“Ground 2 of the appeal is adjourned on the following basis: (1) The proceedings are remitted to the Commercial Court. (2) The Commercial Court shall: (a) decide whether the Respondent [Iconic] is now entitled to contend that the correct test is whether it is ready and willing to perform its obligations under the Put Option Agreement solely at the date of the order for specific performance (per Snell’s Equity (35th edition) at [17-038]); (b) if so, decide whether, as a matter of law, that is the correct test, or if not, what is the correct test for determining whether the Respondent is/was ready and willing to perform its obligations under the Put Option Agreement; and (c) determine the further conduct of the proceedings in the light of (a) and (b) above. (3) The Appellant is at liberty to restore its appeal in relation to Ground 2 (if relevant) following the determination by the Commercial Court of the issues set out above.”
“If (which is denied) Iconic was not ready and willing to perform its obligations under Clause 3.2 on26 July 2024 , it is averred that Iconic is nevertheless entitled to specific performance. The Court has an equitable discretion to grant an order for specific performance even if the claimant was not ready and willing to perform at the contractual completion date, provided that the defendant had already repudiated the contract by that date (such that it would have been futile for the claimant to perform). Mr Textor repudiated the Put Option Agreement on15 July 2024 by informing Mr Knaster that he was neither ready nor willing to pay the Aggregate Option Price (as HHJ Pelling KC found in his judgment), and it would have been futile for Iconic to perform on26 July 2024 ”
“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. 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.”
“From these authorities it is clear that for the court to uphold a plea of abuse of process as a bar to a claim or a defence it must be satisfied that the party in question is misusing or abusing the process of the court by oppressing the other party by repeated challenges relating to the same subject matter. It is not sufficient to establish abuse of process for a party to show that a challenge could have been raised in a prior litigation or at an earlier stage in the same proceedings. It must be shown both that the challenge should have been raised on that earlier occasion and that the later raising of the challenge is abusive.”
“In my view, the judge applied the rule too rigidly. He failed to adopt the “broad merits-based judgment” to which Lord Bingham refers, and failed to ask the question whether in all the circumstances the claimant was misusing or abusing the process of the court by seeking to raise the issue as to the basis on which the£100,000 was paid on the footing that there was a partnership. It is not enough simply to say that the issue could have been raised at the earlier stage, and that there are no special circumstances which justify permitting the issue (exceptionally) to be raised at the later stage.”
“…the Court of Appeal expressly recognised that Henderson abuse could apply to later stages of the same litigation, although they expressed the view that such a situation was “unusual”
“… I accept that, where certain issues are dealt with by the court in advance of others, genuine mistakes may occur, where it would be unfair and unreasonable to prevent one party from raising an issue on the merits which, for whatever reason, has not been the subject of a clear determination before. Tannu and Aldi Stores are good recent examples of such a case. But at the same time, the court should be astute to prevent a claiming party from putting its case one way, thereby causing the other side to incur considerable expense, only for the claiming party to lose and then come up with a different way of putting the same case, so as to begin the process all over again . … I have no doubt that, on the basis of the facts as I have summarised them in Section D above, it would be wrong and unfair to allow the claimant in these proceedings to go back to square one and attempt to run a case which could and should have been raised years ago.”
“A claimant who seeks [specific performance] must show (i) that he has performed, or has been ready and willing to perform, all terms and conditions (apart from trivial ones) then to be performed by him; (ii) that he is ready and willing to perform all terms and conditions thereafter to be performed by him; and (iii) that he has not acted in contravention of the essential terms of the contract. But where the defendant has repudiated and the claimant has elected to keep the contract alive and enforce it, it is not incumbent on a claimant to show that he was in a position to complete (e.g. if he is the purchaser, by having the price available) during the period from repudiation by the defendant to the date of the order for specific performance, as long as he was in such a position at the date of the order.”
“A party which has previously been in default of its obligations under the contract may enforce it, even if the default involved an essential term, provided that the other party did not exercise its right to terminate the contract while the contract subsisted and that the party previously in default is now ready and willing to complete it.”
“Whether or not the parties’ mutual obligations under a contract are strictly interdependent at law, it is clear that a claimant will not get an order of specific performance unless he alleges and is prepared to prove that he is himself ready and willing to perform his own essential obligations. But the word “essential” is important: as Barwick CJ said in the High Court of Australia: “The question as to whether or not the plaintiff has been and is ready and willing to perform the contract is one of substance not to be resolved in any technical or narrow sense. It is important to bear in mind what is the substantial thing for which the parties contract and what on the part of the plaintiff in a suit for specific performance are his essential obligations.”
“A claimant must, in general, plead and prove that they are, and at all material times, (namely the time when the notice is served, the time when it expires, if applicable and the time when the court’s order is made) have been ready, willing and able to perform their obligations. But this is not an absolute rule. For example, there is no need to prove ability to complete, once the contract has been repudiated and the repudiation is still running, provided that such ability could be proven to exist at the time when the order was made.”
“A decree of specific performance is of course a discretionary remedy and the question for your Lordships is whether the Court of Appeal was entitled to set aside the exercise of the judge's discretion. There are well-established principles which govern the exercise of the discretion but these, like all equitable principles, are flexible and adaptable to achieve the ends of equity, which is, as Lord Selborne L.C. once remarked, to ‘do more perfect and complete justice’ than would be the result of leaving the parties to their remedies at common law: Wilson v. Northampton and Banbury Junction Railway Co. (1874) L.R. 9 Ch.App. 279, 284. Much therefore depends upon the facts of the particular case …”
“… the question is whether the obligation which the plaintiff has failed to perform is sufficiently important (having regard to its connection with the obligation which the plaintiff is seeking to enforce) to make it inequitable to grant specific performance.”
“We are in complete agreement with the last sentence quoted: it seems to us to embody both good law and good sense. We turn, therefore, to consider the authorities to see if they require us to reach a conclusion contrary to what we believe equity in its broadest sense requires in the present case.”
“… it [is] unnecessary to decide the point on which Mr. Justice Kay’s decision mainly proceeded, but it must not be considered that I agree with him. The vendor up to the time when the purchaser refused to go on, had been ready and willing to do all that was required to be done by him up to that time, and the proceedings had not reached the stage when it was necessary for him to be furnished with a license to assign. It seems to me, therefore, that if there had been no other objection to the Plaintiff’s title he would have been entitled to relief, but I do not decide the point.”
“The contract was entered into on the 5th of December, 1881, and on the 1st of April, 1882, the Defendant refused to go on with the bargain. The question is whether he was justified in doing so. He relies on two grounds, and first on the want of a license to assign. Without giving a concluded opinion on the point, I may state my present view to be that this defence would not avail him, the time not having arrived when a license was wanted, as the title had not been accepted nor a conveyance tendered.”
“No case has been cited to the Court where it has been decided that where the plaintiff put a wrong interpretation upon the contract he thereby forfeits his claim to specific performance of the contract as rightly interpreted, if he is willing so to modify it. There are, however, a number of cases which point in the opposite direction … The question is one of degree and discretion.”
“… though the plaintiff has unfortunately put a construction on the contract which was a mistaken one and has failed, I cannot see that he has thereby disentitled himself to enforce the contract on that construction of it which the Court has determined to be the right one. No doubt he has insisted on his mistaken view down to and at the hearing; but that was the first time at which the true construction of the contract was or could be ascertained by the Court in these proceedings. And when there is, as here, a perfectly bona fide dispute as to the interpretation of conditions of sale by auction, it is I think an unduly strict view to take of the position of a vendor, that he cannot seek to enforce his view of the written contract without losing his right of enforcing it at all, should his interpretation prove to be incorrect.”
“It is necessary that the plaintiff in an action for specific performance should allege in his pleading and prove at the hearing his readiness and willingness to perform the contract on his part: and readiness involves an ability to perform it … And he must show too that he has performed or been ready and willing to perform the terms of the contract on his part: see Fry on Specific Performance, 6th ed (1921) p 435. But if, notwithstanding earlier breaches, the contract remained on foot, then it seems to me a plaintiff is not necessarily barred from having a decree for specific performance if those breaches, not having resulted in a valid rescission, can be made good by the payment of interest.”
“… the short answer to the point is Walton J’s answer in Davis v Spalding. Mr Grant does not have to show himself ready, willing and able to complete while Mr Cigman is refusing to perform his obligations. He does have to prove that readiness, willingness and ability at the date of the order for specific performance only.”
“In the present case, the defendants, through their solicitors, Freeths, had made it clear to the claimant that they were not going to complete their option contract: see their letters of 24 September and10 November 2020 . In such circumstances, I hold that it is sufficient for the claimant to demonstrate that it is ready, willing and able to complete the option contract at the date of the order for specific performance. Indeed, in my judgment that is so in any case where completion is delayed because of genuine dispute over the meaning and effect of an option contract which has the effect of preventing completion taking place before the resolution of that dispute.”