How the Court of Appeal Advanced the Mischief

🏛️ Section 1: Introduction

The Court of Appeal decision in Kyson & Power v Shah [2023] EWCA Civ 239 marks a significant departure from how the Party Wall etc. Act 1996 has been understood in practice. By holding that no notice means no Act, the Court of Appeal (CA) adopted a reading which allows a building owner to avoid the statutory dispute-resolution machinery entirely by simply failing to serve notice.

In effect, a measure designed to keep neighbours out of court is interpreted in a way that drives them back there. To see why this is problematic, it is useful to test the CA’s approach against the classic mischief rule from Heydon’s Case.

📜 Section 2: Heydon’s Case (1584) 76 ER 637

Heydon’s Case (1584) is the foundation of the mischief rule of statutory interpretation. It directs courts to look beyond the narrow literal meaning of words and to interpret legislation in a way that:

• 🔨Suppresses the mischief which the Act was intended to cure; and
• 🛠️Advances the remedy Parliament put in place.

The court does this by asking four structured questions:

1. 📘 What was the common law before the Act?
   Party wall disputes were resolved entirely through the ordinary courts. Damage, trespass, and nuisance claims required full litigation, expert evidence, and the associated delay and cost.
2. ⚠️ What was the mischief and defect?
   Neighbours were left without a specialist, low-cost, predictable framework. Ordinary homeowners faced technical litigation simply because a neighbour chose to build close to or on the boundary.
3. 🧰 What remedy did Parliament provide?
   Parliament enacted the Party Wall etc. Act 1996 to create a mandatory code: notice provisions and, crucially, a specialist dispute-resolution mechanism under section 10, designed to keep disputes away from the courts.
4. 🔑 What is the true reason for the remedy?
   The purpose is to protect Adjoining Owners, to allocate risk fairly, and to ensure that disputes arising from notifiable works are resolved quickly and expertly by surveyors, not through protracted litigation.

🧭 Section 3: Application to the Party Wall Act

When the Court of Appeal’s decision in Shah is tested against Heydon’s framework, the tension becomes clear. The reasoning:

• revives the very mischief the Act was intended to cure;
• suppresses the effectiveness of the statutory remedy; and
• turns what was intended to be a mandatory protection into a functionally optional scheme.

In short, the decision sits uneasily with the mischief rule. Rather than interpreting the statute in a way that furthers its protective purpose, the CA’s approach enables the mischief to continue, and even thrive, wherever notice is withheld.

🏷️ Section 4: Smith v Hughes (1960) HL 1 WLR 830

The House of Lords decision in Smith v Hughes [1960] is a modern affirmation that the mischief rule remains good law and that courts must interpret statutes in a way that gives effect to legislative purpose.

Applied to the Party Wall etc. Act 1996, this requires a reading which:

• ⚖️Recognises the Act as a protective, remedial measure;
• 🔑Ensures that notifiable works bring the section 10 machinery into play; and
• 🚫Does not allow the very mischief (expensive, technical litigation) to be reinstated by inaction.

A purely literal approach—treating the absence of notice as excluding the Act altogether—sits uncomfortably with this purposive guidance. The effect is not to give life to Parliament’s intention, but to frustrate it.

📊 Section 5: Heydon vs Court of Appeal – At a Glance

The contrast between Heydon’s principles and the Court of Appeal’s approach in Shah can be captured in the following comparative table:

Read through the lens of Heydon’s Case and Smith v Hughes, the decision in Shah is difficult to reconcile with orthodox purposive interpretation. Rather than suppressing the mischief and advancing the remedy, it appears to do the opposite.