⚖️ Kyson & Power v Shah: Why the Court of Appeal Got the Party Wall Act Wrong

📌 This is my opinion only

In Kyson & Power v Shah [2023] EWCA Civ 239, the Court of Appeal (Lewison LJ; Coulson LJ; Laing LJ) held that if a building owner undertakes notifiable works without serving notice, the Party Wall etc. Act 1996 does not apply, and surveyors therefore have no jurisdiction under section 10.

This ruling has sparked serious concern in the surveying and legal professions. It effectively rewards non-compliance, undermines the protective function of the Act, and contradicts both Parliament’s intention and the plain wording of the statute.

🏛️ What the Court Decided

The Court held:

• The Act’s procedures only apply if notice is served.

• Without notice, there is no "building owner" under the Act, and no dispute within the Act's meaning.

• As a result, adjoining owners must rely on common law remedies, such as nuisance or trespass — potentially involving costly litigation.

❌ Why This Is Problematic

🎯 1. It Undermines the Purpose of the Act

The Act was introduced to prevent expensive neighbour litigation. It created a self-contained, expert-led system for resolving disputes. The Court’s ruling defeats this purpose by forcing adjoining owners back into the courts — the very mischief the Act was designed to cure.

📖 2. It Ignores the Language of Section 10

Section 10 refers to:

“any matter connected with any work to which this Act relates.”

Parliament deliberately chose not to tie dispute resolution to service of notice. The 1996 Act was drafted to break from predecessor legislation, which did make notice a jurisdictional precondition. Had the draughtsmen of the Act wanted to keep the ‘notice’ provision they would’ve stated that as did for other sections i.e. section 6 - elaborated where it was felt the 1939 Act fell short.

The word “relates” is broad. It means:

• The nature of the work is what matters — not whether a notice was served.

• Unauthorised works can still relate to the Act.

By ignoring this, the Court introduced a requirement that doesn't exist in the statute.

🤯 3. It Creates Absurd Outcomes

If a building owner serves a defective notice, the Act applies.

But if no notice is served, the adjoining owner gets no remedy under the Act.

The worse the breach, the less the protection.
A building owner can defeat the Act by simply ignoring it.

🔒 4. It Undermines Finality and Certainty

The Act’s award mechanism is meant to provide finality. Once an award is made, it settles the dispute. Any further disputes are new disputes under section 10.

However, the Court relied on section 55 of the 1939 Act — which linked jurisdiction to notice — yet ignored section 55(2), which expressly allowed surveyors to act during ongoing works, and in subsequent disputes arising from them.

This inconsistency destabilises the regime:

• Awards may now be challenged as void if no notice was served.

• Surveyors lose authority to resolve post-works issues.

• Practitioners cannot rely on what is and isn’t valid.

🎭 5. No Other Statute Works This Way

The Act is now treated as voluntary — triggered only if the party it regulates (the Building Owner) chooses to comply.

Nowhere else does breaching a duty eliminate the law itself. This makes the Party Wall Act, as interpreted, anomalous and self-defeating

🔄 6. A Statutory Paradox: When Does the Act Apply?

The Act’s own language shows it applies based on facts — not procedure:

• Section 1(1): “This section shall have effect where lands of different owners adjoin…”

• Section 2(1): “This section applies where…”

• Section 6(1): “This section applies where a building owner proposes to excavate…”

None of these say the Act applies only if notice is served. In fact, notice is required because the Act applies.

Yet the Court reversed this logic:

The Act applies → So notice must be served → But if notice is not served → The Act doesn’t apply.

This is circular and absurd. It allows a party to nullify the statute by breaching it.

🧱 Logical Flow of Section 1 – According to Statute (Not the CA)

⚠️ The Court of Appeal's Circular Logic (Critiqued)

This reverses the logic of the statute, treating procedural failure as jurisdictional immunity — which is contrary to most statutory construction principles, especially those governed by:

📚 Drafting Precedent: Craies on Legislation (12th Ed.)

“A statute which imposes duties and obligations based on physical or legal facts cannot be circumvented merely by the inaction of the person upon whom the duty falls.”

Also supported by:

• R (G) v Governors of X School [2011] UKSC 30

• Heydon’s Case (1584) — mischief rule

• Smith v Hughes [1960] — purposive reading beyond literal meaning

🕰️ Why Heydon’s Case Still Matters: A Missed Opportunity for Purposive Interpretation

Heydon’s Case (1584) is one of the oldest and most enduring rules of statutory interpretation. It asks:

What was the mischief? What remedy did Parliament create? What is the true reason for the remedy?

The House of Lords reaffirmed it as good law in the 1960s, and it remains central to purposive interpretation.

Importantly, Heydon’s Case was raised at all three hearings in Power v Shah — including at the Court of Appeal — but the judges disregarded it.

They could have — and arguably should have — used it to justify a broader, purposive reading of section 10.

🧮 Table: Literal vs Mischief Rule Approaches

⚖️ The Nutt v Podger Contradiction

In Nutt v Podger, the judge ruled that no notice = no Act, but still imposed a penalty on the BO for breaching the Act.

That’s a contradiction:

If the Act didn’t apply, what exactly was breached?

The same logical inconsistency now infects Power v Shah. Courts are punishing breaches of a law they say doesn't apply.

⛔ Historic Injunctions Now Legally Baseless?

For years, courts have granted injunctions to stop works where no notice was served, based on breaches of the Act.

But under Power v Shah:

No notice → No Act → No breach → No basis for injunctions

This means:

• Previous injunctions may have been without jurisdiction

• Entire lines of authority now sit on unstable ground

✅ Final Conclusion

Power v Shah marks a dangerous departure from the Act’s protective foundation.

Its key failings:

• ⚠️ It rewards non-compliance

• 🔁 It introduces circular statutory logic

• 📉 It destabilises surveyors’ authority

• 📜 It ignores clear statutory language (especially "relates" in s.10)

• 🕰️ It disregards centuries of settled interpretive principle (Heydon’s Case)

• 🧩 It makes the Act less protective the worse the breach

Parliament may now need to intervene to restore the Act’s clarity and purpose.

📎 Footnote: Heydon’s Case (1584) and the Mischief Rule

Heydon’s Case (1584) 3 Co Rep 7a, 76 ER 637, is one of the most enduring authorities in English legal history. Decided by the Court of Exchequer, it laid down what is now known as the "mischief rule" — a principle of statutory interpretation which asks judges to consider:

What was the common law before the statute?

What was the mischief and defect the statute was intended to remedy?

What remedy did Parliament resolve upon?

What is the true reason for that remedy?

Under this rule, judges should interpret statutes in a way that suppresses the mischief and advances the remedy, even if that requires going beyond strict literalism.

🏛️ Modern Status: Heydon’s Case Still Good Law

Heydon’s Case has been repeatedly reaffirmed as binding and good law, even in the era of purposive and contextual interpretation.

✅ Reaffirmed in:

• Royal College of Nursing v DHSS [1981] AC 800 (HL)
  Lord Diplock called the mischief rule “the modern approach.”

• Pepper v Hart [1993] AC 593 (HL)
  Allowed reference to Hansard when interpreting ambiguous statutes, reflecting a purposive approach rooted in Heydon.

• R (Quintavalle) v Secretary of State for Health [2003] UKHL 13
  Lord Bingham applied the mischief rule to include embryos created through cell nuclear replacement.

• R (UNISON) v Lord Chancellor [2017] UKSC 51
  The UKSC used a purposive mischief approach to invalidate employment tribunal fees that frustrated access to justice.

• Gubarev v Orbis Business Intelligence Ltd [2020] EWHC 2912 (QB)
  The High Court applied the mischief rule to interpret the Data Protection Act 1998.

⚖️ Relevance to Power v Shah

In Power v Shah [2023] EWCA Civ 239, Heydon’s Case was expressly cited by counsel at all three levels of the proceedings — but not engaged with by the Court of Appeal.

This is significant because:

• The mischief Parliament sought to cure in the Party Wall etc. Act 1996 was:

  Costly, adversarial, and unpredictable litigation between neighbours over boundary and structural works.

• The remedy was:

  A statutory notice and dispute resolution scheme run by independent surveyors, not the courts.

• The true reason for the remedy was:

  To provide adjoining owners with clear, accessible protections without relying on complex tort actions.

By adopting a literalist interpretation, the Court of Appeal arguably revived the very mischief the Act was meant to suppress — thus violating the principle of Heydon’s Case.

🧠 Summary

Heydon’s Case (1584) underpins the “mischief rule” — a principle requiring statutes to be interpreted in a way that suppresses the mischief they were designed to cure. It has been upheld by the House of Lords and Supreme Court in multiple modern cases. Its disregard in Power v Shah is arguably a doctrinal error.

✅ Power v Shah
⚖️ Louis v Sadiq
🔁 Nutt v Podger
🔒 Blake v Reeves
📜 Kaye v Lawrence
📚 Bibizadeh v Dodosh
🚫 Woodhouse v Consolidated