Before describing briefly how to lodge an appeal, it is important to understand what you are getting into. An appeal is an expensive piece of litigation. You need deep pockets, even if your appeal is successful – or at least good legal cover insurance.

Nicholas Isaac QC, a barrister specialising in party wall matters, estimates that it costs between £16,500 and £33,000 to WIN an appeal of a party wall award. The high cost of challenging perceived unfair behaviour is prohibitive and perhaps the biggest reason why litigation is avoided.

Members of the public are broadly unfamiliar with the party wall act and seek the guidance of specialist party wall surveyors to ensure matters are handled correctly. When presented with a letter of appointment, a building owner will often sign it, believing that this is standard procedure – which indeed it is. What people do not realise however, and party wall surveyors are included in this, is that a letter of appointment should only be signed if there is a dispute.

Building owners wishing to undertake work in pursuance of the party wall act should engage with a party wall surveyor at an early stage. Far too often, engagement happens too late, and this causes avoidable stress to all parties involved. Signing a letter of appointment nice and early can seem like a sensible and necessary thing to do, but there are some flaws that must not be ignored.

Firstly, you only need to sign a letter of appointment if there is a dispute. A dispute follows the serving of a party wall notice, where the neighbour either dissents to the work, or does not respond. The Party Wall Act is clear when a letter of appointment is required, it refers to it in sections 10(1)(a) and (b) of the Act, ‘where a dispute arises or is deemed to have arisen’ both parties shall appoint either one surveyor (the agreed surveyor) or their own surveyors. Section 10(4) requires the appointment to be in writing. The act is generally triggered by serving a notice (save for sections 3(3)(a) and (b), and there are no requirements made by the Act for surveyors to be appointed. Indeed, many building owners choose to serve their own notices.

How a neighbour / adjoining owner responds to a notice determines whether a surveyor needs to be appointed. If a neighbour consents, then there is simply no need to appoint a surveyor, and work can start. If a dispute does arise, (for example, a disagreement over damage), a surveyor can be appointed to adjudicate and serve an award. Alternatively, a neighbour can dissent and appoint a surveyor, in which case an award is served settling the ‘dispute’. A neighbour may be perfectly happy for the building owner to use the same surveyor as the one the neighbour has picked – this is known as the ‘agreed surveyor’ route. This saves the building owner having to pay his own surveyor’s fees. However, if the building owner has already appointed a surveyor, then more often than not, the agreed surveyor opportunity is lost, and either from lack of knowledge, or misrepresentation, the building owner has to pay two sets of surveyor’s fees. This is unacceptable.

Many surveyors claim that if their appointing owner asked them to, they would step aside to facilitate the agreed surveyor route. This may seem noble, but two points are made:

1. An appointment cannot be rescinded. The building owner is relying on his surveyor’s discretion to ‘deem himself incapable of acting’. If a surveyor wished to keep the appointment, he would be perfectly entitled to. If the building owner had not signed the letter of appointment too early, the whole scenario would be different. The building owner would be free to liaise with his neighbour and his neighbour’s surveyor, and would be free to appoint the neighbour’s surveyor to act as the ‘agreed surveyor’. This would not require the building owner’s surveyor’s permission, since he would not have been appointed.

2. The two-surveyor set-up is encouraged by poor notice templates and the early signing of a letter of appointment. The notice templates often state ‘in the event of a dispute I will appoint (insert name)’. This is steering parties away from the agreed surveyor, and furthermore, if the building owner has already signed a letter of appointment, it already looks to the neighbour that the agreed surveyor route is not workable. Party wall surveyors do tend to work in a way that generates and safeguards their fees. Two-surveyor appointments are ideal, as the industry can literally double its money. The main point is that parties involved turn a blind eye to the agreed surveyor route, and the signing of a letter of appointment nice and early makes the avoidance of the agreed surveyor route feel more natural. If surveyors only asked for their appointment letters when a dispute materialised, and if they gave honest advice, options would be kept open and the uptake of agreed surveyors would increase, saving the building owner money.

Before you Appeal an Award, you must think carefully about what you are hoping to achieve; whether you have a realistic chance of success and lastly; are there any reasonable alternatives that may negate the need for Appeal. Section 10(17) of the Party Wall Act states 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 upon him, appeal to the County Court against the Award and the County Court may –

1. Rescind the Award or modify it in such manner as the Court thinks fit; and

2. Make such order as to costs as the Court thinks fit.

It should be noted that the fourteen-day time period only relates to Awards which are valid. If an Award is not valid, perhaps because it goes beyond the Surveyor’s jurisdiction, then you can challenge it at any time. This is implied in the High Court ruling on Gyle-Thompson & Others v Wall Street Properties Limited, though be aware that this case was non-binding.

Whilst Appeals in relation to Party Wall Awards are governed by Part 52 of the Civil Procedures Rules, it is advisable that you bring your appeal within fourteen days of the Award being made. There have been instances whereby people have wanted to appeal an Award in the belief that they have 21 days in line with Part 52, however, the statutory nature of the Appeal means that the fourteen days specified in Section 10(17) of the Party Wall etc. Act 1996 overrides Part 52 of the Civil Procedures Rules. It can also be considered that the fourteen-day appeal period starts from the time the Award was actually received (Freetown Ltd v Assethold Ltd).