CHARTERED BUILDING SURVEYORS
Specialising in boundaries in England and Wales-
where they are and what rights exist across them. Working on the edge -
facilitating construction in the urban environment, helping to maximise
site use, minimise cost and delay caused by neighbours, and protecting
the rights of owners of land and buildings from building works and
associated activities nearby.
Enforcement of an award made under the Party Wall
etc Act 1996
Introduction
I have written elsewhere on the question of whether the procedure laid down in the Party Wall etc Act might be arbitration.
If it is arbitration, then the Party Wall etc Act will be an arbitration agreement for the purposes of the Arbitration Act, and the procedure will be a statutory arbitration subject to the Arbitration Act except where there is any contradiction, in which case the Party Wall etc Act procedure will prevail.
The Arbitration Act in section 94(1) states:
94(1) The provisions of Part I apply to every arbitration under an enactment (a 'statutory arbitration'), whether the enactment was passed or made before or after the commencement of this Act, subject to the adaptations and exclusions specified in sections 95 to 98.
(2) The provisions of Part I do not apply to a statutory arbitration if or to the extent that their application?
(a)
is inconsistent with the provisions of the enactment concerned,
with any rules or procedure authorised or recognised by it, or
(b) is excluded by any other enactment.
(3) In this section and the following provisions of this Part 'enactment'?
(a)
in England and Wales, includes an enactment contained in
subordinate legislation within the meaning of the Interpretation Act
1978;
(b) in Northern Ireland, means a statutory provision within the meaning
of section 1(f) of the Interpretation Act (Northern Ireland) 1954.
95(1) The provisions of Part I apply to a statutory arbitration?
(a)
as if the arbitration were pursuant to an arbitration agreement
and as if the enactment were that agreement, and
(b) as if the persons by and against whom a claim subject to
arbitration in pursuance of the enactment may be or has been made were
parties to that agreement.
(2) Every statutory arbitration shall be taken to have its seat in England and Wales or, as the case may be, Northern Ireland.
Section 96 then adapts various provisions Part I to suit statutory arbitrations, section 97 excludes certain provisions of Part I, and section 98 allows the Secretary of State to make provision by regulation for further adaptation or exclusion of the provisions of Part I with respect to statutory arbitrations.
The Interpretation Act 1978 s21(1) (according to Harris, Planterose and Tecks in The Arbitration Act 1996 a Commentary, Blackwell Science, Oxford, 1996) defines subordinate legislation as 'Orders in Council, orders, rules, regulations, schemes, warrants, byelaws and other instruments made or to be made under any Act'
Section 66 deals with enforcement. It states:
66(1) An award made by the tribunal pursuant to an arbitration agreement may, by leave of the court, be enforced in the same manner as a judgment or order of the court to the same effect.
(2) Where leave is so given, judgment may be entered in terms of the award.
(3) Leave to enforce an award shall not be given where, or to the extent that, the person against whom it is sought to be enforced shows that the tribunal lacked substantive jurisdiction to make the award.
The right to make such an objection may have been lost (see section 73).
(4) Nothing in this section affects the recognition or enforcement of an award under any other enactment or rule of law, in particular under Part II of the Arbitration Act 1950 (enforcement of awards under Geneva Convention) or the provisions of Part III of this Act relating to recognition of awards under the New York Convention or by action on the award.
Section 73 bars a party from making an objection on various grounds unless he does so as soon as he becomes aware of the grounds for that objection.
For a reason beyond me, it is not generally accepted that the procedure under the Party Wall etc Act is a statutory arbitration. One of the authors of the text book referred to above said he would get his pupil to look into it. I can only presume the lack of response indicates the answer to be not clear cut.
However, the Arbitration Act 1996 enforcement and statutory arbitration provisions follow from those in the 1950 Act and I have had judgment entered in terms of awards under the 1950 Act. The only real effective difference between the two Acts is that now the courts are required to support arbitration and their powers to interfere in it have been reduced.
A commonly accepted method of enforcement of a Party Wall etc Act award is to sue for damages resulting from non-compliance, by an action on the award, and at the same time to apply for an injunction restraining further work in contravention of the terms of the award.
This has the disadvantage for the party claiming the protection of the court that he has to give an undertaking to meet the other's costs. There is also the small matter of lawyers for both parties and their costs. So, if a party seeks to enforce an award by this route, he first has to risk his own money, and secondly if the respondent is the building owner which he usually is, the claimant also has to risk the costs of the delay to the contract which can be a substantial weekly amount in the order of tens of thousands of pounds.
We end up with that famous quote from I forget whom: 'English justice is available to all, as is dinner at the Ritz.'
Section 26(1) of the 1950 Act allowed for summary enforcement of an award on an ex parte application heard by a judge in chambers. It seems from my reading of the 1996 Act that this simple procedure may no longer be available and that a hearing may be necessary. This is in the discretion of the judge receiving the application. However, a hearing on an application under section 66 should be a far simpler affair than an action on an award and an injunction application as the grounds for defence are so restricted, and any grounds for defence may have been lost completely, for which see sections 70 and 73. Simpler should mean shorter which should mean cheaper.
Application is made using Form 8A available from the Court Service
The procedure to be adopted is under the Civil Procedure Rules Part 49 available from The Lord Chancellor's Department and copied on the next page in reduced form.
The purpose in having either the court give leave to enforce an award as if it were a judgment of the court, or having judgment entered in terms of the award is to facilitate enforcement of the terms of the award.
Anyone failing to comply with the terms of the award, whether they be that he should not carry out work outside certain hours, or that he should not work from the adjoining owner's land, or even that he should pay the adjoining owner's surveyor's fees, would then be in contempt of court which is a far more serious matter than simply ignoring a determination of two surveyors.
An application could then be made to the court for a charge to be registered against the property, which the mortgagee or funder would not like (particularly if he were notified of the intended application), possibly to the extent that he would decide to meet the obligation himself in order to protect his own position and make his own provisions for recovery from the recalcitrant owner. Once a charge has been registered, application can be made for an order requiring the sale of the property in order to recoup the costs the subject of the charge. It is fair to assume that no owner is going to want his property taken from him for failing to comply with the terms of an award, or for any other reason.
Application could also, presumably, be made to have the recalcitrant owner imprisoned for contempt of court.
Any comments on the above reasoning from our learned friends would be gratefully received. Anyone following the above reasoning into action does so at entirely his own risk and should take his own proper legal advice from a specialist lawyer first.
DAVID BOWDEN & ASSOCIATES CHARTERED BUILDING SURVEYORS
27 Selby Road London E11 3LT UK Tel +44 (0) 20 7377 9494
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