Court of Appeal grants permission to appeal the Shah v Kyson & Power decision

Lee Kyson, as a litigant in person has been granted by the Court of Appeal to appeal the decision of Eyres J in the Shah v Kyson & Power case,

The case was heard at County Court level and the decision of HHJ Parfitt was appealed to the Queens Bench division of the High Court. The appeal was unsuccessful so Lee sought permission to appeal to the Court of Appeal which was granted. The Court of Appeal will only grant permission to appeal if they believe there is a real prospect of success and/or it is in the public interest.

High Court decision erroneous? Lee believes it was.

High Court dismisses appeal in Shah v Power & Kyson [2022] EWHC 209 (QB) is the Act now rendered superfluous?

The High Court handed down its judgement on Friday 11th February 2022. Rather disappointingly the appeal was dismissed. Personally I do not agree with the judgement and cannot see how a building owner, apparently not wishing to exercise his rights under the Act but does so anyway can decide that the Act doesn’t apply.

I have had many phone calls from people from all over the country waiting for this decision in the hope that the appeal would be allowed. Unfortunately most of these people will now have to live with the damage caused by their neighbouring building owner who caused damage and had refused to comply with the Act, simply because they do not have the funds to pursue the matter.

There is much reference to the surveyors / adjoining owner ‘unilaterally imposing the Act on the building owner’, despite the fact that the Act is already in force and places obligations on the building owner the moment he wishes to do notifiable works and there is an adjoining owner. I expressed my view to the court that the Act was already in force and as surveyors we merely applied the Act, we did not unilaterally impose it on the building owner but this seems to have been glossed over.

I find the ‘no notice - no Act’ scenario rather difficult to accept as it is the Act that places obligations upon the building owner to serve notice, therefore the Act is in force and is to be complied with.

There is no mechanism that disengages the Act if the building owner does not serve notice.

Stuart Frame makes a third surveyor award... then a draft addendum award.... then serves it by email - contrary to his 'opinions' supplied to others.

The adjoining owner’s surveyor made a referral to Stuart Frame, the selected third surveyor. Mr Frame then determined matters that were not in dispute… he then made a signed and dated draft addendum award in order to correct some of his errors…. I believe Mr Frame cherry picked from the Act in other matters to suit his own agenda that differ from what he awarded.

please feel free to comment and to read about it here

Justin Burns & Alistair Redler believe that they have a third owners' surveyor...

I served an ex parte award. The award was not appealed by either of the owners. Justin Burns made a referral to the third surveyor Alistair Redler…. they made an award which made provision for the building owner to pay the third owner’s surveyors’ costs… really? JB enforced his purported fees against a pensioner in the Magistrates Court…. read the award and feel free to make any comments here

Permission to appeal HHJ Parfitt's decision in Shah v Kyson & Power

As of 4th November 2021 we have been granted permission to appeal HHJ Parfitt’s decision regarding ‘Shah’ in the High Court.

Hopefully the court will see fit and overturn the decision ‘no notice - no Act’. This will enable surveyors to proceed with matters under the Act and afford the adjoining owners the protection intended. A correct decision will ensure that rogue building owners won’t be able to run rough shod over adjoining owners with limited resources.

This is being heard in the High Court as it was not an appeal of an award. The award was challenged in the County Court under a Part 8 claim, therefore, the appeal of the County Court decision is made in the High Court.

HHJ Parfitt changes his mind in Shah v Kyson & Power..

In a case virtually identical to ‘Yamin’ HHJ Parfitt handed down his judgement in March this year, which he concluded by saying ‘…For the reasons I have set out above, in my judgement the claimant is correct essentially for the reasons that Mr Paget so well summarised: no notice, no act. ‘ It should be noted that we, Kyson & Power as Defendants have requested an appeal. Many surveyors I have spoken to believe the judgement was wrong. In essence it removes protection of the legislation from an adjoining owner who does not have the finance to seek damages from a building owner who as sought to run rough-shod over their neighbour and caused damage to their property.

The judgement can be read here Shah v Kyson & Power.

On Thursday 23rd July 2020 the Pyramus & Thisbe Club hosted a webinar presented by

Robin Ainsworth BSc(Hons), Ainsworth Surveying Services Ltd, Party Wall Surveyors & Boundary Consultants, Conifer House, 5 Vernon Avenue Eccles, Manchester M30 0UE, Tel:      0161 789 4194     AinsworthSSL@btinternet.com

The general consensus was that HHJ Parfitt got it wrong.

Party Wall etc. Act 1996 - No notice - No Act? not anymore

HHJ Pafitt handed down his judgement today in which surveyors Lee Kyson and Ken Power were defendants. The matter involved a Building Owner who did not serve the requisite party wall notice prior to commencing work and then caused damage to the adjoining owners’ property. The adjoining owner made contact with several surveyors who told her it was too late as work had commenced and a notice had not been served. She contacted Lee , who she appointed as her surveyor, Lee then wrote to the Building Owner who instructed a solicitor. Lee then advised her to appoint Ken Power as the Building Owners’ surveyor. An Award was made dealing with the damage and compensation. The building owners appealed the Award but were out of time, they sought an extension of time but were refused. They then challenged the validity of the Award in the Central London County Court. The claim was dismissed, the costs they incurred are possibly in excess of £50k (?). They could have taken notice of my first letter and appointed me as agreed surveyor and it would probably have only cost them ~ £1500 or less if they had fulfilled their statutory obligations…. read the judgement

Although this is only a County Court judgement and is not binding authority, it is however, a well resasoned judgement and a very persuasive argument to other courts.

No Notice - No Act.... Really? The Party Wall etc. Act 1996

Can the Building Owner absolve himself from any liability to compensate an Adjoining Owner for damage basing his defence on the fact that he did not serve a notice? viz 'no notice - no Act'​.

It is often stated that the Act has no teeth, I believe the Act can give a nasty bite if correctly utilised….

http://www.lkbc.co.uk/no-notice-no-act-really