Earlier this week in Freetown v Assethold, the first appellate court decision clarifying when notices are deemed served under section 15 of the Party Wall etc. Act 1996 (PWA 1996) was handed down. The decision will affect any party in receipt of a party wall award who intends to appeal that award.
Freetown Ltd v Assethold Ltd
Where a party wall award is made under section 10 of the PWA 1996, either party has a right to appeal against the award to the county court. The appeal must be made within 14 days, “beginning with the day on which an award made under this section is served on him” (section 10(17)). Section 15 specifies certain permitted methods of service, including personal service and service by post.
The question at the heart of Freetown v Assethold concerned when the 14-day period for making an appeal began running under section 10(17). Did it begin on the date on which the award was:
- Received by the party seeking to appeal (as Freetown contended)? or
- Consigned to the post (as Assethold submitted)?
If the former, the appeal was within the 14-day period. If the latter, the appeal was out of time.
Court of Appeal’s analysis in Webber
Slade J considered that the analysis under the PWA 1996 should, in essence, be identical to that under a similar provision in section 23 of the Landlord and Tenant Act 1927 (LTA 1927). In CA Webber (Transport) Ltd v Railtrack plc [2004] 1 WLR 320, the Court of Appeal held that section 23 (which was imported into the Landlord and Tenant Act 1954 (LTA 1954)), deemed a document served by one of the stipulated methods on the date it was sent and not on the date it was received.
Webber applied
Unless the construction of section 15 of the PWA 1996 could be distinguished in any material respect from that of section 23, the court considered that, by parity of reasoning, the Court of Appeal’s analysis in Webber should apply to section 15.
The court held that the construction of section 15 could not be properly distinguished. In particular, it was persuaded by the fact that section 15 specified sending by post as a primary method of service. If service by post was to take effect on receipt and not on sending, then this construction would deprive section 15(1)(b) and the latter part of section 15(1)(c) of any purpose. The inclusion of service by post as a primary method of service would do no more than repeat the position at common law.
Consequently, Freetown’s appeal of the party wall award was made out of time and the appeal before Slade J was dismissed.
What does this mean in practice?
As I say at the start, this decision will affect any party in receipt of a party wall award who intends to appeal that award.
Given that it is now clear that the 14-day period for lodging an appeal begins on the date on which the award is “consigned to the post”, in reality that time period is shorter than parties may have thought. It will therefore be imperative for a party to act quickly.
In the future, parties can assist themselves by:
- Agreeing with the party wall surveyors that any award shall be served by a particular method (whether within section 15 or, to maximise the time period, without).
- Asking the party wall surveyor to notify them of the date on which the award will be served so they can ensure that they are ready to act as soon as it is received.
Surveyors who settle a party wall award may wish to consider including a short statement in the award setting out the method by which it is intended to serve the award. If that method is within section 15, the award could helpfully state the date on which the 14-day period for an appeal starts to run, thereby giving the parties additional certainty.
In December 2012, the Court of Appeal handed down its judgment overturning the High Court judgment discussed above by David: see Legal update, Time for appeal starts to run from deemed receipt of party wall award.
As Tim Reid noted,