Dillard v F&C Commercial Property Holdings Ltd

Where a deed contains a specific dispute-resolution procedure for disputes concerning damage caused by development works, broadly worded contractual provisions may require that procedure to apply exclusively, even where the deed also requires compliance with the Party Wall etc Act 1996. The court must construe the provisions commercially and reconcile their different scopes. A contractual reference to adherence to statutory requirements does not necessarily incorporate the Act’s statutory dispute-resolution procedure. A party may also challenge an apparent award for lack of jurisdiction without making an appeal against the award. Such a jurisdictional challenge is not an appeal from an appeal for the purposes of CPR 52.13(1).

The appellant owned premises adjoining a site being redeveloped by the respondent. The parties entered into a deed regulating the works. Clauses 7 and 10 dealt with damage to the adjoining property and its air-handling unit, and clauses 7.5 and 10.4 referred disputes to the expert-determination procedure in clause 12. Clause 11 required adherence to the Party Wall etc Act 1996.

Party wall surveyors made awards, including an addendum dealing with compensation. The appellant challenged that addendum, arguing that compensation disputes fell within the deed’s expert-determination procedure and that the surveyors therefore lacked jurisdiction. HHJ Bailey struck out the relevant grounds. The central issues were the proper construction of the deed and whether the appeal to the High Court was an appeal from an appeal.

1. Appeal allowed. HHJ Bailey’s decision was set aside.
2. The deed was to be construed according to ordinary contractual principles, applied in a commercial and sensible manner where provisions appeared to overlap. Clauses 7.5 and 10.4 referred to “any” dispute and were broad enough to encompass all disputes arising under those clauses.
3. Clause 11 required adherence to the statutory requirements of the Party Wall etc Act 1996. It did not state that the parties were bound by every provision of the Act notwithstanding the deed. The Act’s procedural requirements concerning notices, works, safeguards and party-wall matters could therefore continue to operate.
4. The statutory procedure under section 10 was materially narrower than the clause 12 procedure. Section 10 concerned matters connected with works to which the Act related, whereas the deed covered all building works causing damage, including works outside the statutory scope. The parties could not sensibly have intended competing procedures to govern the same disputes.
5. The proper interpretation was that disputes concerning the respondent’s obligations under clauses 7 and 10, including overlapping disputes falling within the Act, were to be referred exclusively to the clause 12 expert-determination procedure. The parties had contractually opted out of the Act’s dispute-resolution procedure to that extent.
6. A challenge alleging that an apparent award was made without jurisdiction differs in substance from an appeal alleging that an award was wrong on fact or law. If the decision-maker had no jurisdiction, the purported award may not be an award at all. The appellant’s jurisdictional challenge therefore did not constitute an appeal from an appeal under CPR 52.13(1).
7. Costs were to follow the event, with summary assessment after written representations.

• High Court (Queen’s Bench Division): appeal from the Central London County Court allowed; HHJ Bailey’s decision striking out parts of the appellant’s proposed appeal was set aside.
• Central London County Court: HHJ Bailey held that the statutory party-wall dispute-resolution procedure had not been contractually ousted and struck out the relevant grounds of appeal.