Van Maanen v West Greenwich Developments LLP

Building contract – Dispute resolution – Dispute arising over works involving party walls – Claimant surveyor making ex parte award – Dispute resolution provisions in section 10(6) and (7) of Party Walls etc. Act 1996 invoked – Claimant seeking payment of fees from defendant developer – Both parties applying for summary judgment — Whether claimant entitled to make award ex parte – Whether claimant entitled to seek fees from defendant – Claimant’s application dismissed – Defendant’s application grantedThe defendant carried out building works to which the Party Walls etc. Act 1996 applied. It appointed E to act as its surveyor pursuant to section 10(1)(b) of the Act and E served the appropriate notices on the adjoining owners. The latter did not consent to the works and, pursuant to the Act, a dispute was deemed to have arisen. The adjoining owners then appointed the claimant as their surveyor and a third surveyor was agreed in accordance with section 10.The claimant suggested that E’s letter of appointment did not accord with normal practice. Following a site meeting on 3 March 2008, the claimant wrote a number of letters to E raising the same concerns and, when he received no response, sent a letter, dated 14 April 2008, purporting to give notice under section 10(6) and (7) of the Act.Section 10(6) provided that if a surveyor appointed under section 10(1)(b) refused to act effectively, the surveyor of the other party could act ex parte and anything so done by him should be deemed to be as effectual as though he had been an agreed surveyor. Section 10(7) provided that if such a surveyor neglected to act effectively for a period of 10 days beginning with the day on which either party or the surveyor of the other party served a request on him, the other surveyor could proceed to act ex parte and anything done by him should be as effectual as if he had been an agreed surveyor.E explained that this delay resulted from amendments to the foundation design drawings in responding and maintained that his appointment was valid and that the building owner was not carrying out works in breach of the Act. The claimant continued to challenge E’s appointment and subsequently wrote to the defendant enclosing an ex parte award together with an invoice for £9,947.90.The defendant refuse to pay and the claimant brought proceedings for payment of his fees. The defendant argued that the claimant did not have the power to make an ex parte award and had no right or standing in law to request it to pay his fees. The claimant sought an order striking out the defence or, alternatively, summary judgment on his claim. The defendant applied for summary judgment on its defence.Held: The claimant’ application was dismissed; the defendant’s application was granted.In order for a surveyor to make an ex parte award, the other surveyor would have to have refused to act effectively, pursuant to section 10(6). On the evidence, E was proceeding under the provisions of the Act as well as he could, bearing in mind that there had been a delay owing to amendments to the foundation design drawings. Moreover, there was no evidence that the works contravened the Act. On the evidence, E had not refused to act effectively and the claimant was not entitled to invoke section 10(6).Neither was he entitled to rely on section 10(7) because that would necessitate the other surveyor having neglected to act effectively for a period of 10 days beginning on the day on which either party or the surveyor of the other party served a request on him. That required the request to be in respect of a particular matter that did not occur. In any event, the claimant had not relied on that subsection in his particulars of claim. It followed that the claimant was therefore not entitled to make an ex parte award. Any fees that might properly be due were payable not to the claimant directly but to the adjoining owners, who would then be liable to pay the claimant. Since the latter was not appointed by the defendant there could be no contractual relationship between them. It was possible that, as a matter of convenience, the building owner paid the adjoining owners’ surveyors directly, but that was not the legal position. The claimant therefore had to look to his employers for payment of his fees: Onigbanjo v Pearson [2008] BLR 507 applied. The defendant was entitled to summary judgment as the claimant had no prospect of success.The claimant appeared in person; Laura Collignon (instructed by Child & Child) appeared for the defendant.Eileen O’Grady, barrister