In Freetown Limited v Assethold Limited [2012] EWHC 1351, a party wall appeal under section 10(17) of the Party Wall etc. Act 1996, the High Court has given some much needed guidance on the service provisions of section 15 of the Party Wall etc. Act 1996.

Background

 Freetown is the freehold owner of 12 Westport Street, London. Assethold had a long lease of the adjoining property, 4 Westport Street. On 20 January 2011 Freetown, as Building Owner, served a number of notices under the Party Wall etc. Act on Assethold as Adjoining Owner.

 A dispute arose and a tribunal of three surveyors was appointed. On Friday 22 July 2011 the third surveyor made an award, and on that day or the day after (Saturday 23) he posted it to the parties.

 Freetown sought to appeal the award, and lodged its Appellant’s Notice on 08 August 2011.

 Assethold argued that the 14 day time limit in section 10(17) of the Party Wall etc. Act 1996 ran from the date the award was posted, which meant that the limitation date was Thursday 4 or Friday 5 August 2011, and the appeal was out of time.

 Freetown argued that the 14 day time limit started from the date the award was actually received (Monday 25 July 2011), which mean that the 14 day limit expired on 08 August, and the appeal was issued just in time.

 The appeal was initially heard by Mr Recorder Hochhauser QC on 16 December 2011.

 The Recorder found that the service provisions of section 15 were analogous to the provisions of s. 23 of the Landlord and Tenant Act 1927 and, following the decision of the Court of Appeal in CA Webber (Transport) Ltd v Railtrack Plc [2003] EWCA Civ 1167 (“Webber”), the date ran from the date the award was consigned to the post. The appeal was therefore out of time, and was struck out.

 Freetown appealed the Recorder’s decision to the High Court.

 Freetown’s Arguments

 It was submitted on behalf of Freetown:-

 (a)    that the Recorder had erred in finding that he was bound by the decision in Webber, as s. 23 of the Landlord and Tenant Act 1927 was not the same as, and could be distinguished from, section 15.

 (b)    That the correct construction was that section 7 of the Interpretation Act 1978 applied to section 15, meaning that the date of service was when the award was served when it arrived “in the ordinary course of post”

 (c)    That the Human Rights Act 1998 required the Court to interpret to adopt the interpretation of section 15 above.

 Freetown also relied on the unreported decision of the Central London County Court in Satish Harpalami v Gray’s Road Investment in which His Honour Judge Knight QC found that section 7 of the Interpretation Act 1978 applied to section 15.

 Judgment

 Mrs Justice Slade rejected those arguments.

 Her Ladyship considered that as the second and third arguments in this appeal had been already argued in Webber, the success or otherwise of those arguments hinged on  whether section 15 could be distinguished from s. 23 of the Landlord and Tenant Act 1927; essentially, the second and third arguments stood or fell with the first argument.

 He Ladyship found that interpreting section 15 so as to provide for service when the documents is consigned to the post would provide a greater degree of certainty than if the date of service were when the document was received. Whilst this may produce injustice in a handful of cases, Her Ladyship found that the service provisions in s. 23 of the Landlord and Tenant Act 1927 were not materially distinguishable from section 15, and Webber was binding authority.

Therefore, the second and third arguments were not relevent, and following Webber the date of service of the Award was the date on which it was consigned to the post.

The appeal was therefore made out of time, and was correctly struck out.

 Conclusion

 Although this case was heard by the High Court it is nevertheless binding authority. This is because it was heard by the High Court in its appellate capacity, and not as a court of first instance, although I undertstand that this may yet be referred to the Court of Appeal

 This decision will have wide ranging effects on the administration of the Party Wall etc. Act 1996.

 In particular, awards and notices under the 1996 Act (including party structure notices, excavation notices and s. 10(7) notices) will be deemed served when they are posted, and not when (if indeed if) they are received.

One potential difficulty is in demonstrating that the document was, in fact, consigned to the post.

 Surveyors would be well advised to ensure that they obtain proof of posting from the Post Office when they are serving notices, awards or other documents, to avoid any difficulty in establishing that the date of service.

 If you require any advice on this or any other issue arising from the Party Wall etc. Act 1996 then please get in touch at matthew.hearsum@morrlaw.com.