Party Wall Case Law Zissis v Lukomski

Party Wall Case Law Zissis v Lukomski - this Court of Appeal’s decision provides crucial guidance on the procedural approach for appealing or challenging awards made under the Party Wall etc. Act 1996 (“the Act”).

This judgment clarifies a significant point of uncertainty for practitioners by confirming whether they should challenge party wall awards under CPR Part 8 or Part 52.

It also tackles the limits of a surveyor’s powers, the enforceability of awards, and the nature of statutory appeals under the Act.

Background: Party Wall Case Law Zissis v Lukomski Dispute Over Surveyor’s Fees

Mrs Marianne Zissis was the building owner of 8 Birkdale Road, Acton, and Mr Andrew Lukomski the adjoining owner at number 10.

In May 2003, Zissis served a notice under section 6(1) of the Act to carry out works triggering the party wall procedures. When the dispute arose, both parties appointed their own surveyors and jointly selected a third surveyor.

The third surveyor, Mr Cosgrave, made an award in February 2004 authorising the works and apportioning costs: £610 plus VAT to Mr Lukomski and £200 plus VAT to Mrs Zissis. He did so because the two appointed surveyors, Mr Bovington and Mr Carter, were unable to agree on the terms of an award.

In such cases, under section 10(10) of the Party Wall etc. Act 1996, the third surveyor may act alone to resolve the dispute and issue an award. Crucially, the award did not address Mr Carter’s (Lukomski’s surveyor) fees.

Mr Lukomski, advised by Carter, attempted to appeal the award to impose liability for Carter’s fees on Mrs Zissis. That appeal did not proceed. Subsequently, after ongoing disagreement, Mr Cosgrave declared himself incapable of acting.

Carter then purported to act ex parte, claiming that Zissis’s surveyor, Mr Bovington, had failed to respond to a request within ten days. Carter issued an addendum award against Zissis for £15,825 plus VAT—his own fees.

Procedural History: Challenging the Addendum Award

Mrs Zissis initiated Part 8 proceedings in the Brentford County Court to have the addendum award rescinded.

She argued that Carter lacked jurisdiction to make the award unilaterally and claimed the parties had not followed the procedures under the Act—particularly because they had failed to appoint a new third surveyor after Cosgrave stepped down.

Although Mr Lukomski agreed that the award was invalid, he later applied to join Carter to the proceedings to determine liability for costs. Meanwhile, Carter attempted to enforce the addendum award through the county court and obtained an order for nearly £19,000, which Zissis then moved to set aside.

The County Court Decision

District Judge Jenkins held that:

The addendum award was invalid – without a properly constituted panel of surveyors, Carter lacked authority.

Carter should be joined as a defendant – so he would be bound by the judgment and potentially liable for costs.

Zissis had no cause of action against Carter directly – Lukomski was still the correct defendant as the adjoining owner.

The proceedings should have been brought under Part 52 – since the claim amounted to a statutory appeal under section 10(17) of the Act.

On this basis, the judge dismissed Zissis’s claim and ordered her to pay Lukomski’s costs on the indemnity basis.

The Appeal to the Court of Appeal

Mrs Zissis appealed the dismissal and the indemnity costs order. She argued that:

The Part 8 procedure was valid.

The judge should have used his discretion under CPR 3.10 to rectify any procedural defects.

She acted reasonably in challenging an invalid award and should not have been penalised with indemnity costs.

Sir Peter Gibson, Lord Justice Brooke, and Lord Justice Wilson heard the appeal, with Sir Peter Gibson delivering the lead judgment.

Legal Analysis: Appeal Must Be Brought Under CPR Part 52

The Court of Appeal confirmed that section 10(17) appeals under the Party Wall Act follow the statutory appeal process set out in CPR Part 52. The judges rejected the argument that the Part 8 procedure—used for declarations and administrative matters—was suitable for these kinds of appeals.

They emphasised:

CPR Part 52 provides sufficient flexibility to permit a full rehearing where necessary, including the admission of fresh evidence.

Even though party wall awards are “non-speaking” and made without a hearing, appeals against them can still be justly resolved under Part 52.

Part 8 may still be appropriate for purely declaratory relief or where a party is not truly appealing but simply seeking to invalidate an award.

Despite agreeing with the lower court on the need to use Part 52, the Court of Appeal criticised the district judge for not using CPR 3.10 to validate the proceedings or allow amendment of the claim. The judge should have either:

Allowed Zissis to proceed under Part 52, or

Permitted the claim to be reframed as a declaratory action under Part 8.

Enforcement of Party Wall Awards: Clarification on Section 17

Mr Carter had attempted to enforce the award using CPR 70.5, which allows for the enforcement of awards “as if they were court orders” only where legislation expressly permits it.

The Court clarified:

Section 17 of the Party Wall etc. Act 1996, which states that awards are “recoverable summarily as a civil debt,” does not create a right to enforce through CPR 70.5.

Therefore, awards must be enforced either through magistrates' courts (if permitted by statute) or by traditional court action for a civil debt—but not through the CPR 70.5 mechanism.

This is a significant clarification for surveyors and legal professionals, as misuse of CPR 70.5 could invalidate enforcement attempts.

Costs and Indemnity Basis: Unreasonable Conduct Required

The Court of Appeal held that awarding indemnity costs required evidence of unreasonable behaviour to a high degree. The fact that Zissis pursued the claim when Lukomski had proposed a consent order did not rise to that threshold.

Standard costs should have been awarded.

There is no principle that a litigant focusing on recovering litigation costs should automatically be penalised with indemnity costs.

The court replaced the indemnity costs order with an order for costs on the standard basis, and awarded half of Lukomski’s costs on appeal, reflecting the mixed success on different issues.

Key Takeaways: Party Wall Case Law Zissis v Lukomski

Appeals under the Party Wall Act must be brought under CPR Part 52, not Part 8.

Part 8 may still be used in limited cases, such as when seeking a declaration that an award is void ab initio (i.e., a nullity).

Surveyors do not have unilateral power to make enforceable awards without proper constitution of the tribunal under the Act.

Section 17 of the Party Wall Act does not enable enforcement through CPR 70.5; awards must be enforced through other legal avenues.

Indemnity costs should only be awarded where conduct is clearly unreasonable; litigating to resolve cost liability does not justify such an order.

Judges should use CPR 3.10 or permit amendments to allow cases to proceed on the correct footing rather than dismissing meritorious claims on procedural grounds.

The judgment highlights the quasi-judicial nature of party wall surveyors, reinforcing the importance of proper process and statutory compliance.

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