Zissis v Lukomski & Anor

An appeal against an award under section 10(17) of the Party Wall etc Act 1996 is a statutory appeal governed by CPR Part 52. Since an award is ordinarily non-speaking and made without a hearing, the county court will normally conduct a rehearing and receive the evidence needed to decide whether the award was wrong.

A party may challenge an allegedly invalid award as a nullity without using the statutory appeal procedure. A Part 52 appellant may combine that challenge with an alternative request to vary the award. Procedural error should ordinarily be corrected instead of causing an otherwise justified claim to be dismissed.

Indemnity costs require conduct unreasonable to a high degree and deserving judicial disapproval. Litigation concerning costs attracts no special presumption in favour of indemnity costs.

A building owner commenced a CPR Part 8 claim seeking rescission or modification of an addendum award made by a party-wall surveyor under section 10(17) of the Party Wall etc Act 1996. The award required her to pay the surveyor £15,825 plus VAT in fees.

The district judge held that the surveyor had acted without a properly constituted panel and that the award was invalid. Nevertheless, he dismissed the claim because a statutory appeal should have been commenced under CPR Part 52. He ordered the claimant to pay the adjoining owner's costs on the indemnity basis.

The claimant appealed against the dismissal and costs orders. The central questions were whether Part 52 governed an appeal under section 10(17), whether the procedural error justified dismissal despite the finding of invalidity, and whether indemnity costs were warranted. A separate appeal concerning the validity of the award was adjourned.

1. The appeal was allowed in part. An appeal under section 10(17) of the Party Wall etc Act 1996 is a statutory appeal governed by CPR Part 52. The statutory provision requires an appeal to the county court from the decision of another person and therefore falls within paragraph 17.1 of the Part 52 Practice Direction. The Act's 14-day time limit prevails over the Practice Direction's general 28-day period.

2. Part 52 is sufficiently flexible to do justice in this form of appeal. An award under the Act is non-speaking and made without a hearing. Accordingly, the appeal will ordinarily be a rehearing at which the county court receives the evidence required to reach its own conclusion about whether the award was wrong. The district judge was therefore wrong to regard the appeal merely as a review and wrong to rely on the analogy with Housing Act appeals limited to points of law.

3. A party alleging that an award is invalid need not use the statutory appeal procedure. The party may seek declaratory relief, resist enforcement, or bring an action inconsistent with the award. The district judge had found the addendum award invalid and should not have dismissed the claim solely because it had been brought under Part 8. Consistently with the overriding objective, he should have permitted an amendment seeking a declaration of nullity or allowed the proceedings to continue under Part 52. A Part 52 appellant may assert that an award is a nullity and alternatively seek its variation.

4. The indemnity costs order was set aside. Such an order requires conduct unreasonable to a high degree and deserving a mark of disapproval. The claimant was entitled to seek rescission or modification, had sued the proper defendant, and had acted on professional advice. Her conduct did not meet the required threshold. There is no sound rule that parties litigating about costs are especially vulnerable to indemnity costs. Standard-basis costs were substituted.

5. Lord Justice Brooke added that CPR 70.5 cannot be used to enforce an award under the 1996 Act. That procedure requires an enactment providing that the award or decision may be enforced as if payable under a court order. The Act contains no such provision. Lord Justice Wilson and Lord Justice Brooke agreed with Sir Peter Gibson's judgment.

• Court of Appeal (Civil Division): Allowed the claimant's appeal in part. It upheld the conclusion that an appeal under section 10(17) of the Party Wall etc Act 1996 is governed by CPR Part 52, held that the claim should not have been dismissed for procedural error, and substituted standard-basis costs for indemnity costs. The separate appeal concerning the award's validity was adjourned.
• Brentford County Court: District Judge Jenkins held that the addendum award was invalid because the surveyor panel was improperly constituted. He nevertheless dismissed the Part 8 claim because the statutory appeal should have been brought under Part 52, joined the surveyor as a defendant, and ordered the claimant to pay the adjoining owner's costs on the indemnity basis.