Harworth Estates Investments Limited v Lorraine Susan Southern & Anor

This is my extemporary judgment on an interim application in a Part 8 claim issued by Harworth Estates Investments Limited on 17 December 2025 in claim number PT-2025-MAN-000194.

This Part 8 claim arises out of an option agreement that the claimant says was entered into on 5 September 2017, relating to land at Lower Leeches Farm, Dicconson Lane, Westhoughton, Bolton. The option agreement was apparently granted to the claimant by two owners of the land, Mr George Gordon Southern and his son, Mr Andrew Gordon Southern. The father died on 1 September 2023 and letters of administration to his estate were granted on 15 May 2025 to the first defendant, Lorraine Susan Southern, and her brother, the second defendant, Andrew Gordon Southern who, with his father, had entered into the option agreement as co-grantor.

The Part 8 claim form essentially seeks access to the farm land, the subject of the option, under clause 9.1.2. This provides that:

The option period is ten years from the date of grant and so expires on 5 September 2027. The effect of the detailed provisions of the option agreement is that the option to purchase granted to the grantee is exercisable only if the claimant has obtained an acceptable planning permission, for which the grantee must have applied by no later than 5 September 2027. If no such application for planning permission is made by that date, the option will automatically terminate. If, however, such an application has been made and not determined, or if other conditions in the definition of the ‘Option Period’ apply, then the option period will extend until such time as the option is either terminated in accordance with its provisions or is completed, subject to automatic termination on a cut-off date of 4 September 2029.

Since 7 May 2025, the claimant has been requesting access to the property from the deceased and the defendants for the purpose of carrying out inspections and surveys of the land. Such access has been persistently refused. Matters have now reached the stage where the claimant's evidence is that unless access can be obtained shortly, it will not be possible for the claimant to complete all the inspections and surveys of the land required in order to submit a planning application this year. If left until next year, it may be too late for the claimant to submit a planning application in sufficient detail so as to be validated by the local planning authority before the initial expiry of the option on 5 September 2027.

It is in those circumstances that the present claim form was issued. The defendant was served with the Part 8 claim form personally on 9 January 2026. The first defendant has filed a witness statement dated 12 January 2026. In it, she takes a number of points. She says that the claim cannot succeed in the absence of a validly executed option agreement. She says that the claimant has failed to plead, or to produce, such a properly executed agreement capable of creating enforceable rights against either the estate of her father or her co-defendant, Andrew Gordon Southern. That is said to be fatal to the claim.

The first defendant takes a number of specific points. First, that the option was not executed as a deed. Second, that the option agreement was not validly executed as a contract which complied with the requirements of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989. She says that the copy of the option agreement originally relied upon by the claimant is unsigned by the claimant, and is not executed by or on behalf of all the parties in a single document, or in documents that are clearly and unequivocally part of the same instrument. She notes that the claimant now asserts that the agreement was executed in counterpart. She says that that assertion is not pleaded with particularity and is unsupported by evidence that:

The first defendant objects that the claimant has not pleaded delivery, nor explained how, or when, any binding contract came into existence. In those circumstances, the claimant has failed to plead, or to prove, the existence of any valid and enforceable contract capable of satisfying section 2 of the 1989 Act. It should be noted that in her defence, it is not objected that the claimant has failed to say who purported to execute the contract on behalf of the claimant. Nor is it said that the signature attached to the grantor's part of the option agreement on behalf of the grantee was attached to the document without any proper lawful authority.

Before this court, the first defendant, who appears alone as a litigant in person, without the second defendant present, has complained that the evidence does not disclose either who signed the contract for and on behalf of the grantee, or identified the authority with which they did so. On instructions, Ms Evie Barden (of counsel), who appears for the claimant has told me that the signatory was in fact the former chief executive officer of the claimant. She has offered an undertaking in short order to file a witness statement confirming that. I will accept that undertaking. It seems to me that this issue had not been flagged up either in the pleaded defence or in the witness statement from the first defendant; and fairness dictates that the claimant should have an opportunity to rectify any omission as to disclosure of the identity, and authority, of the signatory of the option agreement on behalf of the claimant. Any order of the court will be conditional upon that witness statement being filed.

As a result of those two matters, the first defendant says that the claim collapses at the threshold. In the absence of any validly executed agreement:

All other issues raised by the claimant are said to be strictly secondary, and do not arise unless a valid contract is first established. The defence raises a number of further matters which arise only if the court is against the defendants on the issue of execution. If the court should find that a contract existed, then the defendants rely on the following further matters, each of which is said to involve substantial disputes of fact and law:

It is said that those matters demonstrate that this claim is wholly unsuitable for determination under Part 8 of the Civil Procedure Rules. For those reasons, it is said that the claimant has failed to establish any enforceable contractual foundation for the relief sought. The first defendant therefore invites the court to dismiss the claim or, alternatively, direct that it proceed under CPR Part 7, and make an appropriate order as to costs.

The matter has been listed for two hours, as a first hearing of the Part 8 claim, before one of the nominated Business and Property Court district judges on 24 April 2026. Anticipating that there may be no final order made at that hearing, the claimant has issued this application notice seeking interim relief which is presently before the court. Essentially, the claimant seeks an order on an interim basis to give effect to what the claimant says are its rights under clause 9.1.2 of the option agreement. It has been requesting access since 7 May 2025. Access has been persistently refused. The claimant says it needs access if it is to have any reasonable prospect of submitting a planning application before the option expires on 5 September 2027.

The evidence in support of the application is to be found in witness statements of: (1) David Burkinshaw, dated 24 March 2026; (2) Bethan Holley, dated 25 March 2026; and (3) Bethan Holley, dated 30 March 2026. Mr Burkinshaw is the senior development director of a group company, Harworth Estates Property Group Limited. Ms Holley is a solicitor and associate with Pinsent Masons, who are the claimant's litigation solicitors. The second of her witness statements deals with the issue of service, which was the subject of an order that I made on 27 March 2026. Notice of this hearing was issued on the same day. The evidence is that the relevant documents were served in compliance with my order last Saturday. There has therefore been three clear days before the hearing of this application.

As I have mentioned, Ms Barden (of counsel) appears for the claimant (and applicant). She has submitted a detailed written skeleton argument, dated 31 March 2026, which extends to 21 pages and 101 paragraphs. The first defendant has produced a skeleton argument of her own, which was submitted to the court by email on Saturday, 28 March at 3.50 pm. The first defendant appears alone, but with the assistance of others, as a litigant in person. She has asserted that the second defendant, her brother, lacks capacity; but there is no evidence to that effect. The court proceeds on the footing that the presumption of mental capacity, in section 1(2) of the Mental Capacity Act 2005, applies in relation to the second defendant. In any event, my order of 27 March included (at paragraph 1) permission to the claimant, pursuant to CPR 21.3(2) to: (a) make this application against the second defendant; (b) serve the application notice and any evidence or documents relied upon in support of the application upon him; and (c) seek relief on the application against the second defendant, including taking any steps necessary or consequent upon seeking or obtaining relief.

At the commencement of this hearing, I enquired whether the first defendant sought any adjournment of the hearing. She indicated that she was content for the matter to be determined today.

Since this is an application for interim relief pending the disposal of the Part 8 claim, the court must apply the three-stage test laid down by the House of Lords in the well-known case of American Cyanamid Co v Ethicon Ltd. The court must first ask whether there is a serious question to be tried. If there is, it must then go on to enquire whether damages would be an adequate remedy for the applicant, taking into account the defendants' ability to pay them. The court should consider whether it is just in all the circumstances that the applicant should be confined to a remedy in damages. If not, the court must consider whether the respondent would be adequately compensated, under the applicant's cross-undertaking in damages, if the respondent were to be the successful party at trial. If damages would not be an adequate remedy for either party, the court must then go on to consider where the balance of convenience lies.

In her reply, Ms Barden took me to page 408, between letters F and G, of Lord Diplock's speech in American Cyanamid as authority for the proposition that it is only where other factors appear to be evenly balanced that the court should take such measures as are calculated to preserve the status quo. Ms Barden acknowledges the relevance of two further guidelines. The first is that where the order sought will, in practice, finally dispose of the issues between the parties, because it is very unlikely that there will be any final hearing, or where it will not be possible to hold the trial before the time at which the interim relief may expire, then the court must consider the relevant strengths of each party's case when it considers the balance of convenience. Secondly, where it is a mandatory order that the applicant is seeking, the court is more reluctant to grant such an order. The court requires a greater degree of assurance that the applicant will ultimately be successful on the merits. Ms Barden sums this up by saying that in such circumstances, the case must be unusually strong.

Turning to the serious question to be tried, Ms Barden submits that the claimant's case is straightforward. The claimant has an equitable interest in the property by virtue of the grant of the option. As an adjunct to its proprietary right, the claimant also has a right conferred by clause 9.1.2 of the option agreement to enter upon the property on reasonable notice for the purpose of inspecting and/or assessing its suitability for development, and/or conducting surveys, and for any other reasonable purpose. The corollary of that right is that the grantors under the option agreement must permit the claimant to enter on to the property in the circumstances specified in clause 9.1.2. Should the grantors do otherwise, then they would be derogating from the grant of the option.

It is the deceased and the second defendant who are joint proprietors of the property. They were also the grantors under the option agreement. They undertook any obligations contained within it as joint and several obligors. During the deceased's lifetime, he and the second defendant were obliged to permit the claimant to enter onto the property, for the purposes set out in clause 9.1.2, on reasonable notice, and subject to the provisos therein contained. Ms Barden submits that the death of the first grantor, the father, does not impact upon that. The deceased's legal estate has vested in his surviving joint proprietor, the second defendant. In any event, any several liability has passed from the deceased to his administrators. The burden of the option devolves on the personal representatives of the grantor since it was not personal to the deceased. The terms of the option agreement make it clear that it was neither personal nor intended not to devolve.

I accept those submissions. I find that the second defendant remains bound by the burden of the option agreement, and that any several liability passed to the first and second defendants, as the deceased's personal representatives. I am satisfied that, subject to the validity of the option agreement, the rights in clause 9.1.2 remain enforceable by the claimant, and that neither of the defendants is entitled to derogate from the rights granted by that subclause. The second defendant is the legal owner of the property as the surviving joint proprietor. In her capacity as co-administrator with the second defendant, the first defendant is also bound by the terms of the clause 9.1.2.

I turn then to the matters raised in the first defendant's witness statement and skeleton argument. Ms Barden submits that in relation to each of the points taken by the first defendant, the claimant not only has a real prospect of success, but its case is, as Ms Barden puts it, unusually strong. So far as the objection that the option agreement was not executed by deed is concerned, I am entirely satisfied that there was no legal requirement for the option to be executed by deed. An option to purchase land does not operate as a conveyance of the land, which needs to be effected by deed. It takes effect in contract and is therefore governed by the provisions of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989.

In the present case, there were two versions of the option agreement. One was signed on behalf of the claimant, and the other was signed by the deceased and the second defendant. The first defendant takes the point that the two agreements were not in the same terms. Ms Barden has taken me to one clause in the option agreement at clause 12.3, where the two versions differ in that the names of the parties to the option agreement are missing from the version signed by the grantors, whereas they have been inserted in manuscript in the version signed on behalf of the company.

Ms Barden has submitted that those are minor variances which, in the case of Storer v Manchester City Council [1974] 1 WLR 1403, were held by the Court of Appeal not to render the resulting contract unenforceable. She has taken me to a passage in the leading judgment of Lord Denning MR at page 1408 letter E. There he indicated that he appreciated that there was one space in the form that had been left blank, but that did not mean that there was no concluded contract. It had been left blank simply for administrative convenience. Lord Denning cited from an earlier case where it had been said that there was nothing left for the parties to do but to agree the date. Its insertion in the already signed document could be nothing but an administrative tidying up, to be done at the solicitor's convenience. So, in the case before the Master of the Rolls, the date was just a matter of administrative tidying up to be filled in by - in that case - the town clerk with a suitable date for the date on which the tenant ceased to be such and became the purchaser.

I accept that submission. But, in any event, it seems to me clear that there would have been a common continuing intention that the relevant document should contain the names of the parties to the option agreement. Rectification for common mistake would, in those circumstances, be available; and such rectification would result in the contract coming into being, or deemed as coming into being, at such time as might be specified in the rectification order, pursuant to section 2(4) of the 1989 Act.

The first defendant makes a much more substantial point. She says that there is no evidence that the grantors' part of the contract, signed by the grantee, was signed by anyone with authority to do so on behalf of the claimant grantee. As I have already indicated, that is a point that was not flagged up in either the defence or the first defendant's skeleton. As I have indicated, Ms Barden has been able to tell the court, on instructions, that the signatory to the contract on behalf of the claimant grantee was the former chief executive officer of the claimant. I am prepared to accept an undertaking that that indication will be reduced to written evidence. I proceed on the basis that that is the case.

Nevertheless, Ms Barden recognises that she has to establish at least a serious issue to be tried as to whether the actual signatory had the requisite authority to contract on behalf of the claimant. She submits that the version of the contract that is before the court, signed on behalf of the claimant, complies with the requirements of section 43(1)(b) of the Companies Act 2006. This states that a contract may be made on behalf of a company by a person acting under its authority, express or implied. Ms Barden notes that in Redcard Limited v Williams [2010] EWHC 1078 (Ch), Lewison J stated (obiter) at paragraph 12 that section 2 of the 1989 Act requires compliance with section 44 of the 2006 Act. That section requires a document to be executed by a company by the affixing of its common seal. or by signature in accordance with the following provisions of section 44. These require a document, if it is signed on behalf of the company, to be signed either by two authorised signatories, or by a director of the company in the presence of a witness who attests the signature, for it to be validly executed.

Ms Barden submits that compliance with section 44 is not necessary. That, she says, is because the effect of the combination of the wording in section 43(1)(b) of the Companies Act 2006 and section 2(3) of the Law of Property (Miscellaneous Provisions) Act 1989 is that an option agreement can be signed on behalf of a company by its director. That is because section 2(3) provides that the part of the exchanged document signed by the company must be signed by or on behalf of the company; and that imports the provisions of section 43(1)(b).

Ms Barden submits that the authorities subsequent to Lewison J’s observations in Redcard support that conclusion. She submits that those observations were obiter, and proceeded without any analysis. There appears to have been no argument before Lewison J that section 43(1)(b) provides a separate basis for a company to enter into a contract for the sale or other disposition of an interest in land, nor any detailed consideration of the inter-relationship between sections 43 and 44. Ms Barden has referred me to observations of Mr Murray Rosen QC in the case of Mars Capital Finance Limited v Hussain [2021] EWHC 2416 (Ch), in particular at paragraphs 94, 97 and 106.

The matter was considered more fully at a higher appellate level by the Court of Appeal in the more recent decision of Northwood (Solihull) Limited v Fearn [2022] EWCA Civ 40, reported at [2022] 1 WLR 1661. The leading judgment was delivered by Lewison LJ, with whom Newey and Snowdon LJJ agreed. I note that although not referred to in Lewison LJ's judgment, his earlier decision in the Redcard case had been cited, either in argument or in the skeleton arguments: see page 1662, letter H of the report. At paragraph 13, Lewison LJ observed that section 43 of the Companies Act 2006 deals with the making of contracts by a company. One way in which this can be done is by a person acting under the company's express or implied authority. No particular formality is required beyond any formalities that would apply to a contract made by a natural person.

Drawing all these authorities together, Ms Barden submits, and I accept, the following: (1) At its lowest, the claimant's position that the signature of a director on behalf of a company is sufficient for the purposes of section 2 (3) of the 1989 Act is seriously arguable. That argument is consistent with the general law on the formation of contracts on behalf of companies. There is nothing in section 2(3) of the 1989 Act, or in that Act more generally, which displaces that.

In my judgment, the claimant's position is more than seriously arguable. I accept that section 2(3) of the 1989 Act permits a contract for the disposition of an interest in land, such as the grant of an option, to be made by way of counterparts. The first defendant has identified no specific discrepancies between the two counterparts signed respectively by the deceased and the first defendant as grantors and by the claimant company as grantee. Ms Barden has identified one such discrepancy; but, for the reasons I have already given, I am satisfied that that does not invalidate the exchange of contracts.

I am satisfied for all those reasons that, so far as the first stage of the American Cyanamid inquiry is concerned, the claimant has demonstrated a serious question to be tried. Indeed, on the material presently before the court, I am satisfied that the claimant has an unusually strong case for the validity of the option agreement.

Ms Barden recognises that the remedy of specific performance is a discretionary one. However, that discretion falls to be exercised in accordance with fixed equitable principles. The court will generally grant specific performance of an agreement for the disposition of an interest in land because of the unique qualities attaching to any particular parcel of land.

So far as the exercise of the court's discretion to grant the interim relief sought is concerned, from the evidence of Mr Burkinshaw and of Ms Holley's first witness statement, I am satisfied that the claimant has shown good grounds for concluding that, without allowing the claimant entry on to the property imminently, it will be unable to proceed with pursuing an application for planning permission, with the consequence that the option agreement may automatically terminate on 5 September 2027. As Ms Barden puts it, and contrary to what is said by the first defendant in her skeleton argument, refusing access to the land will not merely delay the project, but its effect may be terminal.

I am satisfied that there are good grounds for granting the interim relief sought. This will enforce the claimant's equitable proprietary interest in the property. The evidence is that the claimant may suffer substantial damage if it is unable to develop the property because it may become unable to make its planning application in time. It estimates its loss of profits at no less than £8.5 million. Mr Burkinshaw estimates the value of the property, and the remaining land within the registered title, at just over £6 million. There is the additional feature that any damages claim has attached to it a level of uncertainty, in view of the difficulty of knowing what would have happened if there had been no breach; in particular, whether planning permission would have been obtained.

To sum up on the question of serious issue to be tried, at this stage of the litigation the only defence with any trace of arguability is whether section 2(3) of the 1989 Act requires the claimant to have complied with section 44 of the Companies Act 2006. On that, the claimant clearly has demonstrated a triable issue. Indeed, the resolution of that issue would appear to lean more strongly in the claimant's favour than the defendants’.

I am satisfied that the claimant has met the threshold of having an unusually strong case for the purposes of the grant of interim relief, even in the mandatory form which is presently sought. I have already touched upon the issue of damages. The delay in assessing the site is potentially terminal for the ability of the claimant to exercise its option. The first defendant's skeleton argument asserts irreversible consequences if access is granted. There is, however, no real evidence that any damage will be caused to the defendants if the claimants go on to the land. Many of the season-specific surveys are observational. Even to the extent to the claimant needs to carry out ground investigations or excavations, the proviso to clause 9.1.2 provides adequate protection to the defendants. The claimant has an obligation both to cause as little damage and inconvenience as possible, and also to compensate for any damage that cannot be made good.

The parties to the option agreement themselves have already allocated the risk of any conceivable damage that could be caused by the claimant's entry upon the land. They have identified that it is capable of being compensated financially. It is clear on the evidence that the claimant is well-able to meet any award of damages; and it offers the usual cross-taking in damages. Conversely, the defendants' financial means are insufficient to meet the level of potential loss of profit to which Mr Burkinshaw speaks.

Since damages would be inadequate for the claimant, but adequate for the defendants, strictly the court does not need to consider the balance of convenience. Nevertheless, this would seem to lie in favour of granting the interim relief sought. The claimant's evidence is clear that unless it has access to the farm land for the seasonable surveys which need to start by the end of May 2026, it will be unable to submit a planning application before 5 September 2027. Assuming that the hearing on 24 May does not finally determine the claimant's claim, it will clearly not be determined substantively before the end of May 2026 when the seasonable surveys need to start. The absence of the interim relief sought will therefore render any final relief pointless.

In conclusion, given the relative strength of the claimant's case, the lack of strength of the defendants' defences, the inadequacy of damages for the claimant, but the sufficiency of damages for the defendants, everything points towards the grant of interim relief rather than withholding it. So, for those reasons, I propose to grant the interim relief sought by the claimant.

That concludes this extemporary judgment.