Transcript Legal Roundup of 2010 - Presentation

Legal Round-up of 2010
Smith -v- Jones
Lecture given to the Pyramus & Thisbie Club,
Surrey Branch, on 18 February 2011
by
Matthew Hearsum
Morrisons Solicitors LLP
Smith v Jones
A Moot before Mr Justice Akenhead
on
21 July 2010
at the Technology and Construction Court, London
The Cast
Mr Jones
Building Owner
Mrs Taylor
Adjoining Owner
Mr Smith
Adjoining Owner’s
Surveyor
Mr Smith:
“Don’t worry about my fees, they
will be dealt with in the award
and Mr Jones will have to pay
them”
“11.
That the Building Owner shall immediately on the
signing of this Award pay the Adjoining Owner’s
Surveyor’s fees of £1,500 plus VAT in connection
with the preparation of this Award, and one
subsequent inspection of the works. In the event of
damage being caused or other contingencies or
variations arising, a further fee shall be payable.”
X
Appeal
Magistrates
to HighCourt
Court
Intervenes
Mr Smith
Mrs
Taylor
Mr Jones
Mr Smith’s Case
s. 10(13) PWeA 1996:
“The reasonable costs … shall be paid by
such of the parties as the surveyor or
surveyors making the award determine”
Mr Smith’s Case
Surveyor
Building Owner
Surveyor
Adjoining Owner
Mrs Taylor’s Case
1.
Nothing in the Letter of Appointment
2.
Mr Smith told her she would not be liable for his fees
3.
Award says that Mr Jones is to pay Mr Smith’s Fees
4.
Supported Argument that Award was a contract
Mrs Taylor’s Case
Norweb PLC v Dixon [1995] 3 All ER 952
Dyson J:
(now Lord Dyson)
“…a relationship which results from some degree of
legal compulsion is nevertheless regarded as
contractual because the parties still have considerable
freedom to regulate its incidents.”
Mrs Taylor’s Case
1.
Nothing in the Letter of Appointment
2.
Mr Smith told her she would not be liable for his fees
3.
Award says that Mr Jones is to pay Mr Smith’s Fees
4.
Support Argument that Award is a contract
5.
Apply general principals of Statutory Interpretation
Mrs Taylor’s Case
The Court should interpret legislation:
1.
In favour of a common sense construction and against
absurdity
2.
Against an unworkable or impractical result
3.
Against an inconvenient result
Mr Jones’s Case
1.
Irrelevant whether Mr Smith can recover against Mrs
Taylor
2.
Award is not contractual
3.
Court must look at s. 10 in it’s entirety
Others
Chris Cuthbert
Donald Jessop
Robin Ainsworth
Andrew Smith
David Bowden
Simon Levy
Matthew Hearsum
Decision
1.
“Appeal” Dismissed
2.
Only BO and AO can enforce or appeal an Award
3.
Parliament did not intend surveyors to be able to enforce
or appeal
4.
Award is not a contract
Conclusion
1.
Surveyors cannot enforce on their awards directly
2.
Take an Assignment of the Debt
Conclusion
Investors Compensation Scheme v West Bromwich Building Society
[1998] 1 all ER 98
Lord Hoffman:
“The assignee either acquires the right to the money (or part
of the money) or he does not. If he does, he necessarily
acquires whatever remedies are available to recover the
money or the part which has been assigned to him.”
Conclusion
1.
Surveyors cannot enforce on their awards directly
2.
Take an Assignment of the Debt
3.
Include more detailed Terms & Conditions in letter of
appointment
Legal Round-up of 2010
Kaye -v- Lawrence
Lecture given to the Pyramus & Thisbe Club,
Surrey Branch, on 18 February 2011
by
Matthew Hearsum
Morrisons Solicitors LLP
Sandbanks, Poole
x
£25,000 in 1965!
The Cast
126 Panorama Road
-
Mr Kaye
-
AO
124 Panorama Road
-
Mr Lawrence
-
BO
3rd Surveyor
-
Mr Whittingham
The Award
“A bond or other form of security cannot be requested under section 12(1)
of the Party Wall etc Act unless the building owner intends to exercise
rights conferred by the Act as [sic] is proposing to carry out some work to
the Adjoining Owner’s land or property. That is not the case in this
instance.
…
Each member of the design team and also the Building Owner are to
obtain Professional Indemnity Insurance cover to a minimum value of £2m.
Evidence of maintenance of such cover for a period of two years following
completion of the substructure works is to be provided to the Adjoining
Owner.”
The Green Book
“Security can only be requested if the building owner intends to exercise
rights “conferred by this Act”, ie he is proposing to carry out some work to
the adjoining owner’s land or property. If he is simply excavating his own
land then the adjoining owner has no right to receive security under this
section”
The “Supporting Document”
“Given the granular nature of the soils underlying the site and the scope of
the basements works proposed it is considered likely that any structural
damage to the adjoining houses associated with vibration or ground
movement would become apparent reasonably quickly”
Which Court?
Kaye v Lawrence [2010] EWHC 2678
Ramsey J:
“13.
In my judgment, because an appeal under s. 10(17)
of the 1996 Act is a creature of statute, this court
cannot ignore the fact that the county court is the
appropriate court and seize jurisdiction which has
not been given to it”
The Issue in Dispute
1.
Can the Surveyors make an award of Security for
works under s. 6?
2.
Should the Surveyors make an Award of Security?
A failure to determine?
Kaye v Lawrence [2010] EWHC 2678
Ramsey J:
“4.
“The central question on this appeal …is whether
security can be requested when works are being
carried out only on the building owner’s land and not
just when works are being carried out on the land of
the adjoining owner, as suggested in [the Green
Book] Commentary”
The Issue in Dispute
1.
Can the Surveyors make an award of Security for
works under s. 6?
2.
Should the Surveyors make an Award of Security?
Mr Kaye’s Case
1.
s. 12(1) contains no such restriction or limitation
2.
When a s. 6 notice is served BO’s common law rights
cease to apply
3.
No sense in differentiating between work on BO’s land
and work on AO’s land
Mr Lawrence’s Case
1.
Distinction between “rights conferred” and “works in
pursuance”
2.
Historic development of the relevant sections
Historic Development
The Metropolitan Building Act 1855
“87.
Any Adjoining Owner may, if he thinks fit, by Notice in Writing
given by himself of his agent, require the Building Owner,
before commencing any Work which he may be authorized
by this Act to execute, to give such Security as may be
agreed upon, or, in case of Difference, may be settled by a
Judge of the County Court, for the Payment of all such Costs
and Compensation in respect of such Work as may be payable
by such Building Owner.”
Metropolitan Building Act 1855
s. 2
s. 6(1)
s. 6(2)
s. 83
X
X
s. 12
“work which he
may be authorised
…to execute
Historic Development
The London Building Act 1894
“ 94.
An adjoining owner may if he think fit by notice in writing require
the building owner (before commencing any work which he
may be authorised by this Part of this Act to execute) to give
such security as may be agreed upon or in the case of
difference may be settled by a Judge of the County Court for
the payment of all such expenses costs and compensation in
respect of the work as may be payable by the building owner”
s. 2
s. 6(1)
s. 6(2)
Metropolitan Building Act 1855
s. 83
X
X
London Building Act 1895
s. 88
s. 93
X
s. 12
“work which he
may be authorised
…to execute
“work which he
may be authorised
…to execute
Historic Development
The London Building Act 1930
“121.
An adjoining owner may if he thinks fit by notice in writing
require the building owner (before beginning any work which he
may be authorised by this Part of this Act to execute) to give
such security as may be agreed upon or in the case of
difference as may be settled by the judge of the county court for
the payment of all such expenses costs and compensation in
respect of the work as may be payable by the building owner.”
s. 2
s. 6(1)
s. 6(2)
s. 12
Metropolitan Building Act 1855
s. 83
X
X
London Building Act 1895
s. 88
s. 93
X
“work which he
may be authorised
…to execute
London Building Act 1930
s. 114
s. 119
X
“work which he
may be authorised
…to execute
“work which he
may be authorised
…to execute
Historic Development
The London Building Act 1939
“57.
An adjoining owner may by notice in writing require the building
owner before he begins any work in the exercise of the rights
conferred by the Part of this Act to give such security as may be
agreed between the owners of in the event of dispute
determined by a judge of the county court for the payment of all
such expenses costs and compensation in respect of the work
as may be payable by the building owner”
s. 2
s. 6(1)
s. 6(2)
Metropolitan Building Act 1855
s. 83
X
X
London Building Act 1895
s. 88
s. 93
X
“work which he
may be authorised
…to execute
London Building Act 1930
s. 114
s. 119
X
“work which he
may be authorised
…to execute
London Building Act (Amendment)
Act 1939
s. 46
s. 50(1)(a) s. 50(1)(b)
s. 12
“work which he
may be authorised
…to execute
“work in the exercise
of the rights conferred
by …this Act
Decision
1.
Historic analysis did not assist
2.
“Rights Conferred” & “Works in Pursuance” not different
+ no difference between s. 7(1) & s. 7(2)
+ s. 2(2)(f) works
Decision
Kaye v Lawrence [2010] EWHC 2678
Ramsey J:
61.
I therefore consider that in accordance with the authorities
cited above, the common law rights are supplanted and
substituted by the provisions of the Act and that this applies
as much to sections 6(1) and 6(2) as it does to section 6(3) or
any other provision of the 1996 Act. I do not consider that
there is a proper distinction between rights that only exist
under the 1996 Act and rights that exist at common law and
which are regulated by the 1996 Act …
Decision
Kaye v Lawrence [2010] EWHC 2678
Ramsey J:
61.
…
The Act creates new rights which do not exist at common law
permitting the building owner to carry out work on the land of
the adjoining owner. However, whilst at common law the
building owner would have a right to carry out work on their
own land, those rights in relation to the area within 3 or 6
metres of the boundary are supplanted or substituted by the
provisions of sections 6(1) and 6(2) of the 1996 Act.”
Decision
Selby v Whitbread & Co [1917] 1 KB 736
McCardie J:
“the common law was seen to be insufficient for the adjustment of
modern complex condition. Hence I think that the Act of 1894 is not
an addition to but in substitution for the common law with respect to
the matters which fall within the Act. It is a governing and
exhaustive code, and the common law is by implication repealed.”
Conclusion
1.
Only a County Court Decision
+ but likely to be followed
2.
Limited to whether surveyors can order security
+ remember AO has to request security
3.
Other Implications
+ resolution of s. 1(5) & s. 8 ?
+ easier to obtain injunctions
About Me
Matthew Hearsum
Solicitor & Arbitrator
Morrisons Solicitors LLP
Wimbledon
5th Floor, Sterling House
6 – 10 St George’s Road
Wimbledon
London SW19 1SY
Woking
2nd Floor, Cleary Court
169 Church Street East
Woking
Surrey GU21 6HJ
[email protected]