Reeves v Blake

Surveyors appointed under section 10 of the Party Wall etc. Act 1996 may award reasonable legal costs only where they are connected with the Act’s statutory dispute-resolution process. The statutory word dispute means a dispute arising under that process.

It does not include a claim, or preparations for a claim, for common law or equitable relief in court, such as an injunction or damages for trespass or nuisance. Surveyors have no jurisdiction to determine those causes of action or grant that relief. They therefore cannot direct payment of costs incurred in contemplated court proceedings which were never issued.

The respondent proposed to demolish and rebuild her end-of-terrace house, including basement excavations near the appellant’s garage. Notices were served under the Party Wall etc. Act 1996. Following a dispute, surveyors made an award authorising the excavation works.

The appellant believed that further authorisation was needed before work could proceed. Her solicitors prepared draft High Court proceedings for an injunction, but obtained undertakings from the respondent and no proceedings were issued. A later party-wall award directed the respondent to pay the appellant’s legal fees for that preparatory work.

On an appeal under the Act, the Wandsworth County Court deleted that direction. The appellant appealed, contending that section 10 permitted surveyors to award the reasonable costs of legal advice and steps taken in contemplation of an injunction.

1. Appeal dismissed unanimously. Etherton LJ, with whom Moses and Mummery LJJ agreed, held that the surveyors lacked power to award the appellant’s costs of contemplated but unissued High Court proceedings.

2. Section 10 has broad language and may permit an award of reasonable legal costs in an appropriate case. The power is nevertheless confined to costs connected with the statutory dispute-resolution mechanism under the Party Wall etc. Act 1996. The court approved the recognition of that limited power in Onigbanjo v Pearson [2005] BLR 507.

3. The dispute referred to in section 10 means a dispute arising under the Act, whether an actual or deemed dispute, or a statutory dispute concerning matters such as compensation or expenses. A court claim for trespass or nuisance, and preparations for such a claim, fall wholly outside that framework. This construction accords with the Act’s purpose of resolving party-wall disputes without recourse to court.

4. The surveyors could not grant the substantive common law or equitable relief contemplated by the appellant. It would be incongruous for them to determine the costs of litigation seeking relief which only a court could grant; the arbitration analogy did not assist. In any event, costs of preparations for proceedings that are never commenced are ordinarily irrecoverable, subject to the limited exception in CPR 44.12A.

5. The county court’s variation deleting the Legal Costs Direction therefore stood.

• Court of Appeal (Civil Division): The appeal was dismissed: [2009] EWCA Civ 611.
• Wandsworth County Court: On 14 November 2008, His Honour Judge Viljoen varied the second party-wall award by deleting its direction for payment of the appellant’s legal costs.