Mills v Savage (Unreported, 15th June 2016) Central London County Court
Transcript available from: Mills v Savage CLCC 15th June 2016
This was a hearing of three preliminary issues in relation to three separate party wall appeals brought by the Mills against one third surveyor’s award, and two awards made jointly by the adjoining owner’s surveyor and the third surveyor. The issues were (1) validity of a surveyor’s resignation, (2) service of awards, and (3) whether there had been procedural irregularity in the two joint awards. The Court found in favour of the Appellants on all points, which has the effect of allowing two of the three appeals.
This is a decision of HHJ Bailey at the Central London County Court. It is not, therefore, binding on other county courts, although as a decision by an experienced and specialist circuit judge, it is likely to be persuasive in other cases at this level. The writer understands that the Respondents are intending to seek (or may already have sought) permission to appeal to the Court of Appeal.
The Mills commenced works, including notifiable works to their property, and an injunction was obtained against them by the Sells. The Mills served party wall notices on the Sells and Savages in July 2014, who both appointed Mr Antino to act for them. A third surveyor was selected. By October 2014 the Mills had decided to alter their plans so as to avoid any (further) notifiable works being done. Thereafter the judge described that “a most extraordinary dispute raged… over a range of issues, but principally over Mr Antino’s fees”. The Mills’ first surveyor, Mr Hopkins, declared himself incapable of acting and was initially replaced, albeit in a capacity less than completely clear, by Mrs Mills’ father, Mr O’Callaghan. The Mills then sold their property to Mr O’Callaghan, who himself then appointed Mr Harry as the new surveyor. Mr Dawson, the first third surveyor, also declared himself incapable of acting, and Mr Taylor was selected as his replacement by the appointing officer, albeit in circumstances which were themselves challenged. Mr Taylor made a section 10(11) award in July 2015 apparently determining that Mr Harry was not validly appointed because his letter of appointment did not include the Mills’ current residential address. Subsequently, on 1st October 2015, Mr Taylor and Mr Antino made two section 10(10) awards, one each in favour of the Sells and the Savages, in which they awarded that the payments be made to each of the sets of adjoining owners, in the sum of £43,154.53 and £12,831.53 respectively, apparently plus 5% interest in each case. All three awards were appealed, and three preliminary issues were set down to be heard by the Court.
The judge found for the Appellants on all three preliminary issues, holding that (1) a party wall surveyor was entitled to declare himself incapable of acting for whatever reasons he thought fit, regardless of actual incapacity, and it was no business of the other appointed/selected surveyors to police that declaration; (2) the two jointly-made awards had not been served until a date more than three weeks after the date of service claimed by the Respondents; and (3) there was a procedural irregularity in the making of those two awards, primarily the demanding of a large sum of money as a condition of being permitted to make submissions to the third surveyor, which rendered them invalid. The effect of the judgment is that two of the appeals have succeeded, whilst the third remains unresolved pending a further substantive hearing.
Given the stated intention to appeal, one should be wary of drawing too many conclusions from this judgment, but on the face of it, the principles set out in it appear to be sound. First, it is unsurprising that the Court should conclude that surveyors are entitled to declare themselves incapable of acting for whatever reason they think fit, and without being cross-questioned about it, and the judge has produced a detailed analytical basis for reaching that conclusion. Secondly, while it may have been a completely factual issue in this case, one wonders whether the recent amendment to the service provisions under section 15 might have encouraged a more constructive approach to service being taken if the same facts presented themselves again. Finally, the judge makes some interesting comments (primarily in paragraphs 126 to 128 of the judgment) about what he considers the normal and proper approach to the relationship between the three surveyors should be, in particular noting that while it might be perfectly acceptable for the owner-appointed surveyors to make an award without involving the third surveyor, it is a different matter when one of the owner-appointed surveyors makes an award with the third surveyor “behind the back” of the other owner-appointed surveyor. However, the judge is also careful to note that all cases must be judged on their merits, leaving the possibility for such awards to be justified in the right circumstances. This might, for example, include obstructive behaviour on the part of one of the owner-appointed surveyors.