Construction Law: Nelson’s Yard Management Co v Ezfiefula [2013] EWCA Civ 235

This Party Wall etc Act 1996 case concerned which party was responsible for costs of an action that the Claimant discontinued. The Defendant had commenced excavations near to the rear wall of the Claimant’s property without serving a Party Wall Act notice. The Claimant sent 4 letters setting out the failure to serve a notice and asking that its surveyor have access to inspect the foundations. The Defendant did not respond. The Claimant then issued proceedings seeking injunctive relief. The Defendant served a Defence arguing the Act did not apply. Arrangements were made for the Claimant’s surveyor to inspect, and the Defendant served a notice and paid an award under the Act. The Claimant discontinued the proceedings but applied for its costs on the basis of the Defendant’s obstructive behaviour. The Judge held that the normal CPR rule 38.6(1) applied and the Claimant was liable for the Defendant’s costs incurred before the date of the notice of discontinuance. The Court of Appeal allowed the Claimant’s appeal. It was held in this case the Defendant’s conduct prior to the commencement of the action was unreasonable, as he did not respond to conduct, set out his position or seek to narrow the issues or engage with the Claimant so as to resolve them.