Party Wall Case Law Evans v Paterson

In Party Wall Case Law Evans v Paterson, HHJ Backhouse allowed an appeal against a “damage and compensation” award made by two appointed party wall surveyors. The Judge held that the surveyors had no jurisdiction to make the award because no dispute had arisen between the building owner and the adjoining owners, and the process failed the basic requirements of natural justice. The award was declared a nullity, and the linked costs award also fell.

This judgment matters to building owners, adjoining owners and party wall surveyors alike: it clarifies that, under section 10 of the Party Wall etc. Act 1996, surveyors only gain “decision-making power” when there is a real dispute between the parties about a matter connected to notifiable works - not simply because surveyors or one party think something should be decided.

Background - Party Wall Case Law Evans v Paterson

The parties: Ms Jennifer Evans (building owner at 10 Princes Gate Mews) appealed against a supplemental award made by her and the adjoining owners’ appointed surveyors (Messrs Newton and McAllister). The adjoining owners were Ms Paterson and Ms McGeevy-Harris of 11 Princes Gate Mews. A third surveyor (Mr Alexander Frame) had previously been selected.

The original (2015) award: Following service of notices under sections 2 and 6, two surveyors made a Primary Award on 23 October 2015 authorising the basement works. It contained commonly seen clauses: (i) making good damage, (ii) fees provisions, and (iii) a “right to make further awards.”

Works stalled: On Ms Evans’ case, work stopped in March 2016 due to an inconsistency between the award’s prohibition on special foundations without consent and drawings showing special foundations. The third surveyor later resolved that issue by a 2019 award.

The damage complaint (2019–2020): In June 2019, the adjoining owners emailed their surveyor reporting cracking around the party wall and asking for an inspection. The building owner’s surveyor inspected in November 2019; the adjoining owners’ surveyor inspected in May 2020 and circulated a draft supplemental award. On 17 June 2020, the two surveyors issued a Third Award awarding £8,130 for redecoration and directing payment of the surveyors’ fees. Ms Evans said she had not been told what the alleged damage was and had no chance to engage.

The appeal: She appealed on six grounds, with a preliminary issue on whether the surveyors exceeded their jurisdiction because no dispute existed (and whether any dispute needed to exist).

The legal framework the court applied

Section 10 of the 1996 Act is the dispute-resolution engine. It kicks in only 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.” Only then shall the agreed surveyor or the two (of three) surveyors “settle by award any matter” that is (a) connected with works and (b) in dispute.

The Act gives surveyors power to determine incidental or consequential matters (s.10(12)(c)) and to award their reasonable costs (s.10(13)), but those powers sit within an award-making jurisdiction that depends on the existence of a dispute. The Act also contains compensation duties (s.7(2)) and a right for an adjoining owner to require payment in lieu of making good (s.11(8)) - again routed through section 10’s mechanism where there is disagreement.

HHJ Backhouse summarised the scheme crisply: the foundation of a surveyor’s jurisdiction is the existence of a “dispute” under s.10(1). Without a dispute, there is no need - and no jurisdiction - for an award. The Act does not gift surveyors a roving, open-ended mandate. Surveyors act quasi-judicially and must behave fairly and impartially.

Issue 1 - Was there a dispute?

The judge’s approach to “dispute”

Drawing on persuasive authorities (including Lion Homes (Sussex) Ltd v Brighton & Hove CC, Monmouth CC v Costelloe & Kemple, and Fastrack Contractors v Morrison), the judgment adopts the orthodox test: a dispute arises where a clear claim has been put to the other party and rejected (or left unanswered in circumstances amounting to a refusal to engage). Surveyors cannot “jump the gun” and issue an award “off their own bat” without clear evidence of a dispute requiring determination.

The judge also cited decisions emphasising natural justice in party wall practice. In Mills v Savage and K Group Holdings Inc v Saidco, the court stressed that parties must be given an opportunity to participate; you cannot make an award against someone who has no idea an award is being considered and no chance to be heard. That would be fundamentally unfair.

What actually happened here?

The adjoining owners did not inform Ms Evans or her solicitors of any alleged damage directly. The only pre-award communication to the building owner identified by the court was a 22 May 2019 letter from the adjoining owners’ surveyor to Ms Evans’ solicitors that briefly mentioned having “received from the Adjoining Owner reports of damage believed to be attributable to the awarded works,” adding “this matter is currently being investigated” and “we will be in contact in due course.” It contained no particulars of damage and did not say an award was being prepared. The building owner did not reply.

The judge held that this did not amount to a clear claim, let alone one that was put to Ms Evans with enough detail to give her a fair chance to admit, dispute, or resolve it. The reasonable reading of “we will be in contact in due course” was that surveyors would investigate and revert, not that they would proceed to an award without further reference to her. In short, no dispute had crystallised between owners about damage and compensation. Any “referral” by the adjoining owners to their own surveyor did not create a dispute between the parties.

The process also breached natural justice: Ms Evans had no idea an award was in train; she was given no opportunity to respond on causation (central here, because the works had apparently ceased by 2016 and cracking was noticed years later). The Third Award even recited - incorrectly on the evidence - that works continued “between 2016 and 2019,” underscoring the risk of one-sided fact-finding when a party is not engaged. The Judge called the process “fundamentally unfair.”

Finding on Issue 1: There was no dispute within section 10(10). Therefore, the two surveyors lacked jurisdiction to make the Third Award.

Issue 2 - Did a dispute need to exist?

The adjoining owners and their surveyor argued that even without a live dispute, the surveyors had jurisdiction to determine consequential matters under s.10(12)(c), relying on R (Farrs Lane Developments) v Bristol Magistrates’ Court. They also pointed to (i) the 2015 award’s “make good” and “further awards” clauses, and (ii) the s.11(8) right to money in lieu of making good.

The court’s answers

Farrs Lane does not dispense with the “dispute” gateway.
In Farrs Lane, Holgate J explained that within an otherwise valid award, surveyors may “determine” incidental matters (including costs) even if those particular incidental items are not themselves in dispute, so that the award can function as a complete package. That does not mean surveyors can create stand-alone awards whenever they wish without a dispute. HHJ Backhouse rejected the proposition that Farrs Lane confers a free-floating, continuing jurisdiction after the primary award.

Clauses in the Primary Award cannot enlarge statutory jurisdiction.
A tribunal of limited statutory jurisdiction cannot widen that jurisdiction by wording in an earlier award. The judge noted that the common “we reserve the right to issue further awards” clause only bites when an award is “necessary” - and necessity presupposes a dispute under s.10. To the extent such clauses suggest awards without a dispute, they are ultra vires.

The same logic applied to the Primary Award’s “make good” clause. Drawing on Lea Valley Developments v Derbyshire, the court observed that where damage arises out of s.6 excavation (as opposed to s.2 rights), the Act provides a route via s.7(2) (compensation), not an embedded “make good” obligation copied wholesale into the award. In any event, the Primary Award’s text itself said “where so required by the Act,” which adds nothing beyond the statute.

Section 11(8) still routes back through section 10.
The adjoining owners argued that s.11(8) (the right to require payment in lieu of making good) does not mention “dispute,” so surveyors could simply determine a sum. The court disagreed: s.11(8) says the expenses are “determined in accordance with section 10”, which is the dispute mechanism. No dispute, no path to determination.

Finding on Issue 2: Yes, a dispute was necessary. Neither Farrs Lane, nor the award’s boilerplate, nor s.11(8) created surveyor jurisdiction in the absence of a dispute.

Costs - Can a void award’s costs be salvaged?

The surveyors also awarded their fees (“for their involvement since the First Award … up to and including the making of this [Third] Award”). Because the court found the Third Award void for want of jurisdiction, the costs award also fell. Although severance is sometimes possible, there was no breakdown separating pre-award costs from costs of the (void) award-making, so the entire costs element had to be set aside.

The Judgement - Party Wall Case Law Evans v Paterson

HHJ Backhouse held that the award of compensation was made without jurisdiction and is a nullity, and the costs award was also set aside. Importantly, the judgment does not prevent the adjoining owners from pursuing a claim about alleged damage; it simply requires that, if agreement cannot be reached, a valid dispute be raised and then determined by surveyors through a fair process.

Download Judgement

Practical lessons for surveyors and owners

1) You need a real dispute before you award.
The section 10 gateway is a dispute between owners about a matter connected with works. Surveyors should evidence that gateway - ideally by obtaining written acknowledgment from both parties that a dispute exists (e.g., “We allege X damage attributable to the works; if not resolved by [date], we require an award”), or by putting a clear letter of claim that will become a dispute if not answered substantively.

2) Natural justice is not optional.
Before issuing an award - especially one about damage and compensation - surveyors must ensure both parties know what is being alleged, have seen evidence, and have had a chance to make submissions. Ex parte progress is unsafe.

3) Boilerplate doesn’t create jurisdiction.
“Further awards” and “making good” clauses are not a permission slip to award at will. They operate within the Act’s framework and cannot displace the dispute requirement in s.10.

4) Keep s.2, s.6, s.7(2) and s.11(8) distinctions straight.
Where damage stems from s.6 excavation works, compensation flows via s.7(2); the “make good” duties in s.2(3), (4), (5), (6) are different. A blanket “make good” clause in a primary award cannot convert s.6 matters into s.2 obligations. If the adjoining owner prefers cash in lieu, the amount must be “determined in accordance with s.10,” which means through a dispute.

5) Record, notify, particularise.
Adjoining owners who notice cracking should notify the building owner directly with particulars (locations, dates, photos) and copy in the surveyors. That creates a clear, audit-worthy trail and makes it easier to show a dispute has arisen if negotiation fails.

6) Don’t skip causation.
Timing matters. If works ceased long before damage appeared, causation is very much in play. Ensure both owners see the schedule of condition, inspection notes, and any structural opinions before anyone drafts an award.

7) Be careful with costs.
If an award is void, a costs award linked to it may also be void, especially if the figures are bundled. Keep separate, granular time records for investigatory steps versus award-making activity.

Detailed Analysis - Party Wall Case Law Evans v Paterson

The statutory scheme demands a dispute

The Judge anchored her reasoning in s.10(1) and s.10(10): surveyors settle by award “any matter … connected with any work” and “which is in dispute” between the owners. That conjunctive structure - connected to works and in dispute - is the cornerstone. The Act creates deemed disputes only in specific places (e.g., s.5 and s.6(7) after notice without consent), not by silence in general correspondence.

The court also rebuffed the idea that surveyors have continuous jurisdiction after a primary award: appointments are not rescindable and surveyors can make successive awards, but only when necessary to resolve disputes. There is no statutory licence to adjudicate any and all later issues simply because they “relate to the works.”

The facts fell well short of a “clear dispute”

On the evidence, the adjoining owners never put a claim to Ms Evans. Their 19 June 2019 email went to their own surveyor (“we’ve noticed cracking; please inspect”). The only message to the building owner’s side - the 22 May 2019 letter to her solicitors - mentioned damage’s existence in passing and promised further contact; it gave no particulars and did not state a claim or a sum sought. That is not a claim that can be admitted, modified, or rejected. It thus did not create a dispute within the well-known meaning adopted in construction and party wall authorities.

Natural justice: the fatal procedural flaw

Surveyors act quasi-judicially. They must enable submissions and consider them. Here, the surveyors proceeded to inspect, cost the redecoration and issue an award without involving the building owner in that process. They even relied on a factual premise about the period of works that conflicted with the owner’s position and earlier correspondence (works having ceased by 2016). That prejudiced Ms Evans on causation - a point she could and would have argued if given a chance. The Judge labelled the process “fundamentally unfair,” aligning with prior TCC guidance.

Why Farrs Lane didn’t help the respondents

Farrs Lane concerned surveyors including their own fees in an award package. Holgate J held that s.10(12)(c)’s phrase “any other matter arising out of or incidental to the dispute” lets surveyors determine (i.e., pronounce/lay down) ancillary matters within a valid award, even if those items are not themselves contested, so that the award can be enforced as a whole. That is very different from making a new award on a fresh topic after the primary dispute, without any dispute having arisen. HHJ Backhouse expressly rejected stretching Farrs Lane that far.

Why boilerplate “further awards” and “make good” clauses didn’t create power

The court stressed a basic point of administrative law: statutory tribunals cannot enlarge their own jurisdiction. “We reserve the right to issue further awards” works only where a further award is statutorily necessary - which loops back to the existence of a dispute under s.10. The Primary Award’s “make good” clause could not impose obligations beyond the Act; and for s.6 excavation, the Act channels damage via s.7(2) compensation, not a general s.2 “make good.” The court referred to Lea Valley Developments v Derbyshire to reinforce that distinction.

Why s.11(8) didn’t bypass s.10

The adjoining owners’ “cash in lieu” right in s.11(8) exists, but the amount must be “determined in accordance with s.10” - and that means by surveyors after a dispute crystallises (or is deemed to). Section 11(8) is not a back door to award a sum without a dispute.

Costs fell with the award

Because the award itself was void, the costs award - framed as “for involvement since the First Award … up to and including the making of this Award” - could not stand. Without a separate, severable figure for pre-award activities, the court could not save the costs element. Everything went.

Key takeaways

No dispute, no award. Surveyors only gain jurisdiction to award when a dispute exists under s.10. Internal referrals and one-sided enquiries are not enough.

Natural justice is essential. Each owner must know the case against them and be allowed to respond before an award issues. Evans v Paterson shows courts will strike down awards made in the dark.

Farrs Lane is not a roving commission. It allows inclusion of incidental matters within a valid award; it does not permit stand-alone awards without a dispute.

Boilerplate can’t expand power. “Further awards” and broad “make good” clauses cannot create jurisdiction where the Act does not.

Know your sections. Keep s.2 “make good” obligations distinct from s.6 excavation cases where s.7(2) compensation applies; money in lieu under s.11(8) still runs through s.10.

Evidence the dispute. Put a clear claim (location, nature, causation, remedy or cost) to the other owner and give a reasonable response window. If refused or ignored, a dispute exists.

Engage on causation. Where cracks appear years after works end, causation is live; invite and record submissions before deciding.

Costs follow validity. A costs award tied to a void award risks being set aside - keep fee lines distinct and severable.

Conclusion - Party Wall Case Law Evans v Paterson

Party Wall Case Law Evans v Paterson confirms a simple discipline with major practical consequences: surveyors act lawfully only when the statutory pre-condition of a dispute is satisfied, and they conduct a fair process with basic natural justice.

The case is not anti-compensation; it simply insists that adjoining owners must particularise their claims and that building owners must be given a fair chance to engage before an award issues. Do that, and section 10 provides a swift, robust mechanism for resolving damage and cost. Skip it, and - as Evans shows - awards (and costs) can unravel on appeal.

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