FBO 2000 (Antigua) Ltd v Bird
| Jurisdiction | UK Non-devolved |
| Judge | Lord Carswell |
| Judgment Date | 12 November 2008 |
| Neutral Citation | [2008] UKPC 51 |
| Court | Privy Council |
| Docket Number | Appeal No 12 of 2008 |
| Date | 12 November 2008 |
[2008] UKPC 51
Present at the hearing:-
Lord Phillips of Worth Matravers
Lord Hope of Craighead
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Carswell
Privy Council
[Delivered by Lord Carswell]
This matter came before the Board as an appeal from a decision of the Court of Appeal of Antigua and Barbuda (Alleyne CJ Ag, Gordon JA and Barrow JA Ag), affirming the award of the sum of US $200,000 to the appellant company FBO 2000 (Antigua) Ltd ("FBO"). The Court of Appeal held the Government liable for payment of that sum rather than the third-named respondent Stanford Development Company ("SDC"), as the trial judge Mitchell J had ruled. FBO had claimed specific performance of an agreement for a lease for a plot of land at the VC Bird International Airport in Antigua. Both the trial judge and the Court of Appeal rejected this claim, while ruling that FBO was entitled to compensation. In the appeal before the Board FBO renewed its claim for specific performance, while seeking to uphold its right to compensation in the alternative.
Antigua Airport, like all airports, requires the provision of ancillary services to support the handling of aircraft and the arrival and departure of passengers. Those which are known in the international travel trade as "fixed base operations" include such matters as servicing aircraft, diplomatic and VIP coordination, providing a crew rest lounge, immigration and customs clearance, FAA approved mechanics, car and limousine rentals, twenty-four hour security, gourmet catering, drive-up ramp access, weather briefings, charter and business flight brokerage, crew and passenger accommodation, commercial aircraft transfers, inter-island travel arrangements, villa rentals, yacht charters, and emergency medical evacuation. FBO forms part of an international group of providers of fixed base operations known as the UVglobal Network. FBO's predecessor company Port Services Ltd had prior to the incorporation of FBO in 2001 provided services of this nature for private business jet aircraft at Antigua Airport, by agreement with the Government, which owns the airport.
In early 2001 Ms Makeda Mikael, then the controlling shareholder of Port Services Ltd and subsequently of FBO, approached the Government with a view to leasing a plot of land adjacent to a disused runway at the airport, as a base for the provision of future fixed base operations services. The Cabinet gave its approval to the request on 14 March 2001, the minute of decision reading:
"Cabinet revisited its decision on the above subject and decided that Ports Services Ltd., should be given permission for FBO 2000 (Antigua) Ltd, to lease an area of land (1/4 acre) at the V.C. Bird International Airport for development and operation of FBO service in Antigua."
The location of the plot was not given in the minute, but the judge found that it formed an undemarcated part of Parcel 118 and was situated alongside disused Runway 10.
FBO was incorporated on 6 April 2001. The new company gave instructions in July 2001 to surveyors to carry out a survey of the area of the proposed development and prepare plans. The surveyors were a company known as DIWI Consult International GmbH ("DIWI"), which had been acting for some time as airport planners for the Government. Some time before DIWI had prepared a Master Plan for the airport, which with revisions had received development control approval. It prepared a further revision, showing the location of FBO's proposed development, a quarter-acre plot in Parcel 118 being marked in a short distance back from the edge of the disused runway. An application for development permission, which appears to have been accompanied by a copy of this drawing, referred to in correspondence as an "outline plan", was lodged on 31 July 2001 and a development permit was issued on 4 September 2001.
Ms Mikael and the Minister of Agriculture, Lands and Fisheries had a meeting on 8 July 2002 and he wrote to her on 9 July 2002 in the following terms:
"I refer to our meeting held on 8 th July, 2002, to implement the Cabinet Decision of March, 14 th 2001 in regards to the lease of land at V.C. Bird International Airport to FBO 2000 Antigua Ltd.
The terms and conditions for the lease of the lands at the Airport will be extended to FBO 2000 Antigua Ltd. based on the area of ¼ acre as decided by the Cabinet. A lease period of fifty years is agreed upon, at a rate EC $2000.00 per year, paid annually.
A draft lease accompanied by the survey is to be presented to the Ministry of Lands for execution."
Following this meeting FBO made arrangements in August 2002 for a survey to be prepared. Work appears to have been done on this, as the Aerodrome Superintendent wrote a letter on 8 August 2002, stating that he had seen a photocopy of the survey and asking the recipient to proceed with the final drawing "so that FBO can proceed with the lease arrangements for the area."
FBO went into occupation of a plot of land beside disused Runway 10 in July 2002 and spent a substantial sum on the erection of a building and the landscaping of the area. It commenced fixed base operations from these premises in October 2002.
Meanwhile SDC was in the process of preparing a plan, on the instructions of the Government, for the expansion and redevelopment of the airport and its surroundings. As part of the plan SDC intended to build and operate a fixed base operation at the airport. Its controlling shareholder Alan Stanford entered into negotiations with the Government to take a lease of Parcel 118 from which to conduct this operation. As the judge found, this would have placed him in direct competition with FBO, and he appears to have intended to obtain the sole rights of conducting fixed base operations. This is confirmed by his approach to FBO with an offer to buy out its business at the airport and physical assets there. He and Ms Mikael discussed the purchase on 5 February 2003, but the parties subsequently disagreed on the result of the discussion and the formal terms put forward by Mr Stanford in a draft agreement in March 2003 were rejected by Ms Mikael.
At that meeting on 5 February 2003 Mr Stanford invited Ms Mikael to accompany him to a meeting with the Cabinet the following day, to discuss his role in the Master Plan. The judge held that he did not reveal to her the comprehensive nature of the proposal that he was making to Cabinet, which constituted the acquisition by SDC of a large amount of land, including the FBO plot, and the granting to SDC of the sole right to provide fixed base operations at the airport. This would inevitably involve the displacement of FBO as a provider of such operations, the termination of the lease arranged by it and the closing down of its business.
It is apparent that Mr Stanford deliberately did not disclose to Ms Mikael the nature of his plans and that he induced her to accompany him to the meeting with the Cabinet on false pretences, no doubt to give the impression that she supported those plans. Mitchell J made specific findings of fact in paragraph 22 of his judgment, which were not challenged before the Board:
"I am satisfied that Ms Mikael, when she accepted the invitation to accompany him to the meeting with Cabinet the following day, had no previous knowledge, nor was it brought to her attention at the meeting with Cabinet, that what was involved in Mr Stanford's presentation to take over the development and management of the airport necessarily included the termination of her lease discussions and a revocation by Cabinet of her licence to operate her business from the airport premises. She became aware of these only subsequent to the meeting."
In paragraph 48 he added:
" … Ms Mikael was essentially tricked into accompanying Mr Stanford to the Cabinet meeting intended in part no doubt at least to persuade Cabinet to deprive her company of all its business prospects without telling her what was about to happen."
The Cabinet accepted Mr Stanford's proposals and its minute of 6 February 2003 sets out in detail the content of the agreement which it reached with him and decided to implement. Various tracts of land were to be transferred to SDC in freehold, including Parcel 118. SDC was to receive the right to operate and manage the existing and future terminals for a period of at least 25 years, and was given a number of concessions set out in the minute. By paragraph F SDC was given...
To continue reading
Request your trial
-
Implementation Ltd v Social Development Commission
... ... Mr. Braham relied on FBO (Antigua) Ltd. v Bird (2009) 2 P.CR. 14 , where, at page 247, the Privy Council held that; ... ...
-
Pickering and Another v Wilkins and Another
... ... 5. Gibbs v Messer [1891] A.C. 248 ... 6. FBO 2000 (Antigua) Limited v Vere Cornwall Bird and Others. [Civil Case No. 0130 of 2003] High Court of ... ...
-
Implementation Ltd v Social Development Commission; Social Development Commission v Implementation Ltd
...a lease was “subject to contract”. In deciding that issue, he relied on FBO 2000 (Antigua) Limited v Vere Cornwall Bird Jr and Others [2008] UKPC 51 to support his finding that: “…[The SDC], having gone into occupation, meant that all that was required was the formalization of the terms th......
-
Randolph M Howard v Aubrey Monroe
... ... Vincent on 9th May 2000 ... 5 A concrete expression of the promise to the respondent is found in the ... In FBO 2000 (Antigua) Ltd v Bird9 although there had been a promise to grant a lease for a specified term this court ... ...