FPWS GUIDANCE NOTE Re: Civil Debts in the Magistrates Court: Section 17 of the Party Wall etc. Act 1996

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1 FPWS GUIDANCE NOTE Re: Civil Debts in the Magistrates Court: Section 17 of the Party Wall etc. Act 1996 This note should be read in conjunction with the legal Advice on the Faculty s website, entitled Clarification on Position and Forms for making claims via a magistrates court. The following is a step by step guide as to commencing a claim in the magistrates court, pursuant to section 17 of the Act. It should be noted that section 17 refers to Any sum payable in pursuance of this Act.... It is therefore open for other sums (i.e. compensation, expenses in lieu, etc) and not just surveyors fees to be pursued in this manner. To do so, the following steps should be taken: 1) Ensure that the sum that is to be pursued in the magistrates court first became due and payable within the last six months. This will often involve taking into account the dates of invoices that have previously been sent out, and not just the date of an award. There is a strict six-month time limit for proceedings to be issued in the magistrates court. If the matter is more than six months old, the county court system will need to be used. 2) Send a letter before action to the debtor. This letter should set out the circumstances in which the sum has become due. If the sum payable is set out in an unappealed award, then this too should also be stated, additionally setting out the wording of section 10(16) of the Act, in order to explain that the award cannot now be challenged in court. The letter should then state that legal proceedings will be issued in the magistrates court pursuant to section 17 of the Act and without further notice if the debt is not paid within a certain period of time. The letter should then further state that if such court action is necessary, then recovery of the costs of such proceedings, including the issue fee, legal costs and interest on

2 the debt, will be sought from the debtor. Such a letter may well become very important at a later stage when one seeks to recover any legal costs incurred. 3) If the debt then remains outstanding a complaint should be laid at one s local magistrates court. Use the pro-forma appended to this Guidance Note, inserting and deleting information as applicable. 4) Take 3 copies of the form to your local magistrates court, together with 3 copies of any relevant notice, written appointment (to prove jurisdiction), and award. Also take a copy of the from the Justices Clerks society, appended to this Guidance Note, and a copy of the case of Zissis v Lukomski [2006[ EWCA Civ 341. The case can be downloaded from the Faculty s website under Document Downloads. Once you have the case, highlight Lord Justice Brook s comments at paragraph 57 therein. 5) When at the court, ask to speak to the clerk to the justices, explaining that you wish to lay a complaint in order to instigate civil proceedings. It should be noted that at the present time the majority of magistrates courts in England & Wales will not have heard of the Party Wall etc. Act 1996, let alone the procedure pursuant to section 17 of the Act. Accordingly, a common problem that then arises is that the court will not be sure that it has jurisdiction to hear the matter, even advising that the matter should be pursued in the local county court. This is categorically not the case. If such a problem does arise, show the court staff the from Syd Brighton, and also the relevant extract from the Zissis v Lukomski case. These documents should then be sufficient to convince the court that they do have jurisdiction indeed to hear the matter. You will then be expected to sign the complaint form in the presence of the justices clerk and on oath, and then pay the court the 200 fee for issuing the complaint. 6) The court should then send a copy of the complaint, and any attached documents to the defendant, together with a summons ordering their attendance at a future date.

3 7) Once a hearing date has been fixed, it is advisable to again send another letter to the debtor, reiterating that if the matter does need to be determined at a final hearing, then recovery of any legal costs incurred will be sought against the defendant. 8) If the matter still looks like it will nevertheless be fought to the bitter end at a hearing before the court, then it is advisable to instruct a lawyer to represent you at such a hearing; their legal costs are highly likely to be recoverable upon a successful outcome. However, a legal advocate is not a necessity, and those more familiar with the procedure for hearings in the magistrates court may prefer to conduct the matter themselves. STUART J. FRAME 23 June 2010

4 COMPLAINT Civil Debt [insert name of court] Magistrates Court Date: Defendant: Address: Matter of Complaint: [insert date] [insert debtor s name] [insert debtor s address] Sum recoverable pursuant to section 17 Party Wall etc.act 1996 ( the Act ) Particulars The Complainant is the Building Owner s / Adjoining Owner s / Agreed / Third [delete as appropriate] Surveyor and was so appointed by virtue of s.10(1)(a / b[delete as appropriate]) of the Act. In pursuance of the said appointment, the Complainant has undertaken works as follows: [Insert brief details of work conducted] By Award dated [insert date] the Complainant s fees of [insert amount] were payable by the Defendant, in accordance with s.10(12)(c) of the Act. [delete this paragraph if payment of fees is not covered by an Award] The Complainant has served invoices upon the Defendant for his fees in the sum of [insert amount]. To date, the Defendant has not paid the Complainant s fees. The Complainant therefore seeks recovery of the said sum of [insert amount] as a civil debt, pursuant to section 17 of the Act, plus interest on the said sum at 8%, plus the costs of proceedings, currently [insert amount for costs of proceedings to date] The Complaint of: Address: Telephone: [insert your name] [insert your address] [insert your telephone number] Who (upon oath) states that the defendant was responsible for the matter of complaint of which particulars are given above. Taken (and sworn) before me,......(justices Clerk).(Signature of Complainant)

5 Dear Mr Frame I refer to your of the 4th June regarding Civil Proceedings in Magistrates' Courts under the Party Wall Act As a consequence of your concerns, I have issued the attached to all members of the Society and I trust that this will have the desired result. However, please do not hesitate to contact me further if you hear of any courts still refusing to accept jurisdiction. Regards Chief Executive Justices' Clerks' Society 2nd Floor, Port of Liverpool Building Pier Head Liverpool L3 1BY Tel: From: Justices' Clerks' Society Sent: 17 June :16 Subject: Civil Proceedings in Magistrates' Courts under the Party Wall Act 1996 Dear Colleague Civil Proceedings in Magistrates' Courts under the Party Wall Act 1996 The Society has been approached by a member of the Bar who represents the Faculty of Party Wall Surveyors. This organisation acts for parties involved in disputes over certain construction works. It has been pointed out that under section 17 of the Party Wall etc Act 1996 Any sum payable in pursuance of this Act (otherwise than by way of a fine) shall be recoverable summarily as a civil debt. It has been further pointed out that such civil debts are within the definition provided by s.150(1) of the Magistrates Courts Act 1980 and are recoverable via proceedings in magistrates courts. This fact is confirmed by the judgment of Lord Justice Brooke in the case of Zissis Lukomski [2006] EWCA Civ 341. It is reported that parties seeking to commence such proceedings in the Magistrates Court have occasionally been informed by court staff that the court has no jurisdiction and that proceedings should be commenced in the County Court. Accordingly, we alert members to this error. It is clearly open to a party seeking to recover a sum due under the Act to commence proceedings by way of complaint under section 58 of the 1980 Act. Regards Chief Executive Justices' Clerks' Society 2nd Floor, Port of Liverpool Building Pier Head Liverpool L3 1BY Tel: