Filippi v Jakob

Observations made during preliminary-issue proceedings do not determine an issue which the court was not asked to decide. Where such observations are obiter, the claimant remains entitled to advance that issue at trial.

Under the London Building Acts (Amendment) Act 1939, a party wall award may validly include new work connected with the work described in the notice, even if every item was not particularised in the initiating notice. The Court of Appeal will not interfere with a costs discretion absent an arguable error of principle or other material justification.

Mrs Filippi applied for permission to appeal judgments of Mr Recorder Jackson concerning preliminary issues in litigation arising from works to a party wall. The recorder found that the claim was not statute-barred, upheld the effectiveness of the relevant notice, upheld the award, and held that the six-month commencement period did not invalidate the notice.

He also made observations questioning the prospects of proving trespass, required amended particulars, and ordered Mrs Filippi to pay 75 per cent of the preliminary-hearing costs. The central questions were whether those observations had finally determined the trespass issue, whether matters concerning a later notice were appealable, whether the recorder had erred in construing the statutory scheme, and whether the costs order was susceptible to appeal.

1. Permission refused. Lord Justice Judge refused all applications for permission to appeal, subject to directing that any later trespass hearing should not be listed before Mr Recorder Jackson.
2. The trespass issue had not been one of the preliminary issues decided by the recorder. His comments about the apparent difficulty of proving trespass were obiter and were directed to the continuing expense and proportionality of the litigation. They did not determine the issue or prejudice Mrs Filippi’s right to pursue her claim at trial.
3. There was no appealable issue arising from the recorder’s use of the word “notices” in discussion at the later hearing. The drawn order reflected the judgment and contained no determination concerning the September 1992 notice.
4. The recorder had correctly construed the mandatory requirements of the London Building Acts (Amendment) Act 1939. A party structure notice need not be signed personally by the building owner. An agent could sign it, and a written appointment was unnecessary.
5. An award was not invalid merely because it included items of work outside the paragraphs of section 46 mentioned in the notice. Section 55 permitted the award to determine the right to execute works and other matters arising from the dispute. New elements could therefore be included where they were connected with the work described in the notice. The approach was supported by Gyle-Thompson v Wall Street (Properties) Ltd [1974] 1 WLR 123 and was not arguably wrong.
6. The recorder had also been entitled to apply Leadbetter v Marylebone Corporation [1905] 1 KB 661 despite differences in statutory wording, concluding that the six-month commencement requirement became inapplicable through procedures permitted by section 55.
7. No arguable basis existed for interfering with the costs discretion exercised after the full hearing of the preliminary issues.

Order: applications for permission to appeal refused; letter to be sent to the Central London County Court as directed.

• Central London County Court: Mr Recorder Jackson determined four preliminary issues in judgments dated 13 September and 2 October 2000. He made findings on limitation, the party structure notice, the award, commencement of works, pleadings and costs.
• Court of Appeal (Civil Division): Permission to appeal was refused. The trespass issue remained open, and arrangements were directed for any hearing of it to take place before a different recorder.