The Faculty of Party Wall Surveyors upheld a complaint made about me 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. This 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 £800.00. I was told that I had 28 days to appeal the decision. I decided against this as the disciplinary 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 render the entire process and the award invalid.. Do I wish to remain a member ? No, I subsequently resigned.

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.

What does that say about their members?

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 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 engagement it 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.


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 surveyor to complaint to FPWS. The complaint as laid before me the FPWS was:-

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 your actions under 10(6) or (7) after all it says..

‘….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 was to serve 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, despite being 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, TS must team up with one of the appointed surveyors 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.

 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 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 done 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..’ by telling them and their accepting your advice would make an agreement…  

In my opinion both of these clauses are wrong.

I will address others 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 they???

The panel find that these are perfectly acceptable amendments.


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 their behalf, in this instance 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.

 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 as guilty, or even more so than I 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.