AN EALING COMEDY
Party-wall procedures are all very well so long as everyone knows what they are doing, and gets on with it properly, writes Sue Lindsey. But when things go awry, the provisions in the Party Wall etc Act are not as clear as they might be. The Court of Appeal has recently picked up the pieces between party-wall owners in Ealing (Zissis v Lukomski 5 April 2006), and given us guidance on how to pursue an appeal against a party-wall award.
The third surveyor made an award that did not deal with the fees of one owner's surveyor, Mr Carter. The third surveyor then declared himself 'incapable of acting'. The Act provides that under such circumstances the owners' surveyors should agree on a new third surveyor. Mr Carter wrote to his opposite number asking for his proposals.
When none were received, Mr Carter made an award alone. He awarded himself £15,000 that he said Mrs Zissis had to pay.
Mrs Zissis did what section 10(17) of the Act told her to if she disagreed with an award, and appealed to the County Court. She did so under Part 8 of the Civil Procedure Rules, a procedure used for starting new claims.
The judge found that Mr Carter's award was invalid, but overall he found against Mrs Zissis because he said the Part 8 procedure was the wrong one to use. He said that Part 52, the appeal procedure, should have been used, because Mrs Zissis was pursuing a statutory appeal in challenging the award.
The Court of Appeal, having been shown three textbooks giving conflicting guidance on whether Part 8 or Part 52 is the correct procedure, seized the chance to make the position clear. The answer is that Part 52 applies to appeals under section 10(17) of the Party Wall Act. Furthermore, the Court clarified that the appeal to the County Court under Part 52 is a rehearing. That means the County Court can hear all the evidence and reach its own decision unconstrained by the findings of the award. (This means that the appeal to the Court of Appeal from the County Court was what is called a second appeal, which is an appeal from a decision made on appeal. ) Of comfort to anyone currently pursuing a party-wall appeal in the County Court under Part 8 (as wrongly recommended by two of three textbooks their Lordships looked at) will be that the Court of Appeal held that the County Court judge should not have dismissed Mrs Zissis' claim because of the incorrect procedure. He should have either allowed an amendment or let the matter continue under Part 52.
There are two likely sequels to this case. First, the parties are going back to the Court of Appeal to deal with whether Mr Carter's award is valid.
Second, Lord Justice Brooke has asked the Deputy Head of Civil Justice to consider whether directions are needed about the level of judge who should hear challenges under the Party Wall Act, and whether more formal guidance is needed as to the appeal procedure under the Act.