Muneer Hamid (T/A Hamid Properties) v Francis Bradshaw Partnership
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice McCombe,Lord Justice Rix |
| Judgment Date | 02 May 2013 |
| Neutral Citation | [2013] EWCA Civ 470 |
| Docket Number | Case No: A1/2013/0063 & 0066 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 May 2013 |
[2013] EWCA Civ 470
Lord Justice Rix
Lord Justice Jackson
and
Lord Justice Mccombe
Case No: A1/2013/0063 & 0066
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
HIS HONOUR JUDGE RAYNOR QC
9MA50128
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Jeremy Nicholson QC and Ms Kate Livesey (instructed by Hill Dickinson LLP) for the Appellant/Defendant
Mr Adrian Williamson QC and Mr Gideon Scott Holland (instructed by Pinsent Masons LLP) for the Respondent/Claimant
Hearing date: 26th March 2013
Approved Judgment
This judgment is in six parts, namely:
Part 1. Introduction,
Part 2. The facts,
Part 3. The present proceedings,
Part 4. The appeal to the Court of Appeal,
Part 5. The law,
Part 6. Decision.
This is an appeal against a decision of His Honour Judge Raynor QC sitting in the Manchester Technology and Construction Court ("TCC") to the effect that it was Dr Muneer Hamid, rather than his company Chad Furniture Store Ltd, who employed the appellant firm to provide engineering services on a building project.
The contract of engagement was partly oral and partly written, having been made in two conversations followed by one letter.
The resolution of this appeal will require a review of some of the authorities on identity of parties and agency. It will also require close examination of the letter which concluded the contract of engagement.
The only statutory provisions which are relevant to this case are sections 348, 349 and 351 of the Companies Act 198These sections (now superseded by later legislation) at the material time provided as follows:
"348. (1) Every company shall paint or affix, and keep painted or affixed, its name on the outside of every office or place in which its business is carried on, in a conspicuous position and in letters easily legible.
(2) If a company does not paint or affix its name as required above, the company and every officer of it who is in default is liable to a fine; and if a company does not keep its name painted or affixed as so required, the company and every officer of it who is in default is liable to a fine and, for continued contravention, to a daily default fine.
349. (1) Every company shall have its name mentioned in legible characters –
(a) in all business letters of the company,
(b) in all its notices and other official publications,
(c) in all bills of exchange, promissory notes, endorsements, cheques and orders for money or goods purporting to be signed by or on behalf of the company, and
(d) in all its bills of parcels, invoices, receipts and letters of credit.
(2) If a company fails to comply with subsection (1) it is liable to fine.
(3) If an officer of a company or a person on its behalf –
(a) issues or authorises the issue of any business letter of the company, or any notice or other official publication of the company, in which the company's name is not mentioned as required by subsection (1), or
(b) issues or authorises the issue of any bill of parcels, invoice, receipt or letter of credit of the company in which its name is not so mentioned,
he is liable to a fine.
(4) If an officer of a company or a person on its behalf signs or authorises to be signed on behalf of the company any bill of exchange, promissory note, endorsement, cheque or order for money or goods in which the company's name is not mentioned as required by subsection (1), he is liable to a fine; and he is further personally liable to the holder of the bill of exchange, promissory note, cheque or order for money or goods for the amount of it (unless it is duly paid by the company).
….
351. – Particulars in correspondence, etc.
(1) Every company shall have the following Particulars mentioned in legible characters in all business letters and order forms of the company, that is to say—
(a) the company's place of registration and the number which it is registered,
(b) the address of its registered office,
(c) in the case of an investment company (as defined in section 266), the fact that it is such a company, and
(d) in the case of a limited company exempt from the obligation to use the word "limited" as part of its name, the fact that it is a limited company.
(2) If in the case of a company having a share capital there is on the stationery used for any such letters, or on the company's order forms, a reference to the amount of share capital, the reference must be to paid-up share capital.
….
(5) As to contraventions of this section, the following applies
(a) if a company fails to comply with subsection ( 1) or (2), it is liable to a fine,
(b) if an officer of a company or a person on its behalf issues or authorises the issue of any business letter or order form not complying with those subsections, he is liable to a fine."
Finally there is an issue concerning fresh evidence to be resolved. When dealing with procedural matters I shall refer to the Civil Procedural Rules as "CPR".
After these introductory remarks I must now turn to the facts.
Dr Muneer Hamid was at all material times the sole director and sole shareholder of a company called Chad Furniture Store Ltd ("Chad"). Chad was in the business of selling furniture and it traded under the name "Moon Furniture". Chad Furniture Store Ltd, trading as Moon Furniture, had been registered for VAT since 1 st November 1993. Chad's VAT registration number was 606 670 052.
Dr Hamid from time to time conducted business personally as well as through his company. For this purpose Dr Hamid, operating under the name Hamid Properties, had his own personal registration for VAT under number 823 223 561.
During 2003 and 2004 Chad was based at Marland Mill, Nixon Street, Rochdale, Lancashire, where it had its showroom.
In 2003 Dr Hamid purchased a site on the east side of Roch Valley Way, Rochdale in his own name. He intended to transfer the business of his company to that location. Dr Hamid completed the purchase on 8 th October 2003. On that date the freehold owner of the site granted a 999 year lease to Dr Hamid at a peppercorn rent.
Thereafter Dr Hamid assembled a team to carry out the design and construction of the proposed new showroom for Chad. That team included a firm of architects called Primrose Designs ("Primrose"), a firm of engineers called Francis Bradshaw Partnership ("FBP") and a construction company, Barnfield Construction Ltd ("BCL").
The initial approach to FBP was made by the architects in December 2003. FBP's engagement as engineers on the project was not finalised until March 2004. It is common ground that FBP's contract of engagement was partly oral and partly in writing. In so far as the contract was oral, it was made in discussions between Dr Hamid and Mr Simon Preugschat of FBP at a meeting on 8 th March and in a telephone conversation on 10 th March 2004. In so far as the contract was written, it was contained in a letter dated 10 th March 2004.
The letter dated 10 th March 2004 was written on notepaper headed as follows:
"MOON FURNITURE
Marland Mill, Nixon St, Rochdale, OL11 3JD
Tel & Fax: (01706) 860085, e-mail: , web: "
The text of the letters reads as follows:
"Mr S Preugschat
Francis Bradshaw Partnership
12 Hargreaves St
Burnley
BB11 1DZ
Dear Sir
Re: Moon Retail Park
We refer to work to be carried out at the above premises, formerly known as the old Daewoo site. We refer to your letter dated 25 February 2004, fax dated 9 March 2004 and today's telephone conversation. We agree to the following fees:-
1. £24,750 for fees and disbursements for all the work discussed and agreed at meeting on Monday 8 March 2004.
2. £400 for item numbered 1 in fax dated 9 March 2004 for site investigation work, as listed.
3. £2,400 for item numbered 2 in fax dated 9 March 2004 for site supervision work, as listed.
If any other work or matters arise, then these must be discussed and agreed before-hand. We would ask you to start the work immediately as time is of the essence.
Yours sincerely,
[hand written signature]
Dr M Hamid
MOON FURNITURE"
Dr Hamid's signature appears at the foot of the letter in the conventional place. That is immediately above his printed name.
The professional team duly proceeded with the necessary design work. One significant feature was the lie of the land. The ground sloped upwards from the rear of the site with rows of terraced houses uphill of the site. It was therefore necessary to install a piled retaining wall at the rear of the site.
Once the basic design work was complete, Dr Hamid entered into a construction contract with BCL. The contract was in the JCT standard form known as IFC 1998 with amendments. The contract was dated 24 th June 2004. The employer was named as Dr Muneer Hamid. The contractor was named as BCL. The architect was named as Mr Richard Clare of Primrose.
Specialist foundation contractors were engaged to design and install the retaining wall. It appears that BCL and FBP also had certain responsibilities in respect of the retaining wall, but that aspect does not arise for consideration at this stage.
Construction began in June 2004. Unfortunately the piling of the retaining wall proved to be inadequate and work was halted in September 2004. After a long interval, work was restarted. The first retaining wall was replaced by a second retaining wall, which was designed and installed by other specialist foundation contractors. The second retaining wall is alleged to have caused excessive movement in the ground behind,...
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