Party wall appeals – Review or rehearing?

News - 28/05/2013

Statutory appeals, such as an appeal under section 10(17) the Party Wall Act , can take one of two forms; an appeal by way of rehearing, or an appeal by way of review. The difference between the two is helpfully summarised in the judgement of May LJ in El Du Pont De Nemours & Company v St Dupont [2003] EWCA Civ 1368.

In essence, in an appeal by way of review the appeal court must be persuaded that the lower tribunals’ decision was in some way incorrect before the appeal court can impose a different answer.

In contrast, in an appeal by rehearing there is no such limitation, and the appeal court does not have to find fault with the lower tribunal’s decision in order to replace the judgment or discretion of the lower tribunal with its own.

[pullquote_right]… the Court will only be able to interfere with an award if it find that it is in some way wrong… [/pullquote_right]

This issue was considered in relation to the 1996 Act by the Court of Appeal in Zissis v Lukomski [2006] EWCA Civ 341 who found that party wall appeals under section 10(17) are by way of rehearing, not review. This decision was based on rule 52.11 of the Civil Procedure Rules (“CPR”) which states that every appeal will be by was of review, unless (among other exceptions) a practice direction provides otherwise. Paragraph 9.1 of the Appeal Practice Direction provided that appeals such as those under the Party Wall Act are by way of re-hearing, not review.

This position has recently come into question because paragraph 9.1 was removed from the 2012 update of the Civil Procedure Rules. It may therefore be that, unless the court considers that it is in the interests of justice to hold the appeal as a re-hearing, it will be by way of review.

If that is the case then the Court will only be able to interfere with an award if it find that it is in some way wrong, rather than simple replacing the surveyors discretion with the courts discretion.

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