Cases - In re Metropolitan Building Act, ex parte McBryde

Record details

Name

In re Metropolitan Building Act, ex parte McBryde

Date

(1876)

Legislation

Metropolitan Building Act 1855

Keywords

Party walls - Metropolitan Building Act 1855 - Party Wall etc. Acr 1996, s. 10(8) - London Building Acts (Amendment) Act 1939

Summary

One of the surveyors appointed under the Metropolitan Building Act 1855 refused to appoint a third surveyor (on the instructions of his instructing owner). The court appointed a third surveyor under the provisions of a statute allowing the Court to appoint an arbitrator where one of the parties would not do so. (This would not be necessary under the Party Wall etc. Act 1996, as a result of section 10(8) of that Act.) The judge decided that the procedure under the Building Act was arbitration and therefore that this statute applied to allow the Court to appoint a third surveyor.

Arbitrations usually arise as a result of agreements between the parties within contracts. A procedure set out in a statute can also be what is known as a 'statutory arbitration'. The Building Acts, including the 1996 Act, do not state that the surveyors are to act as arbitrators or that the procedure is to be an arbitration. The Courts have not made any decision on this issue since 1876, although more recently a Technology and Construction Court (TCC) judge, considering the London Building Acts (Amendment) Act 1939, suggested that the process was not an arbitration, but closer to an expert determination. It is suggested that this approach is correct.