Fernando v London Borough of Newham (unreported) – Before His Honour Judge Parfitt sitting at the County Court at Mayors & City Of London Court 17th June 2024
In 2011, Newham decided to demolish their semi-detached house at 44 Barrington Road, so in early 2012 they issued Party Wall Notices on their attached neighbours at no.42 (Mr & Mrs Fernando). Seperate party wall surveyors were appointed by each owner, and following the serving of an Award on the 22nd February 2012 (The Primary Award), No. 44 Barrington Road was demolished and the party wall propped using raking shores on concrete pad foundations. These foundations were designed to be nominally 1m in depth but were (years later – after damage had occurred) discovered to have been constructed at only 0.53m depth.
Six years after demolition, In August 2018, these shallow concrete pad foundations subsided, which caused the party wall to be pulled out laterally (the vertical members of the shoring being anchored into the party wall), causing severe damage to the party wall and No. 42 Barrington Road. A dispute arose between Newham and the Fernandos as to the cause of the damage, and after several investigations by engineers, in October 2020, the surveyors who served the Primary Award served a “Further Award” determining that the damage was likely to be caused by the Building Owner’s failure to provide adequate support to the party wall following the demolition of their property.
However, the two surveyors had not sought a written re-appointment over this separate matter of later damage, yet proceeded to make 6 further awards in the matter, culminating in their 7th Further Award on the 5th May 2023. This awarded significant damages (and all costs) against Newham, yet specifically rejected some significant aspects of the Fernandos’ claim for damages. The Fernandos appealed it, on the basis that it was invalid as the surveyors had been acting ultra vires.
Although when the surveyors made their first “Further Award” (in 2020) the case of K Group Holdings v Saidco had not yet happened, following the later widespread publication of HHJ Parfitt’s ruling in that case (in 2022), the surveyors were advised that they had no ongoing jurisdiction. Unfortunately, that position was rejected by them and Newham, and (still failing to seek a written re-appointment), they went on to make several further awards – all without jurisdiction.
Furthermore, in making their 7th Award (the first to specifically reject parts of the Adjoining Owner’s claim), they did not ensure that the Adjoining Owner was given fair opportunity to make their case, and they also allowed the Building Owner’s Surveyor’s own practise (of whom he was in control) to re-schedule the repairs (which had already been scheduled by independent surveyors acting for the Adjoining Owner) – in the face of objections.
The 7th Further Award was appealed by the Adjoining Owner, and HHJ Parfitt sitting at the Central London County Court ordered (on the 17th June 2024) that the 7th Award be set aside on jurisdictional grounds. He determined that the initial surveyors had become functus officio following the resolution of the initial dispute (in 2012), and also that the numerous other “Further Awards” made by them before the 7th one would also appear to have been made without jurisdiction for the same reason. He further determined that the 7th Award be set aside additionally on the grounds of a breach of natural justice, for the reasons discussed in the paragraph above.
The Court having ordered that all of the Further Awards prepared by the initial surveyors also being void, additionally noted that the Building Owner might be entitled to seek reimbursement of sums paid as a result of them – though sums paid to the Appellant might be credited against the overall debt owed to them by Newham.
It has to be noted that Newham were inexplicably not present or represented at this hearing, and so no case was put forward to the court in support of the jurisdiction of the appealed Award. No detailed judgement was made giving reasoning of why the judge decided the surveyors to have been functus officio following the 2012 Primary Award, though this is seemingly in line with his ruling in K Group Holdings v Saidco, and views stated to the Faculty at conference. It was also noted that between 2012 and 2016, a separate and unrelated issue of other damage caused had been settled by common law proceedings, without using the surveyors. This supported the argument that they had become functus in 2012.
The matter was subsequently resolved by further Awards made by other (properly appointed) surveyors, and serves to highlight the importance of getting a valid written re-appointment when asked to deal with a later dispute over damage caused, and not simply assuming ongoing jurisdiction, or relying on a clause in the Primary Award purporting to give ongoing authority. It also serves to highlight the need to ensure that the rules of natural justice are followed meticulously; allowing both owners fair and adequate opportunity to present their case, and not acting in a way that could be construed as being conflicted.
Bob Gibson FFPWS
Building & Structural Consultants Ltd.