The Blake case clarified why party wall surveyors cannot normally award legal fees under the Party Wall etc. Act 1996. Learn what this means for building owners and adjoining owners.

The Blake Case  Why Party Wall Surveyors Cannot Normally Award Legal Fees

The question of whether party wall surveyors can include legal fees within a Party Wall Award has been the subject of important case law. The leading authority on this issue is commonly referred to as the Blake case.

For building owners and adjoining owners involved in a dispute under the Party Wall etc. Act 1996, understanding this decision is critical.

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The Starting Point – What Costs Can Surveyors Award?

Under section 10 of the Party Wall etc. Act 1996, surveyors have the power to determine disputes and to allocate “costs of making the award”.

Traditionally, this has been understood to include:

  1. Surveyors’ fees
  2. Reasonable inspection costs
  3. Administrative expenses connected with producing the award

However, the Act does not expressly state that legal fees are recoverable.

The Blake Decision  Clarifying the Limits

In Reeves v Blake [2009] EWCA Civ 611, the Court of Appeal considered the scope of section 10(13) of the Party Wall etc. Act 1996, which allows surveyors to determine “the reasonable costs incurred in making or obtaining the award”.

The key issue was whether those words were wide enough to include solicitors’ fees and other legal expenses incurred by one of the parties during the dispute.

The Court of Appeal held that:

  1. The statutory wording relates to the costs of the surveyors’ award process itself.
  2. It does not extend to general legal costs incurred by the parties.
  3. Surveyors do not have the same powers as a court to award litigation costs.

The court made clear that the Act creates a specialist and limited jurisdiction. Surveyors are appointed to resolve technical disputes concerning building works, not to exercise the broader costs discretion available to judges.

As a result, legal fees are not normally recoverable as part of a Party Wall Award.

Why Legal Fees Are Treated Differently

There are several reasons for this restriction:

  1. The Act Is a Specialist Dispute Mechanism

The Party Wall etc. Act 1996 creates a self-contained code intended to avoid litigation. Surveyors are appointed as independent quasi-arbitrators to resolve specific technical matters.

They are not judges and do not exercise the broad cost powers available to courts.

  1. Costs Must Be Linked to the Award Process

Only costs directly related to the surveyors’ statutory function are generally recoverable. Legal advice obtained separately by a party is usually considered outside that statutory function.

  1. Proportionality and Access to Justice

Allowing unrestricted recovery of legal costs could undermine the cost-effective nature of the Act and discourage parties from using the statutory framework.

Practical Consequences for Building Owners and Adjoining Owners

Following Blake, the practical position is:

  1. Each party normally bears their own legal fees.
  2. Surveyors cannot simply insert legal costs into an award because one party has engaged solicitors.
  3. Attempts to recover legal fees via the award may be successfully challenged in court.

This can come as a surprise, particularly where one party believes the other has acted unreasonably.

Are There Any Exceptions?

While the general rule is clear, there are limited circumstances where legal costs may become recoverable:

  1. If a matter proceeds to court and the court exercises its own cost powers.
  2. If the parties enter into a separate contractual agreement expanding the surveyors’ jurisdiction.

This is where extended jurisdiction agreements can become relevant. By agreement, parties may allow surveyors to consider legal costs as part of a broader contractual framework. Without such agreement, the Blake principle will usually prevent recovery.

Why This Matters in Practice

Understanding the Blake decision is essential when:

  1. Legal representatives become involved early in a dispute.
  2. Costs begin to escalate.
  3. Parties assume that “the other side will have to pay”.

Clear advice at an early stage can prevent unrealistic expectations and reduce the risk of further dispute.

How Adkins Consultants Advise Clients

At Adkins Consultants, we advise both building owners and adjoining owners on:

  1. The limits of cost recovery under the Party Wall etc. Act 1996
  2. Whether legal involvement is proportionate
  3. When an extended jurisdiction agreement may be appropriate
  4. Risk management strategies to avoid unnecessary escalation

If you are involved in a party wall dispute and are concerned about legal costs, early professional advice can make a significant difference.