The building owner carried out works to his property including an extension to a party wall which caused damage to the adjoining owner’s property. A dispute as to how much compensation was due to the adjoining owner was referred to a third surveyor under section 10 of the Party Wall etc Act 1996. In due course the third surveyor made an award of compensation which was significantly lower than that sought by the adjoining owner, e-mailing a copy of the award to the parties’ surveyors. The adjoining owner received the e-mail the same day when it was forwarded to him by his surveyor, but did not read the contents until the following day. Fourteen days later the adjoining owner appealed to the County Court against the award. The building owner contended that the appeal had been issued outside the time limit specified in section 10(17), which provided that a party to a dispute had to bring an appeal within the period of 14 days beginning with the day on which the award was served on him. On a preliminary issue, the judge held that the appeal had been issued within time, concluding that service of the award by e-mail did not constitute good service for the purposes of section 15 of the Act, which specified various ways in which a notice or other document “may” be served under the Act.
On the building owner’s appeal—
Held, appeal allowed. For the purpose of construing section 15 of the Party Wall etc Act 1996, little or no weight could be attached to the fact that most members of the party wall surveyor community together with the government itself considered that the valid methods of service for the purposes of the 1996 Act were restricted to those set out under section 15 or at least did not include service by electronic means. That was a question of statutory construction which turned on the wording of section 15 itself looked at in context having regard to the purpose of the provision. The use of the word “may” in section 15(1) was some indication that the provisions which followed were intended to be permissive only. In the absence of any contra-indications in the language of section 15 itself, there was no justification for giving “may” a different meaning. On its true construction, section 15 should not be treated as an exhaustive statement of the means by which a notice or other document could be validly served for the purposes of the 1996 Act. Therefore, the adjoining owner had been validly served for the purposes of section 10(17) of the 1996 Act either when the e-mail was received in his in-box or on the following day when he read it together with the attached award. Accordingly, his appeal had been issued outside the time limit specified in section 10(17) (post, paras 13–14, 33–38, 39, 40).
Michael Wheater and Emily Betts (instructed by Fox Williams llp) for the building owner.
Tom Weekes QC (instructed by Ward Hadaway) for the adjoining owner.