Jesus Sanctuary Ministries Limited v Ruby Properties Limited

This matter comes before the Court on the appellant's oral renewal application for permission to appeal the order of His Honour Judge Parfitt, which granted the respondent to the appeal possession of the premises at number 639 to 641 of the Old Kent Road in SE15 in the London Borough of Southwark (“the Property”), and dismissing the appellant's counterclaim, and also an appeal against the order of costs in the sum of £52,809.

The appellant was the defendant in the proceedings which are the subject of this appeal, and the respondent to the appeal was the claimant below. I will refer to the parties as “the appellant” and “the respondent”.

Also, before me was an application lodged by the respondent in which they applied for a limited civil restraint order (“CRO”) pursuant to CPR 52.20(5), and for a lifting of the stay of execution imposed in the order of Sir Stephen Stewart on 18 September 2024. The application for the limited CRO fell by the wayside; insufficient time had been provided. But in any event, whether asked to or not, a Court should always consider whether any application, including an application for permission to appeal, is totally without merit and where it is, to say so, and, when appropriate to consider whether a CRO ought properly to be imposed.

Permission to appeal was refused on the papers by Martin Spencer J on 31 January 2025. In correspondence from the appellant to the Court, the appellant has criticised the order of Martin Spencer J. I can reassure the appellant that I have considered the matter afresh and reached my own judgment on the appeal with the benefit of both the appeal bundle and all the documents filed in support and the oral advocacy today.

I also noted the letter dated 18 December 2024 which explained why the skeleton argument could not be limited to 15 pages because of the complicated history and background to this matter. I can confirm that I have considered all 21 pages and understand why it was difficult for the appellant acting as a litigant-in-person at that stage to marshal all the arguments and cover all the points in fewer pages than 21.

This case started as what appeared to be a straightforward application for summary judgment in possession proceedings brought by the respondent against the appellant for the Property.

His Honour Judge Parfitt refused to deal with the matter summarily and noted that there was a complex history and identified, at that stage, three issues for trial to determine the case and made directions on 12 January 2024. The three issues at that stage were: (1) if heads of term, dated October 2022 (“HOT22”) were binding notwithstanding being marked subject to contract; (2) if the HOT22 became binding because of the parties' conduct in relation to themthereafter; and, (3) if they became binding, did they cease to become so, if so when?

A three-day trial was held on 27th to 30th July 2024 and in his ex tempore judgment (“the HHJ Parfitt Judgment”), the judge found that the third issue fell away on the pleadings and the evidence and in light of the judge's conclusions on issue (2).

The background was set out in the HHJ Parfitt Judgment. Briefly, the appellant is a limited company and a church led under the guidance of Prophet Ndekwu who is its guiding light and director of the company. It occupied premises as a sub lessee in an area adjacent to the Old Kent Road that was purchased by the respondent for a substantial large-scale development (“the Site”). Planning permission was granted for the Site on 6 June 2019 including a section 106 agreement in relation to pre-existing businesses on the Site, of which the appellant was one.

The appellant left its original premises which were in nearby Ruby Street and temporarily relocated to the Property in April 2021 on a two-year rent-free lease and negotiations continued with the respondent for the possibility of a permanent relocation. The respondent’s planning permission included an obligation not to carry out any demolitions until a business relocation and retention strategy (“BRRS”), had been submitted to the council, the council had approved the strategy in writing (such approval not to be unreasonably withheld or delayed). It also required, under paragraph 3.2 of schedule 3 for implementation of the BRRS for the duration of the construction of the development. A BRRS has a definition which is set out in paragraph eight of the HHJ Parfitt Judgment as follows:

“Including but not limited to: an assessment of the needs of those required to be relocated either temporarily or permanently in order to facilitate the construction of the development and details as to how regard has been had to the individual needs of each business, organisation and church; details of any assistance that has and/or will be provided to those required to be relocated either temporarily or permanently in order to mitigate the impact of any such relocation; evidence that any such relocation is suitable for the viable continuation of the businesses, organisation and church; and the temporary and permanent relocation options that have been offered and whether or not such offers have been accepted.”

It did not require a particular business to be relocated, only to offer options, undertake the assessment and have regard to the needs of the business, as set out in the definition itself, as was identified by the Judge in paragraph nine of the HHJ Parfitt Judgment. For reasons which remain mysterious, the RBBS has not yet been approved but work commenced on the development in May 2022 and is continuing. There is already considerable concrete and structures and the skeleton of the building that are developing.

However, in the intervening period there was separate litigation between the parties that is not relevant for the purposes of this judgment, save as where identified. I note that there was an order by Master Teverson on 21 August 2020 in part of his order concerning an application for possession and a counterclaim by the appellant that the respondent would use its best endeavours to obtain London Borough of Southwark approval to the RBBS within four months as follows:

“To use its best endeavours to obtain the Council’s approval, required by paragraph 3.1 of Schedule 3 of the s.106 agreement dated 6 June 2019 of the BRRS within four months of the date of judgment. [i.e. 21 August 2020]”

That undertaking (“the Undertaking”) given by the respondent and imposed by the Court expired therefore, absent other circumstances, on 22 December 2020.

The first issue decided by the Judge in the HHJ Parfitt Judgment was that the Heads of Terms HOT22 were not legally binding. The Judge explained in his careful findings at paragraph 18 through to 38 that the heads of terms were subject to contract and that there was no legally binding contract made between the parties and reliance therefore could not be made by the appellant on the heads of terms.

“32.

The heading of the signed HoTs reads: “Heads of Terms… For the signing of the lease for occupation of 639 and 641 Old Kent Road, London, SE15 1JU… Subject to Contract.” There is then a table with numbering from 1 to 11, and the next column identifying the date, then the Landlord, then the Tenant, etc. The next column sets out the HoTs agreed. This includes at 11, “Further terms agreed by the Landlord: the Landlord will make a one-off payment of £350,000…” which was said to be paid “on the signing of the lease agreement.”

33.

The reason I particularly quote this is that it is relevant to various points made about this document.

34.

The first point I’m going to deal with is the Defendant's argument that STC meant subject to “this” contract. That requires STC to be construed so that the condition of the document being STC lapses once it is signed. It seems to me that this is wrong for three fundamental reasons which I set out in the next paragraphs.

35.

First, this is not what STC means, particularly in this context, property law, and all the authorities I have been referred to. When parties say subject to contract they are not intending to be bound as a matter of law on the documents exchanged between them because they are making it conditional on a subsequent written agreement. That of itself would mean that the mere signature of the HoTs did not intend the HOTs to be binding. On the contrary, absent other circumstances signing a document containing the words "subject to contract" rather confirms the status of the document as being "subject to contract". There is nothing in the emails or in the evidence that would change that conclusion arising on the facts of this case. Theoretically, there can be circumstances where parties by words of conduct take a position of “we are sending as STC, but if you are happy with the terms, please sign and assume this is our contract,” but this is not the case – there is no email or evidence that comes close to that. There is nothing outside of this document at would indicate that the STC designation was limited to the offer contained in the Heads of Terms rather than being a condition applicable to the HOTs as signed.

36.

Second, the wording immediately under the HoTs, “For the signing of the lease,” is indicative of there being a requirement for a lease to be signed in due course, and these particular HoTs would be reflected in that lease. The lease in question can’t objectively be construed as being this document itself – the envisaged contract is a lease to be signed in the future. The HOTs are a step closer to that contractual destination but are not themselves a document which creates legally binding rights and obligations because the HOTs are subject to contract.

37.

Third, which is perhaps supportive of the second reason, relates to box 11, which talks of the £175,000 being paid on “the signing of the lease agreement.” It was envisaged to take place in the future, once signed, the Defendant was going to get £175,000, and after 6 months, another £175,000. So that envisaged £175,000 was to be paid when the lease was signed, if that was part of the parties’ final agreement.

38.

For those three reasons, there can be no answer but that this document was a HoTs subject to contract. It was of no legal effect. This is a matter of objective construction of the document. The parties were indicating how far their negotiations had got to. As a matter of law, either side was free to change their mind or back out of matters set out in the HOTs. Nevertheless, given the parties had been going at it for 18 months at this point, it was worthwhile to document that they got this far and it led directly to the next step that the parties were able to take.”

The heads of terms HOT22 had no legal effect. The Judge returned to the matter at paragraph 47 and reiterated his point. The undertaking expired in the order of Master Teverson on 21 December for the reasons set out.

The second issue, which disposed of the third issue, was estoppel. The judge set out the well-known principle that one cannot found an estoppel on a subject to contract agreement relying on the Generator case [2018] EWCA Civ 296. Issue two, therefore, did not get past the first requirements. See paragraph 50 of the judgment. In any event there had been no detrimental reliance.

On the basis of the Judge's findings and consideration of the evidence over a three-day hearing and having heard the arguments of both parties, possession was ordered.

There are 10 grounds of appeal before the Court today. It was common ground that the 10th ground of appeal, which challenges the costs assessment by the Judge, cannot properly be dealt with, without first having an agreed note or transcript of why the Judge reached the conclusion that costs should be awarded on an indemnity basis.

In fairness to both parties, I therefore will park the issue of ground 10 and make further directions agreed between the parties as to how this may be advanced. They included that the parties should have 28 days in which to prepare an agreed transcript of the relevant parts of the hearing and judgment to be approved by the judge himself within 28 days. Also, for the appellant to have a further 14 days to make written submissions in support of this ground of appeal and the matter will then be referred back to me on the papers for a decision, given that the parties have had the opportunity to make oral representations today. However, if Ms Doliveux considers that a further hearing is essential to resolve this ground of appeal, then an application must be made which I will consider.

However, I point out to the appellant that it was incumbent on it to have all the documents necessary before the Court in order to resolve the question of permission to appeal at this oral hearing and I have been somewhat indulgent by allowing a further opportunity to provide for me reasons for the impugned part of the judgment challenged in relation to ground 10 and will not lightly grant a further hearing unless it is absolutely necessary.

In relation to grounds one to nine, however, I am able to make a decision today. Under CPR 52.6, paragraph one, permission to appeal may be granted only where the Court considers an appeal would have a real prospect of success or there is some other compelling reason for the appeal to be heard. It is not submitted to me that there is some other compelling reason, but it is submitted to me that there is a real prospect of success in the grounds of appeal. Grounds one to three are challenges to the Judge's conclusion that the undertaking was not legally binding and that the heads of terms HOT22 were not subject to contract and the remaining grounds were more procedural matters. Going through each of the grounds, these are my conclusions.

The first is a criticism of the Court below for failure properly to assess the Undertaking's status. This argument is not borne out by a close reading of the HHJ Parfitt Judgment. The judge sets out clearly and carefully why it is that the wording of the HOT22 that expressly state that they were subject to contract means exactly that: that there was no legally binding contract.

Having concluded that the written words stating that the HOT22 were “subject to contract” took precedence in the HOT22, it was then quite unnecessary for him to conduct the detailed trawl through the evidence urged upon me by Ms Doliveux today.

The Judge’s findings and conclusions on the Undertaking were as follows:

“16.What the Defendant said to me was that the result of that undertaking was that the Claimant had to relocate the Defendant. In my judgment, that is wrong and it’s wrong because the undertaking says nothing of that kind and neither would it have necessarily done that if the Council had approved the BRRS (either within 4 months or at all). All the undertaking did was to oblige the Claimant to use its best endeavours to obtain the Council’s approval – “best endeavours” does not promise that something would be achieved, but that they would try as hard as they can. And in this case, it wasn’t just to get the Council’s approval, but to get it within 4 months. After the 4 months came to an end on 20 December 2020, assuming that the BRRS had not been approved as at that date, either the undertaking had been complied with or it hadn’t. I cannot answer that on the evidence and was not asked to answer that.

17.Thereafter, the undertaking had fallen away in terms of its practical consequences: it covered a 4-month period, and during that period best endeavours had to be used to bring about the event within 4 months. If that hadn’t happened, the undertaking was no longer binding. The undertaking was essentially time limited.

18.The Defendant’s case was premised on the existence of that undertaking having a necessary impact on the STC negotiations and agreement in October 2022. In my judgment, that is unsustainable because the undertaking wasn’t in effect at that time. However, even if it had been, it wouldn’t have had any relationship to the commercial negotiations regarding the lease. Those two things are independent. Neither the BRRS nor the undertaking created any enforceable private law rights in favour of the Defendant which are material to its occupation of the premises or that would require the Claimant to agree a lease with the Defendant.”

The Judge's reasoning was impeccable and followed the clear and well-known legal principles by which such matters should be decided. The Judge was clearly right in his interpretation and analysis of both the evidence and the law and the submissions of the parties.

I drilled down today to try better to understand the arguments being put forward by the appellant and by looking at three specific documents, (C210, C427 and C451) each of which were urged upon me to demonstrate how the Judge had fallen into error. An analysis of those emails demonstrates that this was not an Undertaking that was being relied on after the expiry of the term put forward by the Master, and that it was very clear in the correspondence that the negotiations were exactly that: negotiations, trying and hoping to reach an agreement. However, because the HOT22 were subject to contract and no agreement had been reached beforehand, and because the respondent was trying to do a deal rather than face the acrimony and time consuming nature of litigation, not because it felt obliged to do so because of the terms of a legally binding undertaking.

There is nothing in ground one to three in spite of Ms Doliveux's valiant attempts to argue otherwise and I am grateful to her for her assistance and her tenacity in seeking to argue the points today. The remaining points, as conceded, were more procedural and went to the issues of fairness and how the judge approached the trial. There is nothing in these criticisms. It is apparent from the HHJ Parfitt Judgment that the Judge was paying close and fair attention to all the arguments put forward by the appellant, balanced against the submissions of the respondent and he was entitled to reach his conclusions on the evidence that he took into account. He did not overlook key evidence, but only the evidence that was not relevant to the issues that he had to decide. No more needs to be said about the grounds than that there is no demonstrable error in the procedure adopted and the Judge was clearly following the overriding objective in his approach to this case.

I find that there is no real prospect of success in relation to any of grounds one to nine and I refuse permission to appeal accordingly.

I have already explained that I cannot make a decision on ground 10 in the absence of the Judge’s reasons and have set out above the further steps that need to be undertaken prior to a determination of this issue. I have rejected the application for permission to appeal on grounds one to nine for the reasons set out above. The grounds lack merit, as did the original arguments before the judge. The grounds I have considered so far were totally without merit in the sense that they were bound to fail. However, I draw back from making such a declaration because I have not yet made my findings in relation to ground 10 and it is only fair to wait until I have done so before it can be said whether or not the application was totally without merit.

Since I am not at this stage making a totally without merit order, I may come back to this when I consider ground 10, and since at the moment there is only one totally without merit order, the circumstances in which a limited civil restraint order may be considered have not yet arisen and no more need be said about it.

The final matter for determination is the application by the appellant for the stay of execution following the September 2024 order of Sir Stephen Stewart to continue pending resolution of ground 10 and Ms Hughes’ application that the stay of execution to be lifted immediately.

My conclusion is this: by my refusal of permission to appeal the possession order in grounds one to nine, it follows that the stay of execution of the possession order must also be lifted today. However, the stay of execution in relation to the costs order will remain in place because at the moment we do not know if there are grounds for challenging the costs order. The parties sensibly agreed to try and agree a date for when possession might be granted.