Waugh v H.B. Clifford & Sons Ltd

JurisdictionEngland & Wales
JudgeLORD JUSTICE CUMMING-BRUCE,LORD JUSTICE BRIGHTMAN,LORD JUSTICE ACKNER
Judgment Date21 December 1981
Judgment citation (vLex)[1981] EWCA Civ J1221-8
Docket Number81/0535
CourtCourt of Appeal (Civil Division)
Date21 December 1981
Between:
Francis Waugh
(First Plaintiff/Respondent)
and
Linda Waugh
(Second Plaintiff/Respondent)

and

John Hillier
(Third Plaintiff/Respondent)

and

Christine Margaret Hillier
(Fourth Plaintiff/Respondent)

and

H.B. Clifford & Sons Ltd.
(First Defendants/Appellants)

and

Boys & Maughan
(Second Defendants)

[1981] EWCA Civ J1221-8

Before:

Lord Justice Cumming-Bruce

Lord Justice Brightman

Lord Justice Ackner

81/0535

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL

CIVIL DIVISION

On Appeal from His Honour Judge Blackett-Ord

(Vice-Chancellor of the County Palatine of

Lancaster, sitting as a High Court Judge)

Royal Courts of Justice

MR. CHARLES ALDOUS (instructed by Messrs. Barnett & Barnett) appeared on behalf of the First Defendants/Appellants.

MR. WILLIAM POULTON (instructed by Messrs. Williamson & Barnes, Deal) appeared on behalf of the Plaintiffs/Respondents.

MR. PETER LANGAN (instructed by Messrs. Barlow, Lyde & Gilbert) appeared on behalf of the Second Defendants.

LORD JUSTICE CUMMING-BRUCE
1

Lord Justice Ackner is unable to be here today and I shall read his short judgment in due course.

2

The Plaintiffs are two couples each of whom in the summer of 1977 bought from the Defendant Company adjoining plots of land with agreements that the Defendants build upon each plot a semi-detached dwellinghouse. The Defendant Company carried on business as builders and was for practical purposes owned and managed by Mr. H.B. Clifford.

3

The houses appeared to be well built and satisfactory when the Plaintiffs moved in, but soon after each couple complained about troubles with the plaster in the walls and ceilings. They called Mr. Clifford in. He did some remedial work but the trouble continued. In the summer of 1978 the Plaintiffs who had united together, consulted solicitors, Messrs. Williamson & Barnes, who took the matter up with the Defendant Company. The company instructed their solicitors, Messrs. Boys & Maughan. Mr. Clifford instructed a partner in that firm to get a surveyor to try on inspection to discover the source of the trouble, to write to Rumbolds, the firm who had supplied the company with the breeze blocks that were suspected to be the cause of the trouble, and to deal with any litigation. On 18th January, 1980 the Plaintiffs issued a writ against Mr. Clifford's company with a Statement of Claim claiming damages for negligence and breach of contract for building and internal walls and the party wall of the two houses with defective breeze blocks. The surveyor, Mr. Gore, reported to Mr. Austin and Mr. Clifford, and advised that it looked as if the company was liable to the Plaintiffs for building the houses with defective blocks though there were other causes as settlement and shrinkage due to drying out of the plaster also seemed to have contributed to the damage.

4

On 4th March the Plaintiffs issued proceedings for summary judgment under Order XIV returnable on 8th May. This introduced an urgency into the proceedings. The next day Mr. Austin reported to Mr. Clifford that writs had been issued and the date for the hearing of the summons for judgment. His letter went on:

"Clearly we shall be in a good position to serve our Defence well before that date and to compromise the matter if at all possible, and I suggest that the time is now appropriate for us to meet up, Mr. Hillier, [one of the Plaintiffs] myself and you, and discuss the matter generally. As a matter of interest, I understand that Mr. Hillier's Solicitors think he would still be willing to sell the property, which suggestion was I think the subject of previous correspondence, but no doubt we can discuss that when we meet."

5

On the same day the Plaintiffs' solicitors wrote to Messrs. Boys & Maughan, and said:

"…..At the moment it is quite clear that even if it were possible to effectively repair the damage the cost would be very substantial and the work would necessarily involve our clients moving out of their houses completely for a period of at least six weeks. As your client and yourselves have indicated in the past that you would certainly want to consider some form of settlement, we have been instructed to confirm to you that our clients would be prepared to settle their claim against your client on the basis that your client purchases both houses at their current market value and provided that your client also pays the conveyancing costs and our clients' costs in this matter to date. we must ask you to take instructions on this as soon as possible because our clients tell us they are only prepared to settle on this basis if your client can come to a decision within 21 days from today's date. Mr. and Mrs. Hillier will be moving out of their house at the end of the month to premises in the west Country, where Mr. Hillier has been posted. This will involve them in considerable extra expense, and we give you notice that this will ultimately be included in the claim against your clients."

6

On 18th March there was a meeting between Mr. Clifford, Mr. Austin and Mr. Gore. Mr. Austin made a rough note of what he thought was decided at the meeting:—

"1. Purchase open market valuation reflecting some contribution towards shrinkage. 2. Not pay Hillier's conveyancing costs. 3. Pay other conveyancing costs plus costs of litigation of both parties. 4. Handley's fees not." (Handley was the surveyor advising the Plaintiffs.)

7

The learned Judge found that at that meeting Mr. Clifford authorised his solicitors, Messrs. Boys & Maughan, to proceed on the footing that he was prepared in principle to purchase the houses at a valuation to be agreed, although perhaps the basis of valuation had not been really thought out.

8

On the same day Mr. Austin wrote to Messrs. Williamson & Barnes:

9

"We refer to your letter of the 5th March, 1980, the contents of which we have now discussed with our client in conjunction with his surveyor.

10

"Our client is prepared in principle to purchase the houses of both sets of Plaintiffs at a valuation to be agreed between the parties.

11

"Our client is also prepared to pay the conveyancing costs in this regard of Mr. and Mrs. Waugh but does not consider it reasonable that he should pay the conveyancing costs of Mr. and Mrs. Hillier having regard to the fact that they were proposing to move in any event.

12

"Our client is also prepared to meet the costs of the litigation to date.

13

"Perhaps you would obtain instructions at the earliest opportunity so that we can finalise arrangements before it becomes necessary to prepare for the Order XIV application on the 8th May."

14

He sent a copy of this letter to Mr. Clifford who raised no objection to it.

15

On 25th March the Plaintiffs' solicitors replied to that letter:

16

"We thank you for your letter dated 13th March which we have now discussed with our clients.

17

"In principle, our clients are prepared to settle on the basis that you set out in your letter. we appreciate the points you make about Mr. and Mrs. Hillier's conveyancing costs, however, their position has now altered because Mr. Hillier's posting to Yeovilton has now been cancelled and he has to remain in Deal. We enclose a copy of a letter from Mr. Hillier's commanding officer which confirms this. In these circumstances, we consider that Mr. and Mrs. Hillier's costs should also be paid by your client.

18

"Our clients have been advised as to the valuation of their properties by Mr. R.E. Handley and we would wish him to negotiate on their behalf. Perhaps you would like to ask your valuer to get in touch direct with him at Dover 852232.

19

"We are preparing a note of our costs and disbursements and will let you have details in due course.

20

"We look forward to hearing from you in reply." On 28th March Mr. Austin wrote to Mr. Clifford:

21

"I refer to my letter to the other side consequent upon our meeting on the 13th March and I am very pleased to advise that the offer has in principle been accepted subject to the one qualification in the second paragraph of the enclosed copy letter which, you will see, I have dealt with in my reply. I will think you will have to concede this point.

22

"I have asked Mr. Gore either to negotiate on your behalf or to recommend the name of a suitable Deal surveyor for that purpose and as soon as they have some figures I will let you know."

23

On the same day Mr. Austin wrote to the Plaintiffs' solicitors:

24

"Thank you for your letter of the 25th March.

25

"There was no enclosure with your letter but we accept what you say.

26

"We are instructing our valuer accordingly.

27

"We are not proposing at present to prepare for the Order XIV hearing on the 2nd May."

28

On the 21st April, Mr. Austin reported again to Mr. Clifford:

29

"Further to our recent telephone conversation I confirm that Mr. Gore has acknowledged instructions to conduct negotiations on your behalf.

30

"We have conceded on your behalf the point about Mr. and Mrs. Hillier's conveyancing costs as it would appear that at the present time they have no plans to move from the area.

31

"Messrs Stewart Gore propose to take the view that the shrinkage aspect of the defective plaster work should be reflected in assessing the open market value.

32

"I will report to you further as soon as possible."

33

On the same day he told the Plaintiffs' solicitors that the company would pay the Hilliers' conveyancing costs, and asked them to confirm that they would now withdraw the Order XIV summons. The Judge found that up to 21st April Mr. Clifford was being kept informed of the progress of events and there was no evidence that he raised any objection.

34

The valuers negotiated. Mr. Gore made an offer of £20,000 on behalf of the company for each house. Mr. Handley suggested £29,000...

To continue reading

Request your trial
95 cases
  • Indian Overseas Bank v Abacus Realty Pte Ltd and Others
    • Singapore
    • High Court (Singapore)
    • 9 January 1998
    ...issue here is therefore the ostensible authority of Mrs Yeo, as solicitor. Counsel for the plaintiffs cited to me Waugh v Clifford & Sons [1982] Ch 374 to submit that Mrs Yeo, and of course her firm, had such ostensible authority. In Waugh the plaintiffs who purchasd two semi-detached house......
  • Abdul Jalil bin Ahmad bin Talib and Others v A Formation Construction Pte Ltd
    • Singapore
    • Court of Appeal (Singapore)
    • 28 May 2007
    ...respondent’s solicitors. The law is well established on this issue. The Judge applied the principle in Waugh v H B Clifford & Sons Ltd [1982] Ch 374 (and accepted as long established in Harford v Birmingham City Council (1993) 66 P & CR 468) that in contentious matters a solicitor or counse......
  • Abacus Realty Pte Ltd and Others v Indian Overseas Bank
    • Singapore
    • Court of Appeal (Singapore)
    • 23 October 1998
    ...the completion of the mortgages and ensure the due completion and execution of these instruments. 21.In Waugh v HB Clifford & Sons [1982] 1 Ch 374, the plaintiffs were purchasers of two semi-detached houses built and sold by the defendant company. After the completion of the purchases, the ......
  • Abu Samah Hj Wahab v Bukit Rambai Development
    • Malaysia
    • High Court (Malaysia)
    • 1 January 2003
  • Request a trial to view additional results
3 books & journal articles
  • Contract formation
    • United Kingdom
    • Construction Law. Volume I - Third Edition
    • 13 April 2020
    ...may arise as to the scope of that authority. he scope of an agent’s authority is discussed below. 415 Waugh v HB Cliford & Sons Ltd [1982] Ch 374; Ewing International LP v Ausbulk Ltd (No 2) [2009] SASC 381 at [40]–[50], per Layton J. 416 JL Builders & Son v Naylor [2008] EWCA Civ 1621 at [......
  • The Legal Status and Enforceability of Mediated Settlement Agreements
    • Ireland
    • Hibernian Law Journal No. 12-2013, January 2013
    • 1 January 2013
    ...of Irish law generally, see McDermott, supra note 16, chapter 17. 98 See Sussman, supra note 12, p.35 99 Waugh v HB Clifford & Sons Ltd [1982] CH 374; and Von Schulz v Morriello (1998) QCA 236. See also Boulle and Nesic, supra note 15, p.510 100 Inwood International Co v Wal-Mart Stores 243......
  • Contract Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2006, December 2006
    • 1 December 2006
    ...solicitors had the ostensible authority to settle the plaintiff”s claim against the defendant. Applying Waugh v HB Clifford & Sons Ltd[1982] Ch 374, Judith Prakash J was satisfied that the plaintiff”s solicitors were indeed clothed with the relevant authority. Further, and more significantl......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT