The Remedial Vacuum

📜 What Bridgland Actually Decided

Bridgland v Earlsmead Estates Ltd (2015) is sometimes cited as supporting authority for the proposition that the Party Wall Act applies irrespective of notice. That’s true as far as it goes, but the full picture is more interesting — and, read against Shah, considerably more troubling.

The claimants alleged two things: that the defendant’s failure to serve a section 3 notice deprived them of the chance to serve a counter-notice (struck out on unrelated grounds), and that the defendant breached section 7(1) — the duty not to exercise Act rights “in such a manner or at such time as to cause unnecessary inconvenience to any adjoining owner.”

On the second point, Judge Grant held decisively that a building owner is bound by section 7(1) irrespective of whether or not he serves a party structure notice:

“A building owner is subject to the separate requirements of section 3 (1) and section 7 (1): the fact that he has failed to comply with the service requirements under section 3 (1) does not absolve him from the separate requirement not to cause unnecessary inconvenience under section 7 (1).” (§23)

So far, so consistent with the objective, act-based reading of the Act’s obligations discussed elsewhere on this site. But Grant went further. Relying on Lord Diplock’s principle in Lonrho Ltd v Shell Petroleum Co Ltd (No 2) — “where an Act creates an obligation and enforces the performance in a specified manner that performance cannot be enforced in any other manner” — he held that section 7(1) generates no free-standing cause of action in the courts at all:

“the fact that it contains a specific mechanism or procedure for the resolution of disputes in relation to ‘any matter’ connected with ‘any work’ to which the 1996 Act relates is a strong indication that a breach of such obligation is not actionable other than through or by such mechanism or procedure.” (§28)

The claim was struck out. Not because the building owner had escaped his obligations by failing to serve notice — Grant expressly rejected that — but because the only door to a remedy is section 10, and the courts are not an alternative route.

📜 What Crowley Actually Decided — and Its Own Internal Tension

Crowley v Rushmoor BC (2009) considered a similar question from the opposite direction. HHJ Thornton QC held that an adjoining owner facing unnotified works had three separate routes to compensation (§102–105): the Act’s own arbitration machinery, operated retrospectively; a claim for breach of statutory duty; or an ordinary common law claim in negligence, nuisance, or trespass.

But at §107, considering whether a breach-of-statutory-duty claim could succeed, Thornton reasoned that “if a building owner may not claim such loss as damages for breach of statutory duty, it could leave such a party without a remedy as a result of the offending party’s failure to operate the mandatory statutory provisions.” That justification only makes sense if the first route — retrospective operation of the Act’s own machinery — wasn’t reliably available. Judge Grant himself spotted this seam in Bridgland, at §31(2): “there is — or appears to be — a tension between paragraphs 103 and 107 of the judgment in Crowley… It is not… immediately clear how, if a remedy is available to a party through the retrospective application of the provisions of the Act, that such a party would in fact be left without a remedy.”

So even Crowley, taken on its own terms, isn’t a clean, unqualified statement that unnotified works always leave the Act’s machinery open. It’s a judgment straining to find some remedy for an adjoining owner, uncertain which of its own three stated routes will actually hold up.

⚖️ Tomsett v Paul: Not Commentary — an Actual Order

The clearest evidence that courts treated the Act’s own machinery as the live remedy for unnotified works isn’t a first-instance judgment discussing the point obiter. It’s an injunction actually granted on that footing, weeks before Shah was first argued.

In Tomsett v Paul (Business and Property Courts of England and Wales, Claim No. BL-2019-002364, 19 December 2019), a building owner had not served notice; the adjoining owner appointed a surveyor; the building owner nonetheless completed excavation and foundation works falling within section 6(1). The court granted a prohibitory injunction:

“The Defendants must not carry out or continue any building works… if such works are or would be works requiring a notice to be served under the Party Wall Act 1996. The Defendants may carry out or continue the works… if they have obtained an executed and finalised award under s10 Party Wall Act 1996 in respect of those works, or obtained the Claimants’ written consent.”

That order only makes sense on the premise that the Act’s own machinery — a section 10 award, or section 3(3)(a) consent — remained the available and appropriate route, notwithstanding that no notice had ever been served and the works had already begun. The court didn’t direct the parties toward a common law claim; it directed them back into the Act. And as with Louis v Sadiq, the order necessarily proceeds on a curative-notice premise the Act’s own timing provisions can’t literally satisfy — a notice served now cannot retrospectively supply the “two months before commencement” the statute requires, and yet compliance with the Act, not the common law, was what the injunction was built around.

If failure to serve notice truly disapplies the Act, this injunction has no coherent basis at all: the defendants would simply have had an unqualified right to continue at common law, and an order conditioning that continuation on obtaining a section 10 award would be asking them to seek authorisation from a mechanism that, on that view, was never available to them in the first place.

🕳️ The Vacuum That Opens When Both Are Read Against Shah

Put the three judgments together in sequence.

• Bridgland: a section 7(1) claim for unnecessary inconvenience cannot be brought in the courts at all. The only route is section 10.
• Crowley: an adjoining owner has three possible routes to compensation — but the judge’s own reasoning betrays doubt about whether the first (retrospective section 10 machinery) reliably exists at all, which is precisely why he felt driven to recognise breach of statutory duty as a fallback.
• Shah: section 10 has no jurisdiction whatsoever over a dispute where no notice was ever served. The Act’s machinery cannot be operated retrospectively to fill that gap.

Now ask what happens to an adjoining owner whose complaint is specifically that a building owner’s unnotified works caused unnecessary inconvenience — precisely the section 7(1) scenario in Bridgland. Under Bridgland, the courts have no jurisdiction; only section 10 does. Under Shah, section 10 has no jurisdiction either, because no notice was served. The adjoining owner is left with no forum at all — not the courts, which Bridgland closes off, and not the surveyors, which Shah closes off. Two courts, each acting entirely reasonably within the scope of the case actually in front of them, have between them constructed a complete dead end for a specific, foreseeable category of claim, without either court intending or even considering that result.

That is a sharper version of the “public interest” and “absurdity” objections to Shah than has been drawn out elsewhere. It isn’t simply that Shah leaves an adjoining owner facing a worse remedy (ordinary litigation instead of the Act’s cheaper machinery) — for a section 7(1)-type complaint arising from unnotified works, read against Bridgland, it leaves them with no remedy whatsoever. That is precisely the kind of result the ordinary presumption against Parliament creating a right without a remedy exists to guard against, and neither judgment engages with the other because neither had reason to — Bridgland predates Shah by eight years, and Shah doesn’t discuss Bridgland’s section 7(1) holding at all, only Judge Parfitt’s more general reservations about the case.

🔑 Conclusion

Individually, Bridgland and Crowley are unremarkable first-instance decisions resolving narrow procedural questions on their own facts. Neither is inconsistent with Shah in isolation. But Bridgland’s holding that section 10 is the exclusive route to a remedy for this category of claim, combined with Shah’s holding that section 10 has no jurisdiction at all without a notice, produces a result neither court considered: a category of genuine, foreseeable harm — inconvenience caused by unnotified works — for which the law, taken as a whole, currently provides no remedy anywhere. Tomsett shows that result isn’t merely theoretical — it’s the inverse of an order a court actually made. That gap is not obiter, and it is not academic. It follows directly from applying both holdings exactly as written.