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.

You can read the judgement here https://www.lkbc.co.uk/shah-v-power-kyson-appeal-dismissed

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

These houses are over 100 years old - what do you expect.

These houses are over 100 years old - what do you expect? was the comment a builder made to the adjoining owner one Saturday morning after knocking a hole through the party wall into one of her bedrooms.

The adjoining owner was very distraught as it had been arranged for her grandchildren to stay over on the Friday night but, luckily, had been cancelled at the last minute. She could not help but think about what might have been, as their bed was directly below the hole where the bricks had been out.

When opening the roof dampness got into the ceiling.as they did not afford adequate protection. They have also caused other damage during the course of removing chimney breasts.

The ceiling will have to be re-boarded with plasterboard and skimmed, the whole room will have to be redecorated and other remedial works carried out.

The final cost has yet to be established, the surveyors costs have mounted up already. I will publish the costs once known.

It is the Building Owner who is directly responsible to the Adjoining Owner, so it is treated as if had caused the damage himself and will have to try and recover the costs from his contractor.

Lee Kyson was a guest on Fixradio

Lee was a guest on this afternoon's 'Toolbox Show' at the request of presenter Andy Stevens. There were some short discussions about recent events regarding rogue builders and party wall issues. 

Fixradio is specifically aimed at 'Tradespeople' and can be listened to on DAB in London and the Southeast or on www.fixradio.co.uk 

Article published in FPWS newsletter

Lee recently had an article published in the Faculty of Party Wall Surveyors quarterly magazine.

The article looked at whether there is a necessity to serve notice on all Adjoining Owners and / or Occupiers. The view taken by Lee looks at the requirements of serving notices from a different angle. This approach was recently adopted in regard to a property which was divided into flats. There were threats of an injunction but they never materialised as one of the Adjoining Owners realised they were on an uphill struggle.

If you think it's expensive to hire a professional to do a job, wait until you hire an amateur - Red Adair

I was recently asked by the Building Owner  to assist in a matter where their surveyor had died. Apparently he was a really nice guy.

I requested all the current documents to be emailed to me and I duly received two awards.  I had been informed that the surveyor had been paid in excess of £2k.

The works consisted of a single storey rear extension and a loft conversion.

The 'Award' announced the surveyor as 'agreed surveyor' appointed to act on behalf of all parties. It then goes on '.... the surveyor so appointed has selected Mr ........ to act as an 'independent' surveyor in accordance with the Act..... and if the two surveyors are unable to agree; a 'Third Surveyor' will be selected in accordance with section 10(8) of the Act.'  This is totally wrong, he has tried to create an agreed surveyor award from a two surveyor award.

The 'Award' referred to Sections 1, 3 (2.2) & 6. It referred to the notices which had been verbally served by the Building Owner. No drawings were handed over.

The works referred to, only related to the rear extension, no mention of the loft conversion.

'In witness thereof having set their hands ............. day of ....... 

Surveyor to the Building Owners and Adjoining Owners'

This award could create more problems than it purports to solve and could cost the parties a lot more money in the event of a dispute arising. 

Building owner refuses to acknowledge Party Wall etc. Act 1996

Lee Kyson was contacted by the adjoining owner (AO), in February  2016, as while she was away the neighbouring building owner (BO) had carried out notifiable building works without serving notice and causing damage and trespass of foundations  inter alia to the AO's property.

Having been appointed to act on behalf of the AO, Lee contacted the BO requesting that they appoint a surveyor under section 10(4)b of the 'Act', also offering to act as agreed surveyor.

The BO promptly instructed a solicitor. On expiration of the 10 day notice period Lee sought to appoint a surveyor to act on behalf of the BO. Despite having spoken to several surveyors they did not wish to accept the appointment as it was the AO's surveyor making the appointment. Finally a surveyor accepted the appointment.

This led to a protracted bout of correspondence between the parties. An award was finally served in August 2016 dealing with the damage caused by the BO, compensation to the AO, surveyors fees, legal costs, Arboriculterist's fees....  total £17,000.

Despite continual threats the 'Award' never was appealed.