Toner v Telford Homes Ltd & Ors

This is my Judgment in relation to various Applications to strike-out or for reverse summary judgment, made in: Claim QB-2019-004230 (“the High

The Claims arise from Mr. Toner’s purchasing and being granted and subsequently holding a long lease (“the Lease”) of Flat No. 57 (formerly Plot No. 229), Courtyard Apartments, 3 Avantgarde Place, London E1 6GU

The High Court Claim was issued in the High Court (Queen’s Bench Division) on 27 November 2019. The County Court Claim was issued, first in time, on 13 May 2019 (but see below) in the County Court at Central London. However, by Order of 28 October 2020 I transferred it to the High Court (Queen’s Bench Division) under the statutory power conferred by section 41 of the County Courts Act 1984, it being clearly desirable (as was the position of all the parties) that these applications be dealt with altogether at this particular point.

Mr. Toner’s claims, as set out in his Particulars of Claim in the two Claims are, in effect, that:

It is the existing claims which the Applying Defendants have sought to strike-out on various grounds or to contend for reverse summary judgment

Mr Toner has intimated some, in fact many, other claims during the course of the hearing, but it seems to me that they would require amendment of the relevant Particulars of Claim, and that this Judgment should deal with what is actually contained within Mr Toner’s present statements of case. Any question of amendments can be left to the post-Judgment hearing.

Mr Toner has been acting in person throughout (with some assistance from a lay McKenzie friend) and has been faced with three opposing counsel (and a fourth counsel observing). I have therefore been concerned that he should have had a full opportunity to put his case; and I have had full regard to Civil Procedure Rule (“CPR”) 3.1A and the fact that he has not had legal representation. Nevertheless, and as made clear by the Supreme Court in Barton v Wright Hassall 2018 UKSC 12 at paragraph 18, Mr Toner is subject to the CPR and their Practice Directions (“PD”) as is any other litigant whether legally represented or acting in person.

In those circumstances, and in major part to assist Mr Toner, I conducted the hearing, as he had requested and notwithstanding the COVID-19 pandemic and consequent statutory restrictions, on a hybrid partly “face-to-face" (with Mr Toner and various counsel physically present in a courtroom) basis on 21 and 22 October 2020 and then 5 November 2020. This followed all parties having adduced substantial witness statements and exhibits (running to some four lever arch files, albeit with substantial duplication) and opening written submissions (counsel by Skeleton Arguments and Mr Toner by a Position Statement). During those days, I allowed in certain further written material including a substantial further witness statement from Mr Toner (and which effectively included various further written submissions).

As by the end of 5 November 2020 Mr Toner had not had quite the time for his oral submissions which I had intended, I gave him permission and time to put in further written submissions with counsel to respond in writing. Notwithstanding my granting him at his request a number of extensions of time, I ended up (notwithstanding opposition from the applying Defendants) making an “unless” direction that Mr Toner’s permission to adduce further written submissions would cease (that being a lesser sanction than the dismissal sanction which Mr Toner had himself suggested that I should make) should he not provide his further written submissions by 4.30pm on Friday 4 December 2020. However, notwithstanding my having made clear that this was a time-limit with a specific sanction and that something would be much better than nothing, Mr Toner only sent his material over the weekend and on the following Monday (7^th December). That material comprised a very substantial further document described as a “witness statement” (and which was a mixture of evidence and submissions) and substantial exhibit.

I provisionally concluded that considering the overriding objective, CPR3.9 and applying a Denton v White 2014 1 WLR 3926 (“Denton”) analysis to what appeared to be an informal application from relief from my “unless order” sanction, I should permit, but only permit, Mr Toner to rely upon certain case-law and legal submissions contained within his documents; and I set out my provisional decision in a fully reasoned email to the parties of 8 December 2020. I gave all parties an opportunity to seek to disturb those provisional conclusions and directions. Only Mr Toner sought to persuade me to do so by a number of lengthy emails explaining his mental state and the various pressures which he said he was under and what he said he was being subjected to by the Defendants.

I reconsidered the matter but concluded as set out in my emails of 14 December 2020 that my provisional conclusions were the correct answer, being such as to enable justice to be properly done in all the circumstances of the case (the third stage of the Denton analysis); and principally because I am concerned with the existing Particulars of Claim (which is the case that the Applying Defendants are seeking to attack) and with legal (rather than factual) submissions on applications seeking to attack them on strike-out and summary judgment bases (and as I set out below), and I consider that it is the material which I have permitted which is that which is relevant to my being able to determine the legal attacks which are being made on those Particulars of Claim. New matters are (if at all) for subsequent attempts to amend, and much of what Mr Toner sought to advance was new material or either repetitious or not such as to impact upon what are the “legal” questions which I have to decide. I also had to bear in mind and give weight to the “unless” order which I had made in the above circumstances, and the importance of avoiding undue pressure being exerted on the Applying Defendants or the Court by way of the adducing of new material at a very late stage.

Thereafter, I have received further responsive submissions (with some additional authorities) from the Applying Defendants lastly on 30 December 2020. I have borne these and the submissions and material from each of the parties (including Mr Toner) in mind in considering and reaching this Judgment. If I do not mention any matter specifically that is due to considerations of time and space and not because I have not considered it.

I would add that as Mr Toner is not legally qualified, I have tried to be astute to raise with counsel, and him, matters of law and certain authorities which appeared to me to have possible relevance to the issues which I have had to decide. Counsel have also sought to comply with their professional duties to the court to draw material authorities (even if against their own propositions of law) to my attention. It does seem to me that this has assisted and enabled me to consider the legal issues on a fully informed basis.

I also add that an issue arose with regard to whether certain “without prejudice” correspondence was admissible in evidence. Little time was taken up with this and I am unclear as to what was the parties’ final positions. However, and while I have grave doubts as to whether it could possibly be admissible, it was essentially irrelevant (as it did not contain any relevant admissions) and I have put it out of my mind in coming to this judgment.

The Applications are made both under CPR3.4(2) and CPR24.2.

CPR3.4(2) provides that: “The court may strike out a statement of case if it appears to the court – (a) that the statement of case discloses no reasonable grounds for bringing... the claim;

CPR24.2 provides that: “The court may give summary judgment against a claimant...on the whole of a claim or on a particular issue if –(a) it considers that –(i) that claimant has no real prospect of succeeding on the claim or issue... and (b) there is no other compelling reason why the case or issue should be disposed of at a trial”

The Applications are brought under CPR3.4(2) under a number of bases, being that it is said that:

The Rule which is said to be potentially relevant is CPR16.4(1)(a) which provides that Particulars of Claim must include “a concise statement of the facts on which the claimant relies.” together with certain other specific matters including those set out in the Practice Direction to CPR Part 16 (“PD16”). It is submitted, and I agree, that Particulars of Claim are to set out the facts upon which a Claimant relies in order to establish their cause(s) of action upon which they rely and the remedy (including as to quantum) which they seek. However, they are not to set out the evidence upon which they will rely to seek to prove those facts (although they can set out secondary facts from which certain primary facts may be inferred) or a general history (see e.g. White Book notes 16.4.1 and Hague Plant v Hague [2014] EWCA Civ 1609 and paragraph 30 of Portland Stone v Barclays Bank Plc [2018] EWHC 2341 and which I set out in full below), although there is often a tension between assertions that a statement of case is both over-long in terms of including evidential material and over-short in not stating enough to amount to reasonable grounds for the causes of action advanced and remedies sought, and where the Court will afford some latitude to prevent potentially meritorious cases being struck-out on technical pleading grounds.

Paragraph 8.2 of PD16 provides that “a Claimant must specifically set out the following matters in his particulars of claim where he seeks to rely on them in support of his claim: (1) any allegation of fraud... (3) details of any misrepresentation... (5) notice or knowledge of a fact.”

However, there remain various other (and which might be said to commonlaw) rules of pleading, contravention of which will make the relevant elements of a statement of case vulnerable under one or more elements of CPR 3.4(2) (as meaning that reasonable grounds for a cause of action are not identified or that the statement of case is an abuse or otherwise likely to obstruct the just disposal of the proceedings). In particular, allegations of certain serious matters, including fraud (and dishonesty), must be clearly pleaded with adequate particularity and allegations of relevant subjective elements (i.e. states of mind) must be supported by allegations of primary facts from which (without anything else) it is more likely than not that an inference of the relevant matter would be drawn. This latter point also applies in a sense to allegations of dishonesty, although, since that is now an objective matter (see Ivey v Genting [2017] UKSC 67), it is the facts from which a reasonable person would consider as to amounting to dishonesty which must be pleaded.

The Applying Defendants also seek reverse summary judgment under CPR24.2. Unlike under CPR3.4, evidence can be and has been adduced by both side. The Applying Defendants accept that they need to show that the Claimant has no real prospect of success (and there is no compelling reason for a trial) on one or more claims or issues. There is a potential overlap with abuse of process although, rather than merely considering the pleadings, the Court will also consider the evidence before it. However, the Court will generally not engage in any mini-trial, although it may ask whether the Claimant lacks a real prospect of establishing a contended fact or whether a document can be construed safely (and without reference to any genuine disputes as to its factual matrix).

Thus, while the Applying Defendants contest that various matters are not properly pleaded at all, and while it may be open to the Applying Defendants to seek to challenge what the Claimant says and pleads are the material facts upon which the Claims are based (and I do consider this at points below), much of the essence of the Applications under both CPR3.4 and CPR24.2 are submissions from the Applying Defendants that, even assuming that those facts are established, they do not give rise to claims in law or, at least, claims which have a real prospect of success. Thus, subject to my having to consider various specific attacks upon the Claimant’s pleadings and assertions of fact, I proceed on the basis that those facts will be proved if the matter goes to trial and ask myself then as to whether, in such circumstances, the Claimant would (or would not) succeed (or has a realistic prospect of success) in law in relation to his various claims and particular issues.

Those propositions, which I do not think that anyone sought to dispute, are justified by various authorities and in particular by the following citations.

In Media Entertainment v Karagyydev 2020 EWHC 1138 (which was cited to me) at paragraphs 50-56 I said:

“The CPR

CPR3.4(2) provides that: “The court may strike out a statement of case if it appears to the court- (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) that the statement of case is an abuse of the court’s process or otherwise likely to obstruct the just disposal of the proceedings; or (c) that there has been a failure to comply with a rule, practice direction or order.”

In principle, on the wording of the rule, the question of whether there is jurisdiction to strike-out under sub-paragraph (a) in circumstances of the nature of those before me involves simply a determination as to whether the wording of the statement of case, assuming the facts stated to be proved, discloses a cause of action in law, being a genuine and serious dispute, which could justify the relief sought – see White Book 3.4.2. Mr Burton has also drawn my attention to a passage in Altimo Holdings v Kyrgyz Mobil 2012 1 WLR 1804 where at paragraph 84 Lord Collins stated that “it is not normally appropriate to strike out (or grant summary judgment) so as to decide a controversial question of law in a developing area, particularly because it is desirable that the facts should be found so that any further development of the law should be on the basis of actual and not hypothetical facts…”

CPR3.4(2) is, however, itself discretionary, being introduced by the word “may”, and which brings into play the overriding objective in CPR1.1. Thus, for example, if a statement of case does not disclose reasonable grounds, the court may often allow an opportunity for amendment, and the court will consider what is the proportionate response in relation to all aspects once one of the jurisdictional conditionals in the three sub-paragraphs of CPR3.4(2) is established.

CPR16.4(a) provides that Particulars of Claim must include “a concise statement of the facts on which the claimant relies”.

The Practice Direction to CPR Part 16 (“PD16”) in paragraph 8.2 provides that “a claimant must specifically set out the following matters in his particulars of claim where he wishes to rely upon them in support of his claim: (1) any allegation of fraud… (5) notice or knowledge of a fact.”

CPR24.2 provides that “The court may give summary judgment against a claimant… on the whole of a claim or on a particular issue if- (a) it considers that- (i) the claimant has no real prospect of succeeding on the claim or issue… and (b) there is no other compelling reason why the case or issue should be disposed of at a trial.”

It is common ground that in approaching the CPR24.2(i) test of “no real prospect” the court applies the principles summarised in NCC Skills Ltd v

Applications for summary judgment are governed by CPR 24 . CPR

that claimant has no real prospect of succeeding on the claim or issue; or

that defendant has no real prospect of successfully defending the claim or issue; and

there is no other compelling reason why the case or issue should be disposed of at a trial.”

There is no dispute between the parties as to the principles to be applied on an application for summary judgment. As was pointed out by Mr. Andrew Latimer, those principles were conveniently summarised by Simon J (as he then was) in JSC VTB Bank v Skurikhin [2014] EWHC 271 at paragraph 15.

The Court must consider whether the defendant has a ‘realistic’ as opposed to a ‘fanciful’ prospect of success, see Swain v Hillman [2001] 2 All ER 91 , 92. A claim is ‘fanciful’ if it is entirely without substance, see Lord Hope in Three Rivers District Council v Bank of England [2001] UKHL 16 at [95].

A ‘realistic’ prospect of success is one that carries some degree of conviction and not one that is merely arguable, see ED & F Man Liquid Products v. Patel [2003] EWCA Civ 472 .

The court must avoid conducting a ‘mini-trial’ without disclosure and oral evidence: Swain v Hillman (above) at p.95. As Lord Hope observed in the Three Rivers case, the object of the rule is to deal with cases that are not fit for trial at all.

This does not mean that the Court must take everything that a party says in his witness statement at face value and without analysis. In some cases it may be clear that there is no real substance in factual assertions which are made, particularly if they are contradicted by contemporaneous documents, see ED & F Man Liquid Products v. Patel (above) at [10]. Contemporary activity or lack of activity may similarly cast doubt on the substance of factual assertions.

However, the Court should avoid being drawn into an attempt to resolve those conflicts of fact which are normally resolved by a trial process, see Doncaster Pharmaceuticals Group Ltd v. Bolton

Allegations of fraud may pose particular problems in summary disposal, since they often depend, not simply on facts, but inferences which can properly drawn from the relevant facts, the surrounding circumstances and a view of the state of mind of the participants, see for example JD Wetherspoon v Harris [2013] EWHC 1088 , Sir Terence Etherton Ch at [14].

Some disputes on the law or the construction of a document are suitable for summary determination, since (if it is bad in law) the sooner it is determined the better, see the Easyair case. On the other hand the Court should heed the warning of Lord Collins in AK Investment CJSC v Kyrgyz Mobil Tel Ltd [2012] 1 WLR 1804 at [84] that it may not be appropriate to decide difficult questions of law on an interlocutory application where the facts may determine how those legal issues will present themselves for determination and/or the legal issues are in an area that requires detailed argument and mature consideration, see also at [116].

The overall burden of proof remains on the claimant, …to establish, if it can, the negative proposition that the defendant has no real prospect of success (in the sense mentioned above) and that there is no other reason for a trial, see Henderson J in Apovodedo v Collins [2008] EWHC 775 (Ch) , at [32].

So far as Part 24,2(b) is concerned, there will be a compelling reason for trial where ‘there are circumstances that ought to be investigated’, see Miles v Bull [1969] 1 QB 258 at 266A. In that case Megarry J was satisfied that there were reasons for scrutinising what appeared on its face to be a legitimate transaction; see also Global Marine Drillships Limited v Landmark Solicitors LLP [2011] EWHC 2685 (Ch) , Henderson J at [55]-

I also at Paragraph 136 of that judgment made clear that the relevant facts, being those which are said to give rise to the causes of action upon which

Even more recently, in Rollingson v Hollingsworth 2020 EWHC 3568

It is also made clear in those citations that:

I also bear in mind that in Partco v Wragg 2020 EWCA Civ 594 at paragraph 27 there is a warning from the Court of Appeal against seeking to summarily dispose of single issues in a Claim (at least where they are not distinct, and certain are not distinct here), where the result may be to lead to overall delay due to appeals etc. in a Claim which is going to go to trial in any event on many matters, and where justice may, in any event, be best served by a fully investigated and informed decision. However, it was also stressed that if a Claim is bound to fail then it is best that that is determined at an early stage. The paragraph reads:

“27.

It seems to me that the following principles are well established, at least as articulated in relation to summary disposal under Pt 24 of the CPR. (1) The purpose of resolving issues on a summary basis and at an early stage is to save time and costs and courts are encouraged to consider an issue or issues at an early stage which will either resolve or help to resolve the litigation as an important aspect of active case management: see Kent v Griffiths (No. 3) [2001] QB 36 at p. 51B–C. This is particularly so where a decision will put an end to an action. (2) In deciding whether to exercise powers of summary disposal, the court must have regard to the overriding objective. (3) The court should be slow to deal with single issues in cases where there will need to be a full trial on liability involving evidence and cross examination in any event and/or where summary disposal of the single issue may well delay, because of appeals, the ultimate trial of the action. (4) The court should always consider whether the objective of dealing with cases justly is better served by summary disposal of the particular issue or by letting all matters go to trial so that they can be fully investigated, and a properly informed decision reached. The authority for principles (2)–(4) is to be found in: Three Rivers District Council v Bank of England (No. 3) [2003] 2 AC 1 per Lord Hope at paras 92–93, considering Swain v Hillman

[2001] 1 All ER 91 at pp.94–95; Green v Hancocks (a Firm) [2001] Ll Rep

PN 212, per Chadwick LJ at para.53, p.219, col. 1; and Killick v PricewaterhouseCoopers (No. 1) [2001] Ll Rep PN 17 per Neuberger J at p.23, col. 2, 2–27.2”

I add that various of these principles have been very recently restated in Qatar Airways Group v Middle East News [2020] EWHC 2975 at paragraphs 147-160 and 214, albeit in the context of a jurisdiction challenge. Although this decision was published after I had heard various submissions from the parties, I do not regard it as taking matters further than what was already common-ground, and so I have not sought further submissions on it.

I have applied these various principles and authorities in and in making my determinations below.

The parties’ witness statements and their exhibits set out the history as follows. I have considered them carefully in coming to this judgment. Significant elements of this history are not disputed, but, subject to particular attacks made on it by the Applying Defendants, in the light of the principles set out above, I take Mr Toner’s version.

THL was part of a group of companies (the holding company of which may be Telford Homes Plc (“THP”)) which were engaged in constructing the Building, which is a tall edifice comprising a number of Blocks near Central London. THL was marketing long leases of various flats (called “Plots”) for contacts for sale “off-plan” with completion of the relevant lease to take place following completion of the relevant flat. Mr Toner went to a marketing presentation on 18 October 2012 at which there was a model of the proposed Building (“the Model”).

Mr Toner says that the Model showed the exterior of the Building with the fifth floor flats (which have floor-to-ceiling windows) having balconies which were symmetric in form, appeared to be open to the sky and to have something like average waist height (say 3 foot) high clear transparent external panel guards and so that from inside each flat it would be possible, even when seated inside, to look out and both through and over the flat’s Balcony to whatever view available in the relevant direction beyond the Building. This was to be contrasted with lower floors where flats were shown with some opaque panels. He says that he had emphasised to him by sales staff subsequently the attractiveness of floor to ceiling windows and unobstructed external views from inside the Flat externally to the city skyline. He has produced an email exchange over 11-13 November 2012 (“the November 2012 Emails”) in which he talked about Plot 229 having “unobstructed views of the City “ which is consistent with his having that understanding and having gained it from some source.

Mr Toner has produced a copy brochure (“the Brochure”) which he accepts he was not provided with at the time but only obtained later at some point which he cannot recall. It shows both a picture of the Model and internal (looking out) and external mock-ups of the Building to the above effect and contains various references to the views and vistas to be enjoyed from the Flats.

The picture of the Model in the Brochure appears to have also on it a statement “Information on this model is indicative only and should not be relied upon as accurately showing the layout… and is subject to change from time to time in accordance with planning permissions yet to be obtained during the course of construction. The information on this model is for guidance only and should not be relied upon as accurately describing any of the specific matters proscribed by any other under the Property Misdescriptions Act 1991. This information does not constitute a contract, part of a contract, or warranty.” A somewhat similar wording appears at one point in the Brochure in small print although seemingly directed to particulars of specific design elements (with no mention of balconies).

Mr Toner also says that there must have been a planning permission to such above effect, as (1) that is in accordance with plans of the exterior which he has obtained from the local authority’s planning department which appear to form part of the then planning permission (2) that was indicated by the Model and the Brochure and the conversations and (3) because there was a subsequent planning variation (see below) to depart from this. Mr Toner also says that there must have been plans and specifications of THL and Bishopsgate to such above effect in view of what had been lodged with the planning department.

I am unclear as to the extent to which THL and Bishopsgate (and Avantgarde and the other Defendants) actually disagree with the above. They appear to accept that there was a later planning variation to legitimise the Balcony as actually built (with a high opaque barrier); and Ms Proferes, counsel for THL and Bishopsgate, said on instructions that they do not (presently) know at what point it was decided to depart from what has previously had planning approval. In any event, Mr Toner’s factual case as to these factual matters, including that until after the grant of the Lease the then planning permission provided for a clear etc. Balcony (and not a Balcony in the form constructed), appears to have a real prospect of success on the evidence; and the relevant challenges to his case are mainly matters of law and interpretation.

Mr Toner says and has produced an email to him of 23^rd November 2012 confirming that, while he had originally been interested in a different Plot (Plot 30), he was then told that Plot 229 had become available but that a Reservation Agreement had to be entered into the next day if he was to secure it. Mr Toner appears now to read something sinister into this event, but I am unable, on the present evidence, to see that as anything other than mere speculation in circumstances where particular (especially “off-plan”) buyers may well come in and out of play as marketing proceeds, and sellers may well seek to emphasise deadlines in an effort to persuade buyers to make legal commitments (but where buyers may always choose to seek more time or to refuse).

Mr Toner says that he was also provided with a document regarding anticipated Service Charges (“the Service Charge Document”) setting out levels of charge which it was thought would be demanded under the intended leases of different sizes of flat. The document gives a figure which for Plot 229 would result in an annual service charge of £3,179.52.

Mr Toner also says that the marketing material emphasised that the Building and the Flats (including air conditioning) would be of a very high standard, and with a “10-year NHBC Warranty”. At this point, these assertions do not seem to me to be particularly disputed and, in any event, they are well arguable.

Mr Toner says that at this point he did not know about Bishopsgate or Avantgarde but only about THL, which appeared to him to be marketing for its own benefit. The other companies are not mentioned on the documentation at this point, and his factual case as to this seems well arguable.

Mr Toner also says, and I accept, that the marketing material suggested that he instruct a particular firm of solicitors Alexander JLO Solicitors (“Alexanders”) to act for him on his purchase of the Lease and that he did so. Mr Toner says that those solicitors failed him in various ways, and that they were, in effect, creatures of THL (and Bishopsgate and Avantgarde) or at least likely not to question what they proposed. He has, however, not advanced any claim based upon this, and if he was to do so then I think that that would have to be distinctly pleaded out in order that it could be seen precisely what was being said and so that that could be responded to, assessed and tested. Mr Toner has not brought any claim against those solicitors (and who he suggested had inappropriately destroyed his file) and any such claim would now be likely to be limitation barred. That does not, of course, relieve the Defendants from any claims which may exist against them, but it does mean, I think, that I should approach matters on the basis that (at least from the Contract to the grant of the Lease) Mr Toner had solicitors acting for him who would have owed him the usual duties.

Mr Toner then entered into the Reservation Agreement on 24 November 2012. Although this was said to be with “Telford Homes” it is accepted by THL (at least) for the purposes of this hearing that that meant THL. The Reservation Agreement provided that:

On 28 November 2012, there was sent to Alexanders the Draft Contract and a draft Lease (“the Draft Lease”) together with written “Notes for Buyer’s

Mr Toner says that he was not told about the Management Agreement until he eventually managed to extract it from the First to Third Defendants during this litigation. He says that this was part of a management structure which was kept secret from him. However, as Mr Toner was not a party to

On 21 December 2012 the Contract was formally exchanged between

The Standard Conditions of Sale (Fifth Edition) do contain provisions for compensation of a buyer where a property has been sold subject to a misrepresentation, but no-one has sought to rely upon them specifically, and they are, of course, subject to the provisions of the Contract.

The Building was then built out over the next year. It is common-ground that the Balcony as constructed with an external structure was (at least in part) asymmetric, substantially higher than waist high and opaque. Mr Toner says that it substantially obstructs the external views from inside the Flat (and, at least if sitting down or of limited height, from the Balcony itself) towards the City of London and towards other notable landmarks such as the Olympic Stadium. That may be disputed but is a question of fact which I cannot resolve on a summary judgment application. There is no suggestion that Mr Toner was informed of during the period between the Contract and its completion, and Ms Proferes told me, on instructions, that it is not known as to when it was decided that this form of construction should take place. I note that there was correspondence (including a letter from “Telford Homes Plc”) to Mr Toner of 8^th August 2012 regarding his being updated on the progress of the “development” but which did not make any reference to the Balcony.

Mr Toner then had working commitments abroad. On 1 October 2013 he sent an email to Suzanne Owens at Telford stating that they had agreed that the Notification of Completion (under clause 5 of the Contract) would be sent on 8 November 2013 for completion by 25 November 2013 but that he would be abroad (by implication until after then) from 30 October 2013, and he says that he was thereafter so abroad.

On 21 October 2013 Simon Cullen of Telford Homes Plc wrote to Mr Toner to say that it was intended to serve the Notification of Completion on 15 November 2013 and that the Flat would be available for inspection on or after 1 November 2013 by Mr Toner or his agent. On 15 November 2013 Telford sent Alexanders a Notification of Completion document with other documents including NHBC Buildmark certificates and policy (“the

The Contract was completed by payment of the balance of the purchase price and grant of the Lease and provision of the NHBC Buildmark Document (“Buildmark”) on 29 November 2013, and Mr Toner took up occupation shortly thereafter. The Lease had had some alterations made by agreement from the Draft Lease and including as to what was covered by the Service Charges, and Mr Toner says, in effect, that he was being told that the anticipated annual level would still be £3,179.52.

The Lease provided that:

The Buildmark Policy provided that:

Mr Prodromou was and employee of R&R. In 2013 Mr Prodromou was the day concierge of the Building. In May 2015, the Fourth Defendant appointed Mr Prodromou as its Estate Manager (he also continuing as day concierge until June 2015), until his employment ended on 21 September 2018.

The freehold of the Building including the reversion to the Lease was assigned by Bishopsgate to Brigante on 29 February 2016. Mr Toner says, and I accept for the purposes of these applications, that Estates is the holding company of Brigante and deals with the collection of rents under the Lease while Avantgarde collects the Service Charge.

From shortly after the grant of the Lease, and to date, Mr Toner made and continues to make a series of complaints, which he says are and were fully justified, about

In relation to the Balcony, Mr Toner says that Bishopsgate were initially apparently sympathetic to his requests. However, it is common-ground (and in any event reasonably arguable) that:

In relation to the Defects, Mr Toner says that (and which seems to me to be reasonably arguable):

Mr Toner has also asserted that THL, Bishopsgate and Avantgarde (at least by THL) have adopted a strategy (“the Strategy”), and deliberately, of a mixture of refusing to engage with his complaints, dismissing them out of hand, appearing to consider them but then rejecting them or doing nothing, and generally seeking to delay, to “string him along” (and to fob him off), and otherwise place hurdles in his path of seeking to have them resolved, as well as from time to time insulting him and belittling him, all with an aim of evading what he regards as being their obligations to remedy the Defects and carry out the Remedial Works at their own expense. Mr Toner also complains that R&R have not dealt with his complaints about the Defects.

Mr Toner also complains about Mr Prodromou. He says in summary (I come to more of the detail later) that Mr Prodromou harassed, defamed and belittled him in numerous ways until Mr Prodromou was eventually dismissed. He says that R&R and also Bishopsgate and Avantgarde would not deal with his complaint about Mr Prodromou.

Mr Toner makes specific complaints regarding the Air Conditioning Unit, and says that:

The Claim Form in the High Court Claim was issued on 27 November 2019 being slightly less than six years after the completion of the Contract and the grant of the Lease. The Particulars of Claim run to 113 paragraphs and which I describe and which contain particular paragraphs as follows.

Paragraphs 1-7 describe the Flat and the various defendants including their corporate and business inter-relationships. Mr Toner, correctly, described the defendants as being separate legal entities even if, in the case of the First, Second and Third Defendants, with common directors and their being part of the same corporate group.

Paragraphs 8-28 deal with what Mr Toner describes as “the

Paragraphs 29 to 34 refer to Mr Toner being induced to enter into the Contract by the Representations and quotes clause 7.2 of the Contract.

Paragraphs 35 and 36 state that Mr Toner paid the Deposit and the Premium for the Contract and the Lease and would not have purchased had the Representations not been made.

Paragraphs 37 to 38 are both headed and plead “Misrepresentation and Breach of Contract” on the part of THL, Bishopsgate and Avantgarde.

Paragraphs 42 to 45 are headed “Deceit” and allege that the Representations were made fraudulently or recklessly by THL, Bishopsgate and Avantgarde with “PARTICULARS OF FRAUD” being (1) that they recklessly failed to notify Mr Toner of the changes to the proposed Balcony (2) operate by a web of companies designed to shift responsibility away from decisionmakers and (3) THL was disingenuous and obtained the Planning Variation notwithstanding that it was contrary to the provisions of the Contract.

Paragraph 46 claimed Recission and repayment of the Premium (although I think that is no longer pursued in which case it should be deleted) and Paragraph 47 claimed in the alternative damages under the Misrepresentation Act 1967 (“the 1967 Act).

There then follows a heading of “PARTICULARS OF BREACH”. Paragraph 48 repeats earlier paragraphs about the Balcony not having been constructed as agreed. Paragraph 49 says that Flat was not built in accordance with the Contract and that Mr Toner notified Defects. Paragraphs 50 to 52 say that the Estate, the Building and the Flat all suffered from a long list of Defects. Paragraph 53 says that some Defects were remedied by the Claimant, and Paragraph 54 says that some Defects were remedied but only eventually. Paragraphs 55 onwards assert that THL continually and deliberately failed to remedy Defects and dishonestly disregarded obligations to do so. Paragraph 58 refers to Mr Toner having engaged with NHBC but NHBC only upholding some of his complaints. Paragraph 59 refers to continuing Defects and Paragraph 60 to Brigante and Estates not having remedied them.

Paragraphs 61 and 62 complain that Service Charges have been increased by THL, Avantgarde and R&R to pay for remedying Defects and that R&R has not sought to claim from THL in relation to them.

Paragraph 63 refers to what are said to be continuing Defects regarding the communal areas giving a list of some sixteen.

Paragraph 64 to 96 allege “Harassment” by THL, Bishopsgate, Avantgarde and R&R. Paragraph 66 alleges that THL influenced R&R into promoting

Paragraph 81 refers to vexatious and very lengthy emails being sent; although the emails appear to be in the form of long schedules refusing to accept various complaints (“the Complaints”) regarding assertions of particular Defects.

Paragraph 82 refers to “intimidation” being an instruction not to circulate a particular “Video” regarding Defects, having “Knocking” take place on Mr Toners’s door with the relevant person not being still there when Mr Toner opened the door, sub-contractors teasing Mr Toner, and unnecessary requests regarding where Mr Toner’s car was parked. Paragraph 83 states that on 10 October 2019 a Mr Campbell refused to deal with the Complaints further.

Paragraph 84 complains that THL refused to engage with NHBC properly or to comply with NHBC ordered deadlines or requirements.

Paragraph 85 says that Mr Toner had to spend a massive amount of time and effort to try to resolve the Complaints which THL, NHBC and R&R were determined to submerge in (unnecessary) correspondence.

Paragraphs 86-95 complain about the AirCon Unit and its effects in depriving him of sleep by the alleged switchings on of it and refusals and failures to switch it off to which I refer above.

Paragraph 96 repeats that THL constantly delayed and gave Mr Toner false hope about and then dismissed his (valid) Complaints and forcing him unnecessarily to repeat and seek to prove matters.

Paragraphs 97 to 111 are headed and allege “Loss & Damage” including (1) increased Service Charges (2) time spent, and loss of enjoyment and amenity (3) victimisation (4) impact on personal health and wellding (5) distress and inconvenience. Paragraph 112 claims interest.

Paragraphs 113 to 118 are headed “Particulars of claim for Negligence”. Paragraph 113 repeats paragraphs 1 to 106. Paragraphs 114 to 118 say that THL owed a duty of care regarding the Representations as a result of its involvement in the negotiation process.

The Prayer for Relief seeks Rescission (which I think is no longer pursued) and various categories of damages “including aggravated damages for inconvenience, serious distress, stress, upset, humiliation, injury to feelings to be assessed, damages for harassment, damages for deceit and breach of contract”, as well as interest and costs.

The Applying Defendants have filed and served substantial Defences and which include defences being advanced of limitation under the Limitation

However, during the Hearing I did ask Mr Toner to file a document setting out further his case on Fraud and on Deliberate Concealment in relation to limitation. I will refer to those matters when I come to deal with those aspects below.

The Claim Form in the County Court Claim was issued on 13 May 2019 although Mr Toner says that the documentation and court fee was supplied to the County Court some days earlier, and so that the earlier date is to be treated as the issue date for the purposes of limitation and the 1980 Act.

The Particulars of Claim run to some 52 paragraphs, and which I describe and which contain particular paragraphs as follows:

The Applications attack Mr Toner’s Claims in a number of distinct ways, although certain of them overlap. In view of the number of Applying Defendants, and the submissions made to me, it seems to me to be desirable to analyse them under various categories of types of claim.

In considering the attacks on the Misrepresentation Claims, and which appear to be made against each and all of THL, Bishopsgate and Avantgarde, I remind myself first of certain basic principles as to the constituent elements of a claim in misrepresentation and which I do not think were in dispute but which appear from such cases as: Vald Neilsen v Baldorino 2019 EWHC 1296, Glossop v Contact 2019 EWHC 2314, 2020 EWHC 1377 and Smith New Court v Citibank 1997 AC 254.

A claim under the 1967 Act (and in particular section 2(1)) can give rise to a damages remedy where:

A claim in Deceit can give rise to a damages remedy where:

A claim for other negligent misrepresentation can give rise to a damages remedy where:

The relevant tort measure of loss is at most (in non-fraud cases there are limiting principles of scope of loss which also come into play, but I do not have to deal with them here specifically):

The Representations in this case as set out in the Particulars of Claim are with regard to the Balcony, the construction of the Building and the Service Charges.

However, the section of the Particulars of Claim dealing with what are asserted to be Misrepresentations only refer to misrepresentations regarding the Balcony and the Service Charges.

However, Paragraph 41 of the Particulars of Claim does conclude with the words “… and incorrectly charged the leaseholders for repairing defects caused by faulty and substandard workmanship during the initial construction.”

I do not think that that contention amounts to an allegation of a misrepresentation inducing the entry into of the Lease (or the Contract) or, if I am wrong about that and it does, that it either states reasonable grounds for such contention or that Mr Toner has reasonable grounds for success in relation to it. The words refer to conduct of relevant defendants (here in particular Avantgarde in relation to its demands for service charge) which post-dates the grant of the Lease, and which conduct cannot have induced the entry into of the Lease (or the Contract) which had happened earlier. The only relevant pleaded representations are that the Building would not have faults and would have a high-standard of workmanship. However, a representation

The first misrepresentation which is pleaded is with regard to the Balcony and being that it was to be constructed in the clear etc. form. I did not find the Particulars of Claim very clear as to whether Mr Toner was alleging that (i) when the alleged representations were made to him the relevant defendants had already decided that the Balcony would take a different form from that represented or (ii) the decision was taken later and whether before or after the Contract (although obviously before the grant of the Lease). However, Mr Toner clarified this during the hearing to say that he did not know, and that this had been concealed from him, and he wished to advance both alternatives. It then turned out that Ms Proferes for THL and Bishopsgate could not tell me when the decision had been taken and which lends support to Mr Toner’s contention that he should not have to commit himself one way or another.

It seems to me that this is a classic instance where (i) a party is entitled to advance alternative cases saying that it must be one of the two possibilities but pleading and relying upon both (see White Book 16.4.6 and Binks v Securicor 2003 1 WLR 2557) and (ii) the Court should wait until at least disclosure before (possibly) requiring any clarification (and see case-law cited above). In circumstances where a decision must have been taken as to the Balcony’s form at some point, it is those Defendants (who took the decision) and not Mr Toner who have the relevant information and documents. It would be entirely unfair (and contrary to the overriding objective) to bar Mr Toner from advancing alternatives at this point.

It also seems to me that Mr Toner has not understood that a misrepresentation must be in relation to an existing fact. At least some of his pleading gives the impression that he is contending that after the alleged representations regarding what was going to be constructed in relation to the Balcony had been made the relevant defendants deliberately decided to construct something different from what had been represented (and thereafter to seek retrospective planning approval) and that that itself is fraudulent. However, that does not make the original representation either false or fraudulent, in fact the opposite. A party is perfectly entitled to change its mind unless it has contracted (or is otherwise under a duty, which usually requires a contractual promise supported by consideration) not to do so.

On the other hand, someone in the position of Mr Toner is entitled to contend:

At first sight, the evidential material advanced by Mr Toner would seem to afford support for his case for misrepresentation in relation to the Balcony that:

However, Ms Proferes for THL and Bishopsgate (supported by Mr Moss for Avantgarde, and I will return to whether it was or might have been a misrepresentor below) makes three (or four) specific attacks on the misrepresentation case based on (i) the wording on the Model and which was repeated with it in the Brochure, together with the rest of the Brochure (ii) what is said to be the lack of importance of the construction and the change to construction of the Balcony (iii) clause 9 of the Contract (“Clause 9”) and (iv) limitation.

Ms Proferes submits that these wordings, combined with the contents of the Brochure, mean that there was no representation as to the Balcony at all or at least not one which Mr Toner could rely upon. It seems to me that the non-reliance aspects are similar to those to which I refer in relation to Clause 9 below.

However, it seems to me that the Model and Brochure wording is not enough to prevent there being (or at least a real prospect of there being) an existing statement of intention contained within them to the effect that it was then intended (or at least anticipated) that the Balcony would take the form which shown in the Model and in the Brochure and in the planning documents. The wording provides that that intention might change in the future in certain circumstances, but (i) Mr Toner points out that there was no new planning permission obtained during the course of construction but only afterwards once he had complained about the change to the Balcony, and so the wording did not provide for the change which actually occurred (but rather implied that the construction should be of the Clear etc. Balcony shown in the then planning documents) (ii) does not say that the Model or the other pictures in the Brochure (or the supplied planning drawing) did not represent the then intention. The wording talks of the Model being for

“guidance only” but that does not mean that the information is simply worthless and does not show what was said to be then intended; and if it did then the word “guidance” does not have its ordinary meaning (at least if the change to the Balcony’s form of construction was significant and which I conclude below is arguable). Mr Toner’s case as to there being relevant Representations being made is reinforced by the November 2012 Emails and their references to the anticipated views from the fifth floor Flats.

However, Ms Proferes relies on both the wording on the Model and Clause 9 to contend that both there never was any representation at all and also that, if there was anything which could have (in other circumstances) amounted to a representation, Mr Toner is barred from contending that it did amount to a representation or that he relied upon it. Clause 9 (which I have set out above) provided that Mr Toner accepted that he had not relied on any representation made otherwise than “in replies to preliminary or additional enquiries or the Notes for Buyers solicitors and Development Information supplied to the Buyer or his solicitors by the Seller's Solicitor and correspondence relating thereto.”

Mr Toner’s responses are (1) There was a relevant Representation(s) (2) Clause 9 does not apply as the Representation(s) were made in relevant replies to preliminary enquiries or correspondence (3) he can rely upon section 3 of the Misrepresentation Act 1967 (the Unfair Contract Terms Act 1977 not being directly applicable as this is a contract for the sale of an interest in land) which provides that as misrepresentor can only rely on a provision of this nature where they can prove that it is reasonable for them to do so and (4) he is alleging fraudulent misrepresentation.

There is substantial case-law as to the effect of non-reliance clauses in terms of creating contractual or estoppel bars to an alleged misrepresentee being able to assert either or both of (a) there was a representation or (b) that they have relied upon it. At common-law that is the effect, but it is common-ground that the court construes such provisions strictly so that (i) they have to apply clearly to the relevant matter and (ii) (even if such is possible at all, and which it is at least arguably not) any extension of the clause so as to apply to matters of fraud has to be express.

Ms Proferes submitted that Mr Toner clearly fails as a matter of law in relation to his points (1) and (2) and that there is no real prospect of his establishing fraud and where he has failed to properly plead a case in fraud.

She referred me initially to Lloyd v Browning 2014 1 P&CR 11 but then, at my suggestion, to the more recent decision in First Tower v CDS 2019 1 WLR 637 which has overtaken it and sets out the modern position. There the misrepresentation was contained within an answer given in writing by solicitors to a preliminary enquiry but the eventual lease contained a provision that the misrepresentee had not relied on any representation at all.

At paragraph 40, there was set out section 3 of the 1967 Act:

“If a contract contains a term which would exclude or restrict— (a) any liability to which a party to a contract may be subject by reason of any misrepresentation made by him before the contract was made; or (b) any remedy available to another party to the contract by reason of such a misrepresentation, that term shall be of no effect except in so far as it satisfies the requirement of reasonableness as stated in section 11(1) of the Unfair Contract Terms Act 1977 ; and it is for those claiming that the term satisfies that requirement to show that it does.”

It was then held that a non-reliance clause even if it was what might be termed a “basis clause”, and provided either that there was no representation or no reliance rather than simply seeking to exclude liability, was subject to section 3 of the 1967 Act and concluded in paragraph 67:

“67.

I would hold, therefore, that a clause which simply states (as clause 12.1 of the agreement for lease and clause 5.8 of the lease do) “that this lease has not been entered into in reliance wholly or partly on any statement or representation made by or on behalf of the landlord” is a contract term which would have the effect of excluding liability for misrepresentation; and consequently is subject to the test of reasonableness. Accordingly, in my judgment the judge in our case was right to conclude as he did. I do not consider that a conclusion to this effect should cause consternation. It will always be open to a contracting party seeking to rely on such a clause to establish that it was reasonable; and in cases involving the sale of complex financial products to sophisticated investors it may well be.”

Lewison LJ then when on to consider whether the clause was reasonable, setting out in Paragraph 68 the relevant statutory provision: “68. That leads on to the next question: were the clauses in this case reasonable? The test of reasonableness is contained in section 11(1) of the Unfair Contract Terms Act 1977 :

“In relation to a contract term, the requirement of reasonableness for the purposes of this Part of this Act, section 3 of the Misrepresentation Act 1967 … is that the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made.”

Lewison LJ then cited from previous authority with approval as follows: “69. In FoodCo UK llp (trading as Muffin Break) v Henry Boot Developments Ltd [2010] EWHC 358 (Ch) I had to consider a clause in the form of clause 12.1 of the agreement for lease in the present case. I held that such a clause was reasonable. I gave my reasons at para 177: “(i) The aspiration of certainty is a reasonable one for the parties to adopt. In most cases it will have the effect of avoiding a 12-day trial such as this one.

“(ii)

There was no substantial imbalance of bargaining power between the parties. Each of the tenants was a commercial and substantial concern …

“(iii)

Each of the tenants was advised by solicitors …

“(iv)

The term itself was open to negotiation …

“(v)

Perhaps most importantly, the clause expressly permitted reliance on any reply given by the Henry Boot's solicitors to the tenant's solicitors. If, therefore, something of importance had been stated in the course of negotiations upon which the intending tenant wished to rely, its solicitors had only to ask Henry Boot's solicitors for an answer to a question. That would have revealed whether Henry Boot was prepared to formalise the statement so that the tenant could rely on it or whether the tenant would have to undertake its own due diligence.”

70.

That approach was expressly approved by this court in Lloyd v Browning [2014] 1 P & CR 11 . In the course of his judgment Davis LJ said, at para 34:

“There are, as I see it, other matters also strongly indicating that this condition was a reasonable and fair one to be introduced into this particular contract: (1) First, each side had, and as they each knew, legal advisers. That was, as the judge duly found, plainly material as to the reasonableness of including this particular condition into the contract. Moreover, it was the case, as was known to all concerned, that the claimants had in addition instructed architects and planning consultants. That was a relevant factor, too. (2) Second, the contract was one for the sale of land. It is generally well known that such contracts do indeed, as the judge put it, have a status of

‘formality’ about them. Contracts relating to the disposition of property are designed by law to require that all the agreed terms are set out in one contractual document signed by each party. (3) Third, this condition was not a ‘take it or leave it’ condition of the kind sometimes imposed in small print on consumers, acting without legal advice, in consumer transactions. It was a special condition agreed by the parties’ lawyers in circumstances where the parties had equal and corresponding negotiating positions. Moreover, such condition had the general imprimatur of the Eastbourne Law Society and was, it is to be inferred, in common use. That, too, is a further factor indicating reasonableness. (4) Fourth, and I think this is a particular striking feature in the present case, the condition, expressly by its terms, permitted the claimants to rely on written statements made by the defendants’ solicitors in replying to pre-contract enquiries or otherwise in correspondence. Thus, if the claimants wished to rely on what had been said to them orally the means for giving legal effect to that were readily available: that is, by an appropriate written pre-contract enquiry or solicitor's letter. Such a request would reveal just what the defendant vendors were prepared formally to commit themselves to.”

71.

In Hardy v Griffiths [2015] Ch 417 Ms Amanda Tipples QC, sitting as a deputy judge of the Chancery Division, took the same approach. In each of these cases the court stressed the fact that the clause in question expressly preserved liability for misrepresentations contained in formal enquiries before contract.”

Lewison LJ then held that the Judge below in that case had been entitled to find that a clause which had the effect of excluding liability for statements made by the misrepresentor’s solicitors in answer to enquiries had not been shown to be reasonable, stating at Paragraph 75 that:

“75.

Whether a clause passes the test of reasonableness is an evaluative judgment for the trial judge. An appeal court should be slow to interfere: George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd [1983] 2 AC

803 . The judge recognised the four factors on which the landlords relied (and set them out at para 34). He directed himself by reference to the three cases to which I have referred. It cannot be said either that he misdirected himself in law, or that he took into account irrelevant factors or ignored relevant ones. Although there is some force in the landlords’ argument, I do not consider that there is any ground in this case for interfering with the judge's overall assessment of the application of the test of reasonableness. Indeed, in my judgment, he was right to stress the importance of precontract enquiries in the field of conveyancing; and right in the conclusion to which he came. As the judge said, if clause 5.8 governs the landlords’ liability the important function of replies to enquiries before contract becomes worthless. Although there might be a case where, on exceptional facts, a clause which precludes reliance on replies to enquiries before contract might be held to satisfy the test of reasonableness even where those replies have in fact been relied on, I find it very hard to imagine what those facts might be. Of course, the existence of the non-reliance clause may itself be evidence of non-reliance; as was indeed the case in one of the claims that I considered in the FoodCo UK llp case [2010] EWHC 358 : see paras 116–

118.”

Mr Toner submits that these alleged Representations do not fall within

However, I agree with Ms Proferes that these Representations do fall within Clause 9, and in particular as:

Mr Toner further submits that Clause 9 has not been shown to be reasonable, and in particular that:

I do not think that Mr Toner has a real prospect of the relevant defendants being unable to show that reliance on Clause 9 is reasonable, in the light of the above cited case-law, and in particular as (and which incorporates various of Ms Proferes’ and Mr Moss’ submissions):

I would add that Mr Toner asserts misrepresentation against THL which is not a party to the Contract. However, it seems to me that, where Mr Toner has entered into a contractual term that he has not relied upon statements other than those made in a particular form, he cannot say that that term only operates to exclude remedies against the principal (Bishopsgate and possibly Avantgarde) and not the agent (THL). To hold otherwise would be to deprive the term of much of its intended force and especially where if Mr Toner succeeded against THL then THL might have rights of indemnity against Bishopsgate.

It therefore seems to me that, whether or not something which could amount to a Balcony Representation was made (which I deal with further below), Mr Toner is barred by Clause 9 of the Contract from relying upon it to bring a claim of either negligent or statutory misrepresentation (and the same applies to the other claims in negligent or statutory misrepresentation although I deal with the Service Charge aspect specifically below).

However, Mr Toner’s third argument is to assert that Clause 9 does not apply to fraudulent misrepresentations and which is common-ground (in my view rightly, both because in general an exemption or limitation clause is not to be construed as applying to fraudulent misrepresentations and because to exclude liability for fraudulent misrepresentations would not be reasonable within the meaning of section 3 of the 1967 Act). Ms Proferes (and Mr Moss) respond to submit that Mr Toner (1) is still not able to show a sufficient Representation (2) has not properly pleaded fraud, and, in any event, (3) has not shown a real prospect of establishing fraud.

In relation to whether Mr Toner has complied with the CPR and the common-law regarding pleading fraud, I have set out relevant provisions of the Rules and principles from the case-law as to Mr Toner having to plead facts from which the relevant states of mind (being the misrepresentor

I was concerned with regard to this, even though the general thrust of Mr

It seemed to me that while this was being advanced in the Particulars of Claim (in particular by paragraphs 38, 39, 43, 44 and 44) Mr Toner:

Therefore, during the hearing I required Mr Toner to produce a document which set out the facts from which he was saying that fraud was to be inferred. Mr Toner’s fourth witness statement did not really comply with my direction. He listed (in particular from paragraphs 112-126 to a number of matters but fell (as he has done repeatedly and as often occurs with litigants in person (and some lawyers)) into the traps of:

Ms Proferes (and Mr Moss) submit that Mr Toner has not advanced a proper pleading of fraud even at this early stage. I do, however, not consider that this allegation should be struck out on this ground, although I do consider that it should be re-pleaded in order to make clear that the first sets of factual alternatives (i.e. the change of intention regarding the Balcony took place either before any representations were made to Mr Toner or during the marketing and negotiation with him period but before the Contract) are being advanced and on the basis of the facts which properly can then be argued to support it. It seems to me that:

Ms Proferes (and Mr Moss), however, further submit that there is no real prospect of Mr Toner either proving the facts upon which he relies or having the relevant inferences drawn from them and in particular as:

I have to consider this on the basis of whether it has been shown that Mr Toner has no real prospects of success. I do not think that that has been demonstrated, and in particular in the light of what I have said about the allegation of there being a Balcony Representation(s) (and the Model, the Brochure and the other documents) above, and as:

I am also not convinced that the NHBC Consumer Code for House Builders relied upon in submissions by Mr Toner takes matters much further. It is a voluntary code and does not give rise to and is not incorporated in any contract or, of itself, duty of care (which is not relied upon). Insofar as it contains good practice guidance, it is more important as to what is obviously good practice in the sense of matters which would obviously (to a seller/marketer) be of relevance to a potential purchaser.

Mr Toner has in final written submissions sought to assert that there were continuing (and even new) misrepresentations before the grant of the Lease, but to advance such a case would require a true amendment. Even if Mr Toner was to seek to amend then the relevant amendments would have to be formulated and questions would arise as to whether that could be done outside the limitation period (since now is over six years after completion and the grant of the Lease).

However, Mr Toner relies on both fraud and deliberate concealment under section 32 of the 1980 Act:

“32(1) … where in the case of any action for which a period of limitation is prescribed by this Act, either-

a.

The action is based upon the fraud of the defendant; or

b.

Any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant…

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment… (as the case may be) or could with reasonable diligence have discovered it.

References in this subsection to the defendant include references to the defendant’s agent or to any person through whom the defendant claims and his agent.

(2)

For the purposes of subsection (1) above, deliberate concealment of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.”

The relevant defendants have to show that Mr Toner has no real prospects of success, and, of course, Mr Toner can contend that it is the defendants who will have the relevant documentary material which will only be made available to him on disclosure and that this is a case where disclosure is required in order to see whether or not there is anything else which could give rise to a real prospect of success.

Having considered this aspect somewhat anxiously, it seems to me that, at least on the present pleading, this element of the pleading should, in principle, be struck out as the Particulars of Claim do not contain sufficient particulars. If a properly amended pleading as to (i) what were the alleged representations (ii) in what respects they were false and (iii) from what facts fraud or recklessness in relation to their falsity is said to be capable of being inferred; then I will consider further as to whether that amendment and the relevant case should be permitted to be pursued without reverse summary judgment at least until disclosure has been provided, and in accordance with the principles derived from the authorities cited above.

To succeed in any misrepresentation claim, Mr Toner would have to show relevant loss being in principle that at the time he paid more than the market value of the Flat (assuming full correct information had been provided) and/or that he had suffered recoverable consequential losses. Again, the Particulars of Claim are deficient in not setting out details of an over-payment loss although they probably do contain some particulars of consequential losses (at least in terms of both distress and inconvenience, and great time and effort spent in seeking resolution of his various complaints and which would or could follow from his having entered into the relevant transactions, and also in relation to the Air Conditioning Unit).

It seems to me that these representations are certainly relevant to the marketing, and hence thought to be relevant to the attractiveness, of the Flat, and thus could well potentially impact on its value. While Mr Toner made some statement in his submissions as to the value of the Flat having increased since the Contract, my recollection is that this was with regard to today’s date rather than its value as at the date of completion (as Ms Proferes says) but in any event without expert evidence it would be wrong to hold him to such a comment where his general case is that the effect of the Balcony and the Defects was to substantially diminish the value. I think that, at least at present and prior to expert evidence, there must be real prospects of overpayment loss being established.

The claims in misrepresentation are, in my view, also advanced against Avantgarde (as well as against THL and Bishopsgate). Although at some points in the Particulars of Claim Mr Toner only refers to THL, at others (e.g.

I do not think that this argument succeeds with regard to the Service Charge misrepresentations. In view of the relevant history, and the timing of the Management Agreement which was in operation at the time of the alleged representations, it seems perfectly possible that it was Avantgarde that was responsible for the Service Charges document and its contents.

The position is more difficult with regard to the Balcony as that was a Bishopsgate matter relating to the construction of the Building having nothing to do (at least directly) with Avantgarde which is only concerned with its management. However, Mr Toner’s case is that the various companies within the Telford group (and which Avantgarde then, at least, was) were all acting in concert together through the one set of agents THL. While I am not sure that this argument could necessarily work in relation to mere negligent or statutory misrepresentation in the context of this case, I have held that clause 9 of the Contract bars such claims.

However, it seems to me that there is a potential difference with regard to fraudulent misrepresentation. If THL was fraudulent, then as THL was, at least reasonably arguably, acting as agent for all the then relevant Telford companies, including Avantgarde, then Avantgarde would be potentially liable for any fraud on the part of its agent (as occurred in Glossop v Contact 2019 EWHC 2314). Further, Mr Toner asserts that there were common directors between the various companies, and thus there are real arguments that Avantgarde is to be imputed knowledge of the alleged fraud from which it was deriving the benefit of the Contract to which it was a party, and it is difficult to see how the mere fact of the utilisation of different companies within the same corporate group in such circumstances can be used necessarily to enable one company to escape from the consequences of a fraudulent misrepresentation from another inducing a contract to which it was a party. Mr Moss submits that Avantgarde’s signature to the Contract was a mere formality; but I am not persuaded by that submission as Avantgarde is a genuine (and important) contracting party, and where the Contract provided for the Lease where Avantgarde has a very real role and rights and obligations. It seems to me that Mr Toner has real prospects of success against Avantgarde.

It therefore seems to me that, subject to the relevant repleading and further consideration etc set out above, the fraudulent misrepresentation claims should not now be struck out and, reverse summary judgments should not be granted. However, repleading will be required so as to set out properly what is being alleged in terms of relevant facts (and not evidence or argument), and I will need to then consider the Service Charges aspect (if it is to be pursued) further.

Mr Toner is not clear as to which entity(ies) he says that the breaches of Contract is against as (e.g. in paragraphs 37, 49 and 52) he sometimes refers to just THL and sometimes also to Bishopsgate and Avantgarde. I do not think that he has real prospects of success in establishing a breach of the Contract claim (being under its clause 7) against any entity other than Bishopsgate which, being the defined “Seller” is clearly the relevant entity. Mr Toner pleads that THL was Bishopsgate’s “undisclosed principal” but this is not a situation of agency, Bishopsgate owned the freehold and was building and contracting in its own right.

Mr Toner pleads that THL is the controlling group company and the only relevant entity with active employees or any substance, and that everything was communicated and done through THL, and that Bishopsgate is a mere shell special purpose vehicle. That may be right but it does not affect the contractual analysis. The relevant Defendant is Bishopsgate, as only it owed the relevant (clause 7) obligation under the Contract. Mr Toner (and Alexanders) knew, when he entered into the contract, that Bishopsgate was the Seller. I cannot see how any of the other companies, even if they were in the same group and acting in concert, can be said to have taken on

The position is, however, different as between Mr Toner and Bishopsgate and where I cannot determine the factual arguments as to whether or not there were the alleged breaches of the Contract in terms of the Defects and the Balcony or whether they gave rise to recoverable loss (in principle the difference between the value of the Flat with and without Defects and with the different types of Balcony, and potential consequential losses). I think that it is also common-ground and I find that Mr Toner has real prospects of success with regard to these aspects.

However, Bishopsgate asserts that it has a limitation defence asserting that the under section 5 of the 1980 Act, the relevant causes of action accrued once there was “practical completion” of the building works and that this was by early November 2013 (when the NHBC allowed its Cover Note to be issued and the Seller notified Mr Toner that it considered that construction

I note that Mr Toner has not sought to bring any claim under the provisions of the Defective Premises Act 1972. I am therefore not concerned with any such statutory claim and its limitation period, unless and until any application to amend is made. It might raise difficult questions as to what that Act extends and when completion of relevant works etc. took place.

I also note that Mr Toner has in his final written submissions sought to assert that Bishopsgate owed a duty of care to him to build the Building and the Flat properly. No such claim is pleaded and so I am not concerned with it unless and until any application to amend is made. It might raise difficult questions as to whether the law of tort could be used in this contractual context to give rise to a longer limitation period.

However, the contractual claim raises potentially important questions of building contract law regarding limitation. Ms Proferes relies upon:

Ms Proferes then took me to authorities in the areas in relation to building contracts and limitation. She took me first to Tameside MBC v Barlows. The first instance decision was reported, but only as to excerpts, at 1999 CILL 1559. The defendant had agreed to build 106 houses for the claimant and the contract was by deed (thus with a 12 year limitation period) in JCT form providing for a practical completion stage and certification. The relevant defective works were carried out more than 12 years before the issue of the Writ but only 11 years after the practical completion.

The first instance judge held that there were two distinct obligations, one which arose when the relevant works were carried out and the other when the certificate of practical completion was provided. He said (under his Issue 4):

“… Equally in my judgment if, as in my judgment it does, the Agreement… creates two distinct obligations, one in relation to carrying out the work properly as it is being done and another in relation to completing a building which has been constructed in accordance with the contractual requirements, the mere fact that any defects may have been suable upon prior to the delivery up or completion of the 106 houses will not in my judgment be fatal to a claim by the plaintiff that time only began to run from practical completion of the works.

In my judgment a distinct and separate cause of action will arise upon failure to complete the houses properly. A breach of the express obligation in the Agreement… to complete the works in conformity with the contract documents will thereupon for the first time occur and it cannot be said in my judgment that time begins to run against the plaintiff before that point has been reached. The obligation to complete the works in accordance with the contract is in my judgment the fundamental obligation of the contractor and it is a distinct obligations from any obligation upon the contractor to carry out the work properly as it is being performed. It is the performance of the obligation to complete the works in accordance with the contract which entitles the contractor to the agreed price for the works and this lies at the basis of the view that a building contract constitutes an entire contract… … The textwriters to which I have been referred are consistent in stating that time begins to run from practical completion in relation to defects in the work and this can only be on the footing it seems to me that the cause of action arises at that stage. That view is in my judgment correct in principle. The existence of a separate obligation on the contractor in relation to the performance of the work as it is carried out the effect of which is to exclude the notion of temporary disconformity does not in my judgment alter the essential obligation of the contractor to provide a building or works which when completed or finished are in conformity with the contract documents or mean that time has already begun to run against the employer...”

However, the judge then went on to say:

“… In the ordinary case, the contractor is entitled to retain possession of the site until practical completion when it is handed over and it would in my judgment be contrary to principle to hold that time had begun to run against the employer in respect of that obligation before the works had bene completed and released to him.”

Ms Proferes says that this fixes the accrual of the obligation as at practical completion. Mr Toner says that it fixes the accrual in this case as at actual completion when possession was handed over to him (and where he had not been entitled to possession until then).

Tameside v Barlows was appealed to the Court of Appeal reported at 75 Const LR 114. It paragraphs 44-45, it was said: “44…. the judge gave as his reason:

“… the factual position is that the houses… had been completed and possession given to the plaintiff. Significantly, separate certificates of practical completion had been issued. In these circumstances, it seems to me that it should be inferred that the parties had treated those parts of the work as being practically complete for all purposes, and I consider that it would have been open to the plaintiff, if it had discovered defects in the houses which had been released to it, to have brought an action for failing to complete the houses properly and it would not have had to have waited until the last of the works had been completed before suing. Time will have begun to run in respect of any defects… from the dates of practical completion. The defects will have been suable upon from that time.”

At first sight, that authority would seem to suggest that (1) Mr Toner could rely upon a failure to have completed the works in accordance with the contract; and (2) his cause of action would only arise on delivery of possession (i.e. 29 November 2013), that being seen as the “crucial factor” even though the Court of Appeal were agreeing with the judge’s view that time began to run on the date of “practical completion”. Ms Proferes, however, submits that the key is “practical completion” and delivery of possession is not a necessary constituent of that.

Ms Proferes also took me to Swansea v Interserve [2018] EWHC 2192. Again this was a JCT contract but here the employer owned the land, and nothing is said about whether the relevant contractor had possession of the relevant land. At paragraph 57, O’Farrell J said:

“57.

It is well-established law that a cause of action for breach of a construction contract accrues when the contractor is in breach of its express or implied obligation under the contract. Where, as in this case, there is an obligation to carry out and complete the works, the cause of action for a failure to complete the works in accordance with the contract accrues at the date of practical complete, Tameside v Barlows….”

The court then considered as to when Practical Completion occurred under the terms of the relevant contract, and which depended upon the employer having held such a reasonable opinion at a particular point of time (see @ paragraph 64) but no mention was made of possession, and quite possibly because the employer had had technical legal possession throughout.

This is all the more so where, as here, I am dealing with an individual offplan construct and purchase contract where the purchaser is a consumer and which does not incorporate JCT terms. I have an immediate concern as to whether a JCT contract analysis, and where “practical completion” is a defined term and recognised stage within JCT terms, but no such expression appears in this case. What there is in the Contract is its clause 5 which involves a notification by the Seller “that the construction of the Property has been completed in accordance with [clause 7]” and also a deeming provision in clause 14 that there has been completion for the purposes of clause 7 but which expressly provides that “the Seller’s obligations under Clause 7 shall remain in full force and effect following completion and the Seller undertakes to complete all such matters.”

It seems to me that in all such circumstances and the above authorities there are very real arguments (and even if a cause of action arose when the works were, on Mr Toner’s case, wrongly built with Defects etc.) that a further later cause(s) of action arose on, or at least not before, completion of the Contract with its contemporaneous delivery of possession and grant of the Lease as:

My own view is that Mr Toner is right and that a later cause of action did accrue on completion but, in any event, I do not regard the law as being sufficiently clear to the contrary for a strike-out or for Mr Toner not to have real prospects of success,

In any event, Mr Toner would be able to rely on deliberate concealment and section 32 of the 1980 for the same reasons as I give above in relation to the Balcony. However, I do not see sufficient material pleaded which could reasonably justify deliberate concealment in relation to the other Defects, as that would involve a case not merely that Bishopsgate “skimped” on the materials and works but that they knew that Defects existed and then concealed then.

Both sides have sought to rely before me on the NHBC Buildmark Policy. Ms Proferes contends that the NHBC determination process concluded that many Defects did not exist and that has the effect that it is an abuse (or equivalent to res judicata) for Mr Toner to bring a Claim that those Defects did (and do) exist. I disagree. The Buildmark Policy makes very clear that it is an insurance policy provided by NHBC, where NHBC insists that its Resolution Process is followed in order for a claim to exist against NHBC, and it is difficult to see why Mr Toner’s recourse in that way to NHBC should be determinative so as to prevent him bringing claims against Bishopsgate even though the Buildmark Policy may suggest (although only in a roundabout manner) that the “Builder” is in some way party to it. Moreover, the general principle is that if a legal right is to be taken away from somebody by a contract then it should be said so expressly. However, in any event, the Buildmark Policy makes clear in its section 2 and pages 22-23 that if the Buyer disagrees with the outcome of the Resolution Service then the Buyer can seek to have the court determine the matter. Looking at the Buildmark Policy as a whole, it seems to me clear that using the Resolution Service does not prevent the Buyer suing the Builder if the Buyer disagrees with the outcome; but, in any event, Mr Toner has real prospects of success as to this.

Mr Toner has, however, sought to use the Buildmark Policy in his submissions as giving rise to a cause of action in him as against Bishopsgate, and which he would contend could not have arisen before the inception of that Policy which he would contend was on completion. That in itself would raise what seems to me to be the rather difficult questions of (1) whether Bishopsgate is such a party to the Buildmark Policy as to have accepted obligations under it (as opposed to NHBC being liable if Bishopsgate did not apply) and (2) whether such obligations on Bishopsgate would be anything other than to comply with any decision of the Resolution Service. I have great doubts as to whether Mr Toner could succeed on either point. However,

I deal with Service Charges separately below, but otherwise I therefore strike-out and grant reverse summary judgment in relation to claims against THL and Avantgarde under the Contract, but not in relation to those made against Bishopsgate.

Paragraphs 62 (and possibly 98) of the Particulars of Claim contains a direct claim against THL, Avantgarde and R&R in relation to Service Charges having been increased to pay for remedying Defects; and asserting that R&R have failed to seek recourse from THL in relation to Defects.

This Paragraph seems to me to betray a number of errors on Mr Toner’s part, and in particular that:

Therefore I cannot see reasonable grounds or a real prospect of success against THL or R&R. With regard to THL and Bishopsgate claims may exist that elements of the Service Charges form part of the losses comprised within the misrepresentation and breaches of the Contract claims, but there is no direct claim with regard to the Service Charges not having been operated according to the provisions of the Lease which can be made against them.

As against this, Mr Moss contends that Service Charge disputes are usually within the Tribunal and not taken to Court. As to this:

I therefore think there are reasonable grounds and real prospects of success for this direct claim as against Avantgarde and do not strike it out or give reverse summary judgment against it. The claim is not well particularised, as there may need to be identified precisely what amounts within the Service Charges were for matters which should have been the responsibility of Bishopsgate, but that is a matter for future case management.

I note that in relation to the carrying out (or not carrying out) of works on the

However, Mr Toner instead asserts in the County Court Particulars of Claim (no relevant breach of a duty of care being alleged in the High Court), that R&R owed him and has breached duties of care (which he contends satisfy what he submits is the correct legal test of being “fair, just and reasonable” for them to be imposed upon R&R) in relation to various of the factual matters set out above.

Mr Beresford submits that no relevant duties of care can have existed. He submits that this would be contrary to the contractual scheme which provides for the Clause 6 of the Lease obligations to be those of Avantgarde, for Avantgarde to be able to employ managing agents (being R&R), and for those managing agents to owe obligations to their employer (Avantgarde). While a party to a contract can sometimes owe obligations to non-parties, clause 12 of the Management Agreement excludes the application of the 1999 Act. Thus (subject to the Proviso) any relevant complaint or claim of Mr Toner should be against Avantgarde and which (might be able to) pass on the liability by way of seeking an indemnity, contribution or damages from R&R.

In support of these contentions, Mr Beresford relies upon that fact that no authority has suggested that managing agents employed by a landlord or management company owe a direct duty to tenants in relation to the performance of their services, and that in Poole v GN 2020 AC 780 it was stated at paragraph 64 (albeit in the context of duties owed by public authorities, although it may be said that private bodies are likely to owe less duties) that:

“64.

Robinson did not lay down any new principle of law, but three matters in particular were clarified. First, the decision explained, as Michael had previously done, that Caparo [1990] 2 AC 605 did not impose a universal tripartite test for the existence of a duty of care, but recommended an incremental approach to novel situations, based on the use of established categories of liability as guides, by analogy, to the existence and scope of a duty of care in cases which fall outside them. The question whether the imposition of a duty of care would be fair, just and reasonable forms part of the assessment of whether such an incremental step ought to be taken. It follows that, in the ordinary run of cases, courts should apply established principles of law, rather than basing their decisions on their assessment of the requirements of public policy. Secondly, the decision reaffirmed the significance of the distinction between harming the claimant and failing to protect the claimant from harm (including harm caused by third parties), which was also emphasised in Mitchell and Michael . Thirdly, the decision confirmed, following Michael and numerous older authorities, that public authorities are generally subject to the same general principles of the law of negligence as private individuals and bodies, except to the extent that legislation requires a departure from those principles. That is the basic premise of the consequent framework for determining the existence or nonexistence of a duty of care on the part of a public authority.”

It seems to me that there is distinction here between the alleged positive actions and the alleged negative failures (at least where unconnected with positive acts) of R&R.

I do not see that there is any real prospect of claims being made against R&R in relation to their alleged failures to do particular things, and in particular to (1) carry out works on the Building or (2) to resolve (or even to accept the validity of) Mr Toner’s complaints or (3) to pursue THL or (rather) Bishopsgate for the costs of carrying out relevant works.

This is essentially for the reasons advanced by Mr Beresford, but in particular that:

However, the situation seems to me to be different potentially where the alleged duty is asserted to be one not to carry out a positive physical action or is linked to a positive physical action which has been taken or is being continued by R&R. That distinction is reflected in the citation from Poole v GN. If the relevant action is such as to affect Mr Toner in the reasonable enjoyment of his Flat, even if only by the continuance of the underlying cause which is in the control or has been the creation of the actor, then the law of nuisance potentially applies, and if the relevant action is reasonably foreseeably going to harm Mr Toner (and he is sufficiently proximate) then that is a classic situation where a duty to take reasonable care exists (being essentially the “neighbour” Donoghue v Stevenson principle). There is no, or least not necessarily any, impermissible extension of the recognised duties of care. It also seems to me that they may be a different position where there has been a failure to rectify the existence of a known physical or other danger to safety or health resulting in the sustaining of injury or damage to health. Such situations have been held to give rise to duties of care where someone with control of the situation has failed to take reasonable steps to avert the danger, and, while I note that R&R was and is merely a manager rather than having a property interest, I do not think that that it is sufficiently clear for summary judgment that a duty would not exist in such circumstances. However, such claims relate to matters and damage regarding personal safety and health and not simply economic loss.

It seems to me that this analysis applies to the various switchings on and continuance of, and alleged failures to rectify, the Air Conditioning Unit, as follows:

I therefore do not think that Mr Toner does not have real prospects of success in a claim in breach of duty (nuisance or negligence) regarding the Air Conditioning Unit, or other positive actions by R&R (or, if such were advanced, failures to deal with dangers to safety or health resulting in personal injury).

Mr Toner’s claims in relation to Defamation are against R&R and Mr Prodromou (as R&R’s employee) on the basis that Mr Prodromou made allegedly defamatory statements to others about him.

These statements were all oral i.e. not in writing, and thus any claim is governed by the law of slander (not libel), being from the County Court Particulars of Claim) that:

Paragraph 49 are statements by Mr Toner that in summer 2018 he reported matters to R&R and sought to have Mr Prodromou dismissed but that nothing happened until on 21 September 2018 Mr Prodromou decided to resign.

Mr Beresford submits that these claims in defamation must fail, for the following reasons:

I think that Mr Beresford’s first point that the words are unspecific and simply insults without reference to specific conduct has force, although perhaps less so in relation to the “chatting-up” allegation but where it is questionable as to whether such an allegation is or is not defamatory in modern culture. On the other hand, much might depend upon the precise words and the particular context, and I think that I should be cautious to resolve matters summarily against Mr Toner on that basis.

I think also that Mr Beresford’s third point has theoretical force but again that it would be problematic to resolve matters against Mr Toner on that basis. The County Court Claim is within time (or at least arguably so as Mr Toner states that the papers were delivered to the County Court for issue within time) and this is an alleged sequence of defamatory statements. The full history is going to have to be considered in any event, both with regard to liability if the harassment claim continues and, in any event, with regard to loss in relation to the other claims. I do not think that it would be right to hold that Mr Toner has no real prospects of obtaining a limitation extension under section 32A.

However, I do think that Mr Beresford is right in relation to his second point. Slander requires proof of “special damage” and which has to be financial in nature. The only financial loss pleaded is in Paragraphs 50d and 50e of the County Court Particulars of Claim to the effect that the resultant distress and his work on the legal case has resulted in Mr Toner being unable to earn income and that the matters would have to be declared on a sale of the Flat and would result in diminution of its value. I do not think that this is sufficiently connected so as to amount to “special damage” caused by the slander within the meaning of the authorities, and which generally relates to the behaviour of those to whom the slander is published (or republished) acting so as to cause the victim financial loss. Since Mr Prodromou has left, even if the slander had to be disclosed (which seems dubious), I cannot see how it would affect the value of the Flat.

Paragraphs 64 onwards of the Particulars of Claim in the High Court allege that THL, Bishopsgate (alternatively Estates), Avantgarde and R&R have subjected Mr Toner to a campaign of harassment. The Particulars of Claim in the County Court Claim allege harassment, breach of contract and breach of duty of care and defamation by spoken words (i.e. slander) against R&R and Mr Prodromou.

The factual matters upon which these various claims are stated to be based are numerous. These being strike-out and reverse summary judgment applications, in the light of the authorities and principles to which I refer above, in general I have to assume that those factual matters will be proved at trial, and no party has sought to suggest to the contrary. I set them out in some more details below.

Section 1 of the Protection from Harassment Act 1997 provides that:

“(1)

A person must not pursue a course of conduct—

(a)which amounts to harassment of another, and

(b)which he knows or ought to know amounts to harassment of the other…

(2)

For the purposes of this section [F2or section 2A(2)(c)], the person whose course of conduct is in question ought to know that it amounts to [F3 or involves] harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.”

There is a statutory defence of reasonableness being shown (section 1(3)(c)) but that does not arise in this hearing which is concerned with matters only of potential summary determination.

Section 3 of the 1997 Act provides for a civil remedy for harassment as follows:

“(1)

An actual or apprehended breach of section 1(1) may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.

(2)

On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment….”

Section 7 provides in relation to interpretation of the statute that:

“(1)

This section applies for the interpretation of sections 1 to 5A

(2)

References to harassing a person include alarming the person or causing the person distress.

(3)

A “course of conduct” must involve—

(a)

in the case of conduct in relation to a single person (see section 1(1)), conduct on at least two occasions in relation to that person…

(4)

“Conduct” includes speech.

(5)

References to a person, in the context of the harassment of a person, are references to a person who is an individual.”

Mr Toner’s pleadings are to the effect that he has been harassed by each of the applying Defendants by way of the various matters stated, and with R&R being vicariously responsible for Mr Prodromou. It is accepted that vicarious liability can exist in this context – see Majrowski v Guy’s 2001 1 AC 224. Mr Toner says that he has been caused alarm and distress by numerous acts of conduct (including speech) and which have been designed subjectively, or at least which would have been appreciated by a reasonable person, to cause him such alarm or distress. His pleadings (and also his witness statements) go into great length as to this and the individual instances. The applying Defendants submit that there is simply not sufficient pleaded to amount to reasonable grounds for or real prospects of success in an harassment case at law.

Notwithstanding the width of the interpretation section 7(2), but especially in view of basic human rights as to freedom of speech and conduct, the courts have held that not all conduct which causes alarm or distress is sufficient to amount to harassment (which under the statute is both a criminal offence (although only if proved to the criminal standard of proof) as well as a civil wrong).

234.Relevant (then) authorities were comprehensively reviewed in Dowson v Chief Constable [2010] EWHC 2612. Their effect was summarised at paragraph 142 as:

“142.

I turn then to a summary of what must be proved as a matter of law in order for the claim in harassment to succeed.

(1)

There must be conduct which occurs on at least two occasions,

(2)

which is targeted at the claimant,

(3)

which is calculated in an objective sense to cause alarm or distress, and

(4)

which is objectively judged to be oppressive and unacceptable.

(5)

What is oppressive and unacceptable may depend on the social or working context in which the conduct occurs.

(6)

A line is to be drawn between conduct which is unattractive and unreasonable, and conduct which has been described in various ways: ‘torment’ of the victim, ‘of an order which would sustain criminal liability’.

The applying Defendants have pressed upon me the distinction between conduct of which the court might merely disapprove and conduct which is sufficient to cross the line into criminality (as well as civil wrong). Mr Toner submits that this is precisely what has occurred and has amounted to

“torment” of him.

However, it seems to me that I should also bear in mind some of the previous and subsequent case-law, including:

Thus the most recent authority, whilst stressing that the conduct needs to fall over the relevant boundary from merely being objectionable, appears to support the proposition that once there is such conduct which causes alarm or distress, it is only necessary that a reasonable person would consider that conduct of such nature could cause alarm or distress to the claimant (or possibly another, but that is not relevant here). The authorities also seem to indicate that:

I have some considerable difficulty with Mr Toner’s pleadings which seem to me to somewhat unfocussed, and, so some extent, predicated on an assumption that to fail to carry out a contractual responsibility, notwithstanding repeated demands, is itself harassment for the purposes of the 1997 Act if the result is to cause alarm or distress. I do not think that that is correct as a matter of law. It is not really a course of conduct, which requires active steps, and, even if the contractual responsibility is clear, the remedy is a claim for breach of contract against the contract-breaker.

Mr Toner also seems to contend that simply refusing to accept that an entity (or an associated corporate group) entity is in breach of contract or duty is harassment (at least where the breach, or the denial of it, causes alarm and distress). Again I do not think that is correct as a matter of law. Denying the existence of a breach, and not doing anything about it, may lead to an increase in the resultant loss and recoverable damages (and which I bear in mind would seem to mean that the material within the harassment claim is going to be in evidence and relevant to any trial on the misrepresentation, contract and breach of duty claims in any event) but I do not see how, however unreasonable or deliberate the relevant stance is, it can be said to be

“harassment”. If this was simply a case of silence, or a one letter “We do not accept your claims Mr Toner, sue us if you wish.” then the CPR3.4 tests for strike-out or reverse summary judgment would very likely have been met.

However, it does seem to me Mr Toner’s various alleged instance of harassment go beyond the above and can be summarised as:

I have considered this anxiously and including in the light of the dicta in Majrowski to the effect that the Courts should be astute to bring an end to misconceived harassment claims at an early stage. However, it does not seem to me that I can determine that the harassment claims (or any of them) fail to plead reasonable grounds or can be said to have no real prospect of success.

I also bear in mind that this is a developing area of the law, and in which individual cases are very “fact-sensitive”, and, and which inter-relates with what I say in the next paragraph, the warnings in Partco as to the potential for it to be inappropriate to grant limited summary judgments where the relevant pleaded facts and the associated evidence are all going to be deployed at the trial in any event in relation to other claims. While I have balanced that against the desirability (as also stated in Partco) of summarily determining cases which are bound to fail, it does seem to me that in such circumstances I should approach the question of whether summary determination is appropriate with a degree of caution.

With regard to the “Strategy” case, it does not seem to me that Mr Toner’s case is likely to be particularly strong as the relevant Defendants are likely to say that the underlying allegations of Defects are heavily and reasonably disputed (even if the Defects are established), that they engaged in ways which parties often do, and that a strategy of requiring a complainant to particularise and prove their case in detail, in the hope that they will find it impossible is legitimate, and maybe even that they will find it too much effort to do so, is standard in the commercial world. Even if this is an unreasonable approach, Mr Toner is going to find it hard to show that what has happened crosses the boundary so as to amount to harassment. It may well just involve a difference in legitimate styles and tactics of negotiation.

However:

With regard to the failures to remedy Defects, while at first sight that would not seem to be harassment and I would strike it out if it was on its own, it needs to be seen in context with the other matters (including the asserted Strategy to seek to create a situation where they could be ignored or, possibly, charged for through Service Charges), and it seems to me should remain unless I was to conclude that any harassment case would fail; especially as the question of the existence and what has happened regarding the Defects is going to have to be tried out in any event. There mere fact that disputes of this nature (i.e. repairs and maintenance to a shared Building and recovery of costs through Service Charge) are common in the Tribunal or the County Court does not mean, of itself, that they cannot form part of a case in harassment in conjunction with other matters.

With regard to the employing of Mr Prodromou, Mr Toner asserts that it was part of harassment that he was employed and then promoted and not (at least after May 2018) speedily dismissed. If this matter stood on its own then I would strike it out as:

With regard to the Air Conditioning Unit, it seems to me that this is potentially capable of giving rise to or supporting a harassment case. Mr Toner asserts that it was on two or three (at least) sets of occasions switched on for significant periods notwithstanding that it was, or should have been known to be, defective and such as to severely disrupt his sleep. He asserts that Mr Prodromou, on the instructions of R&R and/or Avantgarde, did this, and that Mr Prodromou (at least) was motivated (at least in part) by a desire to cause distress to Mr Toner or at least by recklessness as to whether or not that would be the case. This would seem to be capable (or at least not obviously incapable) of being a course of conduct within the 1997 Act as interpreted by the authorities above.

With regard to Mr Prodromou’s other conduct, again this has to be seen within the overall context, but elements of it (at least) seem to me as potentially giving rise to or supporting a harassment case, these being in particular the alleged positive actions which I summarise above and including:

Mr Beresford submits forcefully that even if unpleasant these matters should not cross the boundary. However, they have to be seen in the overall context and will take on a particular light in the course of the evidence given at a trial. I do not think that Mr Toner’s case is so obviously unsustainable that reasonable grounds have not been pleaded or that he does not have a real prospect of success.

Mr Beresford has also submitted that it is an abuse of process for the harassment allegations to feature against R&R in both the High Court Claim and the County Court Claim. However, even if there was an abuse (and which does not seem to me to be clear in view of the different jurisdictions and jurisdictional limits involved), the court considers its response as a matter of proportionality, and it seems to me that a strike-out would be

I therefore think both that reasonable grounds have been pleaded and that Mr Toner has real prospects of success, but, in any event, this aspect (and each part of it) is so bound up with the other claims that as matter of discretion I would not determine it against Mr Toner at this point or order it to be removed from the pleadings. I am therefore not going to summarily determine this aspect against Mr Toner or seek to cut-down on what is presently pleaded with regard to it.

The upshot of the above is that:

This judgment is being handed down at a hearing which will be adjourned to a further date with a 2 hours listing on the basis of all questions of permission to appeal and time for appealing (which will be extended until further order), directions (including as to strike-outs and reverse summary judgments being effected and any amendments) and costs being adjourned to then and at least 14 days before which Mr Toner will have provided his drafts of (1) the