Chartbrook Ltd v Persimmon Homes Ltd and another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd,Lord Justice Rix,Lord Justice Tuckey,Lord Justice Rimer,Lord Justice Lawrence Collins |
| Judgment Date | 12 March 2008 |
| Neutral Citation | [2007] EWCA Civ 1222,[2008] EWCA Civ 183 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2007/0621Y,Case No: A3/2007/0621 |
| Date | 12 March 2008 |
[2007] EWCA Civ 1222
Lord Justice Rix and
Lord Justice Lloyd
Case No: A3/2007/0621Y
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, CHANCERY DIVISION
(MR JUSTICE BRIGGS)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Christopher Nugee QC and Julian Greenhill (instructed by Messrs Mayer Brown Rowe & Maw LLP) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED
This is the oral renewal of an application for permission to appeal by Persimmon Homes Limited (and as a matter of form, Persimmon plc) against an order of Briggs J, dated 2 March of this year. That order was made following a trial lasting some eight days in February, at which the judge had to consider issues of construction and of rectification in relation to a substantial property transaction between the parties. He held in favour of the claimant Chartbrook on construction, and he rejected Persimmon's answer in addition to their arguments on construction, which took the form of a counterclaim for rectification. He himself gave permission to appeal on the decision as to the construction of the agreement, but he refused permission on rectification.
The application for permission to appeal on rectification came first before myself on paper in July, at which stage I refused permission, considering, as I said at the time, that there was no realistic prospect that the Court of Appeal could be persuaded that the judge's finding that the claimant's witnesses were credible was against the weight of the evidence. Mr Nugee, renewing the application before this court, has accepted that that is, to the say the least, not a straightforward task; particularly in a context in which, in his very clear and full judgment which deals with admirable clarity and comprehensiveness with the issues, even if, as Mr Nugee would say, wrongly on both points, the judge has said at paragraph 65 and 66 of the claimant's two witnesses, Mr Reeve and Mr Vantreen, that he was inclined to accept them as honest, unless compelled by documents or probabilities to come to an opposite conclusion.
Mr Nugee submits that the documents and the probabilities do compel the opposite conclusion. He has shown us, not only in his full skeleton argument but also in his commendably concise advocate's statement for the purposes of the renewal application, the essence of his best points for saying why the judge's conclusion was wrong. I need not go into detail as to those, but he submits that there are at least three strong indications which are in the contemporary documents, partly by presence and partly by silence, as to why the evidence of Mr Reeve and Mr Vantreen ought not to have been accepted as credible, and he submits that the judge gave no (or inadequate) weight to those various factors.
As I say, there is an appeal on construction already on foot and there is indeed already a respondent's notice in that. It is an appeal which raises interesting points of principle, as regards the admissibility of dealings between the parties before the contract, and the principle of the private dictionary, identified in the case of The Karen Altmann [1976] 2 Lloyd's Rep 708, and discussed in other cases. Indeed, Mr Nugee has shown us, by reference to the respondent's notice, that it will be necessary on the construction appeal to investigate some of the factual matters, as regards the pre-contract negotiations. Clearly, the issues on construction and rectification are essentially different, and it would be perfectly possible for the construction appeal to continue without the rectification issues being added to it. But there is an overlap between them, and that is one additional factor which seems to me beyond the reasons urged by Mr Nugee on the rectification appeal itself, to justify taking a different view from which I took when I considered the matter on paper in July. While not making any forecast at all as to the likely result of the rectification appeal, I have come to the view that it does raise issues which are reasonably arguable and which, particularly in the context of the already subsisting construction appeal and of the degree of overlap between the subject-matter that will have to be investigated in relation to each, justify granting permission to appeal.
I think I need say no more than that about the merits, but having heard Mr Nugee's able oral amplification of the points made in writing, I would grant permission to appeal on rectification so that the appeal may proceed on all points that were before the judge.
I agree.
Order: Application granted on the “rectification point”
and
[2008] EWCA Civ 183
Lord Justice Tuckey
Lord Justice Lawrence Collins
and
Lord Justice Rimer
Case No: A3/2007/0621
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
CHANCERY DIVISION
MR JUSTICE BRIGGS
HC05C02402
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Christopher Nugee QC and Mr Julian Greenhill (instructed by Mayer Brown International LLP) for the Appellant
Mr Robert Miles QC and Mr Timothy Morshead (instructed by Herbert Smith LLP) for the Respondent
Hearing dates: December 18 & 19, 2007
I Introduction
On October 16, 2001 an agreement for the development of Nos 1, 3, 5, 7 and 9 Hardwicks Way, Wandsworth (“the Agreement”) was entered into between (among others) Chartbrook Ltd (“Chartbrook”) and Persimmon Homes Ltd (“Persimmon”). The other parties were Persimmon plc as guarantor of Persimmon's liabilities, and Mr Stephen Vantreen (a shareholder and director of Chartbrook) in his capacity as adjoining owner.
The site was owned by Chartbrook. Under the Agreement Persimmon was to obtain planning permission, construct a mixed residential and commercial development on the site (with commercial premises below, flats above and basement car parking), and then sell the flats. Persimmon did not acquire any interest in the land, but (although contracting to sell on its own account and not as agent for Chartbrook) was able to require Chartbrook to grant leases to complete the flat sales.
The principal persons involved, or concerned with, the negotiations leading up to the Agreement were these. On the Persimmon side, Mr Nicholas Pendlebury, who was an employee of Persimmon Homes (South East) Ltd and later Land Director, carried out the day to day negotiations under the supervision of Mr Brendon O'Neill, who became Managing Director of Persimmon Homes (South East) Ltd prior to the conclusion of the Agreement. Persimmon's solicitor was Mr Robin Assael, a partner in the well-known firm of Hammonds Suddards Edge. The negotiations on behalf of Chartbrook (a single purpose vehicle) were conducted by Mr Stephen Vantreen and Mr Bob Reeve, who were experienced property dealers (but not property developers), and were its directors and its ultimate owners. Chartbrook's solicitor was Mr Sean Skelly, a very experienced specialist in conveyancing and a partner in Skelly and Corsellis.
II The Agreement and the dispute
By clause 11 of the Agreement: “The Price shall be calculated and paid in accordance with Schedule 6.” By clause 1.1: “‘Price’ means the sums calculated in accordance with Schedule 6.”
In Schedule 6, paragraph 1, “‘Price’ means the aggregate of the Total Land Value and the Balancing Payment.” The elements of the Price are also defined in paragraph 1.
The first element, Total Land Value, means “the aggregate of the Total Residential Land Value the Total Commercial Land Value and the Total Residential Car Parking Land Value.” Those terms are defined as follows:
“ Total Residential Land Value” shall be £76.34 per square foot multiplied by the Residential Net Internal Area (less the Section 106 Money and less the Rights of Light Money and less the Sub-Structure Assumptions Additional Cost)
“ Total Commercial Land Value” shall be £38.80 per square foot multiplied by the Commercial Net Internal Area plus VAT.
“ Total Residential Car Parking Land Value” shall be £3,024 multiplied by the Residential Car Parking Spaces
The second element in the price is “the Balancing Payment” which is defined in paragraph 1 of Schedule 6 as “the Additional Residential Payment,” where:
“ Additional Residential Payment” means 23.4% of the price achieved for each Residential Unit in excess of the Minimum Guaranteed Residential Unit Value less the Costs and Incentives.
“ Residential Unit” means each of the flats forming private residential accommodation for which Planning Permission is granted
“ Minimum Guaranteed Residential Unit Value” means for each Residential Unit the Total Residential Land Value divided by the number of Residential Units for which Planning Permission is granted.
“ Costs and Incentives” means the aggregate of all costs and incentives provided by the Developer for the purchasers of the Residential Premises and the Residential Car Parking Spaces including the cost or allowance given to purchasers for enhancements or variations to the specification for such premises.
By paragraph 3.1(a) of Schedule 6 the Total Land Value element was to be payable in instalments on the earlier of the date of sale of the units or the last day of a series of specified months set out in paragraph 3.1(a) from the “Implementation Date” (in...
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