Section 55 - Settlement of Differences

Section 55 – Settlement of Differences

London Building Act (Amendment) Act 1939

Where a difference arises or is deemed to have arisen between a building owner and an adjoining owner in respect of any matter connected with any work to which this Part of this Act relates the following provisions shall have effect:

(a) Either:

(i) both parties shall concur in the appointment of one surveyor (in this section referred to as an “agreed surveyor”); or

(ii) each party shall appoint a surveyor and the two surveyors so appointed shall select a third surveyor (all of whom are in this section together referred to as “the three surveyors”);

(b) If an agreed surveyor refuses or for ten days after a written request by either party neglects to act or if before the difference is settled lie dies or becomes incapable of acting the proceedings for settling such difference shall
begin de novo;

(c) If either party to the difference refuses or for ten days after a written request by the other party neglects to appoint a surveyor under subparagraph (ii) of paragraph (a) of this section that other party may make the appointment on his behalf;

(d) If before the difference is settled a surveyor appointed under subparagraph (ii) of paragraph (a) of this section by a party to the difference dies or becomes incapable of acting the party appointed him may appoint another surveyor in his place who shall have the same power and authority as his predecessor;

(e) If a surveyor appointed wider subparagraph (ii) of paragraph (a) of this section by a party to the difference or if a surveyor appointed wider paragraph (d) of this section refuses or for ten days after a written request by either party neglects to act the surveyor of the other party may proceed ex parte and anything so done by him shall be as effectual as if he had been an agreed surveyor;

(f) If a surveyor appointed under subparagraph (ii) of paragraph (a) of this section by a party to the difference refuses or for ten days after a written request by either party neglects to select a third surveyor under paragraph (a) or paragraph (g) of this section the superintending architect or in cases where the Council is a party to the difference the Secretary of State may on the application of either party select a third surveyor shall have the same power and authority as if he had been selected under paragraph (a) or paragraph (g) of this section;

(g) If a third surveyor selected under subparagraph (ii) of paragraph (a) of this section refuses or for ten days after a written request by either party or the surveyor appointed by either party neglects to act or if before the difference is settled he dies or becomes incapable of acting the other two of the three surveyors, shall forthwith select another surveyor in his place who shall have the same power and authority as his predecessor;

(h) All appointments and selections made under this section shall be in writing;

(i) The agreed surveyor or as the case may be the three surveyors or any two of them shall settle by award any matter which before the commencement of any work to which a notice under this Part of this Act relates or from time to time during the continuance of such work may be in dispute between the building owner and the adjoining owner;

(j) If no two of the three surveyors are in agreement the third surveyor selected in pursuance of this section shall make the award within fourteen days after he is called upon to do so;

(k) The award may determine the right to execute and the time and manner of executing any work and generally any other matter arising out of or incidental to the difference:

Provided that any period appointed by the award for executing any work shall not unless otherwise agreed between the building owner and the adjoining owner begin to run until after the expiration of the period prescribed by this Act for service of the notice in respect of which the difference arises or is deemed to have arisen;

(l) The costs incurred in making or obtaining an award under this section and the cost of reasonable supervision of carrying out any work to which the award relates shall subject to the provisions of this section be paid by such of the parties as the surveyor or surveyors making the award determine;

(m) The award shall be conclusive and shall not except as provided by this section be questioned in any court;

(n) Either of the parties to the difference may within fourteen days after the delivery of an award made under this section appeal to the county court against the award and the following provisions shall have effect:

(i) Subject as hereafter in this paragraph provided the county court may rescind the award or modify it in such manner and make such order as to costs as it thinks fit;

(ii) If the appellant against the award on appearing before the county court is unwilling that the matter should be decided by that court and satisfies that court that he will if the matter is decided against him be liable to pay a sum (exclusive of costs) exceeding one hundred pounds and gives security approved by the county court to prosecute his appeal in the High Court and to abide the event thereof all proceedings in the county court shall be stayed and the appellant may bring an action in the High Court against the other party to the difference;

(o) Where an appellant against an award brings an action in the High Court in pursuance of the last preceding paragraph the following provisions shall have effect :

(i) If the parties agree as to the facts a special case may be stated for the opinion of the court and may be dealt with in accordance with or as nearly as circumstances admit in accordance with the rules of the court;

(ii) In any other case the plaintiff in the action shall deliver to the defendant an issue whereby the matters in difference may be tried;

(iii) The issue shall be in such form as may be agreed between the parties or in case of dispute or of non-appearance of the defendant as may be settled by the court;

(vi) The action shall proceed and the issue be tried in accordance with or as nearly as circumstances admit in accordance with the rules of the court;

(v) Any costs incurred by the parties in the county court shall be deemed to be costs incurred in the action in the High Court and be payable accordingly.