Heathcote v Doal (unreported) 31st January 2017, Birmingham County Court
Transcript available at: Heathcote v Doal 31st January 2017 Birmingham County Court (TCC)
Building owner commenced section 6 works without notice; an injunction was made against him on a without notice application, was continued by consent, and a costs order was ultimately made against him on an indemnity basis.
This is a decision of HHJ Grant at the Birmingham County Court. It is not, therefore, binding on other county courts, although as a decision by a specialist circuit judge, it may well be persuasive in other cases at this level.
In November 2016, and without notice, the Doals began excavation works to a reinforced concrete floor slab which appears to have formed a common raft foundation to the building and adjoining owners’ properties. The adjoining owners, disturbed by the use of jackhammers, complained, and, after a site meeting on 8th November, the building owners agreed to serve appropriate notices. A consultant acting on behalf of the building owners purported to serve party wall notices, including section 6(5) notices, on 15th November and 25th November. Both sets of notices were less than perfect, not least in failing to enclose plans and elevations of the intended scope of the excavation, but also in providing descriptions of the intended works which were inconsistent with each other, the actual foundations, and the works which had already been carried out. In the face of various objections to the validity of the notices, the Doals’ surveyor threatened to make section 10(4) appointments and thereafter to serve a section 10(7) request and make an ex parte award. The Heathcotes’ solicitors warned that they would seek an injunction if the Doals refused to accept the existing notices were invalid, and there was no entitlement to proceed towards an ex parte award. No such acceptance/undertaking was forthcoming, and the Heathcotes consequently sought and obtained an injunction without notice on 15th December 2016, which was continued at the return date on 22nd December 2016. By 19th January 2017 the Doals had accepted that the injunction was justified, and the court therefore merely had to decide the issue of costs. It was common ground that the Doals had acted reasonably in the conduct of the proceedings, in particular after 22nd December 2016, but the Heathcotes relied upon intemperate communications from the Doals’ surveyor and his threats of an ex parte award to justify an application for indemnity costs.
The judge decided that the Doals should pay the Heathcotes’ costs of the proceedings, on the indemnity basis until 22nd December 2016, and on the standard basis thereafter. An interim payment on account of costs, of approximately 50% of the headline figure claimed, was also ordered.
Whilst not at all surprising that the building owners were ordered to pay the adjoining owners’ costs of the injunction, there are a couple of somewhat surprising aspects to this decision. First, it is difficult to see how a without notice application for an injunction could really be justified in circumstances where the building owners were not threatening to re-commence works immediately, but only after the making of what they asserted would be a valid ex parte award, which would necessarily have been after both (1) the appointment of a surveyor on behalf of the adjoining owners under section 10(4), and (2) the service and running of a 10-day notice under section 10(7). Secondly, the judge appears to have treated the commencement of notifiable works without service notice under the Act as sufficiently unusual and/or unreasonable to justify the imposition of an indemnity costs order, as opposed to a standard costs order. This is a novel approach, elevating as it would appear to do, breach of the Act above any common law legal wrong. With respect to the judge there is no proper basis for such a conclusion, and this aspect of the decision must therefore be treated with a great deal of circumspection.