Landlord and tenant – Party wall dispute – Surveyor appointed under Party Walls etc Act 1996 making award in favour of respondent – Appellant seeking to appeal against award in county court – Recorder striking out appeal as being out of time – Whether time for lodging appeal running from posting or receipt of award – Appeal dismissed
The appellant was the freehold owner of land in London E1. The respondent was the long lessee of land immediately to the south of the appellant’s land. On 20 January 2011, the appellant served notices under the Party Walls etc Act 1996 in relation to development work it intended to carry out on its land. The respondent dissented from the notice giving rise to a dispute between the parties. The parties each appointed a surveyor who selected a third surveyor in accordance with section 10(1) of the 1996 Act. The third surveyor made an award dated 22 July 2011. The appellant sought to appeal that award to the county court. The respondent applied to strike out the appeal on grounds that it had been lodged out of time.
An issue arose as to when the 14 day time limit for appealing an award under section 10(17) of the 1996 Act began. The appellant contended that when the award was sent by post, time began to run on the date the award was received or deemed to have been received by a party. The respondent contended that when the method of service of the award was statutorily specified as an option, in this case, sending the award by post, time began to run when it was posted.
It was common ground before the recorder that, if the 14 day period started on the date the award was posted, the last day for lodging an appeal was 4 or 5 August 2011. The appeal had been lodged on 8 August. The recorder relied on the judgment of the Court of Appeal in CA Webber (Transport) Ltd v Railtrack plc [2003] EWCA Civ 1167; [2004] 1 EGLR 49; [2004] 14 EG 142 to hold that the award had been served on the parties, and time for an appeal had started to run, on the date it was posted by the third surveyor.
In reaching that conclusion, the recorder had considered the appellant’s submissions that such a construction would lead to injustice and would deprive the appellant of the right to a fair trial in breach of article 6 of the European Convention on Human Rights in accordance with section 3(1) of the Human Rights Act 1998.
The appellant appealed contending, inter alia, that the recorder had erred in holding that he was bound by the judgment in Webber since that case concerned a different Act (section 23 of the Landlord and Tenant Act 1954).
Held: The appeal was dismissed.
A construction of section 15(1) of the 1996 Act which treated service by post as effected when a document was consigned to the post provided greater certainty of proof of service than would one which depended upon evidence of receipt. In the present case, the award was to be served by a third surveyor who was not a party to the dispute. The objection that uncertainty as to date of service would arise because a party would have to enquire of the third surveyor when the award had been posted was far less than the uncertainty of relying on evidence of when the document had been received.
A primary method of service specified in section 15(1) affected both parties to a dispute on whom a third surveyor was to serve an award. Either party might wish to appeal an award. Neither party was advantaged by the start of running of time within which to appeal from the date the award was consigned to the post. A short period of time was given to a party who wished to appeal an award and a construction which provided that service was effected when an award was consigned to the ordinary post would result in the recipient having less than 14 days in which to appeal. Further there was no provision for an extension of time within which to appeal if the award was delayed in the post or did not arrive. While that construction might cause injustice in a few cases, that was an insufficient reason to displace that of a statutory provision, section 15 of the 1996 Act, which was materially indistinguishable from section 23 of the 1954 Act.
A proper construction of section 15, that service by post was effected when a document was consigned to the post, evidenced a contrary intention to the deeming provision in section 7 of the Interpretation Act 1978 which was predicated on service being effected when a document was received. There was no basis on which to distinguish section 15 in that regard from the conclusion reached on the non- applicability of section 7 to section 23 of the 1954 Act reached by the Court of Appeal in Webber.
Furthermore, for the reasons given in Webber by Peter Gibson LJ at paragraphs 46, 50 and 53 and by Longmore LJ at paragraphs 57 to 62, section 3 of the Human Rights Act 1998 did not require a construction of section 15 to provide that service by post was effected when a document was received not when it was consigned to the post.
Accordingly the court was bound by the judgment of the Court of Appeal in Webber to hold that the award was served on the appellant on 22 or 23 July 2011 in the present case so that their appeal lodged on 8 August 2011 was out of time.
Lawrence Power (instructed by The Chancery Partnership) appeared for the appellant; David Nicholls (instructed by Greenwood & Co) appeared for the respondent.
Eileen O’Grady, barrister
