Chliaifchtein v Wainbridge Estates Belgravia Ltd

A party wall award incorporating a method statement must be complied with strictly. An obstruction includes material created by the works themselves, where the method statement applies in general terms to obstruction removal. A claimant may seek an injunction as a last resort where works plainly breach the award and the defendant denies liability or declines to give an effective undertaking. In deciding costs under Civil Procedure Rules 1998, r.44.2(2)(a), the court must balance the parties’ conduct, the seriousness of the breach, the claimant’s legitimate need to protect property, the success of the injunction application and any unreasonable refusal to accept liability.

The claimant owned a property adjoining redevelopment works undertaken by the defendant. A party wall award incorporated a method statement requiring probing and obstruction removal to be carried out in specified ways, including the use of a trench box for relevant excavations.

On 8 December 2014, the claimant obtained an ex parte injunction restraining excavations near the party wall except in accordance with the method statement. The defendant accepted continuation of the injunction but disputed liability for the claimant’s costs, contending that its contractors had not breached the award and that the claimant had acted precipitately. The central issues were whether the works breached the award and whether the claimant should recover the costs of obtaining the injunction.

1. The defendant had breached the party wall award. The probing had been carried out using a piece of RSJ rather than the probing equipment specified in the method statement. The operation was therefore contrary to the incorporated method statement.

2. The RSJ was an obstruction because it had to be removed before piling could proceed. The method statement applied to both pre-existing obstructions and obstructions resulting from the probing works. Any excavation required to remove it therefore had to comply with the stated precautions.

3. The excavation was at least two metres deep and principally extended into the original ground near the party wall. It was unsupported, although trench boxes were available on site. The removal works were consequently not carried out in accordance with the method statement.

4. The claimant was prima facie entitled to protect his interests by seeking an injunction. Although an ex parte injunction is a last resort and the claimant acted quickly, his conduct was reasonable in the circumstances. Relevant factors included that the works plainly breached the award, the property was his family home, the defendant repeatedly denied liability, and no formal undertaking to the court was offered.

5. Applying the conduct-based costs discretion under Civil Procedure Rules 1998, r.44.2(2)(a), the claimant was the successful party. The defendant’s refusal to acknowledge the breach and accept the ordinary costs consequences was unreasonable. The claimant was entitled to his costs.

First-instance decision. The judgment itself does not state any subsequent appellate history.