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.