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England and Wales High Court (Technology and Construction Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Lea Valley Developments Ltd v Derbyshire  EWHC B22 (TCC) (19 April 2017)
Cite as:  EWHC B22 (TCC)
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QUE E N'S B E NCH DIVISI ON
TECHNOLOGY AND CONSTRUCTION COURT
B e f o r e :
| LEA VALLEY DEVELOPMENTS LIMITED
|- and -
|THOMAS WILLIAM DERBYSHIRE
8th Floor, 165 Fleet Street, London, EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
Web: www.DTIGLOBAL.com Email: TTP@dtiglobal.eu
(Official Shorthand Writers to the Court)
MR J MORT QC (instructed by Child & Child) appeared on behalf of the Defendant
Crown Copyright ©
MRS JUSTICE O'FARRELL:
"Make good all structural or decorative damage to the adjoining owner's property occasioned by the works, including underpinning the adjoining owner's property if required in material to match the existing fabric and finishes to the reasonable satisfaction of the building site owner's surveyor and the adjoining owner's surveyor. Such making good to be executed upon completion of the works or at any earlier time deemed appropriate by the agreed surveyor and the adjoining owner's surveyor. If so required by the adjoining owner, i.e. the defendant, make payment in lieu of carrying out the works to make the damage good, such sums to be determined by the agreed surveyor."
At 4(e) there was also a requirement that if the works were undertaken the building owner shall:
"Indemnify the adjoining owner and tenants in respect of injury to or loss of life of any person or damage to property caused or in consequence of the execution of the works and the costs of making any justified claims."
"(2) The building owner (i.e. the claimant in this case) shall compensate any adjoining owner (that is the defendant in this case) and any adjoining occupier for any loss or damage which may result to any of them by reason of any work executed in pursuance of this Act."
(i) on 30 November 2015 payment of £84,717.28;
(ii) on 5 May 2016 payment of £48,798.60;
(iii) on 21 September 2016 payment of £37,172.74 and
(iv) on 25 January 2017 payment of £42,272.28.
(i) first of all the defendant's application for an extension of time, if so needed, for filing its acknowledgement of service;
(ii) secondly, the defendant's application for a declaration that the court lacks jurisdiction or in the alternative, if it has jurisdiction, should stay the claimant's current claim pending a determination by the surveyors of the outstanding issues in relation to compensation; and
(iii) thirdly, the claimant's application for expedition of its claim.
(1) a declaration that in the circumstances of this case the claimant's obligation to pay compensation to the defendant should be calculated by reference to the diminution in value of the property; alternatively;
(2) a declaration as to what in the circumstances of this case the proper measure of compensation should be.
"Thank you for your email below and I confirm the documents are safely received. I will look at them in detail, but there are two points which I should immediately make:
(1) I will take my client's instructions as to whether I am authorised formally to accept service of proceedings…
(3) if the application for an expedited hearing proceeds we will apply for a stay pending resolution of the issues by the third surveyor."
"This is just to confirm that I am authorised to accept service."
It is common ground that no further copy of the Part 8 claim was served on the defendant. Assuming therefore that there was good service by reference to the second response of the defendant's solicitors the defendant should have filed an acknowledgement of service not more than 14 days after service of the claim i.e. by 10 March 2017. In fact the acknowledgement of service was not served until 21 March 2017 when the defendant formally gave notice that it wished to challenge jurisdiction in relation to the claim.
"(1) Where a dispute 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 Act relates either-
(a) both parties shall concur in the appointment of one surveyor (in this section referred to as an "agreed surveyor"); or
(b) each party shall appoint a surveyor and the two surveyors so appointed shall forthwith select a third surveyor (all of whom are in this section referred to as "the three surveyors")."
In this case s.10(1)(b) was adopted, namely each party appointed its own surveyor and those two surveyors appointed a third.
"The agreed surveyor or as the case may be the three surveyors or any two of them shall settle by award any matter—
(a) which is connected with any work to which this Act relates, and
(b) which is in dispute between the building owner and the adjoining owner."
"Either of the parties or either of the surveyors appointed by the parties may call upon the third surveyor selected in pursuance of this section to determine the disputed matters and he shall make the necessary award."
"An award may determine-
(a) the right to execute any work;
(b) the time and manner of executing any work; and
(c) any other matter arising out of or incidental to the dispute including the costs of making the award."
"The award shall be conclusive and shall not except as provided by this section be questioned in any court."
"Either of the parties to the dispute may, within the period of fourteen days beginning with the day on which an award made under this section is served on him, appeal to the county court against the award and the county court may-
(a) rescind the award or modify it in such manner as the court thinks fit; and
(b) make such order as to costs as the court thinks fit."