Party Wall Case Law Patel v Peters

Party Wall Case Law Patel v Peters (2014) is a significant Court of Appeal decision under the Party Wall etc. Act 1996, shedding light on the powers and responsibilities of appointed surveyors when disputes over costs arise.

It particularly explores whether one surveyor’s failure to engage justifies the other in acting ex parte—a critical issue for professionals working under the Act.

Background to the Dispute

Amit and Sonal Patel, leaseholders of 36a Courthope Road, NW3, proposed construction work that impacted three neighbouring properties.

In line with the Party Wall etc. Act 1996, all affected parties—both building and adjoining owners—were deemed "owners" under Section 20. This statutory designation required the appointment of party wall surveyors.

The Patels appointed Mr Justin Burns MRICS as their surveyor. The neighbours (respondents) appointed Mr Grant Wright FRICS. A third surveyor, Mr Alex Frame MRICS, was jointly selected by both.

Although initial party wall awards were agreed or co-signed in 2011, the matter escalated over Mr Wright’s fees. Each award included provisions for the building owner (the Patels) to pay Mr Wright’s reasonable fees. However, the mechanics of assessing these fees triggered the dispute.

Fee Dispute and Surveyor Impasse

The dispute concerned how Mr Wright’s fees should be determined. Mr Wright submitted a claim of £13,545 plus VAT, based on 90.3 hours of recorded work. Mr Burns, however, rejected that methodology. He insisted fees should reflect what a reasonably competent surveyor would have charged, not what Mr Wright claimed via timesheets.

Correspondence between the surveyors revealed a total professional breakdown. Mr Wright, in a letter dated 21 December 2011, formally requested Mr Burns to review his time records. He invoked Sections 10(6) and 10(7) of the Act, which permit one surveyor to act ex parte if the other fails to act effectively within 10 days of such a request.

Although Mr Burns responded on 6 January 2012—after the 10-day period adjusted for holidays—he maintained his position that the claimed hours were excessive and reiterated his alternative fee proposal. Nevertheless, Mr Wright deemed the lack of timely engagement a breach and issued ex parte costs awards for his own fees.

The matter escalated to the County Court, where Judge Hand QC held that Mr Burns had neglected to act effectively, validating Mr Wright’s authority to act ex parte.

Appeal to the Court of Appeal

The Patels appealed to the Court of Appeal, arguing that Mr Burns had not refused or neglected to act, and thus Mr Wright lacked the statutory right to act unilaterally.

The Court of Appeal focused on the interpretation of Section 10(7) of the Party Wall etc. Act 1996. The section allows a surveyor to act ex parte only if:

The opposing surveyor neglects to act effectively for 10 days after a formal request, and

The requesting surveyor has not yet acted <em>ex parte</em>.

Judgment of the Court

Lord Justice Richards, delivering the leading judgment, clarified that Section 10(7) does not impose an absolute cut-off. A surveyor may still act effectively after the 10-day period so long as the requesting surveyor has not yet acted ex parte. This interpretation prevents unnecessary escalation and preserves the collaborative intent of the Act.

On this basis, Mr Burns’s response of 6 January 2012—although late—was capable of being an effective action. The court found that Mr Burns’s refusal to review the timesheets was a reasoned decision, not a neglect of duty. He offered an alternative fee calculation and invited Mr Wright to refer the matter to the third surveyor.

Therefore, the Court held that Mr Burns had acted effectively. Mr Wright’s subsequent ex parte awards were invalid because the statutory conditions under Section 10(7) had not been satisfied.

Legal Principles Clarified

This case clarifies several key legal principles under the Party Wall etc. Act 1996:

1. Effective Action May Occur After 10 Days: The 10-day period under Section 10(7) is not a hard deadline. If the recipient acts effectively before the requesting surveyor proceeds ex parte, the right to act unilaterally does not arise.

2. Reasoned Disagreement Is Not Neglect: A surveyor who refuses to comply with a request due to a genuine and explained professional judgment is not necessarily neglecting to act.

3. Surveyor Disputes Are for the Third Surveyor: When disagreement crystallises, the proper recourse is referral to the third surveyor, not unilateral action.

4. Charges Must Be Justified, Not Just Claimed: The judgment indirectly reinforces that surveyors must substantiate their fees—not merely assert them by timesheets.

Practical Implications of Party Wall Case Law Patel v Peters

For professionals working under the Act, Patel v Peters provides essential guidance. Acting ex parte is a serious procedural step. It should be exercised only when clearly justified under the statute and not in situations where the dispute should rightly be referred to the third surveyor.

The case also encourages transparent and timely communication between surveyors. The court showed little tolerance for antagonistic standoffs and reiterated the statutory intention for dispute resolution to proceed by collaboration or tri-partite assessment—not unilateral declaration.

Key Takeaways - Party Wall Case Law Patel v Peters

Section 10(7) is permissive, not mandatory: A surveyor may still act after 10 days unless the other has already acted ex parte.

Professional disagreement does not equal neglect: Refusing a methodology (like rejecting timesheets) is not necessarily a refusal to act.

Third surveyor involvement is the statutory mechanism for resolving disputes—ex parte action should be a last resort.

Transparency and good faith are essential in Party Wall matters, particularly around costs.

Invalid ex parte awards are liable to be quashed, with potential cost consequences.

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