England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(Mr Recorder Jackson)

		Royal Courts of Justice Strand London WC2 Thursday, 17th May 2001

1. LORD JUSTICE JUDGE: This is an application for permission to appeal the judgments of Mr Recorder Jackson dated 13th September and 2nd October 2000.
2. In his first judgment the recorder ruled on four preliminary issues, following case management directions given by District Judge Haselgrove on 4th May 2000. In his judgment he found in favour of the claimant/prospective appellant on the first issue and for Miss Jakob, the defendant, on the remaining three. In his second judgment the recorder made case management directions for the subsequent conduct of the litigation.
3. A small point is that the notice of appeal in this case was filed on 15th December 2000. It was therefore substantially out of time, but, without going into the details at all, an explanation has been given as to why the delay took place and in my view that would not be fatal to her application if it should otherwise succeed.
4. Taking the facts as briefly as possible, because this litigation, unhappily, has yet to come to an end, the matter goes back to 1992 and arises out of work carried out by or on behalf of Miss Jakob on a party wall in Artesian Road, London W2 owned by Mrs Filippi and by Miss Jakob respectively.
5. There are provisions in the London Building Acts (Amendment) Act 1939 which require the building owner to serve an appropriate party structure notice on the adjoining owner in which the nature and particulars of the proposed work and the time when it will begin are set out. On 18th October 1991 Mr Monson, who was the surveyor acting for Miss Jakob, sent a notice to Mrs Filippi and her surveyor. Following negotiations between the surveyors, an award was agreed and signed on 8th June. That award dealt with the right to execute the work, the time and manner of executing it and the settlement of matters of differences which might arise between the owners.
6. On 10th September Mr Monson, again acting on behalf of Miss Jakob, served a further party structure notice on Mrs Filippi. That was expressed to refer to the existing party wall agreement and it specified what were called "proposed extra works". Following a dispute between the parties over the proposed new award and fees incurred, the issue was referred to a third surveyor, a Mr Ensom, and he, on 15th January, held that the notices of 18th October 1991 and 10th September 1991 were invalid and such therefore that he could not arbitrate about the fees.
7. In the end, what must have been for all concerned (and again I know I have not heard and seen the parties) an unpleasant business culminated in proceedings Mrs Filippi brought in July 1998. She sought a declaration that the work carried out on the party wall pursuant to the notice and the award amounted to trespass. She sought damages and the recovery of the fees that she had paid to surveyors and engineers. Miss Jakob denied that there had been any trespass and in any event raised a Limitation Act point.
8. On 4th May 2000 District Judge Haselgrove held his case management conference. He ordered that four issues should be heard as preliminary issues. The first was whether Mrs Filippi's claim was statute-barred. The second was whether the notice dated 18th October 1991 was effective in respect of the works carried out. There was nothing in that preliminary issue relating to the notice of 10th September 1992. The third was whether or not the party wall award made on 8th June 1998 was valid. The fourth was whether or not the works had started within six months of the date of the relevant notice.
9. There was a subsidiary point which was not without some relevance. The judge noticed that the court had ordered the completion of the disclosure proceedings by October 1999 and that the court's directions concerning the appointment of a joint expert (a step which might, if taken, have resulted in a reduction in the costs of the litigation) had been disregarded by both sides. He himself concluded that no expert evidence was necessary to decide the preliminary issues; and so he ordered that there was no need for any further disclosure of documents and neither side had permission to call an expert witness save in relation to surveyors' or architects' reports that had already been served.
10. The preliminary issues were heard before Mr Recorder Jackson QC on 8th September 2000. Counsel appeared for both sides. Having heard the argument, in his judgment dated 13th September 2000 Mr Recorder Jackson noted that the second and third of the preliminary issues required him to determine the validity of the party structure notice of 18th October 1991 and the award in respect of the works carried out.
11. He then considered the preliminary issues. The first was limitation. He held that all the fee notes relating to the work done were within six years of the commencement of the proceedings; so they were not statute-barred.
12. So far as the party wall was concerned, he held that simply rebuilding a party wall with new bricks should not be treated as a continuing trespass; but if new elements were put into the party wall which crossed the boundary line, then they were a continuing trespass. He therefore held that the trespass claim as pleaded was not statute-barred. In reality, on that issue, therefore, Mrs Filippi won.
13. The recorder did make a number of observations in his judgment on that day by way of comment. He indicated a concern about whether Mrs Filippi would in fact be able to establish her case in trespass. Thus, by way of example only, in paragraph 31 of his judgment he said:

"... it seems unlikely to me that Mrs Filippi will be able to prove that any of the work mentioned in the award did result in trespasses to her property."

14. Naturally enough, that observation and others like it caused her concern, and I shall return to these issues later.
15. In relation to the validity of the party structure notice of 18th October 1991, he rejected the submission made on behalf of Mrs Filippi that a section 47 notice must be signed by the building owner personally. He held that it could be signed by the owner's agent, that it was not necessary for the agent to be appointed in writing and, as Mr Monson was acting as agent, the section 47 notice was valid and effective.
16. He then went on to consider the validity of the award. He concluded that there was no ground for holding it to be invalid. He noted that the award did contain items of work which fell outside the various paragraphs of section 46 which were mentioned in the notice, but concluded that that did not affect the validity of the award, which described the works to the satisfaction of the surveyors for both sides.
17. As to the fourth preliminary issue, the timing of the works, he noted Miss Jakob's admission that the work had not been started within six months of the date of the notice. He therefore directed himself to consider, on the basis of the submissions before him, whether section 47(3) of the Act meant that the notice ceased to be effective. He considered the decision in Leadbetter v Marylebone Corporation [1905] 1 KB at page 661 and, despite there being a difference in the wording of the statutes involved, this case of course arising under the 1939 Act many years after Leadbetter had been decided, applied it. He concluded that the six months' time limit for starting the work became inapplicable as a result of procedures allowed under section 55, so that the notice was effective in relation to the works described in it.
18. When the matter came on before him again on 2nd October, he refused an application by counsel on behalf of Miss Jakob that Mrs Filippi's action should be dismissed forthwith. He held that, notwithstanding the views he had taken of her potential difficulties in establishing trespass, it was open to Mrs Filippi to advance argument on that issue. He said in terms:

"I have indicated in my written judgment and I feel as strongly as ever the anxiety that this litigation be conducted in a manner proportional to the significance of what is involved for the parties."

19. But he made it clear at the end of his judgment that the claimant, Mrs Filippi, should serve amended particulars of claim:

"... which include full particulars of allegations of trespass which continue to be pursued and of any damage alleged to have resulted therefrom."

20. He also decided that, as the defendant, Miss Jakob, had succeeded in substantial part on the preliminary issues (in effect, three out of four) the claimant, Mrs Filippi, should pay 75 per cent of the costs of the preliminary hearing before him and, of course, any costs arising from amendments to the pleadings. He also decided, finally, that the costs of a single expert should be shared equally between the parties.
21. The major concern in this present application, as it seemed to me and as Mrs Filippi confirmed when we began the hearing, was that, by saying what he had, the recorder had in some way finally decided the issue of trespass. She was extremely concerned to appeal any such order. Her point was, and it had force, that that was not one of the preliminary issues which he had been asked to decide.
22. Further points taken by her on the matter then arose in respect of the second notice of September 1992. There was argument about the decision on the recorder's conclusions on the second, third and fourth preliminary issues. She indicated that the work begun by the notice of October 1991 had not finished until much later, and then Miss Jakob had begun new work under her home in July 1992. She went on to be concerned that the whole of this part of the judgment was then reinforced, and wrongly reinforced, by the suggestion in a discussion between the judge and counsel at the October hearing that a notice issued in September 1992 was valid. As she pointed out, in the course of that discussion Mr Recorder Jackson used the word "notices" (in the plural), whereas he had only been asked to deal, so far as notices were concerned, with the October notice (singular). She further suggested that the October 1991 notice was invalid or, if valid, only valid in relation to three items of work rather than five.
23. Finally, taking an overall view of the matter, she sought permission to appeal the costs order of 75 per cent of the preliminary issues on the basis that it was unfair - partly because she says that the conclusions on the preliminary issues were wrong and partly, as I understood what she was saying from the papers, because the decision that the notice of October 1999 was valid meant that there was a fee issue which she was entitled to recover from Mr Ensom.
24. I have endeavoured - at some length, I am afraid - to describe the various issues as they have arisen before me. There is no purpose in granting permission to appeal the trespass point. That is a point which was well made by Mrs Filippi and I would have considered that there was some merit in her application for permission if in some way the judge's decision had struck out or ruled her out from advancing her case in trespass. As she said, that issue was not before him. It was not, indeed, dealt with by him, and his remarks on the point were, so far as I can see (and I have no doubt, having read his judgment on the second occasion in October, Mr Recorder Jackson himself regarded them so to be) entirely obiter. What seems clear to me is that he was concerned to make a point about the continuing expense and problems involved in pursuing the litigation.
25. But, for the avoidance of doubt, I shall make it clear that nothing in the observations made by Mr Recorder Jackson has any bearing on the trespass issue. It is open to Mrs Filippi to proceed to court to argue for damages to be paid to her for trespass - indeed, in exactly the same form as Mr Recorder Jackson at the October hearing indicated that she should. So far as this issue is concerned, her position is open and nothing in the rulings on the preliminary issue undermine her entitlement to go to court to advance her case on the point of trespass.
26. I shall, in this context, take a case management decision in the absence of the defendant. The decision that I make is that, when this issue, if it is pursued, comes to be heard at the Central London County Court, arrangements should be made for it not to be heard before Mr Recorder Jackson. That represents a fairness to Mrs Filippi, who would not feel, he having made the observations he did, that she could be certain that his approach would not be biased against her. I shall ask my court clerk to arrange for the Civil Appeals Office to write an appropriate letter indicating my direction to that effect.
27. The second matter which I must deal with arises from the word "notices" (used in the plural) in the discussion with counsel at the October hearing and any effect it may have. It is, in truth, impractical for me to be able to analyse this point in any detail at all. What I have done, thanks to the good offices of the court clerk, is to identify the order drawn up following the hearing in October 1992. So far as the order is concerned, it is in accordance with the judgment given by the recorder rather than the words that he spoke at the hearing, and there is nothing said about the September 1992 notice. In those circumstances, as far as I can see, there is nothing to appeal arising from it.
28. So far as the remaining matters are concerned, it seems to me that the grounds on which the application for permission to appeal are made are without force. The recorder specifically considered the mandatory terms of the Act. He had his attention drawn to the judgment of Brightman J (as he then was) in Gyle-Thompson v Wall Street (Properties) Ltd [1974] 1 WLR 123 regarding the importance of regularity in the procedures arising under the Act. He held, on the basis of the submissions made to him, that there was no reason why an award could only be valid if the notice which initiated the procedure contained all the particulars of work which were eventually included in the award. He took the view that that sort of approach and interpretation would be impractical. New matters could arise between the surveyors, and section 55 specifically held that the award could determine the right to execute works or other matters arising out of the dispute; so any new elements, provided it was connected with the work mentioned in the notice, could validly be included in the award. In my view that approach to the problem faced by the recorder, on the arguments before him, was correct, and is not susceptible to an arguable ground of appeal.
29. That leaves the application for permission to appeal the costs order. So far as that is concerned, obviously if there had been a successful appeal against preliminary rulings two, three and four (or, for that matter, two or three or four), then the question of the order for costs below would have arisen for consideration. But as it is and as there is, in my judgment, no appropriate basis for granting permission to appeal to Mrs Filippi in respect of preliminary issues two, three and four, what we are left with is the decision made by the trial judge following his conclusions after a full hearing on the four issues which he had to decide. There is nothing shown in the papers before me to lead to the conclusion, even arguably, that the judge did not exercise his discretion correctly or that there is here shown material which would justify the Court of Appeal interfering with the exercise of his discretion on this subject. In those circumstances that application for permission to appeal falls.
30. Accordingly, for the reasons I have endeavoured to explain, the applications for permission to appeal the order of Mr Recorder Jackson are refused. The concerns of Mrs Filippi in respect of the trespass point and the September 1992 notice are, I hope, allayed, and certainly should be. The fact that they were genuine concerns does not justify granting permission to appeal in respect of matters where unfavourable orders have not been made against her.
31. Accordingly, subject to the request to my clerk to arrange for an appropriate letter to be sent to the Central London County Court in respect of the hearing, the applications for permission to appeal are refused.
Order: applications for permission to appeal refused; letter to be written to Central London County Court as indicated.