“Today we are the largest speculative property developer in the UK developing in locations from Bangor to Bedford, Livingston to Bristol. The Gladman Group’s turnover in 2004-5 was£150 million .”
“The Planning Department have informally indicated that subject to conforming to [Planning Policy Guidance PPG.24 Planning and Noise] the old fire station site could be suitable for residential development in the form of student or key worker accommodation. … An initial feasibility indicates that subject to the various constraints being addressed a development in the region of 400 bed spaces would be achievable over a 6 to 7 storey development.”
“I note that the policy towards student accommodation has now changed, but in fairness I generally see this site being marketed for either private or keyworker accommodation and would welcome your comment in this regard.”
“As things stand at present it is difficult to see to what use the site could be put, other than its present one.”
“DGH suggested student accommodation as this would minimise the amount of car parking. Apparently the site is in the ward of Councillor Trimble, who is very much anti-student and as such this will create problems. In an ‘off the record’ comment Adrian Jones and Alison Dudley both agreed that a student development on this site was the most appropriate. … Adrian Jones in an ‘off the record’ comment suggested that the Chief Fire Officer should bring pressure to bear through their political contacts to help secure Planning Consent on this site.”
“Agreed that given access/traffic problems any development would need to be a low generator of vehicles therefore managed student accommodation best use but likely to be unacceptable to local residents and Ward members (ie Cllr Trimble). Only other possible use and probably preferred by use but not by Fire Service is small Industrial Units … Key worker accommodation would generate too much traffic.”
“Quite frankly, and having discussed this issue with David, you have nothing to lose, as if they fail to exchange then we will still press on with resolving the issues in order to effect a sale. Due to our meeting with the planners last week, we are of the opinion however that as a consequence of the sites only real suitability as student accommodation, we feel that it is unlikely that an offer much in excess of this will be achieved once the issues have been resolved.”
“I understand discussions have been conducted with the Local Planning Authority that have concluded that the only type of planning application in respect of the subject property that would attract the necessary permissions would be that for redevelopment of the site as multi storey student accommodation structures with minimal on site vehicular access/parking. It is also understood no other form of use or redevelopment would be allowed on the site in its present geographical form.”
“I have met with Adrian Jones who advises that the most appropriate use for the site would be student accommodation albeit naturally advised that there may be some resistance.”
“The members of the Committee will strongly resist an apartment scheme on the site and are generally hostile to additional students within this area. … Adrian Jones, however, did state that his views haven’t changed since the last meeting in that the most appropriate use would probably be student accommodation providing there was no impact on the residents in the immediate vicinity. … It is clear that if it was a private sector developer selling the site and seeking planning consent for student accommodation, there would be little or no chance of securing it. … We will undoubtedly have our work cut out and a significant amount of lobbying from the Chief Fire Officer and other members of the Committee will be required behind the scenes.”
“As you will both appreciate, planning permission for student accommodation will not be straightforward and accordingly I would be grateful if you could give some thought as to commencing any lobbying that you are able to with the Committee Members, making them aware of the wider picture.”
“We really need your political input now in lobbying the City for Student Accommodation, as any interest shown in the site will be deterred when they make their planning enquiries.”
“DEVELOPMENT OPPORTUNITY We have considered both a residential apartment scheme and a student accommodation scheme on this site with our clients’ architects and feel that the most appropriate use for this site would be the provision of additional keyworker/student accommodation, particularly bearing in mind the presence of the Queens Medical Centre and the University opposite. Our clients estimate that the Fire Station site alone would accommodate approximately: - 600 bedrooms for keyworkers/students although prospective developers should produce their own scheme and discuss it with the relevant Planning Officer at the City Council … PRICE Our instructions are to seek bids in respect of the combined Fire Station and Council site (1.478 acres) in excess of:£4,000,000 (Four Million Pounds) on a subject to planning basis.”
“The problem with planning at Dunkirk it seems is that Clr Trimble is pressuring City Planners not to grant permission for student accommodation. This is reducing the value of the site significantly and so we are looking to ‘get the arm on him’. I think this is better done through his City Council colleagues and therefore I am going to approach Members directly. If this fails I may involve the Chief.”
“RP raised the issue of ‘Building Balanced Communities’ and that this site would fall within the ‘Family Home’ type of residential development, not multi-occupancy apartments nor student accommodation, as they both contravene current development standards as set out by NCC.”
“We didn’t commission the architect to undertake one, I just instructed him to let me know what the most appropriate use was for the site after he had met with the planners and what could be achieved on site in terms of unit numbers. This was specifically for the fire station site and not the council land as at that time we were going to market without them. Its probably best if you ring … Tim Pearson … He is very helpful… ”
“I did manage to have a conversation with the planners for the Dunkirk site last Friday. As you might have expected, his view was a bit different to the picture presented in the Agent’s blurb … USE – Although he acknowledged that ‘key worker’ usage seemed a logical use for the site, he was emphatic in saying that student use would not be acceptable. Apparently, there are big political problems in the area with it becoming a student ghetto. Any talk of student use would be a complete no-no.”
“In summary we consider that gaining planning permission for student accommodation on this site will be extremely difficult, although not impossible and the key will be obtaining Members support for the scheme. Ultimately, you may wish/need to take the matter to appeal, however the chances of success are by no means certain and at best are likely to be 50:50, assuming that all other detailed matters have been resolved. This may however be your only chance if gaining political support does not prove possible.”
“I am aware of the site in question, and its surroundings, although I have not made a specific site visit following the receipt of your email and information. I fully agree that the intended use of the site would be the best solution in this location bearing in mind the proximity of the QMC and the edge of the University campus, both just to the north of the site. The site is within a residential area (including the nurses accommodation to the north) although there is a recreational playing field to the south and beyond that, industrial premises. The adjacent roundabout and fly-over form a physical separation between the site and the residential accommodation to the west. From my initial appraisal of your proposal I would flag up to 4 fundamental concerns, in terms of scale, impact, access and car parking. I have broken these down as follows: … I am not wanting to sound negative at the onset about this proposal, I am merely flagging-up issues which will be raised by the City Council Planners if we furthered negotiations based on the initial scheme. I must say that, based on the size of the site and the comments made above, the Fisher Hargreaves Proctor document does seem very ambitious in suggesting that the site could accommodate a 600 bedroom development on the fire station alone! … I have not been with this Practice long but I do feel that my Development Control background puts me in a good position to view proposals from a Planning Officers perspective and pre-empt any major issues at an early stage. It is difficult to give you an accurate idea of our likely fees for assisting you with any proposal as it is open at present as to the type of application (outline or full) and the amount of input that you would have as a company in the submission of the application. Suggesting that the application was for full planning permission and that you required our services in pre-application negotiations with the planners, the preparation of a Supporting Statement and the required design and Access Statement, the submission of the application and discussions with the planners during the course of the application, I would estimate our professional fees to be in the region£6000 to£8000 (+ VAT, mileage, etc).”
“If selected we propose to develop a mixed student/key worker accommodation scheme as illustrated on the sketch scheme. This initial sketch scheme illustrates some 566 units split across three buildings. This development of three buildings will particularly lend the scheme to occupation by both students and key workers, allowing for a degree of separation. To date we have taken very broad soundings from planners about the nature and scale of development. This has served to confirm the broad acceptability of the proposed use and scale of our development. However, given the nature of the use and its potential political sensitivity it has not been possible to hold detailed discussions with the City Council at this stage. Our confidence in this site and our ability to negotiate planning permission on complex and politically sensitive sites is demonstrated by our willing [sic] to submit an unconditional offer.”
“PLANNING RISK You are aware that Nottingham City Council’s Planning Department have been advising proposed purchasers that they do not want to see a student accommodation scheme developed on this site. They have advised, however, that ‘key worker accommodation’ would probably be acceptable. It is fair to say, therefore, that securing planning consent in accordance with the various conditions attached to the various bids will be far from straightforward and will, therefore, have a significant amount of risk attached to it.”
“I really don’t think that is appropriate to start advising them on planning issues when they are buying on an unconditional basis – this can be done at a later stage.”
“Gladman have just called to advise that they are still waiting for answers to their enquiries. We really do need to get on with this as they are now getting concerned and to remind everyone that this deal is too good to be true.”
“I am not happy with this. It is imperative that we sell the site on an unconditional basis now. By offering a lock-out they are making it conditional and planning is extremely political … ”
“Bearing in mind that we really need to exchange on this site before they submit their planning application (after all it is an unconditional deal), can we all please aim for an exchange within 2 weeks. … If we leave it much longer then I am conscious that they will appreciate the complexities of planning on this site and potentially lose interest at the level for which we have agreed.”
“27. It is averred that the said sales particulars were understood by Gladman to mean, and such understanding was reasonably held by Gladman in the circumstances, that: (i) the most suitable use of the Property and Adjoining Property [i.e. the Fire Station and the Council Land] was for a development including purpose built student or keyworker accommodation; and (ii) the Property alone could accommodate a development of 600 bedrooms for key workers or students (‘the Express Misrepresentation’). 28. Further, it is averred that by reason of the contents of the said sales particulars, the Fire Authority and the Council made the implied representation to Gladman that they had reasonable grounds for their stated belief that the most suitable use of the Property and Adjoining Property was for a development including purpose built student or key worker accommodation, and the Property alone could accommodate a development of 600 bedrooms for key workers or students (‘the Implied Misrepresentation’). 29. The Express Misrepresentation and/or the Implied Misrepresentation were false in that: (i) the Property and Adjoining Property were not suitable for redevelopment for purpose built student accommodation in the light of the terms and application of the Presumption to the Property and the Adjoining Property; and (ii) by reason of a feasibility study carried out in or about February 2004 in relation to the Property (and not the Adjoining Property) on behalf of the Fire Authority by Henry Mein Partnership Architects, the said architects concluded that, ‘…subject to various constraints being addressed a development in the region of 400 bed spaces would be achievable over a 6 to 7 storey development.’.” (i) the most suitable use of the Property and Adjoining Property [i.e. the Fire Station and the Council Land] was for a development including purpose built student or keyworker accommodation; and (ii) the Property alone could accommodate a development of 600 bedrooms for key workers or students (‘the Express Misrepresentation’). (i) the Property and Adjoining Property were not suitable for redevelopment for purpose built student accommodation in the light of the terms and application of the Presumption to the Property and the Adjoining Property; and (ii) by reason of a feasibility study carried out in or about February 2004 in relation to the Property (and not the Adjoining Property) on behalf of the Fire Authority by Henry Mein Partnership Architects, the said architects concluded that, ‘…subject to various constraints being addressed a development in the region of 400 bed spaces would be achievable over a 6 to 7 storey development.’.”
“53. … What I read left me wild with anger, as it was now clear beyond any shred of doubt that numerous Officers, employees and Agents at both Authorities had been repeatedly advised by the City Council’s planning officers … about the planning policy problem and its effect upon the value of the sites. … 55. One area of the documents disclosed which particularly incensed me was the creative language generated and refined over time by Jonathan Bishop, who was an Agent for both Authorities. He drew on various iterations to describe a site as suitable for Student Accommodation when he was fully aware that this was untrue (see his letter of11 May 2005 to Ian McFee … … 58. … The District Valuer, when he valued the Fire Authority’s site at£3 million , has been as much the victim of a fraudulent misrepresentation as we were. He was, I believe, misled by Messrs Pratt and Bishop. … 61. I was particularly incensed at some of the disclosed e-mails in the few months just before we exchanged contracts on the purchases. The several employees (and the Agents) involved seemed to confirm that they knew we did not know about the SPD problem, confirmed that they knew, and that they should try and exchange as soon as possible before we perhaps found out and therefore change [sic] our mind. I think it is summed up in 2 e-mails from Jonathan Bishop dated24 April 2007 and22 May 2007 …”
“34D. It is averred that Messrs Bishop and/or Hargreaves had actual knowledge of the existence of the SPD, the Presumption, and the fact that the use of the Property and the Adjoining Property for the purpose of student accommodation was not appropriate at the latest by16 June 2006 , when Jonathan Bishop was copied in on an e-mail sent on that date by James Firth at Wilson Mason Partners to Ian McFee and Rob Percival of the Council. Further, they had actual knowledge of the matters referred to in paragraph 34C above by the end 2004 at the latest, as evidenced by the terms of a letter written by Jonathan Bishop (when he was then employed by FHP) to the Council dated17 June 2004 . Despite such knowledge, the agents drafted the sales particulars containing the Express Misrepresentation, when they knew the same to be false. Further, the agents authority to make such a misrepresentation was wholly within the authority conferred upon them by the Council and the Fire Authority as evidenced by the fact that both the Council and the Fire Authority, when provided with copies of the sales particulars in a draft form for their approval, did not instruct Messrs Bishop and/or Hargreaves to correct the terms of the Express Misrepresentation before the sales particulars were sent out in mail shots. … 38. Further or alternatively, by reason of the matters set out in paragraph 34D above, Gladman avers that the Council and the Fire Authority are liable as principals, for the fraudulent misrepresentations made by their agents, Messrs Bishop and Hargreaves, which were made in pursuance of their actual or ostensible authority conferred upon the said agents by the Council and the Fire Authority.”
“In terms of timing, the amended defence and part 20 counterclaim was produced immediately prior to service in draft on14 January 2011 , and it followed from work carried out immediately prior, in early January 2011.”
“You are a witness in the above case and as you know it is proceeding to trial. We have written to you before and you advised us that your legal representatives are Browne Jacobson. We are not writing to you in connection with the trial, but looking ahead to what may happen afterwards. No doubt you are aware of the more detailed particulars in the Amended Defence and Counterclaim concerning knowledge and the fraudulent misrepresentation. You were heavily involved in the allegations of fraudulent misrepresentation. There are issues of principals/agents and your ability to bind the City Council and the Fire Authority. Whilst Gladman is very confident of success, if it is unsuccessful in whole, or in part, we put you on notice that Gladman will take proceedings against your firm. For your information, and for your insurers, Gladman’s claim for damages, if it is successful, runs into several of tens of millions of pounds. The site was expected to make£12 million profit. The planning problems with this site prevented Gladman buying it but the£6 million has remained put aside, because of the exposure, which has also prevented them from purchasing two similar sites, using the profits anticipated on the sale of this site, which would have been affordable with bank borrowings to gear up the equity to some£18 million . These three sites alone would have produced profits in excess of£30 million .”
“MR JUSTICE PETER SMITH: You said that the purpose of the meeting was out of respect to Councillor Trimble for two reasons …. Right? A. Yes. MR JUSTICE PETER SMITH: If I look at your witness statement, you don’t mention that latter reason at all. A. Because that was not on my agenda. That was on Mr Timms’ agenda. MR JUSTICE PETER SMITH: The purpose of your witness statement, your evidence, is to tell me everything. All right? Not selected bits. Because if you leave something out and then want to put it in, I might conclude that you are making it up as you go along. A. Yes. MR JUSTICE PETER SMITH: So why isn’t that in your witness statement? Why didn’t you set out the purposes of the meeting in your statement? A. When I did my witness statement, I thought it was to do with what I experienced, the facts of my experience at the time. The purpose of explaining to Councillor Ward (sic) about losing a fire station was actually nothing to do with me. That was a political issue between the Fire Service and the public. …”
“MR JUSTICE PETER SMITH: You have said a number of times ‘in these hypothetical questions’, and I know where you have picked that up from, but I want you to understand: these questions are not really hypothetical; because you are on trial here, with an allegation of dishonesty against you, that you fraudulently told too good a picture about the potential of this site. Do you understand that? A. Yes.”
“MR JUSTICE PETER SMITH: … The question I asked was: why were your reservations – which is what they clearly were – and which qualified your view, clearly, taking into account everything, why were they not expressed in the sales particulars? This is possibly the most important question you are going to have to answer, because your honesty will turn on your answer. I want to know why. A. Because in the balance of the credits and debits I thought that the credits were significantly greater than the debits and that the most appropriate use would be that, as I stated in the letter. MR JUSTICE PETER SMITH: And that you would get permission for that most appropriate use? A. Yes. MR JUSTICE PETER SMITH: Do you see why it is important? I now have your evidence, your answer to the important question as to why you felt the particulars were not fraudulent and still believe them not to be fraudulent. Do you understand? That is why I’ve been pressing you. It is oppressive. A. I’m confused, confused on it. MR JUSTICE PETER SMITH: You might be confused, but I’m not confused, which is the important point. Thank you.”
“… I shudder to think what Mr Bishop and Mr Hargreaves thought when they received a letter saying that if your clients [i.e. GCP] lost the litigation they would be ruined, because that puts them in a catch 22 situation, because there is a good chance that if the claimants lose the litigation Mr Hargreaves and Mr Bishop will be ruined anyway and therefore you are saying if they win the litigation they would be ruined too.”
“11. At all times through the marketing of the site I was confident that planning permission for student accommodation would have received approval because it was clear in my mind that student use was the obvious and best use for the site. I would describe the SPD as a ‘fig leaf’. This is because whatever the guidance said, one would need flexibility in dealing with planning matters in practice. Each application for planning permission must be dealt with on its merits. There was no policy ban on purpose built student accommodation in the location of the Dunkirk Fire Station. I thought that it was very highly likely that an application for planning permission would have been successful provided that the proposed development was well designed and adequately addressed other planning matters such as noise and access issues. … 16. At all times during my involvement nothing changed to alter the view I was expressing about the suitability of the site for student accommodation. I was confident that if any developer had pursued a planning application they would have secured the relevant planning consent. It was often the case at that time that taking applications through the DC Committee was difficult because of strongly held views but in practice [sic] relatively few applications were turned down against officer advice and I was ultimately responsible for that advice. …”
“It was [obvious] that Mr Jones was going to be a key witness in this case. Any cursory examination of the notes of the meetings would have seen that. Mr Jones’ evidence is the platform for [the Council and the Fire Authority] to say that they had an honest belief because they relied on what Mr Jones said. I can’t imagine a more important witness in this case. I have to say … that my provisional view of most of the witnesses that were called, particularly the agents, is not a favourable view at the moment. I feel that I have been lied to and misled extensively by the witnesses called by the fire brigade and the authority … That’s why Mr Jones is important, because he is a platform to allow you to say … we could honestly believe, because of what Mr Jones said, that this site had student accommodation prospects. That’s why his evidence is so important. … It gives you an opportunity to recover everything. Mr Jones, you are confident, will go in the box and he will say: I am an honest man, this is an honest belief. Then in your closing speech, you will say: you are entitled to rely upon that, and therefore however negligent or incompetent our witnesses were however many lies they came and told in front of your Lordship, at the end of the day you can’t ignore the fact that Mr Jones is an honest man and expressed an honest belief to them. That’s the way you are going to close this speech if Mr Jones goes in and that’s unfair to the Defendants because they are finding this out after 10 days of trial. Who knows what the Defendants’ attitude would have been if Mr Jones was put forward as a witness before the trial started? … before Mr Jones whizzed out of the ether in his deus ex machina [counsel for GCP] was going to submit in his closing speech that … he wasn’t called because you were frightened to call him, which is an inference I would have been quite happy to draw if Mr Jones hadn’t arrived at this trial. But he has arrived. It’s like the 7th cavalry. … the key witnesses, particularly the two agents and some of the senior people up the executive chain, I’m quite satisfied that they have lied to me. They have understated the internal effect of the documents; they knew that it was difficult. But if they get home, they will get home on Mr Jones. If Mr Jones is believed as being an honest witness, having an honest belief, that they can rely upon that because that’s what they were told.”
“The principals here are able to pay the damages so you don’t need the extra claim against the surveyors, that’s just something to beat [them] over the head with.”
“The said payment shall be in satisfaction of all claims by the Defendant [i.e. GCP] against the Claimant [i.e. the Fire Authority] and the Third Party/Part 20 Defendant [i.e. the Council] in respect of damages, interest, costs (including any interlocutory orders for costs) and repayment of deposits (paid by the Defendant under the agreements hereinafter mentioned) herein and is in full and final settlement of all and any existing or potential claims of any nature, whether or not contemplated, that the Defendant has against the other parties.”
“the Fire Authority and the Council had considered their own residential apartment and student accommodation scheme for the Site with their architects”
“As Ms Anderson QC rightly reminded me, the court must be careful before giving summary judgment on a claim. The correct approach on applications by defendants is, in my judgment, as follows: i) The court must consider whether the claimant has a ‘realistic’ as opposed to a ‘fanciful’ prospect of success: Swain v Hillman[2001] 2 All ER 91 ; ii) A ‘realistic’ claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel[2003] EWCA Civ 472 at [8]. iii) In reaching its conclusion the court must not conduct a ‘mini-trial’: Swain v Hillman. iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10]. v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5)[2001] EWCA Civ 550 . vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd[2007] FSR 63 . vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd[2007] EWCA Civ 725 .”
“Thus it has been held that an estate agent, who is not a servant, may have authority to make representations about a property for which he is seeking a buyer or tenant, so that his principal is liable for their falsity. So also the vendor of land may be liable for false statements wilfully or negligently made by his solicitor in answer to inquiries.”
“The general rule at common law is that where there is a joint cause of action against two or more persons, a discharge as against one of them operates as a discharge against all. If accord be made with one joint tortfeasor andsatisfaction accepted, or if he be released, all others are discharged”
“the cause of action, which is one and indivisible, having been released, all persons otherwise liable thereto are consequently released”
“8. This conclusion [in Jameson] was reached by a number of steps which included the following. (1) Proof of damage is an essential step in establishing a claim in tortious negligence ([2000] 1 AC 455 , 472a-c). (2) Such a claim is a claim for unliquidated damages (pp 473d, 474a). (3) Such a claim is liquidated when either judgment is given for a specific sum or a specific sum is accepted in a compromise agreement (pp 473d, 474b, 474e). (4) A judgment on such a claim will ordinarily be taken to fix the full measure of a claimant's loss (pp 473e, 474b). (5) A sum accepted in settlement of such a claim may also fix the full measure of a claimant's loss (pp 473e, 474e-f): whether it does so or not depends on the proper construction of the compromise agreement in its context (pp 473b, 476e, 474h). (6) On the facts of A's case, the sum accepted from B in settlement was to be taken as representing the full measure of A's loss: it followed that A's claim in tortious negligence was extinguished and he had no claim which could be pursued against C (p 476e). I do not think the first four of these steps are controversial. The fifth proposition may perhaps have been stated a little too absolutely in Jameson, but as expressed above I do not think it can be challenged. There was clearly room for more than one view, as the division of judicial opinion in Jameson showed, whether the sum accepted in settlement by A was to be taken as representing the full measure of his loss, but if it did the conclusion followed: A could not have proved damage, an essential ingredient, in his action against C, and that was fatal to the widow's Fatal Accidents Act claim against C. 9. In considering whether a sum accepted under a compromise agreement should be taken to fix the full measure of A's loss, so as to preclude action against C in tort in respect of the same damage, and so as to restrict any action against C in contract in respect of the same damage to a claim for nominal damages, the terms of the settlement agreement between A and B must be the primary focus of attention, and the agreement must be construed in its appropriate factual context. In construing it various significant points must in my opinion be borne clearly in mind: (1) The release of one concurrent tortfeasor does not have the effect in law of releasing another concurrent tortfeasor and the release of one contract-breaker does not have the effect in law of releasing a successive contract-breaker. (2) An agreement made between A and B will not affect A's rights against C unless either (a) A agrees to forgo or waive rights which he would otherwise enjoy against C, in which case his agreement is enforceable by B, or (b) the agreement falls within that limited class of contracts which either at common law or by virtue of theContracts (Rights of Third Parties) Act 1999 is enforceable by C as a third party. (3) The use of clear and comprehensive language to preclude the pursuit of claims and cross-claims as between A and B has little bearing on the question whether the agreement represents the full measure of A's loss. The more inadequate the compensation agreed to be paid by B, the greater the need for B to protect himself against any possibility of further action by A to obtain a full measure of redress. (4) While an express reservation by A of his right to sue C will fortify the inference that A is not treating the sum recovered from B as representing the full measure of his loss, the absence of such a reservation is of lesser and perhaps of no significance, since there is no need for A to reserve a right to do that which A is in the ordinary way fully entitled to do without any such reservation. (5) If B, on compromising A's claim, wishes to protect himself against any claim against him by C claiming contribution, he may achieve that end either (a) by obtaining an enforceable undertaking by A not to pursue any claim against C relating to the subject matter of the compromise, or (b) by obtaining an indemnity from A against any liability to which B may become subject relating to the subject matter of the compromise. …” (1) Proof of damage is an essential step in establishing a claim in tortious negligence ([2000] 1 AC 455 , 472a-c). (2) Such a claim is a claim for unliquidated damages (pp 473d, 474a). (3) Such a claim is liquidated when either judgment is given for a specific sum or a specific sum is accepted in a compromise agreement (pp 473d, 474b, 474e). (4) A judgment on such a claim will ordinarily be taken to fix the full measure of a claimant's loss (pp 473e, 474b). (5) A sum accepted in settlement of such a claim may also fix the full measure of a claimant's loss (pp 473e, 474e-f): whether it does so or not depends on the proper construction of the compromise agreement in its context (pp 473b, 476e, 474h). (6) On the facts of A's case, the sum accepted from B in settlement was to be taken as representing the full measure of A's loss: it followed that A's claim in tortious negligence was extinguished and he had no claim which could be pursued against C (p 476e). I do not think the first four of these steps are controversial. The fifth proposition may perhaps have been stated a little too absolutely in Jameson, but as expressed above I do not think it can be challenged. There was clearly room for more than one view, as the division of judicial opinion in Jameson showed, whether the sum accepted in settlement by A was to be taken as representing the full measure of his loss, but if it did the conclusion followed: A could not have proved damage, an essential ingredient, in his action against C, and that was fatal to the widow's Fatal Accidents Act claim against C. (1) The release of one concurrent tortfeasor does not have the effect in law of releasing another concurrent tortfeasor and the release of one contract-breaker does not have the effect in law of releasing a successive contract-breaker. (2) An agreement made between A and B will not affect A's rights against C unless either (a) A agrees to forgo or waive rights which he would otherwise enjoy against C, in which case his agreement is enforceable by B, or (b) the agreement falls within that limited class of contracts which either at common law or by virtue of theContracts (Rights of Third Parties) Act 1999 is enforceable by C as a third party. (3) The use of clear and comprehensive language to preclude the pursuit of claims and cross-claims as between A and B has little bearing on the question whether the agreement represents the full measure of A's loss. The more inadequate the compensation agreed to be paid by B, the greater the need for B to protect himself against any possibility of further action by A to obtain a full measure of redress. (4) While an express reservation by A of his right to sue C will fortify the inference that A is not treating the sum recovered from B as representing the full measure of his loss, the absence of such a reservation is of lesser and perhaps of no significance, since there is no need for A to reserve a right to do that which A is in the ordinary way fully entitled to do without any such reservation. (5) If B, on compromising A's claim, wishes to protect himself against any claim against him by C claiming contribution, he may achieve that end either (a) by obtaining an enforceable undertaking by A not to pursue any claim against C relating to the subject matter of the compromise, or (b) by obtaining an indemnity from A against any liability to which B may become subject relating to the subject matter of the compromise. …”
“But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice.”
“49. … (i) Where A has brought an action against B, a later action against B or C may be struck out where the second action is an abuse of process. (ii) A later action against B is much more likely to be held to be an abuse of process than a later action against C. (iii) The burden of establishing abuse of process is on B or C or as the case may be. (iv) It is wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. (v) The question in every case is whether, applying a broad merits based approach, A's conduct is in all the circumstances an abuse of process. (vi) The court will rarely find that the later action is an abuse of process unless the later action involves unjust harassment or oppression of B or C. 50. Proposition (ii) above seems to me to be of importance because it is one thing to say that A should bring all his claims against B in one action, whereas it is quite another thing to say that he should bring all his claims against B and C (let alone against B, C, D, E, F and G) in one action. There may be many entirely legitimate reasons for a claimant deciding to bring an action against B first and, only later (and if necessary) against others.”
“… The fact that the defendants to the original action and to this action are different is a powerful factor in the application of the broad-merits based judgment; it does not operate as a bar to the application of the principle. This was plainly the view of Clarke LJ in Dexter’s case[2003] EWCA Civ 14 at [49]-[53] in the passage I have set out with which I agree.”
“29. I also wish to add a word as to the approach that should be adopted if a similar problem arises in the future. In circumstances such as those that arose in this case, the proper course is to raise the issue with the court. Aldi did write to the court, as I have set out at para 2(xiii), but not in terms that made it clear what the court was being invited to do. WSP and Aspinwall knew of Aldi's position and were before the court on numerous occasions; they did nothing to raise it. 30. Parties are sometimes faced with the issue of wishing to pursue other proceedings whilst reserving a right in existing proceedings. Often, no problem arises; in this case, Aldi, WSP and Aspinwall each in truth knew at one time or another between August 2003 and the settlement of the original action in January 2004 that there was a potential problem, but it was never raised with the court. I have already expressed the view that it should have been. The court would, at the very least, have been able to express its view as to the proper use of its resources and on the efficient and economical conduct of the litigation. It may have seen if a way could have been found to determine the issues applicable to Aldi in a manner proportionate to the size of Aldi's claim and without the very large expenditure that would have been necessary if Aldi had to participate in the trial of the actions. It may be that the court would have said that it was for Aldi to elect whether it wished to pursue its claim in the proceedings, but if it did not, that would be the end of the matter. It might have inquired whether the action against excess underwriters could have been expedited. Whatever might have happened in this case is a matter of speculation. 31. However, for the future, if a similar issue arises in complex commercial multi-party litigation, it must be referred to the court seised of the proceedings. It is plainly not only in the interest of the parties, but also in the public interest and in the interest of the efficient use of court resources that this is done. There can be no excuse for failure to do so in the future.”
“For my part, I do not think that parties should keep future claims secret merely because a second claim might involve other issues. The proper course is for parties to put their cards on the table so that no one is taken by surprise and the appropriate course in case management terms can be considered by the judge. In particular parties should not keep quiet in the hope of improving their position in respect of a claim arising out of similar facts or evidence in the future. Nor should they do so simply because a second claim may involve other complex issues. On the contrary they should come clean so that the court can decide whether one or more trials is required and when. The time for such a decision to be taken is before there is a trial of any of the issues. In this way the underlying approach of the CPR , namely that of co-operation between the parties, robust case management and disposing of cases, including particular issues, justly can be forwarded and not frustrated.”
“Secondly, as the Aldi Stores Ltd case again makes clear and as Sir Anthony Clarke MR stresses, a claimant who keeps a second claim against the same defendant up his sleeve while prosecuting the first is at high risk of being held to have abused the court's process. Moreover, putting his cards on the table does not simply mean warning the defendant that another action is or may be in the pipeline. It means making it possible for the court to manage the issues so as to be fair to both sides.”
“15. I tried to ensure that everything that was said in my witness statement [in the First Action] was true. I did not appreciate that I might be criticised for failing to deal with particular documents or events. 16. I was told that I might be in the witness box for 2 hours or so. As it was, I was in the box for the best part of 3 days. It was one of the worst experiences of my life. I felt that no-one in Court was standing up for me. No-one seemed to understand that the letters were not prepared nor were they intended to provide re-assurance to the Claimant or other bidders as to the planning position. I was constantly being taken to task because of supposed gaps in my witness statement, though any gaps were not my responsibility. I was constantly accused of lying when I was telling the truth. Nobody seemed to understand or wish to understand how the surveying profession works which was extremely frustrating and draining. 17. I felt as if I was under fire from two different directions. I thought that I would be asked questions by a barrister for the Claimant, and that the judge would listen to my answers. This is not the way it turned out. I felt as though I was on trial. For much of the time I was trying to deal with questions from the judge which were phrased and expressed in a way that suggested to me that he had decided that I had acted dishonestly. I was sometimes interrupted mid-answer. I found it very difficult indeed to get across my evidence as to what occurred and as to what was in my mind. … 19. The whole experience was very damaging. I have lost confidence. I am now terrified of saying anything in an email or other document which could be twisted and misinterpreted and used against me. My reputation in and around Nottingham has been affected. 20. Every time I receive an email from my solicitor about the case, I find it impossible to concentrate on anything else until I have answered the email. The case is on my mind the whole time. 21. I am now facing the prospect of undergoing the same experience again. If this action went to trial, I imagine that I would have to give evidence. I find it more or less unbearable to contemplate the prospect of having to give evidence again about the relevant events. If the Claimant wanted to sue me and my firm, it should have been done so in the action in which it pursued the Council and Fire Authority in which I would have had one of my own lawyers. I know that the court will make up its mind about this, but it seems to me to be completely unfair that the Claimant can take its compensation from the Council and the Fire Authority, and then come after me and Mr Hargreaves and our employers in further proceedings in which we will have to give evidence for a second time.”
“Gladman seeks damages in the sum of between£3 0 1,000,000 to [sic]£39,000,000 for the opportunities it has lost to develop other student accommodation schemes and in due course it will seek permission to call PKF to give forensic accountancy evidence. As matters stand, Gladman estimates that but for the conduct of the Defendant [sic], it would have developed a total of 6 student accommodation schemes”
“2.21 In view of the dispute between Gladman and the Fire Authority and the City Council, Gladman had to make provision in October 2007 to sterilise£6 million plus extensive legal costs, should the dispute not be settled in their favour in an eventual Court ruling. I am instructed that Gladman ensured that£7 million was kept sterilised for this eventuality. 2.22 In view of the above and as Gladman were required to earmark£7 million of funds to settle the dispute with the vendors of the Fire Station site in the event of a negative outcome, Gladman have had inadequate funds available to pursue their strategy of investing in student accommodation development and sale. Thus, almost all of Gladman’s intended investment in student accommodation sites was sterilised by this one dispute.”