Party Wall Act Case Law Review: Patel v Peters
27th March 2014
Background
Appellants Amit Patel and Sonal Patel wanted to carry out works to their home that were subject to the Party Wall Act (1996), with Justin Burns acting as their surveyor. The respondents – John Paul Peters, Celine Peters, David Levy, Christine Fox, John Conway and Yvonne Conway – appointed Grant Wright as their surveyor.
The works were eventually authorised with principal awards made by Mr Burns and a third surveyor in two cases, with Mr Burns acting ex parte in another. Mr Wright’s fees were due to be determined by two out of the three surveyors, but he sent across timesheets that totalled just under £20,000… significantly higher than typical surveyor costs of approximately £2,500.
Mr Burns went on to review Mr Wright’s fees and calculated that they were more reasonably set at £2,925, with the fees of the third surveyor deducted from this amount.
In an email to Mr Wright, Mr Burns wrote: “As previously stated, I do not intend to go through your timesheets as I already know that a large percentage of the time you expended on this matter was unnecessary and inappropriate. It is not fair to expect me to pick through your barely legible notes to establish what was and wasn’t relevant.
“I will therefore measure your proposed fee against the time I think a reasonably competent surveyor would have spent on these awards considering the scope and complexity of the proposals (notwithstanding the fact that some of these tasks could have been undertaken by an administrator or assistant surveyor on a much lower hourly rate).”
Mr Wright then went on to make three awards ex parte, which means he acted to make the awards alone as an agreed surveyor because he believed the other appointed party wall surveyor had failed to act effectively within ten days of a request being made (under section 10/7 of the Act).
He awarded himself a total of £20,412, which Mr and Mrs Patel went on to appeal.
On Appeal
The case was taken to the Court of Appeal before His Honour Judge Hand QC, with two main issues heard:
– Whether failing to comply with a section 10 (7) request means the surveyor neglecting to act effectively within the ten-day period is still able to act effectively after it, with this later compliance remedying the default.
– Whether the email that Mr Burns sent to Mr Wright meant that he was acting effectively.
It was judged that leaving a section 10(7) request unanswered does, in fact, create a continuing state of affairs, meaning that as soon as the defaulting surveyor in question does act effectively even outside the ten-day period, the serving surveyor is no longer able to make an ex parte award.
Furthermore, it was also found that although Mr Burns did indeed refuse to assess Mr Wright’s timesheets, he provided reasonable justification for doing so and put forward an alternative fee calculation, tackling the issue head on and making his position on the matter known.
As such, Mr and Mrs Patel’s appeal was granted, with the judges agreeing that Mr Wright did not have the power under section 10(6) or (7) to act ex parte to the costs awards, with these awards subsequently quashed.
Precedent
Defaulting on the 10-day notice period
This particular case provides useful guidance for others facing similar situations, namely that defaulting surveyors are still able to act effectively even after the ten-day notice period. If this happens, the other surveyor will no longer be able to act ex parte.
Engaging reasonably with section 10(7) requests
Additionally, all surveyors have to do to answer section 10(7) requests is to engage with the subject matter of the request in a reasonably justified manner, making his position known. This means that surveyors will no longer be able to say that someone is acting ineffectively, simply because they don’t agree with them and won’t do as requested.