Time to party (over that wall) like it’s 1996

This article was first published on Practical Law's Construction Blog.

As the incredible rise of our transatlantic wall-building friend sets gently into the twilight of credulity, it provides us with an opportunity to get back to reality with the Party Wall etc. Act 1996 (PWA 1996).

The PWA 1996 remains something of an unusual beast. For an Act that features so heavily in a construction practitioner’s life, there remains very little case law on the subject and even less in the way of procedural guidance. As such, dealing with the PWA’s somewhat arcane drafting can feel like death by immurement.

The particular aspect of the PWA 1996 that I would like to pick up on today is enforcement and, more specifically, the procedure for enforcing payment of sums of money awarded under a party wall award.

The options

Rather like a referendum vote, there is a clear choice between two polarised options, neither of which is immediately obvious on the face of the PWA 1996.

Section 17 provides that:

“Any sum payable in pursuance of this Act (otherwise than by way of fine) shall be recoverable summarily as a civil debt.”

Though you wouldn’t know it from reading the PWA 1996, section 58(1) of the Magistrates’ Court Act 1980 gives the court the:

“… power to make an order on complaint for the payment of any money recoverable summarily as a civil debt.”

Thus, a party wall award can be enforced in the Magistrates’ Court and, where it is deemed just and equitable, the court can also award costs (see section 64 of the Magistrates’ Court Act 1980). Alternatively, a standard Part 7 claim can be commenced in the County Court (assuming the relevant value threshold has not been exceeded).

As a construction practitioner, I am certainly not familiar with the procedure of the Magistrates’ Court and would always lean towards issuing a Part 7 claim in the County Court, not least because there is some evidence online that the Magistrates’ Court is highly unfamiliar with the PWA 1996 process anyway.

In fact, the County Court route is preferable not just because it is what we know best. In addition and, unlike in the Magistrates’ Court:

• The County Court has the power to award interest on sums due (section 69, County Courts Act 1984).

• Interest will run automatically on judgment debts over £5,000.

• Judgment in default can be obtained.

• There is a far greater menu of enforcement options.

However, the question remains, in cases where the party enforcing the party wall award requires payment of compensation swiftly or, for example, has concerns that a developer (that is, the building owner) may wind up the development company on completion of the relevant works, what can they do about it?

My experience

I was instructed recently on a case where, for various reasons, time was of the essence in getting the party wall award enforced. Of course, where a party does not challenge a party wall award within a period of 14 days beginning with the date on which it was made (section 10(17), PWA 1996), it “shall be conclusive” (section 10(16), PWA 1996). In those circumstances, and after the passage of the 14-day period, there is no basis on which to challenge the party wall award. Thus, for enforcement, it seems wholly inconvenient to have to wait for a Part 7 claim to run its course, particularly in the very busy County Court schedule.

In our case, taking the fact that the party wall award becomes conclusive into account, it seemed to us that the position was analogous to that where a party seeks to enforce an adjudicator’s decision. In that respect, section 9.2 of the TCC Guide provides clear direction as to the manner in which adjudication decisions should be enforced via summary judgment, and an explanation for how an abridged timetable should be sought.

Bearing this in mind, we sought to borrow the process for the enforcement of the party wall award in the Central London County Court; and, it was successful.

More particularly, our approach was to issue a brief Part 7 Claim Form and Particulars of Claim, along with an Application Notice and accompanying witness statement in which we asked the court to make:

“An order that:
(1) permission be granted for the Claimant to apply for summary judgment in advance of an acknowledgment of service being filed;
(2) in any event, time for the Defendant to file his Acknowledgment of Service be abridged to 7 days;
(3) summary judgment (made under Part 24) be given on the whole of the claim in favour of the Claimant;
(4) the period of notice to be given to the Defendant for any hearing be abridged to 4 days; and
(5) the costs of this Application be paid by the Defendant.

Because

(a) this is a Party Wall Award enforcement claim;
(b) the Party Wall Surveyors have decided that monies should be paid by the Defendant to the Claimant;
(c) such monies have not been paid;
(d) the time to challenge the awards under section 10(17) of the Party Wall Act 1996 has now passed;
(e) the Claimant considers that the Defendant has no real prospect of successfully defending the claim;
(f) there is no other reason why the claim should be disposed of at trial; and
(g) in respect of abridging time, the Claimant is entitled to the enforcement of a Party Wall Award without delay.”

Perhaps people have been doing this forever but, even if that is right, there is nothing written about it. More to the point, given the prevalence of party wall award claims, there should be a procedural direction or some guidance from the court on this front by now.

Hopefully, by sharing our experience in relation to the enforcement of party wall awards, we can make the process and the PWA 1996 less of a mystery. On this senseless Black Friday, it would be nice to build some bridges rather than another wall.