Adjudication win

Lee was asked to assist in an adjudication…with only 1 day left to respond against a £400k claim…. Feb 2022

“Hi Lee

Fabulous news in that we have just heard that the adjudication has gone in our favour.

Really appreciate you helping us out at such short notice and giving us your expert opinion.”

— Kisiel Group

Lee Kyson has been asked to sit on the Standards committee of the FMB

Lee has been asked to sit on the Standards Committee of the Federation of Master Builders to help deal with complaints against builders should they arise for any breaches of the Code of Conduct. So may possibly post more following the next meeting.

Court of Appeal grants permission to appeal the Shah v Kyson & Power decision

Lee Kyson, as a litigant in person has been granted by the Court of Appeal to appeal the decision of Eyres J in the Shah v Kyson & Power case,

The case was heard at County Court level and the decision of HHJ Parfitt was appealed to the Queens Bench division of the High Court. The appeal was unsuccessful so Lee sought permission to appeal to the Court of Appeal which was granted. The Court of Appeal will only grant permission to appeal if they believe there is a real prospect of success and/or it is in the public interest.

High Court decision erroneous? Lee believes it was.

High Court dismisses appeal in Shah v Power & Kyson [2022] EWHC 209 (QB) is the Act now rendered superfluous?

The High Court handed down its judgement on Friday 11th February 2022. Rather disappointingly the appeal was dismissed. Personally I do not agree with the judgement and cannot see how a building owner, apparently not wishing to exercise his rights under the Act but does so anyway can decide that the Act doesn’t apply.

I have had many phone calls from people from all over the country waiting for this decision in the hope that the appeal would be allowed. Unfortunately most of these people will now have to live with the damage caused by their neighbouring building owner who caused damage and had refused to comply with the Act, simply because they do not have the funds to pursue the matter.

There is much reference to the surveyors / adjoining owner ‘unilaterally imposing the Act on the building owner’, despite the fact that the Act is already in force and places obligations on the building owner the moment he wishes to do notifiable works and there is an adjoining owner. I expressed my view to the court that the Act was already in force and as surveyors we merely applied the Act, we did not unilaterally impose it on the building owner but this seems to have been glossed over.

I find the ‘no notice - no Act’ scenario rather difficult to accept as it is the Act that places obligations upon the building owner to serve notice, therefore the Act is in force and is to be complied with.

There is no mechanism that disengages the Act if the building owner does not serve notice.

You can read the judgement here https://www.lkbc.co.uk/shah-v-power-kyson-appeal-dismissed

Stuart Frame makes a third surveyor award... then a draft addendum award.... then serves it by email - contrary to his 'opinions' supplied to others.

The adjoining owner’s surveyor made a referral to Stuart Frame, the selected third surveyor. Mr Frame then determined matters that were not in dispute… he then made a signed and dated draft addendum award in order to correct some of his errors…. I believe Mr Frame cherry picked from the Act in other matters to suit his own agenda that differ from what he awarded.

please feel free to comment and to read about it here

Justin Burns & Alistair Redler believe that they have a third owners' surveyor...

I served an ex parte award. The award was not appealed by either of the owners. Justin Burns made a referral to the third surveyor Alistair Redler…. they made an award which made provision for the building owner to pay the third owner’s surveyors’ costs… really? JB enforced his purported fees against a pensioner in the Magistrates Court…. read the award and feel free to make any comments here

HHJ Lethem in the Central London County Court upholds third surveyor award that the adjoining cannot request what health & safety provisions will be put in place.

Comments are invited in relation to this award which you can find by clicking on Alan Bright award…

Permission to appeal HHJ Parfitt's decision in Shah v Kyson & Power

As of 4th November 2021 we have been granted permission to appeal HHJ Parfitt’s decision regarding ‘Shah’ in the High Court.

Hopefully the court will see fit and overturn the decision ‘no notice - no Act’. This will enable surveyors to proceed with matters under the Act and afford the adjoining owners the protection intended. A correct decision will ensure that rogue building owners won’t be able to run rough shod over adjoining owners with limited resources.

This is being heard in the High Court as it was not an appeal of an award. The award was challenged in the County Court under a Part 8 claim, therefore, the appeal of the County Court decision is made in the High Court.

HHJ Parfitt changes his mind in Shah v Kyson & Power..

In a case virtually identical to ‘Yamin’ HHJ Parfitt handed down his judgement in March this year, which he concluded by saying ‘…For the reasons I have set out above, in my judgement the claimant is correct essentially for the reasons that Mr Paget so well summarised: no notice, no act. ‘ It should be noted that we, Kyson & Power as Defendants have requested an appeal. Many surveyors I have spoken to believe the judgement was wrong. In essence it removes protection of the legislation from an adjoining owner who does not have the finance to seek damages from a building owner who as sought to run rough-shod over their neighbour and caused damage to their property.

The judgement can be read here Shah v Kyson & Power.

On Thursday 23rd July 2020 the Pyramus & Thisbe Club hosted a webinar presented by

Robin Ainsworth BSc(Hons), Ainsworth Surveying Services Ltd, Party Wall Surveyors & Boundary Consultants, Conifer House, 5 Vernon Avenue Eccles, Manchester M30 0UE, Tel:      0161 789 4194     AinsworthSSL@btinternet.com

The general consensus was that HHJ Parfitt got it wrong.

Upgrade to 'Fellow'

Lee Kyson has just his membership of the Chartered Institute of Arbitrators upgraded to Fellow.