Mark Dowding and Another v Matchmove Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Vos |
| Judgment Date | 11 March 2015 |
| Neutral Citation | [2015] EWCA Civ 313 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 March 2015 |
| Docket Number | Claim No: A3/2014/0798 |
[2015] EWCA Civ 313
IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
His Honour Judge McCahill
Royal Courts of Justice
The Strand
London
WC2A 2LL
Lord Justice Vos
Claim No: A3/2014/0798
Mr Jonathan Chew and Ms Louise Asprey appeared on behalf of the Appellant
Ms Natasha Bellinger appeared on behalf of the Respondents
Wednesday, 11 th March 2015
Introduction
This is the renewed oral application for permission to appeal the decision of 19 th December 2013 of His Honour Judge McCahill sitting as a Judge of the High Court in the Bristol District Registry. The application is made by the Defendant, Matchmove Limited, whose guiding mind is a Mr Martin Francis, whom I shall call "Mr Francis".
The trial of the action occupied some eighteen court days, and the Judge's judgment runs to 424 paragraphs. In refusing permission to appeal Lord Justice McCombe described it, not without justification, as a careful judgment. Since Lord Justice McCombe's decision on 23 rd September 2014 the Appellant has sought to confine and refine the grounds of appeal on which it relies. The Appellant now contends that it should have permission on three questions only:
First, whether the Judge was wrong as to the proper construction of special condition 6 of the contract for the sale of Plot 1 dated 5 th September 2005 (see paragraph 103 of the judgment, holding that the condition did not refer or relate to The Meadow);
secondly, whether the Judge was wrong to hold at paragraphs 424 to 437 of his judgment that the exception in section 2(5) of the Law of Property (Miscellaneous Provisions) Act 1989 for the "Creation or operation of resulting implied or constructive trusts" dis-applied the application of section 2 in this case to the agreement for the sale of the meadow, and that the Claimants were entitled in equity to the meadow on the basis of proprietary estoppel and constructive trust; and
thirdly, whether the Judge was wrong as to the findings of fact he made in relation to two alleged payments of monies by the Claimants to the Defendant.
In addition, the Appellant has sought permission to adduce new evidence, relying on the Rule in Ladd v Marshall.
When the matter came on before me this morning I said to Mr Jonathan Choo, counsel for the Defendant, that I intended, subject to any arguments that were addressed to me, to grant permission to appeal on the first two questions, but not on any factual questions, nor in relation to the production of new evidence. He did not seek to dissuade me from that course orally, and nor did Ms Bellinger, counsel appearing for the Respondents.
In those circumstances I can deal with the matter briefly, but in order that the court dealing with the substantive appeal can see what my reasons were for allowing permission it seems to me appropriate, nonetheless, to set out briefly the factual background and that reasoning.
The Background Facts
The facts of this case were really rather more simple than the lengthy judgment suggests. In 2003 the Claimants agreed in principle with the Defendant that they would buy Plot 1 and the ten acre meadow adjoining for £200,000. The wanted the meadow, as it appears, to keep their horses.
On 21 st April 2004 the Defendant completed the purchase of those properties, together with another property, called Plot 2, from a Mr Grist. Also in April 2004, as the Judge found (see paragraph 72) the Claimants paid about one-third of the £200,000 provisionally agreed purchase price to the Defendant, amounting to £66,600, made up of cash of £10,000, a cheque of £11,600 and a Mercedes car, allegedly worth £45,000.
When it came to documenting this transaction, a right of way dispute with a Mr Wiltshire allegedly prevented the Defendant selling the meadow, so the parties exchanged contracts on 5 th September 2005 for the sale of Plot 1 alone for £120,000 on terms including special condition 6.
Special condition 6 provided as follows: "The buyer [the Claimants] admits that he has inspected the property [Plot 1] and that he enters into this agreement solely as a result of his inspection of the property, and on the basis of the terms hereof, and not in reliance on any warranty, statements, representation otherwise whether oral or implied, and whether made by or on behalf of the seller [the Appellant] other than written replies by the seller's solicitors to enquiries made by the buyer's solicitors prior to the date hereof."
That contract was duly completed with the Claimants paying the balance of £53,400, making a total of £120,000. Also, between October 2005 and 27 th February 2006 (or, in another part of the judgment,...
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