Taylor v Hamer

JurisdictionEngland & Wales
JudgeLady Justice Arden,Lord Justice Sedley
Judgment Date31 July 2002
Neutral Citation[2002] EWCA Civ 1130
Docket NumberCase No: B2/2001/2800 CCRTF
CourtCourt of Appeal (Civil Division)
Date31 July 2002

[2002] EWCA Civ 1130

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM SWINDON COUNTY COURT)

(His Honour Judge Bursell QC)

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before

Lord Justice Sedley

Lady Justice Arden and

Mr Justice Wall

Case No: B2/2001/2800 CCRTF

Between
Taylor
Appellant
and
Hamer
Respondent

Mr Oliver Ticciati (instructed by Wilmot & Co) for the Appellant

Ms Sara J Hargreaves (instructed by Charles Russell, Solicitors)) for the Respondent

Lady Justice Arden
1

This is an appeal from the order of His Honour Judge Bursell QC dated 20 November 2001. The action arose out of the purchase by the appellant from the respondent of a property known as The Eastington Hall Estate, near Upton-on-Severn, Worcestershire, pursuant to a contract dated 29 May 1997. The material issue for the purposes of this appeal is whether that sale included a large quantity of old flagstones which until early May 1997 were in a part of the property known as the dog garden. The facts are not in issue and may be briefly summarised.

2

The appellant inspected the property for the first time as a potential purchaser on 22 February 1997. He also visited the property on a number of other occasions before exchange of contracts. The property included a number of separate gardens. On a couple of these visits he saw the dog garden, a substantial part of which was covered in the old flagstones in question. It was also laid out with trees and shrubs and was partially surrounded by a stone wall. There is no finding that the appellant was shown the dog garden by the respondent or the respondent's agent. Nor is there any finding that the respondent made any representation to the appellant about the dog garden or the flagstones apart from the answer to the enquiry before contract referred to below, or that there was any other communication between them about the dog garden.

3

There were sales particulars for the property in the form of a glossy brochure with photographs. There was no photograph or description of the dog garden as such but the property was said to include "landscaped gardens". On the last page of the sales particulars, the following appeared:

"Important Notice

1. These particulars … must not be relied on as representations of fact. Purchasers must satisfy themselves by inspection or otherwise regarding the items mentioned below …

3. … No assumptions should be made with regard to parts of the property that have not been photographed.

6. The information in these particulars is given without responsibility on the part of the agents or their clients. These particulars do not form any part of an offer or a contract and neither the agents nor their employees have any authority to make or give any representations or warranty whatever in relation to this property.

FIXTURES AND FITTINGS

Those items mentioned in these sale particulars are included in the freehold sale. All other fixtures, fittings and furnishings are expressly excluded. Certain such items may be available by separate negotiation …"

4

Over the weekend of 3 to 5 May 1997, about 282 square yards of these flagstones were taken up on the instructions of the respondent's husband and stacked in a field outside the curtilage of the property. On the husband's instructions, grass was laid in their place. The judge found that the respondent's husband wished to disguise the fact that the flagstones had been removed.

5

On 21 May 1997 a representative of the appellant's solicitors visited the property. He saw and photographed the flagstones where they had been freshly stacked. On the following day, 22 May 1997, he raised the following enquiry before contract:—

"With regard to the pile of paving slabs (between Eastington Hall and the pond immediately to the west) have these been taken from the curtilage of the Hall? If so, has listed building consent been obtained for this?"

6

The response dated 23 May 1997 was "No and they are not included in the sale, but they are to be removed by the vendors".

7

The judge held that this answer was made fraudulently in that the respondent's husband knew that the flagstones had been removed from the dog garden and gave the answer with the respondent's authority. The judge held that the respondent was not liable in contract to the appellant, but was liable for deceit. He held that the measure of damages was the cost of replacing, but not relaying, the flagstones on the basis that if there had been no deceit the respondent would have agreed to include the pile of flagstones in the sale. There is no appeal from the judge's findings on deceit.

8

The judge found that the appellant originally agreed on 18 March 1997 to buy the property for £3.25m. However, due to the necessity of first selling his own house and the financial outlay that he felt was necessary to Eastington Hall, on 15 May 1997 he renegotiated the sale at £3.15m. Contracts were finally exchanged on 29 May 1997.

9

The basis on which the judge rejected the contract claim is not wholly clear. It was argued before him that the contract did not relate to flagstones, which had been removed before the date of the contract because they were not fixtures at the date of the contract. The judge did not expressly decide this issue but appears to have rejected it. He further held that, if the contract on its true construction applied to fixtures at the time the appellant inspected the property then any claim was excluded by clause 8(1) of the contract. This provided:—

"The buyer is deemed to have inspected the property whether or not the buyer has in fact done so".

10

The judge held that, to have any content, this deemed inspection must be deemed to have occurred immediately prior to the exchange of contracts. By implication, the judge decided that the appellant had no claim in contract because he had to be taken as knowing that the flagstones had been removed by the date of the contract.

11

The judge noted that the respondent admitted that she had acted in breach of clause 17 of the contract. This provided that she should provide the buyer with details of alterations carried out to the property during her period of ownership. However, the judge held that the appropriate remedy would be in damages, not restitution, and there is no appeal on this point.

12

The reality of the situation here is that the flagstones, which were removed are still available to be returned to the property (although they have been moved to the Isle of Wight). I note that in one reported case concerning a fixture wrongly removed between contract and conveyance the court made an order for the fixture to be restored to the property: Phillips v Lamdin [1949] 2 KB 33. There is a finding that the flagstones were of a special quality but we have not seen any evidence that these flagstones were unique or irreplaceable, and there is no finding on that point. In the amended particulars of claim, the appellant claims £75,687 as the cost of both replacing and relaying the flagstones. The real problem is that the appellant wants to recover the cost of relaying the flagstones. He does not seek to do this in tort but by pursuing his contract claim.

Appellant's submissions

13

Mr Oliver Ticciati, for the appellant, submits that the judge should not have dismissed the contract claim. The contract on its true interpretation included the flagstones because, where an intending vendor shows a purchaser the intended subject-matter of the contract and then removes part of it without the knowledge of the intending purchaser, the subsequent contract should be construed so as to refer to the subject matter as it existed before the vendor altered it. Mr Ticciati submits that this proposition flows from the first principle for the construction of contractual documents laid down by Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, 912, (the I.C.S. case), that interpretation is "the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract". The offer which the appellant made was for the property he had been shown.

14

Mr Ticciati further submits that the judge's interpretation of clause 8(1) involves reading words into that clause which were not there. Contrary to the judge's approach, the clause would be of value to the vendor in relation to matters which were unlikely to change between a deemed inspection carried out a reasonable time before exchange and the exchange, for example, in relation to boundaries.

15

Moreover, Mr Ticciati submits that the judge held by implication the appellant was deemed to have discovered any change made by the respondent since his first inspection whether or not that was reasonably discoverable and even though intentionally concealed by the respondent and that the judge was wrong in law so to hold. In support of this submission, Mr Ticciati relies on Gordon v Selico Ltd [1986] 1 EGLR 71. In that case, the contract for the sale of the property in question included the clause that the purchaser should buy in full notice of the actual state and condition of the property. The Court of Appeal held that this did not prevent the vendors from being liable in deceit for dry rot, which had been covered up. This was so, even though the purchaser had commissioned his own surveyor's report which had mentioned the possibility of dry rot and even though the vendor had expressly refused to give any warranty as to the condition of the property. Mr Ticciati submits that a...

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2 cases
  • Alan Ernest Sykes and Susan Sykes v James Walker Taylor-Rose and Alison Claire Taylor-Rose
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 27 February 2004
    ...The terminal state of the principle is demonstrated, it is submitted, by the recent decision of the majority of the Court of Appeal in Taylor v Hamer [2002] EWCA Civ 1130. I have considered that case. It does not, in my judgment, mark the sea-change for which Mr Toone contends. It seems to......
  • Wickens v Cheval Property Developments Ltd
    • United Kingdom
    • Chancery Division
    • 8 September 2010
    ...between inspection and exchange. 12 In answer to these points, Mr Randall QC placed reliance on the decision of the Court of Appeal in Taylor v Hamer [2002] EWCA Civ 1130; [2003] 1 EGLR 103. In that case, the seller's husband removed 282 square yards of old flagstones from a dog garden aft......
1 firm's commentaries
  • An End To Caveat Emptor?
    • United Kingdom
    • Mondaq UK
    • 1 August 2016
    ...paving slabs from around a listed building for use elsewhere and denying they were part of the listing of the building (Taylor v Hamer [2002] EWCA Civ 1130; [2003] 1 EGLR 103). Misrepresentation: incorrect replies to enquiries that cause damage to the buyer/tenant can lead to a claim. A mis......
1 books & journal articles
  • THE LAW OF HAUNTED HOUSES: A COMMENT ON STIGMATIZED PROPERTIES FOLLOWING WANG V SHAO.
    • Canada
    • University of British Columbia Law Review Vol. 54 No. 2, September 2021
    • 15 September 2021
    ...note 20 at para 47. (46) Terrene Ltd v Nelson, [1937] 3 All ER 739 at 744, 53 TLR 963 (ChD) [Terrene]. See also Taylor v Hamer (2003), [2002] EWCA Civ 1130 at para 41 [Taylor]; Stuart Bridge Elizabeth Cooke & Martin Dixon, Megarry & Wade: The Law of Real Property, 9th ed (London: Sw......

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