Prime London Residential Development Jersey Master Holding Ltd v Withers LLP
| Jurisdiction | England & Wales |
| Judge | Pelling |
| Judgment Date | 24 September 2021 |
| Neutral Citation | [2021] EWHC 2401 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: CL-2018-000811 |
[2021] EWHC 2401 (Comm)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT (QBD)
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
HIS HONOUR JUDGE Pelling QC
SITTING AS A JUDGE OF THE HIGH COURT
Case No: CL-2018-000811
Mr Nigel Tozzi QC, Mr Tony Singla and Mr Jonathan Scott (instructed by CMS Cameron McKenna Olswang LLP) for the Claimant
Mr Patrick Lawrence QC, Mr Carl Troman and Mr Diarmuid Laffan (instructed by Clyde & Co LLP) for the Defendant
Hearing dates: 8–11, 15–18 and 23 February 2021
Approved Judgment
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.
HIS HONOUR JUDGE Pelling QC SITTING AS A JUDGE OF THE HIGH COURT
HH Judge Pelling QC:
Introduction
This is the trial of a claim by the claimant (“Prime”), as assignee of the causes of action available to Glen House Development LLP (“Glen”), for damages for professional negligence against the defendant (“Withers”) in respect of losses alleged to have been caused primarily by allegedly negligent advice given by Mr Andrew Wass, a partner in Withers specialising in litigation, at a meeting on 29 October 2014.
Prime allege that as a result of that advice, it proceeded from 29 October to 12 December 2014 on the basis that it was fully entitled to demolish the upper floors of a building owned by it called Glen House, 125 Old Brompton Road, London SW7 1NE (“Glen House”) as part of its redevelopment notwithstanding that the ground floor was occupied by H.R. Owen Dealerships Limited (“HRO”) under the terms of a lease between Glen (as successor to the landlord's interest thereunder) and HRO as tenant of the ground floor car showroom and basement of Glen House (“Lease”). It is alleged that this advice was negligent and that in consequence HRO commenced proceedings against Glen and obtained an interim injunction restraining the continuation of the redevelopment works. Glen maintains that if it had been advised correctly, then it would not have proceeded other than by prior agreement with HRO and that the effect of the erroneous advice was to deprive Glen of the real and substantial chance of agreeing better terms for the redevelopment of the building with HRO than in the event it was able to obtain by negotiation following the grant of the injunction and as a result was deprived of a real and substantial chance of proceeding with the development in a manner that would have involved significantly less delay and less cost. Withers denies breach of duty, denies that any loss was caused by the breaches alleged and denies that HRO would have proceeded any differently had Glen been advised as it is alleged it should have been.
The trial took place between 8 to 11, 15 to 18 and 23 February 2021. I heard oral evidence from:
i) Mr Barnaby Joy, a director of Tenhurst Limited (whose role is explained below) who attended the 29 October meeting;
ii) Mr Brian D'Arcy Clark, who was responsible for Savills Investment Management's interest in Glen House as further explained below and who also attended the 29 October meeting;
iii) Mr Julian Symons; a director of Savills Investment Management who also attended the 29 October meeting
iv) Mr Martin Wenlock; a construction project consultant employed by Tenhurst Limited from June 2014, who led the technical discussions with HRO concerning the redevelopment of Glen House and supervised the redevelopment work once it commenced;
v) Mr Michael Plummer; a contractor employed by Tenhurst;
vi) Ms Emma Copestake, a conveyancing partner at Withers during the period material to this claim and the partner responsible for managing Withers' relationship with Glen, who attended the 29 October meeting;
vii) Ms Veronica Carey, a special counsel in Withers' property litigation department who prepared or helped prepare a briefing pack for Mr Wass prior to the 29 October meeting but who did not attend it;
viii) Mr Wass; and
ix) Ms Hannah Robinson, a senior associate employed by Withers in its conveyancing department who at all material times worked closely with and was supervised by Ms Copestake and who gave initial advice on the construction of the Lease in February, March and early October 2014 but who did not attend the 29 October meeting.
Of the witnesses who gave evidence at the trial, those who attended the 29 October meeting were Mr Wass and Ms Copestake on behalf of Withers and Messrs Joy, D'Arcy Clark and Symons on behalf of Glen. The meeting was also attended by Mr Hunter, whose role I explain below. However he did not give evidence at the trial.
A number of experts were due to give evidence relevant to the quantum aspects of this claim. However, aside from one head of loss, agreement has been reached as to the sums being claimed subject to the issues of breach and causation and so the parties decided not to call any of the expert evidence that was available. I return to this at the end of the judgment.
As will be apparent from the introductory summary set out above, the events with which this dispute is centrally concerned all took place in the last quarter of 2014 and the focus is primarily on what was said by Mr Wass at the 29 October meeting and thereafter and what Glen is alleged to have done thereafter allegedly in reliance upon what Mr Wass had said. The impact that this lapse of time inevitably has on the reliability of recollection of the witnesses is exacerbated so far as the Withers' witnesses are concerned by the fact that the briefing pack supplied to Mr Wass prior to the 29 October meeting has been lost and there are no attendance notes that summarise what was said at the meeting on 29 October 2014 apart from a very skeletal attendance note prepared by Ms Copestake, that sheds no light on what was said at the meeting.
After completion of the evidence, but before delivery of closing submissions, Ms Robinson discovered a note she prepared that led ultimately to the letter of 5 November 2014 that has become the focus of attention in relation to what Ms Wass had advised on 29 October. It is both surprising and unfortunate that none of the lawyers at Withers kept attendance notes of the advice that was being given and equally unfortunate that Ms Robinson only discovered what was a plainly material note after evidence had been completed. The failure to discover this note and disclose its existence as and when it should have been inevitably undermines the confidence that I have in the disclosure processes adopted by Withers.
In those circumstances, I have tested the oral evidence of each of the witnesses wherever possible against the contemporary documentation that there is, admitted and inconvertible facts and inherent probabilities. This is an entirely conventional approach – see Onassis and Calogeropoulos v. Vergottis [1968] 2 Lloyds Rep 403 at 407 and 413. This is not to say that a judge can, or should attempt to, resolve factual disputes by referring only to contemporaneous documentation. It is necessary to consider all of the evidence – see Kogan v. Martin [2019] EWCA Civ 164 per Floyd LJ at paragraphs 88–89. There is however nothing either in this authority or the requirement to consider all of the evidence that prevents the evaluation of oral evidence using the techniques I have referred to. In my judgment the use of such techniques is all the more appropriate having regard to the passage of time since the events with which this case is concerned – see Gestmin SGPS SA v. Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) per Leggatt J (as he then was) at paragraphs 15–22. Indeed it is difficult to see what other techniques could safely be adopted in a case such as this where none of the witnesses of fact are truly independent.
As will become apparent from what I say below, I have concluded that some of the witnesses gave oral evidence that I cannot safely rely on. This is not because I consider any of those witnesses have set out to mislead me — that is not alleged by either party against any of the witnesses – but simply because their lack of recollection by reason of the passage of time is such that I cannot safely rely on what they say other than to the extent their evidence is corroborated by reliable evidence or is an admission or is contrary to their interest. Rather than attempting to explain why this is so as a freestanding element of this judgment I explain below how and why I have come to these conclusions by reference to the events that are material to this dispute.
The Facts
Most of the background facts that are relevant are not in dispute. The underlying ownership of Glen is only material in order to understand some of the documentation that I refer to below. Glen was owned as to 95% by an investment fund known as the “ Prime London Residential Investment Fund”, (“Fund”) which was managed by Savills Investment Management (“SIM”). Mr D'Arcy Clark was the person responsible for managing SIM's interest in the Fund. The remaining 5% of Glen was owned ultimately by Tenhurst Limited, a company whose business was and is that of property development through its control of a wholly owned subsidiary called Tenhurst (Capital) Glen Limited. At all times material to this dispute, Tenhurst Limited was controlled by Mr John Hunter. Mr Joy had a minority interest in and was a director of Tenhurst. Glen appointed a subsidiary of Tenhurst Limited called Tenhurst Advisory (Glen) Limited (“Advisory”) to be its development manager for the redevelopment of Glen House. Both Mr Hunter and Mr Joy were appointed directors of Advisory. Advisory's appointment was by an agreement in writing but that agreement has not been...
To continue reading
Request your trial
-
Aurium Real Estate London Ultra Prime Ltd v Mishcon De Reya LLP
...to what advice was given, although there is a dispute about the instructions. At [52] of his judgment in Prime London Residential Development Jersey Master Holding Limited v Withers LLP [2021] EWHC 2401 (Comm), HHJ Pelling, sitting as a deputy judge of the High Court, was critical of solic......