Carleton (Earl of Malmesbury) v Strutt & Parker (A Partnership)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE JACK,Mr Justice Jack |
| Judgment Date | 24 April 2008 |
| Neutral Citation | [2008] EWHC 616 (QB),[2007] EWHC 2641 (QB),[2007] EWHC 999 (QB),[2007] EWHC 2199 (QB),[2008] EWHC 424 (QB) |
| Docket Number | Case No: HQ5X03299,Case No: HQ05X03299 |
| Court | Queen's Bench Division |
| Date | 24 April 2008 |
[2007] EWHC 2199 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN's BENCH DIVISION
Mr Justice Jack
Case No: HQ05X03299
Anthony Speaight QC (instructed by Stockler Brunton) for the Claimant
Timothy Lamb QC & John Gallagher (instructed by Williams Holden Cooklin
Gibbons LLP) for the Defendant
Hearing date: 20 September 2007
Approved Judgment
(Reconsideration)
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.
On 11 May 2007 I handed down judgment in an action for professional negligence brought by the claimants against their advisers in connection with the leasing of land to Bournemouth International Airport for the parking of cars. I found that negligence was established, although not to the extent alleged by the claimants. I did not decide what the claimants were entitled to by way of a money sum as damages, but at the request of the parties made during the trial left that to be determined subsequently. I was asked, however, to make some findings relating to damages and did so. By a request dated 23 July 2007 I am asked to reconsider an aspect of my findings with a view to increasing the turnover rent which I held should have been negotiated from the 10 per cent in the judgment to 20 per cent. If I accede to the request, it would appear approximately to double the claimants' damages. As an alternative I am asked to revisit my refusal of permission to the claimants to appeal on that issue.
I refer to my judgment for the events giving rise to the action, the issues between the parties and my findings. I will refer to those involved as I did there. It is enough for the present purpose to state as follows. I found that Mr Ashworth, a consultant employed by the defendants, Strutt & Parker, had been negligent in connection with the negotiation of two leases, the 2002 lease and the 2003 lease. I acquitted him of negligence in respect of the 2000 lease. I held that he should have negotiated with BIA for a turnover rent in the 2002 lease, namely a rent which was a proportion of the income to BIA from the car park after expenses including capital expenses. I held that, if he had done so, the probability was that he would have achieved a figure of 10 per cent in addition to a fixed sum of £9,000 per annum (Field A, Field B—pro rata). I held that, if this had been achieved, the same would have been adopted in the 2003 lease. The 2002 lease covered fields called 'A' and 'B'. The 2003 lease covered Field C. I thus had to decide what would have happened in a negotiation between BIA and Mr Ashworth which did not occur. I had no help from the parties because it was the case of the claimants that BIA would have agreed a split—as it was called—of 80 per cent to the Estate, which I regarded as wholly unrealistic, and it was the case of Strutt & Parker that BIA would not have agreed a turnover rent at all : see paragraph 137 of the judgment. In paragraph 152 I set out a number of factors relating to the positions of BIA and the Estate, first those which favoured BIA not ceding a turnover rent or not ceding a high turnover rent, and second those which favoured the Estate achieving a turnover rent with a higher percentage. In paragraph 156 I stated that I thought that in any negotiation for a turn over rent the starting point for BIA would be to assess what the proposed rent would cost them. In paragraph 157 I referred to the figures for car park income produced in 2006 by Strutt & Parker's expert, Ms Congdon. I stated that I was looking for something which would give me an order of size rather than precise figures, and I used her figures to get an idea of what rent splits of 1, 5, 10, 15 and 20 per cent might have provided. In paragraph 158 I referred in particular to one aspect of the costs which BIA would incur if it did not reach agreement with BIA, namely bussing costs. In paragraphs 159 and 160 I referred to particular features of the parties' positions. I paragraph 161 I stated that, if Mr Ashworth had stood out for a modest turnover rent, both sides were in positions where they could not allow the negotiation to fail. In paragraph 162 I concluded that the chances of BIA refusing a turnover rent altogether were so low that I should ignore the possibility. Paragraph 163 was in these terms:
“In the negotiation BIA would have sought to concede as low a percentage of turnover as possible. While neither side could afford to allow the negotiation to fail, BIA was in the stronger position and this would have been reflected in the outcome. I have concluded that the figure which the parties are most likely to have agreed upon in the circumstances is 10 per cent. If Mr Ashworth had achieved that, he would have fulfilled his duty to the Estate.”
I am asked to reconsider the figure of 10 per cent by reason of three matters. First, Ms Congdon's figures included vat, which should be taken out to get actual earnings. Second, her figures included income from Field C from 2008. Third, in cross-examination Ms Congdon agreed that her figures over-stated income by a percentage, the amount of which remained in dispute.
The history of the action which is relevant to the present application is as follows. I must first refer to the dispute as to the measure of damage. The claimants claim as damages the difference between the rents that they would have received if leases had contained turnover rents, and the actual rents. This basis was not challenged until Strutt & Parker's written argument provided for the trial and exchanged shortly before. It was there submitted that the correct measure was the difference in the capital value of the leases, negligent and non-negligent, actual and hypothetical, at the breach dates. There was no evidence from either party as to capital values. In my judgment I held that the capital value at breach date basis was correct. The draft judgment was sent by e-mail to counsel on 30 April 2007. Because of the request that I should leave over the quantum of damage but nonetheless decide some issues relating to damages, by an e-mail of 2 May counsel were asked to satisfy themselves that the judgment dealt with all matters which it was intended should be dealt with at that stage, also that it accurately recorded the submissions made and on occasion not made. The claimants responded to this on 9 May raising various matters and in consequence I added paragraphs to the judgment dealing with two further topics—paragraphs 200 and 201. The judgment was handed down on 11 May. Immediately following the handing down I heard submissions as to appeals, the further conduct of the action and costs. I was asked by both parties to postpone all matters relating to appeals until after the conclusion of the damages hearing. I made various orders. During the course of submissions I appreciated that in section N of the judgment dealing with various matters relevant to damages I had failed to state that my conclusions were relevant only to the basis of damages for which the claimants had contended, and not to the breach date basis for which Strutt & Parker contended. Having informed counsel of my intention, and without objection, I subsequently added a new paragraph to the judgment, 201A, to deal with this. I decided that the claimants' application for an interim payment should be heard on 22 May. On 15 May I handed down a ruling that I would assess damages on both bases so the position would be covered in the event of a successful appeal on the measure of damage. On 22 May I adjourned the hearing of the interim payment application by reason of the service of further evidence on behalf of the claimants. I subsequently decided that due to problems with my own availability it should be heard by another judge. It was heard by Mr Justice Langstaff in June. I do not know the outcome. At the conclusion of the hearing on 22 May I was asked by Mr Speaight to grant the claimants permission to appeal on three grounds: the measure of damages, the finding of 10 per cent as the likely turnover rent, and the status of the Airport road. I granted permission on the first, but refused it on the second and third.
An order to reflect what had occurred on 11 May was agreed between counsel and in accordance with CPR 40.2(2)(6) was submitted to the Court Office and sealed (that is, stamped) on 30 May. The preamble of the order referred to the trial and the handing down of the judgment, and then paragraph 1 provided:
“1. There be a trial on the outstanding aspects of quantum needed to assess the damages to be paid by the First Defendants to the Claimants, such trial to be reserved to Mr Justice Jack.”
A further order was agreed between counsel to reflect what had occurred on 22 May, and this was submitted to the Court Office and sealed on the same day as the first order, 30 May. Paragraphs 10, 11 and 12 of the order recorded my grant and refusals of permission to the claimants to appeal on the issues I have mentioned.
On 4 July 2007 the claimants issued an application notice asking that they be permitted to change two of their experts. They also served on 6 July a document dated 5 July and titled 'Claimants' request for clarification of the judgment of Mr Justice Jack'. It raised a number of questions which were or might be relevant to the assessment of damages. Paragraph 46 stated that the claimants had it in mind to make an application at the assessment of damages in October for a revision to the judgment in respect of the percentage split for the turnover rent or alternatively for reconsideration...
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