Herbert v Doyle & Anor [2008] EWHC 2663 (Ch)

Claim No HC 06 C 02027

[2008] EWHC 2663 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Tuesday, 30 September 2008

Before

MR M HERBERT Q.C.

(Sitting as a Deputy Judge of the Chancery Division)

Between

JULIAN ROGER HERBERTClaimant

LEONARD DOYLE AND ANOTHERDefendants

Wordwave International, a Merrill Communications Company

PO Box 1336, Kingston-Upon-Thames KT1 1QT

Tel No: 020 8974 7305 Fax No: 020 8974 7301

Email Address: Tape@merrillcorp.com

(Official Shorthand Writers to the Court)

Mr Timothy Becker appeared for Claimant

Miss Amanda Tipples (Instructed by Moore Blatch) appeared for Defendants

Judgment

MR HERBERT QC:

[1]On 4 August 2008 I handed down judgment in this action, the neutral citation being

[2008] EWHC 1950 (Ch)

. I now have an application by the Defendants for permission to re-amend their amended defence and counter claim. This application comes after judgment has been handed down, but before any order has been perfected or made on the strength of it.

[2]The nature of the action can be seen from that earlier judgment, and I shall not repeat more than is necessary to make the present judgment comprehensible. The relief sought by the Claimant, Mr Herbert, was a declaration that he was entitled in equity to three car parking spaces (defined as the green spaces), to which the Defendants are legally entitled in fee simple(sic). In return he would transfer three other spaces, the red spaces in the same car park, to the Defendants.

[3]Mr Herbert’s pleading did not use the words “proprietary estoppel”, but that was the basis of the claim. There had been negotiations in 2003 between Mr Herbert and the Defendants, during which the Defendants had promised Mr Herbert that they would transfer the green spaces to him for the purposes of the development which he was undertaking. The development is a terrace of three mews style houses, which now stand as numbers 1, 2 and 3 Mansfield Mews in Ringwood, Hampshire. The houses have been built, numbers 1 and 3 have been sold I understand, but number 2 has not, because of this litigation. All the parties knew that number 2 Mansfield Mews encroached over part of one of the green spaces belonging to the Defendants.

[4]I dismissed Mr Herbert’s claim. In brief summary the ground was that the Defendant’s promise was not unconditional and not as simple as Mr Herbert maintained. It was conditional on Mr Herbert satisfying a number of other terms. For the final formulation of those terms in September 2003, please see paragraph 59 of the earlier judgment. In the event Mr Herbert was not willing to satisfy those other terms or in some cases perhaps he was unable to do so. In those circumstances it was not unconscionable for the Defendants to refuse Mr Herbert a transfer of the green spaces.

[5]The background is that the negotiations had resulted in an agreement between the parties which was not explicitly subject to contract. But the parties were contemplating the agreement being incorporated into a number of legal documents and both sides knew that the agreement was not enforceable as such, by reason of s.2(1) of the Law of Property (Miscellaneous Provisions) Act 1989. Mr Herbert’s case was that the Defendants had allowed him to proceed with his development in the knowledge that it would encroach on their land and that it was unconscionable for them later to object or to refuse to make the required transfer. He had relied, to his detriment, on their promise and had incurred the expense of the development on the strength of it so that they were estopped from denying that they had agreed to the transfer. My decision was that, if Mr Herbert had been willing and able to satisfy the other terms of the agreement he would have succeeded in his action, but he could not and he failed.

[6]The Defendants, therefore, succeeded in their defence of Mr Herbert’s claim. In addition they have a counterclaim. They evidently recognised that they were unlikely to obtain an injunction requiring the demolition of any part of Mansfield Mews and they claimed damages in lieu of such an injunction. In the alternative they have asked for a declaration which was the mirror image of Mr Herbert’s claim, namely that he was not entitled to the green spaces unless and until he satisfied the other terms of the agreement. In my previous judgment I determined the amount of the damages in lieu and decided that in the alternative I would, in principle, make that declaration.

[7]After I had handed down that judgment I was taken through a draft order prepared by Miss Amanda Tipples, who has represented the Defendants throughout the proceedings. During this discussion Mr Herbert was represented by Mr Timothy Becker, who appeared for Mr Herbert at the beginning of the trial, was then dis-instructed and has now been reinstructed. Both parties had occasion to reassess their positions in the course of the discussion. Mr Herbert, obviously disappointed at not getting his own declaration, was no doubt reassured by what he saw as the comparatively small sum of damages in lieu of the injunction. On that footing he intimated that he might still make no attempt to satisfy his part of the agreement and would be content not to receive a transfer of the green spaces after all. The damages in lieu of the injunction would effectively frank his entitlement to that small part of the green spaces on which number 2 Mansfield mews encroaches. It is true that the rest of the green spaces would inhibit Mr Herbert from granting freehold parking spaces to the future owner or owners of number 2, but perhaps he has his own plans in order to render that disadvantage illusory.

[8]For their part the Defendants were probably disappointed by the award of damages. In truth the disappointment may have been directed less at my judgment than at the expert evidence on which I relied in fixing the award. Be that as it may, the Defendants were surprised by Mr Herbert’s volte-face and they tried to persuade me that they were entitled to a more positive form of declaration than the one on which they had claimed, at the same time dropping their claim for damages. They wanted a declaration that, on their executing a transfer of the green spaces to Mr Herbert and otherwise satisfying their side of the agreement, Mr Herbert would be obliged to satisfy his side. They claimed that all the evidence on which this stronger claim was based had been given at the main hearing and that the new declaration fell within the phrase, “Further or other relief” formulaically added at the end of their pleading. In truth, Miss Tipples had suggested during the main hearing that I should strain not to leave the parties under the burden of an unresolved dispute and referred then to the further or other relief phrase. I confess that I was unimpressed by that then and now.

[9]In any event I adjourned the hearing on 4 August, allowing the Defendants to issue and serve an application specifying the precise amendment which they sought and the basis for it. On 18 August 2008, the Defendants issued and served the present application seeking to re-amend their amended defence and counterclaim. The proposed amendments are not extensive. They plead no new facts. One proposed addition is at paragraph 84B in the following terms: “84(B). If the Defendants(i) execute a proper transfer transferring to the Claimant the freehold of the Green Parking Spaces and,

(ii) pay the Claimant £15,000 the Claimant shall be bound to forthwith: a. execute a proper transfer transferring to the Defendants (i) the freehold of the Red Parking Spaces and (ii) the freehold of the car parking spaces situated on the Claimant’s Land which is numbered “F2” on the plan annexed to the Particulars of Claim. b complete the construction of the Staff Room Extension in accordance with the specification agreed in February 2004 and the requirements of current building regulations (The Building Regulations 2000 (S1. 2000 No. 2531) as amended) and, upon completion of the aforesaid building works to the Staff Room Extension the Claimant shall notify the New Forest District Council that the aforesaid building works have been completed so that the New Forest District Council shall give a completion certificate in respect of the Staff Room Extension under the aforesaid regulations. (c) grant the Defendants a lease of the Staff Room Extension, on the same terms mutatis mutandis as the Lease. (d) install electrically operated gates to the Car Park Entrance. (e) grant the Defendants the Compressor House Lease.” a. execute a proper transfer transferring to the Defendants (i) the freehold of the Red Parking Spaces and (ii) the freehold of the car parking spaces situated on the Claimant’s Land which is numbered “F2” on the plan annexed to the Particulars of Claim.

[10]Overnight Miss Tipples has sent to me a proposed revision to sub-paragraph (a) of that relating to the car parking space F2, so that part (B)a(ii) becomes “the freehold of the car parking space situated on the Claimant’s land which is numbered F2 on the plan annexed to the particulars of claim or such other freehold car parking space with dimensions that are not less than any of the car parking spaces marked at F, E, D, H on the coloured plan at annex C that is situated anywhere on the Claimant’s land at the rear of Mansfield House and is reasonably accessible.” I shall treat her application as being one to amend in those revised terms. Then the prayer for relief is proposed to be amended in the same or a commensurate way.

[11]Neither Miss Tipples nor Mr Becker drew the case of Cobbe v. Yeomans Row Management Limited

[2008] 1WLR 1752

to my attention in this context, but I decided that it was necessary to draw it to theirs. I mentioned it in my previous judgment partly to explain at paragraph 15 that I would not rely on the view expressed obiter by Lord Scott of Foscote, that a contract which is unenforceable by virtue of s.2(1) of the 1989 Act could not be enforced by way of a proprietary estoppel in any circumstances instead. I left that point deliberately open.

[12]But the decision is important in two other ways as well. First, it emphasised that proprietary estoppel can apply only to the promise of a “certain interest in land,” to use the phrase borrowed from Ramsden v. Dyson (1866) LR 1 HL 129 at p.170 and Taylor Fashions Limited v. Liverpool Victoria Trustees Company Limited

[1982] QB133

(note) at p.144. In particular the case decided that the doctrine could not be invoked to enforce an expected contract where some of the terms were not yet agreed. In more general terms it cannot be invoked to enforce a promise to make an agreement or to perform acts which are not properly described as the transfer of a certain interest in land. Second, the case emphasised that it must be clear exactly what the promisor is estopped from asserting or denying. Taking this second point first, Lord Scott said this at paragraph16:

“It is relevant to notice that the amendments to Mr Cobbe’s pleaded prayer for relief, made when the specific performance and damages for breach of contract claims were abandoned, include the following: ‘(4). Alternatively a declaration that [the defendant company and Mrs Lisle-Mainwaring] are estopped from denying that [Mr Cobbe] has such interest in the property and/or the proceeds of sale thereof as the court thinks fit.’ This is the only pleaded formulation of the estoppel relied on by Mr Cobbe and, with respect to the pleader, is both meaningless and pointless.”

Pausing there, I take that comment to mean that it is no good relying on an estoppel to the effect that the promisor is estoppedfrom denying the promisee’s entitlement to relief. This conclusion is justified by what follows and I continue the quotation:

“Etherton J concluded, in paragraph 85 of his judgment, that the facts of the case ‘gave rise to a proprietary estoppel equity in favour of Mr Cobbe’, but nowhere identified the content of the estoppel. Mummery LJ agreed (paragraphs 60 and 61 of his judgment, concurred in by Dyson LJ (paragraph 120) and Sir Martin Nourse (paragraph 141), but he, too, did not address the content of the estoppel. Both Etherton J and Mummery LJ regarded the proprietary estoppel conclusion as justified by the unconscionability of Mrs Lisle-Mainwaring’s conduct. My Lords, unconscionability of conduct may well lead to a remedy but, in my opinion, proprietary estoppel cannot be the route to it unless the ingredients for a proprietary estoppel are present. These ingredients should include, in principle, a proprietary claim made by a claimant and an answer to that claim based on some fact, or some point of mixed fact and law, that the person against whom the claim is made can be estopped from asserting. To treat a “proprietary estoppel equity” as requiring neither a proprietary claim by the claimant nor an estoppel against the defendant but simply unconscionable behaviour is, in my respectful opinion, a recipe for confusion.”

Later, Lord Scott added at paragraph 28, in what I read as trenchant terms: “Proprietary estoppel requires, in my opinion, clarity as to what it is that the object of the estoppel is to be estopped from denying, or asserting, and clarity as to the interest in the property in question that that denial, or assertion, would otherwise defeat. If these requirements are not recognised, proprietary estoppel will lose contact with its roots and risk becoming unprincipled and therefore unpredictable, if it has not already become so.” ‘(4). Alternatively a declaration that [the defendant company and Mrs Lisle-Mainwaring] are estopped from denying that [Mr Cobbe] has such interest in the property and/or the proceeds of sale thereof as the court thinks fit.’

[13]I conclude from this that what the Defendants need to plead and subsequently to make good is a claim that Mr Herbert promised them a certain interest in land, that they relied to their detriment on that promise so that it becomes unconscionable for Mr Herbert to resile from it, and that he is estopped from denying some fact or mixture of fact and law which stands in their way. Does the proposed amendment satisfy that requirement? If it does not, then the amendment should be refused on the ground that the claim which it embodies has no reasonable prospect of success. If it does I will need to go on and consider other issues.

[14]Some but not all parts of paragraph 84(B) refer to interests in land, specifically; sub-paragraphs b and d do not : b refers to completion of the building works in the staff room extension and d refers to the installation of electrically operated gates. In the light of the Cobbe case the Defendants have, in my judgment, no reasonable prospect of achieving relief in those terms by invoking the doctrine of proprietary estoppel. But the proposed lease of the compressor house and the proposed lease of the staff room extension without the building works completed, being leases on known terms and for a known and agreed price which the Defendants are able and willing to pay do, in my judgment, qualify as certain interests in land. I am persuaded that it is at least arguable that the parking space F2, reformulated this morning as F2, or such other equivalent space as will qualify, also qualifies sufficiently as a certain interest in land.

[15]Moving on to other issues, the Defendants’ detriment is already pleaded at the end of paragraph 42A of their amended defence and counterclaim. Essentially, the detriment is that the development has encroached onto land belonging to the Defendants not only in respect of 2 Mansfield Mews, but also the two car parking spaces in front of it, and also that the car parking spaces interfere with rights of way over other parts of the car park. Essentially, as a result of that encroachment and the negotiations between the parties, the Defendants have in practice been denied the ability to rely on their entitlement to those parts of their land in the full way in which they would otherwise have been able to do.

[16]I was referred again to a text book Gray, Elements of Land Law 4th ed. and I shall read from paragraph 10.271:

“The preconditions for the application of proprietary estoppel are met only if and to the extent that the representee is left unconscionably disadvantaged by his reliance on the relevant assurance of entitlement. Only then does his change of position truly operate to his detriment. The minimal objective of estoppel doctrine is to neutralise any unacceptable prejudice which would otherwise flow from the representor’s departure from the assumptions engendered by his assurance of rights. Accordingly the element of ‘detriment’ which underlies all successful estoppel claims is ultimately measurable only in terms of whether it would be ‘unfair or unjust’ if the party who induced the expectation or assumed state of affairs were left free to ignore it. It must be shown that, by surrendering the representee to a subsisting and unremedied prejudice, the representor is ‘taking advantage of him in a way which is unconscionable, inequitable or unjust’.”

[17]In the present case the allegation is that, by building his development in the way he has, Mr Herbert has surrendered the representee Defendants to a subsisting and unremedied prejudice, which I have already tried to describe, and if he has in fact done that by effectively preventing them from fully exploiting their rights to part of the green spaces and their rights of ways in other parts of the car park, Mr Herbert would indeed be taking advantage of them in a way which would be unconscionable. I am, in other words, persuaded that the sentence in the text book is not requiring two elements to be satisfied, namely surrendering the representee to a prejudice and also taking advantage of him in a way which is unconscionable. Rather, it is saying, and I agree with this, that it is unconscionable for a representor to surrender a representee to a subsisting and unremedied prejudice. It would be unconscionable for Mr Herbert to act in such a way as to prevent the enjoyment of the Defendant’s property, just as it would have been unconscionable for the Defendants to refuse a transfer of the green spaces to Mr Herbert if he had been willing and able to satisfy his side of the bargain.

[18]No words of estoppel are explicitly pleaded. In my view they should be, though in this case fairness requires me to accept that I did not complain, except gently, that Mr Herbert’s pleading also does not use the words “proprietary” or “estoppel” or any related language. Nor do the new paragraphs in the proposed amendments. But a process of Socratic questioning from the Bench elicited that what the Defendants rely on is that Mr Herbert is estopped from denying that he agreed to and would abide by the terms of the agreement, and in my judgment that is a sufficient statement of fact, or mixed fact and law, to answer the requirement. I am therefore persuaded that parts of the new claim, if allowed, would have a reasonable prospect of success, namely those relating to the leases of the compressor house, the staff room extension and the freehold of space F2 or an equivalent space elsewhere in the car park. I add at this point that whether the Defendants will actually succeed on the facts in relation to those elements, particularly the element of the parking space, is quite another question.

[19]I turn now to the other issues which I need to consider on this application to amend. Some points are beyond doubt. First, no amendment to pleadings, unless it is agreed by the other side can be made without the permission of the court - Civil Procedure Rules, Rule 17.1(2). Second, there is undoubtedly jurisdiction to permit an amendment even after judgment has been given, so long as the order on which it is based has not been perfected. This was decided in Charlesworth v. Relay Roads Limited

[2000] 1 WLR 230

, though, as will be seen, it had previously been decided in other cases as well. The Charlesworth decision was effectively endorsed in Stewart v. Engel

[2000] 1 WLR 2268

, a decision of the Court of Appeal to which I will need to refer again.

[20]Normally the court will lean in favour of allowing an amendment to pleadings in order to allow the true issues between the parties to be tried, so long as any prejudice to the other party caused by the amendment can be compensated for in costs and the public interest in the administration of justice is not significantly harmed. That phrase, I may say, is taken from paragraph 17.3.5 of the White Book, and that passage is itself derived from a dictum of Peter Gibson LJ, in Cobbold v. Greenwich LBC 9th August 1999 unreported, also a decision of the Court of Appeal.

[21]In the Charlesworth case Neuberger J, as he then was, stated the conditions which need to be satisfied at page 238 E to H:

“In these circumstances, I conclude that the following principles apply where a party is seeking to call fresh evidence on a new point after judgment has been given but before the order has been drawn up: (1) the court has jurisdiction to grant an application to amend the pleadings to raise new points and/or to call fresh evidence and/or to hear fresh argument; (2) the court must clearly exercise its discretion in relation to such an application in a way best designed to achieve justice; (3) the general rules relating to amendment apply so that: (a) while it is no doubt desirable in general that litigants should be permitted to take any reasonably arguable point, it should by no means be assumed that the court will accede to an application merely because the other party can, in financial terms, be compensated in costs; (b) as with any other application for leave to amend, consideration must be given to anxieties and legitimate expectations of the other party, the efficient conduct of litigation, and the inconvenience caused to other litigants; (4) quite apart from, and over and above, those principles, because it is inherently contrary to the public interest and unfair on the other side that an unsuccessful party should be able to raise new points or call fresh evidence after a full and final judgment has been given against him, it would generally require an exceptional case before the court was prepared to accede to an application where the applicant could not satisfy the three requirements in Ladd v. Marshall ; (5) almost inevitably, each case will have particular features which the court will think it right to take into account when deciding how to dispose of the application before it; (6) the court should be astute to discourage applications which involve parties seeking to put in late evidence, but cases where new evidence is found after judgment is given and before the order is drawn up will be comparatively rare.”

[22]Those principles were not explicitly related to the Civil Procedure Rules of 1998, but there was no dissent from them in Stewart v. Engel, which did rely on the CPR. The nature of the jurisdiction is apparent from the following passages, and it should be remembered that these applications generally arise in the context of a potentially losing party trying to reverse the judge’s existing decision and this is reflected, naturally enough, in the terms of the judgment. Dealing with a submission that it made no material difference whether the application for permission to amend came before or after judgment, Sir Christopher Slade said this at pages 2275 E to 2276A:

“I cannot agree with this submission, which overlooks the fundamental difference in the principles applicable in a case where the argument before a judge is still open and continuing and a case where he has actually delivered judgment. In a case where the application to amend is made before delivery of judgment, the court has a wide discretion to permit amendment in the interests of justice, and, even at a late stage, will be disposed to exercise that discretion in favour of the applicant, subject to an appropriate order as to costs, if it considers that this is necessary to dispose of all the true issues arising between the parties. If the application is made after judgment, however, the situation is quite different because the applicant is then obliged to invoke the Barrell jurisdiction.”

I pause there to say that the Barrell jurisdiction is the jurisdiction for a judge to reverse his decision before the order is perfected, derived from the case In re Barrell Enterprises

[1973] 1 WLR 19

. Sir Christopher Slade continued:

“Since there must be some finality in litigation and litigants cannot be allowed unlimited bites at the cherry, it is not surprising that, according to the authorities, there are stringent limits to the exercise of the discretion conferred on the court by the Barrell jurisdiction. In that case itself [1973] 1 W.L.R. 19, Russell L.J., delivering the judgment of the Court of Appeal, said, at pp. 23-24: “When oral judgments have been given, either in a court of first instance or on appeal, the successful party ought, save in most exceptional circumstances, to be able to assume that the judgment is a valid and effective one.”

Russell L.J. went on to say, at p. 24:

‘The cases to which we were referred in which judgments in civil courts have been varied after delivery … were all cases in which some most unusual element was present.’

This principle must apply a fortiori where the judgment is a formal written judgment in final form, handed down after the parties have been given the opportunity to consider it in draft and make representations on the draft. The principle recognises that the doing of justice requires justice to both parties in litigation, not merely one.” “When oral judgments have been given, either in a court of first instance or on appeal, the successful party ought, save in most exceptional circumstances, to be able to assume that the judgment is a valid and effective one.”

[23]Clarke LJ dissented from the decision in Stewart v Engel and would have allowed the amendment in question, unlike the majority. He did not accept that the Barrell judgment should be exercised only in exceptional circumstances, merely that the circumstances of the application were one consideration to be taken into account in applying the overriding objective. Roch LJ put the matter in this way at page 2293:

“The matter cannot be looked at simply as a question of exercising a discretion to grant leave to amend. This must be so where a judge has pronounced judgment in favour of the defendants on a statement of claim, particularly where, as in this case, the judge has specifically enquired of the plaintiff's counsel during the hearing of the defendants' application that the action be dismissed and again when judgment was pronounced if such an amendment has been considered and was going to be sought and has been told that it has been considered and it has been decided not to seek such an amendment. Such an application must be subject to a more stringent test than would an application for leave to amend made during the hearing of the defendants' application and prior to judgment being given. The question is how that greater stringency is to be expressed? It is clearly not satisfactory for the plaintiff to be allowed to wait to see the outcome of the defendants' application and then, if the judge decides in the defendants' favour, to apply for an amendment. There must be some satisfactory reason for failure to apply for the amendment at the proper time. The proper time is either before the defendants' application is heard or during the hearing of the application.”

I may say that that was in the context of a Defendant’s application to strike out the Plaintiff’s claim. The application was successful and the application to amend was an application of the Plaintiff to raise a new cause of action, which, if successful, would have reversed the decision. A little later Roch LJ referred to the fourth principle formulated by Neuberger J in the Charlesworth case requiring an exceptional case where the application could not satisfy the requirements in Ladd v. Marshall and went on:

“I would adopt the approach of Neuberger J. in that case and apply it to the circumstances of the present case. There was a full and final judgment given against the plaintiff. There is no suggestion that the application of 20 October 1999 came about because of the emergence of new evidence or new information. The court should require the party seeking to reopen the full and final judgment to demonstrate that it is an exceptional case or that there are strong reasons for doing so. The plaintiff did not begin to do that. Consequently the application should have been refused.”

[24]Miss Tipples submits that, these conditions are satisfied and that this is an exceptional case within the meaning of those passages. She points to a number of features. First, the wish to amend arises out of what I have described as Mr Herbert’s volte-face. She also points that this is not a case of seeking to reverse the judgment handed down but, as she puts it, an attempt to give full effect to that judgment. Moreover the Defendants were the successful parties in the litigation and the amendment will ensure that the present state of uncertainty between the parties is fully resolved. Further, she points out that the amendment does not give rise to a new cause of action or any requirement to call fresh evidence. All the relevant evidence was before the court and it will be possible to decide the issue either with no further hearing or possibly with a hearing of further submissions. Further, the amendment will not inconvenience other litigants. Further, and importantly she claims that the amendment does not result in any unfairness or prejudice to Mr Herbert and for these reasons the best way to achieve justice between the parties is to allow the amendment.

[25]My own response to those points is that they are to a degree over-stated. First, I doubt that the amendments which I would be able to allow relating only to the leases and possibly an extra parking space would ensure that the present state of uncertainty is fully resolved. However, I do accept that the amendments and the successful achievement of the new proposed declaration might go some considerable distance towards reducing the elements of outstanding disagreement between the parties. I do also accept that the amendment does not seek to re-open or require me to reconsider any part of my previous judgment. Nor does it give rise to a new cause of action, but it does obviously seek a different form of relief.

[26]In regard to unfairness and prejudice to the Claimant, Mr Herbert, Mr Becker submits that the amendments would prejudice him. He submits that they represent a volte-face on the part of the Defendants, and this is true. Until 4 August 2008 the boot was always on the other foot. Mr Herbert was the developer. He wanted the green spaces transferred to him. He was prepared to agree various things in order to achieve that transfer. He was the Claimant in the action. The Defendants just resisted that claim, and the only declaration they sought was just the mirror image of a denial of Mr Herbert’s claim and made in the alternative to a claim for damages. Mr Becker claims that at one stage the damages were a significant part of the Defendants’ claim. He directed me to some correspondence, but in my judgment his point is not made out. It is true that the Defendants referred from time to time in the correspondence to the profits which they believed Mr Herbert may be making from the development, but that does not mean that damages were necessarily in the forefront of the Defendants’ participation in the action. I am therefore impressed, but not strongly impressed by the submission that Mr Herbert is taken by surprise by the Defendants’ volte-face. After all, it represents a reaction from what I perceive as Mr Herbert’s own volte-face. However the negotiations may have originated and however those negotiations may have been perceived by the parties to them, my own perception of them is that there were always two sides to the negotiations and two sides to the terms which they discussed. Both parties gave something and both parties were going to take something. In short, what is sauce for the goose is sauce for the gander.

[27]Naturally I accept, in the light of what is said in Stewart v. Engel, that the jurisdiction to permit an amendment after judgment has been delivered is an exceptional jurisdiction and I am to a degree surprised that the Defendants did not realise earlier that this position might have arisen. But at the end of the day the decision whether to allow the amendment must depend on an analysis of all the circumstances, including the nature of the amendment itself and the degree to which it calls for further proceedings between the parties, and in particular the balance of justice between the parties. I have nothing before me to show that there are any other litigants significantly affected by the giving or refusing of this amendment.

[28]I have no doubt, in other words, that special circumstances need to be demonstrated and I go back to the principles enunciated by Neuberger J in the Charlesworth case. The first principle is that there is jurisdiction to permit the amendment. The second is that I must attempt to achieve justice between the parties and that is a balancing question to which I will come in a moment. The third principle is in a way a more specific expression of the second one. In general litigants should be permitted to take reasonably arguable points, but consideration must be given to the expectations of the other party. I shall certainly do my best to do that when balancing the elements of justice between them.

[29]The fourth principle is in most cases, I suspect, the most important one, namely that it is inherently contrary to the public interest and unfair on the other side if an unsuccessful party should be able to raise new points or call fresh evidence after a full judgment has been given against him. But that is not the circumstance with which I am dealing. The fact is that it is the successful party who finds that the form of the order is to a degree unsatisfactory, and no new points and no unexpected points and no new evidence are called for. In particular the requirements in Ladd v. Marshall, which are generally very important in a case of this kind, do not really become engaged because there is no question of finding new facts and enquiring whether those facts could reasonably have been discovered earlier. It is true that a question is whether the proposal could have been enunciated earlier, but that is a different and, in my judgment, less significant factor. Even so I shall take it into account. The fifth principle is to look at particular features, and again that is something to which I will turn in a second. The sixth principle is a dis-encouragement to have fresh evidence, but again that is not a problem in the present instance.

[30]The question of justice and injustice, as I perceive it, is as follows. I perceive Mr Herbert’s position as already difficult if he chooses not to satisfy what I have called his side of the bargain in order to acquire the green spaces or if he is unable to do so. If the Defendants drop their claim for damages as they are entitled to do, then he is left with a house, number 2 Mansfield Mews, of which he is not the sole owner. There is a small part of that property which still belongs to the Defendants. They also own areas in front of the house which impede the granting of parking rights to a new owner. That seems to me to be an extremely big prejudice for Mr Herbert, but one which he would be choosing to adopt if he goes down this road. There is, I may say, a disparity between the damages in lieu of an injunction and the possible ransom value of actual ownership of part of Mr Herbert’s of what is otherwise Mr Herbert’s property. What the expert witness or witnesses are advising about, in relation to damages in lieu of an injunction, are in terms of the probable sum achieved in negotiation at the time when the development is in prospect. That is quite a different matter from the bargaining position of an adverse owner after the development has been completed.

[31]I therefore regard an obligation to grant the leases of the compressor house and the staff room extension as not creating a substantial injustice for Mr Herbert, who will receive £15,000 for the second lease, which was the agreed price for that lease and also for the building work which he had also undertaken to complete, and which on this hypothesis he would not be required to complete, because, as I have said, I will not be allowing the amendment which would require him to complete that work. It might be said that the obligation to grant the car parking space at F2 or at some other space within the car park does create an injustice about which Mr Herbert could reasonably complain and it is certainly one which I take into account in deciding what ought to be done.

[32]But taking all those matters together, including the late date of the application and the fact that it could have been enunciated clearly at an earlier stage, it appears to me that the balance of justice lies in favour of allowing the amendment, but only to the degree which I have indicated. It would be quite a different matter if Mr Herbert were being asked to defend a claim that he must complete the extension in accordance with complicated provisions for satisfying the building regulations and similar requirements. And equally it would be a different matter altogether if he were being asked to defend a claim for him to install electrically operated gates, when they were to a degree added in, no doubt, as part of an optimistic shopping list by the Defendants. But given the truncated form in which I would allow the amendments he is not being invited to defend more than the claim for leases of the compressor house and the staff room extension, and the extra parking space. Even in regard to the parking space I should make clear, that all I am doing is allowing the amendment to include the reference to it. I am not deciding, and I am deliberately leaving open, the question whether the formulation of that paragraph as it has been reformulated this morning satisfies the requirement of being a certain interest in land for the purpose of the doctrine of proprietary estoppel or that otherwise the Defendants will be successful in obtaining a declaration which includes reference to that parking space.

[33]That is my judgment in dealing with the application. I may say that, having done that, I realize that I have gone into quite a lot more detail than normally would have been done on an occasion like this. But I am aware that feelings are running high and either side may wish to appeal that. But anyway I have, for that reason, gone into it in rather more depth than I might otherwise have done. ___________________________