taken.

It was indeed established that Mr. Frame had included Dr. Philip Antino as second Respondent when drafting the grounds of appeal, furthermore he had included a note that Dr. Antino was to be served with the Appeal papers.

There were two serious (if not obvious) errors with this approach. Firstly, the mistake was to incorporate Dr. Antino as a second Respondent when in fact the Award had nothing to do with Dr. Antino and secondly, Dr. Antino was not served with any appeal documents.

Why Dr. Antino had been named as the second Respondent is unclear but obviously a serious error. 

Dr. Antino brought the serious error to the Claimants attention. Mr & Mrs Capper were invited to discontinuing the Appeal against Dr. Antino as the second Respondent. Any Appeal should be between the Building Owners, Adjoining Owner and the Third Surveyor. 

Dr. Antino’s involvement in the referral to the Third surveyor was in the role as the Adjoining Owners Surveyor, and had successfully represented Mr. Macey. The Third Surveyor finding all points of the referral in favour of the adjoining owner.

The legal position when a party discontinues an action against a party, is that the party has to pay the other sides costs.  Dr. Antino was fully aware that he should not have been included as a Respondent and took immediate legal advice.

The Capper’s excuse for naming Dr. Antino was allegedly to protect themselves against costs.  Well, that is simply wrong in Law.  The Award is a document made by the Third Surveyor for the benefit of the Building and Adjoining Owners not the surveyors.

It is trite law that third parties cannot erroneously be named in legal procedures.

Even though the third had determined that the Building Owners had to pay the Adjoining Owners the costs of his surveyor (which have been paid in full by the Adjoining Owner) the Award determines the dispute between the owners and is not related to the surveyors.

Nominal legal costs were incurred of £480 but would soon escalate if Dr. Antino had to make an application to the Court to remove him as 2nd Respondent.

The Claimants sensibly accepted that they had got the procedures wrong and accepted liability for those costs and then signed a discontinuance order for the Court.

It was the sensible and legally correct thing to do, so the moral of this blog is to make sure that your legal team get the procedures correct or they could expose their client to considerable costs.

Judges Comments and Opinions regarding Dr. Antino

  • The party wall world is relatively small, the stage of this world contains a number of well-known players, Mr Antino is one of these well-known players and so are his owners instructing solicitor Mr Ashley Bean of Thirsk Winton

    HHJ Bailey - [2016]
  • The Claimants have a very experienced legal team comprising Mr David Mayall of lambchambers & Mr Ashley Bean of thirsK winton and their surveyro Dr. Philip Antino. The evidence in particular of the Defendant’s plans for both the Accessway and the plans and how it impacted upon the Claimants business was important information that The Defendants ahd not provided when requested.

    HHJ Freedland QC - [2021]
  • "Mr Antino is a palpable witness, Mr Antino's explanation of the unique attributes of the "Thompson Plan" greatly assisted the Court to understand the location and extent of the claimants’ boundaries” (Best & Best v Perkins & Dennis in the County Court at Luton).

    HHJ Hildyard - [2015]
  • The appeal was a preliminary hearing of two points in respect of an Award served by Mr Antino and a surveyor appointed by Mr Antino under s.10(4) on behalf of the Building Owners the Appellants. HHJ Luba QC sitting in the Central London County Court held "In my judgment the Award is valid, the use of s.10(4) was the appropriate procedure given the Building Owners refusal to appoint a surveyor. A dispute had arisen that satisfied s.10 procedures, The Award is an impressive piece of work". Schmid v Hulls and Athananasou).

    HHJ Luba QC - [2016]
  • “Mr Antino is an acknowledged expert in the field of party wall issues.”

    HHJ Murfitt QC 2013 - [2015]
  • “I have known Philip for many years as a surveyor, he is a very good surveyor, as this book shows he is a very good author and this book can only advance his reputation”

    HHJ Philip Bartle QC - [2012]
  • “In the appeal of an ex-parte Award served by Mr Antino on behalf of the respondents, in my judgment the respondent is correct. Mr Antino’s contention that it is not a matter for negotiation directly between one surveyor and the other surveyor’s client. Since I have determined that the ex-parte Award was valid the court is still able to determine the Award and under the statutory powers to modify the Award if appropriate. I am grateful to Mr Antino suggesting that I now determine the Award issue “I accept that Mr Antino’s hourly rate is not in my judgment unreasonable. It follows that the fee set out in the ex-parte Award had been properly justified and I therefore award Mr Antino’s fees”. (Bansal v Myers Romford County Court).

    HHJ Platt - [2007]

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