Party walls; costs; litigation costs; threatened injunction; retaining wall; definition of “dispute”

Facts: Group One obtained planning permission to demolish an existing property and develop to semi-detached houses on that plot. To do so it needed to lower the level of the land next to the Keanes’ property, and did so without serving a section 6(5) notice on the Keanes. Towards the end of the build, the Keanes took advice and threatened Group One with an injunction if they did not serve notice for (and subsequentlly construct) a retaining wall to support their property. Subsequently a third surveyor’s award refused to award the Keanes their legal and professional costs relating to the threatened injunction. That award was successfully appealed in the County Court, and Group One subsequently obtained permission to appeal the County Court’s decision in the Court of Appeal.

Decision: Hickinbottom LJ, in giving the leading judgment in the Court of Appeal, applied the decision in Blake v Reeves to the effect that the costs of threatening an injunction were not within the jurisdiction of the surveyors to award under section 10. The Keanes’ attempt to distinguish Blake v Reeves was given short shrift. The judgment discusses the meaning of “dispute” under section 10 of the Act, states that such a dispute “refers to, and only to, a dispute arising under the Act, including a deemed dispute under section 6(5)” and distinguishes these from disputes “deriving from common law or equity”.

Comment: This case is largely a restatement of the decision in Blake v Reeves and so adds little of substance to the existing authorities.

The full transcript of the judgment can be found here.

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