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Heathcote and another v Doal and another [2017] EWHC B8 (TCC) (31 January 2017)

HHJ Grant in the County Court at the Birmingham Technology and Construction Court (TCC) has awarded the claimants’ their costs of an injunction to prevent works being carried out without party wall notices being served, partly on an indemnity basis.
HHJ Grant in the County Court at the Birmingham Technology and Construction Court (TCC) has reminded us that:
“…the whole point of the [Party Wall etc. Act 1996] is to provide for a regime of the service of notices and counter-notices, the appointment of surveyors, the provision of an award, all of which is intended to be done before works are commenced.”
The consequences of failing to do so can lead to the court granting injunctive relief and ordering costs to be paid on an indemnity basis.
In early November 2016, building works started at the defendants’ property. The works stopped when the adjoining owner complained. Following a site visit a day or so later, it was found that the defendants had started to excavate their property’s floor slab without serving notice under the Party Wall etc. Act 1996 (PWA 1996). Thereafter, the defendants’ first party wall surveyor did provide to the claimants two notices under section 6. In correspondence, the surveyor also indicated that the defendants were going to proceed with the works. This led to the claimants being granted an interim injunction without notice on 15 December 2016. At a hearing on 22 December 2016, that injunction was extended until 31 January 2017 (and subsequently continued in part).
In awarding the claimants their costs, including on an indemnity basis up to and including 22 December 2016, the court found that the defendants’ failure to comply with the PWA was a matter that took the case and its circumstances “out of the norm.” The court was also critical of the first surveyor’s notices, which contained inaccurate and inconsistent descriptions of the proposed works, which the court described as “wrong and misleading.”
Although the outcome may be unsurprising to those familiar with party wall matters, the defendants’ failure to comply with the PWA 1996 has proved costly. Although we do not know exactly what costs the claimants incurred, they were awarded an interim payment of £10,000 plus VAT.
For further advice contact Tom Warrender, Head of Commercial Property, or Stuart Love, Head of Commercial Litigation.