Chartered Society of Physiotherapy v Simmonds Church Smiles

Case Summary

 

Court:
 High Court
Status:
 Not Binding
Current Legislation:
 Party Wall etc. Act 1996, s. 10(17)
Historic Legislation:
 London Building Acts (Amendment) Act 1939, s. 55
Facts:

The Society demolished and rebuilt a party wall having followed correctly the provisions of the 1939 Act. Some settlement damage occurred, and the third surveyor awarded that it was the result of the works by the Society. The Society appealed.

A number of preliminary issues were listed, including whether an appeal under the 1939 Act was by way of review or by way of rehearing. The difference between them is that a review is limited to ascertaining whether there was an error of law only, whereas at a rehearing the Court approaches the matter afresh, and may receive fresh evidence not before the surveyors, and may replace the surveyors’ discretion with their own.

Decision:

The Court found that awards under the 1939 Act were not arbitration awards, and were not subject to the rules regarding arbitration; rather, they were in a category of their own similar to an expert determination

The Court also found that appeals under the 1939 Act were by way of rehearing, and not review.

Comment:

This position with regard to the nature of the appeal was upheld under the 1996 Act in Zissis v Lukomski.

However, rule 9.1 of the Practice Direction to Part 52 (the rule on which Zissis was based) was removed in the 2012 update of the Civil Procedure Rules 1998. This means that the default position under CPR 52.11, that an appeal is by way of review unless the Court orders otherwise, would now appear to apply.