Canary Riverside Estate Management Ltd v Alan Coates
| Jurisdiction | England & Wales |
| Judge | Mr Justice Michael Green |
| Judgment Date | 08 June 2021 |
| Neutral Citation | [2021] EWHC 1505 (Ch) |
| Court | Chancery Division |
| Docket Number | Case Nos: APPEAL NO: CH-2020-000212 APPEAL NO: CH-2020-000299 |
| Date | 08 June 2021 |
[2021] EWHC 1505 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
CHANCERY DIVISION
ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
HIS HONOUR JUDGE HELLMAN
Royal Courts of Justice
Rolls Building, Fetter Lane, London, EC4A 1NL
THE HONOURABLE Mr Justice Michael Green
Case Nos: APPEAL NO: CH-2020-000212
APPEAL NO: CH-2020-000295
APPEAL NO: CH-2020-000299
and
Charles Béar QC and Nik Yeo (instructed by Freeths LLP) for the Claimants
Guy Vassall-Adams QC and Jonathan McNae (instructed by Kennedys Law LLP) for the Defendant
Philip Rainey QC and Greg Callus (instructed by Norton Rose Fulbright LLP) for the Intervenor
Hearing dates: 20, 21 and 22 April 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Michael Green
A. INTRODUCTION
These are appeals from two Orders of His Honour Judge Hellman (the Judge) sitting in the Central London County Court. Those two Orders were case management orders concerning proposed amendments to the Defence and the establishment of a confidentiality club. While that may, on the face of it, look like a fairly straightforward set of issues, the context is a bitter and long-running feud between the owners/landlords, tenants and statutory manager of a large residential estate in Canary Wharf, Docklands, London E14, called Canary Riverside. This is but one small battle within a war that has been fought in many different proceedings. There is a long and complicated procedural history which I will try to disentangle. I say at the outset, however, that it is important not to lose sight of the fact that these appeals concern case management decisions and, even though much is at stake and the hearing took 3 days, a sense of proportion must prevail.
Canary Riverside is a mixed-use development comprising various blocks that contain some 325 residential flats (45 of which are short term serviced apartments), a hotel, health club, car park and various restaurants, commercial premises together with some shared communal spaces and grounds. The Claimant companies are the freeholders and long leaseholders of Canary Riverside. In accordance with the direction of Mann J on 2 February 2021, the Claimants will collectively be referred to as “ CREM”. Until October 2016, the estate was managed by Marathon Estates Limited ( Marathon), a company incorporated by CREM for that purpose.
The Defendant, Mr Alan Coates was appointed on 1 October 2016 as statutory manager of the estate by the First-tier Tribunal (Property Chamber) ( FTT) in exercise of its powers under s.24 of the Landlord and Tenant Act 1987 (the 1987 Act). He remained as the statutory manager until his agreed discharge and retirement in September 2019.
The intervenor, Circus Apartments Limited ( Circus), is the tenant from CREM (until 21 November 2018, and then from Riverside CREM 3 Limited) of the self-contained block of 45 serviced apartments on the estate. It shares certain services on the estate but CREM says that Circus is a commercial tenant, not a residential tenant, and that its apartments are not part of the estate that was within the control of the statutory manager.
The claim within which these appeals arise is concerned with disclosure. It is common ground that as part of a settlement in relation to a hearing before the FTT in July 2018, Mr Coates contractually agreed to provide disclosure of two categories of documents to CREM. Somewhat oddly this agreement was contained in a Recital to an Order of the FTT dated 18 July 2018. As it is central to all the issues in dispute on these appeals, I set out here the wording of the recitals:
“ AND UPON the Applicant 1 agreeing to, by 21 September 2018, disclose copies of any communication between any two of the following categories of person
(i) him (including by any employee of the HML group 2, agent or solicitors);
(ii) Bruce Ritchie 3 (whether by himself or by agent or employee of Residential Land Ltd or Circus Apartments Ltd);
(iii) Norton Rose Fulbright LLP (including any officer, member or employee).
AND UPON the Applicant agreeing to, by 21 September 2018, disclose copies of any communication between any two of the following categories of person
(i) him (including by any employee of the HML group, agent or solicitors);
(ii) Angela Jezard 4;
(iii) any email account operated by or on behalf of the Residents Association;
insofar as it relates to any discussion of or plan to acquire the proprietary interests of either of the First or Second Respondents (whether by way of acquisition order under the Landlord and Tenant Act 1987 or by other means of enfranchisement) or any issue of funding (whether of litigation or of any such acquisition) or includes the name “Christodoulou”.
This process must be at no cost to the leaseholders.”
By these proceedings CREM is seeking to enforce the agreement contained within the recitals (the Disclosure Agreement). They are claiming specific performance of the Disclosure Agreement because they say that Mr Coates has not complied with his obligations within it.
Mr Coates has put in a Defence but he admits the Disclosure Agreement. For reasons explained below, in the run-up to a hearing before the Judge in December 2019, Mr Coates admitted that he was in breach of the Disclosure Agreement. By an order dated 9 December 2019, the Judge ordered Mr Coates to search for the documents within the two categories set out above. However he was not ordered to disclose any documents that he found on the search because by then it had been appreciated that non-parties to the Disclosure Agreement may be affected by any actual disclosure to CREM. In particular, Circus and the residential tenants may wish to object to disclosure on the
Mr Coates found some 9000 documents. Circus objected to their disclosure. On 23 March 2020, the Judge permitted Circus to intervene in these proceedings. CREM applied to set aside that order but abandoned that application at the hearing on 7 August 2020.
The Judge made an order on 7 August 2020 that by paragraph 14 set up a “ confidentiality club” whereby the documents in respect of which Circus is claiming a right of confidentiality would be provided to CREM's solicitors, Freeths LLP — not to those who are conducting this litigation on behalf of CREM but to other solicitors within the firm who would be bound to keep the contents of the documents confidential and undisclosed to anyone else. Circus appeals that order. On 9 November 2020, Mann J granted permission to appeal.
On 7 October 2020, the Judge heard an application by Mr Coates to amend his Defence. In his written reserved Judgment handed down on 30 October 2020, the Judge allowed some amendments and disallowed others. The two sets of proposed amendments that are subject to this appeal have been called the “blue amendments” and the “purple amendments”.
(1) The blue amendments sought to introduce some contractual defences based on what Mr Coates is now saying is the proper construction of the Disclosure Agreement. The Judge allowed these amendments.
(2) The purple amendments concerned the attempted introduction of a “clean hands” defence. The Judge disallowed these amendments.
The Judge gave Mr Coates permission to appeal on the purple amendments and CREM on the blue amendments. CREM were arguing before the Judge and before me that both sets of amendments were an abuse of process.
On 2 February 2021 Mann J gave directions in relation to the hearing of these appeals. He ordered that the three appeals should be heard together, with a provisional direction that the amendments appeals be heard first with Circus' appeal following immediately thereafter. In the reasons for his order of 9 November 2020 whereby Circus was given permission to appeal on the confidentiality club order, Mann J said:
“The concept of class confidence (if it exists) should be argued on the appeal.”
Pursuant to that indication, Circus and CREM did argue as to the existence of the concept and Circus' claim to class confidence on Circus' appeal, even though it was not technically part of the appeal from the Judge's order as to the confidentiality club. Neither party objected to me deciding this issue. There may be a debate as to the status of my decision in that respect, in particular whether it is a first instance decision or an appeal in part by way of rehearing, but I do propose to decide that issue in accordance with Mann J's suggestion that I do.
So to summarise the matters before me and the order in which I will consider them:
(1) The Amendments Appeals:
(i) Abuse of Process — CREM's appeals against the Judge's finding that both the blue and purple amendments were not an abuse of process;
(ii) Blue amendments – CREM's appeal against the Judge's grant of permission...
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Emmerson International Corporation v Renova Holdings Ltd
...or that he was plainly wrong. Canary Riverside Estate Management Ltd and others v Coates (Circus Apartments Ltd intervening) [2021] EWHC 1505 (Ch) considered; Dufour v Helenair Corporation Limited (1996) 52 WIR 188 followed. 4. The decisions that considered the law relating to confidentia......