Sukhbinder Singh Takhar & Ors v Lahrie Mohamed & Anor

A settlement scheduled to a Tomlin order is construed as a commercial contract. Where it expressly resolves disputes under the Party Wall etc. Act 1996 and substitutes an agreed surveyor, references to acting as if appointed under the Act describe the surveyor’s function; they do not reintroduce the statutory regime or its appeal jurisdiction.

A contractual right to challenge an expert determination may nevertheless be effective where the parties intended recourse to the County Court. The resulting proceedings are contractual, not statutory appeals. The court’s intervention is ordinarily confined to whether the determination complies with the contractual standard, including proper principle and procedural fairness, rather than constituting a rehearing.

A party may also be estopped from asserting a position inconsistent with the position successfully advanced in earlier proceedings.

The appellants appealed three related orders made by HHJ Parfitt concerning disputes arising from a settlement contract scheduled to a Tomlin order. The underlying disputes concerned building works and compensation for damage to neighbouring property.

The County Court had held that the parties had contracted out of the Party Wall etc. Act 1996, but that the settlement permitted a County Court challenge to an agreed surveyor’s determination. It treated the proposed challenge as a rehearing and held that the compensation issue included damage as well as quantum.

The appeal raised four issues: whether any recourse to the County Court existed; whether the respondents were estopped from relying on the Act; whether the recourse was by review or rehearing; and whether it extended beyond quantum. The High Court upheld recourse in contractual proceedings, but confined its scope to quantum.

1. Construction of the settlement. The Tomlin contract was a commercial contract to be construed objectively, as a whole and in its commercial context. It resolved all existing disputes under the Party Wall etc. Act 1996, and provided an alternative mechanism for current and future disputes. The agreed surveyor was to perform a similar professional function to a statutory surveyor, but was not appointed under the Act and produced no statutory award.
2. No statutory appeal. The phrase in paragraph 7(2) that the paragraph 6 determination was to be treated as an appeal under section 10(17) of the Act gave the County Court jurisdiction intended by the parties, but did not import the Act or create a statutory appeal. The parties could not confer statutory jurisdiction by agreement, and the liberty to apply in the Tomlin order could not do so.
3. Contractual recourse. The County Court could hear a dispute founded on the Tomlin contract under section 15 of the County Courts Act 1984. A party would need to plead breach of contract, potentially relying on an implied term that compensation be determined without error of principle or procedural unfairness. The court’s role was therefore analogous to review, not rehearing, reflecting the contractual allocation of decision-making to an expert.
4. Scope. Paragraph 6 concerned financial compensation only. The determination of what damage had been caused and its causation fell outside the agreed right of challenge. The challenge was confined to the quantum of compensation.
5. Estoppel and disposition. The respondents had successfully asserted in earlier proceedings that the parties had contracted out of the Act. Their later contrary position was plainly inconsistent and would compromise the integrity of the judicial process and confer an unfair advantage. They were estopped from arguing that the Act applied. The appeal succeeded. The cross-appeal on costs did not arise in its existing form and further submissions were required.

The judgment records an appeal from three related orders of HHJ Parfitt in the County Court, dated 7 January 2021, 21 November 2021 and 12 January 2022. The High Court upheld the conclusion that the parties had an effective route to the County Court, but rejected the procedural mechanism used below and narrowed the scope of the challenge. The cross-appeal on costs required further submissions.