Legislation: The Party Wall etc. Act 1996
Consequential Losses – Professionals’ Fees – Liability in Tort – Jurisdiction of Surveyors
A Building Owner commenced works to an end of terrace property including the excavation for a basement flat.
The Building Owner had served two notices in respect of the works occurring which were then succeeded by an Award.
The Award had not authorised excavation, to which the adjoining owner had instructed a solicitor to serve an injunction. The building owner halted works, and the documents appertaining to the injunction were not served.
A further or successive Award was served by the surveyors, it also decided that the legal fees associated with the preparation of the documents for the injunction were to be paid by the Building Owner.
The Building Owner appealed this decision and this appeal was held for the fact that the surveyors were outside of their jurisdiction by requesting payment for the preparation of documents which was occuring outside of the statutory dispute resolution mechanism of the Party Wall etc. Act 1996.
The Adjoining Owner appealed this decision, the appeal was dismissed.
Surveyors should be certain that they award costs only relevant to the process in which they are involved. They have no power outside of the Party Wall etc. Act 1996, costs associated with Common Law and Equitable Remedies i.e. injunctions, damages or notification thereof whether merely contemplated or actual and are not in their power to determine. This is save for tortious costs (consequential losses) reasonably and properly incurred as such would be covered by the statute (to include costs of legal assistance) Onigbanjo v Pearson 2008 WL 4264283 -. At para 42 of Onigbanjo, it is indicated that such costs are payable to a named party in the dispute and not directly to the third party.