Anthony Paul Bamford & Elea Solutions (UK) Ltd v Austin Francis Hughes and Others
| Jurisdiction | England & Wales |
| Judge | Pelling QC |
| Judgment Date | 31 July 2020 |
| Neutral Citation | [2020] EWHC B30 Comm |
| Court | High Court |
| Docket Number | Case No: LM-2019-000201 |
| Date | 31 July 2020 |
[2020] EWHC B30 Comm
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
LONDON CIRCUIT COMMERCIAL COURT (QBD)
Skype Hearing
Rolls Building
Fetter Lane
London
EC4A 1NL
HIS HONOUR JUDGE Pelling QC
Case No: LM-2019-000201
Mr T Sherwin appeared on behalf of the Claimants
Mr D Fearon appeared on behalf of the Defendants
APPROVED JUDGMENT
HHJ
By an application notice dated 3 June 2020, the claimants in these proceedings seek permission to amend their reply and defence to counterclaim and seek judgment in respect of a claim pleaded as a loan for £70,000 this being a relatively minor part of a much larger claim which, it is common ground, must go to trial. In order to understand how this point arises and the nature of the point that must be determined, it is necessary for me to go through, in the first instance, the way in which this claim was pleaded.
The pleadings start with the particulars of claim which address this issue that I am now concerned with under a subheading saying, ‘ The Bardsley Loan Agreement’. It is pleaded that, on 12 July 2017, a meeting took place between the claimants, the relevant defendants and other individuals in order to discuss the funding of the development of some land which the defendants owned. At paragraph 47 it was pleaded that the defendants did not have sufficient funds to meet a condition which was being imposed by other funders who were present at the meeting and it was in this context that it was said that a loan agreement was entered into between Mr Bamford, one of the claimants, and Mr and Mrs Bardsley, the relevant defendants.
The claim as originally pleaded was that:
‘Mr Bamford and Mr and Mrs Bardsley entered into an oral agreement, the Bardsley Loan Agreement, at the said meeting. The Bardsley Loan Agreement had the following express terms: A, Mr Bamford would personally loan Mr and Mrs Bardsley the sum of £70,000 to enable them to procure JJBL would meet this condition precedent. B, the sum of £70,000 would be repayable on demand and, C, Mr Bamford would not demand repayment of the sum of £70,000 whilst he remained the project manager of the development project in respect of the… relevant land’.
At paragraph 49, it was pleaded that it was an implied term of the loan agreement that the sum of £70,000 would be repayable to Mr Bamford on demand, alternatively on demand after Mr Bamford had ceased to be the project manager. It is pleaded at paragraph 50 that pursuant to the loan agreement Mr Bamford transferred the sums concerned into the personal bank account of Mr and Mrs Bardsley.
The defence and counterclaim relevant to this issue is contained in paragraph 65 through to 73 of the defence. Particular reliance is placed on the way in which this case has been pleaded by the defendants today and therefore it is important that I set out precisely what it is that the defendants said in their original defence and counterclaim which insofar as is relevant provided as follows:
‘The Bardsley Loan Agreement.
65, paragraph 46 is admitted.
66, paragraph 47 is denied, Mr and Mrs Bardsley did have the funds.
67, it is denied that the £70,000 that was the subject matter of the Bardsley Loan Agreement was required to meet the condition precedent. Mr and Mrs Bardsley wanted Mr Bamford to invest some money in the development project to incentivise him to have the works completed within a year, as he had promised.
68, the express terms pleaded in paragraph 48 are denied.
69, it was an express term of the Bardsley Loan Agreement that the repayment date for the loan was, — “on completion of the sale of the three houses to be built on the Woodfields field, a development on land owned by Mr and Mrs Bardsley with land registry number… or after 30 months from the date of loan, whichever comes sooner”.
70, three houses had not been built, the loan dated is stated to be August 2017, accordingly the earliest the loan falls due for payment is February 2020.
71, as no monies are yet due, the claim should be struck out.
72, the implied terms pleaded at paragraph 49 are denied and paragraph 50 was admitted’.
The end result of all of this therefore is that the express terms asserted by the claimant were denied. The express terms relevant to the loan agreement on the defendants' case were those identified in paragraphs 69 and the events which were material were those identified in paragraph 70. The payment of the money was admitted by paragraph 73 and the key point, given the date of the counterclaim which was in 2019, was that the claim should be struck out because no money had become due and would not become due before February 2020. The reply and defence to counterclaim relevant to that particular issue was contained in paragraphs 42 to 46 of the current reply and defence to counterclaim. Insofar as is material, at paragraph 43, the current pleading by the claimant is: ‘ Paragraph 69 is denied. The express terms of the Bardsley Loan Agreement were those pleaded in paragraph 48 of the particulars of claim’.
What then happened is best taken up by going to the statement of Mr Bamford in support of this application, made on 2 June 2020. The relevant parts of the witness statement for present purposes are paragraphs 14, 15 and 19 to 21. At paragraph 13 he refers to how with the help of a solicitor friend he drew up a loan agreement in writing and gave it to Mr and Mrs Bardsley and he says of that, ‘ I intended to ensure that there was written evidence of the agreement that we had already reached’. The agreement that he says was reached was that asserted in paragraph 12 and was essentially that which is set out in the particulars of claim. At paragraph 14, he then rehearses that he set out in the written agreement the terms that he considered were terms of the agreement that had been reached but he added a nonstop date stating that ‘… provided the completion of the development or February 2020 whichever was sooner to ensure I did not have to wait indefinitely for repayment’. He then sets out at paragraphs 14.1 and 14.2 the provisions of the agreement relevant for present purposes and then says this at paragraph 15:
‘I did not receive any response from Mr and Mrs Bardsley following delivery of the loan agreement. I did not chase them because I found that managing both the development of the Woodlands Fold land and the adjacent development on their neighbours' land… was time consuming. As time went by, I forgot about checking with Mr and Mrs Bardsley about the loan agreement. I always regarded Mr and Mrs Bardsley as honourable persons and I was not particularly concerned to chase up the signed agreement. I was far more concerned to progress the development of the land at Woodlands Fold’.
He then says at paragraph 19:
‘It was only in the defence and counterclaim dated 16 December 2019 that Mr and Mrs Bardley relied on the written agreement, specifically they relied in paragraphs 69 to 71 of the defence to counterclaim on the words of the written agreement set out in paragraph 14 above and “ written agreement” in paragraph 69 of the defence and counterclaim. By that time I confess I had forgotten about the written version of the agreement, I did not recognise the words quoted, I therefore instructed Suttons that the words from the written agreement quoted in the defence and counterclaim were inaccurate since they did not correspond with the oral agreement we'd reached. It was on that basis I signed the statement of truth to the reply to defence and counterclaim’.
Suttons, that is to say:
‘… Mr Bamford's solicitors later requested a copy of the document in which the quotation at paragraph 69 was found. Under cover of Stevensons'[?] letter of 1 May 2020, Mr and Mrs Bardsley disclosed a copy of the written agreement which they had signed. This was the first I had seen of that document; I had not previously understood that Mr and Mrs Bardsley had accepted the...
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