Bypassing another surveyor
Can one surveyor bypass another surveyor by making an award with the third surveyor?
This was one of the issues looked at in the case of Mills V Savage heard on the 15th June 2016. There are a number of surveyors (and third surveyors alike) who believe that any two of the three surveyors may make an award.
This belief primarily stems from the wording of Section 10(10) of the Act which states:
‘(10) The agreed surveyor or as the case may be the three surveyors or any two of them shall settle by award any matter—
(a) which is connected with any work to which this Act relates, and
(b) which is in dispute between the building owner and the adjoining owner.’
At first glance and taking this clause literally, it does seem plausible that it is possible for one surveyor to bypass another and make an award with the third surveyor. Judge Bailey suggest that proceeding on this basis would be difficult to justify – though not impossible.
Judge Bailey stated ‘ the standard approach, overwhelmingly adopted in practice, is for the two party-appointed surveyors to proceed together to make any necessary award without involving the third surveyor. This seems eminently sensible. It would be a rare case where the court would uphold a complaint that the two party-appointed surveyors proceeded without involving the third surveyor.’
He continues ‘it is a different matter where one party-appointed surveyor proceeds with the third surveyor behind the back of the other party-appointed surveyor. Such a proceeding would be difficult to justify in ordinary circumstances.’
Essentially, if we have a surveyor appointed on behalf of the building owner and another surveyor appointed on behalf of the adjoining owner, it is essential that each surveyor is able to contribute to the process. By not allowing one party to make representations as to the content of an award, the process of resolving a dispute is not adhered to and this can render a subsequent award invalid.
To summarise, whilst it may be tempting to bypass a difficult surveyor by making an award directly with the third surveyor, it may be more prudent to engage with the surveyor and merely make submissions to the third surveyor who can adjudicate on the points of disagreement. The party wall process can be difficult, particularly if surveyors have conflicting interpretations of the Act, however, a surveyor should consider his actions carefully. Any actions must be proportionate, legal, appropriate and necessary.