How the Court of Appeal (Lewison LJ; Coulson LJ; Laing LJ) Advanced the Mischief

The Party Wall etc. Act 1996 (“the Act”) was sold as a statutory mechanism for preventing disputes arising from works at or near the boundary. Yet the Court of Appeal’s decision in Power & Kyson v Shah [2023] EWCA Civ 239 has produced a paradox: by insisting on a strict condition precedent – service of a valid notice – the Court has effectively revived the very mischief that the Act was enacted to cure.

Rather than promoting early dispute management through surveyors and awards, the decision re-routes adjoining owners back into nuisance, trespass and negligence claims, even where the works are unquestionably notifiable.

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The more flagrantly a Building Owner ignores the Act, the easier it is for them to avoid the Act’s jurisdiction altogether.

This article applies the classic Heydon’s Case (1584) mischief rule to show how the Court of Appeal’s construction does not suppress the mischief, but advances it, contradicting the purpose of the Act and the statutory policy reflected in earlier authorities such as Kaye v Lawrence [2010] EWCA Civ 1479.

Throughout, the analysis is supported by Laura Lintott’s 2023 thesis, which pre-dates the Court of Appeal’s decision but clearly explains why a strictly notice-conditioned PWA regime inevitably fails to prevent disputes.

⚖️ 1. Heydon’s Case: The Four Questions

Heydon’s Case instructs the court to interpret statutes so as to:

• Identify the common law before the Act.
• Identify the mischief and defect Parliament sought to remedy.
• Identify the remedy Parliament provided.
• Contrue the statute in a way that suppresses the mischief and advances the remedy.

We apply that structure to the Party Wall Act and the decision in Shah.

🏚️ 2. What Was the Law Before the Act?

Before 1996 (outside the London Building Acts), adjoining owners had to rely on:

• Nuisance – interference with enjoyment of land.
• Trespass – unlawful entry or encroachment.
• Negligence – damage caused by lack of reasonable care.
• Withdrawal of support and other property-based claims.
• Restrictive covenants and easements.

Protection was entirely reactive: damage occurs, a dispute escalates, and the parties end up in court seeking injunctions or damages. As Lintott observes, party wall problems were a “complex intersection” of tort and property law in which litigation was the default, not the exception.

🎯 3. What Mischief Was the Act Designed to Remedy?

Hansard, government guidance and practitioner commentary all tell the same story:

• The Act is intended to prevent disputes, not simply tidy them up afterwards.
• It was meant to provide a simple, expert, pre-works procedure for managing risk.
• It aims to remove a large class of neighbour disputes from the courts, replacing litigation with the s.10 award mechanism.

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The Act provides a framework for preventing or resolving disputes in relation to party walls, party structures, boundary walls and excavations.

This preventive purpose is expressly recognised in Kaye v Lawrence, where the Court of Appeal interpreted s.12 (security for expenses) purposively to protect the Adjoining Owner before the risk materialised.

🏗️ 4. What Remedy Did Parliament Provide?

The structure of the Act reflects a preventive model:

• Notices (s.1, s.3, s.6) – the Building Owner must serve notice before undertaking notifiable works.
• Statutory dispute-resolution mechanism (s.10) – if the Adjoining Owner dissents or fails to respond, surveyors are appointed and an award is made.
• Access rights, compensation and making good – e.g. s.7 and s.11 provide real, structured protection to the Adjoining Owner.
• Security for expenses – strengthened by Kaye v Lawrence, where s.12 was interpreted robustly to arm the Adjoining Owner financially ahead of risky works.

In theory, this is a classic Heydon-compliant code: front-loaded, expert, and designed to keep disputes away from the courts.

⚖️ 5. Power & Kyson v Shah (CA): What the Court Actually Held

The Court of Appeal held, in essence, that:

• Section 10 cannot be invoked unless the Building Owner has served a valid notice.
• Without notice, any supposed dispute is not “a dispute arising under the Act”.
• Surveyors therefore have no jurisdiction; any purported “award” is a nullity.
• The Adjoining Owner must fall back on common-law remedies (injunction, nuisance, trespass, negligence).
• By failing to serve notice, the Building Owner effectively prevents the statutory scheme from operating at all.

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No notice → no Act → no award → common law only.

Doctrinally neat, perhaps. But measured against the mischief and remedy the Act was intended to address, the consequences are profound.

🧩 6. Heydon’s Analysis: How the CA Decision Revives the Mischief

6.1 Does the CA interpretation suppress the mischief?

No – it actively revives it.

By making the entire statutory scheme depend on the Building Owner’s compliance, the Act fails precisely where the risk is highest: when the Building Owner ignores it. In those cases:

• The Adjoining Owner is forced back into injunction proceedings and damages claims.
• Neighbour disputes revert to the ordinary courts.
• Cost, delay and hostility escalate.
• Surveyors are sidelined and the s.10 machinery is never engaged.

6.2 Does the CA interpretation advance the statutory remedy?

Again, no.

Parliament’s remedy was a front-loaded mandatory process. Under the Court of Appeal’s reading:

• The Building Owner can avoid the Act’s jurisdiction by the simple expedient of not serving notice.
• The least compliant Building Owners enjoy the greatest procedural advantage.
• The Adjoining Owner loses access to the very protections Parliament intended – s.10, security, making good, and a structured compensation regime.

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Failure to comply with the Act prevents the Act from operating. That is the statutory paradox at the heart of Shah.

6.3 Does the CA interpretation reflect the true reason for the remedy?

The true reason for the remedy was to replace litigation with the award process, not insist that adjoining owners litigate whenever Building Owners ignore the statute.

As Lintott’s work highlights, a regime that only functions when both parties voluntarily engage with it cannot deliver effective dispute prevention. The Court of Appeal has doubled down on that structural weakness.

⚖️ 7. Kaye v Lawrence: The Interpretation That Does Follow Heydon

Contrast Shah with the earlier decision in Kaye v Lawrence, where the Court of Appeal:

• Interpreted s.12 purposively to enhance protection for the Adjoining Owner.
• Recognised the preventive purpose of the Act and allowed security for expenses even where works were on the Building Owner’s land.
• Gave the statutory scheme real teeth, helping to keep disputes within the Act rather than spilling back into court.

🧨 8. The Structural Paradox in a Single Sentence

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The Act was intended to prevent disputes by requiring notices. The Court of Appeal has held that if notices are not served, the Act does not apply. The Act is therefore least effective when it is most needed.

A Building Owner now has a material incentive not to serve notice, because doing so is the only way to become bound by the Act. As a piece of legislative design, this is as close as one gets to self-sabotage.

🛠️ 9. What Needs to Change? Options for Reform

On a Heydon’s Case analysis:

• Shah revives the mischief of neighbour litigation.
• Frustrates the remedy of expert, front-loaded awards.
• Undermines the purpose of the statute and the logic seen in cases like Kaye.

Practical reform options could include:

1. Deeming provision: commencement of clearly notifiable works without notice is deemed to constitute service of notice on that date.
2. Adjoining Owner self-help: give AOs an express statutory right to invoke s.10 where works are plainly notifiable but no notice has been served.
3. Court referral power: allow courts, on application, to remit matters to surveyors under the Act even where notice was not served, restoring the role of awards as the primary dispute-resolution tool.