Mr Simon John Griffin (T/A Simon Griffin Antiques Ltd) v Ray Nixon Brown
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Falk |
| Judgment Date | 22 October 2021 |
| Neutral Citation | [2021] EWHC 2810 (Ch) |
| Docket Number | Case No: BL-2020-000504 |
| Court | Chancery Division |
[2021] EWHC 2810 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Mrs Justice Falk
Case No: BL-2020-000504
Simon Griffin appeared in person as the Claimant
Tom Stafford (instructed by Clyde & Co) for the First Defendant
Simon Wilton (instructed by BLM Law) for the Fourth Defendant
Miles Harris (instructed by Mills & Reeve) for the Third, Fifth, Sixth, Eight, Tenth, Eleventh, Twelfth, and Thirteenth Defendants
Bianca Venkata (instructed by Kennedys Law) for the Seventh Defendant
Michael Patrick (instructed by A City Law Firm) for the Ninth Defendant
Hearing date: Friday 15 October 2021
APPROVED JUDGMENT
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is the hearing of applications by all the defendants in these proceedings, other than second defendant who has taken no active part in them, to have the claimant's claim against it struck out and/or for summary judgment to be awarded in their favour. Most of the defendants have also applied for an extended or general civil restraint order to be imposed. Unless otherwise indicated, references in this decision to the defendants exclude the second defendant.
The claimant, Mr Griffin, appeared in person. The defendants were each represented by Counsel, Mr Stafford for the first defendant, Mr Wilton for the fourth defendant, Ms Venkata for the seventh defendant, Mr Patrick for the ninth defendant and Mr Harris for the remaining defendants, who are all barristers. I am grateful for the assistance that Counsel provided, and in particular for two joint documents provided on behalf of the defendants, namely an agreed summary of the factual background and a joint statement of applicable legal principles.
The applications were listed for one day, which left insufficient time to hear in full from each of the parties and deliver a judgment. I adjourned the case part heard to accommodate delivery of a judgment and time to deal with costs. In the event it proved difficult to arrange a suitable hearing date at short notice and I concluded that it would be preferable to hand down a written judgment, with consequential matters to be dealt with at a later date.
Factual and procedural background
At its heart, this is a dispute about a commercial lease. At all relevant times Mr Griffin held the benefit of an underlease of a shop in the Royal Arcade, which runs between Bond Street and Albermarle Street in Mayfair (“the Premises”). He traded from the Premises through a company controlled by him, Simon Griffin Antiques Limited (the “Company”). A dispute arose between Mr Griffin and his landlord, Bluston Securities Ltd (“BSL”). Mr Griffin alleged that BSL had acted in breach of covenant by failing to clean common parts properly, and in particular failing to clean upper parts of the arcade. The dispute led to Mr Griffin stopping payments of service charges from late 2001 onwards. From August 2006 he also started to withhold rent.
Mr Griffin explained that this was not the first dispute with BSL. His business has been in occupation since 1979. (This must have been under an earlier underlease, since the one the subject of the dispute was granted in 1994.) An earlier dispute following a collapse of part of the roof in 1983 led to litigation between tenants and BSL the outcome of which was an order in 1987 for the tenants to bear the costs of the repairs. Mr Griffin clearly continues to feel strongly about this, and understandably has a strongly held view that BSL ought to comply with its own obligations under the lease.
In December 2006 BSL served a statutory demand on Mr Griffin, requiring him to pay the arrears of rent and service charges. Mr Griffin applied to set aside the statutory demand on the basis that BSL was in breach of its covenant to maintain, repair and cleanse the common parts. The set-aside application was listed in February 2007, but shortly before it was heard BSL's solicitors proposed that in exchange for BSL agreeing not to petition for bankruptcy Mr Griffin would withdraw his application. Mr Griffin sought advice from the first defendant, Ray Nixon Brown, a firm of solicitors with whom he had had dealings in the past, including in respect of the Premises. Simon Peacock of the first defendant advised Mr Griffin by phone, as a result of which Mr Griffin agreed to the proposal. The attendance note of the call records that Mr Peacock explained to Mr Griffin that he would expect that BSL would issue proceedings to recover the outstanding amounts and that Mr Peacock expressed doubt as to the amount that Mr Griffin could claim back by way of counterclaim. Mr Griffin signed a document recording the agreement with BSL on the same day, which expressly referred to BSL's intention to proceed in the County Court to recover the amounts owed.
BSL duly issued proceedings in the County Court in February 2007, claiming arrears of rent, service charges and interest (the “First BSL Claim”). The first defendant gave further advice in the form of a letter from Mr Peacock which commented that to have any chance of defending the claim it would be necessary to show that a considerable loss had been suffered as a direct result of the landlord's failure.
Mr Griffin then instructed Gordon Dadds solicitors. In the current proceedings Mr Griffin names Ince Gordon Dadds LLP as the second defendant. That is a distinct legal entity from Gordon Dadds, and in fact was not incorporated until 21 March 2013.
Emma Box of Gordon Dadds gave written advice in March 2007 explaining the difficulty that Mr Griffin would have in disputing BSL's claim. The letter stated that whilst BSL was in breach of covenant “…you freely accepted that you did not think you had suffered much in the way of financial loss directly arising from [BSL's] breach of covenant”. The advice concluded that it would be very difficult for Mr Griffin to make out his proposed defence and counterclaim.
Mr Griffin nonetheless proceeded to enter a defence to the claim in person. Gordon Dadds were re-instructed in November 2007, and an amended defence and counterclaim was prepared with the assistance of the third defendant, Thomas Braithwaite, a barrister whom Gordon Dadds instructed. The defence alleged that BSL had failed to comply with end of year accounting provisions in the underlease in respect of service charges, which were supposed to provide a mechanism to adjust interim payments made during the year to reflect actual costs. The counterclaim, relied on by way of set-off, alleged that financial loss had been suffered in the form of a diminution in the value of Mr Griffin's shareholding in the Company as a result of the breach of the covenant to clean common parts, which it was alleged had resulted in a loss of profits.
The documentary evidence indicates that the third defendant, like Gordon Dadds, expressed serious concern about the merits of Mr Griffin's position. He advised a negotiated settlement. Expert accountant evidence was sought by Gordon Dadds on the extent of any loss of profits, but the view was expressed that no loss had been caused. Although Mr Griffin's own accountant was prepared to provide a report he warned that it would be unlikely to stand up to scrutiny.
The First BSL Claim was heard by HHJ Dight, who entered judgment in favour of BSL and dismissed Mr Griffin's counterclaim on 11 June 2008. HHJ Dight held that whilst he was not satisfied that BSL had complied with its end of year accounting obligations, this did not absolve Mr Griffin of the obligation to pay provisional contributions. He concluded that there had been intermittent failures to clean lower levels of the common parts and there was some breach of covenant in respect of the higher parts because of the considerable delay in arranging cleaning. However, BSL had not acted in breach in failing to clean the high areas every year given the difficulties in doing so. Moreover, and importantly, HHJ Dight was not satisfied that there was the causative link that Mr Griffin alleged between the state of the upper parts and the turnover of the business. He therefore concluded that no loss had been caused by the breaches of covenant which could be recoverable in the counterclaim. There was no appeal against this decision.
Following a complaint to the first defendant in 2009, Mr Griffin instructed the fourth defendant, Wallace LLP, to advise whether he had a claim against the first defendant in negligence. He was advised that he did not. Mr Griffin nonetheless issued a claim in July 2010 against both the first defendant and Gordon Dadds (the “First Professional Negligence Claim”). Following an unless order requiring the particulars of claim to be amended into a compliant form, Mr Griffin approached the fourth defendant for further assistance. Michael Clinch of the fourth defendant advised that he could not see that Mr Griffin had a claim against either the first defendant or Gordon Dadds but agreed to redraft the particulars of claim in a compliant manner, leaving blanks...
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