The Injunction Paradox

⚖️Executive summary

Power and another v Shah [2023] EWCA Civ 239 was not an injunction case and did not determine a free-standing claim for breach of statutory duty. It concerned an adjoining owner’s post-damage appointment of surveyors under section 10 after allegedly notifiable work had been completed without a section 3 notice. The award addressed whether notice had been required, whether the work caused damage and what compensation and fees should be paid. The Court of Appeal held that the absence of the building owner’s section 3 notice meant section 10 had never been engaged.

A prospective injunction presents a different question. Suppose an adjoining owner learns that work described in section 2 is imminent or continuing, no section 3 notice has been served, and the owner asks the court to restrain the work until the statutory procedure has been followed. Before granting relief on that basis, the court must be satisfied that the proposed actor is a building owner, that the operation is a section 2 operation and that section 3 imposes an obligation to serve notice. Each conclusion exists logically before—and despite the absence of—the notice said to be mandatory.

That does not by itself establish that section 10 is available without notice. An injunction may rest on threatened trespass or nuisance, and Shah expressly preserved common-law remedies. The sharper point is that the phrase “no notice, no Act” cannot be literally correct for every purpose. The Act must apply anteriorly to create the very duty whose breach justifies restraint. The remaining issue is whether section 10 nevertheless contains a separate, implied notice condition.

A genuine High Court case could place that narrower question in issue by combining appropriate injunctive or declaratory relief with a live dispute over the validity of an adjoining owner’s section 10 appointment. If the High Court were bound by Shah, a direct appeal certificate under the Administration of Justice Act 1969 might be arguable. But certification and Supreme Court permission are separate, demanding stages; an injunction case distinguishable from Shah may be a poor vehicle, and no litigation should be engineered merely to obtain appellate reconsideration.

📌1What Shah actually decided

Accuracy about the procedural setting is essential. Shah arose after the works and alleged damage, not from an attempt to restrain proposed work and not from a pleaded claim whose sole cause of action was breach of the Act.

Mr Shah carried out works at 34 Bull Lane without serving a section 3 notice because he had been advised that the works were outside the Act. The adjoining owners alleged that the works included removal of a chimney breast within section 2(2)(g) and caused damage to their property. Mr Shah denied both allegations. The Court of Appeal recorded that those facts remained unresolved.

Following the alleged damage, the adjoining owners appointed Mr Kyson as their surveyor under section 10(1). Mr Shah maintained that the Act did not apply and did not appoint. Mr Kyson used section 10(4) to appoint Mr Power on Mr Shah’s behalf. Their award found that notice had been required, that the works caused damage, and that compensation and surveyors’ fees were payable.

The issue on appeal was whether section 10 could be engaged in those circumstances. The Court held that it could not. Coulson LJ’s conclusion at paragraph 58 was that absence of the building owner’s section 3 notice meant there was no dispute engaging section 10 and the award was void. The court did not decide whether an adjoining owner could obtain prospective injunctive relief under the 1996 Act; nor did it finally determine whether breach of the notice duty supplies a private action in damages.

The relevant distinction is not between “damage” and “breach” as competing labels. It is between the post-damage statutory appointment actually made in Shah and a prospective court application to restrain work until the section 3 obligation is observed.

🔀2The different question

The hypothetical injunction case begins earlier in the statutory sequence. The work is proposed or under way; the alleged section 3 default is current; and the adjoining owner asks the court to preserve the position before completion or further damage.

Shah itself acknowledged this route. At paragraph 32 Coulson LJ said that an adjoining owner remains entitled to the usual claims in trespass, nuisance and negligence and, where appropriate, an injunction. At paragraph 34 he said that allegations of breach or noncompliance would ordinarily be decided by the courts. The judgment therefore sends the adjoining owner to court while denying access to section 10.

The historical decision in Louis v Sadiq supplies a concrete illustration, but under the predecessor legislation. There the adjoining owner obtained an interlocutory injunction restraining further work until the building owner complied with the 1939 Act. The later appeal concerned damages and the building owner’s inability to rely on a statutory defence after acting without notice. It was not a decision under the 1996 Act, and it cannot answer the present jurisdictional question. It nevertheless shows that restraining noncompliant party-wall work is not a concept invented after Shah.

The prospective case therefore asks: if the court may restrain an owner until section 3 is complied with, what is the legal status of the Act, the owner, the section 2 operation and the notice obligation before notice is served?

🧩3The injunction paradox

A duty cannot be enforced unless it already exists. That elementary proposition exposes an important limit in the language of “activation”.

Section 3(1) provides that, before exercising any right conferred by section 2, “a building owner shall serve” a party structure notice. If an adjoining owner seeks an injunction to prevent a proposed chimney-breast removal until notice is served, the alleged wrong is not the absence of a document in the abstract. It is the threatened exercise of a section 2 right without performance of the obligation which section 3 attaches to that exercise.

For that submission to succeed, the Act must already be doing legal work. It must identify the relevant owner as the building owner for the operation; characterise the operation as one for which section 2 confers a right; and impose the section 3 obligation before that right is exercised. Notice cannot be the event which creates the obligation to give notice. Otherwise the court would be asked to restrain breach of a duty that, on the activation theory, does not yet exist.

This is the paradox:

1. The adjoining owner alleges that a proposed operation falls within section 2.
2. Section 3 therefore requires the building owner to serve notice before exercising the right.
3. The building owner does not serve notice and proposes to continue.
4. The adjoining owner asks the court to restrain the work until that pre-existing obligation is performed.

The sequence makes sense if notice regulates the lawful exercise of a statutory right. It becomes circular if notice alone creates the statutory status, right and obligation. Non-service can be the breach of a duty; it cannot also mean that the duty never attached.

🔎4The findings anterior to notice

Whether the injunction is ultimately granted or refused, a claim framed around section 3 requires the court to separate four questions that “no notice, no Act” tends to compress.

The resulting proposition is modest but important: the Act applies before notice at least to the extent necessary to classify the work, identify the statutory parties, confer the relevant right and impose the notice obligation. Notice may determine whether the right can be exercised with statutory authority and whether particular procedures are engaged. It cannot be the universal gateway to the existence of every statutory proposition that precedes it.

This does not contradict the Court of Appeal’s conclusion that non-service leaves common-law rights intact. A statutory duty can coexist with common-law remedies. The difficulty lies only in stating the conclusion as though no part of the Act applies until notice. The more accurate formulation of Shah is narrower: absent a section 3 notice, the Court held that section 10 was not engaged in the post-completion circumstances before it.

⚖️5The legal basis for relief must remain separate

It would be unsafe to treat “breach of the Act” as a complete cause of action without further analysis. Three possible bases for court relief must be kept distinct.

Common-law and equitable relief

An adjoining owner may allege threatened or continuing trespass, nuisance, withdrawal of support or another recognised wrong and seek an injunction on that basis. Section 3 noncompliance may be highly relevant to the absence of statutory authority, but the cause of action remains at common law or in equity. This is the route most clearly preserved by Shah at paragraph 32 and by Reeves v Blake, which keeps court remedies outside the surveyors’ statutory remit.

An injunction to restrain breach of a statutory duty

In an appropriate case, equity may restrain conduct prohibited by statute even where damages for breach of statutory duty are unavailable. Whether that principle applies, who may invoke it, and whether Parliament intended another remedy to be exclusive are questions requiring full argument. The fact that section 3 uses mandatory language is necessary but not necessarily sufficient.

A private claim for damages for breach of statutory duty

Crowley v Rushmoor Borough Council suggested that failure to serve notice could found such liability. Coulson LJ expressed doubts at paragraphs 53 to 57 of Shah, particularly because the adjoining owner ordinarily retains claims in trespass, nuisance and negligence. He did not, however, need finally to decide every possible statutory-duty claim. A new article or pleading should therefore describe that route as legally uncertain, not established.

The anterior-application point does not depend upon proving a private damages action. It is enough that a court asked to restrain noncompliant work must determine whether section 3 imposes the obligation said to be unperformed.

🚧6What the paradox does—and does not—prove

The injunction paradox refutes the broadest activation language. It does not, without more, reverse the actual holding in Shah.

There is no contradiction in saying that the Act applies before notice for one purpose but that a particular remedial mechanism requires notice as a condition precedent. Parliament can impose a duty before notice and separately make notice the gateway to a tribunal. The decisive question remains textual: did Parliament make section 3 service an express or necessarily implied condition of an actual dispute under section 10?

The argument against Shah is that section 10 does not say so. It applies where a dispute “arises or is deemed to have arisen” between the statutory owners in respect of a matter connected with work to which the Act relates. A deemed dispute under section 5 necessarily depends on a notice and nonresponse. An actual dispute is textually separate. Sections 3(3), 11(8) and 12 also demonstrate that not every route into section 10 follows the same section 3 sequence.

But the Court of Appeal rejected that construction. It held that the link was implicit in the statutory scheme and that post-completion complaints following unnotified works belonged in court. A prospective injunction may expose why the Act must apply anteriorly; unless section 10 jurisdiction is itself in issue, it may leave the binding ratio untouched.

🧭7What a proper appellate vehicle would require

A court does not decide abstract questions. Reconsideration requires genuine facts, adversarial argument and relief whose outcome depends on the disputed proposition.

A suitable case would likely need more than an adjoining owner’s ordinary injunction claim. If the court can decide the application entirely in trespass or nuisance, or simply restrain work until notice without considering section 10, Shah may be irrelevant to the result. The case could be distinguished rather than reconsidered.

The section 10 issue would have to arise directly—for example, through a live actual dispute about whether proposed or continuing work falls within section 2, an adjoining-owner appointment said to be valid notwithstanding non-service, and a claim for declaratory relief concerning that appointment or the surveyors’ jurisdiction. Any injunction would then preserve the property position; it would not itself manufacture the appellate issue.

The clean legal question might be framed as follows:

Where a court has determined that an owner is a building owner and that proposed or executed work is work described by section 2, is service of a section 3 notice nevertheless a condition precedent to the existence of an actual dispute and to jurisdiction under section 10(1)?

That formulation isolates the disputed step. It accepts that the court may determine the threshold statutory facts, avoids giving surveyors jurisdiction merely because an allegation is made, and asks whether the notice condition found in Shah follows from the language governing an actual dispute.

🏛️8The possible leapfrog route

A direct appeal from the High Court to the Supreme Court is possible only within the statutory leapfrog regime. It is not available simply because a party regards a Court of Appeal decision as wrong.

Under sections 12 to 16 of the Administration of Justice Act 1969, a qualifying civil decision of the High Court may be certified for direct appeal if the statutory conditions are met. One possible route is section 12(3)(b), where the trial judge is bound by a previous appellate decision that was fully considered after adequate argument. The broader conditions in section 12(3A) may also require consideration. In every case, the point must be one of law of general public importance.

The procedure has two separate gates. The High Court must first grant a certificate; the Supreme Court must then grant permission to appeal. Practice Direction 3 says the certificate application should be made immediately after judgment or within 14 days. An application to the Supreme Court must ordinarily be made within one month after certification.

For a section 12(3)(b) case, the Supreme Court’s published criteria include that the new case is not distinguishable from the previous decision, that the previous decision was fully considered after apparently adequate argument, and that the ordinary Supreme Court permission threshold would be met. That first requirement creates a difficulty for a purely prospective injunction case: it may illuminate Shah yet be materially different from a post-completion award following alleged damage.

Accordingly, “seek an injunction and leapfrog” is not a procedural shortcut. The more realistic proposition is conditional: a genuine High Court case that necessarily raises the same section 10 condition, and in which the judge is bound by Shah, could provide a vehicle for an application for certification. Whether certification or permission would be granted would depend on the actual judgment, record, relief and statutory route.

• The proceedings must be genuine civil proceedings in the High Court, not an advisory or manufactured dispute.
• The section 10 question must be outcome-determinative and fully argued.
• The case must not become academic—for example, because the works finish and no live declaratory issue remains.
• The proposed route must confront, rather than obscure, the distinction between common-law injunction relief and statutory surveyor jurisdiction.
• Costs, undertakings in damages, evidence, forum and interim-relief requirements require specialist advice on the particular facts.

✅Conclusion

Shah decided that an adjoining owner could not engage section 10 after alleged damage from completed, unnotified work. It did not decide an adjoining owner’s prospective application to restrain work for failure to comply with section 3, and it did not finally establish a general private action for breach of statutory duty.

The prospective injunction nevertheless exposes a structural point. A court cannot enforce the section 3 obligation without first deciding that the Act applies to the proposed work, that the actor is the building owner, that section 2 has conferred the relevant right and that section 3 regulates its exercise. Those statutory propositions precede notice. The broad statement “no notice, no Act” is therefore too wide; the true controversy is whether Parliament separately made notice indispensable to an actual section 10 dispute.

That controversy can be reconsidered only in a proper case. An injunction claim may reveal the paradox, but it becomes a vehicle for reviewing Shah only if the validity of section 10 jurisdiction is genuinely and necessarily before the court. Even then, a leapfrog certificate would be an application—not an entitlement—and Supreme Court permission would remain essential.

📚Authorities and source materials

1. Party Wall etc Act 1996Especially sections 2, 3, 5, 10, 11, 12 and 20.
2. Power and another v Shah [2023] EWCA Civ 239Especially paragraphs 1 to 8, 20 to 35, 40 to 46, 51 to 58 and 78 to 80.
3. Reeves v Blake [2009] EWCA Civ 611; [2010] 1 WLR 1The boundary between section 10 jurisdiction and court proceedings for common-law or equitable remedies.
4. Louis and another v Sadiq [1997] 1 EGLR 136; (1996) 74 P & CR 325Predecessor legislation; interlocutory restraint and the preservation of common-law liability after unnotified work.
5. Crowley (trading as Crowley Civil Engineers) v Rushmoor Borough Council [2009] EWHC 2237 (TCC)The suggested breach-of-statutory-duty route, considered with caution in Shah.
6. Administration of Justice Act 1969, section 12Statutory conditions for a certificate permitting an application for direct appeal from the High Court.
7. UK Supreme Court Practice Direction 3, paragraphs 3.6.1 to 3.6.16Certificate timing, permission procedure and the Supreme Court’s criteria for leapfrog applications.
8. Guide to bringing a case to the UK Supreme CourtGeneral procedural guidance; current requirements should be checked before any application.