Arrowgame Ltd & Anor v Wildsmith & Ors

MR JUSTICE NUGEE: I have before me a proposed appeal against an Order of HHJ Dight sitting in the County Court at Central London. The judgment was handed down on 27 February 2016, and the Order made on that day, which was not drawn up until 7 March 2016, dismissed an application by the Defendants, Arrowgame Limited and Mr Goodman, to reopen an Order which he had previously made in circumstances that I will come to. He refused permission to appeal. When it came before the High Court on paper an Order was made on 10 June 2016 by Proudman J, directing a rolled up hearing, that is a hearing of the application for permission to appeal, with the hearing of the appeal, subject to permission, to follow, and this is that hearing.

I propose to grant permission to appeal as it seems to me that matters are plainly arguable, and have indeed been ably argued on both sides by Mr Price, who appears for the Appellants (the Defendants below) and by Mr Harpum, who appears for the Respondents (the Claimants below).

There is a very long history to this matter and I do not intend to set out more than a very small part of it, but it arises in the context of an application under the provisions of the Landlord and Tenant Act 1987 by the lessees of flats in a block of flats to acquire the reversion. The reversion is not in fact the freehold because there is a freeholder, a headlease and then the occupying lessees underneath, and it is the headlease which is the subject of this action. The headlease is currently vested in Arrowgame Limited, or was until recently, as I will explain.

The Claimants, who are the lessees and a company which they have formed called Colebrook Court Headlease Company Limited to be the transferee of the headlease, obtained a judgment from HHJ Cowell in the Central London County Court (as it then was) as long ago as 21 October 2011 in which he exercised the discretion given to him by the Act and directed that the lessees, through their company, should be entitled to acquire the headlease. I have not seen the Order that he made, but it is described as the Acquisition Order. At that stage the terms of the acquisition, including, importantly, the price, and also the terms of the transfer had not been settled, and it took a further almost two years before that was determined by the First - tier Tribunal (Property Chamber) (“the FTT”) which, in a decision dated 6 August 2013, fixed the price at some £250,000 odd and settled the terms of the transfer, saying consequently in paragraph [100] of their decision:

“For each and all of these reasons, we approve the revised form of transfer prepared by Mr May [that is the Claimants’ solicitor] at pages 10-154 to 10-157 in volume 3 of the hearing bundle”

and it is agreed before me that the form of transfer they approved is in the

form of a TR1 which is found in the appeal bundle at page 94.

That TRI provides that the transferor (Arrowgame Limited) transfer the property at Colebrook Court to Colebrook Court Headlease Company Limited with full title guarantee in consideration of £253,456. It contains on the execution page provision for execution as a deed by Arrowgame Limited, either acting by two directors or acting by a director and its secretary, and it has one continuation sheet which reads as follows:

“11.2: The Transferee hereby covenants to indemnify the Transferor against all claims and demands of whatsoever nature arising out of or in connection with the provisions of the registered lease in respect of any breach of covenant occurring after the date of this transfer.”

It does not contain any provision for execution by Colebrook Court

In circumstances which I need not detail it took almost another two years before the matter was made the subject of a Consent Order back in the County Court at Central London. That Order (“the Consent Order”) was made by HHJ Dight on 8 July 2015 (and drawn up on 10 July) and it contains a number of recitals most of which I need not read but which include a recital that the parties agreed that the terms of this Order were in full and final settlement of claims in the case, counterclaims or causes of action of whatsoever nature between the parties, subject to a proviso I need not read. Its substantive provisions then contain, at paragraphs 1 and 2 provisions for the register to be amended by deleting various entries; and at paragraph 3 for the Claimants’ costs of certain claims in the agreed sum of £175,000 to be set off against the price payable pursuant to the Acquisition Order and determined by the FTT in the sum of £253,456. Paragraph 4 reads: “The balance of £78,456 shall by 14 October 2015 be paid into court by the Claimants in 8MCL499.” Paragraph 5 reads:

“Upon notification of the payment into court, the 1st Defendant in A10CL499 [which I interpose is a reference to Arrowgame Limited] shall forthwith execute a transfer of title number NGL28124 in the form determined by the First - tier Tribunal in its decision dated 6 August 2013 in application number LON/00AW/0A0/2011/0001.

Paragraph 6 reads:

“In default of compliance by the 1st Defendant with paragraph 5 hereof the transfer shall be executed by a District Judge without the need for further order of the court.”

Paragraph 7 reads:

“Upon the court being satisfied that:
(1) the registration of Colebrook Court Headlease Company Limited as proprietor of the headlease has been effected; and
(2) all the charges and related entries on the register for the Headlease as at 1 July 2015 and the entries in paragraphs 1 and 2 of this Order have been vacated in accordance with the provisions of this Order and of Part III of the Landlord and Tenant Act 1987 the balance of the monies held in court shall be paid out to David Goodman & Co as solicitors for the First Defendant without further order.”

And paragraph 8 reads that:

“Any applications in these claims are to be listed before His Honour Judge Dight”

The Consent Order required the payment into Court of the sum of £78,456 by 14 October 2015. On 9 October 2015 the Claimants’ solicitors, John May Law, sent a cheque for that sum to the Court Funds Office in Glasgow. That afternoon at 16.22 they sent an email to David Goodman & Co, the 1st Defendant’s solicitor, saying:

“We have today made payment into court of the sum of £78,456 in accordance with the Order made on 8th July of 2015. We enclose by way of service a copy of the form of CFO100 with which payment has been made. Please will you confirm to us that you hold the duly executed Transfer and that this will be provided to us in accordance with the terms of the Court Order by no later than 14th October”

and they enclosed a copy of their request for deposit.

Mr David Goodman telephoned the Court Fund Office on Monday 12 October and they told him they had not got any record of the payment, but I need not detail what happened between then and 19 October because on 19 October 2015, John May Law received from the Court Fund Office in Glasgow a letter dated 14 October 2015 which contained a lodgment receipt for the sum which had been lodged. John May Law sent via email timed at 12.52 on 19 October (which was a Monday) a copy of that lodgment receipt to David Goodman & Co. In the covering letter John May Law said:

“We invite you to let us have your belated confirmation by 5 pm today that you hold the duly executed transfer; to provide a copy of the uncompleted document to us for inspection and your confirmation that you will complete the document when we have been able to confirm that the document appears to have been properly executed. In default of this we anticipate that the application of which you have previously been put on notice will be issued without further warning.”

It can be inferred that that was an application for the transfer to be executed by the Court under paragraph 6 of the Consent Order.

David Goodman & Co replied at 17.22 on the same day saying that the person dealing with the matter “is not in the office today and will be tomorrow.” At 15.07 on 20 October, David Goodman & Co sent another email containing a letter which said:

“For the avoidance of any doubt we have not received official notification from the Court Funds Office yet. Accordingly in our view we have not received notification of the payment into court in accordance with the provision of the Order. Nevertheless, arrangements have been made for the transfer to be executed, which has now taken place and we are awaiting the return of the transfer document which we should receive tomorrow. Our client has complied with the Court Order despite not having received notification from the Court Funds Office.”

That was Tuesday the 20^th. On Wednesday the 21^st, John May Law sent an email in which, among other things, they said:

“The application to the Court has already been prepared and, since your letter contains no assurance that completion will take place either tomorrow or at all, we have made our application to the Court. If you indicate to us that you hold the duly executed transfer, provide us with a copy of the uncompleted document which we find to be satisfactory and undertake that you will proceed to complete the document when we have satisfied ourselves as to the execution and agree to meet the costs incurred to that point we will of course inform the Court that it is not necessary to proceed with the application.”

The email went on to say that they were sending a copy of an application which had been submitted to the Court and supporting witness statement. The application, dated 20 October, asked for an Order as follows:

“The First Defendant being in default of paragraph 5 of the Order made in this court on 8th July 2015 the transfer of the premises which are the subject of this claim, shall be executed by a Judge or District Judge in the attached form.”

There was further correspondence between the parties in which John May Law reiterated more than once their willingness to proceed to completion, in which case it would not be necessary to trouble the Court. In the course of that, on 22 October, John May Law, who had by then received a copy of the transfer, said this:

“We thank you for your letter of 21st October… you attach a copy of the transfer which appears to have been properly executed. On the basis that that is also your view we would be happy to proceed to complete. If you now hold the original transfer and are ready to complete on this basis please would you contact us immediately so that completion can be arranged.”

That, however, did not take place. I was told by Mr Price for the appellants that one of the concerns was that in the very email to which I have referred, John May Law had said that they would also require their costs to be paid. It does seem to me to be unfortunate that completion was not agreed reserving any question of costs. Nevertheless, it was not and on 26 October, which was the following Monday, Mr May of John May Law emailed the Court in which they invited HHJ Dight (for whose attention the application was marked in accordance with the Consent Order) to deal with the matter as a matter of urgency. That was prompted by the enquiries he had made at the Land Registry which revealed that some form of dealing relating to the title had been made and lodged by Mr Goodman on 20 October. He was therefore anxious that the transfer should be executed by the Court, returned to him and lodged before the expiry of the priority period at the Land Registry which would expire on 9 November.

HHJ Dight acceded to that and on the next day, 27October, executed the TR1 in the form which had been settled by the FTT. In the execution box he filled it in as follows: “Signed as a deed by [full name of attorney] His Honour Judge Dight in accordance with his Orders dated 8 July 2015 and 27 October 2015.” That indicates that he had made an Order on the same day and that indeed was made by him and drawn up on the same day and reads as follows:

“Before His Honour Judge Dight…
UPON the application of the Claimant dated 20 October 2015 AND UPON Defendant 1 being in default of Para 5 of the Order of His Honour Judge Dight dated 8 July 2015 IT IS ORDERED THAT the transfer of the First Defendant’s interest in the premises that are the subject of this action in the form annexed to the Order be executed by His Honour Judge Dight in accordance with the Order of 8 July 2015. The costs of the Claimant’s Application dated 20 October 2015 are to be summarily, if not agreed, (sic) [that must mean assessed if not agreed] and are to be paid by the Defendants within 14 days of the date of assessment or agreement. Permission to vary/discharge by 6 November 2015.”

That being an application that was decided on paper without a hearing and included, as I have just read, liberty to apply to the judge, the Appellants took advantage of that liberty to apply and applied on 4 November seeking that the Order of 27 October be set aside on the basis that the 1st Defendant was not in default of paragraph 5 of the Order.

That was the application which came before HHJ Dight and resulted in the Order which I have already referred to dated 27 February 2016 (and drawn up on 7 March 2016) dismissing the application and refusing permission to appeal. It also (and this is relevant to a second permission to appeal application which is to be heard by me later today) provided at paragraph 3 that the Defendants were to pay the Claimants’ costs summarily assessed in the sum of £8,500 (plus VAT if VAT were payable) such costs to be paid out to the Claimants’ solicitors from an amount held at the Court Funds Office in relation to the matter, and at paragraph 4 provided that: “The Defendants have permission to apply to vary the costs order on the basis that they are not liable to pay costs by reason of the application of the indemnity principle.” Paragraph 5 provided that any such application had to be made by 7 March 2016.

The matters which had been raised in correspondence between the parties concerned, firstly, whether the requirement in paragraph 5 of the Consent Order that there be notification of the payment into court required formal notification to the Defendants direct from the Court Funds Office and whether the Defendants were entitled to wait for a period to see whether the funds had cleared for fate (an expression which I am not familiar with, but which entailed, it appears, the suggestion that they were entitled to wait for a number of days before having to complete the matter). However, when the matter came before HHJ Dight it was accepted by the Defendants that notification had taken place on, at the latest, 19 October 2015 when John May Law sent the formal lodgment receipt from the Court Funds Office to the Defendants, and the argument that they were entitled to wait for funds to clear was not pressed. Instead, the argument that was put forward was that there had been no default in complying with paragraph 5, paragraph 5 requiring the 1st Defendant to execute the transfer forthwith. The 1st Defendant having signed the transfer by its director and secretary within 48 hours of that notification had executed the transfer and that, in the circumstances, was forthwith.

HHJ Dight rejected that argument. He found that the submission by Mr Harpum on behalf of the Claimants was compelling, which was that (and this is at paragraph [25] of the judgment):

“It is perfectly plain that execution is not intended to be given its technical conveyancing meaning, but its ordinary meaning, and it should be construed so as to include delivery of the document so that completion could take place.”

At paragraph [26] he said this:

In those circumstances, the 1st Defendant was, by the time he had made his Order on 27 October, in breach of its obligation under the Consent Order and he was therefore entitled to transfer the interest in the headlease in the form which had been approved by the FTT.

Mr Price (who has argued this appeal very ably) submits that in giving that meaning to the word “executed” in paragraph 5 of the Consent Order, HHJ Dight fell into error. In his submission, the word “execute” (as normally used by conveyancers) means the act of placing one’s signature on a document. In the case of a deed executed by a company, as this was, that requires a signature either by two directors or, as happened in this case, a director and the secretary. The director in question was a Mr Brown, who lived in Devon. The secretary was Mr Goodman of David Goodman & Co, who is in fact the 2nd Defendant and, as revealed by the correspondence, what happened was that after receiving notification on the 19^th the transfer was sent or taken down to Devon where Mr Brown signed it, probably on the 20^th, and by the 21^st it was back in Mr Goodman’s hands and had been signed by both director and secretary which enabled a copy of it to be sent, as it was on the evening of 21 October, to John May Law. Mr Price said that that constituted execution. His submission, in essence, is that the Judge was wrong to say that execution of the deed required delivery.

Ably though this point was argued, I am left with not the slightest doubt that it must be rejected. One starts with the ordinary meaning of the word “execute.” It is true that it is quite common for conveyancers, and indeed other people, to refer to the act of signing a document, or as it used to be before the Law of Property (Miscellaneous Provisions) Act 1989, the act of signing and sealing a document by an individual, as execution and, as appears from the correspondence which I have read and from other examples which were put before me by Mr Price, Mr May himself used the word “execute” in that sense. I need only refer to one example because it is typical of his usage, which is the letter of 19 October which I have already referred to, in which he said:

“We invite you to let us have your belated confirmation by 5 pm today that you hold the duly executed transfer; to provide a copy of the uncompleted document to us for inspection and your confirmation that you will complete the document when we have been able to confirm that the document appears to have been properly executed.”

It is perfectly clear from that letter that Mr May was using the word “executed” to mean signed by the appropriate signatories and thereby authenticated on behalf of the company. Nevertheless, that does not seem to me to be the correct technical meaning of the word “execute.” I can take this from a text book which was not cited to me by counsel but which I told counsel that I had which is Emmet on Title (volume 2) where there is a whole chapter headed “Execution of Deeds.” That refers at §20-001 to the common law requirements for execution of a deed, namely, writing on paper or parchment, sealing and delivery; to the fact that statute (I believe the Law of Property Act 1925) added the requirement of signature in the case of an individual; and to the statutory provisions which now govern the position. In the case of individuals, the position is covered by s.1(3) of the Law of Property (Miscellaneous Provisions) Act 1989 which provides that:

“An instrument is validly executed as a deed by an individual if, and only if–
(a) it is signed–
(i) by him in the presence of a witness who attests to the signature; or
(ii) at his direction and in his presence and the presence of two witnesses who each attest the signature; and
(b) it is delivered as a deed.”

When I raised with Mr Price the suggestion that I have always understood that execution of a deed required it to be signed, sealed and delivered and that the position was governed by s1(3) of the 1989 Act, which got rid of the requirement for sealing but not those of signing and delivery, he pointed out that, as is obviously the case, this transfer was not executed by an individual but by a company and s1(3) of the 1989 Act did not apply. That led, after a bit of a paper chase, to ss. 44 and 46 of the Companies Act 2006. s. 44, headed “Execution of Documents,” provides:

“(1)

Under the law of England and Wales and Northern Ireland a document is executed by a company–
(a) by the affixing of its common seal, or
(b) by signature in accordance with the following provisions.

(2) A document is validly executed by a company if it is signed on behalf of the company–
(a) by two authorised signatories; or
(b) by a director of the company in the presence of a witness who attests the signature.

(3) The following are “authorised signatories” for the purposes of subsection (2)–
(a) every director of the company; and
(b) in the case of a private company with a secretary or a public company, the secretary (or any joint secretary) of the company.”

That by itself says nothing about delivery, but deals with execution of documents generally. S. 46, however, under the heading “Execution of Deeds” provides as follows:

“46Execution of deeds

(1)

A document is validly executed by a company as a deed for the

purposes of section 1(2)(b) of the Law of Property (Miscellaneous

Provisions) Act 1989 (c. 34) and for the purposes of the law of

Northern Ireland if, and only if-

(a)

it is duly executed by the company, and

(b)it is delivered as a deed

(2)

For the purposes of subsection (1)(b) a document is presumed to be delivered upon its being executed, unless a contrary intention

is proved.”

One can see there that a document is only validly executed as a deed if it is both duly executed by the company and delivered as a deed. One can see the use of the word “executed” in two alternative senses in the same sub-section because where it appears in s. 46(1)(a) as the requirement that the document is “duly executed by the company” it must refer to the requirements of s. 44 which require, as I have said, either the fixing of the company seal or, as is more common these days, signature by two directors or by a director and the secretary. But where it says in s. 46(1) that the document is “validly executed by a company as a deed” it is clear that it requires not only sealing or signature in accordance with s. 44, but also delivery. It is true that sub-section (2) provides a presumption of delivery upon its being “executed” where executed again is obviously being used in terms of compliance with the requirements of s. 44. But it does seem to me that as a matter of technical law a deed is only to be regarded as executed as a deed - and a land registry transfer of a registered leasehold (as this is) is undoubtedly a document that needs to be executed as a deed - if it is not only executed in the sense of being sealed, or signed in accordance with s. 44, if the transferor is the company, but if it is also delivered as a deed.

One then asks whether there is any reason to give the word “execution” in the Consent Order a narrower construction so that it is sufficient for compliance with paragraph 5 that the document has been signed in accordance with s. 44, or whether it is also to be delivered as a deed, as required by s. 46. I have no hesitation at all in saying that the latter, which was the view that appealed to HHJ Dight, is the view which also appeals to me. As Mr Harpum said and as the Judge said, the Consent Order was clearly intended to tie up what had been a dispute that was much more long running than one would expect between the lessees of this block of flats and the head lessee in which (as I have briefly referred to) it had taken many years for the Claimants not only to establish their rights, but to get to the stage where the Defendants were in fact to execute a transfer of the headlease to the Claimants’ company.

In those circumstances, the suggestion that all that paragraph 5 required the Defendants to do to avoid being in breach of it was to sign the document, but not to deliver it, enabling them to keep it, as it were, in their own possession in a locked drawer, seems to me to be a nonsensical one. As both counsel emphasised, there is in the Consent Order no provision for a subsequent step in the form of a conventional completion. Mr Price said that that meant that there had to be an implied obligation to complete within a reasonable time or for the parties to agree how to complete or in default of agreement for the Court to make further provision for completion. Mr Harpum, however, drew the opposite conclusion from the same lack of mention of completion which was that the execution referred to in paragraph 5 was intended to put the Claimants in possession of a document which they could then lodge at the Land Registry, it being perfectly clear from paragraph 7(1) that what the Order contemplated and what it was designed to lead to was the registration of Colebrook Court Headlease Company Limited as proprietor of the headlease.

On this, I prefer Mr Harpum’s submissions. I take from the fact that there is no separate step of completion referred to in the Order the conclusion that paragraph 5 was intended to be all that was required to put the lessees’ company in a position to enable it to be registered as proprietor. Against the background of the long running and protracted litigation between these parties, one could not assume (as one can in most conveyancing transactions) that both parties would be anxious to complete. Indeed, the very fact that paragraph 6 is included suggests to me (as Mr Harpum submitted) that the Claimants did not trust the Defendants to comply with the Order which is why, unusually, there was included in this Order a provision in advance for execution by the Court in the absence of compliance.

In those circumstances, the notion that the parties intended, by paragraph 5, merely that the transfer should be signed by the Defendants, but then kept in their own possession without any obligation expressed to do anything further to complete seems to me, as it seemed to HHJ Dight, to be an entirely absurd construction of this Order. Where I differ from HHJ Dight is in thinking that that is an unusual meaning to give to the word “execute.” I have already accepted that it is very common for people, particularly perhaps conveyancers, to refer to the act of signing or sealing a deed as execution, but it is, as I have sought to explain by reference to s. 46, not the only, or to my mind, the most technical meaning of execution. There is a very helpful explanation in the judgment of the Court of Appeal in Longman v Viscount Chelsea & Ors [1989] 58 P & CR 189 which deals with the execution of, in that case, a lease by an individual, and the normal requirements for a valid deed. In the judgment of Nourse LJ, with whom Taylor and Kerr LJJ agreed, he said this at 195:

“A writing cannot become a deed unless it is signed, sealed and delivered as a deed. Having reached that stage, it is correctly described as having been “executed” as a deed. Having been signed and sealed it may be delivered in one of three ways. First, it may be delivered as an unconditional deed, being irrevocable and taking immediate effect. Secondly, it may be delivered as an escrow, being irrevocable but not taking effect unless and until the condition or conditions of the escrow are fulfilled. Thirdly, it may be handed to an agent of the maker with instructions to deal with it in a certain way in a certain event, being revocable and of no effect unless and until it is so dealt with, whereupon it is delivered and takes effect.”

And then after reference to a couple of cases he says: “It is implicit in the ordinary conveyancing practice now under consideration that it is the third method which there applies.”

Then later on at page 198 he dealt with the submission by Mr Neuberger (as he then was) that an admission in the defence that Lord Chelsea (that is the landlord) had “executed” the new lease as alleged in the statement of claim had “admitted that he had not only signed and sealed the new lease but had also delivered it as an escrow. However, I think it clear from the defence as a whole that the pleader used the word “executed” in the less correct sense of signed and sealed only.”

To my mind, therefore, the only error that HHJ Dight fell into was in thinking that the technical conveyancing meaning of “execute” only required signing of the transfer. In my judgment, the opposite is the case. The most technical meaning of the word “execute” in relation to a deed is to do everything necessary for it to be valid as a deed. As appears from s. 46 of the Companies Act, in the case of a deed to be executed by a company that requires not only compliance with s. 44, but also delivery. And although s. 46(2) provides a presumption that the document is delivered upon its being executed in accordance with s. 44, in this case it is quite plain that the contrary intention is shown. That is because, as explained by Nourse LJ in Longmore v Viscount Chelsea the normal method of conveyancing is that the parties prepare for completion by signing the documents, but do not deliver the documents until completion. That is the “third method” that he referred to at page 195 and indeed it was on that point that the appeal in that case turned, because the landlord, Lord Chelsea, had signed the new lease and given it to his solicitor, but it was held that he was entitled to recall it, which could not have been the case if it had been delivered either absolutely or in escrow.

In the present case it is perfectly clear from the correspondence that the position adopted by David Goodman & Co, and indeed by John May Law, was that the signature on the document was not the same as completion and that there had to be a further step in which the transaction was completed. I would agree and that further step would have been delivery of the deed. That had not taken place. That was, in my judgment, correctly identified by HHJ Dight as something that was required by paragraph 5 of the Consent Order which required the 1st Defendant to execute the lease and the position, when it came before HHJ Dight, and indeed the position today, is that although the TR1 has been signed by the 1st Defendant in compliance with s. 44 of the Companies Act 2006 it had not been delivered by 27 October in compliance with s.46(1)(b) of the Companies Act and indeed it still has not been delivered today. In those circumstances, the 1st Defendant was, in my judgment, correctly identified by HHJ Dight as being in default of paragraph 5 and that enabled the Court to execute the transfer under paragraph 6 and HHJ Dight to execute the transfer in place of the 1st defendant.

Although the Consent Order in paragraph 6 referred to execution by a district judge, it is not suggested by Mr Price that the execution by HHJ Dight is invalid on that ground, and given the reservation to HHJ Dight that was no doubt a realistic concession.

There were two other points which I should mention. Firstly, as Mr Harpum submitted, it seems to me that s. 39 of the Senior Courts Act 1981 assists in supporting that conclusion, although I would have come to it even without it. Section 39 provides under the heading “Execution of instrument by person nominated by the High Court”:

“(1)

Where the High Court or family court has given or made a judgment or order directing a person to execute any conveyance, contract or other document, or to indorse any negotiable instrument, then, if that person -

(a)

neglects or refuses to comply with the judgment or order; or

(b)

cannot after reasonable inquiry be found, that court may, on such terms and conditions, if any, as may be just, order that the conveyance, contract or other document shall be executed, or that the negotiable instrument shall be indorsed, by such person as the court may nominate for that purpose.

(2) A conveyance, contract, document or instrument executed or indorsed in pursuance of an order under this section shall operate, and be for all purposes available, as if it had been executed or indorsed by the person originally directed to execute or indorse it.”

Mr Harpum’s submission was that in s. 39 what is plainly envisaged is that if a person who is entitled to a contract or conveyance or other document has not received it from the party ordered to execute it, he can apply to Court and ask for the Court to order that it be executed by someone nominated (usually a judge or Master) and that, in those circumstances, execution must mean not just signature by the judge with the Court then retaining the document, but signature by the judge and handing over the document to the person entitled, and that that is what paragraph 6 of the consent order envisaged. I agree with that submission. It is plain to my mind that paragraph 6 was intended to avoid the need for a separate application to be made under s. 39 or the equivalent in the County Court (whatever that may be) by providing that the power of the Court to execute the document in default of the 1st Defendant doing so was to arise immediately. I accept that it was envisaged that under paragraph 6 the Court would not simply sign the transfer, but would deliver it to the Claimants to enable it to be lodged at the Land Registry, that being the only way in which the transfer of a registered property can be completed; and that, to my mind, as Mr Harpum submitted, does shed light on the meaning of the word “execute” in paragraph 5 which also supports the view I have already come to that what paragraph 5 envisages is not just that the 1st Defendant should sign the document, but should complete the transaction by delivering the document.

I should say that, technically speaking, delivery in the sense in which it is used in s. 46(1)(b) of the Companies Act and the common law requirement for delivery does not necessarily import the physical handing over of the document. There is reference in Emmet on Title at §20-005 to a judgment of Denning LJ in Vincent v Premo Enterprises (Voucher Sales) Ltd [1969] 2 QB 609 which explains: “Delivery” in this connection does not mean “handed over” to the other side. It means delivered in the old legal sense, namely, an act done so as to evince an intention to be bound. Even though the deed remains in the possession of the maker, or of his solicitor, he is bound by it if he has done some act evincing an intention to be bound, as by saying “I deliver this as my act and deed.”

Much of the argument before me proceeded on the assumption that delivery and delivery up were the same thing and that delivery meant handing over. Strictly speaking, I do not think that is the case. Delivery in this context means adopting the document as one’s own deed, but as explained by Nourse LJ in the normal way in which conveyancing takes place that does not happen until completion. And when completion takes place, the normal way in which that is done is by the transferor agreeing to hold the executed document to the order of the transferee. That, being an act which evinces an intention to be bound, would amount to delivery as explained in Vincent v Premo. But it of course follows that at that point the transferee could call for the document so that it could be lodged. Indeed, even if the transferor had not agreed to hold the TR1 to the order of the transferee but simply said “I deliver this as my act and deed” the effect would be the same as the transferee would be entitled to the interest thereby transferred and could call for the transfer as a title deed. Delivery in this sense to my mind, is what was required by paragraph 5 of the Consent Order and, as I have already said, that had not been complied with by the time of HHJ Dight’s order on 27 October and indeed has still not been complied with today.

The other point I should mention is an argument that was raised by Mr Price which is that, as I have read, the form of transfer settled by the FTT contained a covenant by the transferee. Mr Price relied on that as showing that what was envisaged was the execution of a transfer by the transferor and of a counterpart by the transferee in order to make the covenant effective and he said that that, therefore, supported his submission that there was a further stage of completion which was required.

That point was not one which appears to have been raised in the correspondence and was only relied on as a makeweight before HHJ Dight. It seems to me that the answer to it is the answer that Mr Harpum gave, which is that everybody appears to have overlooked the consequences of including such a covenant - because there is no provision, in the form of transfer which was settled by the FTT, for execution by the transferee. It might have been better had there been provision for execution by the transferee as covenantor and had that been done, no doubt provision would have been made in the Consent Order for execution of a counterpart by the transferee as a pre-condition to the transferor being in default. Nevertheless, the technical position is that the obligation on the transferor was to execute the transfer in the form approved by the FTT, and the form approved by the FTT did not contain any provision for execution by the transferee, and it seems to me that in those circumstances, the transferor was not entitled to insist upon provision of a counterpart executed by the transferee before it was obliged to complete.

In practice, this causes no difficulties to the transferor because, as pointed out by Mr Harpum, the covenant of the transferee is a covenant to indemnify which goes no further than the statutorily implied covenants under schedule 2, paragraph 20 of the Land Registration Act 2002 which I do not need to read. In those circumstances, the fact that everyone overlooked the fact that there was included in the TR1 an express covenant by the transferee, with the consequence that it would have been better if there had been provision for execution of a counterpart by the transferee, has no practical consequences and is not, to my mind, any reason for adopting a different construction of the Consent Order.

There were raised in the grounds of appeal two other points which I will come to very briefly, but for the reasons I have given, the main ground of appeal which has been argued before me, to my mind, falls to be dismissed.

I have already said that I have granted permission to appeal. Logically speaking, in a rolled up hearing there is no doubt inconsistency between my finding (for the purpose of granting permission) that there is a real prospect of the appeal succeeding when I have already decided that the appeal fails, but the practical consequence of granting permission and then dealing with the appeal on its merits rather than refusing permission is to preserve the ability of the appellant in a case which is appropriate to seek the permission of the Court of Appeal for a second appeal. I have to say that in this case I think the position is wholly theoretical because I very much doubt the Court of Appeal would be persuaded that there was an important point of practice or principle in the construction of this one-off Order. Nevertheless, as a matter of good practice, it seems to me that where a first level appeal court is satisfied that there is a real arguable point, then even though it proceeds to dismiss the appeal, it is usually appropriate for it to grant permission to appeal to keep that avenue open, even if in this case it is a purely theoretical one.

The other two grounds of appeal which are very much secondary concern, first, the construction of the word “forthwith” in paragraph 5. In the circumstances, this does not arise, but I will briefly indicate what the point is. HHJ Dight took the view that there had not been execution forthwith in any event because the notification took place at lunchtime on Monday 19 October and the document had not been executed until 21 October (some 48 hours or so later) whereas he said that he thought that “forthwith” required something more immediate than that. It is established that “forthwith” means “as soon as reasonably practicable in the circumstances,” and Mr Price was intending to argue that, in the circumstances, where Mr Brown is in Devon and Mr Goodman in London, the 48 hours or so taken to have the document signed was not out of time.

As it is, the point does not arise and, in any event, Mr Harpum accepted that it would never have made a difference to the outcome. If he was right (as I have held he was) on the meaning of “execution” there had been no execution by 27 October in any event. If he was wrong on the meaning of “execution” and it only required signature, then in circumstances where by the time it came before HHJ Dight on 27 October, the 1st Defendant had complied with the requirement to sign the document, albeit late, he accepted that HHJ Dight would not have had power to execute the transfer in place of the 1st Defendant under paragraph 6. That seems to me to be correct and, in the circumstances, I do not propose to express any view as to whether “forthwith” required execution more promptly than the two days or so which it took for the 1st Defendant to sign the document.

The other point which was raised and touched on briefly was that HHJ Dight ordered both Defendants to pay the costs and at one point in his judgment refers to the Defendants, in the plural, as being in default, that is at paragraph [31] where he says:

“The fact that the application had been made on 20 October was not a good reason not to comply with their obligations. This is a further reason why, in my judgment, in any event, they were in default.”

It was pointed out that paragraph 5 of the consent order did not require the 2nd Defendant to do anything and therefore the 2nd Defendant could not be said to be in default. I think that this is one of those expressions in a judgment which are not to be taken as deciding a point which was not argued. When one comes to the actual order that was made on 27 October it recited, as I have referred to, that it was the 1st Defendant that was in default.

As to whether it was appropriate, in the circumstances, to make both Defendants liable for the costs, I do not propose to take up any time with that. Both Defendants have been acting, on this aspect of the matter at any rate, together. They are both parties and it has no (as far as I can see) practical consequences because of the provision that the Claimants can take their costs out of the money in court. That means that in practice the 2nd Defendant, Mr Goodman, will not, as far as I can see, be at any serious risk of having to put his hand in his own pocket to meet that order for costs and in those circumstances I do not propose to spend any more time on whether it was appropriate to make both Defendants liable for costs or not. I will dismiss this appeal.