Walsh & Anor v Hall & Anor

In March 2014 the Claimants brought an action against the Defendants. In broad terms it sought a declaration that the beneficial interest in a valuable portfolio of shares held on trust by the stockbrokers Redmayne Bentley and/or Redmayne Nominees Ltd (who I shall refer to collectively as Redmayne Bentley) was held for the Claimants rather than the Defendants. The claim was strenuously resisted and indeed the Defendants counterclaimed for a declaration that the beneficial ownership of the shares vested in them.

In the course of the progress of the case other parties were added including Mr Kevin Walsh, the first Claimant’s husband (and the second Claimant’s father) and Redmayne Bentley, albeit the role of Redmayne Bentley in the proceedings has, I believe, been entirely passive.

The final hearing was listed to take place over 10 days before me commencing on 4 July 2016. On 18 May 2016 the parties, other than Redmayne Bentley, entered into a written compromise agreement (the Agreement). The Agreement envisaged that a consent order would be filed at court, as the Agreement states “to effect the terms of this agreement”.

It is as well to set out the terms of the Agreement since it is not a long document.

The parties have been unable to agree the terms of the draft consent order. The Claimants want it to reflect an obligation on the Defendants to pay £275,000. As well as incorporating a provision in the body of the proposed order that the Claimants and the Defendants claims are dismissed with no order as to costs, their draft incorporates a provision within the body of the proposed order whereby the Defendants are ordered to pay the £275,000 within the relevant 28 day period.

The Defendants are not agreeable to that. Their position is that, while the Court Order can contain a recital which records that matters have been compromised pursuant to the Agreement and that the Agreement be attached to the order, they are not prepared to agree to an order requiring payment since that was not what was agreed. Their position is that dismissal of the claims was not conditional on payment of that money, indeed the agreement was that the money was to be paid 28 days after service of the order dismissing the claims.

It is sad and, in my view bizarre, to report that efforts to agree a form of wording of an order that satisfies both parties has proved impossible. Instead both parties have issued applications to the court with a view to the court untangling this highly regrettable and costly impasse and either striking out the claims, which is what the Defendants seek or translating the contractual obligations that arise under the Agreement into a court order which includes an order to pay the £275,000, which is what the Claimants seek. I say “a costly impasse” because I am told that the costs involved in these applications runs to about £10,000 for each party. A solution to the impasse proposed by me at the outset of the hearing whereby essentially the claims and counterclaims stand dismissed with effect from an agreed date in the future provided the money has been paid with a provision that if it was not then an application could then be made for further directions foundered because, while the parties were prepared to agree to that in principle, they could not agree on the incidence of costs related to this discrete dispute. The Defendant was prepared to agree to there being no order for costs but the Claimants wanted their costs. I should add that the application becomes even more bizarre when I mention that in fact it is agreed that £275,000 is sitting as cash with Redmayne Bentley because part of the share portfolio about which this action is concerned was moved into cash by agreement before the EU referendum.

The Defendants’ application dated 29 June is for an order striking out the claims on the basis that the parties have made a binding agreement that the claims are to be dismissed and that the Claimant have no right or interest in the assets which were the subject matter of the claim.

It is argued that they unconditionally relinquished any interest in the assets (none being admitted in any event) as soon as the Agreement was executed on 18 May and that thus a claim seeking an interest in the assets is simply not sustainable and must be dismissed under the courts case management powers. In his skeleton argument Mr Greg Pipe counsel for the Defendants suggests that the court has the power under rule 3.1 and/or 3.4 although in his oral submissions he himself was hesitant that r3.1 could be utilised for this purpose.

As to the obligation by the Defendants to pay the £275,000, he argues that that is a contractual promise to pay at a future date, enforceable by separate action if payment is not made by the date upon which it becomes due.

The Claimants’ application is dated 1 July. Through their counsel. Mr Greg Plunkett, they seek an order that I determine, as a preliminary issue, whether the claims of the Claimants and the Defendants have been compromised and, if so, on what terms. They then seek a declaration to reflect that determination and an order to give effect to the declaration. They contend that the declaration ought to be that agreement by the Defendant includes an agreement that they be ordered to pay £275,000 within 28 days of the service of that order.

Mr Plunkett refers me to Foskett on Compromise 8^th Ed paragraph 11.03 as authority for the proposition that the course that he proposes, namely that this dispute between the parties is resolved through the medium of a preliminary issue is the correct one. He refers me to paragraph 11-03 and footnote 5 thereto

“Where proceedings are extant and the Claimant wishes to allege that an agreement has been reached compromising those proceedings, he may seek a determination of the point as a preliminary issue in those proceedings without the need for a fresh action. If the point is determined in his favour an order staying the proceedings will be made and a declaration given as to the terms of the compromise”. (see Eden v Naish 1878 LR 7 Ch.D 781 and Metrostore Ltd v BRB unreported January 20 1989)

In fact in this case both parties agree that a compromise has been reached and that the original dispute is now dead. The only issue is what the agreement was, essentially surrounding the £275,000, for the purpose of reflecting the agreement in the court order.

This hearing lasted the whole day. I do not intend to rehearse the arguments in detail. In brief however in support of his position set out in paragraph 9 and 10 above Mr Pipe argued that the Agreement was a carefully crafted and drafted document. By clause 2(4) it specifically provided that from the moment of signature the Claimants had no interest in the assets which were the subject matter of the dispute and that thus inevitably the beneficial ownership reposed with the Defendants (or in fact, as I understand has been agreed between the Defendants, in Joanne Raines). That, he argues, is not an accident. It may well be important for tax purposes as well as other purposes.

He points out that the Agreement does not render that position conditional upon payment of £275,000 or indeed anything else. It is an unqualified relinquishment by the Claimant of any purported interest. Paragraph 2(4) of the agreement is a contract that becomes executed at the time of signature of the Agreement. All other aspects of the Agreement are merely executory at that point.

He argues that the Claimants contention that the agreement to dismissal was conditional upon payment cannot be sustained because even they accept that the claim for a declaration that they have a beneficial interest in the assets has now gone even though payment has not been made. Therefore it cannot be argued that dismissal of the claim is conditional or contingent upon payment.

He argues that in those circumstances in so far as the Claimants seek a declaration that they have a beneficial interest in the assets that assertion now is simply unsustainable. The court should not allow a claim to proceed in any form when it is totally unwinnable. Even if the claim originally had merit, if during the course of the claim, it ceases to have merit then the court must intervene to bring it to a conclusion.

The effect of an order in those terms would of course give effect to the terms of the order that the Defendants were prepared to agree pursuant to the Agreement which was for the dismissal of the claim without reference (at least in the body of the order) to the contractual obligation to pay the £275,000.

As I have said, in his oral arguments he contended that r3.4 (2) was the means by which the case could be struck out. That rule permits the court to strike out a statement of case that either discloses no reasonable ground for bringing or defending the claim or is otherwise an abuse of process or will obstruct the just disposal of the proceedings. The Defendant however does not criticise the Claimants’ statement of case. They merely argue that subsequent events have meant that what was possibly once a sustainable cause of action is no longer. I have already recorded Mr Pipe’s response to that in paragraph 17 above. In fact, perhaps ironically, as Mr Plunkett acknowledges in paragraph 13 of his skeleton argument, the Claimants’ application for a preliminary issue provides an opening for dismissal since CPR 3.1(2)(l) states that the court may dismiss a claim after a decision on a preliminary issue. Mr Plunkett argues however that in the circumstances that is only available on the Claimants’ terms. In any event, Mr Pipe draws attention to the overlap between Part 3 and Part 24 referred to in the commentary in the White Book at 3.4.6. He reminds me that the object of both rules is to dispose of issues which do not need full investigation at trial.

Of course the Agreement does give rise to an obligation to pay £275,000 at a future date so if Mr Pipe is right and the claims should be struck out (or even dismissed) how does Mr Pipe deal with that? The obligation is, he says, deliberately a promise to pay it at a future date. He does not shrink from conceding that there would be a contractual obligation to pay it (subject to any arguments that he may now take on purported renunciation of the agreement by the Claimants) but there can be no judgment ordering its payment; first because that was not agreed. Secondly, because the Defendants are not in default of any obligation to pay. Absent any arguments that the Claimants’ conduct has now negated an obligation to pay, he argues that any default will only occur if payment is not made within 28 days of service of the order made pursuant to paragraph 3(1) of the Agreement. Thirdly, because the manner in which the Agreement was constructed provided that dismissal of the claims was to take place chronologically before the obligation to pay £275,000 even began to arise. There is, he argues, a “sequential” aspect to the obligations.

He asserts that, as well as there is no conditionality in the contract whereby the relinquishment of an interest in the asset is conditional or contingent upon payment, equally there is no conditionality or contingency on dismissal of the claim. The agreement is for dismissal of all claims as a prerequisite to time even starting to run on the obligation to make the payment. Therefore he asks rhetorically, how can dismissal be conditional upon payment? A finding that it was would, to use Mr Pipe’s expression “do violence” to the wording of the Agreement.

He also asserts that such a finding would imply that any interest that the Claimants have in the assets continues until payment. That he argues is directly contrary to paragraph 2(4) and it undermines the carefully crafted arrangement for tax and other purposes that as of the date of the Agreement the Claimants have no interest in the assets.

Mr Pipe refers me to Foskett in support of his contentions and in particular that a reference to £275,000 should find no place in the order that should have been put before the court. In this context he prays in aid chapter 8-03. It is worth quoting

“….. If the promised or actual forbearance to pursue a claim is construed as being in return for the promised (my emphasis) performance of some act by the other party, such agreement will be regarded as one involving the immediate discharge of the claim. Where, however, the promised or actual forbearance is construed as being in return for the actual (my emphasis) performance of some act by the other party, the claim forborne will not be discharged until such performance takes place. The propositions may be illustrated by reference to the examples:

(a)

A agreed not to pursue his claim against B in return for B’s promise to pay A the sum of £10,000 within 28 days;

(b)

A agreed not to pursue his claim against B if B pays to A sum of £10,000 within 28 days.

If B fails to make the payments within the period specified, A’s remedy under (a) would merely be to sue B for damages upon the compromise. Under (b) he would have the option of accepting B’s repudiation of the agreement, treating himself as discharged from further performance of his obligations and reasserting his original claim, or affirming the compromise and suing upon it.

Mr Pipe argues that this is a Foskett (a) situation because the Agreement provides for a promise by the Defendants to pay the money at a future date; it does not provide for actual performance. It is a subtle distinction but a distinction nevertheless. The argument therefore is that the obligation to pay need not and should not be in the order because it is only a contractual obligation. A judgment to pay it, which would give rise to the enforcement options that a judgment provides, would only be available if there was a default, the Claimants sue in a fresh action and judgment is given to the Claimants on that contractual claim.

As regards the Claimants’ application he argues that they have fallen into the trap of eliding 2 things which cannot be elided. They want the preliminary issue to declare that there has been a dismissal of the claims but they also want a judgment for £275,000. Leaving aside his arguments set out above that at the moment there is no liability to pay the £275,000 because the clock that would give rise to the obligation is not yet even ticking, he argues that the elision of the 2 things is not only contrary to the meaning of the Agreement but is conceptually impossible.

I repeat because it is critically important that it is not the Claimants’ case that no compromise has been reached. By paragraph 4 of his skeleton argument Mr Plunkett accepts that by the Agreement all the original claims have been discharged and replaced by a contractual agreement. The Claimants’ position therefore accords, at least to that extent, with that of the Defendants. As a result it is common ground that if this is to be dealt with as a preliminary issue rather than the claims being struck out (as per the Defendants application) the answer to the first question on the Claimants’ application, namely whether the parties have compromised their claims, is that they have.

He approaches the applications on the basis that the Defendants appear to be insisting on having their cake and eating it without so much as a crumb for the Claimants. They want an order dismissing the Claimants’ claims because the Claimants have agreed to the dismissal of their claims (as have the Defendants) but will not countenance the order recording the Defendants’ obligation to pay the money that was the quid pro quo for that agreement.

In any event Mr Plunkett argues that the claims should not be struck out on the basis contended by Mr Pipe nor should they be dismissed by any order that does not also provide for the payment to the Claimants. He argues that r3.4(2) does not provide a gateway to strike out in these circumstances in any event. As I point out above, that addresses statements of case. This is not an attack on the Claimants’ statement of case and so Mr Plunkett argues that r3.4(2) is simply not engaged. He argues that therefore the Defendants’ application is simply misconceived.

Secondly, he argues that weight is added to that contention because there is already available a means to deal with a dispute such as the parties now, amazingly, find themselves in and the preliminary issue route and the ancillary orders sought in his application are precisely what is advised in Foskett paragraph 11-03 and the cases therein referred to (see paragraph 12 above).

Mr Plunkett contends that what is vital here is a construction of the terms of the Agreement to ascertain its proper meaning. He argues that an analysis of the Agreement will make it clear that the obligations under the Agreement do not arise in the sequential way that Mr Pipe asserts but in a simultaneous way which is not undermined because the payment of the £275,000 is only due at a future date. He argues that the Agreement creates there and then an obligation to pay the money within 28 days of a consent order having been approved and served.

He referred me to Korea Foreign Insurance Co v Omne Re SA 1999 Lloyds Law Reports 509. That case concerned the question of whether, following the compromise of an action the terms of which the defendant then breached, the claimant could elect to sue on the compromise rather than proceed on the original action. In that respect it is quite different to this case but the Court of Appeal held that in construing the compromise agreement the parties are presumed to have intended a result that conforms to business common sense and gives effect to the commercial purpose of the contract. He argues that the commercial purpose of this agreement was that the Claimants would forego their claim in consideration of a payment of £275,000. He points out that the Agreement in terms sets out “consideration” moving from both parties for the agreement. He argues that a construction that demands an order that makes reference to only part of the agreement offends common sense.

The need for, and the extent to which, commercial common sense can be brought to bear on issues of construction has been considered by the Supreme Court I think most recently in Arnold v Britton 2015 AC 1619. From paragraph 14 the court sets out the principles.

The court then went on to emphasise six specific factors of general application in this exercise of construction. I do not intend to set them out at length. The purport is that;

Mr Plunkett argues that applying the test of considering what a reasonable person with the background knowledge available to the parties would have understood the parties to mean by the language used would lead to the conclusion that the envisaged court order would contain a provision to the effect that the Defendants do indeed pay the Claimants the £275,000 that they agreed to pay in consideration for the agreement by the Claimants to the dismissal of their claims.

I shall deal first with the Defendants’ application to dismiss under the court’s case management powers. It is suggested by Mr Plunkett that dismissal is not permissible under r3.4 because the complaint is not about the statement of case. It seems to me that there is some strength in that. The Rules themselves draw a distinction between strike out for a hopeless statement of case and strike out because there is no real prospect of success. The latter would be the subject of a Part 24 application for summary judgment. The commentary at 3.4.6 of the White Book to which I referred in paragraph 19 above is instructive here. There is clearly an overlap between the two Rules and indeed, on the authority of Moroney v Anglo-European College of Chiropractice 2009 EWCA Civ 1560 the court may treat an application under r3.4(2)(a) as if it were an application under Part 24 save where it would be unfair to do so.

The issue is however somewhat academic because, in fact, in this case I accept that the power to dismiss arises by virtue of r3.1(2)(l). As I have said in paragraph 19 above, Mr Plunkett accepts that to be the case since it is an order I can make on his preliminary issue. There is in my view power to dismiss under the court’s case management powers therefore.

The issue is whether it would be appropriate to exercise that power so that the claims are simply dismissed without there being some concomitant provision about payment of the £275,000. Mr Pipe argues that it should because, since it is now accepted by the Claimant that they have no interest in the assets that were in issue, a continuing claim for a declaration that they have an interest is an absurdity.

In so far as there is overlap between the two rules in my view it is important to remind myself that r24.2(b) enables the court not to strike out even a hopeless case if there are other compelling reasons why the case or issue should be disposed of at trial.

If the Defendants had made an application for strike out under Part 24 because the Claimant have now agreed that they have no claim in the circumstances of this case I would not have done so because in my view there is a compelling reason to dispose of the outstanding issue between the parties at a hearing. While there may be no corresponding provision in r3.1 nevertheless in my judgment it is right to exercise my discretion with that provision in mind, if only by way of some waymarker as to how the discretion under r3.1 is to be exercised.

I therefore refuse the Defendants’ application to strike out and I am fortified in that view by the views expressed in Foskett paragraph 11.03 referred to in paragraph 12 above. I accept that the matter with which I am concerned is different to that described in Foskett in that there the learned writer is referring to a dispute as to whether a claim has been compromised at all whereas here the issue is what are the terms of the admitted compromise but I do not think that the distinction is sufficiently great as to render different the process for determination of the issue.

In the circumstances the dispute falls to be determined on the basis of the Claimants’ application. That requires a construction of the Agreement applying the test set out in Arnold and the determination of the critical issue which is whether the Defendants agreed to submit to an order to pay the £275,000.

It has to be said that the Agreement is not overly well drafted. The Claimants’ interpretation of it does in my view lead at first sight to an anomaly because it is difficult to see how an order can both dismiss all claims and make an order for the payment of money. This is the elision point that Mr Pipe made and which I set out in paragraph 25. If an order is to be made for the payment of money the claim is not actually being dismissed. Mr Pipe argues that, since it is clear that the parties did agree dismissal, the obligation to pay can only have been contractual. Of course that leads to the question of why should any anomaly be resolved by the ensuing order ignoring the obligation to pay rather than being resolved by concluding that the claim is actually being dismissed on the proviso that prior to dismissal the payment is made? Mr Pipe’s answer is that that is not what the Agreement says. As I have recorded, his position is that relinquishment of an interest in the assets by the Claimants was unconditional and not subject to any proviso and that equally, there is no conditionality associated with dismissal of the claims.

In the end, as I have already observed, this issue comes down to what a reasonable person with the background knowledge available to the parties would have taken the parties to mean by the language used in the Agreement. Despite Mr Pipe’s erudite arguments, I am satisfied that that person would have concluded that the agreement between the parties provides that the ensuing order will contain a paragraph obliging the Defendants to make the payment.

In my view not only does that accord with the wording of the Agreement but it also accords with commercial common sense in the sense envisaged by Arnold and indeed Omne. It is difficult to believe that the Claimants would agree to relinquish their claims and submit to a court order dismissing their claims without the court order reflecting the obverse part of the agreement which was that they were to receive £275,000. Whilst the difficulty to which I refer in paragraph 42 above arising because of how the Agreement was drafted could be seen to be an anomaly that renders that interpretation unlikely, the fact is that the apparent anomaly can be reconciled if the agreement is construed as meaning that the parties actually agreed to the dismissal of the claims when the payment has been made. I shall develop this in more detail in paragraph 47 below. I think that first I should explain why I believe that the actual wording of the Agreement favours the Claimants

I do so because paragraph 3 of the Agreement makes it clear that the parties will present to the court a consent order “to effect the terms of the agreement”. I emphasise the word “order”. It does not say that the parties will present to the court an order that gives effect to only part of the Agreement, nor does it say that the reference to £275,000 will be contained in a recital to the order. It says in effect that the terms of the Agreement shall be contained in a consent court order. It follows that since the Defendants agreed to pay £275,000 that should be in the order.

I refer to Mr Pipe’s argument summarised in paragraph 22 above and indeed elsewhere. Mr Pipe spent a good deal of time in arguing that there was a sequential nature to the Agreement and that the ownership of the assets was determined the moment the Agreement was signed. In my view it does not matter that the Agreement may have had the immediate effect of divesting the Claimants from any interest they had in the assets. That is not inconsistent with an order requiring the Defendants to pay the money at some future date. All it means is that if they do not, the Claimants cannot go back and assert an interest in the assets, all they can do is enforce their judgment for the money.

I state in paragraph 44 that the Arnold reasonable person would construe the agreement as reconciling the apparent paradox of a court order both dismissing a claim and making an order for the payment of money by concluding that the parties intended dismissal to be conditional upon payment. I accept that Mr Pipe says that is manifestly not so but I do not see why. The Agreement does not say that dismissal must take place before payment. It simply says that proceedings shall be dismissed (at some future date). Importantly, it does not even say that payment shall be made within 28 days of dismissal. It says that payment shall be made within 28 days of the sealing and serving of an order that gives effect to the terms of the Agreement (which includes an obligation to pay £275,000).

Neither, referring to his points recorded at paragraph 20 above, does it matter that the money is not due until a future date. That is not a bar to an order for the payment of that money to be made at that date.

I turn to the Foskett (a) argument that I identify in paragraph 23 and 24. In my view it has no bearing or, if it does, then it has insufficient bearing to affect the construction of the Agreement. The issue addressed by the learned author in chapter 8-03 is whether the wronged party can resurrect his original claim or is confined simply to a contractual claim. The situation with which I am concerned is not that but rather whether the Agreement commits the Defendant to an order that orders him to make the payment.

Accordingly, I have concluded that the parties did agree that the order to be filed would record, as part of the order, that the Defendants would pay £275,000 within 28 days of the service of the Order.

There is the problem in that it is not open to the court to order that parties file a consent order. I would hope that in the light of this judgment the parties can agree an order to reflect my construction of the agreement. If they cannot then it seems on the authorities cited by Foskett at 11-13 it will be necessary to make a declaration. I will leave it to the parties to agree the precise wording but I think I have to say that I would be appalled if additional court time needed to be devoted to the wording not only in the light of the general nature of the applications and my conclusions but also the fact that, as I have said, as I understand it, the £275,000 is available.

I accept that there may be costs issues that need to be resolved. I would hope that in the light of this judgment the parties can agree those. If not then if they (and any other matters) are unlikely to take more than 30 minutes to resolve I will deal with those at the hearing at which this judgment is to be handed down. If outstanding issues are likely to take longer, the court office should be notified and a time estimate given so that an alternative hearing can be fixed to resolve them.