Zissis v Lukomski & Anor

Zissis v Lukomski & Anor

An appeal under section 10(17) of the Party Wall etc Act 1996 is a statutory appeal and must be brought under CPR Part 52, not Part 8. The District Judge erred in dismissing the claim after finding the addendum award invalid; he should have allowed amendment for declaratory relief or permitted the proceedings to continue under Part 52. Indemnity costs were not justified as Mrs Zissis did not act unreasonably to a high degree.

Parties
Claimant/appellant: Mrs Marianne Zissis; First Defendant/respondent: Andrew Lukomski; Second Defendant/respondent: Richard Carter
Jurisdiction
England and Wales
Judgment Date
05 April 2006
Procedural Posture
Civil Appeal / Appeal From County Court to Court of Appeal
Outcome
Appeal allowed in part; costs order varied
Legal Topics
Party Wall Etc Act 1996, Statutory Appeals, Costs Orders, Enforcement of Awards
Civil Procedure Property Law Party Wall Etc Act 1996 Statutory Appeals Costs Orders Enforcement of Awards

Case Brief

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Parties

Mrs Marianne Zissis

Claimant/appellant

Andrew Lukomski

First Defendant/respondent

Richard Carter

Second Defendant/respondent

Procedural Posture

Civil Appeal / Appeal From County Court to Court of Appeal

Legal Issues

  1. 1 Whether an appeal under section 10(17) of the Party Wall etc Act 1996 should be brought under CPR Part 8 or Part 52
  2. 2 Whether the District Judge was correct to dismiss the claim after finding the addendum award invalid
  3. 3 Whether the District Judge should have exercised power under CPR 3.10 to remedy procedural error

Ratio Decidendi

An appeal under section 10(17) of the Party Wall etc Act 1996 is a statutory appeal and must be brought under CPR Part 52, not Part 8. The District Judge erred in dismissing the claim after finding the addendum award invalid; he should have allowed amendment for declaratory relief or permitted the proceedings to continue under Part 52. Indemnity costs were not justified as Mrs Zissis did not act unreasonably to a high degree.

Court Disposition

Appeal allowed in part; costs order varied

Orders

  • Costs order against Mrs Zissis varied from indemnity basis to standard basis for Mr Lukomski's costs
  • Mrs Zissis to pay half the costs of Mr Lukomski in the Court of Appeal