Andrew Currie and Another v Anthony Brooks
| Jurisdiction | England & Wales |
| Judge | Lord Justice Flaux |
| Judgment Date | 23 March 2017 |
| Neutral Citation | [2017] EWCA Civ 305 |
| Date | 23 March 2017 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2016/0544, A2/2016/0904 |
[2017] EWCA Civ 305
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER DISTRICT REGISTRY
(HER HONOUR JUDGE MOULDER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Flaux
Case No: A2/2016/0544, A2/2016/0904
Mr Wilson Horne (instructed by Addleshaw Goddard LLP) appeared on behalf of the Applicant
The Respondent did not appear and was not represented
This is a renewed application by the defendant made at an oral hearing for permission to appeal the judgments of HHJ Moulder sitting in the Mercantile Court in Manchester dated 18 December 2014 and 22 January 2015 whereby the judge awarded the first claimant £81,918.44 damages, including interest on the so-called Wrotham Park basis, inclusive of interest, in respect of the defendant's breach of a non-circumvention and confidentiality agreement, the NCCA, dated 3 March 2009. By the second judgment the judge ordered the defendant to pay 65 per cent of the first claimant's costs. Permission to appeal was refused on paper by Briggs LJ on 3 August 2016.
The background facts to the dispute are set out in detail in the first judgment and are not subject to challenge so they can be summarised relatively briefly. In March 2007, a Mr Boyd entered into an agreement to purchase 107 acres of undeveloped agricultural land at Berryhill Farm, Aberdeen, the site, from its owners for £9 million, subject to the grant of planning permission. Pursuant to that agreement, Mr Boyd paid a deposit of £100,000 to the owners. The benefit of that agreement was subsequently signed over for Kingfisher Business Park LLP of which Mr Boyd was a member. Mr Boyd sought planning permission. The process was protracted and the agreement was extended. In 2008, Mr Boyd entered into discussions with the claimants who were brothers and property developers who expressed an interest in buying and developing the site. In February 2009, Mr Boyd agreed, in principle, pursuant in unformalised gentleman's agreement to transfer the benefit of the agreement to the claimants. In return the claimants were to pay Kingfisher £14 million out of which Kingfisher would pay the £9 million due to the owners. It can be seen that in those circumstances what the claimants effectively acquired was an option.
At a meeting on 3 March 2009, the defendant was introduced to the claimants by an entity called Convex, which had agreed to seek funding for the claimants. Prior to the meeting, Convex had entered a confidentiality agreement with Generate Land, the defendant's company. At the outset of the meeting the first claimant and the defendant signed the NCCA. So far as relevant to the matters raised on this application, that provided as follows:
"Whereas the parties wish to enter into discussions and provide information to each other for the purpose of considering matters of mutual interest and which may result in the parties working together on various business proposals for their mutual benefit ('the purpose') and they acknowledge that this will include the disclosure of confidential information. […]
Section 1. Non-Circumvention. The parties shall not in any way whatsoever circumvent or attempt to circumvent each other or any party represented by them in connection with any transaction which shall be the subject of discussion by the parties. […]
Section 6. Term. This Agreement shall continue to be in effect and be binding between the parties for five years from the date hereof."
At 3 March 2009 meeting, the parties discussed the possible sale of the site in Aberdeen through the claimant, as well as a potential development elsewhere in Lancashire. On 27 May 2009 the defendant sent Mr Boyd an email offering to acquire an option over the whole site for around £14 million, together with an introducer's fee of 2 per cent to be paid to the claimants. On 12 March 2010 the defendant sent a letter to Mr Boyd offering to take an option over the whole site for a period of 36 months at a total price of £12.5 million. On 16 April 2010, the owners agreed in principle to sell the first 30 acres to Kingfisher for £3 million payable on 28 May 2010 with an option to acquire the remainder for £5.5 million within three years or £6 million within four years, with exclusivity to Kingfisher until 28 May 2010. That offer was not, in the event, taken up and no formal agreement was entered into.
Although neither Kingfisher nor Mr Boyd had any continuing interest in the site, after 28 May 2010, the claimants' case was that Mr Boyd had a continuing ability to enter into a contract with the owners because of his long history of dealing with them, his efforts to obtain planning permission and his knowledge of the local area. In the meantime, both the claimants and the defendant continued to investigate funding for the purchase and development of the site and in March 2012, Mr Boyd received a letter from the RAF Group expressing an interest in purchasing the site as well as a possible joint venture with him.
On 11 April 2012, the defendant entered into a contract directly with the owners through a vehicle, Generate Land (Berryhill Farm) Limited, purchasing 30 acres for £3 million with an option to purchase a further 60 acres for £7 million. On 22 May 2012, Mountgrange Real Estate Opportunity Fund was assigned the benefit of the Generate agreement for a fee of £262,000 per annum, payable to Generate Land. It developed the first 30 acres but did not exercise the option over the remaining 60 acres and that option subsequently lapsed.
There are issues of trial which are no longer relevant. In particular, there was an issue as to whether the second claimant was a party for the NCCA, which the judge found he was not. The judge rejected submissions by the defendant that the NCCA was void for uncertainty or had been terminated by the...
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