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Shah v Ken Power & Lee Kyson [2022] EWHC 209 (QB) Mr Justice Eyre

Appeal in the High Court of Justice Queens Bench Division in relation to an ex temporejudgment of HHJ Parfitt in a party wall matter.  The Appellants were represented by Mr Nick Isaac QC and Mr. Carl Fain on a direct access basis both of Tanfield Chambers www.tanfieldchambers.co.ukMr Ken Power FRICS www.partywallmatters.co.ukand Mr Lee Kyson AssocRICS www.lkbc.co.ukhad been appointed in a party wall matter when the building owner had not served notice under the Party Wall Act.  Their approach was based on a suspicion that a building notifiable owner had started building works which these two surveyors believed were notifiable and therefore had triggered the Party Wall etc. Act 1996 and the dispute resolution procedures under s.10 applied.

The surveyor’s Award addressed damage alleged to have occurred to the adjoining owner’s property as a consequence of suspected notifiable works being undertaken by the building owners.  In the first appeal, the matter went before HHJ Parfitt who rejected the approach.  The surveyors appealed to the High Court a very bold approach, and perhaps based on misguided confidence in Mr Isaac’s ability as a barrister!

The Honourable Mr Justice Eyre in the introduction to the Appeal with specific inference to paragraph 2 (repeated below) the discreet point that the Appeal will turn on.

 

“The appeal turns on the question of whether a dispute can arise for the purposes of section 10 of the Act in circumstances where works have been performed by a purported building owner who did not serve a notice under the Act; who does not accept the applicability of the Act; and who did not seek to invoke the Act but where the purported adjoining owner contends that the Act applies and seeks to invoke the dispute resolution mechanism provided by section 10 of the Act. Putting it a little more shortly: can the Act be invoked unilaterally so as to apply retrospectively to works already undertaken and in respect of which no notice under the Act has been served?”

The Claimant/Respondent (Shah) was represented by Mr Michael Paget of Cornerstone Barristers www.cornerstonebarristers.comand had maintained throughout, that he had not undertaken any notifiable works under the Party Wall Act.  If correct, the Defendant had no obligation to serve notice in the first instance.

That remained the Claimant/Respondents position throughout.

Mr Kyson for the adjoining owner disagreed and subsequently served a s.10(4) notice and appointed Mr Power.  The two surveyors subsequently determined that there was an amount of £4,223.49 net of VAT payable for compensation to the adjoining owner.

When is the Act invoked?

I have to say that I am amazed at the strategy adopted by Mr Isaac and Mr Fain, their contention before the High Court claimed that even though Party Wall Act notices had not been served, and on the suspicion that there were allegedly notifiable works being undertaken by the Claimant/Respondent that was sufficient for an adjoining owner to invoke the section 10 provisions and appoint a surveyor.

I have been very critical of Mr Isaac in the past about his tactics and strategies, and I have to say his approach is consistent with my previous criticisms and does cause me considerable alarm and concern.

Mr Isaac Q.C. knows or should know that when the Act has not been invoked by a building owner whether an adjoining owner rightly or wrongly believes/consider that there are notifiable works the only legal remedy in order to force compliance with the Party Wall Act is to seek injunctive relief.

Indeed, in Mohamed & Mohamed v Antino & Stevens [2017] County Court at Central London Mr Isaac had the audacity to seek an injunction against the surveyors claiming that there was no dispute, despite the Act having been validly invoked and therefore no jurisdiction to make a determination on costs or damages.

How Mr Isaac could reasonably advise these two surveyors (with any degree of justification) that they had jurisdiction is beyond me!!!

There is a plethora of case law that has demonstrated injunctions for breaches is the only way forward.  Surveyors cannot, even if they are right and there are notifiable works, trigger the Party Wall Act when no notice has been served.

The key to invoking the Party Wall Act can only flow from a notice whether that is under s.1, s.2, s.3 or s.6.  HHJ Parfitt’s earlier judgment was spot on and absolutely correct.

Woodhouse v Consolidated Property Corp (1993) 66P&CR234 is often sighted as the authority for the general proposition that a dispute mechanism under the Act is limited only to the matters defined within the Act (notifiable works) and works that are permitted by the Act because they flow from the service of a notice.  Mr Isaac and Mr Fain should know that in the absence of a notice an injunction is the only remedy for the adjoining owner and so should all party wall surveyors.

Indeed, on the 11th February 2022, on my advice, my clients obtained an injunction against Mr Abdul in Conaghan & Conaghan v Abdul (2022) County Court at Edmonton, for not serving notice and later upheld on the 18.02.22 return date hearing.  The injunction was upheld despite Mr Stuart Frame’s submissions to the contrary.  This approach has successfully been demonstrated by myself on numerous occasions as listed below.  It is misconceived and fatally flawed to manipulate the Act to achieve quite preposterous outcomes with a manifestly absurd interpretation of the Act.  No notice no jurisdiction.

Upheld injunctions

Below is a list of cases where Judges have not let down members of the public and ensuring their rights are protected: -

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

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

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

What is the benefit to Society following the Honourable Mr Justice Eyre’s Judgment

This case is a considerable benefit to the party wall community and property owners. It seems to me that there can be absolutely no doubt that the adjoining owners’ only option when faced with a non-cooperative building owner (who is refusing to adopt the Party Wall Act) that their remedy is to seek injunctive relief.

This High Court decision sends a very clear message to the lower Courts in particular those Judges that have in the past rejected applications for injunctions without any due consideration to the proper interpretation and application of the Act and/or the statutory rights that Parliament intended adjoining owners to have to protect them when notifiable works are unlawfully undertaken.

Rejected injunctions

Below is a list of cases where Judges have let down members of the public and removed their common law rights: -

  1. Takher V Mohammed (2014) County Court at Central London (injunction rejected)

  2. Macey v Capper & Capper (2019) County Court at Central London F20CL063

An example of how matters can go horribly wrong is demonstrated in HHJ Bailey's decision to reject an injunction application depriving the adjoining owners of their rights to the protection of the Act. As consequence, the Takhar family has now been involved in various common law litigation for 7 years, inc. mediation expert determination.

Recently HHJ Parfitt questioned the Mohamed’s tactics (represented by Mr Stuart Frame) in 2021 as to whether the court was being misled by the Mohammed’s strategy in 2017 when in Mohamed & Mohamed v Antino & Stevens [2017] County Court at Central London Mr Isaac said the Act did not apply and then in Mohamed & Lahrie v Takhar & Takhar & Takhar (2021) in the County Court of Central London TCC G20CL122 it was argued that the Act did apply.  Had the Takher injunction been granted as it should have been (HHJ Bailey as he then was, now retired) then both parties would have avoided years of litigation and hundreds of thousands in legal costs.

In my opinion Judges should not take statutory rights away from any party.  Injunctions require the applicants to give undertakings to compensate the other side in the event that it transpires that their grounds for the injunction were wrong.  There was no loss to either the Mohamed’s or Cappers, if the grounds were wrong, they would have been compensated at the return date hearing.

No Notice No jurisdiction

Mr Kyson and Mr Power approach was wrong of that I have no doubt.  I do not suggest that they were wrong to suspect that there were notifiable works taking place, but they should not have adopted their strategy.  The only advice that the surveyor can give an adjoining owner when a building owner is refusing to invoke the Act is to seek an injunction. Nothing else.

What is helpful to the party wall community and indeed those adjoining owners that are subject to unscrupulous, dishonest, abusive building owners who refuse to comply with the law is that there can be absolutely no doubt that when applying to the Court for an injunction, the injunction must be granted in view of Mr Justice Eyre decision which confirms the only option available to the adjoining owner is to injunct.

Any rejection of an injunction for breaches of the Party Wall Act should therefore in my opinion in the future be challenged by way of a Court for Appeal/Judicial Review with reliance upon Mr Justice Eyre.

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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