Farrs Lane Developments Ltd, R (On the Application Of) v McAllister

Under section 10 of the Party Wall etc. Act 1996, a surveyor’s award may include consequential matters and costs even where those matters were not themselves disputed between the building owner and adjoining owner. The statutory power to determine costs is broad enough to require the liable party to pay a surveyor directly. The conclusive effect of an award does not exclude an ultra vires challenge brought by other means, including enforcement proceedings. A judicial review challenge to a magistrates’ discretionary costs assessment requires more than showing that another figure might have been reasonable.

The claimant property developer appointed the interested party as its party wall surveyor. Following deemed disputes under the Party Wall etc. Act 1996, the surveyor made awards requiring the claimant to pay his fees directly. The claimant did not appeal to the County Court under section 10(17).

The interested party subsequently sought recovery of the sums in the magistrates’ court under section 17. The justices made civil orders for payment and awarded his litigation costs. They refused the claimant’s application to state a case. The Administrative Court treated the matter as a judicial review and considered whether the awards were ultra vires, whether direct payment to the surveyor was permissible, and whether the costs assessment was irrational.

1. The claim for judicial review was dismissed. The court could determine the legal issues without requiring the justices to state a case because the parties agreed that no further factual findings were necessary and the justices’ reasons made the issues apparent.

2. Section 10(10) confines the surveyors’ adjudicative function to matters connected with relevant works and in dispute between the building owner and adjoining owner. However, section 10(12)(c) permits an award to determine any other matter arising out of or incidental to the dispute, including consequential matters which are not themselves contentious.

3. The word “determine” does not mean only deciding a controversy. It may mean authoritatively declaring or laying down provisions forming part of a complete and enforceable award. It would be artificial and impractical to separate agreed consequential provisions from disputed matters. The same reasoning applies to the surveyors’ costs and fees under section 10(12)(c) and section 10(13).

4. Section 10 contains no restriction requiring costs to be paid only by one owner to another owner. Its broad wording permits an award to direct the liable party to pay the statutory surveyor directly. This avoids a circuitous enforcement route and is consistent with the position of a surveyor appointed by both parties.

5. Section 10(16) does not prevent an ultra vires challenge by other means merely because no County Court appeal was brought under section 10(17). However, the claimant’s failure to use that appeal route was relevant to the context of the later challenge to the quantum of the fees.

6. The challenge to the magistrates’ costs order failed. Judicial review on irrationality was subject to a particularly high threshold. On the material available, it was within the justices’ discretion under section 64 of the Magistrates’ Courts Act 1980 to award costs of approximately £3,600, including the issue fees.

7. The claimant was ordered to pay the interested party’s costs of the judicial review, subject to summary assessment. The court allowed the interested party’s time at the litigant-in-person rate under CPR 46.5 and Practice Direction 46.

This was a first-instance judicial review in the Administrative Court. The magistrates had refused to state a case after making civil orders for recovery of party wall surveyors’ fees.