Zissis v Lukomski

Case Summary

 

Court:
Court of Appeal
Status:
Binding
Current Legislation:
Party Wall etc. Act 1996, s. 10(17)
Facts:

Zissis owned 8 Birkdale Road in Acton. Lukomski owned the adjoining property at 10 Birkdale Road. In 2003 Zissis wished to undertake works. Notices were served, and an award duly made authorising the works, but it did not deal with the fees of the adjoining owner’s surveyor, Mr Carter.

Mr Carter issued an ex-partie award requiring Zissis to pay him £15,825 plus VAT. Zissis appealed using the procedure in Part 8 of the Civil Procedure Rules. Mr Carter applied to enforce his award using the summary procedure under rule 70.5 of the Civil Procedure Rules.

Decision:

Zissis’ appeal was procedurally incorrect. An appeal under section 10(17) of the 1996 Act must be made under Part 52 of the Civil Procedure Rules, not Part 8. Appeals against awards are by way of rehearing, not review.

Awards under the 1996 Act cannot be enforced using the summary procedure in CPR 70.5.

Comment:

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

Full Text:

[2006] EWCA Civ 341