Party walls; enforcement of awards; Magistrates; Construction of award; whether award conclusive under section 10(16)
Summary: An attempt to enforce payment of section 7(2) compensation provided for in an award failed on appeal, when the court held that the award constituted a determination of quantum but did not constitute a determination of liability/ causation.
Facts: Notifiable works by the Subramaniams as building owners caused damage to the Stewarts’ property, as adjoining owners. The appointed surveyors agreed in principle the extent of such damage and most of the costs of repair, but could not agree whether the building owner was obliged to pay for the cost of replacing a fitted kitchen, in circumstances where the kitchen would have to be removed to level the kitchen floor. The third surveyor made an award determining that the appropriate figure for compensation was £85,950, being 75% of the full cost of replacing the kitchen (a legally questionable discount for “betterment” having been applied). Neither party appealed the award. The adjoining owner’s surveyor then declared himself incapable of acting before an award had been made dealing with the other items of damage, and his replacement took the view that the out-of-level kitchen floor was pre-existing. The Stewarts sought to enforce payment of the sum set out in the award in the Magistrates Court. The Magistrates made an order for payment of such sum, which the Subramanians sought to appeal. For procedural reasons – the refusal of the Magistrates to state a case for appeal – the appeal then proceeded by way of judicial review.
Decision: The court held, as a matter of construction, seen in the context of a dispute under section 10, that the award had not determined that compensation was payable, but merely what quantum of compensation would be payable in the event that it was subsequently determined (1) that the building owner’s work had caused damage to the kitchen floor, and (2) that repairs to the kitchen floor were required which would necessitate removal of the kitchen units.
Comment: This case arose because of a lack of clarity in the award made. In her judgment, the judge said “Precision is required in resolving party wall disputes”. This applies, it is suggested, not only to the terms of an award, but also, where a reference is made to the third surveyor, to the terms of that referral. The precise extent of the dispute referred to a third surveyor should be made as clear as possible from the outset, and third surveyors should strive to clarify the terms of such reference if there is any room for doubt as to those terms.
The full judgment can be found here
