Gladman Commercial Properties v Fisher Hargreaves Proctor and Others
| Jurisdiction | England & Wales |
| Judge | The Hon Mr Justice Arnold,Mr Justice Arnold |
| Judgment Date | 18 January 2013 |
| Neutral Citation | [2013] EWHC 25 (Ch) |
| Date | 18 January 2013 |
| Court | Chancery Division |
| Docket Number | Case No: HC12D02075 |
[2013] EWHC 25 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Rolls Building
Fetter Lane, London, EC4A 1NL
The Hon Mr Justice Arnold
Case No: HC12D02075
Paul Chaisty QC and Wilson Horne (instructed by Knights Solicitors Llp) for the Claimant
Christopher Smith QC and Rupert Higgins (instructed by Fishburns Llp) for the First Defendant and (instructed by Gateley Llp) for the Third Defendant
Patrick Lawrence QC and Jamie Smith (instructed by DAC Beachcroft Llp) for the Second and Fourth Defendants
Hearing dates: 17-18 December 2012
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.
Contents
| Topic | Paragraphs |
| Introduction | 1 –2 |
| Background | 3 –119 |
| The parties | 3 –4 |
| The Fire Authority | 5 |
| The Properties | 6 |
| The Council's planning policy | 7 –10 |
| The marketing of the Properties | 11 –35 |
| Third party enquiries about the planning position and architects' plans | 36 –42 |
| GDL's enquiries about the planning position | 43 –45 |
| GDL's offers | 46 –54 |
| The Contracts | 55 |
| Events after the Contracts | 56 –61 |
| The First Action | 62 –82 |
| The trial of the First Action | 83 –104 |
| The Settlement Agreement | 105 –108 |
| These proceedings | 109 –119 |
| Principles applicable to strike out applications | 120 |
| Principles applicable to summary judgment applications | 121 –122 |
| Issue 1 : Release | 123 –142 |
| Joint tortfeasors or concurrent tortfeasors? | 124–130 |
| Did the Settlement Agreement operate as a release of GCP's claims? | 131–142 |
| Issue 2 : Full satisfaction | 143 –147 |
| Issue 3 : Henderson v Henderson abuse of process | 148 –168 |
| The law | 149 –157 |
| Application to the present case | 158 –168 |
| Issue 4 : GCP's case on causation | 169 –175 |
| Summary of conclusions | 176 |
Introduction
In these proceedings the Claimant ("GCP") claims damages of £31–39 million from the Defendants for fraudulent, alternatively (in the case of the First and Second Defendants) negligent, misrepresentation in connection with the abortive purchase by GCP of two properties (collectively "the Properties"). The applications before the Court are applications by the Defendants to strike out GCP's Particulars of Claim on the grounds that it fails to disclose a reasonable claim and in any event is an abuse of the process of the court, alternatively for summary judgment. GCP has responded to the application by proposing amendments to the Particulars of Claim. The Defendants accept that the proposed amendments cure one of the defects in the original Particulars of Claim of which they originally complained, namely inadequate particularisation of the fraud and negligence claims; but contend that they do not cure the other problems with GCP's case.
As explained in more detail below, this claim is a sequel to proceedings between GCP and the Nottinghamshire and City of Nottingham Fire Authority ("the Fire Authority") and Nottingham City Council ("the Council") in respect of the same transaction ("the First Action"). The First Action was settled on the terms of an agreement dated 30 September 2011 under which the Council paid GCP £2.7 million in full and final settlement of its claims against the Council and the Fire Authority ("the Settlement Agreement"). The previous litigation and the terms of the Settlement Agreement provide the main bases for the Defendants' applications.
Background
The parties
GCP is an unlimited company in the Gladman Group of companies founded by David Gladman. Another company in the Gladman Group is Gladman Developments Ltd ("GDL"). When bidding for the Properties, GDL described the Gladman Group as follows:
"Today we are the largest speculative property developer in the UK developing in locations from Bangor to Bedford, Livingston to Bristol. The Gladman Group's turnover in 2004–5 was £150 million."
The First Defendant ("FHP") was at the material times a firm of chartered surveyors. The business is now carried on by a company. The Third Defendant ("Mr Hargreaves") is and was at all material times a chartered surveyor and a partner, and latterly a director, of FHP. Prior to August 2004 the Fourth Defendant ("Mr Bishop") was a chartered surveyor employed by FHP. From August 2004 to June 2011 Mr Bishop was a partner in the Second Defendant ("HEB"), another firm of chartered surveyors. Since June 2011 he has been a salaried partner, and latterly a director, of FHP.
The Fire Authority
The Fire Authority has six members nominated by the Council and 12 members nominated by Nottinghamshire County Council. The members are all councillors of the respective councils.
The Properties
As indicated above, this litigation concerns two properties. The larger of the two is a disused fire station in Dunkirk, Nortingham which at all material times was owned by the Fire Authority ("the Fire Station"). The smaller of the two is an adjoining piece of land which at all material times was owned by the Council ("the Council Land"). The Properties are close to both Nottingham University and the Queens' Medical Centre.
The Council's planning policy
On 22 July 2004 the Council approved a document entitled "Building Balanced Communities – Supplementary Planning Document for the development of family housing and student housing" ("the SPD") for use as interim planning guidance. The author of the SPD was Adrian Jones, who was the Council's Director of Planning and Transport responsible for Development Control from 2002 to 2008.
In December 2005 a revised draft of the SPD was produced by the Council's Development Control Committee. This was approved by the Council on 9 January 2006 and on 17 January 2006 the Council's Executive Board resolved that the SPD be adopted as part of the Nottingham Local Framework.
After a successful challenge to the family housing element, and an unsuccessful challenge to the student housing element, the SPD was re-issued in March 2007.
It is GCP's case, as it was in the First Action, that the effect of the SPD was to apply a presumption against the development of new purpose built student accommodation in areas such as those where the Properties are located ("the Presumption").
The marketing of the Properties
In October 2003 the Fire Authority instructed FHP, in the person of Mr Bishop, to explore the possible sale of the Fire Station and another fire station in Beeston.
In February 2004 Henry Mein Partnership ("HMP"), a firm of architects, prepared a preliminary feasibility study with regard to the Fire Station on behalf of the Fire Authority. This recorded the results of initial planning enquiries made of Alison Dudley of the Council Planning Department, which related to noise issues, and of discussions with Paul Bolton of the Council's Highway Design Unit regarding access and parking issues. The conclusion stated:
"The Planning Department have informally indicated that subject to conforming to [Planning Policy Guidance PPG.24 Planning and Noise] the old fire station site could be suitable for residential development in the form of student or key worker accommodation.
…
An initial feasibility indicates that subject to the various constraints being addressed a development in the region of 400 bed spaces would be achievable over a 6 to 7 storey development."
On 23 April 2004 HMP wrote to Mr Bishop at FHP enclosing a rough sketch indicating that "43 one bedroom apartments of approximately 55 square metres each and 54 two bedroom apartments of approximately 70 square metres each", i.e. a total of 97 apartments, could be built on the Fire Station site.
On 19 May 2004 Mr Bishop wrote to Henry Davidson Developments to try and interest them in the Fire Station (and the Beeston fire station). In this letter he said that "My clients Architects have already undertaken an initial Feasibility Study identifying that in order of: 450 student apartments could be created, subject to planning or alternatively 99 private apartments could be created."
On 17 June 2004 Mr Bishop wrote to Rizvan Shafiq of the Council, with a copy to Edward Pratt of the Fire Authority, saying that from the feasibility study "we can achieve up to: 450 student apartments or alternatively 99 Private Apartments subject to planning". He went on to enquire whether the Council would be prepared to sell the Council Land and enter into a joint marketing program. It appears that the Council did not agree to this proposal at that stage.
On 9 May 2005 there was a meeting of the Council's planning officers, including Ms Dudley, at which one of the items discussed was a proposal for a mixed use residential and commercial development at the Fire Station site prepared by Franklin Ellis Architects on behalf of the Metropolitan Housing Trust.
On 11 May 2005 Mr Bishop (by then at HEB) wrote to Ian McFee of the Council's Planning Department, with a copy to Mr Pratt, enclosing the HMP feasibility study of February 2004 and stating:
"I note that the policy towards student accommodation has now changed, but in fairness I generally see this site being marketed for either private or keyworker accommodation and would welcome your comment in this regard."
On 15 July 2005 Mr McFee wrote to Mr Bishop saying that the Fire Station site was "completely unsuitable for any large scale residential development" because of "intractable" access issues. Mr McFee added:
"As things stand at present it is difficult to see to what use the site could be put, other...
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