When can a Surveyor deem himself incapable of acting?
This is an interesting question but in many ways the answer is simple. The reason why this question is asked in the first place however, is due to the fact that there may be occasions when a surveyor deems himself incapable of acting due to pressure from his appointing owner. As a surveyor is expected to act impartially, the idea that he can step aside due to pressure from his appointing owner does not sit comfortably with many surveyors.
In the case of Mills V Savage on 15th June 2016 this concern was heard by Judge Bailey. In this case a surveyor (Mr Hopkins) had deemed himself incapable of acting on behalf of his appointing owners and one of the reasons he gave was ‘for cost reasons my appointing owners have asked me to resign as they wish to represent themselves’.
The other surveyor (Mr Antino) expressed the firm opinion that Mr Hopkins’ ‘purported withdrawal of his appointment because Mr and Mrs Mills want to represent themselves is a refusal to act and is not a justified reason to deem himself incapable to act under section 10(5)’.
The Judge considered whether Mr Antino’s views were correct and his starting point was to look at the definition of the word ‘deem’. He looked at various definitions and found that the following was most helpful in the context of section 10(5) of the 1996 Act:
‘The word ‘deems’ normally means only ‘is of opinion’ or ‘considers’ or at most ‘decides’, and there is no implication of steps to be taken before the opinion is formed or the decision taken’.
The Judge stated the following which I think really helps to answer the question ‘when can a surveyor deem himself incapable of acting?’
‘My inclination would be to hold that it is entirely a matter for the surveyor to decide whether he wishes to resign by deeming himself incapable of acting, and he may do so on whatever ground seems appropriate to him’.
The Judge acknowledges ‘that there are many surveyors, both of the Pyramus and Thisbie Club and the Faculty of Party Wall Surveyors, who hold firmly to the opinion that once a Party Wall appointment has been accepted its quasi-arbitral role and statutory protection from dismissal require a greater loyalty to the task in hand than such an approach would suggest’ but nevertheless, the Judge Bailey was clear that it was for Mr Hopkins to decide whether or not he was able to deem himself incapable of acting and it was not for Mr Antino to challenge this.
To conclude, it is simply for the surveyor to decide if it is appropriate to deem himself incapable of acting. However unsavoury such an action may seem to some, it is not for other surveyors to police this. From a moral point a view, we think a surveyor should consider carefully the appropriateness of such an action and should always act in a way that promotes trust and integrity in the profession.