⚖️ Four Internal Tensions in the Court of Appeal's Own Reasoning

A close reading of Kyson & Power v Shah [2023] EWCA Civ 239 — not a dispute with the authorities the Court relied on, but with how the two judgments square with themselves.

Much of the commentary on Shah focuses on how the Court's reasoning sits against Crowley, Bridgland, and Hansard. This section takes a narrower approach: setting passages from Coulson LJ's and Lewison LJ's own judgments against each other.

1. 🧩 The "Building Owner" Definition Undermines Its Own Application

At §95–96, Lewison LJ insists on a literal reading of s.20:

"an owner of land who is desirous of exercising rights under this Act"

He expressly rejects Mr Isaac's proposed gloss ("desirous of executing works of a description contained in the Act"), holding that the narrower, literal words govern.

The problem: Mr Shah was advised by his planning consultant that the Act did not apply to his works (§2), and at no point sought to exercise any right conferred by the Act. On Lewison LJ's own literal test, Mr Shah cannot be a "building owner" under the Act at all — he never desired to exercise rights under it. Yet the entire judgment, from the case name onward, proceeds on the basis that he is "the building owner." Sections 1, 2, 3, 6 and 7 all pivot on identifying him as such; the Court's whole analytical structure requires it. The Court's own preferred definition of "building owner" therefore excludes the very party the judgment depends on classifying as one.

2. 🔁 "Prospective Only" Sits Awkwardly with the Court's Own Authorities on Retrospective Cure

Coulson LJ states at §30 that the Act:

"was not intended to resolve disputes concerning the effect of works which, because of the absence of a notice, had already been completed."

But Lewison LJ, only a few pages later, approvingly cites Louis v Sadiq (§77–78), quoting Evans LJ:

"If he does then give notice he will in due course acquire statutory authority for whatever works are approved or agreed…"

And Rodrigues v Sokal (§90–91), quoting HHJ Toulmin:

"if the procedure under the 1996 Act is invoked, then an award may cover matters that took place before its invocation."

The problem: both authorities, cited with approval, contemplate the Act being invoked after works have started — with retrospective effect once notice is finally served. That directly narrows Coulson LJ's "not intended... already completed" statement. The Court's real objection isn't retrospectivity as such — its own case law accepts that — it's the total and permanent absence of any notice at all. The judgment doesn't clearly separate these two propositions, and conflating them overstates the "prospective only" position beyond what its own authorities support.

3. ↩️ A Concession, Then a Reversal by Assumption, Not Text

At §79, Lewison LJ makes a clear textual concession:

"There is, therefore, no longer any link between a party structure notice and the surveyors' jurisdiction. Although there cannot be a deemed dispute in the absence of a party structure notice, there can be an actual dispute."

Read alone, that sentence is Mr Isaac's argument. But by §94, having worked through the 1939 Act authorities and the Barras principle, Lewison LJ reaches the opposite conclusion, describing the alternative reading as:

"an unlikely intention to attribute to Parliament."

The problem: nothing textual changes between §79 and §94. The reversal rests on an inference about what Parliament must have intended (echoing Coulson LJ's "vanishingly small chance" at §28), not on anything in the actual wording of s.10 that contradicts the concession already made. The judgment concedes the text says one thing, then overrides that concession by assumption rather than by identifying where the text itself compels the opposite result.

4. 💷 The Act Is Disclaimed for Jurisdiction, Then Reinstated for Quantum

Having held that the Act does not apply and the adjoining owner is confined to common law claims, Lewison LJ endorses, via Crowley and Roadrunner Properties Ltd v Dean (§101), the proposition that the correct measure of damages in that common law claim is:

"what a surveyor would have awarded under the Act."

The problem: if the Act genuinely has no application to unnotified works, there is no principled basis for its own compensation methodology to govern the quantum of a claim that supposedly sits entirely outside it. The judgment disclaims the statute's jurisdiction while relying on its substantive content to quantify the alternative remedy — borrowing the Act's answer to "how much" while denying it any role in "whether."

📌 Summary Table