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Pursuing claims for damage covered by the Party Wall Act 1996

Final judgment was handed down by the court in (1) Anita Bridgland (2) Anthony Bridgland v Earlsmead Estates Ltd [2016] EWHC B9 (TCC) in April this year and its impact on the application of the Party Wall Act 1996 can now be fully examined.

It has long been considered that, if a necessary notice of works was not served under the act, then the aggrieved party had no remedy available to them under the act but could successfully obtain a civil remedy. A preliminary ruling in Bridgland questions this view and may have significant consequences for claimants.

Party Wall notice

This case turned on the failure of the defendant to serve a party wall notice, when required to do so under the act. Damage was caused to the claimants’ property and civil action was pursued against the defendant. The claimants’ claim for breach of statutory duty was, however, struck out.

A casual consideration of this case might suggest that claimants have no remedy against a defendant who has caused damage, when they already failed to serve notice. A closer assessment, however, shows that the courts expects more from both parties and that, where damage is caused, liability will still exist.

A lesson in drafting

A key factor in this decision was that the claimants’ claim was drafted incorrectly. The case serves as a cautionary example of the consequences of not particularising a claim correctly. The claimants claimed they had lost the opportunity to dictate the construction methods adopted by the defendant, which the act does not provide for. They also claimed the defendant was in breach of the act purely by causing damage. The judge was bound to strike out this part of the claim, as the claimants could not substantiate these arguments.

Burden of proof

The judge made it clear, however, that had the claimants correctly pleaded their claim, the defendant’s failure to serve notice would have been a breach of statutory duty. The principles established in Roadrunner Properties Limited v Dean [2004] (whereby failure to serve notice is a breach of statutory duty, reversing the burden of proof against the negligent property owner) are still good law; the claimants did not, however, claim to rely on those supportive principles in this instance.

New considerations

For claimants and practitioners, the significant finding by the judge is that section 10 of the act applies to any works that the act ought to apply to and not simply works where notice has been served:

“(1) Where a dispute arises or is deemed to have arisen between a building owner and an adjoining owner in respect of any matter connected with any work to which this Act relates either—
(a) both parties shall concur in the appointment of one surveyor (in this section referred to as an ‘agreed surveyor’); or
(b) each party shall appoint a surveyor and the two surveyors so appointed shall forthwith select a third surveyor (all of whom are in this section referred to as ‘the three surveyors’).”

It can also be read to apply retrospectively and provides a specific remedy, in that a surveyor can make an award of damages. There is, then, a conflict, because if there is a remedy within the act, a civil claim for breach of statutory duty claim should fail.

Additionally, section 7 (2) of the act also applies where no notice has been served. The section states that: “The building owner shall compensate any adjoining owner and any adjoining occupier for any loss or damage which may result to any of them by reason of any work executed in pursuance of this Act.”

There is therefore a remedy within the act where it is sufficient to demonstrate simply that damage has been caused as a result of the works taking place. It is not necessary to establish the manner in which those works were conducted and therefore no requirement to establish fault. Claimants should capitalise on this clause, as it is akin to strict liability for damage.

Breach of statutory duty

Claimants should be wary of issuing proceedings for a breach of statutory duty without having first sought to instruct a surveyor – appointed jointly or otherwise – to assess the damage caused to their property and to make an award for this. If they have tried and a surveyor has refused, failed or been unable to make any award, then the claimants have no remedy and a breach of statutory duty claim could be pursued in the civil courts.

Conclusions

Firstly, when pursuing claims for breach of statutory duty under the act, they need to be pleaded properly – it is essential to establish properly that the breach caused the loss complained of and that there is not a pre-existing remedy available under the act.

Secondly, failure to serve a notice is a breach of statutory duty but the arbitration process of appointing a surveyor may still be open to the claimant – this could render a breach of statutory duty claim redundant or an abuse of process.

Finally, while this is currently only a County Court decision, the case continues and so it may be taken further.

If you have any questions about the Party Wall Act or any of the issues raised in this article, please contact our Property Disputes team by calling 0117 904 6000.

Posted on Aug 15th, 2016 by Lyons Davidson

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