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28th February 2018

Party Wall Pitfalls: Serving Notice by E-mail

The Court of Appeal has recently ruled that it is possible for Party Wall Awards to be served via electronic means, including e-mail.

Extensive basement renovations were carried out by an individual at his home in South West London in 2013, which included works to extend a party wall. Both the individual and his neighbour instructed surveyors to determine the cost of remedying the damage caused, with both surveyors having starkly differing views on the amount of compensation which should be payable in order to correct the damage. In line with the procedure under the Party Wall etc. Act 1996 (the Act), a third surveyor was appointed in order to resolve the deadlock.

In making an award under the Act, the third surveyor arrived at a significantly lower value than the estimate put forward by the neighbour’s surveyor: the figures were over £750k apart. The neighbour sought to appeal the award, in line with his right to do so under the Act.

The issue for the Court of Appeal stemmed from whether the neighbour was ‘out of time’ for appealing the sum awarded. Under the Act, a party has a right to appeal to the court ‘within the period of fourteen days beginning with the day on which an award … is served on him.’ The neighbour was served with a copy of the award via a circuitous route: the third surveyor e-mailed the award to each surveyor (with a hard copy sent by post), with the neighbour’s surveyor then forwarding this to his client by e-mail later that evening. The neighbour opened the e-mail containing the award one day after the initial e-mail had been sent by the third surveyor. Under the Act (and pre-2016, which was when the award was made), the list of methods by which documents ‘may’ be served did not include the use of e-mail. Had effective service been made on the neighbour, which would in turn set the clock running for the 14 day deadline under which to appeal the third surveyor’s award?

Despite there being no agreement between the parties in relation to service by e-mail, the Court of Appeal held that notice of the third surveyor’s award could be served by e-mail. The implication of this ruling was that the third surveyor’s award was validly served on the neighbour when the e-mail in question was received – not when the neighbour actually opened the e-mail the following day.

For further information please contact Lauren Coote on 01223 461155 or click here to email Lauren. Lauren will be joining the real estate litigation team as a newly qualified solicitor in mid –March.

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