Jones & Anor v Oven & Anor [2017] EWHC 1647 (Ch)

Case No HC-2015-004130[2017] EWHC 1647 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Rolls Building, Fetter Lane,Date 28/06/2017
London, EC4A 1NL
Before
HHJ PAUL MATTHEWS(sitting as a Judge of the High Court)
Between
Patricia Ann JonesClaimantsDavid JonesClaimantTimothy Paul OvenDefendantsRuth OvenDefendant
Tim Calland (instructed by Birketts LLP) for ClaimantsAndrew Butler (instructed by Birkett Long LLP) for DefendantsHearing Hearing dates: 22, 26 and 27 June 2017
JudgmentHHJ Paul Matthews :Introduction
[1]This is my judgment on the trial of this claim, arising out of a dispute between neighbours at Little Baddow near Chelmsford in Essex. It concerns a strip of land, some 4 metres wide, which was part of a parcel of land sold and transferred by the claimants in 2003 to the defendants’ predecessors in title for the purposes of residential development. Both the contract and the transfer contained a provision that, if a barn on the land transferred were to be demolished at any time thereafter, the transferees would retransfer to the transferors, free of charge and within 28 days, a strip of land 4 metres wide immediately adjacent to the claimant’s boundary line (I will refer to this hereafter as “the Strip”). By the transfer the claimants also entered into restrictive covenants so as to bind part of the land which they retained for the benefit of the land being sold (in very broad summary) by prohibiting the carrying on of activities which would be normal in an agricultural or rural setting, but which would be a nuisance to residential estate neighbours.[2]The defendants’ predecessors in title used part of the land transferred to construct a residential property which they sold to the defendants in 2005. The transfer to the defendants contained a similar provision to the 2003 transfer, but requiring the defendants to transfer the Strip to the claimants in the event of the demolition of the barn. In 2009 the barn was demolished. Since then, the parties have been unable to agree on whether a transfer of the Strip would or should involve the imposition of the same restrictive covenants on the Strip as undoubtedly apply to part of the rest of the land which the claimants retained in 2003.

Procedure

[3]The claim form in this action was issued on 28 September 2015, seeking specific performance of the covenant to transfer the Strip, and damages for breach of contract in failing to perform that covenant. The latest particulars of claim were served in an amended form on 16 December 2016. An amended defence and counterclaim was served on 5 January 2017. This denies any breach of contract, on the basis that the defendants have tendered performance, or that the obligation is subject to a condition precedent that the claimants accept performance. The claimants served a reply and defence to counterclaim on 15 November 2015, and the defendants served a reply to defence to counterclaim on 2 March 2016.[4]At the trial, claimants were represented by Mr Tim Calland. The defendants were represented by Mr Andrew Butler. At the outset of the trial, the claimants made an application to adduce evidence further witness statements from Patricia Jones (the first claimant) and Richard Bacon (the claimant’s expert). As to the former witness statement, this gave an explanation of certain emails and other documents which were already in the trial bundle, although having been disclosed by way of continuing disclosure after the deadline for original disclosure had expired. As to the latter, this produced two spreadsheets indicating the range of possible opinions as to the losses which may have been suffered by the claimants in the event that they could establish a breach of covenant by the defendants.[5]The application was put on the basis that it was an application for relief against sanctions (the sanction being non-admissibility of the evidence at trial). I am not so sure about that. It seemed to me to be much more about asking for permission to put evidence in after the dates on which case management directions required, but on the basis that the evidence either did not exist or had not come to hand before that date. So it was a question of seeking the permission of the court, rather than seeking to be excused for not failing to do something which at the time would have been impossible.[6]The application was opposed on behalf of the defendants, though, if I may say so, not very strenuously once Mr Butler saw which way the wind was blowing. In particular, I noted that there was no surprise to the defendants and no prejudice to them (and they certainly did not seek an adjournment) by the application to adduce this evidence. As a result, and for the reasons which I gave at the time, I allowed the application, and admitted the evidence the subject of the application.

The issues

[7]The following issues arise in the claim: 1. Do the restrictive covenants entered into in 2003 apply to the Strip once transferred to the claimants? 2. Should the court order specific performance of the covenant for the retransfer of the Strip, originally entered into by the defendants’ predecessors in title in 2003, and then also by the defendants in 2005? 3. If so, should specific performance only be ordered on terms that the claimants agree to use the Strip in accordance with the restrictive covenants of 2003? 4. Are the defendants in breach of contract in failing to transfer the Strip at any time since 2010? 5. If they are, have the claimants suffered any recoverable loss?

Witnesses

[8]Each of the first and second claimants made a witness statement for the purposes of these proceedings, as did the first defendant. For the claimants, Mr Richard Bacon, an equine business lecturer at Moreton Morrell College, prepared a report dated 15 March 2017, on the losses alleged by the claimants, and their quantum. For the defendants, Mr Roddy Williams, a former international polo player, horse trainer and breeder, prepared a similar report, dated 19 April 2017. They subsequently prepared a joint report, dated 19 May 2017.[9]I heard oral evidence from the following witnesses: the first claimant, the second claimant, the first defendant, and two expert witnesses, Mr Richard Bacon for the claimants, and Mr Roderick Williams for the defendants. I should say something about my impression of each of them.[10]The first claimant gave her evidence clearly, quickly, and with sure answers, even on legal points, at least in the early stages of her evidence. She certainly had no doubts and was very businesslike. She knew the price of everything. But she drew a clear distinction between the evidence that she gave in relation to bookkeeping, staffing and general managerial issues, on the one hand, and decisions on the use of the premises, on the other. The latter, she said, were referred to the second claimant. (This would include questions about the intentions of the claimants to establish a new livery business.) There is no doubt that the first claimant knew very well what was the point of every question and how best to answer it. Yet there were some matters which threw her, and caused her to reflect before answering. One was why there should be such a difference in regime between the land which the claimants retained on the 2003 transfer, and the 4 metre strip which they wanted to get back from the defendants. She could not answer this. I do not think that the first claimant lied to me, at least not in her oral evidence. But I do think that, at all events in some respects, her written evidence was at the least mistaken, and even her oral evidence is to be taken with at least a pinch of salt.[11]The second claimant generally gave clipped, precise answers, almost nitpicking. He is not a lawyer, but his style was legalistic, in the formal sense. He dealt with literal meanings of words and phrases, rather than substantive ones. As the first claimant said, however, he was more concerned with the strategic issues about which part of their property to use for what. But there was a curious contrast between the answers he gave to questions where he was sure that the answer was in the claimants’ favour, and those where he was not so sure. In the first class of case he gave quick, sometimes monosyllabic answers. Frequently he even cut off the question, so eager was he to answer. In the second class of case he never did. And then he often avoided or deflected the question. He would lean back, and give an expansive answer, usually involving phrases like:
“I don’t think so,” or “Not really”
. Moreover, he would not accept points made from the documents which were clearly against him.[12]An important instance of this is found in two emails from the second claimant to the first defendant dated 8 April 2011 and 11 April 2011. In the earlier email the second claimant said:
“When I put the pigs onto the 4 metres we were trespassing in a vain attempt to get things moving, it was not by way of an abuse of a licence as none had been granted nor was it ever sought, we were not brought up to be borrowers.”
In the later email the second claimant said:
“Putting the pigs on the 4 metre strip was an act of trespass in the vain hope of grabbing your attention that nothing was being done and we wanted the land returned to our ownership as you were not complying with the contract.”
[13]However, in 2012 there were proceedings brought in the Chelmsford County Court by the defendants against the claimants in respect of activities being carried on by the claimants on their land but also on the strip. In particular, the defendants objected to the fact that there were pigs on the 4 metre strip. During the hearing before the district judge in July 2012, the district judge asked the second claimant about trespass by him on the strip. The second claimant said this:
“I have been on there once to retain a chicken. The 4 metre strip of land was due to be returned to us within 28 days of the party wall building being demolished. That was three years ago that should have been returned to us. We never pushed it, we never went for it and we stood back and we waited. The party wall had to have work carried out on it. That work was carried out and we found that a chicken had strayed onto there. I went on there. That is the only time, without consent, I went on there to get this bird back.”
[14]This inconsistency was put to the second claimant in cross examination in the present case. The second claimant told me that these emails were not ones that he would have written. He denied lying to the County Court, and maintained that he never wrote these emails. He said it was very easy to alter an email. These documents, however, were disclosed in the course of these proceedings. And CPR rule 32.19 provides that a party shall be deemed to admit the authenticity of such documents unless he serves notice that he wishes the document to be proved at trial. As I understand the matter, no such notice was served, and therefore the authenticity of the emails is deemed to have been admitted. It is not open to the second claimant at this stage to deny that.[15]Even putting the technical procedural point on one side, this was in any event unattractive behaviour from a witness who was sure he was right, whatever the documents said. I disbelieve the second claimant when he says he did not write these emails.[16]A second point was that the original form of the particulars of claim alleged that the claimants “operate a horse and pony training and schooling business out of the premises, trading as the Equine Awareness Centre (the “Business”) and have done so since 1990.” This was of course supported by a statement of truth from the claimant’s solicitor. But it was subsequently amended to read that “the claimants run equestrian stables from the premises and have done so since 1990”. The deletion of all reference to carrying on a business since 1990 followed on the defendants pointing out that the claimants had no planning permission for business use. Again, it is unattractive to find a party being prepared to put forward statements about carrying on business which are exposed as untrue and have subsequently to be withdrawn.[17]Taking these instances together with what I observed of the second claimant in giving his evidence, I am afraid that the net result was that I did not trust him an inch. I am unable to treat anything he said as true unless it were corroborated by an independent source.[18]The first defendant gave his evidence in a clear, firm, and straightforward way. He accepted corrections without hesitation, and was clearly telling the truth. There was some attempt in cross-examination to challenge him over the question of licence to the claimants use the strip pending transfer, and whether the defendants really were trying to complete the transfer claim, but in my judgment unsuccessfully. Where his evidence conflicts with that of the claimants, I prefer his.[19]The two experts had met after preparing their individual expert reports, and had prepared a joint report in which each of them moved a little towards the position of the other. Each comes from a different background, which was reflected in their individual reports. Mr Bacon, the expert witness for the claimants, is a lecturer and author in equine business, and also a consultant in the subject. He has never run an equine business. He gave his evidence in a calm and understated fashion, politely but firmly. Mr Williams, the expert witness for the defendants, is a former international polo player who now runs a livery business as well as other equine activities. He was slow to reply to questions, and very cautious (at least at the outset of his evidence) in what he said. He picked his words carefully. I am satisfied that both experts were trying to assist the court and were giving their honest opinions. Both were careful to limit their evidence to matters within their expertise.

Facts

[20]On the basis of the evidence given and other material before me, I find the following facts. On 7 November 2002, the claimants entered into two contracts for the sale of land forming part of their existing property at New Lodge farm, Little Baddow, Essex, to City and Country Residential Ltd (“CCR”). CCR intended to develop the land for residential purposes. One contract was unconditional, but the other was conditional on planning permission being obtained. The first, unconditional contract, relating to land which on the attached plan was shown hatched red (and I will refer to it as “the red land”) was completed on 15 November 2002. For the avoidance of any doubt, the land the subject of this claim, the Strip, was not included in the red land.[21]The transfer included certain restrictive covenants, entered into by the claimants, burdening a part of the land which they retained (at that stage including the Strip), for the benefit of the land being transferred and certain other land belonging to CCR. The purpose of the restrictive covenants was to ensure that potential purchasers of the residential properties to be constructed would not be put off by the activities continuing on the retained land next door or nearby. This in turn would of course maximise the price which CCR would be prepared to pay for their land.[22]The relevant covenant reads as follows:
“The Transferor (jointly and severally) (and which expression shall include their successors in title) covenant with the Transferee (and its successors in title) set out herein such covenants to bind Title Number EX 342457 and each and every part thereof and to benefit the Property and the land comprised in Title Number EX 488252 and each and every part thereof Together With any additional land acquired by the Transferee namely: – (a) Not to do or allow to be done on the Transferor’s Retained Land anything which may unreasonably be or grow to be a nuisance or annoyance to the Transferee or its successors in title in connection with the use by the Transferee and its successors in title of the land now comprising Title Number EX 488252 and the Property and any additional or other lands acquired by the Transferee (“the Transferee’s land”) and “nuisance and annoyance” includes anything which materially affect the use and enjoyment of the Buyer’s Land for residential purposes Provided That nothing herein shall restrict: – (i) the use of any buildings on the Transferor’s Retained Land for recreational uses ancillary to the Transferor’s use and enjoyment of the dwelling house known as New Lodge Farm or the use of such buildings for commercial stabling; or (ii) the use of any land for schooling of horses; or (iii) the use of any land for residential purposes (b) That there will not be at any time any storage of any materials of a noxious or offensive nature on the Transferor’s Retained Land (c) Any buildings now or hereafter located on the Transferor’s Retained Land will not be used for the keeping of agricultural livestock save for equines…”
[23]The second, conditional contract, which related to land which was hatched green on the attached plan (and which I shall therefore called “the green land”) was not finally completed until 9 June 2003, when the claimants transferred the green land to CCR. The green land however included the Strip. It is common ground that the effect of the transfer of the Strip to CCR (which already owned the land having the benefit of the earlier restrictive covenants burdening the Strip, amongst other land) was to extinguish those restrictive covenants so far as relating to the Strip itself. This was because both the dominant and the servient land (to that extent) were vested in the same person: see Re Tiltwood, Sussex [1978] Ch 269, 280. The transfer however contained restrictive covenants by the claimants identical to those in the 2002 transfer, burdening their retained land (which now no longer included the Strip) in favour of CCR’s land (which now did).[24]But there was a special provision in the conditional contract for the green land, based on the particularity of the boundary of that land with the land retained by the claimants. That boundary divided two barns which otherwise stood together as one. The eastern barn (or part of barn) was on the land retained by the claimants, and still exists today. The western barn (or part) was part of the green land and was sold to CCR by the second, conditional contract.[25]At the time of the sale, it was contemplated that the western barn might be demolished in the future. It was therefore provided specifically in the contract as follows:
“In the event of the Buyer or its successors in title (i) voluntarily; or (ii) in order to comply with Planning Authority requirements and of a planning consent obtained by the Buyer and being implemented by the Buyer demolishing that part of the barn shown edged brown on Plan A the Buyer shall at no cost to the Seller transfer to the Seller the land having a width of 4 m between the points A, B, C and D shown cross hatched black on the plan marked A within twenty-eight days of the demolition of that part of the said barn and thereafter erect a fence one metre high along the boundary between the points A and B (such fence to be of a style as the Buyer shall determine but to be stock proof) and which fence shall be thereafter maintained by the Seller. The provisions of this clause shall not merge with or become extinguished on completion.”
[26]In December 2005 CCR sold and transferred to the defendants a residential property that had been developed on part of the land that it had acquired. In the transfer it is referred to as “Barn 2” but it is now known as “Bremners”. In the transfer, the defendants entered into a positive covenant with CCR in terms almost identical to those contained in the conditional contract and referred to above, except that the defendants covenanted to transfer to the claimants instead of to CCR.[27]However, in the same transfer, a number of restrictive covenants were entered into by the defendants with CCR so as to bind the property that they had bought, in order to benefit each and every part of the residential estate of which Bremners formed part. These covenants are of a kind which is common in relation to freehold residential estate developments.[28]In particular they include covenants:
“4. Not to cause or permit or suffer to be done in or upon the Property any act or thing which may be or become a nuisance and annoyance danger or detriment to the transfer or or owners or occupiers for the time being of other parts of the estate…” “8. Not at any time: – 8.1. To use or to carry on from the property or any part or part thereof any trade, business or manufacture whatsoever and not to use the property for any purpose or purposes other than those incidental to the enjoyment of one single private dwelling house and outbuildings ancillary to such use…” “15. Not to keep or permit any dog bird or animal upon or in the Property which may cause a nuisance damage or annoyance which may cause a nuisance damage or annoyance to other residents of the Estate and in the case of any reasonable and substantiated objection being notified by the Transferor to such bird dog or other animal to remove the same forthwith…”
[29]In 2009, the defendants demolished the western barn. The evidence of the first defendant (which I accept) was that the defendants had no intention of demolishing the barn at the outset. But they found that they could only obtain planning permission for the construction of garages and additional bedrooms if they maintained the overall “footprint” of the building within certain limits. They would have to, and did, demolish the barn. It is common ground that this was the initial trigger for the obligation to arise on the positive covenant entered into by the defendants to transfer the 4 metre wide strip to the claimants free of charge within 28 days. That transfer however did not happen. Each side explains differently why it did not happen.[30]The claimants say that they were waiting at first for the defendants to arrange with CCR to discharge the 2005 restrictive covenants in relation to the Strip before it was transferred to the claimants. This took some time, and has now occurred. The claimants do not blame the defendants for this part of the delay. But the claimants then say that after February 2012 the defendants caused further delay, by wrongly insisting that the claimants should enter into covenants burdening the Strip similar to the 2002/2003 covenants.[31]The defendants say that they were ready to transfer the Strip to the claimants. However, they say that the claimants would not accept the transfer unless it was free of the 2005 restrictive covenants. (That point appears now to have been resolved, in that the claimants accept that they were not entitled to insist on the removal of them. My own view is that, whatever the strict legal position, it is unlikely that they could ever have been enforced against the claimants. The Strip that the claimants were entitled to have transferred to them after the demolition of the western barn was the same Strip that had been transferred to CCR in 2003, and not the Strip as burdened by the further covenants given on the sale of Bremners to the defendants.) Now, however, the defendants are unwilling to transfer without an assurance that the claimants will abide by the terms of the 2002/2003 covenants in relation to the Strip.[32]In 2010 and onwards there was correspondence between the parties’ lawyers and also the solicitors for CCR about the release of the 2005 estate covenants. Although the Strip had not actually been transferred back, the defendants had it fenced off from the rest of their property, so that in practice it had already become part of the claimants’ land. So far as the defendants were concerned, the claimants had their licence to use it pending the transfer. There was then an unfortunate dispute between the parties as to the quality of the works done by the defendants’ contractor to the wall of the remaining barn which was to become a party wall. This was ultimately resolved by the defendants in June 2011, by their paying the claimants £7500 in settlement of all the issues arising out of that dispute.[33]But there was also another dispute between the parties. This arose because the claimants were keeping pigs on the retained land immediately adjacent to the defendants’ property. By December 2010 the pigs were also on the 4 m strip. The defendants were not prepared to put up with the smell, flies and the noise that came with the presence of the pigs so close to their house, so the first defendant went on to the Strip and herded the pigs off it, closing the end with a temporary barrier. He then confirmed to the claimants that they were not to use the Strip until the transfer was completed. But pigs continued to be kept on the retained land, despite the defendants’ claim that this was a breach of the covenants applicable to the retained land. Eventually, in March 2012 the defendants issued proceedings in the Chelmsford County Court for an injunction, which was granted in May. It appears that the proceedings went against the claimants by default, they not having filed a defence. They applied to set aside the judgment, but that application was dismissed by the district judge, as was an appeal to the circuit judge, who gave a reasoned judgment.[34]Unsurprisingly, the defendants instructed their lawyer to make sure that, once the Strip was re-transferred to the claimants, it was to be subject to the same restrictive covenants as the retained land. Since, however, the claimant’s position was that the Strip should not be subject to either the 2002 – 2003 covenants or the 2005 estate covenants, and they refused any transfer that made it so, there was an impasse. The 2005 estate covenants were however finally released by CCR in 2016.[35]An incident which is said to bear on the potential damages in this case, in considering the reputation of the claimants, is that in September 2013 the claimants pleaded guilty at Chelmsford Magistrates Court to breeding and selling puppy dogs without the appropriate licensing. They were fined some £42,000 and ordered to pay costs.[36]A matter of some importance in this case is what exactly were the claimants’ intentions in relation to the livery business which they now say they have been hindered in setting up because of the failure to transfer the Strip back to them. The burden of proving that the claimants had the intention of creating such a business in 2010 and following lies squarely on the claimants. In my judgment they have not discharged this burden. I say this for the following reasons.[37]First, there are no documents disclosed which support or confirm the intention to set up such a business at any stage before these proceedings were commenced. One might have expected to see, for example, documents relating to planning, health and safety, a business plan, approval by industry bodies, and draft documentation for clients, amongst others. But there is nothing of this kind. Mr Calland submitted that all these absences could be explained, and it may be that some of them can. But it is striking that there is simply nothing.[38]Second, the claimants have over the years since 2010 made various claims for compensation against the defendants in respect of the failure to transfer the Strip back to them, but on a variety of grounds other than that they were going to start a commercial livery business. These include claims for a bare rent per square foot (in emails from 2010 to 2012), lost profits to be made by storage and sale of an animal bedding product called Miscanthus (emails in 2012 and 2013), and other unspecified bases. Mr Calland sought to explain the lack of reference to an intention to start a livery business, but looking at the email correspondence it is plain that the second claimant sought every opportunity to put pressure on and criticise the first defendant, and this would have been another, weighty means of doing so. But he did not do so.[39]Third, although the first claimant in her witness statement says that the claimants “decided that we would start a commercial livery business” ([12]), and that their “intention at that time [was] to use the 4 m strip for commercial stabling” ([10]), I do not accept that this is accurate, and certainly not as to when that intention may have been first formulated. The first claimant said in her oral evidence that she did not deal with decisions as to what happened to the land, as these matters were dealt with by the second claimant. I think it more likely therefore that this aspect of her written evidence was in fact contributed by the second claimant. As I have said, I cannot treat his uncorroborated evidence as truthful. Although the witness statement relies on the provisions in the 2002 – 2003 restrictive covenants which carve out from the scope of the covenants use for “commercial stabling” (something which the second claimant himself alluded to in his oral evidence), I do not consider that this phrase will bear the weight which is given to it. It does not show that the claimants had that intention at the time. It only shows that the draughtsman contemplated the possibility as at some future time. The plan attached to the particulars of claim and stated to have been prepared by the second claimant, is dated to August 2015, and in my judgment that represents the earliest time at which this intention, if ever seriously intended, would have been first formulated.[40]I will come back to the question of potential profits from the commercial livery business later. Submissions The claimants

Submissions

[41]Mr Calland, for the claimants, in relation to the construction of the conveyancing documents, submitted that the 2002 transfer from the claimants to CCR subjected the Strip to the restrictive covenants, as part of the retained land, whereas the 2003 transfer from the claimants to CCR of land including the Strip extinguished the covenants in relation to the land so transferred. He argued that phrase “retained land” in the 2003 transfer could not be construed so as to include land, such as the Strip, which was re-transferred to the claimants subsequently. It was not what it said, and the background did not permit the court to conclude that something must have gone wrong with the language. He referred to Investors Compensation Scheme Ltd and West Bromwich Building Society [1998] 1 WLR 896, at 913D, per Lord Hoffmann. He accepted that it might be “a curiosity” that, if the barn were demolished and the Strip re-transferred, it would not be subject to the same covenants as the retained land adjacent to it. But it was nothing more.[42]He was unable to assist the court in finding a business reason why the parties might have wanted to subject the retained land to one regime, but any adjacent re-transferred land to another. He submitted that to search for a business reason was to ask the wrong question. Instead the court should ask whether the effect of the words actually used persuaded the court that something had gone wrong. But that was not the case here. He also referred to passages in the judgment of Lord Neuberger in Arnold v Brittan [2015] AC 1619, at [18], [20], and in the judgment of Lord Clarke in Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900, at [18], [19].[43]Mr Calland pointed out that the strip was only required to be re-transferred if the barn was demolished. But this was up to the owner of the land concerned. The owner had control. Moreover, although the restrictive covenants did not apply to the strip once re-transferred, the law of nuisance and planning and other regulatory rules did apply. So the result of these rules was to minimise the effect of the plain terms of the transfer.[44]In relation to implied terms, Mr Calland cited from the judgment of Lord Neuberger in Marks & Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd [2016] AC 742, at [16], [18], [19]. He submitted that it was not obvious that the Strip ought to have been covered by the restrictive covenants. It was up to the landowner to decide whether or not demolish the barn. There was no lack of practical coherence in allowing the Strip, on the demolition of the barn, to go back to the claimants without the restrictive covenants. This was a case of a gap in the contract the court could not fill.[45]Mr Calland submitted that the defendants were not entitled to refuse to transfer the Strip on the basis that they were entitled first to have the covenants imposed on the Strip or confirmation that the existing covenants applied. The question of the obligation of the defendants to convey to the claimants was independent of the question whether the land when transferred would be burdened by the covenants. The defendants could have performed the obligation unilaterally, but did not do so. He accepted that, as long as the claimants were declining to accept performance because they wanted the defendants to sort out the question of the 2005 estate contracts with CCR, the claimants could not complain of any breach of the covenant to transfer by the defendants. That covered the period from December 2009 to February 2012. Although CCR did not release the estate covenants until 2016, he submitted that there was never an objection in principle by CCR. It was a question of mechanics. Accordingly, the defendants were in breach of covenant from February 2012, irrespective of the interpretation of the contract or any implied term.[46]Mr Calland submitted that in principle the appropriate remedy for the breach of the covenant to retransfer the land was specific performance. Here there was no “clean hands” or other defence. There was no need for the court to impose terms. Nothing had happened since the contract had been made which justified the court in doing so.[47]The claimants also sought damages for breach of covenant in relation to lost profits from the business of commercial livery which they had intended to launch once they had the Strip back. I have already dealt with the question of the claimants’ intention.[48]Mr Calland argued that the actual lack of planning permission for the livery business in 2012 made no difference, as it was clear from the limited evidence that it was likely that planning permission would have been forthcoming. Nor did the fact that the estate covenants would have bound the Strip until released in 2016 make any difference. There must be great doubt that the court would have injuncted the claimants in the circumstances. It was clear that CCR had allowed the claimants to use the southern part of the Strip for their business purposes. Mr Calland submitted that it would have taken no longer than three months to get the business up and running, so that damages should run from 1 June 2012. As for the costs of the start-up, Mr Calland submitted that the appropriate figures were those in the joint experts’ report, and not those put forward by the claimant’s own expert in oral evidence.[49]In relation to the quantum of profits sought by way of damages, Mr Calland took three specific points. As to occupancy rates, he invited the court to accept those set out in the particulars of claim rather than those set out in Mr Bacon’s expert report (which were higher) or the joint report (which were lower). As to expenses he submitted that the court should adopt the figure put forward by Mr Bacon in his report, rather than that agreed by the experts in their joint report. As to the overheads and utilities, he urged that the figures in the joint report should be discounted to reflect the fact that there was an equine operation already being carried on at the premises.[50]Finally, in relation to remoteness of loss, Mr Calland submitted that the loss sought to be recovered in this case was not too remote. If one looked at the position of the parties in 2005 when the defendants bought the property from CCR, when the contract referred to the obligation to re-transfer the strip to the claimants in accordance with the contract of 2002 and transfer of 2003, the liability under the 2002 and 2003 transaction must have been reasonably contemplated at that time. As to that liability, this property was agricultural, with outbuildings, many horses, and was exactly the kind of property where an agricultural business could be run for profit. The restrictive covenants themselves contemplated commercial stabling. The loss of profit from a commercial livery must have been in the reasonable contemplation of the parties in the event of a failure to retransfer the Strip.

The defendants

[51]Mr Butler, for the defendants, argued that this was, first and foremost, a matter of construction of the phrase “retained land” in the conditional contract made on 7 November 2002 between the claimants and CCR. In the unconditional contract between the same parties made on the same day, it was clear that the Strip was within the definition. Therefore the Strip, together with the rest of the retained land was subject to the covenant in paragraph 1 of the special conditions. But then the same structure was used in the conditional contract, where, on the face of the words used, the Strip was not within the definition of retained land, although there was an additional covenant to re-transfer the Strip to the claimants on certain conditions being satisfied. He argued accordingly that the court should construe the phrase “retained land” in the conditional contract to mean not only the land actually retained by the claimants when selling the land the subject of that contract, but also the land which would be reconveyed in the future if the conditions were satisfied.[52]In making this submission Mr Butler said that the parties to these contracts had either not thought through the consequences of the demolition of the barn, or had not appreciated the need for a change to the definition of “retained land” in using the same structure from the unconditional contract for the conditional. This made it possible to understand why the parties did not make it as clear as they should have done. He pointed out that in the unconditional contract the Strip had not been singled out or exempted from the covenants to be given by the claimants in selling to CCR. All the retained land (including Strip) was to be burdened by those covenants. He also pointed out that it was clear from the evidence of the first claimant that the claimants were aware that the viability of the CCR development depended on the regime applicable to the retained land. If the claimants wanted CCR to buy their excess land, it had to be burdened by the covenants which would protect the land they sold for development from agricultural and other nuisances.[53]In paragraph 9 of the first claimant’s witness statement, she says:
“Prior to selling part of our land to [CCR] in 2002, we kept a mixture of cattle and horses in both the First and Second Barns, but our premises and muck heap were too close to the proposed new boundary with [CCR] for their residential development to be viable. [CCR] formulated a “partnership agreement” which enabled them to purchase the required land and associated building to make their project work and become viable for both them and ourselves…”
[54]The first claimant went on to say:
“10. It was in conjunction with this that we devised a plan to develop the Second Barn for commercial liveries. Our intention at that time to use the 4 m strip for commercial stabling can clearly be seen by the specific provisions of the 2002 contract which stated that ‘nothing herein shall restrict the use of any buildings on the Seller’s Retained Land for … commercial stabling’”
(emphasis supplied).[55]In relation to the intention of both CCR and the claimants, two points are clear from this material. First of all, the land sold to CCR for development should be protected by the covenants burdening the land retained by the claimants. Second, those covenants should indeed govern the Strip as much as the rest of the retained land, for, unless the covenants did burden the Strip, it would be nonsense for the first claimant to seek to rely (as she does in paragraph 10) on the exemption for commercial stabling in relation to it.[56]I was referred to a number of authorities on the modern approach to the interpretation of contractual documents. These included Chitty on Contracts, 32nd edition, paras [13-056]-[13-057], citing Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, HL, Wickman Machine Tools Sales Ltd v LG Schuler AG [1974] AC 235, HL, Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1101, HL, and Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900, SC. A number of other authorities were cited at greater length.[57]Mr Butler went on to argue that, if the court was not with him on the interpretation of “retained land”, the court should nevertheless imply a term to the effect that, if the strip fell to be re-transferred to the claimants under the terms of the conditional contract, on the transfer it should be subject to the same covenants as the retained land in the 2003 transfer. Mr Butler cited to me the leading recent authority on the law relating to implied terms in contracts, namely, Marks & Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd [2016] AC 742.[58]Mr Butler placed some emphasis on the sixth comment of Lord Neuberger in his paragraph 21, dealing with commercial or practical coherence (this is set out later). He said that, in the present case, where the claimants had sold land to CCR for development on the basis that they would not conduct certain activities on the land which they retained, it made no commercial or practical sense to exempt from that prohibition a small strip of land which was closer to the development land than the retained land. Without the implied term, the whole transaction was without commercial or practical coherence.[59]If the court was against him on implied term, Mr Butler argued that, should the court be minded to grant the claimant specific performance, that remedy should been granted on terms that the re-transferred strip should be subject to the same regime as the retained land. He accepted that, on the hypothesis that he was wrong so far, the court had jurisdiction to grant specific performance to the claimants, by virtue of section 1(5) of the Contracts (Rights of Third Parties) Act 1999. He referred me to Snell’s Equity, 33rd edition, paragraph [17–052], and in particular to the discussion of the decision in Price v Strange [1977] 3 All ER 371.[60]So far as the question of damages was concerned, and, as a general point, Mr Butler submitted that the only losses which could be recovered by the claimants were those which were reasonably foreseeable to the defendants, as the (on this hypothesis) contract-breakers, at the time that they made the contract to purchase Bremners.[61]Even if there had been a genuine intention from the beginning to create the new livery business, there was nonetheless a question mark over whether this intention could ever have been validly implemented. Mr Butler said that the claimants have never had planning permission for the change of use to a livery business. They had not even made an application so far. Second, the strip had been subject to the 2005 restrictive covenants (the estate covenants) until 2016, when they were released. But those covenants would have prevented the carrying on of a livery business (indeed, any business) until then. Third, the southern part of the strip, still in the hands of CCR, was transferred to the claimants only in 2016. But it was not possible for the claimants to carry on the proposed business until they had that part of the strip also. Fourthly, in order for the business to have been launched, considerable capital expenditure would have had to be incurred. The cost of this was likely to have been prohibitive.[62]Finally, even if the claimants could establish that they would have launched the new livery business, there was the question of how much profit it would have generated. Mr Butler submitted that the best guide to this was the joint report by the experts. Even if it was not binding, it should carry considerable weight.

Law

[63]The law was not seriously in issue between the parties. I record that the parties were agreed that there was no perpetuity issue involved, by reason of the provision for the re-transfer of the strip to the claimants on an uncertain event (the demolition of the barn) and the possible arising or imposing of restrictive covenants in favour of the defendants on that re-transfer. The main authorities to which I was taken concerned the principles governing the construction of commercial agreements and the implication of terms. Here I set out important extracts from the three main ones.[64]In Arnold v Britton [2015] AC 1619, Lord Neuberger PSC (with whom Lord Sumption, Lord Hughes and Lord Hodge JJSC agreed) said this:
“14. Over the past 45 years, the House of Lords and Supreme Court have discussed the correct approach to be adopted to the interpretation, or construction, of contracts in a number of cases starting with Prenn v Simmonds [1971] 1 WLR 1381 and culminating in Rainy Sky SA v Kookmin Bank [2011] UKSC 50, [2011] 1 WLR 2900. 15. When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to ‘what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean’, to quote Lord Hoffmann in Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, [2009] 1 AC 1101, para 14. And it does so by focussing on the meaning of the relevant words, in this case clause 3(2) of each of the 25 leases, in their documentary, factual and commercial context. That meaning has to be assessed in the light of (i) the natural and ordinary meaning of the clause, (ii) any other relevant provisions of the lease, (iii) the overall purpose of the clause and the lease, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of any party's intentions. In this connection, see Prenn at pp 1384-1386 and Reardon Smith Line Ltd v Yngvar Hansen-Tangen (trading as HE Hansen-Tangen) [1976] 1 WLR 989, 995-997 per Lord Wilberforce, Bank of Credit and Commerce International SA (in liquidation) v Ali [2002] 1 AC 251, para 8, per Lord Bingham, and the survey of more recent authorities in Rainy Sky, per Lord Clarke at paras 21-30. 16. For present purposes, I think it is important to emphasise seven factors. 17. First, the reliance placed in some cases on commercial common sense and surrounding circumstances (eg in Chartbrook, paras 16-26) should not be invoked to undervalue the importance of the language of the provision which is to be construed. The exercise of interpreting a provision involves identifying what the parties meant through the eyes of a reasonable reader, and, save perhaps in a very unusual case, that meaning is most obviously to be gleaned from the language of the provision. Unlike commercial common sense and the surrounding circumstances, the parties have control over the language they use in a contract. And, again save perhaps in a very unusual case, the parties must have been specifically focussing on the issue covered by the provision when agreeing the wording of that provision. 18. Secondly, when it comes to considering the centrally relevant words to be interpreted, I accept that the less clear they are, or, to put it another way, the worse their drafting, the more ready the court can properly be to depart from their natural meaning. That is simply the obverse of the sensible proposition that the clearer the natural meaning the more difficult it is to justify departing from it. However, that does not justify the court embarking on an exercise of searching for, let alone constructing, drafting infelicities in order to facilitate a departure from the natural meaning. If there is a specific error in the drafting, it may often have no relevance to the issue of interpretation which the court has to resolve. 19. The third point I should mention is that commercial common sense is not to be invoked retrospectively. The mere fact that a contractual arrangement, if interpreted according to its natural language, has worked out badly, or even disastrously, for one of the parties is not a reason for departing from the natural language. Commercial common sense is only relevant to the extent of how matters would or could have been perceived by the parties, or by reasonable people in the position of the parties, as at the date that the contract was made. Judicial observations such as those of Lord Reid in Wickman Machine Tools Sales Ltd v L Schuler AG [1974] AC 235, 251 and Lord Diplock in Antaios Cia Naviera SA v Salen Rederierna AB (The Antaios) [1985] AC 191, 201, quoted by Lord Carnwath at para 110, have to be read and applied bearing that important point in mind. 20. Fourthly, while commercial common sense is a very important factor to take into account when interpreting a contract, a court should be very slow to reject the natural meaning of a provision as correct simply because it appears to be a very imprudent term for one of the parties to have agreed, even ignoring the benefit of wisdom of hindsight. The purpose of interpretation is to identify what the parties have agreed, not what the court thinks that they should have agreed. Experience shows that it is by no means unknown for people to enter into arrangements which are ill-advised, even ignoring the benefit of wisdom of hindsight, and it is not the function of a court when interpreting an agreement to relieve a party from the consequences of his imprudence or poor advice. Accordingly, when interpreting a contract a judge should avoid re-writing it in an attempt to assist an unwise party or to penalise an astute party. 21. The fifth point concerns the facts known to the parties. When interpreting a contractual provision, one can only take into account facts or circumstances which existed at the time that the contract was made, and which were known or reasonably available to both parties. Given that a contract is a bilateral, or synallagmatic, arrangement involving both parties, it cannot be right, when interpreting a contractual provision, to take into account a fact or circumstance known only to one of the parties. 22. Sixthly, in some cases, an event subsequently occurs which was plainly not intended or contemplated by the parties, judging from the language of their contract. In such a case, if it is clear what the parties would have intended, the court will give effect to that intention. An example of such a case is Aberdeen City Council v Stewart Milne Group Ltd [2011] UKSC 56, 2012 SCLR 114, where the court concluded that ‘any … approach’ other than that which was adopted ‘would defeat the parties' clear objectives’, but the conclusion was based on what the parties ‘had in mind when they entered into’ the contract (see paras 17 and 22). 23. Seventhly, reference was made in argument to service charge clauses being construed "restrictively". I am unconvinced by the notion that service charge clauses are to be subject to any special rule of interpretation. Even if (which it is unnecessary to decide) a landlord may have simpler remedies than a tenant to enforce service charge provisions, that is not relevant to the issue of how one interprets the contractual machinery for assessing the tenant's contribution. The origin of the adverb was in a judgment of Rix LJ in McHale v Earl Cadogan [2010] EWCA Civ 14, [2010] 1 EGLR 51, para 17. What he was saying, quite correctly, was that the court should not ‘bring within the general words of a service charge clause anything which does not clearly belong there’. However, that does not help resolve the sort of issue of interpretation raised in this case.”
[65]The parties did not refer me to Wood v Capita Insurance Services Limited [2017] UKSC 24, in which the Supreme Court considered whether the court in Arnold v Brittan had altered the law as laid down in Rainy Sky, and concluded that it had not. I need not therefore spend time on that case.[66]In Marks & Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd [2016] AC 742, Lord Neuberger PSC (with whom Lord Clarke, Lord Sumption, and Lord Hodge JJSC agreed): “14. It is rightly accepted on behalf of the claimant that there is no provision in the Lease which expressly obliges the landlords to pay the apportioned sum to the tenant. Accordingly, it follows that in order to succeed the claimant has to establish that such an obligation must be implied into the Lease. 15. As Lady Hale pointed out in Geys v Société Générale [2013] 1 AC 523, para 55, there are two types of contractual implied term. The first, with which this case is concerned, is a term which is implied into a particular contract, in the light of the express terms, commercial common sense, and the facts known to both parties at the time the contract was made. The second type of implied terms arises because, unless such a term is expressly excluded, the law (sometimes by statute, sometimes through the common law) effectively imposes certain terms into certain classes of relationship. 16. There have, of course, been many judicial observations as to the nature of the requirements which have to be satisfied before a term can be implied into a detailed commercial contract. They include three classic statements, which have been frequently quoted in law books and judgments. In The Moorcock (1889) 14 PD 64, 68, Bowen LJ observed that in all the cases where a term had been implied, "it will be found that ... the law is raising an implication from the presumed intention of the parties with the object of giving the transaction such efficacy as both parties must have intended that at all events it should have". In Reigate v Union Manufacturing Co (Ramsbottom) Ltd [1918] 1 KB 592, 605, Scrutton LJ said that "[a] term can only be implied if it is necessary in the business sense to give efficacy to the contract". He added that a term would only be implied if "it is such a term that it can confidently be said that if at the time the contract was being negotiated" the parties had been asked what would happen in a certain event, they would both have replied 'Of course, so and so will happen; we did not trouble to say that; it is too clear'. And in Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206, 227, MacKinnon LJ observed that, ‘[p]rima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying’. Reflecting what Scrutton LJ had said 20 years earlier, MacKinnon LJ also famously added that a term would only be implied ‘if, while the parties were making their bargain, an officious bystander were to suggest some express provision for it in their agreement, they would testily suppress him with a common 'Oh, of course!’. 17. Support for the notion that a term will only be implied if it satisfies the test of business necessity is to be found in a number of observations made in the House of Lords. Notable examples included Lord Pearson (with whom Lord Guest and Lord Diplock agreed) in Trollope & Colls Ltd v North West Metropolitan Regional Hospital Board [1973] 1 WLR 601, 609, and Lord Wilberforce, Lord Cross, Lord Salmon and Lord Edmund-Davies in Liverpool City Council v Irwin [1977] AC 239, 254, 258, 262 and 266 respectively. More recently, the test of "necessary to give business efficacy" to the contract in issue was mentioned by Lady Hale in Geys at para 55 and by Lord Carnwath in Arnold v Britton [2015] 2 WLR 1593, para 112. 18. In the Privy Council case of BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings (1977) 52 ALJR 20, [1977] UKPC 13, 26, Lord Simon (speaking for the majority, which included Viscount Dilhorne and Lord Keith) said that: ‘[F]or a term to be implied, the following conditions (which may overlap) must be satisfied:(1) it must be reasonable and equitable;(2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it;(3) it must be so obvious that 'it goes without saying';(4) it must be capable of clear expression;(5) it must not contradict any express term of the contract.’ 19. In Philips Electronique Grand Public SA v British Sky Broadcasting Ltd [1995] EMLR 472, 481, Sir Thomas Bingham MR set out Lord Simon's formulation, and described it as a summary which ‘distil[led] the essence of much learning on implied terms’ but whose ‘simplicity could be almost misleading’. Sir Thomas then explained that it was ‘difficult to infer with confidence what the parties must have intended when they have entered into a lengthy and carefully-drafted contract but have omitted to make provision for the matter in issue’, because ‘it may well be doubtful whether the omission was the result of the parties' oversight or of their deliberate decision’, or indeed the parties might suspect that ‘they are unlikely to agree on what is to happen in a certain ... eventuality’ and ‘may well choose to leave the matter uncovered in their contract in the hope that the eventuality will not occur’. Sir Thomas went on to say this at p 482: ‘The question of whether a term should be implied, and if so what, almost inevitably arises after a crisis has been reached in the performance of the contract. So the court comes to the task of implication with the benefit of hindsight, and it is tempting for the court then to fashion a term which will reflect the merits of the situation as they then appear. Tempting, but wrong. [He then quoted the observations of Scrutton LJ in Reigate, and continued] [I]t is not enough to show that had the parties foreseen the eventuality which in fact occurred they would have wished to make provision for it, unless it can also be shown either that there was only one contractual solution or that one of several possible solutions would without doubt have been preferred ...’ 20. Sir Thomas's approach in Philips was consistent with his reasoning, as Bingham LJ in the earlier case The APJ Priti [1987] 2 Lloyd's Rep 37, 42, where he rejected the argument that a warranty, to the effect that the port declared was prospectively safe, could be implied into a voyage charter-party. His reasons for rejecting the implication were ‘because the omission of an express warranty may well have been deliberate, because such an implied term is not necessary for the business efficacy of the charter and because such an implied term would at best lie uneasily beside the express terms of the charter’. 21. In my judgment, the judicial observations so far considered represent a clear, consistent and principled approach. It could be dangerous to reformulate the principles, but I would add six comments on the summary given by Lord Simon in BP Refinery as extended by Sir Thomas Bingham in Philips and exemplified in The APJ Priti. First, in Equitable Life Assurance Society v Hyman [2002] 1 AC 408, 459, Lord Steyn rightly observed that the implication of a term was "not critically dependent on proof of an actual intention of the parties" when negotiating the contract. If one approaches the question by reference to what the parties would have agreed, one is not strictly concerned with the hypothetical answer of the actual parties, but with that of notional reasonable people in the position of the parties at the time at which they were contracting. Secondly, a term should not be implied into a detailed commercial contract merely because it appears fair or merely because one considers that the parties would have agreed it if it had been suggested to them. Those are necessary but not sufficient grounds for including a term. However, and thirdly, it is questionable whether Lord Simon's first requirement, reasonableness and equitableness, will usually, if ever, add anything: if a term satisfies the other requirements, it is hard to think that it would not be reasonable and equitable. Fourthly, as Lord Hoffmann I think suggested in Attorney General of Belize v Belize Telecom Ltd [2009] 1 WLR 1988, para 27, although Lord Simon's requirements are otherwise cumulative, I would accept that business necessity and obviousness, his second and third requirements, can be alternatives in the sense that only one of them needs to be satisfied, although I suspect that in practice it would be a rare case where only one of those two requirements would be satisfied. Fifthly, if one approaches the issue by reference to the officious bystander, it is ‘vital to formulate the question to be posed by [him] with the utmost care’, to quote from Lewison, The Interpretation of Contracts 5th ed (2011), para 6.09. Sixthly, necessity for business efficacy involves a value judgment. It is rightly common ground on this appeal that the test is not one of ‘absolute necessity’, not least because the necessity is judged by reference to business efficacy. It may well be that a more helpful way of putting Lord Simon's second requirement is, as suggested by Lord Sumption in argument, that a term can only be implied if, without the term, the contract would lack commercial or practical coherence.” ‘[F]or a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that 'it goes without saying'; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract.’ ‘The question of whether a term should be implied, and if so what, almost inevitably arises after a crisis has been reached in the performance of the contract. So the court comes to the task of implication with the benefit of hindsight, and it is tempting for the court then to fashion a term which will reflect the merits of the situation as they then appear. Tempting, but wrong. [He then quoted the observations of Scrutton LJ in Reigate, and continued] [I]t is not enough to show that had the parties foreseen the eventuality which in fact occurred they would have wished to make provision for it, unless it can also be shown either that there was only one contractual solution or that one of several possible solutions would without doubt have been preferred ...’ Discussion Construction

Discussion

[67]The first issue is whether the restrictive covenants entered into in 2003 apply to the strip once transferred to the claimants. It falls into two parts. The first is the question of construction. This is not a case of a simple error about the meaning of a word, such as transposing ‘red’ for ‘green’, or something like that. The argument is whether the phrase “retained land” can include land which is not at that time retained, but is adjacent to the retained land, and is later transferred by the defendants to the claimants under the transfer provisions to add to the retained land. If the words of the covenant are read literally, then the strip cannot be part of the retained land as defined.[68]The consequences of the literal reading, however, are startling. It means that, although the claimants are restrained from carrying on on the retained land certain activities which would otherwise be a nuisance to residential occupiers such as the defendants, they are not so restrained in relation to a small piece of land (ie the Strip) lying between the retained land and the defendants’ land, for whose benefit the covenants were entered into. That not only makes no sense, but it would also negate the purpose of entering into the covenants in the first place. It does not help the defendants if the claimants are restrained from putting a muckheap or keeping pigs on the retained land, but can do so on the Strip, which is even closer to their property than the retained land. I accept that whether the obligation to transfer the Strip to the claimants ever comes into effect depends on the acts of the defendants themselves, in deciding to demolish the barn. But the conditionality of the obligation is not in my judgment sufficient to justify the startling difference in treatment.[69]In my judgment this is not just a curiosity, as Mr Calland said. Something has gone wrong here with the drafting. It is plain that the intention of the parties was that the land which the claimants retained in the vicinity of the defendants’ land was to be burdened by covenants in order to enhance its value to the defendants’ predecessors in title and to make it viable to undertake the residential development. Construing the phrase “retained land” in the way submitted by the claimants would subvert that intention. Construing the phrase in the way submitted by the defendants would support that intention. In my judgment, therefore, the phrase “retained land” in the 2002 – 2003 restrictive covenants is to be construed as including the land which is subsequently re-transferred to the claimants pursuant to the terms of the transfer itself.

Implied term

[70]If I am wrong about that, and it is not possible to resolve the situation by the process of construction of the phrase “retained land”, then I consider that a term is necessarily to be implied in order to give business efficacy to the transaction. As I have said, the point of the restrictive covenants being entered into by the claimants in relation to any of their land was in order to make the development viable. To my mind, it is inconceivable that the parties realised that the drafting of the restrictive covenants (on the construction preferred by the claimants) would create this situation. It was not a deliberate omission. If the parties had appreciated at the time that the Strip, in the event that it was re-transferred to the claimants, would not be subject to the covenants, then, to put it at its lowest, that would have put the viability of the development at risk. In my judgment, without a term implied to the effect that if land is transferred back to the claimants pursuant to the terms of the transfer that land is to be subject to the same covenants as the retained land, the transaction would lack commercial and practical coherence. Such a term would not be inconsistent with any of the express terms. On the contrary, it would support and give coherence to those express terms. If therefore I was wrong about construction, I would hold that such a term was to be implied into the transfer.

Specific performance

[71]The next issue is whether the court should order specific performance of the covenant for a transfer of the Strip in favour of the claimants. This is a covenant, entered into for valuable consideration, as part of a property development transaction, to transfer a piece of land from one party to another. There has been no suggestion here that damages would be an adequate remedy, and in principle I can see no reason not to grant specific performance of the covenant. There is no defence put forward, such as a lack of clean hands.

Terms?

[72]The fourth issue was whether specific performance should only be ordered on terms of the claimants agreed to use the Strip in accordance with the restrictive covenants. On the basis of my earlier decisions as to construction and implied term, this issue falls away. But I will say that, if I had not so decided, I would not have imposed terms of the kind sought in ordering specific performance. The jurisdiction to impose terms when ordering specific performance is not related to some kind of general appreciation of the overall fairness of the situation. Specific performance is ordered because the parties have contracted that a thing be done. Prima facie, therefore, that thing shall be done. The jurisdiction to order specific performance on terms deals with the case where events since the contract was entered into have changed the position as between the parties, so that ordering the full contract without any alteration would cause hardship or injustice. On the hypothesis that the phrase “retained land” did not include the Strip, and that there was no implied term, the mere fact that that would leave the defendants vulnerable to activities by the claimants on the Strip which would be inconsistent with the restrictive covenants binding the retained land would not be a reason to invoke the jurisdiction to order specific performance on terms. On the contrary, since that would be what the contract had said, that is what should be ordered.

Breach of contract

[73]The fourth issue is whether the defendants are in breach of contract in failing to transfer the Strip at any time since 2010. The claimants make no complaint until February 2012. In my judgment the defendants have no defence to the complaint made here. They should have transferred the Strip to the claimants at least from February 2012. The claimants are therefore entitled at least to nominal damages.

Loss

[74]The last issue is whether the claimants have suffered any recoverable loss as a result of the breach entitling them to substantive damages. Although during the extensive email correspondence between the parties the claimants from time to time sought compensation for the failure to transfer the Strip to them, the basis was either a rental or compensation for not being able to carry out some other business activity on the strip. Although the prayer to the particulars of claim made an alternative claim for mesne profits, the damages claim actually advanced at trial was one for damages for loss of profits flowing from an intended commercial livery business using the Strip. I have held that the claimants have failed to prove that they intended from 2010 onwards to establish such a business. Accordingly the claim for substantive damages fails.[75]If I were wrong about that, an issue of remoteness of loss would arise. The question would be whether it was in the reasonable contemplation of the defendants and CCR in 2005 when the defendants bought Bremners, that if the obligation to re-transfer the Strip to the claimants arose, and the defendants failed to do so, the claimants might suffer a loss because they could not make the anticipated profits from the commercial livery business that they intended to establish.[76]In my judgment, the defendants, in entering into the contract with CCR, must have contemplated the possibility that the obligation to transfer the Strip would arise, and that CCR would have a liability to the claimants under the terms of the transfer of 2003. So the question would be, what was, or may reasonably be supposed to have been, in the contemplation of the parties to the transfer of 2003 at that time? It is not necessary to show contemplation of the precise detail of the loss concerned. It is sufficient to show contemplation of loss of that kind.[77]Although the transfer refers to a carveout from the restrictive covenants affecting the retained land for (amongst other things) commercial stabling, that does not automatically mean that that must have been in the contemplation of the parties as an intended use of the Strip for this purpose at the time. The range of possible uses of land is so wide, and so many regulatory and other hurdles have to be jumped before they can be undertaken, that there must be something particular to show that a party undertaking a liability to transfer land is aware that the proposed recipient intends to use it in any particular way. And this is the more so in a case like the present, when the obligation to transfer would only be triggered by an act of the transferor, and was not certain ever to happen. In my judgment, therefore, the particular loss claimed would be too remote.[78]There are also causation points taken on this part of the case. It was said that the claimants could not have gone ahead with their new business consistently with the 2005 estate covenants until they were released in 2016. I have already said that I do not think they could have been enforced against the claimants, as they were created after the Strip left their ownership, and they were entitled to get it back unencumbered. It was also said that there was no planning permission for the new business. This is true, but the (rather slight) evidence was that it would have been obtained, and on the balance of probabilities I so hold. A point was made that the southern part of the Strip was needed too, and this was in the hands of CCR. But CCR allowed the claimants to use it, and ultimately transferred it to them, so I do not consider that that would have been an obstacle. Lastly it was said that there would have been formidable expenditure needed to put the land into the appropriate condition for a commercial livery. Here the evidence was thin. I am prepared to accept the need, but in the circumstances I consider that if the claimants had wanted to establish the business they could have financed the start-up costs. So none of these points operates as a bar to the claim.[79]In case I am wrong about the earlier part of the case, I go on briefly to consider the question of profits. As I have said, each of the parties’ experts produced an individual expert report, and subsequently, after meeting, they produced a joint report. In argument, each side tried essentially to cherry pick the expert evidence. Each side relied on the joint report when it favoured their side, but on individual reports or oral evidence when it did not. In my judgment, the joint report represented a serious attempt by the experts, pursuant to their duty to the court, to reach a common position. For this purpose there would have been a certain amount of give and take, and the report would be presented as a package rather than as a series of individual items. In these circumstances, I think it would be wrong for me to do other than take the figures put forward by the joint report as representing the best evidence of what profits might have been earned by a commercial livery business established by the claimants. Had the claimants satisfied me that they truly intended to create the commercial livery business, and had the loss not been too remote, I would have awarded as damages the figures shown as “profit before tax” (but of course discounted to remove the tax element) on page 9 of the joint report as from August 2012, allowing six months from February 2012 for the work to be done to put the property into a state fit for the business to be carried on successfully.

Conclusion

[80]In the result, I will(1) grant a declaration as to the true construction of the definition of retained land,(2) order specific performance of the covenant to transfer the Strip, and(3) award nominal damages of £2 to the claimants in respect of the failure to transfer the land in about February 2012.