Background
Building Owners Amit and Sonal Patel proposed works subject to the Party Wall etc. Act 1996. They appointed Justin Burns as their surveyor. The Adjoining Owners appointed Grant Wright.
Principal Awards were made (two by Mr Burns and a Third Surveyor; one ex parte by Mr Burns). A dispute then arose over Mr Wright’s fees, submitted at ~£20,000—far above the norm.
Mr Burns declined to “pick through” the time sheets, instead assessing a reasonable fee of £2,925 (net of the Third Surveyor’s fees) based on what a competent surveyor would spend given the scope/complexity.
Mr Wright responded by making three ex parte costs awards (purporting to act as an agreed surveyor) on the basis that Mr Burns had failed to act effectively within ten days of a Section 10(7) request. He awarded himself £20,412. The Patels appealed.
Issues on Appeal
Heard before HHJ Hand QC, the Court considered:
- Section 10(7) default: If a surveyor fails to act effectively within 10 days of a request, can later compliance cure the default so that ex parte powers fall away?
- Effectiveness of Mr Burns’ response: Did Mr Burns’ email (declining to forensically review the time sheets but substituting a reasoned fee assessment) amount to acting effectively?
Decision
- Continuing default, curable by later action: The Court held that failing to respond within 10 days creates a continuing state of default. Once the “defaulting” surveyor acts effectively—even after the ten-day period—the right to proceed ex parte ends.
- Mr Burns acted effectively: Although he refused to trawl through illegible notes, he engaged with the substance of the request, gave reasoned justification, and offered an alternative fee determination. That was effective action.
- Ex parte costs awards quashed: Mr Wright lacked power under s.10(6)/(7) to make those ex parte costs awards; they were set aside.
What This Means (Practical Guidance)
1) Ex parte powers are narrow and can evaporate
- A s.10(7) ten-day request is not a cliff-edge. If the other surveyor later engages effectively, you cannot continue ex parte.
- Before acting alone, confirm the other surveyor has not since taken effective steps.
2) “Acting effectively” = reasoned engagement
- To answer a s.10(7) request, a surveyor need not comply exactly as asked; they must address the substance with reasons.
- A refusal to adopt the other surveyor’s method can still be effective if a justified alternative is provided.
3) Fees must be reasonable and evidenced
- Courts will support a reasoned, proportionate fee assessment aligned to scope/complexity, rather than rubber-stamping inflated time sheets.
Tips for Surveyors
- Record your engagement: Reply within 10 days where possible, but if late, act effectively now—and say so in writing.
- Be specific: If rejecting a method (e.g., line-by-line time-sheet audit), set out why and provide a coherent alternative (benchmark time, task breakdown, appropriate hourly rates).
- Check your footing before ex parte action: Confirm no subsequent effective action has been taken by the other surveyor that would remove ex parte powers.
Tips for Owners
- Expect scrutiny of fees: Reasonable costs tied to complexity are more defensible than large, unparticularised time claims.
- Choose experienced surveyors: Those who engage promptly and justify decisions reduce the risk of procedural missteps and appeals.
Need a second opinion on s.10(7) letters, fee reasonableness, or ex parte risk?
Email team@simplesurvey.co.uk—the lowest-cost party wall surveyors across England & Wales—for practical advice, robust Award wording, and proportionate fee reviews that stand up to scrutiny.