Cases - Chartered Society of Physiotherapy v Simmonds Church Smiles

Record details

Name
Chartered Society of Physiotherapy v Simmonds Church Smiles
Date
[1995]
Citation
1 EGLR 155
Legislation
Keywords
Party walls
Summary

It was held by the Official Referee that, given the court's wide powers under the 1939 Act to rescind or modify an award, it must have the power to re-examine the evidence (factual and expert) and consider new evidence, if appropriate. The court could then substitute its own findings for the findings of the surveyors.

In addition, the TCC Judge considered whether under the 1939 Act (the relevant terms of which are very similar to the 1996 Act), the surveyors carried out a statutory arbitration. He considered that there were some indications in the Act that it was an arbitration. For example, he thought the use in the Act of the words 'difference', 'settle' and 'award' and the provisions for decisions to be made by the surveyors all suggested a judicial, or quasi-judicial, process. However, he thought that there were more indications to the contrary. For example, a party-appointed surveyor was obliged to retain his or her professional independence but not obliged to act without regard to the interests of the party who appointed him or her, there was no provision in the Act for a hearing or for the surveyors to proceed in a way expected of arbitrators, nor was there any obligation for the award to contain findings of fact or conclusions of law. The judge considered that an award under the Act was considered to be more in the nature of an expert determination than an arbitration award.