Patel & Anor v Peters & Ors

The statutory power for a party wall surveyor to act ex parte after a request under Party Wall etc Act 1996, section 10(7), is conditional. A surveyor’s failure to act effectively for 10 days does not permanently remove the opportunity to respond. If the surveyor acts effectively before the requesting surveyor proceeds ex parte, the justification for ex parte action disappears.

Acting effectively does not require accepting the proposed method of calculating fees. A reasoned rejection, coupled with a reasonable alternative and a clear identification of the dispute for referral to the third surveyor, may satisfy sections 10(6) and (7).

Leaseholders proposed building works which triggered procedures under the Party Wall etc Act 1996. Their surveyor and the adjoining owners’ surveyor disagreed about the latter’s fees. Following a request under section 10(7), the leaseholders’ surveyor responded after the 10-day period by rejecting the timesheets, proposing an alternative calculation and referring any disagreement to the third surveyor. The adjoining owners’ surveyor then issued ex parte costs awards.

Judge Hand QC decided preliminary issues in the Central London County Court, holding that the request was valid, that the response was late, and that the surveyor had refused or neglected to act effectively. The appeal concerned whether the later response prevented ex parte action and whether it amounted to effective action.

1. Appeal allowed. Lord Justice Richards gave the leading judgment, with Lord Justices Beatson and Briggs agreeing. The ex parte costs awards were quashed.
2. Under section 10(7) of the Party Wall etc Act 1996, the requesting surveyor may act ex parte where the other surveyor has neglected to act effectively and 10 days have elapsed after service of the request. The provision does not create an irrevocable bar once the 10 days have expired. If the defaulting surveyor ends the neglect and acts effectively before the requesting surveyor acts ex parte, the statutory justification for ex parte action has disappeared and the ordinary section 10 procedures continue to apply.
3. The statutory 10-day period is unaffected by a requesting surveyor indicating that a longer period will be allowed. That indication does not invalidate the request, although any separate question of estoppel before the longer period expires did not arise.
4. Effective action does not require the surveyor to accept the requested method of assessing fees or to agree the proposed amount. Mr Burns gave a reasoned explanation for declining to review the timesheets, proposed an alternative calculation based on reasonable surveyor time, and identified the sum he considered appropriate. He engaged directly with the subject matter of the request and crystallised a dispute suitable for referral to the third surveyor. That conduct was neither a refusal nor a neglect to act effectively under sections 10(6) and (7).
5. The distinction between refusal and neglect did not need separate analysis because the finding that Mr Burns acted effectively disposed of both grounds. The comparison with A Bansal v AW Myers did not alter the result; that decision was treated as fact-sensitive.

• Court of Appeal (Civil Division): Allowed the appeal and quashed the ex parte costs awards.
• Central London County Court: His Honour Judge Hand QC decided preliminary issues concerning the validity of the section 10(7) request, the 10-day period, and whether the leaseholders’ surveyor had refused or neglected to act effectively.