Hamid (t/a Hamid Properties) v Francis Bradshaw Partnership [2013] EWCA Civ 470

Case No A1/2013/0063 & 0066[2013] EWCA Civ 470
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
HIS HONOUR JUDGE RAYNOR QC
9MA50128
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 02/05/2013
Before
LORD JUSTICE RIXLORD JUSTICE JACKSONLORD JUSTICE MCCOMBE
Between
MUNEER HAMID (T/A HAMID PROPERTIES)Claimant/FRANCIS BRADSHAW PARTNERSHIPDefendant/
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Jeremy Nicholson QC and Ms Kate Livesey (instructed by Hill Dickinson LLP) for Appellant/DefendantMr Adrian Williamson QC and Mr Gideon Scott Holland (instructed by Pinsent Masons LLP) for Respondent/ClaimantHearing Hearing date: 26th March 2013
Judgment
[1]This judgment is in six parts, namely: Part 1. Introduction, Part 2. The facts, Part 3. The present proceedings, Part 4. The appeal to the Court of Appeal, Part 5. The law, Part 6. Decision. Part 1. Introduction[2]This is an appeal against a decision of His Honour Judge Raynor QC sitting in the Manchester Technology and Construction Court (“TCC”) to the effect that it was Dr Muneer Hamid, rather than his company Chad Furniture Store Ltd, who employed the appellant firm to provide engineering services on a building project.[3]The contract of engagement was partly oral and partly written, having been made in two conversations followed by one letter.[4]The resolution of this appeal will require a review of some of the authorities on identity of parties and agency. It will also require close examination of the letter which concluded the contract of engagement.[5]The only statutory provisions which are relevant to this case are sections 348, 349 and 351 of the Companies Act 1985. These sections (now superseded by later legislation) at the material time provided as follows: “348.(1) Every company shall paint or affix, and keep painted or affixed, its name on the outside of every office or place in which its business is carried on, in a conspicuous position and in letters easily legible.(2) If a company does not paint or affix its name as required above, the company and every officer of it who is in default is liable to a fine; and if a company does not keep its name painted or affixed as so required, the company and every officer of it who is in default is liable to a fine and, for continued contravention, to a daily default fine. 349. (1) Every company shall have its name mentioned in legible characters – (a) in all business letters of the company, (b) in all its notices and other official publications, (c) in all bills of exchange, promissory notes, endorsements, cheques and orders for money or goods purporting to be signed by or on behalf of the company, and (d) in all its bills of parcels, invoices, receipts and letters of credit. (2) If a company fails to comply with subsection (1) it is liable to fine.(3) If an officer of a company or a person on its behalf – (a) issues or authorises the issue of any business letter of the company, or any notice or other official publication of the company, in which the company’s name is not mentioned as required by subsection (1), or (b) issues or authorises the issue of any bill of parcels, invoice, receipt or letter of credit of the company in which its name is not so mentioned, he is liable to a fine.(4) If an officer of a company or a person on its behalf signs or authorises to be signed on behalf of the company any bill of exchange, promissory note, endorsement, cheque or order for money or goods in which the company’s name is not mentioned as required by subsection (1), he is liable to a fine; and he is further personally liable to the holder of the bill of exchange, promissory note, cheque or order for money or goods for the amount of it (unless it is duly paid by the company). …. 351. – Particulars in correspondence, etc. (1) Every company shall have the following Particulars mentioned in legible characters in all business letters and order forms of the company, that is to say- (a) the company’s place of registration and the number which it is registered, (b) the address of its registered office, (c) in the case of an investment company (as defined in section 266), the fact that it is such a company, and (d) in the case of a limited company exempt from the obligation to use the word "limited" as part of its name, the fact that it is a limited company. (2) If in the case of a company having a share capital there is on the stationery used for any such letters, or on the company's order forms, a reference to the amount of share capital, the reference must be to paid-up share capital. ….(5) As to contraventions of this section, the following applies (a) if a company fails to comply with subsection (1) or (2), it is liable to a fine, (b) if an officer of a company or a person on its behalf issues or authorises the issue of any business letter or order form not complying with those subsections, he is liable to a fine.” (a) in all business letters of the company, (b) in all its notices and other official publications, (c) in all bills of exchange, promissory notes, endorsements, cheques and orders for money or goods purporting to be signed by or on behalf of the company, and (d) in all its bills of parcels, invoices, receipts and letters of credit. (a) issues or authorises the issue of any business letter of the company, or any notice or other official publication of the company, in which the company’s name is not mentioned as required by subsection (1), or (b) issues or authorises the issue of any bill of parcels, invoice, receipt or letter of credit of the company in which its name is not so mentioned, (a) the company’s place of registration and the number which it is registered, (b) the address of its registered office, (c) in the case of an investment company (as defined in section 266), the fact that it is such a company, and (d) in the case of a limited company exempt from the obligation to use the word "limited" as part of its name, the fact that it is a limited company.[6]Finally there is an issue concerning fresh evidence to be resolved. When dealing with procedural matters I shall refer to the Civil Procedural Rules as “CPR”.[7]After these introductory remarks I must now turn to the facts.

Part 2. The facts

[8]Dr Muneer Hamid was at all material times the sole director and sole shareholder of a company called Chad Furniture Store Ltd (“Chad”). Chad was in the business of selling furniture and it traded under the name “Moon Furniture”. Chad Furniture Store Ltd, trading as Moon Furniture, had been registered for VAT since 1st November 1993. Chad’s VAT registration number was 606 670 052.[9]Dr Hamid from time to time conducted business personally as well as through his company. For this purpose Dr Hamid, operating under the name Hamid Properties, had his own personal registration for VAT under number 823 223 561.[10]During 2003 and 2004 Chad was based at Marland Mill, Nixon Street, Rochdale, Lancashire, where it had its showroom.[11]In 2003 Dr Hamid purchased a site on the east side of Roch Valley Way, Rochdale in his own name. He intended to transfer the business of his company to that location. Dr Hamid completed the purchase on 8th October 2003. On that date the freehold owner of the site granted a 999 year lease to Dr Hamid at a peppercorn rent.[12]Thereafter Dr Hamid assembled a team to carry out the design and construction of the proposed new showroom for Chad. That team included a firm of architects called Primrose Designs (“Primrose”), a firm of engineers called Francis Bradshaw Partnership (“FBP”) and a construction company, Barnfield Construction Ltd (“BCL”).[13]The initial approach to FBP was made by the architects in December 2003. FBP’s engagement as engineers on the project was not finalised until March 2004. It is common ground that FBP’s contract of engagement was partly oral and partly in writing. In so far as the contract was oral, it was made in discussions between Dr Hamid and Mr Simon Preugschat of FBP at a meeting on 8th March and in a telephone conversation on 10th March 2004. In so far as the contract was written, it was contained in a letter dated 10th March 2004.[14]The letter dated 10th March 2004 was written on notepaper headed as follows:
“MN FURNITURE Marland Mill, Nixon St, Rochdale, OL11 3JD Tel & Fax: (01706) 860085, e-mail: info@moonfurniture.co.uk, web: www.moonfurniture.co.uk”
Marland Mill, Nixon St, Rochdale, OL11 3JD Tel & Fax: (01706) 860085, e-mail: info@moonfurniture.co.uk, web: www.moonfurniture.co.uk”

Marland Mill, Nixon St, Rochdale, OL11 3JD

[15]The text of the letters reads as follows:
“Mr S Preugschat Francis Bradshaw Partnership 12 Hargreaves St Burnley BB11 1DZ Dear Sir Re: Moon Retail Park We refer to work to be carried out at the above premises, formerly known as the old Daewoo site. We refer to your letter dated 25 February 2004, fax dated 9 March 2004 and today’s telephone conversation. We agree to the following fees:- 1. £24,750 for fees and disbursements for all the work discussed and agreed at meeting on Monday 8 March 2004. 2. £400 for item numbered 1 in fax dated 9 March 2004 for site investigation work, as listed. 3. £2,400 for item numbered 2 in fax dated 9 March 2004 for site supervision work, as listed. If any other work or matters arise, then these must be discussed and agreed before-hand. We would ask you to start the work immediately as time is of the essence. Yours sincerely, [hand written signature] Dr M Hamid MOON FURNITURE”
Francis Bradshaw Partnership Burnley BB11 1DZ Dear Sir Re: Moon Retail Park [hand written signature] Dr M Hamid MOON FURNITURE”

Dr M Hamid

[16]Dr Hamid’s signature appears at the foot of the letter in the conventional place. That is immediately above his printed name.[17]The professional team duly proceeded with the necessary design work. One significant feature was the lie of the land. The ground sloped upwards from the rear of the site with rows of terraced houses uphill of the site. It was therefore necessary to install a piled retaining wall at the rear of the site.[18]Once the basic design work was complete, Dr Hamid entered into a construction contract with BCL. The contract was in the JCT standard form known as IFC 1998 with amendments. The contract was dated 24th June 2004. The employer was named as Dr Muneer Hamid. The contractor was named as BCL. The architect was named as Mr Richard Clare of Primrose.[19]Specialist foundation contractors were engaged to design and install the retaining wall. It appears that BCL and FBP also had certain responsibilities in respect of the retaining wall, but that aspect does not arise for consideration at this stage.[20]Construction began in June 2004. Unfortunately the piling of the retaining wall proved to be inadequate and work was halted in September 2004. After a long interval, work was restarted. The first retaining wall was replaced by a second retaining wall, which was designed and installed by other specialist foundation contractors. The second retaining wall is alleged to have caused excessive movement in the ground behind, but remains in use. In September 2007 the furniture showroom was completed. Chad took possession and resumed trading there. That continued until December 2011. Chad then ceased trading for reasons unrelated to the retaining wall. Dr Hamid then let the premises to another retailer.[21]Dr Hamid maintained that he had suffered substantial losses as a result of defects in both the first and second retaining walls. In order to recover those losses he commenced the present proceedings.

Part 3. The present proceedings

[22]By a claim form issued in the TCC at Manchester on 24th November 2009 Dr Hamid claimed damages against the parties whom he regarded as responsible for the defects in the two retaining walls. The first defendant was BCL. The second defendant was named as Francis Bradshaw Partnership LLP. That firm was in fact the successor to FBP. FBP was subsequently substituted as second defendant and nothing now turns on the original joinder of the wrong party. I shall therefore refer to FBP as the second defendant without further mention of that procedural mishap.[23]In due course both defendants served defences denying liability. One of the contentions pleaded by FBP was that it had no contract with Dr Hamid; the party which employed FBP was Chad. There were perfectly understandable tactical reasons for this defence. In particular, if Chad were joined or substituted as claimant, it could be argued that Chad suffered no loss because it did not own the property.[24]The litigation duly proceeded. On 13th July the parties reached an agreement which greatly reduced the scope of the litigation. All claims by Dr Hamid against BCL and against FBP in respect of the first retaining wall (as well as relatively minor claims against BCL in respect of other matters) were settled. Thereafter the only claims which remained to be resolved were Dr Hamid’s claims against BCL and FBP in respect of the second retaining wall.[25]On 16th July 2012 His Honour Judge Raynor QC, the senior TCC judge in Manchester, directed the trial of preliminary issues. The first preliminary issue (and the only one with which this court is concerned) was whether the party who engaged FBP was Dr Hamid or Chad.[26]The trial of the preliminary issues took place in the Manchester TCC before His Honour Judge Raynor during November 2012. On the claimant’s side Dr Hamid gave evidence. Mr Preugschat and two of his colleagues, Mr Bradshaw and Mr Jones, gave evidence on behalf of FBP.[27]The judge delivered his reserved judgment on 23rd November 2012. His findings of fact included the following: i) Mr Preugschat, Mr Bradshaw and Mr Jones understood that Primrose were acting for “Moon Furniture” and that FBP were being invited by Primrose to tender for services to “Moon Furniture”. ii) The architect never told FBP that “Moon Furniture” was a limited company. iii) Mr Preugschat had two telephone conversations with Mr Clare on 4th March 2008. As a result of these conversations Mr Preugschat understood that Dr Hamid would be attending the meeting on 8th March for the client. iv) Mr Preugschat made an assumption that Moon Furniture was a limited company, but no-one told him that this was the case. v) Mr Preugschat first met Dr Hamid at the meeting on 8th March 2004. On this occasion he was made aware that Dr Hamid was the owner of the Moon Furniture business. vi) Mr Preugschat was not told about Chad at the meeting on 8th March or on any other occasion during 2004. vii) On the 10th March 2004 there were further negotiations between Dr Hamid and Mr Preugschat about fees, following which Dr Hamid wrote the letter of that date.[28]The judge made a number of other findings concerning what Dr Hamid and Mr Preugschat were thinking at various stages. I shall not set these out as they are irrelevant to the issue before the court.[29]The judge then reviewed the law. Finally he concluded that when Dr Hamid engaged FBP he was acting personally rather than as agent for Chad. The judge gave seven reasons for his decision, which I would summarise as follows: i) FBP were not told that the client was a limited company. They were told that Dr Hamid was the owner of the Moon Furniture business. ii) The letter of 10th March 2004 contained no indication that Moon Furniture was a limited company. Dr Hamid did not describe himself as “director”. The reasonable inference from these circumstances was that Moon Furniture was not a limited company. iii) A reasonable person analysing the letter objectively would conclude that Moon Furniture was Dr Hamid and that he used the pronoun “we” when writing as Moon Furniture. iv) Dr Hamid signed the letter of 10th March 2004 without making it clear that he was not contracting personally. v) Extrinsic evidence existed to show that Moon Furniture was the trading name of Chad. Nevertheless Mr Preugschat was unaware of that evidence. Therefore it was irrelevant. vi) Where the issue is whether someone contracted personally or as agent, there is not to be imputed to the other party knowledge which he did not have. vii) The authorities relied upon by FBP concerning mistakes in the naming of contracting parties should be distinguished.[30]In the result therefore the judge resolved the preliminary issue in favour of the claimant. He held that the party who engaged FBP was Dr Hamid, not Chad.[31]FBP were aggrieved by the judge’s decision on the preliminary issue. Accordingly they appealed to the Court of Appeal.

Part 4. The appeal to the Court of Appeal

[32]By an appellant’s notice dated 9th January 2013 FBP appealed to the Court of Appeal against the judge’s decision on the preliminary issue.[33]Although the point is a short one, FBP’s written grounds of appeal and two skeleton arguments run to some length. It is alleged that the judge made a very large number of errors.[34]Having reviewed the written grounds of appeal, the skeleton arguments and the oral submissions of Mr Jeremy Nicholson QC on behalf of FBP, I would summarise FBP’s case on the appeal as follows: i) On an objective analysis, it is clear that Dr Hamid wrote and signed the letter of 10th March 2004 on behalf of Moon Furniture. Therefore that letter was sent on behalf of whatever entity traded under the name Moon Furniture. The judge’s reasons for concluding otherwise are flawed. ii) Moon Furniture was the trading name of Chad. Although FBP did not know this fact, they could readily have ascertained it. For example FBP could have asked Dr Hamid who Moon Furniture was; they could have looked at the sign board outside Moon Furniture’s showroom at Marland Mill; or they could have accessed Moon Furniture’s website. iii) On the authorities, extrinsic evidence is admissible to establish the identity of contracting parties. iv) The judge’s findings of fact (for example, his finding that FBP had an understanding that Moon Furniture was a limited company) support the conclusion that whatever limited company traded under the name Moon Furniture was the client. v) Each of the reasons given by the judge for his decision was unsound.[35]Mr Adrian Williamson QC on behalf of Dr Hamid resists each of those arguments. He supports the reasoning and the conclusions of the judge. He characterises the central issue in this appeal as one of capacity rather than identity of contracting parties. He invites the court to focus on the capacity in which Dr Hamid contracted.[36]It must be said that not all the evidence relevant to counsel’s submissions was adduced before the judge. There was no evidence as to what sign boards were placed outside Moon Furniture’s premises at Marland Mill. Therefore Mr Nicholson places reliance on section 348 of the Companies Act 1985. Nor was there any evidence as to the contents of Moon Furniture’s website in 2004. There was a print out of the website dated 20th July 2012, but that was hardly relevant.[37]During the course of his submissions Mr Williamson applied pursuant to CPR rule 52.11 (2) to adduce fresh evidence, namely the contents of Moon Furniture’s website in 2004. In support of this application Mr Williamson produced a bulging and no doubt expensive file of evidence.[38]In considering such an application the court has regard to the three requirements identified by Lord Denning MR in Ladd v Marshall [1954] 1 WLR 1489. These are: i) The evidence could not have been obtained with reasonable diligence for use at the trial. ii) The evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive. iii) The evidence must be such as is presumably to be believed; it must be apparently credible, though it need not be incontrovertible.[39]It is also important to have regard to the wording of rule 52.11, which was drafted some half a century after Ladd v Marshall. That rule provides: “Hearing of appeals(1) Every appeal will be limited to a review of the decision of the lower court unless – (a) a practice direction makes different provision for a particular category of appeal; or (b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.(2) Unless it orders otherwise, the appeal court will not receive– (a) oral evidence; or (b) evidence which was not before the lower court.(3) The appeal court will allow an appeal where the decision of the lower court was – (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.(4) The appeal court may draw any inference of fact which it considers justified on the evidence.” (a) a practice direction makes different provision for a particular category of appeal; or (b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing. (a) oral evidence; or (b) evidence which was not before the lower court. (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.[40]Rule 52.11 (2) is expressed in negative terms. The default position is that fresh evidence is excluded. The normal approach in an appeal by way of review under rule 52.11 (1) is that one starts with the findings of primary fact made by the court or tribunal below and examines whether that court or tribunal fell into legal error.[41]It is the duty of the parties to present the evidence upon which they wish to rely at the proper time. The presentation of evidence in two stages, partly at trial and partly on appeal, is a hugely expensive and also unfair way to conduct litigation.[42]There is now a growing awareness that litigation costs constitute a barrier, sometimes an insuperable barrier, to access to justice. It is the function of the court to manage litigation not only justly but also at proportionate cost. See the amendments made to the overriding objective in CPR rule 1.1 on 1st April 2013.[43]In my view applications to adduce fresh evidence on appeal should be rejected if they do not clearly satisfy the three requirements set out in Ladd v Marshall. In the present case Dr Hamid falls at the first fence and he falls again at the second fence. The evidence could perfectly well have been obtained at trial. Furthermore the evidence, even if allowed in at this late stage, is not likely to have an important influence on the outcome of the appeal. There is no evidence that FBP looked at Moon Furniture’s website in 2004.[44]For all these reasons I would unhesitatingly dismiss Dr Hamid’s application to adduce fresh evidence and order him to pay FBP’s costs of that application.[45]Let me now return to the real issues in this appeal. Before I grapple with counsel’s competing submissions I must first review the law.

Part 5. The law

[46]The parol evidence rule has been part of the common law for over two centuries. This provides that where there is a written contract, oral evidence cannot be received to add to, subtract from or vary the written terms: see Chitty on Contracts, 13th Edition, paragraph 12-096. Although the contract in the present case is partly oral and partly written, counsel have referred to the parol evidence rule in relation to the interpretation of the letter dated 10th March 2004.[47]There are a number of exceptions to the parol evidence rule and these have increased in recent years. This may in part be due to the increasing ease and speed with which documents can be created and dispatched. The temptations of the keyboard, the ‘cut and paste’ facility and the mouse cannot always be resisted.[48]Lord Hoffmann has authoritatively stated the modern approach to interpreting written contracts in Investors Compensations Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 at pages 912-913 as follows:
“(1) 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. (2) The background was famously referred to by Lord Wilberforce as the "matrix of fact," but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man. (3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them. (4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax: see Mannai Investments Co. Ltd. v. Eagle Star Life Assurance Co. Ltd.http://www.bailii.org/uk/cases/UKHL/1997/19.html[1997] A.C. 749. (5) The "rule" that words should be given their "natural and ordinary meaning" reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had….”
[49]It should be noted that this formulation of the principles does not require the court, when construing a document, to take into account matters which the parties might have discovered but did not in fact discover.[50]A discrete body of case law has developed concerning contracts in which the identity of parties is in controversy. Such cases constitute an exception to the parol evidence rule. Extrinsic evidence may be admitted to establish the correct identity of a party: see Fung Ping Shan v Tong Shun [1918] AC 403 at pages 406-407.[51]In F. Goldsmith (Sicklesmere) Ltd v Baxter [1970] 1 Ch 85 a piece of land was conveyed to a company in the wrong name. The company’s correct name was F. Goldsmith (Sicklesmere) Ltd. The incorrect name printed on the conveyance was Goldsmith Coaches (Sicklesmere) Ltd. Stamp J received evidence as to how the mistake had come about. He then granted relief, the effect of which was that F. Goldsmith (Sicklesmere) Ltd became the owner of the land.[52]In Badgerhill Properties Ltd v Cottrell [1991] BCC 463 the plaintiff company claimed £14,327 in respect of work, services and materials sold and delivered by the company to the defendant, ‘C’, under contracts constituted by three written estimates, as revised, signed by C by way of acceptance. The estimates were given on notepaper which was headed with a trading name (“The Plumbing Centre” on two estimates and “Wendell (Builders)” on the other) and on which the name “Badgerhill Property Ltd” appeared at the foot. The misdescription of the company was a printer’s error. The word “Property” should have been “Properties”. The estimates were signed by a director of the company, “T”. The relevant name appeared above T’s signature, and on the two plumbing centre estimates the word “director” appeared below. The plaintiff company succeeded in its claim. The Court of Appeal concluded that in two instances the defendant was contracting with whatever company was trading under the trading name “The Plumbing Centre”. In the third instance the defendant was contracting with whatever company was trading under the name “Wendell (Builders)”.[53]Crucial features of this case are that T expressly signed two of the estimates as “director”. The name of the limited liability company was printed at the foot of the page with one small inconsequential error.[54]In Internaut Shipping GmbH v Fercometal SARL [2003] EWCA Civ 812, [2003] 2 Lloyds LR 430 the defendant chartered a vessel on the Gencon form. In box three of the form the owners’ name was stated to be “Sphinx Navigation Ltd, Liberia C/O Internaut Shipping GmbH”. At the end of the form was a box headed “Signature/Owners”. The owners’ name was there shown as Internaut Shipping, followed by an address with a signature over the stamp. The Court of Appeal held that the contracting party was Internaut Shipping. That company was not to be treated as having contracted on behalf of Sphinx Navigation Ltd. Rix LJ, with whom Mummery and Sedley LJJ agreed, stated the relevant principles as follows at paragraph 53:
“It may be asked, indeed the question was raised in the course of argument, why the principle whereby particular attention is paid to the form of the signature, which is in effect a maxim of construction and not a rule of law, exists: from where does it take its force? I would answer that it reflects the commercial facts of life, the promptings of commercial common sense. The signature is, as it were, the party’s seal upon the contract; and that remains the case even where, as here, the contract has already been made (in the fixture telexes). Prima facie a person does not sign a document without intending to be bound under it, or, to put that thought in the objective rather than subjective form, without properly being regarded as intending to be bound under it. If therefore he wishes to be regarded as not binding himself under it, then he should qualify his signature or otherwise make it plain that the contract does not bind him personally.”
[55]Shogun Finance Ltd v Hudson [2003] UKHL 62, [2004] 1 AC 919 concerned a motor vehicle which a fraudster acquired on hire purchase in a false name and then re-sold to an innocent purchaser. For present purposes, I need not trace the history of this litigation or the intricacies to which it gave rise. The important statement of principle, to which counsel have drawn attention in this appeal, is at paragraphs 119 to 121 of Lord Phillips’ speech. This passage is as follows:
“119. The critical issue in this case is whether a hire-purchase agreement was ever concluded between Shogun and the rogue. If an agreement was concluded, then the rogue was the 'debtor' under section 27 of the 1964 Act and passed good title in the vehicle to Mr Hudson. If no agreement was concluded, then the rogue stole the vehicle by deception and passed no title to Mr Hudson. “What's in a name?” 120. This area of the law has developed because of confusion about names and it may be helpful at the outset to reflect on the nature of a name. Words in a language have one or more ordinary meaning, which will be known to anyone who speaks that language. Names are not those kind of words. A name is a word, or a series of words, that is used to identify a specific individual. It can be described as a label. Whenever a name is used, extrinsic evidence, or additional information, will be required in order to identify the specific individual that the user of the name intends to identify by the name – the person to whom he intends to attach the label. Almost all individuals have two or more names which they use to identify themselves and where a name is mentioned in a particular context, or a particular milieu, those who hear it may have the additional information that they need to identify to whom the speaker is referring. 121. Where a name appears in a written document, the document itself may contain additional information which will enable the reader to identify the individual to whom the writer intended to refer when he wrote the name.”
[56]In Estor Ltd v Multifit (UK) Ltd [2009] EWHC 2565 (TCC) an issue arose as to which company within a group of companies known as Ginger Group was the employer under a building contract. Akenhead J took as his starting point the passage in Lord Hoffmann’s speech in Investors Compensation Scheme which I have quoted above. He then stated that where the identity of a contracting party was unclear, it was legitimate to consider what the parties said to each other in the period leading up to the offer and acceptance. He added that the correct approach was an objective one. The court would take into account facts known to both parties, but not their private thoughts. I agree with that analysis.[57]In my view the principles which emerge from this line of authorities are the following: i) Where an issue arises as to the identity of a party referred to in a deed or contract, extrinsic evidence is admissible to assist the resolution of that issue. ii) In determining the identity of the contracting party, the court’s approach is objective, not subjective. The question is what a reasonable person, furnished with the relevant information, would conclude. The private thoughts of the protagonists concerning who was contracting with whom are irrelevant and inadmissible. iii) If the extrinsic evidence establishes that a party has been misdescribed in the document, the court may correct that error as a matter of construction without any need for formal rectification. iv) Where the issue is whether a party signed a document as principal or as agent for someone else, there is no automatic relaxation of the parol evidence rule. The person who signed is the contracting party unless(a) the document makes clear that he signed as agent for a sufficiently identified principal or as the officer of a sufficiently identified company, or(b) extrinsic evidence establishes that both parties knew he was signing as agent or company officer.[58]In my fourth proposition the phrase ‘sufficiently identified’ is not a happy one. It is intended to include cases where there is an inconsequential misdescription of the entity on behalf of whom the individual was signing. This is exemplified by Badgerhill Properties.[59]With the benefit of this guidance from the authorities, I must address the issues in the present case.

Part 6. Decision

[60]I accept Mr Williamson’s submission that the central issue in this case is not one of “identity” as in Fung Ping and F Goldsmith, but capacity. The crucial question is whether Dr Hamid was(a) contracting personally or(b) signing the letter as director of, alternatively agent for, Chad Furniture Store Ltd.[61]In addressing this issue, I must examine the letter dated 10th March 2004 with care. In particular, I must consider whether the document makes it clear that Dr Hamid was signing as director of or agent for Chad.[62]The factors upon which Mr Nicholson relies are that the letter was headed “Moon Furniture” and the words “Moon Furniture” appeared beneath Dr Hamid’s signature. Dr Hamid wrote in the plural, saying “we”. He did not use the singular, “I”. The postal address in the letter head was the address of Chad’s registered office, though not stated as such. The email and website addresses in the letter both included “.co.uk”. This often though not always signifies a company.[63]The factors upon which Mr Williamson relies are that there is no reference to a limited company anywhere in the letter. Chad is not mentioned. The address of its registered office is not stated. The company’s registration number and place of registration are not mentioned. Dr Hamid (unlike T in Badgerhill Properties) did not put the word “director” under his signature. If the letter dated 10th March 2004 was written on behalf of Chad, these matters would constitute breaches of sections 349 and 351 of the Companies Act 1985. Indeed they would be criminal offences punishable by fines.[64]I approach this issue in the manner set out by Rix LJ in Internaut. Dr Hamid’s signature at the foot of the letter is, as it were, his seal upon the contract. He therefore became a contracting party unless he qualified his signature or otherwise made it plain that the contract did not bind him personally.[65]When I weigh up the conflicting factors relied upon by Mr Nicholson and Mr Williamson, I am in no doubt that Dr Hamid did not effectively qualify his signature or make it plain that the contract did not bind him personally. The mere reference to Moon Furniture, without any indication that this was the trading name of Chad (indeed without any clear indication that this was the trading name of a limited company) was not an effective qualification.[66]Both Mr Nicholson and Mr Williamson submit that the test must be the same whether the individual is contending(a) that he was the principal or(b) that he was signing as agent or as company officer. Indeed in many cases where this issue arises the individual is arguing that he should escape contractual liability by sheltering behind the company. I agree with counsel that the test must be the same in both situations.[67]Let me therefore consider the reverse situation in this case. Suppose that Chad (not Dr Hamid) were suing FBP and suppose that FBP’s defence was that it contracted with Dr Hamid, not Chad. I would venture to suggest that Chad’s case would be untenable. They would have to say something like this:
“We, Chad Furniture Store Ltd, engaged you as our engineers. Unfortunately none of the statutorily required company details are shown on the letter of 10th March 2004. Also Dr Hamid forgot to put “director” after his signature, but that is what he meant. Furthermore we never told you that Moon Furniture was the trading name of Chad Furniture Store Ltd, but you could have found that out by making independent inquiries. We did not even tell you that a limited company was involved. But you really should have guessed that by looking at the email address and doing a spot of detective work.”
[68]Such an argument would be doomed to failure, however attractively it was dressed up.[69]Let me now return to the issue as it arises in the present case. The extrinsic evidence, in so far as it is admissible, does not assist FBP. At no stage before the contract was concluded did anyone tell FBP that Moon Furniture was a limited company. Apparently Mr Preugschat made an assumption to that effect. That, however, is neither here nor there. Mr Preugschat’s private thoughts are not relevant or even admissible in evidence.[70]It is quite true that if FBP had made inquiries, then one way or another they could and probably would have ascertained that Moon Furniture was the trading name of Chad. In my view, however, inquiries which could have been made but were not made are irrelevant to the present issue.[71]Let me now stand back from the detail. Contrary to Mr Nicholson’s submissions, I find the reasons which the judge gave for his decision to be convincing. Like the judge I conclude that Dr Hamid, not Chad, was the party which contracted with FBP.[72]I do not feel any regret in reaching this decision. Dr Hamid was the owner of the site. Dr Hamid was the employer of BCL under the construction contract. If FBP were negligent in the discharge of their duties, it seems likely that Dr Hamid rather than Chad was the party who suffered loss. It would be a distinctly odd state of affairs if the law compelled the conclusion that a company with no interest in the building under design was the employer of the consulting engineers.[73]In the result, therefore, I would uphold the decision of the judge on the preliminary issue. If my Lords agree, this appeal will be dismissed. Lord Justice McCombe:[74]I agree.[75]I also agree.

Cited in 25 later judgments

and 16 more of the most senior