A ‘purported award’ made by Justin Burns & Alistair Redler.
I was more than surprised to see the very low standard set by this purported award, given that it was authored by Justin Burns, checked and countersigned by Alistair Redler and then read through by Stuart Frame, the well known barrister specialising in party wall matters, who assisted Justin Burns in commencing recovery of the purported fees in the Magistrates Court! We are all prone to making mistakes however…..
Among party wall surveyors and many building owners, Justin Burns BSc (Hons) MRICS FFPWS of Peter Barry Surveyors Ltd [JB] is well known for his methods of procuring work. In this instance he procured an appointment from the adjoining owner [AO], by his own admission, apparently, an old lady with dementia who lives alone. Having received correspondence from Peter Barry, the building owner [BO] asked if he [JB] could be the agreed surveyor. He refused. The BO then appointed me and I raised the issue of why he wouldn’t act as agreed surveyor. I brought up the case of Amir-Siddique v Kowaliw - a case in which the BO’s costs were apportioned against the AO. He then came back to me and said that following a discussion with his appointing owner she was prepared to concur in him acting as agreed surveyor, if I deemed myself incapable. I was not incapable* [see footnote -Stuart Frame declared himself incapable in another matter as 3S], therefore, could see no reason how I could deem myself incapable. On 31st October 2020 I served an ex parte award, which was not appealed and was accepted by both owners. The ex parte award dealt with JB’s fees. JB then made a referral to Alistair Redler [AR] the selected third surveyor and between them they served the purported award, shown below, on 10th November 2020. I believe this was after the works were well underway. The purported award was identical to the ex parte award with the exception that it made provision for ‘costs’ for JB and AR and had erroneous amendments. JB subsequently sent the BO an invoice which the BO did not pay.
Justin Burns BSc (Hons) MRICS FFPWS of Peter Barry Surveyors Ltd then sought to enforce his ‘costs’ (?) and the “Third Owner's Surveyor's” costs as agreed with Alistair Redler against the BO in the Westminster Magistrates Court. The BO is a pensioner who had no choice but to represent herself in court. I had requested an adjournment in order to assist her but JB vehemently objected to this, not wanting me to be there.
What I find rather bizarre about this purported award supported by Stuart Frame, is that it appertains to:
‘replace’ an ex parte award that was apparently ‘issued’ on 312 August. The ex parte award was served on 31st October!.. and was not appealed.
have 3 appointed surveyors. -the third surveyor is selected, not appointed.
have a third owner’s surveyor. -who is the ‘third owner’? there were only two parties to the matter; and who is the unnamed surveyor?
an adjoining owner’s surveyor who claims to have £1200 + VAT ‘costs’.
Justin Burns' ‘fees’ when in discussion with me had risen to £1660.50 + VAT yet he reduced them to £1200 + VAT when he called upon the 3S.
There are 2 clause 8s.
The fees being charged for the above were based upon £205 (JB) & £275 (AR) + VAT per hour.
Justin Burns instructed Stuart Frame, a barrister, under direct access who subsequently wrote to the BO, his correspondence clearly supporting this purported award made by JB and AR.
Stuart Frame’s correspondence to the BO confirms he has read the email trail and obviously the ex parte award and the subsequent purported award. Therefore, it is not unreasonable to say that Stuart Frame [SF] must believe that there are three appointed surveyors, a third owner’s surveyor, it is OK to have 2 clause 8s, that an ex parte award was served on 312 August and Justin Burns incurred(?) costs of £1200 + VAT - my understanding of costs is that they are an expenditure incurred and fees are chargeable - someone correct me if I am wrong. I’m not sure if anyone reading this will be presenting ‘costs’ as their ‘fees’ when submitting their accounts.
Stuart Frame charged Justin Burns £1200 + VAT for his correspondence, the court reduced this by 50%.
It is worthy of note that Stuart Frame* is the head of professional standards for the Faculty of Party Wall Surveyors. I’ve seen membership applications rejected for less than the errors above. Justin Burns is a ‘Fellow’ of the FPWS. Is this the new benchmark JB and SF have set as the standard required to be a ‘Fellow’ member of the FPWS?
JB produced the initial draft award, however, the ex parte award and the subsequent purported award are very different to JB’s original draft award. Following service of the ex parte Award JB put forward his proposed amendments to the award. Once he realised that an ex parte award had been served, he put forward the same proposals to AR. AR rejected the proposals and adopted the ex parte award subject to the amendments cited above. Apart from a couple of minor amendments i.e. three appointed surveyors, a third owner and ‘costs’ for Justin Burns the award is identical to the ex parte award. The purported award also makes provision for JB to carry out a final inspection, in essence, to be paid for before the works started. Despite the works being finished for quite some time, I am not aware of any such inspection having being carried out.
What I find more disconcerting, as stated above, is JB’s statement to AR
‘Not only was the award served by Lee invalid but the method of service was also invalid being pushed through the adjoining owner’s letterbox on a Saturday night. My appointing owner is an elderly lady with dementia living on her own so I'm sure you'll appreciate Lee’s actions have caused some confusion.’
JB accepted an appointment from someone who has dementia and acted on her behalf. Is this ethical and is such an appointment valid? Had I been in his position, (and I have been) I would have (and did seek) sought to deal with someone with power of attorney in such circumstances.
The owners’ names and addresses have been redacted in the cover letter and award shown below.
*Stuart Frame made a third surveyor award in which he decided matters that were not in dispute and subsequently provided a signed and dated 'draft Amended TS Award', the 1st award was arguably (on Stuart Frame's own assertions) invalidly served. see from this link
A point to bear in mind is that Stuart Frame is head of professional standards for the Faculty of Party Wall Surveyors.
*In a party wall matter 2019/2020 Stuart Frame was selected as the third surveyor. He made an award following a referral to him by the adjoining owner’s surveyor. I pointed out several erroneous parts of the award and the BO appealed the award i.e. he decided matters, by his own admission, that were not referred to him. SF subsequently ‘served’ a signed and dated amended ‘draft addendum award’ after he had served his 1st award. He then wrote to all concerned…‘This is to advise you all that in accordance with section 10(9)(c) of the 1996 Act I am deeming myself incapable of acting as the third surveyor in the above matter, and that I do so by virtue of this email to you all.’ I’m not quite sure how you can deem yourself incapable ‘in accordance with section 10(9)c’. 10(9)c …dies, or becomes or deems himself incapable of acting, before the dispute is settled, Nonetheless, my understanding is that a barrister specialising in party wall matters and head of professional Standards for the FPWS declared that he was incapable after he had made his purported award, despite the requirement of 10(9)c being ‘….before the dispute is settled.’