lee kyson’s understanding of sections 10(6) + (7)

THIS IS STILL A WORK IN PROGRESS. It needs checking for typos and grammar…I decided to write this article as I have been informed by P&T that my membership will not be offered to me for renewal when the current period expires part of the reason given was:-

Serving an ex parte award without giving notice under clauses 10(6) or 10(7) and not informing the other surveyor of your actions.

Rather then just jump straight to Pinner v Everett [1969] 1 WLR 126 myself, I believe a good starting point on the subject matter would be to iterate Mr Justice Ramsey at para 43 in his decision in Kaye v Lawrence [2010] EWHC 2678 (TCC) whereby he makes reference to Lord Reid in Pinner . It is very unlikely that any practicing party wall surveyor will not have heard of Kay v Lawrence and as the case dealt with a party wall matter, Ramsey J provides a more credible link to Pinner than I; especially given the way the section is interpreted.

In construing the statute the basic principles of construction to be followed are those which are set out in sections 195 and 197 of Bennion on Statutory Interpretation (Fifth Edition) at 548 to 552 referred to as the plain meaning rule and the commonsense construction rule. In relation to the plain meaning rule, as Lord Reid said in Pinner v Everett [1969] 1 WLR 1266 at 1273:
”In determining the meaning of any word or phrase in a statute the first question to ask always is what is the natural or ordinary meaning of that word of phrase in its context in the statute? It is only when that meaning leads to some result which cannot reasonably be supposed to have been the intention of the legislature, that it is proper to look for some other possible meaning of the word or phrase. We have been warned again and again that it is wrong and dangerous to proceed by substituting some other words for the words of the statute.”
— https://www.bailii.org/ew/cases/EWHC/TCC/2010/2678.html

I believe that this particular part of Ramsey J’s decision is very relevant to section 10 (7) of the Act as there are varying interpretations as to exactly what is required of a party wall surveyor to comply with this section. P&T’s stance, imparted to me by some of their committee members, is that a 10-day notice is required in addition to the request. This appears to be the understanding of several surveyors after I have served an ex parte Award and was even stated as being a requirement by a third surveyor in a recent referral to him by one of the aggrieved surveyors. The extremely high profile third surveyor made reference to Frances Holland School v Wassef a non-binding decision from the county court in which inter alia a surveyor proceeded to act ex parte on the wrong section of the Act. His [third surveyor] view was that Frances Holland School gave rise to an implied condition in the current Act to also serve a 10 day notice. I disagreed. It was the wording of that particular section of the predecessor Act that required a 10 day request in writing. I have referred to this further below.

In dealing with a complaint put to them by a surveyor who had been ousted by my ex parte Award, the argument recently put before me by two P&T committee members was that I refused to acknowledge that, despite a request being made, there is a requirement to also serve a 10-day notice. I refused to acknowledge their view and replied that I proceed with each case on its merits and if the same, or a similar, situation arose again I proceed ex parte if that was the action called for but only after consultation with my appointing owner. Their argument about the requirement to serve a 10 day notice was also, in their opinion, applicable to 10(6).

section 10(6)

First of all let us have a look at the wording of 10(6):

If a surveyor-
        (a) appointed under paragraph (b) of subsection (1) by a party to the dispute; or
(b) appointed under subsection (4) or (5),
 refuses to act effectively, the surveyor of the other party may proceed to act ex parte and anything so done by him shall be as effectual as if he had been an agreed surveyor.
— the Party Wall etc. Act 1996 section 10(6)

The first section is self-explanatory and hinges on ‘If’.

If we jump to ‘refuses to act effectively’ once again, contrary to the view put to me by surveyors is that there is an inherent belief that they have to state ‘I refuse to act effectively’ in my opinion this would be more a kin to that surveyor declaring him / herself incapable to act as per section 10(5). It is their resulting actions that would determine the matter more so than their statement, this view is supported by HH Judge Hazel Marshall QC in Manu v Euroview Estates Ltd - [2008] 1 EGLR 165

In all the circumstances, L’s letter constituted a “refusal to act effectively” within the meaning of section 10(6), with regard to the works that were properly the subject of the section 6 part of the notice. Accordingly, K was entitled to make an ex parte award, and the award of January 2006 was valid and binding.
— Manu v Euroview Estates Ltd

The very fact that the word ‘act’ is used requires that an action is to be performed and ‘action’ is the operative interpretation whereby a ‘statement’ is not, albeit such a statement may not be easily ignored. Therefore, a surveyor is deemed by his actions, or lack of them, to be refusing to act effectively. I am not referring to differences of opinion on matters that are purely a difference of opinion between the surveyors but more aligned to known facts for example what if a surveyor just sits on a draft Award without giving any response, having been sent a draft award in pdf format then asks for it in word format so he can comment or amend it but then does nothing despite further requests from BOS? A total lack of response in my opinion fulfills the requirement of both sections 10(6) + (7) a further example whereby the AOS despite being made aware of the erroneous nature of the amendments kept insisting on for example noisy working hours being permitted outside those as given in local by-laws; taking care of hedges and fences - when there are none; etc. etc. there were quite a few in this particular instance.

If we refer back Mr Justice Ramsey I believe he is telling us as party wall surveyors, organisations, learned societies or whatever that quite simply, we read it as it is and do not substitute words or imply interpretations that are not there.

The Green Book 3rd Ed. as published by P&T does not make reference to a notice being a requirement of section 10(6) it states page 75 ‘If an appointed surveyor refuses to act effectively, the other surveyor appointed by the other party may immediately proceed to act ex parte’. However does go on to say ‘a surveyor proceeding ex parte should be clear on : refusal to act is a positive statement and/or intent’. Personally, I do not feel this statement goes deep enough into this subsection. Once again, if we look at the wording of 10(6) ‘refuses’ is the current state of affair, intent is not. I would find it very difficult to proceed ex parte against a surveyor whom in my opinion intended to refuse to act effectively, the wording is somewhat misleading as the refusal has to be current and not progressing.

section 10(7)

First of all, as with section 10(6), let us have a look at the wording of 10(7):

If a surveyor-
(a) appointed under paragraph (b) of subsection (1) by a party to the dispute; or
(b) appointed under subsection (4) or (5),
neglects to act effectively for a period of ten days beginning with the day on which either party or the surveyor of the other party serves a request on him, the surveyor of the other party may proceed to act ex parte in respect of the subject matter of the request and anything so done by him shall be as effectual as if he had been an agreed surveyor.
— the Party Wall etc. Act 1996

Much of the wording is very similar to section 10(6) and once again we should bear in mind part of Mr Justice Ramsey’s decision in Kay v Lawrence, as I have come across several interpretations of the procedures to be followed prior to embarking on the path of 10(7).

So I will start at ‘neglects to act effectively’ as with 10(6) a difference of opinion is not a basis to proceed ex parte and to accuse someone of not acting effectively. In my opinion, ‘neglects to act effectively’ must be a current state of affairs viz it must be live and continuing. This has been unequivocally confirmed in Patel v Peters [2014] EWCA Civ 335 -[2015] 1 W.L.R. 179. In Patel v Peters Mr Justin Burns resumed acting effectively despite 10 days having passed since a request was made of him, or more to the point a notice was served on him explaining that the 10 day deadline would be extended due to the holiday period. Therefore, the opportunity to execute the 10(7) procedure had been spent, this supports the argument that it must be live when proceeding with the 10(7) process culminating with an Award.

To trigger the process a request must be served on the surveyor in contrast to the predecessor 'London Building Acts (Amendment) Act 1939’ the current Act does not require the request to be in writing as does Part IV of the LBA

(e) If a surveyor appointed under sub-paragraph (ii) of paragraph (a) of this section by a party to the difference or if a surveyor appointed under paragraph (d) of this section refuses or for 10 days after a written request by either party neglects to act the surveyor of the other party may proceed ex parte and anything so done by him shall be as effectual as if he had been an agreed surveyor.
— the London Building Acts (Amendment) Act 1939.

Section 55(e) of the LBA1939 is not too dissimilar to the PWeA1996 however it must be asked why the the requirement for the request to be in writing has been dropped. If it was still the intention for the request to be in writing the current Act would say so, as it does in sections 3(3), 7(4), 10(2), 11(10 and 13(1). I believe it would be fair to say that as long as a request is served, irrespective of the format then the initial stage of 10(7) has commenced. It should be borne in mind that a request is one surveyor (or party) asking the other surveyor to fulfill an action. In contrast, and in context with the Act, serving a notice is in essence the opposite, it is not a request; it is informing the other surveyor of what you intend to do, this is not a request. In effect by serving a request and then at a later date follow up with a notice stating you are giving them 10 days from your notice is not, in my opinion, in accordance with 10(7).

If you follow through 10(7) as it is written, the process in its simplest form is

  1. serve a request - what is the natural or ordinary meaning of that word? does it mean anything else other than ask someone to do something?

  2. wait 10 days - what is the natural or ordinary meaning of that word of phrase in its context in the statute? does it really mean 10 days or does it mean 15..20 days?

  3. other surveyor neglects to act effectively? proceed ex parte on the subject matter only.

If you interrupt this process by giving a 10 day notice to the other surveyor instructing him / her to act effectively, has the notice invalidated the 10(7) process by superseding the request as you would very likely be proceeding to act ex parte on the basis of the notice rather than the initial request. A notice requirement that does not exist. If you are acting on the basis of the request, what is the purpose of the notice? given that the other surveyor would be expected to be conversant in the Act, all you are doing is extending the 10 day period! Are you confusing the issue by sending out mixed messages? In Frances Holland School the ex parte Award was invalid because the Award based its foundation on the wrong section of the Act, albeit there were other reasons too.

The ex parte Award accordingly is inconsistent with the reference to the 10 day time limit in the letter of the 21st January 2000 (page 225). The Award accordingly refers to a ground namely refusal upon which Mr Davies did not rely. It does not refer to the ground upon which he purported to rely. In those circumstances I consider that the ex parte Award is bad on its face and invalid.
— Frances Holland School v Wassef

Although Frances Holland School came under the auspices of the predecessor Act, in which a request in writing was requisite, it is clear to see that there is no room for error in the foundation on which any ex parte Award is based, it must be correct. In referring to the predecessor Act thought should be given to the words of Sir Peter Gibson as §26 Zissis v Lukomski [2006] EWCA Civ 341

I pay tribute to Mr Bickford-Smith’s industry and learning in putting before us the predecessor legislation and the authorities under it, but I prefer to start my consideration of the appropriate procedure for an appeal under section 10(17) with the provisions of the Act and the current procedural rules under the CPR . There are dangers in seeking to apply directly to cases governed by the Act statements in cases decided under the earlier legislation.
— Zissis v Lukomski [2006] EWCA Civ 341

The obiter dictum above informs us that care should be taken when seeking to apply support from a predecessor Act, as there are inherent differences which may apply to one but not the other. If there were no differences in the application of interpreting both Acts in the same manner or in the same purpose then the predecessor would still be the current Act. The Acts are different and where the differences are apparent appropriate consideration must be given in the application of case law or persuasive arguments from obiter dictum or county courts. The requirement in the 1939 Act was for a 10-day request in writing, in the current Act a request will suffice and if the other surveyor neglects to act effectively for a period of 10 days then the other surveyor may proceed ex parte . Another subtle difference is that one of the parties serves the 10-day request, not the surveyor, whereby the current Act empowers either surveyor to serve a request. This highlights the difficulties faced when applying decisions from the different eras.

Before proceeding to ex parte the active surveyor must be sure that the other surveyor has not been acting effectively behind the scenes, if he can show that he was acting effectively during the 10-day period the ex parte process will fail. There is no provision within the text of 10(7) for the ineffective surveyor to announce that he is working effectively during that period.

What is a request? There is no indication within this subsection as to what constitutes a request, it does appear as if this allows quite a broad interpretation.

If, as is the normal process, one surveyor serves a draft Award on his opposite number, what does the other surveyor do? what is expected of the other surveyor from the sender of the draft Award? If I receive a draft award I treat it as a request to respond to it either by agreeing the award or by proposing amendments. I do not ignore it, especially not for 10 days! This view appears to be supported by the GB3 p76 we are told that ‘merely to acknowledge a draft award, or to reply that one did not like it, would not be acting ‘effectively’, nor would a succession of petty quibbles.’ If this view is taken at face value then on the expiration of 10 days the requesting surveyor may, but is not obligated to, proceed ex parte. GB3 p75 also informs us that ‘neglect’ is an ‘absence of action’ this supports my view put above in that a request is asking an action from the other surveyor. GB3 does not make reference to the requirement to serve a 10-day notice to either 10(6) or (7).

Support

If we follow the guidance in Kay then we can see that by pursuing 10(6) + (7) the result does not lead us to an absurdity, in fact the only real difficulty arises is in substantiating the grounds to proceed ex parte or if the other surveyor springs into action just before you have served the Award - it could be in the post!

In ‘Amit Patel, Sonal Patel v John Paul Peters, Celine Madeline Larose Peters, David Neil Laurence Levy, Christine Anne Fox, John Charles Conway, Yvonne Teresa Conway [2014] EWCA Civ 335 whereby Richards LJ stated at

§26 ‘….I am in agreement with the view expressed by the judge on this question. Section 10(7) empowers the requesting surveyor to proceed to act ex parte in respect of the subject matter of a request if (i) the surveyor on whom the request is served neglects to act effectively and (ii) a period of 10 days has elapsed since the request was served;’ 

§27 ‘That view is reinforced by consideration of the evident purpose of section 10(7), the evident purpose of section 10(7) , namely the avoidance of delay occasioned by the failure of one of the surveyors to act effectively in relation to a particular matter. If that surveyor neglects to act effectively for a period of 10 days after service of a request on him, the requesting surveyor can get on with the matter by proceeding to act ex parte.
— Patel v Peters [2014] EWCA Civ 335

What he does not say is, in following the service of a ‘10-day notice in writing’ furthermore he opines

 ‘...Dr Levy also argued that the judge’s approach, by contrast, would encourage more ex parte awards since surveyors who had made requests under section 10(7) would be inclined to act immediately on the expiry of the 10 day period. For my part, however, I do not regard speedy ex parte action as a problem in principle. It is contemplated by the subsection and accords with the underlying policy.’
— Patel v Peters

Again, Richards LJ does not make any reference to a 10-day notice, let alone one in writing, being a prerequisite in any form; on the contrary it appears that he would see such a perceived requirement as a hindrance causing unnecessary delay. Therefore, I do not share any view that there is an obligation to serve such notice. Brightman J in Gyle-thompson and Others v Wall Street (Properties) Ltd [1974] 1 W.L.R. 123 informs us that the steps laid don by the Act must be scrupulously followed…..

Those surveyors are in a quasi-judicial position with statutory powers and responsibilities. It therefore seems to me important that the steps laid down by the Act should be scrupulously followed throughout and short cuts are not desirable
— Gyle-thompson and Others v Wall Street (Properties) Ltd

Scrupulously following the steps laid down by the Act must also preclude the inclusion of requiring additional steps to be taken by a surveyor who only wishes to follow the steps as aid down by the Act.


anything so done by him shall be as effectual as if he had been an agreed surveyor

This tells us that whatever the surveyor concludes in his ex parte matter is equivalent to that done by an agreed surveyor. This, on the simple reading of both sub-sections, must mean that the other surveyor and third surveyor are closed out of any involvement in the subject matter. There appears to be two different aspects to 10(6) + (7) in that 10(6) would be more likely to lead to an ex parte Award on the basis that the other surveyor is refusing to Act. The wording tells us that the other surveyor only needs to refuse to act effectively and, unlike 10(6) there is no restriction on what the surveyor wishing to proceed ex parte can proceed on. It would appear he has excluded himself from the current matter(s).The default only needs to occur once. In contrast to 10(6), 10(7) requires that the surveyor may only proceed ex parte on the subject matter, although this is somewhat broader than 10(6) it must be asked what areas other than proceeding to Award, are there available to pursue? Despite these options it is almost certain that any action will lead to an Award, after all, Richards LJ stated ‘the evident purpose of section 10(7) , namely the avoidance of delay occasioned by the failure of one of the surveyors to act effectively in relation to a particular matter.’

A dispute over fees led to an ex parte Award despite apparent agreement on other matters with a further effect of an ex parte Award appears to be the exclusion of the third surveyor, if we refer to Bansal v Myers, a Romford County Court case in which an adjoining owner’s surveyor served an ex parte Award, HHJ Platt stated

§19 In my judgement the Respondent is correct. As a matter of law the question of fees is part of the award to be made by the appointed surveyors under section 10(13). ......
§21 Consequences. Since I have determined that the award was valid the Appellant has lost his right to have the issue referred to the Third Surveyor for determination as a dispute.....’
...
— Bansal v Myers [2007]

The above extract from the judgement does appear to confirm that the third surveyor has no jurisdiction in the matter that has been proceeded with in an ex parte manner. It also states that only the the appointed surveyors can determine the fees, which if the fees have not been a matter in dispute and one surveyor has proceeded ex parte, on interpretation, it is only that surveyor who can determine the other surveyor’s fees, which he may not be very willing to do if the refusenik surveyor has caused him extra work, which in my experience it does.


still a work in progress - last updated 16th September 2018 12:01