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Court clarifies time limits to appeal Party Wall awards

10 January 2013
The law currently enshrined in The Party Walls etc Act 1996 has evolved over a period of centuries.  As I found to my disappointment when preparing to talk to The Pyramus & Thisbe Club (www.partywalls.org.uk/) on the topic of "recent developments", the case law has similarly developed at a snail's pace.  The Act has often been criticised for a lack of clarity, but the majority of practitioners in this field are surveyors, and they have tended to take a purposive, commercial and practical approach to Party Wall procedure.  The result has been that uncertainties within the statutory regime have remained largely untouched by the courts.

It was therefore with what might seem to be a disproportionate level of enthusiasm that I read not one but two decisions this year in the case of Freetown v Assethold Limited (first in the High Court and then, in December 2012, the Court of Appeal) concerning calculation of the time limits for service of notices and appeals under the Act.

The Act provides a dispute resolution procedure to protect the interests of an adjoining owner, whilst giving a building owner the rights it needs to carry out certain works (broadly, works to a party wall or structure or digging foundations to a level which might cause disturbance to the adjoining owner's property). This is usually achieved by an expert surveyor making a binding "award" whenever a dispute has arisen or is deemed to have arisen between the parties as to how the works should be carried out. 

The Act sets out certain notice procedures and provides that a dispute will be taken to have arisen if the neighbour serves a particular form of counternotice or, in some cases, fails expressly to consent to the works within a prescribed timeframe.  The expert surveyor's award can be appealed within 14 days of service.  The Act therefore contains a number of strict deadlines, and it was not until early 2012 that the High Court was called upon to answer the question from when notices and awards are taken to have been served and the associated time limits run.

The High Court decided that a notice or award under the Act should be deemed served when it is "consigned to the post", regardless of when or whether it was received.  This is the way the law operates in relation to notices under section 23 of the Landlord and Tenant Act 1927, and the High Court said that this rule creates certainty of proof of service.  While the decision clarified the time limits under the Act, the practical consequence was rather undesirable. At best, it had the effect of shortening the time a recipient had to respond to a notice or appeal an award. At worst, it could deprive a party altogether of the ability to lodge a response or appeal in time.

The Court of Appeal overturned the High Court's decision, giving a result that is fairer in practice.  Lord Justice Rix said in his judgment that there was nothing in the Act which excluded the effect of section 7 of the Interpretation Act 1978, which is mandatory unless excluded.  As such, section 7 (which deems service to have been effected on the day it would have been delivered in the ordinary course of the post) applies to service under the Act. One immediate and welcome consequence of this decision is that the recipient of an award is more likely to enjoy a full 14 days in which to review the award, and decide whether to appeal.

There is still plenty of scope for missing critical statutory deadlines.  Section 7 creates a rebuttable presumption that a notice or award has been served on the date it would have been received in the ordinary course of the post even if it is not actually received on time or at all. It is therefore advisable that the parties to an award request in advance that it be delivered by hand and that, where there is any possibility of miscalculating the deadlines, they serve  counter-notices or lodge appeals well within the prescribed time limits.

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