Successful challenge in the Court of Appeal for Fox Williams’ client

February 26, 2018

Time limit upheld for documents validly served by email under the Party Wall etc Act 1996 

Fox Williams has led a successful challenge in the Court of Appeal in a case concerning the service of documents under the Party Wall etc. Act 1996 (PWA 1996) by email.

Fox Williams had appealed against the decision of HHJ Bailey in the County Court at Central London (Technology and Construction Court) who had held that service of an award by email did not amount to good service under the PWA 1996. This led to the result that a party who received (and read) an award by email only, could claim that he had not been properly served and that time had not started to run for the purposes of an appeal. That, in turn, exposed our client to a challenge to the decision of the third surveyor which could have cost our client almost £1million if successful.

Section 15(1) of the PWA 1996 lists the methods by which notices and documents "may" be served. It did not refer to the use of email and the judge held that it was widely assumed by the party wall surveying community that section 15(1) did not allow service by email. In fact, the Government had acted on that assumption by making the Party Wall etc. Act 1996 (Electronic Communications) Order 2016, which added sections 15(1A)-(1C) to the PWA 1996 and confirmed that email could be used if the recipient agreed. 

However, the Court of Appeal rejected that view and overturned the decision of HHJ Bailey, deciding that section 15(1)'s use of the word "may" is permissive rather than exhaustive, so that a notice was validly served by email under section 15(1), despite the recipient not having agreed to that method of service in advance (as would be required in sections 15(1A)-(1C)). In this case that meant the Award had been validly served by email, and the recipient's appeal against the third surveyor's decision had been issued outside the 14-day time limit permitted by PWA 1996 and could not proceed. The Court of Appeal refused our opponent permission to appeal to the Supreme Court and awarded our client’s costs of the appeal in full.

Tom Morton from Fox Williams advised in the case, with counsel from Hardwicke Chambers.


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Tom Morton
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Direct dial: +44 (0) 20 7614 2667
tmorton@foxwilliams.com

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