Mr Stavros Neocleous v Ms Christine Rees

Hearing date: 6 August 2019

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.

Introduction

The Claimant seeks specific performance of an alleged contract of compromise which involves a disposition of an interest in land. The Defendant, accepting that the contract would otherwise be enforceable, contends that the alleged contract fails to comply with the formalities required by Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 (“the 1989 Act”) and therefore is not enforceable.

Section 2(1) of the 1989 Act provides, in so far is relevant:

“(1) A contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all of the terms which the parties have expressly agreed in one document or, where contracts are exchanged, in each.

…

(3) The documents incorporating the terms or, where contracts are exchanged, one of the documents incorporating them (but not necessarily the same one) must be signed by or on behalf of each party to the contract.

…”

In this case, the putative contract is contained in a string of emails. The purported signature of the solicitor on behalf of the Defendant was by “ automatic” 1 generation of his name, occupation, role and contact details at the foot of an email. The case raises a point as to whether this is adequate to render the document “ signed” on behalf of the Defendant within the meaning of section 2(3) of the 1989 Act which has been explored by various authors but seemingly has not previously been the subject of a reported determination.

Following a trial on 6 August 2019, I reserved judgment.

The Facts

The Claimants and the Defendant own property at Ghyll Head on the eastern side of Lake Windermere. The Claimants' property, which borders the lake to the west and the A592 to the east is known as Louper Weir. The Defendant's property, known as Wilders' Wood comprises two parcels of land. The larger part is to the south east of Louper Weir, on the opposite side of the A592. The smaller is a small piece of land with an adjacent jetty (“the Landing Plot”) which is on the eastern bank of the lake and is only accessible on land by crossing the Claimants' property. A right of way across Louper Weir appears on the Defendant's title to Wilder's Wood, but such a right is not referred to on the Claimants' title to Louper Weir.

On 26 August 2016, the Defendant applied to HM Land Registry to change the register by registering a right of way against the title to the Claimants' property. In the application, the Defendant alleged that the Claimants had, from June or July 2014, refused to allow the Defendant, her family or friends to use that right of way in order to gain access to the Landing Plot.

The Claimants objected to the application, disputing the existence and/or extent of a right of way on various grounds and denying that they were bound by the alleged right. The matter was referred to the First Tier Tribunal in February 2017. The parties provided disclosure and exchanged witness statements, four on behalf of the Claimants, six on the Defendant's part. A hearing was listed, commencing with a site inspection on 26 March 2018, and the hearing itself to follow on 27 to 29 March.

In the lead up to the Tribunal hearing, settlement discussions took place between Mr Daniel Wise, of Salter Heelis Solicitors LLP on behalf of the Claimants, and Mr David Tear of AWB Charlesworth Solicitors on behalf of the Defendant. During these discussions the possibility of the dispute being resolved by the Claimants acquiring the Landing Plot was raised.

On 8 March 2018:

i) At 15:52 Mr Tear sent an email to Mr Wise setting out proposed settlement terms under which the Claimants would buy the Landing Plot for £200,000 in full and final settlement of the application to the Tribunal and all other claims, the offer being open for acceptance until 4pm on 9 March 2018.

ii) At 16:53, Mr Wise replied to Mr Tear's email, rejecting the offer, commenting adversely on the proposed settlement figure and drawing attention to the legal costs that would be incurred were the matter to go to a hearing. The email concluded by saying that unless the settlement figure was reconsidered, then the Claimants would proceed to trial, and that Mr Wise looked forward to receiving the hearing bundle the following day so that Counsel could be instructed.

On 9 March 2018:

i) During the course of the morning, Mr Wise tried to speak to Mr Tear to establish whether the Defendant would be willing to agree a lower figure than £200,000.

ii) At 13:05, Mr Wise emailed Mr Tear asking that he call him back.

iii) By email sent to Mr Tear at 15:24, Mr Wise offered on the Claimants' behalf to settle for £175,000. The email concluded: “I need to let my counsel's clerk know by 4pm today whether or not the hearing is proceeding. Please therefore let me know asap and by 3.40 pm if this is agreed”.

iv) Shortly thereafter, Mr Tear telephoned Mr Wise to say that he had instructions from the Defendant to accept the Claimants' offer of £175,000. Mr Tear said that he would send an email to confirm the terms of settlement, and Mr Wise replied that he would confirm the terms of settlement in writing on Monday 12 March 2018 when he returned to his office

v) At 16:28, Mr Tear emailed Mr Wise in the following terms:

“ Dear Daniel,

Further to our telephone conversation I am pleased to confirm that terms of settlement between our respective clients have been reached on the following basis:

(1) Your clients will pay to my client the sum of £175,000 (one hundred and seventy five thousand pounds — “the Settlement Sum”) for the transfer of my client's jetty/boat landing plot/mooring (which is contained within title number CU67453) (“the Land”) to Mr & Mrs Neocleous and the release of my client's right to pass and re-pass over the land used as a road and coloured brown on the conveyance dated 1 June 1945 between Poole (1) and Wootton (2) (“the Release”).

(2) Although a date by which the Transfer and Release must have been completed has not been discussed, it has been agreed that your clients will use their best endeavours to complete the Transfer and Release as soon as possible.

(3) On completion of the Transfer and Release the Settlement Sum becomes payable immediately.

(4) The above is in full and final settlement of the Tribunal proceedings and any and all further claims between the parties. Our clients will bear their own legal costs of these proceedings and in respect of the Transfer and Release.

I would be grateful if you would acknowledge receipt of this email and confirm your agreement to the above in order that I can then advise the Tribunal.

Many thanks

David Tear

Solicitor and Director

For and on behalf of AWB Charlesworth Solicitors”

(There followed contact details for Mr Tear.)

On the following Monday, 12 March 2018:

i) Mr Tear emailed Mr Wise at 09:32, chasing a response and stating, “ I need written confirmation from you in respect of the above before I can advise the Tribunal the matter has been resolved.”

ii) At 10:05, Mr Wise replied to Mr Tear's email of 16:28 on 9 March 2018 in the following terms:

“ Thank you for your email and I confirm my agreement with its contents.

Kind regards

Daniel

Daniel Wise – Associate

Dispute Resolution for and on behalf of Slater Heelis LLP”

(Again there followed contact details)

iii) Upon receipt of Mr Wise's email timed at 10:05, Mr Tear spoke to the Tribunal, informing them that the matter was resolved, and asking that the hearing be vacated. The Tribunal informed Mr Tear that a consent order would be required.

iv) At 11:09, Mr Tear emailed Mr Wise saying, “ Apparently we need a Consent Order. I'll prepare something and email this to you.”

v) Mr Tear wrote to and emailed the Tribunal in the following terms:

“We refer to our telephone conversation today.

We confirm that terms of settlement have been reached between the parties whereby the Respondents will pay to the Applicant a sum in return for the transfer of part of her property and release of rights over the Respondents' land.

As advised, we are in the process of obtaining a signed Consent Order setting out the terms of settlement and this will be forwarded to you shortly. In the meantime we would be grateful if you would confirm the hearing later this month will be vacated.”

Thereafter, the Claimants put Slater Heelis in funds to pay £175,000 for the Landing Plot.

By email dated 16 March 2018, Mr Tear sent to Mr Wise a first draft of a consent order for his approval. The email was headed “Subject to Contract”. By email dated 22 March 2018, Mr Wise responded with amendments to the consent order. The email also enquired whether the Defendant intended to collect or remove items from the land or whether she wanted the Claimants to deliver the same. The email was headed “Without Prejudice and Subject to Contract”.

On 22 March 2018, the Tribunal wrote to Mr Tear stating:

“ The Tribunal Judge has asked me to vacate the hearing listed for 27–29 March 2018 (site view on 26th) and apologise for the lateness in acknowledging your email dated 12 March 2018”.

On 19 April 2018, the Tribunal wrote to the parties requesting confirmation within 28 days as to what order...