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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Farrs Lane Developments Ltd, R (On the Application Of) v McAllister  EWHC 982 (Admin) (09 February 2016)
Cite as:  EWHC 982 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF
FARRS LANE DEVELOPMENTS LIMITED
|BRISTOL MAGISTRATES' COURT
WordWave International Limited
Trading as DTI
8th Floor, 165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
The Defendant did not attend and was not represented
Mr S Frame (instructed by Direct Access) appeared on behalf of the Interested Party
Crown Copyright ©
"That the Building Owner shall immediately, upon receipt of this Award, pay the Building Owner's Surveyor's fee of £1,300.00 plus VAT for his involvement up to and including the preparation and service of this Award. That, unless otherwise awarded by the Two Surveyors, the Building Owner shall pay the Building Owner's Surveyor's fees at £90.00 per hour, or part thereof, plus VAT for any attendance outside of the aforementioned allowance, including additional inspections of the works authorised by this award, as may be required, or in the event of damage being caused to the Adjoining Owner's property, or other such contingencies or variations arising or any general post-Award matters reasonably requiring the Building Owner's Surveyor's involvement."
"Any sum payable in pursuance of this Act (otherwise than by way of fine) shall be recoverable summarily as a civil debt."
"The principle noted in Onigbanjo v Pearson [a decision in the Mayor's and City of London County Court given on 10 March 2008], that an award cannot require payment by a party to one of the appointed surveyors, is plainly correct based on a proper construction of section 10, and supports the more general proposition that section 17 is not intended to permit surveyors to enforce unpaid surveyors' costs under an award."
"It is usual for the award to include the adjoining owner's costs by way of surveyors fees as a lump sum based on time incurred, including an allowance for any necessary subsequent inspections.
…… The surveyor appointed by the building owner would normally agree fees directly with the latter, but there is no reason why the responsibility for, and reasonableness of, these cannot be determined in an award."
"Despite the custom and practice of the surveyors addressing invoices to the owner determined responsible for the costs, the courts have ruled that there is no contractual or statutory basis for this arrangement and only an owner can enforce an award in respect of his or her awarded costs. Surveyors should therefore take care in the wording of awards in respect of costs and in the contractual arrangements made with their appointing owners in respect of their fees."
"(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—
(b) both parties shall concur in the appointment of one surveyor (in this section referred to as an 'agreed surveyor'); or(c) 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').
(4) If either party to the dispute—
(a) refuses to appoint a surveyor under subsection (1)(b), or(b)neglects to appoint a surveyor under subsection (1)(b) for a period of ten days beginning with the day on which the other party serves a request on him,
the other party may make the appointment on his behalf.
(10) 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.
(11) 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.
(12) 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;
but 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 dispute arises or is deemed to have arisen.
(13) The reasonable costs incurred in—
(a) making or obtaining an award under this section; (b)reasonable inspections of work to which the award relates; and(c) any other matter arising out of the dispute,
shall be paid by such of the parties as the surveyor or surveyors making the award determine.
(15) Where an award is made by the third surveyor—
(a) he shall, after payment of the costs of the award, serve it forthwith on the parties or their appointed surveyors; and(b)if it is served on their appointed surveyors, they shall serve it forthwith on the parties.
(16) The award shall be conclusive and shall not except as provided by this section be questioned in any court.
(17) 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."
Where else do we look, please?
"The amount of costs to be allowed to the litigant in person for any item of work claimed will be—
(a) where the litigant can prove financial loss, the amount that the litigant can prove to have been lost for time reasonably spent on doing the work."