Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hammer Aspden & Johnson (A Firm) and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RIX |
| Judgment Date | 30 November 2001 |
| Neutral Citation | [2001] EWCA Civ 2083 |
| Date | 30 November 2001 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A2/2001/1734 |
[2001] EWCA Civ 2083
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(His Honour Judge Bradbury)
Lord Justice Rix
A2/2001/1734
Mr N Davidson QC (instructed by Messrs Ward Hadaway, Newcastle upon Tyne) appeared on behalf of the Applicant Claimant.
The Respondent Defendants did not appear and were not represented.
This is an application for permission to appeal made by Excelsior Commercial & Industrial Holdings Limited ("Excelsior") from the judgment of His Honour Judge Bradbury given on 18th July 2001. Excelsior had brought its claim against, amongst other defendants, the fifth defendant, Betesh & Company, the firm of solicitors which it had used for the purposes of a purchase of shares in a company whose primary asset was a fire damaged mill. The company in question had been doing badly and the only way in which it could be valued for a purchase of its shares was on a net asset value.
The principal of Excelsior was a Mr Smith. There was a rival bidder in the wings, a consortium led by a Mr Blackwood. Both these potential purchasers were clear that the only way forward was on a net asset value. For these purposes the critical figure (against which liabilities, when fully ascertained, would have to be set) was what was to be bid for the mill in its damaged condition together with the insurance claim which that fire damage had given rise to in support of its value. Both Mr Smith and Mr Blackwood were willing to bid £1.4m, but it was Mr Smith's bid which carried the day.
Ultimately, after an 11-day trial, the learned judge came to the following conclusions so far as Betesh, the solicitors, were concerned. He found that they had been negligent in failing to ascertain that the mill was not fully insured for reinstatement purposes while advising Mr Smith that it was. However, the judge went on to hold that Excelsior had nevertheless suffered no damage. He therefore awarded only nominal damages against Betesh. His reasoning on that latter point (which is the point on which permission to appeal is sought) was that, even if Mr Smith had known the true situation with respect to the insurance of the mill, he would not have sought to renegotiate the purchase but would have proceeded nevertheless. The learned judge went on to give an additional reason, which was that, even against the assumption that he would have withdrawn from the purchase with that information, there had been no loss because at the end of the day, some 18 months or so later, he did negotiate a settlement with the insurers. The relevant figure for these purposes is £1.325m. This was an adequate and acceptable settlement, which gave to Excelsior all that it had wanted and indicated that the value of the company shares was the £1.4m paid and nothing less.
In his helpful submissions Mr Nicholas Davidson QC has emphasised the following factors. He has emphasised that it is plain on the documentary evidence that Mr Smith was concerned about and insistent upon checking out the insurance situation. He has referred to a number of documents which support that, amongst them a letter from the solicitors to the loss adjusters of 26th May 1992, in which the solicitors accept that they had investigated the insurance to ensure that it was valid and that the property was fully insured for its reinstatement value. I do not pause to recite all the relevant evidence, but I bear it in mind. In those circumstances Mr Davidson submits that, against that background of Mr Smith's interest and the liability in negligence which the judgment finds, the natural inference is that Mr Smith would have been importantly influenced by finding out that the mill was significantly underinsured for reinstatement purposes. The relevant figures were, I think, that full reinstatement value would require some £13m, whereas the insurance provided only for something under £9m. He submits, therefore, that the information regarding the true position of the reinstatement insurance would inherently have been likely to influence Mr Smith either to renegotiate the £1.4m price or to walk away from the deal.
As regards the value of the shares sold on the basis of the true insurance position as...
To continue reading
Request your trial
-
BSkyB Ltd and Another v HP Enterprise Services UK Ltd and Another (No 2)
... ... Kiam v MGN Ltd [2002] 2 All ER 242 ; Excelsior v Salisbury Ham Johnson [2002] EWCA Civ 879 ... contemporary practice of judges of the Commercial Court. Brooke LJ referred to CPR Rules 44.3(4)(a) ... conduct was limited to him, rather than others in EDSL. This is not a case where there was a ... ...
-
(1) Kazakhstan Kagazy Plc v (1) Baglan Abdullayevich Zhunus (formerly Baglan Abdullayevich Zhunussov)
...norm’, as it was put by Lord Woolf CJ (adopting something which Waller LJ had stated in argument) in Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hammer Aspden & Johnson [2002] EWCA Civ 879 and how it has been put in subsequent cases, including recently Whaleys (Bradford) Ltd......
-
QBE Management Services (UK) Ltd v Charles Dymoke and Others
...costs under CPR 44.4 and 44.5 are well known and not in dispute. They are set out in cases such as Excelsior Commercial & Industrial Holdings Ltd v. Salisbury Hammer Aspden & Johnson [2002] EWCA Civ 87, Amoco UK Exploration v. BAO [2002] 1 BLR 135 and Three Rivers CD v. Bank of England [200......
-
Epsom College (A Private Company Ltd by Guarantee) v Pierse Contracting Southern Ltd ((in Liquidation), Formerly Biseley Construction Ltd)
...unreasonable to a high degree ( Reid Minty (a firm) v. Taylor [2001] EWCA Civ 1723, [2002] 1 WLR 2800, Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hammer Aspden & Johnson [2002] CP Rep 67) can be met where there has been an unreasonable failure to accept offers of settlement......