Groveholt Ltd v Hughes
| Jurisdiction | England & Wales |
| Judgment Date | 28 January 2005 |
| Neutral Citation | [2005] EWHC 48 (Ch),[2005] EWHC 740 (Ch) |
| Docket Number | Case No: N/K |
| Court | Chancery Division |
| Date | 28 January 2005 |
[2005] EWHC 740 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Mr N E Underhill Q.C.
Case No: N/K
MR A HILL-SMITH (instructed by DKLL) appeared on behalf of the CLAIMANT
MR N KITCHENER (instructed by Lawrence Graham) appeared on behalf of the DEFENDANT
MR UNDERHILL:
There are three consequential matters that I need to deal with. The first is the form of the order. The parties are agreed that the reasoning in paragraphs 18 to 21 of my judgment—I think also paragraph 23—should be treated as a final determination of the issues which those paragraphs cover, rather than simply as my reasons for rejecting a summary judgment application on an interlocutory basis; and that it would accordingly be appropriate for me to make a declaration incorporating my decision.
The parties are agreed on the form of the appropriate declaration, which follows a draft submitted by Mr Kitchener, subject to three changes to paragraphs 2 and 3 of the draft order submitted by him. The changes being, for the record, that the reference to the first claimant should of course be to the first defendant; that the word "accrued" in the third line should be omitted; and that at the end of the present draft there should be a semi-colon and the words "and accordingly, no such sum is secured by the charge" should be added.
Mr Hill-Smith submits that I should also make a declaration incorporating the effect of my reasoning in paragraph 22 of the judgment, where I expressed a view that the charge secures any damages claim which Mr Hughes might have arising out of the disclaimer. Mr Kitchener resists that application on the basis that, although those views did form part of my reasoning, that issue was not as such before me, because Mr Hill-Smith did not put his case that way and the point was not fully argued in the way that it would have been if he had done so.
With some hesitation, because I can see the advantage of having a final decision on that point, I feel I must accept what Mr Kitchener says. The question of whether the charge covered a claim for damages was certainly canvassed to some extent before me and I did of course refer to it as part of my reasoning; essentially to explain the conclusion which I had come to on Mr Hill-Smith's primary submission did not strike me as unjust. Nevertheless it was not in issue as such, and I do not believe that it would be right to treat what I say about the point as finally determinative of the issue. I do not therefore propose to make a declaration in the terms proposed by Mr Hill-Smith.
Mr Kitchener proposed, in his draft, to include a further declaration in the following terms:
"Nothing in this order shall prejudice the ability of the first claimant (that should of course be first defendant) to argue at the trial of this action, that had the (inaudible) written agreement been performed by (inaudible) and not disclaimed, sums would have...
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Groveholt Ltd v Hughes and Another
...amount of the overage payments, arguing that no deductions were possible. That application was rejected by Mr Nicholas Underhill QC ( [2005] EWHC 48 Ch). He observed that there was no procedure in the Hughes/Chelverton Agreement for the ascertainment of costs such as appeared in the Sainsbu......