Stroude v Beazer Homes Ltd
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE RIMER,THE HONOURABLE MR JUSTICE WARREN,Mr Justice Warren |
| Judgment Date | 25 November 2005 |
| Neutral Citation | [2005] EWHC 2686 (Ch),[2004] EWHC 676 (Ch) |
| Date | 25 November 2005 |
| Court | Chancery Division |
| Docket Number | Case No: HC03C02917,HC03CO2917 |
[2004] EWHC 676 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand
London WC2
Mr Justice Rimer
HC03CO2917
MR GREGORY HILL (instructed by Marrons) appeared on behalf of the Claimant
R GUY FETHERSTONHAUGH QC (instructed by Nabarro Nathanson) appeared on behalf of the Defendant
This is an application by the claimant, Peter William Stroude, in an action in which the defendants are Beazer Homes Ltd ("BHL"), Beazer Group Ltd and Persimmon Homes Ltd. The application is made in advance of another application, due to be heard in about two weeks' time, in which Mr Stroude is seeking summary judgment against BHL under CPR Part 24 on the basis that it is said that BHL has no real prospect of successfully defending the action.
The object of the present application is to achieve a striking out of material parts of the evidence on which BHL is proposing to rely on the summary judgment application and also various consequential directions, including directions for the amendment of the defence and reply. The basis of the application is that it is said that the evidence complained of is inadmissible, and reliance is placed on CPR Part 32.4(1), which provides that:
"A witness statement is a written statement signed by a person which contains the evidence, and only that evidence, which that person would be allowed to give orally."
The application itself is founded on CPR Part 32.1(1), which provides:
"The court may control the evidence by giving directions as to—-
(a) the issues on which it requires evidence;
(b) the nature of the evidence which it requires to decide those issues; and
(c) the way in which the evidence is to be placed before the court."
The litigation arises in the wake of some land transactions involving various parties before, in and since 2000. The land is at Longstanton, Cambridgeshire. Mr Stroude owns Home Farm, Longstanton, having in 1995 entered into a conditional contract to sell BHL part of the land he then owned. I will, by reference to a plan attached to the particulars of claim, call this land "the single-hatched land". I will call the remainder of Mr Stroude's land "the yellow land". In March 2000, BHL also entered into a conditional contract to purchase from Mr and Mrs Cartwright two small parcels of land abutting parts of the western side of the yellow land. Only one of these parcels is relevant for present purposes. It is in the nature of a relatively small island site cutting into what would otherwise be part of the western perimeter of the yellow land, and I will call this "the cross-hatched land". The Cambridgeshire County Council ("the County Council") owns land abutting the east of the yellow land, and I will call this "the red land").
On 16th October 2000, an outline planning permission for the development of parts of the land was obtained. The details do not matter. On the same day, the South Cambridgeshire District Council ("the Planning Authority"), the County Council, Mr Stroude, Mr and Mrs Cartwright and BHL all entered into an agreement under section 106 of the Town and Country Planning Act 1990. The agreement imposed a joint and several obligation on Mr Stroude and BHL to construct a bypass, its then proposed line running along the western perimeter of the yellow land, over the cross-hatched land and across the northern perimeter of the red land. Clause 7.6.1 contained a grant by the County Council to the other parties of full rights of access to the red land for the purpose of the construction of the bypass so far as the works fell to be carried out on the red land. There was no like express grant by Mr and Mrs Cartwright to Mr Stroude or BHL of access over the cross-hatched land for the purpose of the construction of that part of the bypass which was to be constructed on it, although of course BHL had the benefit at that stage of a conditional contract to purchase the cross-hatched land. At a date subsequent to the section 106 agreement, that contract became unconditional, and BHL now owns both the cross-hatched land and the single-hatched land. The Persimmon Group, which now owns BHL, intends to develop the single-hatched land by building houses on it.
The present proceedings were commenced in July 2003. The main issue they raise is whether Mr Stroude is entitled to access over the cross-hatched land for the purposes of the construction over it of the bypass. He concedes that the section 106 agreement contains no express grant of such a right of access, but claims that it granted him an implied right of access. BHL, now the owner of the cross-hatched land, disputes that Mr Stroude has any such implied right.
The defendants served their defence on 26th September 2003. Paragraph 7 alleges that before, at the time of and subsequent to the making of the section 106 agreement Mr Stroude and BHL were negotiating the terms of a collaboration agreement intended to provide for the grant of mutual rights as between the two of them in relation to the proposed development, including the construction of the bypass. The draft collaboration agreement was said to cover matters such as the sharing of costs and the grant of reciprocal rights of access. Paragraph 10 alleged that the grant of such reciprocal rights would have been unnecessary if Mr Stroude was correct as to the rights impliedly granted by the section 106 agreement, and paragraph 28 asserted that the necessary reciprocal rights as between Mr Stroude and BHL were intended to be governed "by the collaboration agreement or some other consortium agreement to be negotiated".
Mr Stroude's reply, served on 1st December 2003, expressly asserted that BHL's claimed reliance on the proposed collaboration agreement was an attempt to rely on matters which were inadmissible in evidence for the purposes of interpreting the section 106 agreement. It is common ground that the negotiations for a collaboration agreement never reached finality and no such agreement was ever entered into. There is, however, a difference between the parties as to whether those negotiations had finally collapsed before the signing of the section 106 agreement (which is Mr Stroude's case) or whether they continued for some time afterwards (which is BHL's case).
On 24th November 2003, Mr Stroude issued his application for summary judgment, supported by a witness statement from Mr Peter Marron, his solicitor. BHL's evidence in answer to the application is in a witness statement from Angela Dempster made on 17th February 2004. Ms Dempster was an in-house solicitor with the Beazer Group in 2000 and is now employed by Persimmon Plc. Her statement comprises 31 paragraphs, of which eight contain assertions as to the negotiations in the summer of 2000 for what was originally a so-called contribution agreement, but which developed into the proposed collaboration agreement pleaded in the defence. The intended thrust of her evidence is that the negotiations for these agreements were inconsistent with any notion that Mr Stroude and/or BHL intended the section 106 agreement to confer rights of access for construction purposes over the cross-hatched land. It is clear that the negotiations were exclusively between Mr Stroude and BHL, and that Mr and Mrs Cartwright, the County Council and the Planning Authority were not parties to them.
The summary judgment application is fixed to be heard towards the end of this month, with an estimated time of one day. The application on which I am now ruling, which was argued before me last Wednesday, 10th March, was made by an application notice of 3rd March. It seeks a ruling that various identified parts of Ms Dempster's evidence relating to the negotiations of the proposed contribution and collaboration agreements are inadmissible and asks that those parts be redacted, and for various consequential orders. I need not detail the relief sought because it was not suggested that, if Mr Stroude is in principle correct in his contentions, he is not entitled to all the relief he seeks. Mr Gregory Hill appeared for Mr Stroude and Mr Guy Fetherstonhaugh for BHL.
I should comment that my initial instinct on reading the papers was that the point raised by the application was one which was probably better left to the judge hearing the summary judgment application. That was also what I understood to be Mr Fetherstonhaugh's primary stance in his written argument. However, in his oral argument, Mr Fetherstonhaugh departed from that position and made clear that he, in common with Mr Hill, would prefer me to rule on the matter at this stage. Mr Hill's position was that there was anyway a material practical advantage in my doing so. That was because, if I were simply to leave the question of admissibility to the judge hearing the substantive application, Mr Stroude would have in the meantime to incur what might well be considerable expense in replying to the relevant parts of Ms Dempster's evidence by way of protection against the risk that the judge would hold the disputed evidence to be admissible. In the circumstances, I propose to ignore my initial instinct and to decide the point raised by the application.
In support of the application, Mr Hill's point was a simple one. He says that it is and has for long been a well-established principle that evidence of the negotiations leading to the making of a written agreement is not admissible for the purpose of interpreting it, any more than is evidence of the parties' subjective intentions as to what the agreement was intended to mean. He relied in particular on Lord Wilberforce's speech in Prenn v Simmonds [1971] 1 WLR 1381, at ...
To continue reading
Request your trial
- Stroude v Beazer Homes Ltd
-
London Borough of Newham v Ali
...for example, R (Millgate Development Limited) v Wokingham Borough Council [2011] EWCA Civ 1062, [2012] 3 EGLR 87 at para 22(e) and Stroude v Beazer Homes Ltd [2005] EWHC 2686 (Ch), [2006] 2 P& CR 6. The mechanism for enforcement is provided by section 106(5): "[a] restriction or requiremen......
- Newham LBC v Ali
-
Reynold Eloi Respondent/Claimant v Jules Mark Appellant/Defendant Jules Mark Appellant/Claimant v Singoalla Blomqvist — Williams Respondent/Defendant
... ... 21 I am of the considered view that the dicta of Lord Justice Mummery inBeazer Homes Limited v Peter Stroude [2005] EWCA Civ 2656 is applicable to the case at bar. Lord Justice Mummery ... ...