CAVEAT
P&T MEMBERSHIP
The names portrayed below refer to people in their professional capacity and are openly available on the internet either by way of their websites or the P&T website https://www.partywalls.org.uk/club_structure They were also transmitted to me in unsolicited emails. It is obvious that, in P&T’s view, Mr David Turner Chartered Surveyor was promoting excellence in his approach to the matter when I served an ‘unappealed’ ex parte Award.
Despite David Turner complaining to P&T that I did not understand the processes of sections 10(6) + (7) he admitted in the Watford County Court (December 2018) that the ex parte Award I served was valid!
Perspective: the dates and reference were ‘at the time of writing’ and therefore may have changed. i.e. I am no longer a member of P&T
related article Promoting Excellence [opens in new window]
It should be noted that in an appeal of a party wall award made by Andrew Schofield of Schofield Surveyors & Stuart Birrell of Murray Birrell Surveyors, HHJ Parfitt heavily criticised both Schofield & Birrell…only some of the comments are shown here:
THOMAS ASH - and - SHAYNE TRIMNELL-RITCHARD
34. Ground four:
"The authorised works throughout are the terms by destructive notice' under the Act."
HHJ: Yes, that is the reason fundamentally why this award is bad, for the reasons I have already given. I will not need to go and do no need to go into that in any more detail.
41. Ground eight:
"Responsibility for the cost of the works."
HHJ: In short, I agree with the position of the Appellant in relation to this, that the costs fell to be dealt with, and should have been dealt with, pursuant to Sections 11(5) and 13, and that the way in which this award purported to deal with them was improper and outside of those requirements, and the way the award dealt with those costs could not have stood.
42. Ground nine:
"Responsibility for the surveyors' fees."
HHJ: I do not need to say any more about that since I am setting aside the whole award and that will go as well. In conclusion, the appeal succeeds for the reasons argued by Mr Frampton for the Appellant and as I have set out in this judgment.
On 23rd July 2018, following a complaint by fellow P&T member David Turner, I was summoned to a meeting with Mr Stuart Birrell FRICS, apart from being director of Murray Birrell chartered surveyors of 128 Mount Street, Mayfair, London, W1K 8NU he is also a committee member of the London branch of P&T.
At the meeting with Mr Stuart Birrell and Shirley Waldron, Mr Birrell declared the ex parte Award invalid. However, David Turner the surveyor who raised the complaint subsequently admitted in December 2018 to the Judge in the Watford County Court, Case No: E5QZ6E7Y, that the ex parte Award was valid, even to the point of relying upon sections of the ex parte Award for his own benefit! What does that say about David Turner, P&T and the basis of David Turner’s complaint?
On 7th September 2018 I received the following from Mr Andrew Schofield BSc. FRICS, director of Schofield Surveyors chartered surveyors in his capacity as National and Branch secretary of P&T..
Dear Mr Kyson
Following the complaint made by David Turner and your meeting with representatives of the Club to discuss his concerns, a decision has been made not to invite you to renew your membership. This is because you have failed to accept that your behaviour was inconsistent with that expected of a member, as outlined in the protocol, or to modify it in the future.
Pyramus & Thisbe is a Club and a Learned Society with the aim of promoting excellence in party wall practice, it is not a professional or trade organisation. Membership is by invitation and you are of course at liberty to re-apply in the future and to attend events organised by the Club as a guest. Please make sure that you remove all reference to membership or association with the Club from any literature, including websites and electronic mail.
Yours sincerely,
Andrew Schofield BSc FRICS
National & London Branch Secretary
It appears that Mr Andrew Schofield and the other London Branch committee members interpret the Act as they wish to see it instead of reading what it actually states.
The above actions were as a result of a complaint put to the P&T by Mr David Turner MRICS C.Build E FCABE FFPWS ACIArb MAE of David Turner Chartered Building Surveyors, 7 Spooners Drive, Park Street, St Albans, Hertfordshire AL2 2HX.
You will note that it clearly does not revoke my membership but informs me that I will not be invited to renew it.
This has been written out rather quickly and I will be elaborating on this later….
I must admit I was surprised and disappointed at the action taken by P&T, however, it has shed a new light on the approach taken by them and their views. I had to take ex parte action to enable the BO to commence work as he was about to lose his builder and I could make no sensical headway with the AOS so I served an ex parte Award in accordance with both sections 10(6)+(7) and with my AO’s full support - insistence would be more accurate.. I do not take such action lightly nor without first discussing the matter and procedure with my AO!
P&T’s actions condone David Turner MRICS C.Build E FCABE FFPWS ACIArb MAE ’s approach to party wall matters.
Despite not having a disciplinary procedure my details were soon removed from the P&T website and I was denied access. They still held onto to my membership fees though! Are these in themselves not disciplinary actions?
The complaint was upheld, the email informing me of this came from the National & London Branch Secretary Mr Andrew Schofield of Schofield Chartered Surveyors, therefore, as Ms Shirley Waldron of Delva Patman Redler LLP Vice Chairman of the National Council and Stuart Birrell of Murray Birrell Chartered Surveyors, this must confirm that both the London & National committees are in agreement as to the correctness of the questions put to me.
I have not touched on the ‘do as we say not as we do’ element on this page as yet nor have I added any details on how a relatively high profile P&T member sought to use the third surveyor for punitive measures against me and tried to drag his appointing owner into a dispute for his own personal gain. I will elaborate on this in due course.
As a point of interest Case No. C20CL075 of 13th December 2017 in the London County Court between (1) Lahrie Mohamed (2) Shehara Lahrie - and - (1) Philip Antino (2) Raymond Stevens shows that, with regard to P&T, the contents of the Consent Order agreed between the parties excludes certain P&T members!
The Agreed Surveyor shall be appointed by agreement between the parties, or in default of agreement within three days of the date hereof, shall be appointed by the President for the time being of the RICS, save that President shall not appoint any of the following, namely: …
(3) Chris Zurowski, Andrew Schofield or Graham North, being the current officers of the London Branch of the Pyramus & Thisbe club.
I wonder why ?
Party wall matter
I will elaborate on what happened and the events leading to my ex parte Award and why I believe P&T view that a ‘10 day notice’ is a requirement of the Act irrespective of whether a ‘request’ has been served is wrong.
According to Mr Stuart Birrell, speaking on behalf of P&T, there is a requirement within the Act for a ‘10 day Notice’ to be served for both sections 10(6) + (7) irrespective of whether a request is made. I believe this was a requirement of the predecessor Act not the current Act.
click here for my views of 10(6) + (7)
the meeting
Mr Turner complained to everyone including the P&T, subsequently with regard to my P&T membership I received the following from Mr Stuart Birrell FRICS, director of Murray Birrell chartered surveyors of 128 Mount Street, Mayfair, London, W1K 8NU
Dear Mr Kyson
Further to our telephone conversation, I am writing on behalf of the Pyramus & Thisbe Club.
A complaint has been received from David Turner regarding matters relating to 1st adjoining owner [name removed by LK]. A copy of the letter of complaint is attached. We have copious other documents which relate to this matter.
You will appreciate we are not a professional body and do not have a disciplinary procedure. We are a club and learned society, we exist to educate and promote good practice but we do expect members to behave in a manner befitting the club and comply with the Code of Protocol.
We would like to discuss the following with you:
Not negotiating meaningfully regarding suggested alterations to the draft award.
Serving an ex parte award without giving notice under clauses 10(6) or 10(7) and not informing the other surveyor of your actions.
Not engaging regarding suggested referral to third surveyor.
Not providing complaints procedure when requested (RICS Regulation).
As such we would like to arrange a meeting to discuss the matter with you. It will be with myself in my capacity as a committee member of the London Branch, together with Shirley Waldron, Vice Chairman of the National Council. We would suggest the following dates; 22nd or 23rd August or 4th September pm or 5th or 6th September. We will arrange for a room to be available in central London, probably at my Mayfair office.
Regards
Stuart Birrell (for and on behalf of The Pyramus & Thisbe Club)
The meeting between myself, Mr Stuart Birrell and Ms Shirley Waldron B(Arch) Hons Dip. Arch RIBA of Delva Patman Redler of Thavies Inn House, 3-4 Holborn Circus, London EC1N 2HA in 2014 took place on 22nd August 2018 at 10:00.
I will be responding here in more detail but you only have to read the questions. Were the questions really written by P&T committee members telling someone else they are wrong? Mr Birrell & Ms Waldron, both committee members of the P&T were telling me I was wrong as I was in breach of questions put before me!
Personally, I find the questions themselves do not exactly instill one with confidence or that the authors of such questions are fully conversant in the Act and furthermore, are not what I would expect from the committee of a ‘learned society’. After all it is the London committee and the national and London branch secretary who condone the questions, otherwise they would not have upheld the complaint.
Just some of my reasons are given below to the questions raised by Mr Stuart Birrell and Ms Shirley Waldron. Bearing in mind they are both committee members of P&T a ‘learned society’ in the pursuit of excellence; they appear to have lost their way and are pursuing something other than excellence.
Not negotiating meaningfully regarding suggested alterations to the draft award.
I find it difficult to comprehend that a surveyor with the credentials MRICS C.Build E FCABE FFPWS ACIArb MAE would insist on the amendments as put forward by Mr David Turner, some of which will be highlighted above later, especially in regard to raising questions about ownership of the building owner’s property some 3 months after notice was served, which related to a completely different building. David Turner had just carried out a schedule of condition with me on the property…
Serving an ex parte award without giving notice under clauses 10(6) or 10(7) and not informing the other surveyor of your actions.
Where are ‘clauses’ 10(6) + (7) in the Act? the Act only refers to ‘sections’ and ‘subsections’. The Act is legislation, not a contract.
Where in the Act is it a requirement for ‘giving notice’ under clauses (??) (6) +(7)? The Act clearly states under section 10(7) ‘…neglects to act effectively for a period of ten days beginning with the day on which either party or the surveyor of the other party serves a request on him…' Both Stuart Birrell and Shirley Waldron kept insisting that ‘request’ is ‘notice’, to the extent that when reading out to me that section of the Act Mr Birrell kept replacing ‘request’ with ‘notice’, and that there is a requirement to serve a 10 day notice irrespective of whether a request has been made. Furthermore, under 10(6) there is no requirement for such notice, neither Stuart Birrell nor Shirley Waldron could point to any relevant section of the Act supporting their view. I have elaborated more on this in my views on section 10(6) + (7).
Neither Mr Birrell nor Ms Waldron could point me to any relevant sections of the Act relating to informing the ‘other surveyor’ of my actions. I did not inform the other surveyor because both sections 10(6) + (7) state ‘..and anything so done by him shall be as effectual as if he had been an agreed surveyor.’ The Award is not the property of the other surveyor and the dispute between the parties was resolved. If the owner receiving the ex parte Award chooses to, they can advise their surveyor accordingly. If they choose not to inform him, who am I to decide against their wishes.
It is interesting to note that the Green Book 3rd Ed. does not support their statements in relation to s10(6)+(7), when I pointed this out, asking them for a copy of the Green Book, I was surprised to learn that Mr Birrell does not have a copy in his office! Two P&T committee members without a copy of the Green Book between them? I should have brought my own but had decided to leave it behind as I did not wish to carry books across London with me; after all I had been summoned to a meeting in Mr Birrell’s Mayfair office. I wrongly assumed he would have relative reference to books to support his accusations.
On the basis that I did not also serve a ‘10-day notice’ Mr Birrell declared my ex parte Award ultra vires.
Not engaging regarding suggested referral to third surveyor.
email from Mr Turner on 7th November 2017
Good Morning Mr Kyson,
Thank you for the email.
I select Graham North as Third Surveyor.
As stated above Mr Turner on 4th February 2017 Mr Turner’s suggested referral stated ‘Clearly, I do not think that you and I are going to see eye to eye on this and I think that the Third Surveyor will have to make the Award with one of us. I shall try to contact Andy Schofield shortly to move matters on.’ and following up with
‘Andy Schofield is happy to make an Award with us. He suggested a meeting which the three of us attend, with a view to all three of us preparing the Award. Perhaps you would let me have your thoughts.
My thoughts? I responded ‘Good morning David, Mr Schofield is not the Third Surveyor.’ Quite clearly I did engage.
What kind of question is this? How can I engage in such matters when Mr Schofield was not the Third Surveyor?! Is asking the wrong Third Surveyor to enter into an Award acting effectively? Obviously P&T believe it is.
Is there a requirement in the Act to engage with a suggested referral to the third surveyor? given that section 10(10) states ‘..all three or any two of the surveyors..’ or section 10(11) ‘…either of the surveyors may call upon the third surveyor…’
Not providing complaints procedure when requested (RICS Regulation).
It should be noted that RICS rejected David Turner’s complaint in its entirety, quite correctly given their guidelines as stated below. However, Mr Stuart Birrell decided to uphold this complaint, as did Ms Shirley Waldon and Mr Andrew Schofield.
Obviously P&T put themselves, or at least Mr Stuart Birrell, Ms Shirley Waldon and Mr Andrew Schofield do, above RICS. Mr Stuart Birrell of Murray Birrell had the audacity to provide me with a copy of the Rules of Conduct which had nothing to do with David Turner! If we read the RICS guidelines
‘Complaints - Find out how to make a complaint about RICS, or an RICS-regulated firm or professional’ at https://www.rics.org/uk/footer/contact-us/complaints/ you will see that stage one states
There are some types of complaint where the firm’s CHP may not apply: for example, where a surveyor is acting as an expert witness in litigation, or in the UK, where a surveyor is acting in a matter relating to a party wall and the complaint falls within the areas of dispute which must be resolved under the party wall legislation.
RICS Practice Standards, Party wall legislation and procedure UK 6th edition, guidance note states at p13
RICS recognises the statutory independence of the surveyor in party wall matters and considers that the CHP does not apply to a surveyor during the statutory process. Both surveyors and owners should fully understand that nothing in the RICS Rules of Conduct or the RICS CHP can adjust or modify an award, as this can only be achieved via an appeal. RICS therefore will not deal with a complaint brought under the CHP against a party wall surveyor until after any appeal to the court has been fully considered and determined.
Neither Mr Stuart Birrell, Ms Shirley Waldon and Mr Andrew Schofield appear to agree with RICS and have gone off on a frolic in determining that RICS were wrong to reject David Turner’s complaint regarding CHP and have implemented punitive measures against me themselves.
RICS recently commented in response to an unfounded complaint ‘You have advised that Mr Lee [Kyson intended] did not provide you with his CHP, however I note that Mr Lee did advise you that if you provided your complaint to him he would respond, as he is a sole practitioner, his CHP would involve you writing to him in the first instance.’ Why is it Stuart Birrell & Shirley Waldon both disagree with Andrew Schofield with all three disagreeing with RICS subsequently making a decision on behalf of RICS that I am guilty when RICS say I am not! Bizarre.
Mr David Turner is not a client of mine, the Award was not appealed, furthermore David Turner is seeking to enforce his fees in the County Court. Incidentally the fees were awarded to him by Graham North in an erroneous purported third surveyor award. David Turner did eventually make contact with the correct Third Surveyor, once I had advised him.
I will be elaborating on this particular point as some quire interesting points have arisen since their decision, which point to it being paradoxical.
I had not sought to make a complaint about any P&T member, however, I had asked for a copy of a Ms Shirley Waldon’s CHP. I did not receive a copy of her CHP, apparently she does not know what it is! ‘What is the protocol?’ is what she stated in an email to Mr Andrew Schofield, instead I received the following from Mr Andrew Schofield in his capacity as National Secretary of the P&T
Dear Mr Kyson,
If you wish to make a complaint about a member of the Club you are of course at liberty to do so. The procedure is that you write to the Chairman or Secretary of the members branch, describing your concerns and relating it to the protocol. The members branch will then decide whether there are grounds to look into the matter further and refer it to Club Management Team. The National Chairman will select a panel which will comprise a member of the MT, and usually individuals from the relevant branch and committee. Pyramus and Thisbe is a Club and Learned Society, membership is by way of invitation; it is not a professional or trade organisation and as such it does not have formal complaint or disciplinary procedures. The primary purpose of the organisation is that of education and this includes behaviour appropriate to an individual charged with determining disputes.
Yours sincerely,
Andrew Schofield BSc FRICS
National & London Branch Secretary [verbatim]
Apparently this informs me that there is no procedure to follow if you wish ask for a P&T member’s CHP, unless of course you’re asking for mine…. This response appears, once again, to be paradoxical. I never received a copy of Ms Waldon’s CHP. On this basis was David Turner correct in his procedure of asking me for of my CHP? should he have made the complaint directly to the committee instead? The letter from Mr Andrew Schofield clearly indicates that you cannot ask for a member’s CHP but instead you must raise a complaint with the Chairman or Secretary of the member’s branch. In essence David Turner should have just made his complaint to the Club management, which he did anyway, but on the basis of Mr Andew Schofield’s letter he should not have asked for my CHP. Draw your own conclusions, what is more bizarre is that the above correspondence clearly states Pyramus and Thisbe is a Club and Learned Society, membership is by way of invitation; it is not a professional or trade organisation and as such it does not have formal complaint or disciplinary procedures. Despite this statement and still currently [at the time of writing] a member my details have been removed from the P&T website and access to the website has also been revoked. Is this not taking disciplinary action?
I quite clearly did provide David Turner with the procedure to follow if he wished to raise a complaint against me. The procedure can only be explained to someone and this is what I did, I explained the two step process as required by the Faculty of Party Wall Surveyors with whom we were both members and were bound by their Code of Conduct, which does not require the matter to be in writing. The CHP is a process of actions therefore, you can only the process to be followed which must then be instigated by the complainer. What I find somewhat bizarre is that I did explain the Complaints handling Procedure to David Turner and he successfully managed to raise his complaints! Success, it worked much more successfully than envisaged as David Turner raised the complaint with the FPWS, RICS, CIOB and P&T, as of course Mr Stuart Birrell is well aware of.