It is very tempting for building owners and adjoining owners under the Party Wall etc. Act 1996 (“the Act”) to commence appeals against awards they think are wrong. The Act gives them the right to do so under section 10(17), and the strict 14-day time limit for such appeals means that owners will quite often issue such appeals without seeking legal advice in advance.
But the Defendant (or “Respondent”) to any such appeal can only ever be the other owner, i.e the adjoining owner if you are the building owner, or the building owner if you are the adjoining owner. It is NEVER appropriate to join the surveyor or surveyors who made the award as Respondent to the appeal.
This is obviously a little counter-intuitive to a non-lawyer. One is, after all, appealing the decision, in the form of an award, of the surveyor(s), and one’s complaint is that the surveyor(s) got that decision wrong. However, an award under the Act operates solely to resolve disputes between the building owner and the adjoining owner – the surveyors are not parties to the award, and therefore have nothing more to do with an award once it has been made. Whichever owner is unhappy with the award must therefore bring an appeal against the other owner if he wants to challenge the decision contained in the award.
The reason I feel the need to make this point is because I have just dealt with my second party wall appeal this year in which the third surveyor who made an award to resolve a dispute between building owner and adjoining owner – i.e. after a referral to him under section 10(11) of the Act – was named as one of the Respondents to the appeal.
In both cases, quite properly, indeed inevitably, the third surveyor applied to the Court to be removed from the proceedings. This turned out to be a very expensive process for the owners who had incorrectly joined the surveyors. They were ordered to pay significant legal costs to the surveyors which they had incurred in extricating themselves from the proceedings.
So please, only make the right people parties to your party wall appeal – keep the surveyors out of it.