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Injunctions for breach of party wall act 1996: the only legal option

Conaghan & Conaghan v Abdul (2022) Edmonton County Court “return date hearing”

This follows the ex-parte injunction of the 11.02.22 Mr Abdul (the Defendant) instructed Mr Stuart Frame junior counsel of Tanfield Chambers www.tanfieldchambers.co.ukto argue that the injunction was wrong, excessive and should be lifted.

The return date hearing on the 18.02.22 at Edmonton County Court, Ms Antonia Halker of Lamb Chambers www.lambchambers.co.ukwas appointed by the Claimants (Conaghan).

The circumstances in relation to this injunction flows very neatly on from my blog on the Shah v Kyson and Power case insofar as when a building owner breaches the Party Wall Act and/or creates a trespass the only remedy available to the adjoining owner is to seek injunctive relief.  This legal remedy has been successfully adopted on numerous occasions by my clients, as listed below.

1. Dodosh v Bibizadeh & Bibizadeh [2014] County Court at Central London.

2. Franco Rusciani v Kamal Kumar and Rajesh Sharma (2012) Chelmsford County Court.

3. Hart v Spencer (2017) County Court at Romford.

4. Peter J Edmond v Nicholas Bartholomew Denham & Helen Julie Seekings-    Denham (2021) H00PE335

5. MacLachlan v Patel (2019) - County Court at Central London HHJ Luba

6. Mills & Mills v Savage & Savage [2016] County Court at Central London

7. Takhar V Mohammed (2014) County Court at Central London (inunction rejected)

8. Zaher & Zaher v Patel (2019) - County Court at Central London HHJ Luba

9. Conaghan & Conaghan v Abdul (2022) County Court at Edmonton

Stuart Frame’s grounds for contesting the injunction were based on frighteningly similar terms to his arguments in the 2021 Edmonds v Denham & Seekings Denham case in the Peterborough Court [insert link here] which resulted in an injunction.

Mr Abdul the building owner had admitted in his witness statement that he had committed a trespass, and that he had breached the Party Wall Act.  There is also a video recording where Mr Abdul rather denies his identity to Dr. Antino when questioned and then says “we will not stop unless you get an injunction.”

Mr Abdul and Mr Frame could hardly be surprised that the adjoining owners exercised their legal right to stop the works by obtaining an ex-parte injunction.

Returning to Mr Frame’s grounds these are in bullet form as follows: -

1) The trespass has been overegged.

2) The trespass is de minimus.

3) The breaches of the Act are de minimus.

4) The remedy is damages not injunctive relief.

5) Mr. Abdul can build his own structure alongside the Claimants wall and they cannot do anything about it.

Therefore, on that basis Stuart Frame asked for the injunction to be lifted.

Ms Antonia Halker responded: -

(1)   A trespass is a trespass there is no defence in law and you cannot simply say “well we have trespassed onto your land and here is some money”.  A trespass has to be removed.

(2)   The Defendant had refused to stop works and engage with the Party Wall Act, and that was the only legitimate legal remedy available to the Claimants.  The Defendant has made assertions that there were previous structures enclosed on the Claimants wall but had not given disclosure of any evidence to support that position

(3)   Historical Google photographs show that there was no structure up to June 2019so there are questions that need to be fully pleaded.

Deputy District Judge rejected Mr Frames position and held that the injunction should stay in place in terms as set out at the ex-parte injunction hearing.

Mr Stuart Frame argued that would effectively stop the Defendant doing other building works such as putting electric cables into the roof joists and that therefore that should be excluded.

Mr Frame argued that the Court is not the correct remedy and that the parties should go to ADR, perhaps mediation and that would be the correct approach.  Ms Halker countered and submitted that at this stage there is simply too many unknown facts, lack of disclosure etc. for anything to be taken to ADR.

The Judge agreed with Ms Halker.  The injunction remains in place, costs are reserved.

If only the building owner had complied with the Act the costs/delays would have been avoided.

We at APA Property are proud to have been supporting the Royal Regiment of Fusiliers for the past 10 years, leading to us becoming a recorded friend of the regiment .

Our continued support has been recognised as we have been recorded as friends of the regiment in 2021 , 2022 and 2023.

Judges Comments and Opinions regarding Dr. Antino

  • Miss Recorder Rowlands H01CL719 in Moore v Ahmed 2023

    I accept Mr Antino's (as he then was) evidence that Mr Tugby had sought instructions form Dr Ahmed as to the lien of the boundary.

    Dr Antino - Managing Director
  • 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]

During 2024 and 2023 we supported the Regiment of Support Services by assisting British World War II veterans to visit the annual Normandy Memorial Service in France .

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