Streather & Anor v Bodker

This is my judgment on an application by the defendant by notice dated 6 May 2016 for an order striking out the claimants’ claim under CPR rule 3.4 and/or under the Court’s inherent jurisdiction on the grounds that it is an abuse of the process and would result in a multiplicity of actions, and for costs on the indemnity basis. It is supported by a witness statement dated 6 May 2016 of Neil Ian Long, who is the defendant’s solicitor, together with one exhibit. No evidence has been filed in reply to that witness statement, though there is other evidence filed on behalf of the claimants to which I will refer in due course. The hearing took place on 12 May 2016, when Ms Marilyn Kennedy-McGregor appeared for the defendant/applicant, and Mr Mark Wonnacott QC for the claimant/respondent.

The application arises in the context of a claim begun by claim form under CPR Part 8, dated 2 February 2016, whereby the claimants acting as administrators of the estate of Jean Jessie Begley deceased (“the Deceased”) seek declarations against the defendant in relation to the meaning of the phrase “market value” in a pre-emption agreement dated 20 March 2008 between the Deceased and the defendant relating to the ground and lower floors of the dwelling-house at 43 Lansdowne Road, London W11 2LQ (“the Property”). The claim form was supported by a witness statement dated 22 January 2016 of Catherine Shirley Rolfe, the claimants’ solicitor, with one exhibit.

The defendant acknowledged service, through his solicitors, intimating an intention to defend the proceedings, on 19 February 2016. In a short witness statement dated the same day, the defendant’s solicitor Mr Long stated that the defendant intended to apply for an order striking out the claim. That application is the one that I am now considering. In the meantime, however, by notice dated 4 March 2016, the claimants issued an application for summary judgment, supported by a witness statement of Emma Mary McIntyre, with one exhibit. That application has been listed for hearing before me on 24 June 2016.

The underlying facts in the case are as follows. The Deceased died on 11 May 2011, at the age of 95 years. She left a will leaving most of her estate, including her interest in the Property, to a friend (one Peter Peterson), which was disputed by relatives, Mr and Mrs Wilkinson. Mr Peterson eventually agreed to share his entitlement under the will with Mr and Mrs Wilkinson. Subsequently, however, one Nicholas Hill bought the interests of both Mr Peterson and Mr and Mrs Wilkinson. I will come back to Mr Hill. An interim administrator was appointed of her estate, one Richard Roberts. He was later replaced by the claimants, who have now brought this action. It concerns a particular aspect of transactions that took place in relation to the Property in March 2008.

Prior to 8 February 2008, the registered freehold proprietor of the first, second and third floors of the Property was a Mrs Rendel. The Deceased was the registered proprietor of the freehold estate in the remainder of the Property, ie the ground and lower floors, and the roof and airspace above. Thus each of Mrs Rendel and the Deceased owned what is usually termed a “flying freehold”. The Deceased’s part of the property was known as 43A, and Mrs Rendel’s as 43B. In addition the deceased was the registered freehold proprietor of three garages (“the Garages”) which served the Property.

The defendant is a businessman. He negotiated to buy 43B from Mrs Rendel. But he recognised that the title to the Property was awkward, largely because of the rules about the (non-) running of freehold covenants. It created problems in relation to repairs of the roof, for example, because the Deceased would have to pay for them while Mrs Rendel had no obligation to contribute to the cost. On the other hand, if the roof leaked, it was Mrs Rendel who would notice the problem first, but she could not require the Deceased to do anything about it.

So the defendant proposed a scheme to the Deceased whereby the freehold of the whole property would be transferred to a company, and long leases would be granted of Nos 43A and 43B to their formerly freehold owners. Because leasehold covenants are enforceable more easily, this was expected to cure the problem about the running of covenants. But he also sought the grant from the Deceased of a right of pre-emption to purchase 43A, and also the Garages, from the Deceased. The Deceased was apparently prepared to agree.

The defendant having acquired the interest of Mrs Rendel in 43B, in March 2008 the whole freehold of the property was transferred to 43 Lansdowne Road Ltd (“the Company”), and long leases were granted of 43A and 43B to the Deceased and the defendant respectively. On 20 March 2008, the Deceased executed two pre-emption agreements, one relating to the Garages, and one relating to 43A, for a period of 21 years. These are the focus of the present claim.

The terms of the two agreements are identical, mutatis mutandis. The purchase price to be paid in case the pre-emption right is triggered is defined as

“the amount that is agreed or determined in accordance with clause 6 to be the market value of the [relevant property] at the date the Offer Notice is served (exclusive of VAT)”.

Clause 6 provides a mechanism for agreeing or determining the market value, ultimately involving a reference to an independent surveyor who is a fellow or associate of the Royal Institute of Chartered Surveyors with at least 10 years’ relevant experience. The term “market value”, however, is not defined.

The dispute between the parties in this claim relates to the meaning of the term “market value”, and in particular whether it includes the value to a special purchaser. Catherine Rolfe in her witness statement puts the matter in this way (para 2):

“The claimants say that it does; the defendant says that it does not”.

It looks like a straightforward matter of construction. No doubt the claimants will say that the defendant is a special purchaser and would pay more for 43A than anyone else. In fact, it is not quite so simple, because the defendant says there is an issue about estoppel by convention, and another about resort to a private dictionary, that must also be decided. I mention these further below.

However, if matters stopped there, the present application might not have been made. Unfortunately, this is not the only claim extant between the parties concerning the Property. On 5 February 2014, some two years prior to the claim form in the present case, the original administrator of the estate of the Deceased, Mr Roberts, issued a Part 7 claim form against the defendant and the Company, alleging that the Deceased’s sale of the freehold of 43A and her grant of the pre-emption rights were procured by misrepresentation and/or actual and/or presumed undue influence by the defendant, and/or were unconscionable transactions. Mr Roberts sought the rescission of the various transactions, including the grant of the leases of 43A and 43B.

That claim does not appear to have progressed very fast, or very far. Service on both defendants was effected on 29 May 2014, and was acknowledged in June 2014. An application for a stay to facilitate settlement discussions was made and granted in July 2014. It expired in October. The Chief Master (to whom the management of that claim is allocated) asked whether the parties were seeking a further stay. There is no response to this on the file. Defences were eventually served on 9 January 2015, and then a Reply, on behalf of the estate administrator, on 9 February 2015. And that is all.

Catherine Rolfe in her witness statement says that the present Part 8 claim has been brought “in an attempt to cut the Gordian knot” of the earlier Part 7 claim, seeking to unravel the transactions of March 2008. As she puts it (para 3), “The simple point is that, if the price which the defendant has to pay includes the value to him as a special purchaser, then it may not be worth unwinding the scheme at all”.

In his witness statement dated 6 May 2016, in support of the present application to strike out the claim, Mr Long claims that there is another dimension to this litigation. This is that the Defendant is involved in yet further (existing) litigation, though this time about a property joint venture with Nicholas Hill, who (as stated above) is the person who bought out the interests of both Mr Peterson and Mr and Mrs Wilkinson in the Deceased’s estate. Mr Hill is apparently therefore the person for whose benefit both the Part 7 and the Part 8 claims are now being prosecuted. Mr Long asserts that both claims now are simply for the purpose of harassing the defendant in relation to the entirely separate property joint venture litigation.

In the skeleton argument for the defendant, counsel argues that, whatever the meaning of ‘market value’ might otherwise be, in the present case the deceased and the defendant in entering the agreements between them proceeded on a particular basis (ie that it did not include any uplift for a special purchaser) which therefore acquired the force of an estoppel by convention. Alternatively, she says, the parties created a ‘private dictionary’, by resorting to the language of surveyors. I will return to these arguments in due course.

As to the facts which I am able to find on the written evidence, I must bear in mind that, when the Court is considering such evidence, it is not entitled to reject it as being untrue, without the benefit of cross examination of the maker of the statement (which in this case was not applied for), unless on the basis of all the evidence before the Court the Court considers that that written evidence is simply incredible: see eg Long v Farrer & Co [2004] EWHC 1774 (Ch). This is a high threshold to reach. If it is not reached then I cannot reject the written evidence placed before me. I add that, at the hearing, no-one invited me to reject any written evidence on this basis.

The application is made under CPR rule 3.4 and also the inherent jurisdiction of the court. So far as material, rule 3.4 provides as follows:

“(1)

In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.

(2)

The court may strike out a statement of case if it appears to the court –

(a)

that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b)

that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or

(c)

that there has been a failure to comply with a rule, practice direction or court order.”

The court also has power to strike out a claim or a statement of case under its inherent jurisdiction as an abuse of its process. This is discussed in the notes to Civil Procedure, vol 1, at paragraph 3.4.5.

In this application the burden is on the defendant to establish that the Part 8 claim is an abuse: Johnson v Gore-Wood [2002] 2 AC 1, 59H-60A, per Lord Millett. Counsel for the defendant, Ms Marilyn Kennedy-McGregor, argues that it is an abuse, on two different bases. First, there is the ongoing Part 7 claim. It is, she says, an abuse to bring a second claim when there is a first in which the question the subject of the second could and should be determined. Second, because the question could easily be determined in the Part 7 claim, the reason for bringing the Part 8 claim must simply be to harass the defendant, and it is therefore in itself abusive.

Ms Kennedy-McGregor referred me to the Senior Courts Act 1981, s 49(2). This, so far as material, provides:

“Every court … shall so exercise its jurisdiction … as to secure that, as far as possible, all matters in dispute between the parties are completely and finally determined, and all multiplicity of legal proceedings with respect to any of those matters is avoided.”

She submitted that this meant that the claimants, instead of bringing this claim, should apply to amend the Part 7 claim and raise the question there.

In this context she referred to De Crittenden v Bayliss [2005] EWCA Civ 1425. In that case the claimant had originally sued the defendant in 1997 in respect of the defendant’s failure to fulfil an agreement to pay the claimant half of what he received in certain third party litigation, in which the claimant had assisted the defendant. The claimant succeeded at trial in 2001. The defendant did not satisfy the judgment, and the claimant obtained charging orders over assets of the defendant, and also orally examined the defendant as to means. The examination disclosed that part of the funds recovered from the third party litigation had been used to buy a house, contrary to what the defendant had earlier claimed.

In 2002 the claimant began a second claim, this time for a share in the house (which had appreciated in value). The defence in part was that this second claim could and should have been made in the first, and was therefore an abuse. By the time of the trial the defendant had died, and the defence was carried on by his daughter on behalf of his estate. At the trial the judge held that the defendant (and indeed the daughter) had tried to conceal his assets from the claimant, but nevertheless the claimant’s state of knowledge was such that by May 2000 he had enough so that he could and should have applied for permission to amend his claim in the first action to include breach of fiduciary duty and tracing claims, neither of which had featured in the first claim. She therefore struck out the second claim as an abuse.

The Court of Appeal affirmed the decision of the judge. Jonathan Parker LJ, giving the lead judgment, said:

“There are two general rules of public policy in play in relation to the issues of election and abuse of process. First, there is the so-called rule in Henderson v Henderson 3 Hare 100 that in the ordinary way a claimant must bring forward his entire case in a single action. That is a rule based on the need for finality in litigation. … Second there is what I may call the rule in Tang Man Sit, that in the ordinary way a claimant who claims inconsistent remedies must elect before judgment is entered as to which remedy he wishes to pursue. That rule is based upon the need for fairness in the conduct of litigation. Once again it is not an absolute rule. …

In the instant case Mr De Crittenden failed to bring forward his entire case in the first action, since in the present action he seeks to allege that his business relationship with Mr Bayliss, which was directly in issue in the first action, was in the nature of a partnership involving mutual fiduciary duties, and that Mr Bayliss’s breach of his fiduciary duty entitles Mr De Crittenden to a proprietary remedy in relation to [the house]. That case was not raised in the first action. Equally, the proprietary remedy which he is claiming in the present action is patently inconsistent with the remedies which he sought and the judgment which he obtained in the first action… Thus both the general rules to which I have referred are in play in the instant case.”

Sir Christopher Staughton agreed, but on the basis that a litigant is obliged to bring forward the whole of his claim at one time, and in this case it would now be impossible to conduct the inquiry which was necessary to adjudicate on the second claim (the defendant now being dead). Moses LJ also agreed, again on the basis that the claimant had prevented the court fairly trying the issues raised in the second claim. It is thus clear that two of the three judges rested their decision on the fact that, as they saw it, the second claim could not now fairly decide the questions raised, whereas the first would have been able to. But the general principles stated by Jonathan Parker LJ were not dissented from.

Ms Kennedy-McGregor mainly relied on the requirement that the claimants should bring forward their whole claim in one action, but she also suggested that the remedies sought in the two claims were inconsistent, and the claimants should elect between them. Certainly it appears to me that, to the extent that it is an abuse to bring a second claim for relief you could have sought in the first claim, even if only by amending your case, it must be even more so where the first claim is actually continuing, and the point which you seek to raise in the second action is at least implied in the first.

Ms Kennedy-McGregor took me to the letter from the defendant’s solicitors to the claimants’ solicitors dated 29 January 2016. This said that the defendant would be prepared to consider not making an application to strike out the claim if the claimants would undertake to sell the Property to the defendant in accordance with the pre-emption Agreement, “where the meaning of ‘market value’ is whatever the Judge says it is.” She also showed me the defendant’s solicitors’ chasing letter dated 24 February 2016. To neither of these letters was any reply received. She also took me to the witness statement of Catherine Rolfe at para 3, to which I have already referred.

Counsel submitted that the claimants were trying to have two (inconsistent) bites at the cherry. They were attempting in the present claim to obtain a ruling that market value includes the value that a special purchaser would pay, while in the Part 7 claim it suits them if it does not. As I understood the matter, this was because, if the claimants can require the defendant to pay the special purchaser price, there is less chance of upsetting the March 2008 transactions. On the other hand, if the defendant is entitled to pay only a price that does not reflect a special purchaser’s willingness to pay more (ie arguably therefore at an undervalue), that may strengthen the claim by the claimants that the March 2008 transactions were tainted by misrepresentation, undue influence or unconscionability.

On the face of it, however, it would seem that, if the meaning of “market value” were determined in the Part 8 claim, then there would be an issue estoppel for the purposes of the Part 7 claim. So it was not obvious where was the advantage for the claimants in proceeding in this way. But counsel for the defendant submitted that the difference was this. In the Part 7 claim the claimants seek to rely on the correspondence between the parties which (it is said) establishes that the parties entered into the pre-emption agreements on the basis that “market value” excluded any uplift for a special purchaser. But in the present Part 8 claim, according to the defendant, the claimants submit that it is a pure point of construction, to which the very same correspondence is irrelevant.

There is a small point to notice in relation to the Garages. As has been noted (para 9 above), the pre-emption agreements for 43A and the Garages are in practice identical, and the term ‘market value’ figures in both. But whereas the Part 7 Claim concerns both agreements, the Part 8 Claim concerns only the agreement for 43A. One might have thought that the meaning of the term was the same for both. Yet this difference of treatment suggests that the claimants may consider that there is some difference in meaning. Or it may simply reflect a view by the claimants that there is no possible special purchaser in relation to the Garages, in which case that aspect of the meaning of ‘market value’ does not matter.

Ms Kennedy-McGregor for the defendant submitted that the issue raised in this claim could not determine the Part 7 claim, because, whatever the answer here, there would still be the questions of undue influence, misrepresentation and unconscionability to deal with. The agreement in relation to the garages is not affected at all by the Part 8 claim. In addition, the Part 7 claim is also against the Company (which granted the leases), whereas the Part 8 claim is only against the defendant. Therefore it was not a preliminary issue of the traditional kind. She submitted that the claimants should accordingly be put to their election. I am not sure what that last point means in this context. The defendant is applying for an order that the Part 8 Claim be struck out, not that the claimants choose between the two actions. Nevertheless, there is force in the underlying point she makes. This Part 8 claim will not determine the existing Part 7 claim.

Mr Wonnacott QC, for the claimants, responds by saying that it would be a good idea to know the meaning of “market value” at this stage, as this may facilitate settlement. The parties will be able to see if the game is worth the candle. So far as it goes, of course, I see that. But I do not see why it is necessary to institute fresh proceedings in order to achieve it. It could perfectly well be done in the Part 7 proceedings. The estate of Mrs Begley brought that claim to raise a number of questions about the transactions between the defendant and the deceased. Impliedly if not expressly they include the question, at least contingently, of what ‘market value’ means. Indeed, the advantage of pressing on with the Part 7 claim would be that the context and exact effect of the definition of ‘market value’ can be more easily seen. In the Part 8 proceedings, by contrast, it is harder to see both context and effect. And it makes no difference to the Garages.

The claimants’ response is that the defendant cannot rely on pre-contractual negotiations to construe the term in question: see eg Prenn v Simmonds [1971] 1 WLR 1381, HL. Hence, they say, the desirability of construing the words in isolation in a Part 8 claim. But the defendant says that, whether or not the pre-contractual negotiations can be relied on in this case (and that is one argument still to be had), there is also the argument based on estoppel by convention, and the private dictionary point. So, the defendant says, the Part 8 “pure construction” argument by itself cannot decide the litigation.

Mr Wonnacott QC for the claimants argues that the meaning of the term ‘market value’ is a question of law, and no amount of agreement between the parties can change that. He referred me to the decision of the House of Lords in Bahamas International Trust Co Ltd v Threadgold [1974] 1 WLR 1514. That case concerned an agreement to occupy an agricultural holding. Under the relevant legislation, an exclusive licence to occupy such land was treated as a tenancy and given certain protection. The judge at first instance held that the occupier had such a licence and was entitled to protection. Before the Court of Appeal the landowner accepted that the occupier had an exclusive licence, but argued that the legislation did not on the facts of the case protect this occupier. The Court of Appeal proceeded on the same basis, and accepted the landowner’s argument, allowing the appeal. On a further appeal by the occupier, the House of Lords, however, declined to accept the concession that the agreement conferred an exclusive licence to occupy.

Lord Diplock gave the only reasoned speech (with which the other two members of the House, Viscount Dilhorne and Lord Simon of Glaisdale, agreed). He said this (at page 1525 G-H):

“In a case which turns … upon the construction to be given to a written document, a court called upon to construe the document in the absence of any claim for rectification cannot be bound by any concession made by any of the parties as to what its language means. … The reason is that the construction of a written document is a question of law. It is for the judge to decide for himself what the law is, not to accept it from any or even all of the parties to the suit; having so decided it is his duty to apply it to the facts of the cases [sic]. He would be acting contrary to his judicial oath if he were to determine the case by applying what the parties conceived to be the law, if in his own opinion it was erroneous.”

Mr Wonnacott QC seeks to apply that to the present case. He says the Part 8 claim is one for construction alone, which is a matter of law. The court is not bound by the pleadings or what the parties agree, so therefore everything else is irrelevant.

I do not accept this submission. Threadgold was a case where the parties had apparently agreed on – at any rate there was a concession as to – the legal effect of the parties’ original agreement. All that Lord Diplock was saying was that it was a matter for the court – and not the parties – to say what was the legal effect (ie, did it confer exclusive possession or not?) of what the parties had actually agreed. But what the parties had actually agreed was not in dispute in that case (and in any event the agreement/concession was not as to that). What mattered however was its legal effect.

In my judgment it is open to the parties, if they wish, to enter into a contract on an agreed basis, giving rise to an estoppel by convention. Or they might agree to use a ‘private dictionary’ meaning of a particular term. Lord Hoffmann in Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1101, [45], [47], discusses both of these. Nothing in Threadgold touches either of those possibilities. Each would require evidence in order to found the argument. Moreover, in each case the parties may accept that, as a matter of law, the term in question has a particular meaning, different from that which they seek to ascribe to it. But they may also seek to show that they were not using the term in that sense, but in some other.

The claimants can fairly say that the Part 7 claim, involving as it will disclosure, witness statements and trial with cross-examination of witnesses will be much more expensive than the Part 8 claim, which may perhaps lead to settlement. All that is obvious. But, in my judgment, the problem is that the defendant is right to say that pure construction, even if possible, will not be determinative. The private dictionary and estoppel by convention points remain open. The undue influence, misrepresentation and unconscionability issues remain unresolved. The Company and the Garages are only involved in the Part 7 claim. The Part 8 claim can at best be only a staging post on the way to resolving the litigation. If the parties do not settle, the issue between them will only be capable of resolution after a full trial. Sometimes, that is the price of justice. And I do not forget that it was the deceased’s estate which chose to bring the Part 7 claim. It was not the defendant who did so.

Ms Rolfe says that the Part 8 claim will sever the Gordian knot. I doubt that there really is such a knot here. The Gordian knot in legend was impossible to untie, which was why Alexandra the Great cut it with his sword. By contrast, the problem in the present case is raised by the Part 7 claim, and can ultimately be resolved by it. But, even if there were a Gordian knot here, and if the Part 8 proceedings were the way out, the claimants could sever the knot in a moment, by serving notice of discontinuance of the Part 7 claim. In that way the claimants could demonstrate that they really believed that the Part 8 claim solved everything, and they would leave it as the sole means of doing so. But they have not done so.

As to the defendant’s argument, the claimants say that the Senior Courts Act 1981, s 49(2) does not assist him. Mr Wonnacott QC argues that that provision was derived from the Judicature Act 1873, and was intended to facilitate the administration of both law and equity in a single court after the fusion of the courts of law and of equity. Historically I consider that there is much to be said for this view. But the plain words of the statute extend more widely than that narrow objective.

Thus, the notes in the current edition of Civil Procedure, vol 2, at 9A-175 say

“The application of the principles, stated in section 49(2), (1) that all matters in dispute should be completely and finally determined, and (2) that multiplicity of legal proceedings should be avoided, may be seen at work in various parts of the law of procedure. A good example is provided by the rules relating to the amendment of statements of case… Other aspects of practice and procedure in which the principles … may be seen at work include: the transfer of proceedings from one court to another, the consolidation of proceedings, the trial of two or more claims on the same occasion, the addition and substitution of parties, the joinder of claims, and counterclaims and other additional claims.”

So whether or not section 49(2) is authority for the principle that a multiplicity of suits should be avoided, or merely an example of it, there can be no doubt that there is such a principle in our procedural law. Here I consider that, in the light of the existing Part 7 claim, there is no sufficient reason for the Part 8 claim to have been brought. In my judgment, the better course is for ‘market value’ to be dealt with – so far as it needs to be – as part of the Part 7 claim. It is an abuse for the claimant to seek to run a fresh claim simply to determine the legal meaning of the term ‘market value’ when it arises and could be dealt with in the Part 7 claim, especially when the fresh Part 8 claim cannot determine the existing Part 7 claim on its own.

On this basis alone I would accede to the application to strike out the claim as an abuse, under CPR rule 3.4(2)(b). It is not necessary for me to consider what my decision would have been if the claimants had discontinued the Part 7 claim before launching the Part 8 claim.

Nor is it necessary for me to express a concluded view on the other aspect of the defendant’s application. This is based on the argument that the claimants are harassing the defendant by bringing a fresh claim, in order to put pressure on him in relation to other litigation between Mr Hill (for whose benefit the estate now is being administered) and the defendant.

In support of this view, the defendant relies on the facts that (i) Mr Hill bought up the interests in the deceased’s estate, (ii) starting a fresh claim puts the parties to extra costs, but the claimant is said to be rich and the defendant of more modest means, (iii) it is said to be easy to determine the question of ‘market value’ in the Part 7 claim, (iv) the claimants have not confirmed whether they would offer 43A to the defendant in accordance with the pre-emption agreement on the basis that market value means whatever the court says it does.

As to this argument, I will only say that this is a limited basis for inferring an improper motive for bringing litigation. In the circumstances, I have not fully considered the point, but I will say that, if it had mattered, then I doubt as at present advised that I would have been satisfied.