BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Before :
RECORDER SINGER KC
sitting as a Judge of the TCC
Between :
BALTIMORE WHARF SLP | Claimant |
- and – | |
BALLYMORE PROPERTIES LIMITED - and – WSP UK LIMITED (formerly known as WSP Buildings Limited) | Defendant Part 20 Defendant |
Nicholas Trompeter KC (instructed by Knights Professional Services Ltd) for the Claimant
Mischa Balen (instructed by Herbert Smith Freehills Kramer LLP) for the Defendant/Part 20 Claimant
Luke Wygas (instructed by Weightmans LLP) for the Part 20 Defendant
Hearing date: 4th February 2026
Approved Judgment
This judgment was handed down remotely at 10.00am on 16 February 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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RECORDER SINGER KC
RECORDER SINGER KC:
Introduction
These are applications by the Defendant and the Part 20 Defendant for summary judgment/strike-out of the Claimant’s actions on the basis that the proceedings between the parties have been settled. There is also an application by the Defendant to amend its Defence.
The issue for determination in the applications is whether there is a reasonably arguable defence to the Defendant’s/Part 20 Defendant’s contention that there is a legally-binding settlement of the underlying dispute which came into existence on 24th September 2024.
In making my judgment, I have considered all the evidence and written and oral submissions from Counsel for which I am most grateful.
I remind myself that the success of applications for summary judgment are subject to the applicants persuading the Court that there is no reasonably arguable defence. This is not a trial of the issue whether there has been a binding settlement, when the issue would be determined on the balance of probabilities. That said, it has not been suggested that there will be any additional factual evidence which might be deployed at any further trial and in effect it is accepted that if the applications are refused then the settlement issue cannot in reality go any further.
The Underlying Dispute
The underlying dispute concerns the collapse of the roof of a nursery at Baltimore Wharf in London, E14 on the evening of 15th July 2023. The claim against the Defendant is brought pursuant to a Collateral Warranty dated 7th January 2013. There is also a claim in tort. The allegation made is that the collapse was caused by the failure of the connection between the nursery roof steel beams and the RC frame. The proceedings were issued on 31st May 2024. The damages claimed were estimated at over £2 million. The Defence served on 17th July 2024 relies, in brief, on limitation, the complaint of a want of particularity in the claim and that the claim in tort is for pure economic loss and therefore irrecoverable. The Defendant brought a Part 20 claim on the same date against the Part 20 Defendant to which no Defence has yet been served.
The Facts leading up to 24 September 2024
The facts were not in dispute before me. They are set out in the witness statements and the emails and other documents exchanged between the parties.
On 30th July 2024 the Third Party made an offer under the heading “Without prejudice save as to costs and subject to settlement agreement” to the Defendant in response to a suggestion that the Third Party should contribute £150,000 to any such settlement. On 1st August 2024 Jefford J made a Consent Order staying the proceedings until 1st October 2024 and making other directions.
There were further discussions and on 29th August 2024 under the heading “Without prejudice save as to costs and subject to contract” the following email was written by the Defendant’s solicitors to the Claimant’s solicitor, Ms Cowley, and the Third Pary’s solicitor, Ms Irwin:
“We understand that our clients have agreed to settle the dispute on the basis that Ballymore pays £300k and WSP pays £100k to Baltimore Wharf. On that basis, please see a draft settlement agreement attached for your consideration. We trust that the proposed terms are acceptable but please let us know if you have any comments.
We look forward to hearing from you soon.”
The draft Settlement Agreement attached was also headed “Subject to contract and without prejudice save as to costs” on the top of each of its pages. Clause 8.9 under the heading “Counterparts” provided:
“8.9.1. This Agreement may be executed in any number of counterparts and by each Party on separate counterparts each of which when executed shall be an original but all the counterparts together constitute one agreement …
8.9.3. No counterpart shall be effective until each party has transmitted to the others at least one executed counterpart.”
In addition, the draft provided a signature and execution block.
On 10th September 2024 the Part 20 Defendant’s legal advisor, Ms Bird, sent an email:
“Please find attached WSP’s comments on the draft Settlement Agreement which reflects WSP’s offer to Ballymore.”
The draft Settlement Agreement was again headed “Subject to contract and without prejudice save as to costs” on each of its pages.
On the same day the Defendant’s solicitors replied with two “minor” points. The Settlement Agreement attached was again marked “Subject to contract and without prejudice save as to costs” on each of its pages.
On 17th September 2024 a chasing email headed “Without prejudice save as to costs” was sent. Again, the Settlement Agreement attached was marked “Subject to contract and without prejudice save as to costs” on each of its pages. The same day the Part 20 Defendant emailed accepting the amendments.
On 24th September 2024 at 9.51 am the Defendant’s solicitors sent an email to all parties but specifically to Ms Cowley under the heading “Without prejudice save as to costs”:
“Dear Caroline
Further to our email exchange below I should be grateful if you would let me know if the Settlement Agreement is agreed.”
By return email sent five minutes later at 9.56 am Ms Cowley replied:
“Dear David
I confirm that the Settlement Agreement with WSP’s amends is agreed.”
By return email under the heading “Without prejudice save as to costs” the Defendant’s solicitors asked for the Claimant’s bank account details for inclusion in the Settlement Agreement and stated:
“We will then circulate an execution version of the Agreement.”
Bank account details were provided by return email and an “execution version” of the Settlement Agreement without any “Subject to contract” and/or “Without prejudice save as to costs” headings on any of its pages was then sent to the other parties. It is agreed that the “execution version” was sent post the conclusion of the agreement between the parties.
In her witness statement Ms Irwin states at Paragraph 29:
“I was copied into the emails referred to above. It was at that point that I took it that the parties had agreed a tripartite settlement of BW’s claim and that all that was required to regularise the proceedings was for IBB Law’s bank details to be provided and the Settlement Agreement and an accompanying Tomlin Order to be signed.”
Mr Whip, the Defendant’s solicitor, states in his witness statement at Paragraph 48:
“While I agree that the travelling draft was marked ‘Subject to contract’, I do not agree that this precludes a binding settlement agreement. By way of IBB Law’s email dated 24 September 2024, Ballymore, Baltimore Wharf and WSP agreed to compromise the claim and the ‘Subject to contract’ protection fell away.”
There is no witness statement from Ms Cowley.
Events after 24 September 2024
On 25th September 2024 the Part 20 Defendant attached the Settlement Agreement signed on its behalf and asked the other parties to do the same. As noted above, proceedings had been stayed until 1st October 2024 and understandably the parties and their lawyers were keen to finalise the signatures of the Settlement Agreement before the stay expired. There was no suggestion at this stage that the Settlement Agreement was other than, to use the vernacular a “done deal”. Whether that was indeed the position is the issue before the Court.
The Defendant also executed the Settlement Agreement on that day.
An email attaching a Tomlin Order was sent out on 27th September 2024. That email includes:
“Upon the parties having agreed terms of settlement”
and also includes at Paragraph 1):
“All further proceedings in this action be stayed upon the terms set out in the annexed Settlement Agreement between the parties dated [30] September 2024, except for the purpose of enforcing those terms.”
On 30th September 2024 an alternative Order was sent.
Post expiry of the stay, efforts to obtain the necessary signature from the Claimant continued. On 11th October 2024 a suggestion was made for the stay to be extended. The Claimant’s solicitors replied on 11th October 2024:
“It does not look like I will get our client’s signed Settlement Agreement back today so I have prepared the attached Consent Order as suggested. Once signed, we will file at court.”
On 15th October 2024 the Claimant’s solicitors sent a further email stating, amongst other things:
“Our client needs its Executive Officers to review the Agreement before sign-off. We are trying to pin them down and it is hoped that the Agreement will be signed off by the end of next week.”
On the same day Joanna Smith J made a Consent Order.
Matters dragged on. On 20th November 2024 the Defendant’s solicitors wrote to the other parties including:
“It is clear that settlement terms were agreed and are binding upon the parties notwithstanding that the Settlement Agreement has not been signed by your client.”
The Claimant’s solicitors replied including at Paragraph 3:
“You omit to state … that the travelling draft Settlement Agreement which was first circulated by you on 29 August was marked ‘Subject to contract’. By issuing a travelling draft bearing these words your client was communicating unambiguously to the other parties that no binding Settlement Agreement would come into effect unless and until the document was formally executed.”
The Settlement Agreement remains unsigned by the Claimant and the applications were issued in April 2025.
Relevant Legal Principles
There is no dispute between the parties as to the relevant legal principles as to the meaning and effect of the use of the phrase “Subject to contract” in negotiations and when and how the “Subject to contract” restriction, sometimes described as an “umbrella” can be removed. The leading case is the decision of the Court of Appeal in Joanne Properties Ltd v. Moneything Capital Ltd [2020] EWCA Civ 1541. In that case, Lewison LJ giving the judgment of the Court noted at Paragraph 12 under the heading “Subject to contract” that:
“Whether two persons intend to enter into a legally binding contract is of course to be determined objectively. But the context is all important: Edmonds v. Lawson [2000] QB 501. In this case the most important feature of the context is the use of the phrase ‘Subject to contract’.”
That feature also applies to this matter.
At Paragraph 16 and following the Learned Judge continued:
“16. Males J applied that observation in a context of deciding whether an arbitration claim under a shipbuilding contract had been settled: Goodwood Investments Holdings Inc v. Thyssenkrupp Industrial Solutions AG [2018] EWHC 1056 (Comm). In RTS Flexible Systems Ltd v. Molkerei Alois Muller GmbH & Co KG [2010] UKSC 40; [2010] 1 WLR 753 the Supreme Court considered its application in the context of an alleged contract for the supply and design of machinery. So the principle is not confined to contracts for the sale of land.
17. Once negotiations have begun ‘Subject to contract’, in the ordinary way that condition is carried all the way through the negotiations: Sherbrooke v. Dipple [1981] 41 P&CR 173. As Lord Denning MR explained, ‘But there is this overwhelming point: everything in the opening letter was “Subject to contract”. All the subsequent negotiations were subject to that overriding initial condition.’
18. In the course of the judgment both Lord Denning MR and Templeman LJ approved the proposition formulated by Brightman J in Tevanon v. Norman Brett (Builders) Ltd [1972] 223 EG 1945 that ‘Parties could get rid of the qualification of “Subject to contract” only if they both expressly agreed that it should be expunged or if such an agreement was to be necessarily implied.’
19. Templeman LJ also approved a further passage of Brightman J’s judgment in which he said ‘… When the parties started their negotiations under the umbrella “Subject to contract” formula or some similar expression of intention, it was really hopeless for one side or the other to say that a contract came into existence because the parties became of one mind notwithstanding that no formal contracts had been exchanged. Where formal contracts were exchanged it was true that the parties were inevitably of one mind at the moment before the exchange was made. But they were only of one mind on the footing that all the terms and conditions of the sale and purchase had been settled between them and even then the original intention still remained intact that there should be no formal contract in existence until the written contracts had been exchanged.’
20. Templeman LJ went on to say, ‘Accordingly, in my judgment the Judge with great respect fell into the error which was adumbrated by Brightman J, namely of thinking that because parties got near a contract or conveyance these parties assumed that they would happily go on until matters had become binding therefore the “Subject to contract” qualification either ceased to have effect or was replaced by a new contract. That, in my judgment, is not the position. It is always the case that in “Subject to Contract” negotiations one side or both from time to time speak as though there was a contract or would be a contract and that is because everybody looks on the bright side and thinks a sale is going to take place. The fact of the matter is that for very good reasons the “Subject to contract” formula enables one to see at once whether there is or is not a contract, either a contract exchanged or conveyance executed and delivered or whether the parties are in the negotiation stage. Once one gets away from principle then all this difficulty and reliance on odd conversations and letters produces uncertainty in law.’
21. This Court reaffirmed that approach in Cohen v. Nessdale Ltd [1982] All ER 97.
22. In RTS Flexible Systems Ltd the Supreme Court held that on the particular facts of that case the equivalent of a ‘Subject to contract’ clause had indeed been waived; not least because a putative contract had been partly performed. In terms of the general approach, Lord Clarke said at [47]: ‘We agree … that in a case where a contract has been negotiated subject to contract and where it begins before the formal contract is executed it cannot be said that there will always or even usually be a contract on the terms that were agreed subject to contract. That would be too simplistic and dogmatic an approach. The Cout should not impose binding contracts on the parties which they have not reached. All will depend upon the circumstances.’
23. He added at [56]: ‘Whether in such a case the parties agreed to enter into a binding contract waiving reliance on the “Subject to [written] contract” term or understanding will again depend upon all the circumstances of the case although cases show that the Court will not lightly so hold.’
24. In Jirehouse Capital v. Beller [2009] EWHC 2536 (Ch) Peter Smith J held that the ‘Subject to contract’ formula had been lifted by necessary implication. In so holding he applied the principle in Cohen v. Nessdale. Whether he was right or wrong on the facts of that case do not concern us. His decision is simply an application of the principle to particular facts.”
As a matter of principle, therefore, it is clear that once a negotiation includes a “Subject to contract” reservation, that conditionality remains unless all parties expressly agree it has been removed or such agreement is to be necessarily implied. The requirement to show such agreement/implication is a high bar as per RTS: “the Court will not lightly so hold.” That there is a high bar is accepted in this matter by the Defendant and Part 20 Defendant’s Counsel.
Jirehouse Capital v Beller [2009] EWHC 2536 (Ch) was a decision on its own facts as demonstrated by the same Judge’s decision to the contrary effect (on its facts) in Morgan Walker Solicitors LLP v. Zurich Professional & Financial Lines [2010] EWHC 1352 (Ch). See also Bieber & Others v. Tethers Ltd (in liquidation) [2014] EWHC 4205 (Ch), a decision of HHJ Pelling QC (as he then was) at Paragraph 15 and the reference I have already set out to Paragraph 24 of the Joanne Properties case.
It is of course trite law that cases depend on their own facts, as again accepted by Counsel in this matter. But in this area of law that is perhaps an even more salutary reminder than in some others.
In Jirehouse at Paragraph 29 the Learned Judge stated:
“All the lawyers conducted themselves as if the matter was finally concluded in the sense that all the Counsel was stood down and the parties made alternative arrangements. Mr Kremen and Mr Treon, as I have said, congratulated themselves on having a done deal.”
In finding that the “Subject to contract” umbrella had been expunged by necessary implication, the Learned Judge stated at Paragraph 38:
“Have come to the conclusion that the circumstances of the negotiation between Mr Treon and Mr Kremen are such that they can only be understood as being on the basis that there was a necessary implication that the subject to contract restriction was lifted. The reasons are as follows. First, Mr Kremen was not alive to any subject to contract restriction during the negotiations. He was negotiating on behalf of his client and he has ostensible authority as Counsel to negotiate for a compromise in respect of the subject matter of the dispute in which he was retained (not the QBD action) irrespective of the earlier subject to contract limitations. Second, both he and Mr Treon were anxious to achieve finality that night and both of them believed they did so. I have concluded on the basis of Mr Treon and Mr Kremen’s evidence in particular that all that remained was to put in a form of writing the agreement which had been negotiated over the telephone conversations. That would not be a big exercise as drafts had been circulating well beforehand. The parties had acted as if a final settlement had been achieved. Mr Kremen in particular accepted instructions which would have made it impossible for him to appear in this trial if it had been listed during that week … Fourth, it seems to me that when parties shortly before the trial instruct their lawyers to conclude a settlement it can only be on the basis that if there is an agreement it is a necessary implication of that agreement that any previous subject to contract umbrella had been lifted. There was no point in negotiating immediately before a trial commences if the parties have to go away and draw up documents which they have to be considered if the parties are not prepared to implement the agreement. Such actions lead to further difficulties. It makes it possible for someone with hindsight seeking to resile, thus seeking to take an advantage. What is what Mr Treon actually did.”
Similarly to Lewison LJ, I agree that the decision in Jirehouse must be considered on its particular and somewhat unusual facts which are, of course, very far from the facts of this matter.
The Defendant also sought to rely on the decision in Newbury v. Sun Microsystems [2013] EWHC 2180 (QB). However, as Mr Trompeter KC rightly pointed out, that case is not a subject to contract case at all and is not therefore directly applicable to this particular issue.
The parties did not agree whether in deciding if a subject to contract umbrella has been removed the Court can look at conduct post “agreement”. I was referred to Jirehouse as an example of the Judge doing that at, for example, Paragraph 41. I was also referred to RTS at Paragraph 86 and Joanne Properties at H5 of the headnote to show that looking at performance of the agreement is admissible and therefore post “agreement” conduct is clearly also admissible. I was also referred to Goodwood at Paragraph 22 and Nautica Marine Ltd v. Trafigura Trading LLC (the Leonidas) [2020] EWHC 1986 (Comm), [2021] CLC 362. On the other side of the argument are Newbury at Paragraph 27 and Bieber at Paragraph 55. In Newbury, Lewis J stated:
“At first where a contract is said to be contained in a document or documents I do not consider that it is legitimate to have regard to the parties’ subsequent conduct for the purpose of considering whether those documents give rise to a binding agreement. In those circumstances the question for the Court will be whether considering the whole course of events up to and including the documents in questions the parties objectively have reached agreement. That would involve consideration of the meaning of the documents viewed against the whole of the relevant background to the negotiations, but as Males J put it in the Air Studios case at Paragraph 5, ‘Once the parties have to all outward appearances agreed in the same terms on the same subject matter usually by a profess of offer and acceptance a contract will have been formed. Conduct after that date is not a legitimate aid in determining whether or not the parties had reached an agreement by that date. Such conduct may be relevant if it is said there is a variation or new agreement or it is alleged that the contract is a sham or in other limited circumstances such as claims of estoppel. It may be that evidence of such conduct may be admissible and relevant if there is a dispute as to whether or not particular terms not included in the written documents were terms of the agreement. If the contract is oral or partly in writing and partly oral the parties conduct may be relevant to test the evidence as to whether or not the terms were agreed or which terms were included. But where the contract is said to be contained in documents, conduct occurring after the date of the documents will not be a legitimate aid in determining whether, properly construed, those documents were intended to give rise to a binding contract’.”
That paragraph was cited with approval in the Bieber matter at Paragraph 55. Like HHJ Pelling QC, I agree that I should follow that analysis because I am also satisfied that it is right.
That said, as did HHJ Pelling QC, I will consider the events post agreement in case I am wrong in my legal analysis.
The Parties’ Respective Cases
It is common ground that as at 24th September 2024 a settlement of the proceedings had been agreed namely all the terms in the draft Settlement Agreement dated 17th September 2024. As I have already noted, the issue is whether that settlement was subject to contract and therefore not binding pending the signature of the execution version of the Settlement Agreement or, to use the language of Joanne Properties at Paragraph 33, “whether the parties intended to enter into a legally binding agreement at all.”
Without I hope doing a disservice to any of the parties’ respective cases, my brief summary of the Defendant’s and Part 20 Defendant’s position is that on 24th September there was no reliance on any earlier “Subject to contract” reservation. It is also contended that the parties’ post-24 September 2024 actions are only consistent with a binding Settlement Agreement being in place. In that respect, Mr Wygas in particular relied heavily on the decision in Jirehouse. The Defendant’s further position is that the email from the Claimant’s solicitor at 9.56am on 24th September 2024 was unambiguous, unqualified and there was no reservation condition or reference to subject to contract in that email. The use of the present tense word “is agreed” is said to be significant. It is also said that the subject to contract reference needs to be read in context and the lack of the subject to contract heading in emails post-29th August 2024 is relied upon, as is the content of the draft Order sent after 24th September. The Defendant and Part 20 Defendants also rely upon the Claimant’s solicitor’s post-24th September 2024 conduct and the lack of a witness statement from Ms Cowley.
The Claimant’s position is that the fact that the parties got close to a fully executed Settlement Agreement does not mean that the subject to contract umbrella ceased to have effect. There is no claim that there has been an express removal of the subject to contract reservation and there is no implied reservation either pleaded (in the draft Amended Defence) or in the evidence before the Court, which is in any event said to be inadmissible, post-24th September. In the alternative, the Claimant relies on the post-24th September 2024 conduct to show that there was no removal of the subject to contract reservation by implication.
Discussion
The Defendant and Part 20 Defendant accept that they need to clear a high bar in showing that the subject to contract reservation contained in the travelling draft in play as at 9.56 am on 24th September 2024 had been removed by necessary implication.
So far as the facts up to and including the sending of that email are concerned, I am satisfied that by that email the Claimant agreed to all the terms of the Settlement Agreement sent under cover of the email dated 17th September 2024. That Settlement Agreement included, on the top of every page, the words “Subject to contract and without prejudice save as to costs”.
Realistically, and in my judgment entirely properly, Mr Wygas accepted that if the emails up to and including that at 9.56 am were all that could be relied upon, that is insufficient evidence to demonstrate the removal of the subject to contract reservation. I agree with his acceptance and would add, notwithstanding the force of Mr Balen’s submissions as to the effect of the present tense wording of the 9.56 am email and that Ms Cowley must have had instructions to write such an email, nevertheless there is in reality nothing to demonstrate that Ms Cowley and hence the Claimant had necessarily implied a removal of the subject to contract conditionality. There is quite simply nothing to show that the clear continued use of the subject to contract words in the travelling draft Settlement Agreements was being abandoned by the Claimant or, for that matter, by the other parties as at 9.56 am on 24 September 2024.
Certainly, there is no pre-9.56 am conduct that in any way takes the matter outside the normal in respect of an alleged binding agreement where the negotiations commence and remain under subject to contract conditions as set out in Joanne Properties. As Mr Trompeter KC put it, correctly in my judgment, Joanne Properties shows that a reply “accepting” the terms of a subject to contract agreement cannot in and of itself lead to a binding agreement. Here, the “acceptance” at 9.56 am is the high point of the Defendant’s and Part 20 Defendant’s argument and for the reasons I have given it cannot succeed.
So far as post-24th September 2024 conduct is concerned, even if admissible, in my judgment it is at best ambiguous and in places supportive of the Claimant’s position. As a general observation, I do not follow why parties’ legal representatives would consider it necessary to extend stays of proceedings which have been settled. A simple letter to the Court from the parties saying that this matter has settled and an order will follow would have been entirely sufficient. The fact that all parties agreed to stays of the timetable (not merely extensions of the stay) cannot on an objective view be consistent with all parties believing that the underlying dispute had already been settled on a binding basis. Whilst I accept that the Claimant’s solicitors gave every impression that they hoped a signature to the execution version of the Settlement Agreement would be forthcoming post-24th September 2024, that of itself cannot imply that the subject to contract reservation of the previous (agreed) version of the Settlement Agreement had already been removed.
Further, the response from the Claimant’s solicitors on 15th October 2024 made clear, in my judgment, that there had been no implicit removal of the subject to contract reservation, and even more telling is the lack of a strong response by the solicitors for the Defendant or the Part 20 Defendant to the news that the terms were the subject of a “review”. If it is correct that the Defendant and Part 20 Defendant believed that the 24th September 2024 agreement was legally binding on all parties, at the least a reasonable objective observer would expect to see some surprise or disappointment when the email was received. The fact that there was none is significant in my judgment.
I accept that it is more than likely that the Claimant changed its mind at some time after 24th September 2024 and decided not to sign the executed version of the Settlement Agreement. Whether that change of mind was a good or bad decision is not for this Court to determine. The only issue for the Court is whether it was too late for the Claimant to do that. In my judgment, the evidence shows clearly for the reasons I have stated that there was no implicit removal of the subject to contract reservation by the Claimant and the agreement remained subject to contract.
Conclusion
The applications are dismissed. For the avoidance of doubt, I do not grant permission to amend the Defence because I am not satisfied that the argument raised by the proposed amendment (the same one raised in the Part 24/strike-out application) has any real prospect of success.
I invite the parties to agree the terms of the Order to follow this judgment, but if agreement cannot be reached I will hear them in due course.