Date of service of party wall award – Freetown Ltd v Assethold Ltd

News - 22/05/2012

In Freetown Limited v Assethold Limited [2012] EWCA Civ 1657 a party wall appeal under section 10(17) of the Party Wall etc. Act 1996, the Court of Appeal has given some much needed guidance on the service provisions of section 15 of the Party Wall etc. Act 1996.

Freetown is the freehold owner of 12 Westport Street, London. Assethold had a long lease of the adjoining property, 4 Westport Street. On 20 January 2011 Freetown, as Building Owner, served a number of notices under the Party Wall etc. Act on Assethold as Adjoining Owner.

A dispute arose and a tribunal of three surveyors was appointed. On Friday 22 July 2011 the third surveyor made an award, and on that day or the day after (Saturday 23) he posted it to the parties.

Freetown sought to appeal the award, and lodged its Appellant’s Notice on 08 August 2011.

Assethold argued that the 14 day time limit in section 10(17) of the Party Wall etc. Act 1996 ran from the date the award was posted, which meant that the limitation date was Thursday 4 or Friday 5 August 2011, and the appeal was out of time.

Freetown argued that the 14 day time limit started from the date the award was actually received (Monday 25 July 2011), which mean that the 14 day limit expired on 08 August, and the appeal was issued just in time.

The appeal was initially heard by Mr Recorder Hochhauser QC on 16 December 2011.

The Recorder found that the service provisions of section 15 were analogous to the provisions of s. 23 of the Landlord and Tenant Act 1927 and, following the decision of the Court of Appeal in CA Webber (Transport) Ltd v Railtrack Plc [2003] EWCA Civ 1167 (“Webber”), the date ran from the date the award was consigned to the post. The appeal was therefore out of time, and was struck out.

Freetown appealed the Recorder’s decision to the High Court, who upheld the Recorder’s Decision. Freetown appealed to the Court of Appeal.

The Court of Appeal held that the Recorder and the High Court were wrong, and section 7 of the Interpretation Act 1978 applies to the deemed service provisions in section 15 of the Party Wall etc. Act 1996. This means that an award is deemed served when it would have been delivered in the ordinary court of post, and the 14-day time limit for issuing a party wall appeal runs from the date of deemed receipt of the award, not the date of posting the award.

Surveyors would be well advised to ensure that they obtain proof of posting from the Post Office when they are serving notices, awards or other documents, to avoid any difficulty in establishing that the date of service.

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