⚖️ Case Note • Injunctions • Party Wall etc. Act 1996
No Notice, No Act
How Antino’s 2023 Blog Undercuts His 2021 Thesis on Injunctions
Executive Summary
Binding law: The Court of Appeal in Power & Kyson v Shah [2023] EWCA Civ 239 established the gateway rule: no notice ⇒ no Act. If a valid Party Wall notice hasn’t been served, the Party Wall etc. Act 1996 is not engaged; surveyors have no s.10 jurisdiction; any injunction must be sought on common-law/equitable grounds (trespass, nuisance, negligence), not “for breach of the Act.”
In his 10 March 2023 blog, Philip Antino expressly accepts this position (“The Act has not been engaged… No Noitce No Act simples!!!!”). However, in his 2021 thesis he repeatedly advocates an injunction to “force compliance with the Act” in no-notice scenarios. Those two positions cannot both be right post-Shah.
Side-by-Side: Thesis vs Blog vs Binding Law
| ❌ Thesis statements (2021) | 📝 Antino’s blog (10 Mar 2023) | ⚖️ Binding law after Shah | ✅ Assessment |
|---|---|---|---|
|
🚫“Non-compliance is not an option, as this exposes the defaulting owner to an injunction for which there is no defence.” Also: “If request [to serve notice] is ignored… an injunction forcing compliance with the Act should be obtained.” |
🧾“The absence of a notice… the Act has not been engaged and the Adjoining Owner cannot trigger the Act… No Noitce No Act.” | ⚖️No notice ⇒ no Act. Without notice, PWA remedies/statutory “breach” language don’t apply; any injunction must be common-law/equitable. | Conflict: The thesis frames a statutory injunction in no-notice cases, which Shah (and the blog) rule out. |
| 📜“Penalties for breaching the statutory duty:… the only remedy is to seek injunctive relief.” | 📣“The Act does not allow retrospective notice unless agreed between the owners.” | 🧭Surveyors lack s.10 jurisdiction absent notice; parties may agree matters privately; otherwise the route is common law/equity. | Partially aligned: Blog acknowledges no retrospective route via surveyors; thesis still frames relief as statutory “breach” in no-notice cases. |
| 🤝Retrospective regularisation can occur by owners’ agreement; surveyors need written consent as this is outside their jurisdiction. | ✔️AO cannot trigger the Act or serve retrospective notice; only agreement between owners. | 📚Consistent with Shah: no notice means no statutory jurisdiction; private agreement or court at common law. | Aligned. |
Why This Is a Paradox (Explained Simply)
Paradox: If (as the blog accepts) “no notice, no Act”, then there is no statute engaged to be “breached”. You cannot found an injunction “for breach of the Act” when the Act never engaged. Any injunction in a no-notice case must be pled on trespass, nuisance, negligence and equitable principles, not as a “Party Wall injunction.”
What Should Be Updated Now
- Website & client guides: Replace any promise of a “Party Wall injunction” for no-notice cases with common-law/equity wording.
- Role clarity: Courts grant injunctions; surveyors supply evidence. Section 10 only operates after a valid notice.
- Academic addendum: Note in any republication of the thesis that Shah supersedes the earlier view on statutory relief in no-notice scenarios.
Sources
- APA Property blog (10 Mar 2023): “Court of Appeal Ken Power & Lee Kyson v Raheel Shah 2023”.
- Court of Appeal judgment (7 Mar 2023): Power & Kyson v Shah [2023] EWCA Civ 239.
- Antino, Interpreting the Party Wall etc. Act 1996… (PhD thesis, 2021).
© Lee Kyson. You may reproduce this article with attribution.
⚖️ Consolidated Article • Injunctions • Party Wall etc. Act 1996
Injunctions after Shah v Power:
Antino’s Inconsistencies, Practical Consequences,
and a Redline of his “Injunction” Page
Author: Lee Kyson — MSc Construction Law & Dispute Resolution • FCIArb • MCIOB • AssocRICS
Executive Summary
The Court of Appeal in Power & Kyson v Raheel Shah [2023] EWCA Civ 239 is binding authority. It confirms the gateway rule: No notice, no Act. If a valid notice is not served, the Party Wall etc. Act 1996 (“the Act”) is not engaged; section 10 jurisdiction is absent; any remedies must be pursued at common law (trespass, nuisance, negligence) and equity.
By contrast, Philip Antino’s writings and public-facing materials (including his “Injunction” webpage) repeatedly suggest that injunctions can be obtained for breach of the Act even where no notice was served. That approach presupposes the Act is engaged by the works themselves — a premise squarely rejected by the Court of Appeal.
Bottom line: Post-Shah, framing no-notice injunctions as “under the Act” is wrong in law. Injunctive relief in such cases must be grounded in common law causes of action and equitable principles, not the statutory scheme.
Antino’s Injunction Theory (from his materials)
- Proceeding with notifiable works without serving notice is treated as a breach of the Act.
- Such a building owner is said to be “exposed to an injunction for which there is no defence.”
- Injunctions are presented as the mechanism to force compliance with the Act even after works have started without notice.
This assumes the Act is engaged by the works irrespective of notice — the fulcrum of the contradiction with Shah.
What Shah Actually Decides
- A valid notice is the jurisdictional gateway to the Act. No notice ⇒ no Act engaged.
- Section 10 cannot be back-filled to cure non-notice retrospectively.
- In no-notice cases, relief (including injunctions) is available only at common law and equity — not “under the Act”.
Therefore, the very phrase “injunction for breach of the Act” in a no-notice scenario is a category error after Shah.
Head-to-Head: Shah vs Antino
| Issue | Court of Appeal — Shah | Antino’s Position | Assessment |
|---|---|---|---|
| When is the Act engaged? | Only once a valid notice is served. | By the notifiable works themselves, even without notice. | Binding law: Shah controls (works-alone ≠ engagement). |
| “Breach of the Act” without notice? | Conceptually impossible (no Act engaged). | Yes — proceeding without notice breaches the Act. | Wrong in law post-Shah. |
| Injunction basis (no-notice) | Common law / equitable only. | “Party Wall injunction” for breach of the Act. | Must be framed in trespass/nuisance/negligence, not as statutory. |
| Retrospective use of s.10 | Not permitted. | Also resists retrospectivity (different logic). | Outcome aligns; reasoning diverges. |
Paradox: Antino’s “breach” language presumes the Act is engaged; Shah says it is not. You cannot be in “breach” of a statute that isn’t in play.
Practical Consequences
- Advisory clarity: In no-notice cases, frame any injunction strictly in trespass, nuisance, negligence and equitable principles.
- Pleading discipline: Avoid asserting statutory remedies where the gateway notice was not served.
- Audit templates: Update precedents, client guides, and website copy to reflect Shah.
Redline to Antino & Associates “Injunction” Page (Conceptual)
Representative edits to make the messaging compliant post-Shah (not a verbatim reproduction of that page).
Section A — What an Injunction Is
Section B — When You Might Need One
Section C — Our Role
Section D — Outcomes & Expectations
Section E — Compliance Statement (Suggested)
“Important: Following Power & Kyson v Shah [2023] EWCA Civ 239, no notice = no Act. In such cases, surveyors lack section 10 jurisdiction and statutory remedies are unavailable. Any injunction must be pursued on common law and equitable grounds.”
Proposing an Injunction?
Injunctions and the Party Wall etc. Act 1996 — What You Need to Know
An injunction is a court order granted under the court’s equitable jurisdiction. It may stop building works where the legal tests are met (e.g., serious issue to be tried, adequacy of damages, balance of convenience).
No Notice = No Act. The Court of Appeal in Power & Kyson v Shah [2023] EWCA Civ 239 held that, unless a valid Party Wall notice has been served, the Party Wall etc. Act 1996 is not engaged and section 10 surveyor jurisdiction is unavailable. In those circumstances, any injunction cannot be sought “under the Act”, but may still be available on common law grounds such as trespass, nuisance, or negligence.
Where a valid notice has been served and a dispute arises, the Act’s procedures apply, and surveyors (or an agreed surveyor) may advance matters under section 10. In limited cases, interim relief may complement the statutory process.
Our role: We will:
• Assess whether works are notifiable and whether a valid notice has been served;
• Where the Act is engaged, guide you through the statutory procedure and, where appropriate, liaise with your legal team;
• Where the Act is not engaged, support your legal team with evidence for any common law claim and, if justified, an application for interim relief.
Disclaimer: Injunctive relief is discretionary and fact-specific. We recommend early legal advice to preserve your position.
Conclusion
Shah is dispositive: without notice, the Act is not engaged. That shuts the door to statutory remedies (including section 10) in no-notice cases. Any injunction in those circumstances must be pled and justified on common law and equitable bases, not as a “Party Wall injunction”.
Public-facing materials should be corrected to reflect this. The redline above shows how to re-frame copy to align with binding precedent, avoid client confusion, and reduce cost/strike-out risk.
© Lee Kyson. You may reproduce this page (with attribution) on lkbc.co.uk.