Luckett & Luckett v Ashley King (Developments) Ltd

MR JUSTICE KITCHIN: I have before me applications by the appellants, Mr and Mrs Luckett, for permission to appeal against the order of Deputy Master Hoffman dated 9 May 2005 and for permission to appeal out of time.

By that order the Deputy Master granted the respondent, Ashley King (Developments) Limited, summary judgment for specific performance of a contract for the sale of a property called Wootton House, Priory Lane, South Wootton, King's Lynn in Norfolk ("the Property"), and ordered that the appellants pay the respondent’s costs down to and including the order and that they pay the sum of £5,000 on account. He also directed that completion take place on 1 August.

The grounds of the appeal set out in the appellants' skeleton argument are in essence, first, that the Deputy Master should have granted an adjournment of the hearing which took place on 9 May and, second, that the appellants were unable to prepare a defence - which they say is arguable - to the claim.

The background to this matter may be summarised as follows. On 20 December 2002 the appellants agreed to sell the Property. It was being run as a residential home for patients suffering from Alzheimer's disease. Mrs Luckett has evidently devoted her life to the care of these patients. The sale price was agreed at £700,000 and a completion date was set for 30 May 2003. The respondent paid a deposit of £70,000 to the appellants. In May 2003 the appellants discovered they could not complete by the due date and needed an extension of time. The reason they could not complete was that they were finding it difficult to find alternative accommodation for all their residents. The respondents granted an extension of time for completion until 30 June 2003.

It was explained to me by counsel on behalf of the appellants that at this time Mrs Luckett dealt with a Mr King. They apparently had a good relationship. Mr King was always extremely helpful. Mrs Luckett also apparently had meetings with a Mr Sanderson. It was submitted on behalf of the appellants that thereafter several more extensions of time were requested by the respondent and agreed by Mrs Luckett. It was said that the respondents seemed to be in no hurry to occupy the Property. As I shall elaborate later in this judgment, there is a body of correspondence which indicates that there is rather more to the story.

On 24 May 2004 the respondents sent the appellants a completion notice requiring completion in ten working days. It was submitted on behalf of Mrs Luckett that, despite this notice, no further action was taken but rather that the respondents again requested further extensions of time for completion. On 16 December 2004 a meeting took place, attended by Mrs Luckett and Mr Sanderson, among others, at which the completion date was set for 31 July 2005 with vacant possession to be provided at that time. Mrs Luckett agreed to serve notice on the council to have the residents of the home re-housed, and that she would serve such notice by 31 January 2005. In January 2005 Mrs Luckett's mother passed away. As a result she was obliged to attend her funeral in the Philippines, to sort out her estate and entered into a period of mourning. This, it was said, prevented her from serving the necessary notice on the council to have the residents of the property re-housed.

On 28 February 2005 the respondent issued this claim seeking specific performance of the contract and damages. The appellants lodged a defence to the claim but before the respondent saw that defence it applied for summary judgment on the specific performance part of the claim. That application was issued on 1 April 2005. On 9 May 2005 the matter came before Deputy Master Hoffman. Mrs Luckett appeared in person. She submitted a further defence to the application and requested an adjournment. I was told during the course of this hearing that Mrs Luckett told the Deputy Master that she needed three months to comply with her contractual obligations to the residents and to the council. The Deputy Master refused the adjournment and granted specific performance. On 11 July the appellants filed a notice of appeal against the order of the Deputy Master seeking permission to appeal and permission to appeal out of time. That notice should have been filed on 23 May.

Against that background I must consider three issues: first, the application for the extension of time for filing the notice of appeal and seeking leave; second, the application for leave to appeal against the refusal by the Deputy Master to grant the adjournment and, finally, the application for leave to appeal against the decision by the Deputy Master that the respondents were entitled to summary judgment on the specific performance aspect of the claim.

In relation to the application for the extension of time for appealing, it was submitted on behalf of the appellants that the proceedings and the circumstances to which I have referred left Mrs Luckett in an emotionally fraught state. It was submitted that she was somewhat overwhelmed by legal proceedings and until recently has acted on her own account. Solicitors were only instructed last week and went on the record on Monday to deal with this appeal. On behalf of the respondent it was pointed out that the notice was filed some 53 days after the hearing and that the application ought to have been supported by evidence in accordance with CPR 3.9(2) and that no substantive justification has been provided for the delay. Despite these points, I would be minded to give an extension of time for the application for leave to appeal if I considered that the appeal itself had any real prospect of success. However, for the reasons which I will come to, I have reached the conclusion that it does not.

I turn then to consider the application for leave to appeal against the refusal by the Deputy Master to grant an adjournment. It was submitted on behalf of the appellants that the Deputy Master failed properly to exercise his discretion and that he ought to have granted an adjournment for the following reasons: first, the appellants were unrepresented at the hearing; second, the appellants, due to the death of Mrs Luckett's mother and subsequent period of grieving, were unable properly to prepare for the hearing and, third, the summary judgment application was for a discretionary remedy which, in the circumstances, should have had the benefit of a full hearing with accompanying oral evidence.

The power to order an adjournment is of course a discretionary one and, as the respondent’s counsel submitted, it is one which an appellate court should not lightly interfere with. It is not sufficient merely that the appellate court might have come to a different conclusion. It is apparent that the Deputy Master took into consideration all of the points which are now advanced on behalf of the appellants. Moreover, it is also apparent that Mrs Luckett had instructed solicitors at some point before the issue of proceedings and, as I have indicated, the application for summary judgment was issued on 1 April, which gave Mrs Luckett well over a month in which to instruct solicitors, and, indeed, she apparently did so at least three days prior to the hearing. In addition, she filed a defence to the summary judgment application before the hearing itself.

The Deputy Master declined to grant the adjournment for essentially two reasons: first, he considered that the appellants had no real defence to the claim for specific performance. Second, and in the light of his first conclusion, he considered that the delay would not be in the best interests of the appellants. For the reasons which I will come to, I believe that the Deputy Master came to the right conclusion on these points. In my judgment there is no purpose in granting an adjournment if its effect will only be to postpone a hearing at which the party applying to adjourn will inevitably fail. In all the circumstances I see no reason for interfering with the discretion exercised by the Deputy Master and I see no prospect of an appeal against the exercise of that discretion succeeding.

Finally, I turn to consider the application for leave to appeal against the decision of the Deputy Master that the respondents were entitled to summary judgment on the specific performance aspect of the claim. It was submitted on behalf of the appellants that there is a real prospect of this appeal succeeding for essentially three reasons: first, the requests for extension of time for completion were put forward by the respondent. Second, during the period of the extensions the respondent was not ready, desirous, prompt or eager to perform. Third, as a result of the grant of the extensions, the appellants, and in particular Mrs Luckett, have acted to their detriment. I am unable to accept these submissions.

My attention has been drawn to the correspondence which passed between those representing the appellants and the respondent from May 2003. On 15 May 2003 the solicitors for the respondent wrote to the solicitors acting for the appellants, indicating that they understood that the appellants might have difficulties in meeting the completion date of 30 May. They stated that their clients were sympathetic to that situation and that, although they would be ready, willing and able to complete on the contractual date, they would be content not to take any action to enforce the contract or claim interest or compensation for late completion should completion take place on 30 June. On 30 May 2003 the solicitors for the appellants wrote a letter expressing thanks for the forbearance which the respondent had displayed.

On 4 June 2003 the solicitors for the respondent wrote to the solicitors for the appellants indicating that their client was becoming concerned as to whether completion by the end of June might cause unnecessary hardship to the residents and that, should this be the case, it would be quite happy for the date for completion to be extended to 18 July, or indeed 31 July. They requested an indication as to whether or not this would be of assistance. Evidently the suggestion was accepted because, on 1 August 2003, the solicitors for the appellants wrote to the solicitors for the respondent asking whether or not the respondent could be prevailed upon to allow the appellants a further extension of time to the end of August to enable them to find alternative accommodation. On 27 August 2003 the solicitors for the respondents indicated that they would be prepared to extend the date for completion to 30 September 2003.

On 23 September 2003 the solicitors for the respondent wrote again indicating their client’s understanding that there were still residents living at the Property who had not been re-housed. They pointed out that the delay in completion had necessitated a change in the development schedule which meant that the respondent would not be able to enjoy beneficial use of the land until the spring of 2004. In those circumstances, and if it would assist the appellants, they indicated that their client was prepared to extend the date for completion to 31 January 2004 but they made clear that this date must be met.

By a letter of the same date the solicitors for the appellants wrote confirming that they had explained to the appellants that they had to give vacant possession to the respondent and requesting that the respondent’s solicitors take instructions on when they expected vacant possession to be provided. There matters apparently stood until early 2004. On 16 March 2004 the solicitors for the respondent wrote to the solicitors for the appellants stating that their client did require completion of the matter without delay, that it wished to be as helpful as possible and would be willing to extend the date for completion to 30 April 2004, but that there would be no further extensions thereafter.

On 17 March 2004 Mrs Luckett wrote to Mr King explaining, as I am sure he was well aware, that she had given her life to the care of those suffering from Alzheimer's disease and that whether she would be able to continue to do so lay entirely in his hands. She invited him to make the generous gesture of cancelling the contract. That the respondent was not prepared to do and accordingly on 24 May 2004 the solicitors for the respondent wrote the letter, to which I have referred, requiring completion within ten working days.

It is not clear from the correspondence what happened over the immediately following months. However, the meeting to which I have also referred took place on 16 December 2004, attended by a representative of the solicitors acting for each party, and at that meeting the completion date was agreed and fixed for 31 July 2005. It was suggested, moreover, on behalf of the respondent that that date would fit in with their forward planning.

In my judgment, this correspondence indicates that over the period of time which has elapsed from the date of exchange the respondent has accommodated the desire of the appellants for extensions of time for completion so as to permit the appellants to ensure that the residents of the Property could be comfortably and safely housed elsewhere. Moreover, the submission made on behalf of the appellants that during the period of these extensions the respondent was not ready, desirous, prompt or eager to perform is without substance. It seems to me that the correspondence reveals that the respondent has indeed been ready, willing and able to complete but has generally been prepared to provide extensions for the convenience of the appellants, although it is fair to say that it has indicated on occasions that the extensions of time would also suit its commercial circumstances.

Finally, I am unable to detect in any of the materials before me anything which might provide any basis for a defence that the appellants have, as a result of any action taken by the respondent, taken a step to their detriment which might be said to provide a basis for defeating the claim to specific performance. It seems to me to be clear from the note of the hearing that took place before the Deputy Master that Mrs Luckett was well aware in December that she would have to vacate the Property during the course of the summer of 2005 and for that reason agreed that she would, during the course of January, take the necessary steps to give notice to the council so as to ensure that her residents would be re-housed. Moreover, at the hearing before the Deputy Master Mrs Luckett indicated that she was indeed happy to complete and that she had arranged a meeting on 13 May with the council to discuss re-housing the residents. She indicated that she still needed to look for a new house and would need to get her belongings moved.

In all these circumstances I have reached the conclusion that the appellants have no basis for resisting the claim for specific performance and that the respondent was entitled to bring the proceedings for summary judgment as it did and that the Deputy Master was entirely justified in reaching the conclusion that the appellants were entitled to completion on 1 August. That is, of course, one day after the date which Mrs Luckett herself accepts had been agreed as the final extended date for completion during the course of the meeting in December 2004. For all these reasons the applications before me must be dismissed.