Is the Faculty of Party Wall Surveyors Disciplinary Panel fit for purpose?

Mr Stuart Frame of Staple Inn Chambers http://www.stapleinn.co.uk/barristers/stuart-frame/ is well known in party wall circles as a barrister specialising in party wall matters. I have been reliably informed by the Faculty that he heads up their Professional Standards, which he also confirmed. It is my opinion, gained from recent experience, that the threshold for the application of professional standards is set very low.

I had previously stated on this webpage that Mr Stuart Frame of Staple Inn Chambers, in his capacity as head of Professional Standards of the Faculty of Party Wall Surveyors would have agreed with the disciplinary panel’s decision against me. Mr Frame informed me that he played no part in the Disciplinary Panel’s decision (reasons given accepted by me) ‘I can therefore neither agree nor disagree with the Disciplinary Panel’s decision against you, simply because I know absolutely nothing about the substance of the matter.’ he appears to have known enough as he further stated that my my reference was both ‘derogatory and false’. I wonder what the response would have been had I praised the Disciplinary Panel?

I therefore apologise to Mr Frame for associating him with the Faculty of Party Wall Surveyors Disciplinary Panel’s decision.

It appears that there is no one in charge of Professional Standards when a complaint is raised against me, the head of Professional Standards has completely disassociated himself from his Disciplinary Panel allowing them to make decisions on ‘what might have been’ and dishing out hefty fines for the privilege.

I find it difficult to reconcile the Disciplinary Panel’s decision with the stance Mr Stuart Frame took in representing the Claimant, Ms Tracey Reeves, in a recent case in which the Third Surveyor had been selected as Mr Alistair Redler, the two surveyors then decided that Mr Philip Antino was their selected and named him [Mr Antino] as their selected Third Surveyor in the Award.

Mr Frame, for the claimant, argues that such an approach to the selection of a third
surveyor is not permissible under the 1996 Act. Section 10(1)(b) requires the two
surveyors forthwith to select a third surveyor and, once that has been done, the
surveyors have completed their task and have put it out of their power to make any
further selection.
— Ms Tracey Reeves - and – (1) Mr Robert Charles Young (2) Mrs Gillian Christine Young (3) Mr Philip Antino - London County Court Claim No. C20CL109

The DP do not agree with HHJ Bailey. Are they setting themselves above the courts in applying their own decisions? Is this typical of the Faculty of Party Wall Surveyors Professional Standards?

[para 36] ‘....The recital is only that, it is not part of
the award. ..’
— HHJ Bailey - Ms Tracey Reeves - and – (1) Mr Robert Charles Young (2) Mrs Gillian Christine Young (3) Mr Philip Antino - London County Court Claim No. C20CL109

The Faculty of Party Wall Surveyors upheld a complaint about me that was made by a fellow member. Please note it was not a complaint made by either of the Owners! I do not feel that their decision is right and it is not of a standard I would expect of a disciplinary panel comprising of purported party wall experts. Had there been a reasoned decision I would have either accepted or appealed it. I have no confidence in the DP or their head of professional standards, their decisions conflict with those handed down by the courts… his page will be updated as time permits…

My membership of the Faculty has been suspended and I was informed that a condition of my continued membership was that I had to pay an £800.00 ‘fine’(?) and that I had 28 days to appeal the decision. I decided against this as the disciplinary panel had shown, in my opinion, that they were incompetent at arriving at a reasoned decision and their findings absurd to the the point that any draft award once amended renders the author of the draft award guilty of the fact that they could have rendered the entire process and the award invalid.. It was in fact Mr David Turner, who was last to make the alteration to the draft award that led to the panel finding me guilty of nearly doing something wrong coupled with an £800 fine for the privilege. Such a perverse view would render any surveyor who receives a draft award back with amendments also guilty of nearly doing something wrong!

Quite bizarrely they addressed the decision to David Turner and not me. I just received a cover letter and a copy of the letter sent and addressed to David Turner, David Turner Chartered Building Surveyor, 7 Spooners Drive, St Albans, Herts. AL2 2HX.

You would expect that the decision would have been addressed individually to each or to both parties!

Do I wish to remain a member ? No, I have subsequently resigned but they will not accept it.

In their cover letter they state :

We appreciate that there may be other surveyors within the Faculty or elsewhere who you may feel have conducted themselves in a worse manner than you have here, and that consequently you may also feel aggrieved by our decision.
— Disciplinary Panel of the Faculty of Party Wall Surveyors

We appreciate that there may be other surveyors within the Faculty or elsewhere who you may feel have conducted themselves in a worse manner than you have here, [could this be the Disciplinary Panel ?] and that consequently you may also feel aggrieved by our decision???

What does that say about how the Faculty view their members? that they have other members who have conducted themselves in a worse manner than me ?? Albeit, I do not agree with their decision; I do not believe I have done anything wrong other than progress the matter in accordance with the Act.

One interesting point the panel make in their decision is

The panel note that in the copies of the email threads it has received none of the email attachments can be seen.

There appears to be some dispute between Mr. Turner and Mr. Kyson as to what documents and format of documents were sent and/or received however the panel consider it is not relevant to the actions that were subsequently taken.

It is difficult to comprehend that they discarded reference to the attachments because i) there was the draft award and associated documents in pdf format and ii) the draft award was also attached in word format. In essence David Turner received the draft award in both pdf and word formats. Despite having already received the draft award in word format David Turner requests it in word format some 5 days later. The previous email could be seen in the email chain. The panel see this as engaging effectively. In my opinion irrespective of whether the other surveyor engages or not the engagement has to be effective, if it is not effective then it must be ineffective; if it is ineffective then the other surveyor is neglecting to act effectively. David Turner was the last to amend the draft Award with the wrong third surveyor’s name which is clearly obvious on the documents - but the panel do not consider the documents relevant?? The most serious of the complaints issued against me ???


Complaint 1

I believe the disciplinary panel’s response is somewhat biased and paradoxical. I cannot help but feel it was a matter of pride that drove the David Turner to complain to the FPWS, he did not wish to pursue the matter through the party wall process, despite the options open to him, his appointing owner remained silent about his actions. The complaints as laid before me by the FPWS were:-

That you did not act with honesty and integrity. Rule 4 (1) of the code of conduct. More particularly that you proceeded to make and serve an ex-parte award without making it clear or known to the adjoining owner's surveyor or the adjoining owner that you intended to do so.

In the panel’s opinion Mr. Kyson did not act with honesty and integrity and was therefore in breach of rule 4(1) of the Code of Conduct. Accordingly, this ground of complaint is upheld against Mr. Kyson.
— — Faculty of Party Wall Surveyors -disciplinary panel

Honesty and Integrity

4. Corporate and Non-Corporate Members shall conduct themselves with integrity at all times. In doing so, members shall:

(1) seek to resolve disputes under the Act both fairly and expeditiously.

I did act with honesty and integrity apparently under rule 5 of the code of conduct which is:

Impartiality and due regard to appointing owners.

5.

(1) Corporate and Non-Corporate Members appointed or selected under section 10 of the Act should act, and be seen to be acting, impartially.

(2) Whilst maintaining impartiality, party appointed surveyors should nevertheless act with due regard to the interests of the party who appointed them.

I did act in regard to the owner who appointed me and incorporated the sensible amendments David Turner sought. Therefore, did act impartially.

I will elaborate more on this later… however I’m not aware of any a requirement within the Act to notify the adjoining owner’s surveyor of any pending actions to be pursued under sub-sections 10(6) or (7) after all they both state..

‘….and anything so done by him shall be as effectual as if he had been an agreed surveyor.’

Perhaps the panel could point me to that particular requirement.

What if the adjoining owner does not wish to maintain contact with the surveyor they appointed? I have come across this scenario previously and after all it is an Award between the 'Owners’ not the owners and the surveyors. Notify the adjoining owner about the impending Award? the only requirement under the Act is to serve it forthwith…... do I hold back on the award, notify the adjoining owner that an Award will be served on him and then serve the Award once he has been notified that he going to received a party wall award?

The Award was not appealed therefore, the disciplinary panel have no jurisdiction to determine that there was no entitlement to proceed ex parte. There are processes laid out in the Act that neither Mt Turner nor his appointing owner chose to take. Had the Adjoining Owner’s surveyor acted more sensibly then the situation would not have arisen. There was due regard to the appointing owner because he asked me to proceed ex parte to conclude the matter.


Complaint 2

Ground of Complaint 2: That you did not act with impartiality and with due regard to the appointing owner. Rule 5 of the Code of Conduct. More particularly the allegation is that you proceeded to act ex-parte without clear entitlement to do so and as a result potentially preventing the adjoining owner of representation and thus not act impartially.

In conclusion it is the panel’s opinion that Mr. Kyson did not conduct himself with impartiality with due regard to the appointing owner in that he: did not specifically address the suggested amendments identifying which were acceptable and not relevant or remained in dispute; Mr. Kyson denied the adjoining owners access to proper representation and their ability to refer any disputed matters to the third surveyor. The panel do not accept Mr. Kyson’s reasons for proceeding ex-parte on the basis that Mr. Turner was not acting effectively or had neglected to act as Mr. Turner and Mr. Kyson corresponded on the 5th, 10th, 22nd and 29th January 2018 and prior to production of the ex-parte award. Mr. Turner actively sought to engage with Mr. Kyson to refer matters in dispute to the third surveyor. It is the panel’s opinion that Mr. Kyson simply ignored due process and proceeded to act ex-parte.
Accordingly, this ground of complaint is upheld against Mr. Kyson.
— Faculty of Party Wall Surveyors -disciplinary panel

I will elaborate here later, the panel make reference to David Turner’s proposed amendments being correct, namely ones that relate to 10(10) and excluding liability which I believe both are erroneous and inaccurate, just because it is a P&T standard clause does not make it right.

The two amendments referenced (as being correct) by the panel and required by David Turner:

It is a requirement of the Act that the three surveyors or any two of them, or in the event of none of them being in agreement, the third surveyor, shall settle by award all or any matter which is connected with any work to which the Act relates and which is in dispute between the building owners and the adjoining owners including; the right to execute the work, the time and manner of executing the work, and any other matter arising out of the dispute including the cost of obtaining and making this award.

It is a requirement of the Act that the three Surveyors or any two of them, this is correct in so far as 10(10) goes and 10(10) further informs us that if the matter is in dispute between the Owners then ‘any two of them [surveyors]  shall settle by award…’ there is no option, Third Surveyor must team up with one of the appointed surveyors to make the Award, there is no provision for him to proceed alone.

 or in the event of none of them being in agreement the Third Surveyor where does it say this in 10(10)? wording here means that all three surveyors can be in disagreement but the TS can then make an award without being called upon, which is contrary to 10(10). The wording is totally wrong and implies that the Third Surveyor is involved in producing the Award, in my experience it has always been the two appointed surveyors who would produce and the Third Surveyor only taking an active role if called upon. It is very likely that he is totally unaware that he is the Third Surveyor.

 shall settle by award all or any matter which is connected with any work to which the Act relates and which is in dispute between the Building Owners and the Adjoining Owners 10(10) does not allow him to settle the dispute and serve an Award in isolation, there has to be two surveyors to settle a matter that is in dispute between owners by Award. The wording of section 10(10) is explicit and mandatory ‘shall’. 

including: the right to execute the work, the time and manner of executing the work, and any other matter arising out of the dispute including the cost of obtaining and making this Award. The wording is incorrect as these items are listed in 10(12); and 10(12) says an award MAY include them, the clause as written says SHALL leaving no option but to include them. They are often items that are not in dispute and left to the discretion of the surveyors. The wording is also paradoxical in that if the cost of the award is in dispute between the owners the TS must settle that dispute by award even though he may have produced the award that is in dispute…..   

 Any agreement or acceptance made by either Surveyor in this Award or subsequently during works on site shall not be taken to imply any responsibility by them or their appointed technical delegates for any structural or any other insufficiency in any part of the works whether existing or executed.

So, as surveyors we both sign the Award as having agreed the content but we’re not responsible for it? This clause says that you can agree anything with anyone but the wording renders any agreement worthless  ‘Ok I’ll agree to that (shake hands) but I must tell you that I am not to be held responsible for what I have just agreed to.’  What if someone is asking you advice in your capacity as a PWS – e.g. ‘this is what it says in the Act you can do this you can do that but I’m not responsible if I’m wrong in what I’m telling you..’ by telling them and their accepting your advice would make an agreement…  

In my opinion both of these clauses are wrong and I will be very surprised if they are included in the next RICS template award. My understanding is that there will an updated RICS guidelines 7 published in the near future.

I will address other clauses David Turner was insisting on such as these below as time permits…

Ensure that cutting into or away from the party wall shall be carried out in a careful controlled manner using non-percussive hand tools. Scrape it out caveman style or use fingernails?

Ensure that the boundary fences and hedges remain in place for the duration of the work except where described otherwise within this Award. Where are the boundary hedges and fences, I didn’t see any???

In particular, if the excavation remains open for more than 48 hours, temporary propping shall be provided in accordance with the requirements of the surveyor. Structural Engineer had clearly stated on the drawings 12 hours!

Noisy works will not be permitted outside the hours of 7.30am – 4.30pm Monday to Friday with no Works on Weekends or Bank Holidays. Local bye-laws state 08:00 for noisy works.

The Disciplinary Panel acting on behalf of the Faculty of Party Wall Surveyors finds that these are perfectly acceptable amendments. Therefore, as a Faculty member it appears that it is irrelevant as to the accuracy of what you put in an Award.


Complaint 3

This complaint was that:

You did not demonstrate due diligence, care and skill with regard to the professional and technical standards expected of you as a competent party wall surveyor. Rule 6 of the Code of Conduct.

In conclusion it is the panel’s opinion the incorrect drafting of the notices and the incorrect naming of the third surveyor could have rendered the entire process and the award invalid, which could have had significant consequences for both owners. Therefore, it is the panel’s opinion that Mr. Kyson has not proceeded with due care and skill and is in breach of Rule 6 of the Code of Conduct.
Accordingly, this ground of complaint is upheld against Mr. Kyson.
— Faculty of Party Wall Surveyors -disciplinary panel

Lee Kyson’s comments on this decision

How can that be? I believe the notice complies with section 16(1)c (with regard to serving notices and documents)

in the case of a body corporate, by delivering it to the secretary or clerk of the body corporate at its registered or principal office or sending it by post to the secretary or clerk of that body corporate at that office.
— the Party Wall etc. Act 1996

 If, in accordance with section 16(1)c as cited above a notice is to be addressed to the company secretary, which I did, naming them, (no comment made on this by the panel) then surely it must be reciprocal?

I, Mr Director on behalf of Barn Cottages Ltd serve upon you…. [name removed]

Barn Cottages Ltd is a corporate body, Barn Cottage Ltd cannot read, write or go to the Post Office… Good morning Mr/Ms Barn Cottage Ltd, how are you this morning? It is not going to happen, therefore, somebody has to carry out this function on its behalf, in this instance the director (I was actually authorised to act on behalf of the director)

What is wrong with this? does it make the notice invalid?  

What is more absurd is that they state:

‘….the incorrect naming of the third surveyor could have rendered the entire process and the award invalid, which could have had significant consequences for both owners.

This statement is a stark contrast to the argument put forward by Stuart Frame accepted by HHJ Bailey who stated that ‘the recitals are not part of the Award’!

Why even mention this, David Turner amended the draft award, in his view he ‘corrected’ it (??) and in doing so incorrectly rewrote Andy Schofield’s name as 3S. If he is being so diligent in his amendments then why did he not correct this? What’s more to the point is that I did correct it. If David Turner did not correct it then he is the guilty party, not me because he never sought to correct it and would have been quite happy to serve an Award with Mr Andrew Schofield named as 3S and proved this by approaching Mr Schofield to enjoin in an Award with him when somebody else was named as third surveyor! I corrected the name of the third surveyor prior to serving the Award. 

How can you find someone guilty of something that ‘could’ have happened when they had in fact corrected it before proceeding and concluding the matter??

The statement of the disciplinary panel is a paradox

‘….it is the panel's opinion the incorrect drafting of the notices and the incorrect naming of the third surveyor could have rendered the entire process and the award invalid.

Could have’ rendered the whole process and the award invalid…. but obviously they are informing me that it didn’t therefore, the process and the award were valid. Isn’t this why we correct things to avoid the ’could have’ scenario?

again ‘could have’ had significant consequences for both owners this once again tells us that it didn’t, other than allow the building owner to get on with his works.

The Faculty of Party Wall Surveyors disciplinary panel found me guilty of what could have happened.

 I think this shows incompetence in the disciplinary panel and a lack of understanding of the Act and its processes.  

Their ethos appears to be…

If you do not brake when coming to a red traffic light you might cause an accident but if you brake and stop you could still be guilty of nearly causing an accident?

 


Complaint 4

That you did not conduct yourself with courtesy and respect accusing a Fellow Faculty member of being 'disingenuous' by falsifying documents and 'being very unprofessional' without good reason. Rule 8 of the code of conduct

This was …to be updated


Complaint 5

You did not provide a copy of your complaints handling procedure (CHP) when requested to do so by Mr. Turner. Rule 19 of the code of conduct.

Apparently I am guilty of compliance!

In conclusion the panel consider that Mr. Kyson is in breach of Rule 19 of the Code of Conduct.
Accordingly, this ground of complaint is upheld against Mr. Kyson.
— Faculty of Party Wall Surveyors -disciplinary panel

It is quite interesting what the Disciplinary Panel have to say as their statement, in my opinion, is paradoxical. As can be seen from the Disciplinary Panel’s decision even David Turner managed to follow my simple explanation of the Faculty compliant CHP otherwise he would not have managed to register his complaint.

We can see that Rule 19 does not ask for the CHP to be in writing or for it to be a separate document as such.

Rule 19 Complaints

  1. Corporate and Non-Corporate Members shall have in place an internal Complaints Handling Process (‘CHP’) for the purposes of any party wall work that they may engage in.             

  2. Corporate and Non-Corporate Members shall therefore deal at first instance with any complaints regarding their conduct via their own internal CHP if requested to do so.

  3. The aforementioned CHP shall include the Faculty as the final appealing body for such complaints.

  4. For the avoidance of doubt, Corporate and Non-Corporate members’ CHP are to be used where the complainant is either their appointing owner, any other owner who is a party to the matter, the other party appointed surveyor or the third surveyor.

When asked for my CHP by David Turner I explained the CHP by sending him the following explanation by email:

With regard to my CHP please forward your complaint to me, if you are not satisfied with my response then, as we are both FFPWS and being a Party Wall matter, please feel free to make contact or raise a complaint with the Faculty of Party Wall Surveyors

As far as 19.1 and 19.2 goes David Turner did not address his complaint to me, so I was not given the opportunity or reason to comply with either 19.1 or 19.2. As far as 19.3 goes I complied with this as it referred to David Turner being able to raise the matter with the FPWS; and the response was sent to David Turner by email, therefore, in writing!

What is quite paradoxical is the conclusion arrived at by the Faculty of Party Wall Surveyors’ Disciplinary Panel

Mr. Turner asked Mr. Kyson for a copy of his Complaints Handling Procedure (CHP). Mr. Kyson did not refuse to provide a CHP and asked for the complaint to be referred to him in the first instance, which the panel confirms is in accordance with the Faculty Code of Conduct Rule 19. However, the panel consider that for a person making complaint to understand what the complaint procedure is, it is implicit that they would receive a copy of the CHP. When specifically asked for a copy Mr. Kyson did not do this. Whilst it is not explicit in the Faculty's Code of Conduct that a CHP procedure must be provided in writing, the panel consider it is implicit.

The DP unequivocally state that I complied with the Faculty Code of Conduct Rule 19 but then quite bizarrely go on to say that

‘…the panel consider that for a person making complaint to understand what the complaint procedure is, it is implicit that they would receive a copy of the CHP.’

David Turner is a Fellow of the Faculty, it appears the Disciplinary Panel are implying that David Turner does not understand the Code of Conduct Rule 19 and cannot understand it without explicit guidance! Apparently, according to the DP, I complied with Rule 19 and I had explained the process to David Turner which was sent by email and was in writing. Should I have put the same wording in an attachment and sent it to him? The final statement shows that the DP make the rules as they go along and have misunderstood the wording of Rule 19. The DP confirm my response was in accordance with Rule 19 yet they say

Whilst it is not explicit in the Faculty's Code of Conduct that a CHP procedure must be provided in writing, the panel consider it is implicit.

Dictionary definition of ‘implicit’ Suggested though not directly expressed.

You will note that the dictionary definition states ‘suggested’.

Is the statement actually saying;-

Whilst it is not explicit in the Faculty's Code of Conduct that a CHP procedure must be provided in writing, the panel consider it is suggested.

therefore, I am guilty of not complying with a suggestion!

I must ask in what form did I send/explain my Rule 19 compliant CHP to David Turner, the last time I looked at the email it was in writing.

In conclusion the panel consider that Mr. Kyson is in breach of Rule 19 of the Code of Conduct.
if this correct why do they say:
Mr. Kyson did not refuse to provide a CHP and asked for the complaint to be referred to him in the first instance, which the panel confirms is in accordance with the Faculty Code of Conduct Rule 19
— Faculty of Party Wall Surveyors -disciplinary panel

What the Disciplinary Panel conveniently leave out is that I also stated that if he was not happy with my response he could refer it to the Faculty.

One thing is clear David Turner asked for my Complaints Handling Procedure , Rule 19 refers to Process

Dictionary definition for Procedure:

a series of actions conducted in a certain order or manner.’

Dictionary definition for Process:

a series of actions or steps taken in order to achieve a particular end.

As we can see the process is a ‘series of actions’. I cannot carry through those actions and send a copy of the actions in writing. I can explain what the process is, with regard to the Faculty it is a two step process. David Turner asked me for a ‘copy of the procedure’ and then changed it to ‘Could you let me have your Complaints Handling Procedure please. I responded ‘explaining’ the two step complaints handling procedure to David Turner which he received. I can only explain what that process is, which is what I did, and it was in writing! To actually utilise the ’complaints handling process’ or ‘procedure’ David Turner should have instigated the process or procedure by sending his complaint to me, he did not. According to the DP the procedure, albeit the Faculty Code of Conduct states ‘process’, must be in writing. Neither David Turner nor the Disciplinary Panel consisting of members of the Faculty of Party Wall Surveyors asked for a copy of my Complaints Handling Policy.


Mr Frame, for the claimant, argues that such an approach to the selection of a third
surveyor is not permissible under the 1996 Act. Section 10(1)(b) requires the two
surveyors forthwith to select a third surveyor and, once that has been done, the
surveyors have completed their task and have put it out of their power to make any
further selection.