Roger Michael and Others and Douglas Henry Miller and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DYSON,Lord Justice Jonathan Parker,Lord Justice Scott Baker,Lord Justice Auld |
| Judgment Date | 22 March 2004 |
| Neutral Citation | [2004] EWCA Civ 282,[2003] EWCA Civ 1443 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A3/2003/1290(Y),Case No: A3 2003 1290 |
| Date | 22 March 2004 |
[2003] EWCA Civ 1443
Lord Justice Dyson
A3/2003/1290(Y)
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY
(HIS HONOUR JUDGE WEEKS QC
(sitting as a deputy High Court judge))
MR S JOURDAN (instructed by Messrs Burges Salmon, Bristol BS1 4AH) appeared on behalf of the Applicants
The Respondents did not appear and were not represented
The claimants own two neighbouring farms which I will refer to as "the estate". The estate was mortgaged to the defendants. The claimants did not pay the amount due and the defendants repossessed and sold the estate. The sale price was £1.625 million. The claimants claim damages for breach of the defendants' duty as mortgagees to take steps to obtain the best price reasonably obtainable for the estate.
The trial was heard by Judge Weeks QC. He held that the defendants had breached their duty as mortgagees to take steps to obtain the best price reasonably obtainable in one respect only. He held that they had been negligent in agreeing to a reduction from £1.65 million to £1.625 million in response to a request for a price reduction by the purchaser based on a schedule of defects. The judge held that the market value of the estate at the date of exchange of contracts was £1.75 million. But as I have said, he held that only £25,000 of the shortfall was attributable to the defendants' negligence.
The judge gave the claimants limited permission to appeal. He gave them permission to appeal what has been referred to as "the bracket issue". By the phrase "the bracket issue", the judge was referring to the fact that he found (at page 73 of his judgment) that the "acceptable bracket" ranged from £1.6 million to £1.9 million and he said that he would not regard a valuation within that bracket as being negligent. The sale price of £1.625 million fell within the bracket. The judge found that the defendants had been in breach of duty only because of their agreement to accept the reduction of £25,000 as I have described.
The permission to appeal given by the judge was directed to the question whether he was right to acquit the defendants of a breach of duty on the grounds that the price of £1.65 million was within the acceptable bracket, in circumstances where they may not have taken steps to obtain the best price reasonably obtainable.
In addition to the bracket point, however, the claimants seek permission to appeal against the judge's findings that Mr Hextall, the agent instructed by the defendants to sell the property, was not negligent. Mr Hextall was instructed in place of Strutt & Parker who had been marketing the property for some five weeks.
The judge dealt with these criticisms of Mr Hextall's performance at pages 74 and 75 of his judgment. It is not necessary to examine the detail of those criticisms or the way in which the judge dealt with them. Suffice it to say that there were criticisms as to the degree of marketing of the property carried out by Mr Hextall and other matters of that kind.
Mr Jourdan points out that in the passage where the judge deals with the criticisms of Mr Hextall there is no reference to the bracket issue itself. He submits that there are three possibilities. First, that the bracket had no bearing on the judge's decision that the marketing of the property was conducted with reasonable care. If that is right, then the bracket issue is of academic interest only. The second possibility is that the bracket issue was decisive of the determination of the issue of negligence. If that is so, then if the claimants succeed on the bracket issue then the damages would be increased to £125,000. That is the claimants' primary case. The third possibility is that the bracket issue had some influence on the decision. If that were to be so, then the court would not be able to decide whether or not to uphold the judge's decision, unless it went into the substance of the allegations of negligence on the part of Mr Hextall and examined the complaints made by the claimants about the way the judge dealt with those matters.
It seems to me that it is not possible at this stage to say what influence (if any) the bracket issue did have on the judge's determination of the allegations of negligence on the part of Mr Hextall.
In his skeleton argument Mr Jourdan says that at the hearing on 23rd May 2003 he told the judge that it was not clear from the judgment what weight had been given to the bracket issue in finding that Mr Hextall had not been negligent. The skeleton argument says (at paragraph 9) that the judge said that it did play a part in his judgment, but he could not now say what the significance of it had been. It seems to me that in these circumstances the claimants ought to be given permission to appeal on all the issues which they seek to raise in their grounds of appeal and skeleton argument. In that way this court, when hearing the appeal, should be in the best position to determine the appeal fully and thereby reduce the possibility of the matter having to be remitted to the judge for further findings and a further judgment.
For these reasons, I propose to extend the ambit of the permission to appeal to embrace all the points that the claimants seek to raise.
ORDER: Application for permission to appeal granted; time estimate of the appeal of one day excluding judgment; costs of this application to be costs in the appeal.
(Order not part of approved judgment)
[2004] EWCA Civ 282
Lord Justice Auld
Lord Justice Jonathan Parker and
Lord Justice Scott Baker
Case No: A3 2003 1290
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT
CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY
His Honour Judge Weeks QC sitting as a Judge
of the High Court
Bristol District Registry BS 150213
Royal Courts of Justice
Strand,
London, WC2A 2LL
Stephen Jourdan (instructed by Burges Salmon) for the Appellants
Nigel Clayton (instructed by BPE Solicitors) for the Respondents
Before the court are an appeal and a cross-appeal against an order made by His Honour Judge Weeks QC sitting as a judge of the Chancery Division in the Bristol District Registry on 23 May 2003 in an action brought by Mr Roger Michael, Ms Julia Heywood and Mr David Bates (the appellants) against Mr Douglas Miller and his wife Mrs Doris Miller (the respondents and cross-appellants) .
In the action the appellants, as mortgagors of an agricultural property known as Brellim House Estate, near Naunton in Gloucestershire (“the Estate”), claim relief against the respondents on the footing that the respondents, in selling the Estate as mortgagees, breached their duty to the appellants to take reasonable care to obtain the best price reasonably obtainable. At the time of the sale part of the Estate had been planted by the appellants with a large quantity of lavender and other herbal plants. The respondents sold the Estate by private treaty for £1.625M. There was no separate sale of the plants: in effect, they were treated by the respondents as valueless. The estate agent and valuer who acted for the respondents on the sale was Mr Nicholas Hextall of John D. Wood & Co.
The appellants allege that, but for the alleged breaches of duty, the Estate would have achieved a price in the region of £3M, including a substantial sum for the lavender plants.
Following a two-week trial, the judge found that the market value of the Estate (excluding the plants) at the date of the sale was £1.75M, but that an acceptable bracket for valuations ranged from £1.6M to £1.9M. He went on to find that although Mr Hextall, who had valued the Estate at £1.6M, had not acted negligently, the respondents had nevertheless breached their duty as mortgagees in two respects. First, he found that they had breached their duty as mortgagees in agreeing (without reference to Mr Hextall) a last-minute reduction of £25,000 in the purchase price (reducing it from £1.65M to £1.625M) . Secondly, he found that the respondents “could and should” have marketed the lavender plants separately from the land, and that Mr Henry Head, an expert in the production and marketing of lavender oil, was negligent in advising them that the lavender plants were worthless.
By his Order the judge directed that a sum of £25,000 be credited to the mortgage account in respect of the first breach; and he ordered an inquiry as to what further sum should be so credited in respect of the second breach. He directed that issues as to costs be adjourned to be dealt with following the inquiry or any appeal by either party.
The judge granted the appellants permission to appeal on the issue as to the significance of the bracket of ‘non-negligent’ valuations. He also granted the appellants and the respondents permission to appeal against his decision to order an inquiry as to damages in relation to the lavender plants. He refused permission for the appellants to appeal against his finding that Mr Hextall had not acted negligently in relation to the sale of the Estate. The appellants applied to the Court of Appeal for such...
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