Valid methods for serving documents in party wall dispute
Court of Appeal
Published April 9, 2018
Knight v Goulandris
Before Lord Justice Patten, Lord Justice Hamblen, Lord Justice Henderson
 EWCA Civ 237
Judgment February 20, 2018
Section 15 of the Party Wall etc Act 1996 was not an exhaustive statement of the means by which a notice or other document could be validly served under that act.
The Court of Appeal so held when allowing an appeal by Nicholas John Knight against the determination of a preliminary issue by Judge Bailey in the County Court at Central London, arising in a party wall dispute between Mr Knight and his neighbour, Basil Constantine Goulandris.
Mr Michael Wheater and Ms Emily Betts for Mr Knight; Mr Tom Weekes, QC, for Mr Goulandris.
Lord Justice Patten said that Mr Knight began work on his property, which involved the extension of a party wall. It was common ground that the works had caused some damage to Mr Goulandris’s property but the extent and the cost of remedying the damage were very much in dispute.
In the absence of any agreement between the parties their surveyors took steps to resolve the matter by selecting a third surveyor under the provisions of section 10(1)(b) of the 1996 act.
Mr Goulandris appealed the award. The procedure for such an appeal was contained in subsections 10(14) to (17). His appeal was issued on September 17, 2015. Mr Knight contended that it was issued out of time because the 14 day period under section 10(17) had expired.
The preliminary issue was whether the receipt by Mr Goulandris of the third party surveyor’s award in electronic form constituted service of it on him for the purposes of section 10(17).
Service of documents was dealt with in section 15 of the 1996 act which provided: “(1) A notice or other document required or authorised to be served under this act may be served on a person — (a) by delivering it to him in person; (b) by sending it by post to him.”
With effect from April 6, 2016, the following amendment was introduced to section 15 by the Party Wall etc Act 1996 (Electronic Communications) Order 2016 (SI 2016 No 335):
“(1A) A notice or other document required or authorised to be served under this act may also be served on a person (the recipient) by means of an electronic communication.”
The 2016 order was made pursuant to the power contained in section 8 of the Electronic Communications Act 2000, which allowed the appropriate minister by order to modify the provisions of any legislation “for the purpose of authorising or facilitating the use of electronic communications”.
The judge concluded that the email sent to Mr Goulandris containing the award in pdf format did not amount to service under section 10(15)(b) so as to set time running for an appeal under section 10(17).
He reached that conclusion on the basis that section 15 had been amended by the 2016 Order on the assumption that the 1996 act did not recognise the service of documents by email or other electronic means as constituting service for the purposes of section 10(15). He concluded that the service of the surveyor’s award by email had not constituted good service for the purposes of section 15. With respect to the judge, for the purpose of construing section 15 little or no weight could be attached to the fact that most members of the profession together with the government 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 on which there was no direct authority and which turned on the wording of section 15 itself looked at in context having regard to the purpose of the provision. The position taken by the government provided no additional authority for treating section 15 as an exhaustive code and the judge had been wrong if he had treated it as persuasive let alone decisive in relation to the question of construction on the preliminary issue.
The use of the word “may” in section 15(1) indicated that the provisions that followed were intended to be permissive only. Subsection 15(1), like subsection 15(2), was on any view specifying the primary methods of service available under the 1996 act, which, if utilised, would constitute good service of the relevant document regardless of receipt. It was not concerned with other possible methods of service in respect of which the burden of proving receipt would lie on the serving party.
If the serving party chose to use a method of service outside section 15 then the burden was on them to establish receipt of the document in a legible form.
Lord Justice Hamblen and Lord Justice Henderson agreed.
Solicitors: Fox Williams LLP; Ward Hadaway.