Wimpole Theatre (a firm) v JJ Goodman Lte [2012] EWHC 1600 (QB)

“Thank you for your email and offer to CVTF500 members – it is very kind of you and much appreciated. And indeed congratulations for such an achievement! Re: the press night, I will leave you to deal with John who runs the venue but I also thought I should introduce you to JJ Goodman, copied here. JJ is a member of CVTF500, an amazing mixologist and the owner of the London Cocktail Club, the bar alongside the Arts Theatre. JJ is outside London setting up a restaurant with Raymond Blanc, as they won The Restaurant programme last year but I am sure he can direct you to his manager. JJ – Please meet Brian and Louis, who have their production starting at the Arts Theatre very soon. I thought I should make intros as you may be interested getting involved and promote your venue…. I hope you are really well my dear and to see you around for London Cocktail Week.”

“Yes subject confirmation of legals we „JJ Goodman Ltd.‟ take over the Arts Theatre on Monday. We would like to retain this deal and will furnish you with all billing details. I would urge you to chase immediately for outstanding amounts from Brasrat.”

“7. Pursuant to the Agreement, the Claimant procured the introduction of the theatrical production „Woody Sez‟, which subsequently ran at the Theatre in 2011 while the Theatre was under the Defendant‟s management. 8. The documentation concerning the theatrical production „Woody Sez‟ was completed and signed in December 2010 between Hartshorn-Hook Productions Ltd and the Defendant and was held by Southcombe & Hayley solicitors before being released to the parties at their agreement on 11 February 2011.”

“…. No amount is due from the Defendant to the Claimant under the Agreement because: (1) The Claimant did not procure the introduction of Woody Sez to the Defendant and so did not on its own case earn the £30,000 provided for at clause 2 of the Agreement (see paragraph 9 above); and in any event because: (2) The Defendant is entitled to and does set off its claim for breach of the Agreement against the principal sum and interest claimed so as to extinguish the claim entirely (see below); alternatively (3) The Agreement is void (see below).” (1) The Claimant did not procure the introduction of Woody Sez to the Defendant and so did not on its own case earn the £30,000 provided for at clause 2 of the Agreement (see paragraph 9 above); and in any event because: (2) The Defendant is entitled to and does set off its claim for breach of the Agreement against the principal sum and interest claimed so as to extinguish the claim entirely (see below); alternatively (3) The Agreement is void (see below).”

“Paragraph 7 is denied. The introduction to the Defendant of Hartshorn-Hook Productions Ltd. (“HHP”), the producer of Woody Sez – occurred in September 2010, not as a result of any efforts or actions on the part of the Claimant, but by reason of the Defendant‟s and HHP‟s membership of the Courvoisier Future 500 network. HHP indicated to the Defendant at an early stage (and prior to the making of the Agreement) that, were the Defendant to take over the management of the Theatre, HHP would be happy for the Defendant to present the scheduled run of Woody Sez.”

“The Defendant contends that paragraph 2 of the Agreement is not to be construed in isolation. Construing the Agreement as a whole, the Defendant contends that the Claimant‟s consideration provided for under the Agreement, and the parties‟ understanding of the same, was: i. The Handover Provision; and ii. The Claimant‟s agreement to: • procure the introduction to the Defendant of Woody Sez; and • to use its reasonable endeavours to ensure a smooth transition to the Defendant of the 4 shows referred to at paragraph 3 of the Agreement.” i. The Handover Provision; and ii. The Claimant‟s agreement to: • procure the introduction to the Defendant of Woody Sez; and • to use its reasonable endeavours to ensure a smooth transition to the Defendant of the 4 shows referred to at paragraph 3 of the Agreement.”

“Clause 5 [of the Wimpole Agreement], which provides that, subject to agreement of the relevant documentation, “completion should take place on or before 31st October”

“(1) The Judge will determine: (i) All issues arising on the Claim (ii) All issues arising on the Counterclaim concerned with the written agreement made on 26 October 2010, namely: (a) Its construction (b) Whether there was also an oral collateral agreement (c) Whether it should be rectified (d) Whether it was void. (2) The Judge will not determine any issues arising on the Counterclaim concerned with: (i) Breach of the agreement (ii) Any damages payable to the Defendant, if there has been a breach of the agreement.” (i) All issues arising on the Claim (ii) All issues arising on the Counterclaim concerned with the written agreement made on 26 October 2010, namely: (a) Its construction (b) Whether there was also an oral collateral agreement (c) Whether it should be rectified (d) Whether it was void. (i) Breach of the agreement (ii) Any damages payable to the Defendant, if there has been a breach of the agreement.”

“if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion which flouts business commonsense, it must be made to yield to business commonsense.” “if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion which flouts business commonsense, it must be made to yield to business commonsense.”

“41. The conclusion I would reach is that there is no clearly established case for departing from the exclusionary rule. The rule may well mean, as Lord Nicholls has argued, that parties are sometimes held bound by a contract in terms which, upon a full investigation of the course of negotiations, a reasonable observer would not have taken them to have intended. But a system which sometimes allows this to happen may be justified in the more general interest of economy and predictability in obtaining advice and adjudicating disputes. It is, after all, usually possible to avoid surprises by carefully reading the documents before signing them and there are the safety nets of rectification and estoppel by convention. Your Lordships do not have the material on which to form a view. It is possible that empirical study (for example, by the Law Commission) may show that the alleged disadvantages of admissibility are not in practice very significant or that they are outweighed by the advantages of doing more precise justice in exceptional cases or falling into line with international conventions. But the determination of where the balance of advantage lies is not in my opinion suitable for judicial decision. Your Lordships are being asked to depart from a rule which has been in existence for many years and several times affirmed by the House. There is power to do so under the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234. But that power was intended, as Lord Reid said in R v. National Insurance Comrs, Ex p Hudson [1972] AC 944, 966, to be applied only in a small number of cases in which previous decisions of the House were “thought to be impeding the proper development of the law or to have led to results which were unjust or contrary to public policy”

“But with regard to actings of the parties between the date of the original contract and the date of Mr. Underwood‟s appointment I did not understand it to be argued that they were sufficient to establish any new contract, and I think they clearly were not. As I understood him, counsel sought to use those actings to show that there was an agreement when the original contract was made that the proper law of that contract was to be the law of England. I must say that I had thought that it is now well settled that it is not legitimate to use as an aid in the construction of the contract anything which the parties said or did after it was made. Otherwise one might have the result that a contract meant one thing the day it was signed, but by reason of subsequent events meant something different a month or a year later.”

“21. The language used by the parties will often have more than one potential meaning. I would accept the submission made on behalf of the appellants that the exercise of construction is essentially one unitary exercise in which the court must consider the language used and ascertain what a reasonable person, that is a person who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract, would have understood the parties to have meant. In doing so, the court must have regard to all the relevant surrounding circumstances. If there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other. 22. This conclusion appears to me to be supported by Lord Reid‟s approach in Wickman Machine Tool Sales Ltd. v. L. Schuler AG [1974] AC 235 quoted by Sir Simon Tuckey and set out above. I am of course aware that, in considering statements of general principle in a particular case, the court must have regard to the fact that the precise formulation of the proposition may be affected by the facts of the case. Nevertheless, there is a consistent body of opinion, largely collated by the buyers in an appendix to their case, which supports the approach of the judge and Sir Simon Tuckey. 23. Where the parties have used unambiguous language, the court must apply it. This can be seen from the decision of the Court of Appeal in Co-operative Wholesale Society Ltd. v. National Westminster Bank plc [1995] 1 EGLR 97. The court was considering the true construction of rent review clauses in a number of different cases. The underlying result which the landlords sought in each case was the same. The court regarded it as a most improbable commercial result. Where the result, though improbable, flowed from the unambiguous language of the clause, the landlords succeeded, whereas where it did not, they failed. The court held that ordinary principles of construction applied to rent review clauses and applied the principles in Antaios Cia Naviera SA v. Salen Rederierna AB (The Antaios) [1985] AC 191. After quoting the passage from the speech of Lord Diplock cited above, Hoffmann LJ said, at p. 99: “This robust declaration does not, however, mean that one can rewrite the language which the parties have used in order to make the contract conform to business common sense. But language is a very flexible instrument and, if it is capable of more than one construction, one chooses that which seems most likely to give effect to the commercial purpose of the agreement.”” “This robust declaration does not, however, mean that one can rewrite the language which the parties have used in order to make the contract conform to business common sense. But language is a very flexible instrument and, if it is capable of more than one construction, one chooses that which seems most likely to give effect to the commercial purpose of the agreement.””

“Now, an implied warranty, or, as it is called, a covenant in law, as distinguished from an express contract or express warranty, really is in all cases founded upon the presumed intention of the parties, and upon reason. The implication which the law draws from what must obviously have been the intention of the parties, the law draws with the object of giving efficacy to the transaction and preventing such a failure of consideration as cannot have been within the contemplation of either side; and I believe if one were to take all the cases, and there are many, of implied warranties or covenants in law, it will be found that in all of them the law is raising an implication from the presumed intention of the parties with the object of giving to the transaction such efficacy as both parties must have been intended that at all events it should have.”

“Faced with the conflict of judicial opinion in this case, I prefer the views of Donaldson J and Cairns LJ as being the more orthodox and in conformity with the basic principle that the court does not make a contract for the parties. The court will not even improve the contract which the parties have made for themselves, however desirable the improvement might be. The court‟s function is to interpret and apply the contract which the parties have made for themselves. If the express terms are perfectly clear and free from ambiguity, there is no choice to be made between different possible meanings: the clear terms must be applied even if the court thinks some other terms would have been more suitable. An unexpressed term can be implied if and only if the court finds that the parties must have intended that term to form part of their contract: it is not enough for the court to find that such a term would have been adopted by the parties as reasonable men if it had been suggested to them: it must have been a term that went without saying, a term necessary to give business efficacy to the contract, a term which, though tacit, formed part of the contract which the parties made for themselves.”

“21. It follows that in every case in which it is said that some provision ought to be implied in an instrument, the question for the court is whether such a provision would spell out in express terms what the instrument, read against the relevant background, would reasonably be understood to mean. It will be noticed from Lord Pearson‟s speech that this question can be reformulated in various ways which a court may find helpful in providing an answer – the implied term must “go without saying”, it must be “necessary to give business efficacy to the contract” and so on – but these are not in the Board‟s opinion to be treated as different or additional tests. There is only one question: is that what the instrument, read as a whole against the relevant background, would reasonably be understood to mean? 22. There are dangers in treating these alternative formulations of the question as if they had a life of their own. Take, for example, the question of whether the implied term is “necessary to give business efficacy” to the contract. That formulation serves to underline two important points. The first, conveyed by the use of the word “business”, is that in considering what the instrument would have meant to a reasonable person who had knowledge of the relevant background, one assumes the notional reader will take into account the practical consequences of deciding that it means one thing or the other. In the case of an instrument such as a commercial contract, he will consider whether a different construction would frustrate the apparent business purpose of the parties. That was the basis upon which Equitable Life Assurance Society v. Hyman [2002] 1 AC 408 was decided. The second, conveyed by the use of the word “necessary”, is that it is not enough for a court to consider that the implied term expresses what it would have been reasonable for the parties to agree to. It must be satisfied that it is what the contract actually means. 23. The danger lies, however, in detaching the phrase “necessary to give business efficacy” from the basic process of construction of the instrument. It is frequently the case that a contract may work perfectly well in the sense that both parties can perform their express obligations, but the consequences would contradict what a reasonable person would understand the contract to mean. Lord Steyn made this point in the Equitable Life case, at p. 459, when he said that in that case an implication was necessary “to give effect to the reasonable expectations of the parties”.”

“It is evident, both on principle and on authority, that there may be a contract the consideration for which is the making of some other contract. “If you will make such and such a contract I will give you one hundred pounds,” is in every sense of the word a complete legal contract. It is collateral to the main contract, but each has an independent existence, and they do not differ in respect of their possessing to the full the character and status of a contract. But such collateral contracts must from their very nature be rare. The effect of a collateral contract such as that which I have instanced would be to increase the consideration of the main contract by 100l., and the more natural and usual way of carrying this out would be by so modifying the main contract and not by executing a concurrent and collateral contract. Such collateral contracts, the sole effect of which is to vary or add to the terms of the principal contract, are therefore viewed with suspicion by the law. They must be proved strictly. Not only the terms of such contracts but the existence of an animus contrahendi on the part of all the parties to them must be clearly shown. Any laxity on these points would enable parties to escape from the full performance of the obligations of contracts unquestionably entered into by them and more especially would have the effect of lessening the authority of written contracts by making it possible to vary them by suggesting the existence of verbal collateral agreements relating to the same subject-matter.”

“The law relating to collateral contracts is well-established but in connection with sales or leases of land needs to be applied with caution if not the suspicion to which Lord Moulton referred in Heilbut Symons v. Buckleton [1913] AC 30 at 47.”

“Before I consider the facts and come to a conclusion whether the defendants are right in their contention, it is necessary to say a few words upon the principles which must guide me in this matter. I am clear that I must follow the decision of Clauson J, as he then was, in Shipley Urban District Council v. Bradford Corpn, the point of which is that, in order that this court may exercise its jurisdiction to rectify a written instrument, it is not necessary to find a concluded and binding contract between the parties antecedent to the agreement which it is sought to rectify. The judge held, and I respectfully concur with his reasoning and his conclusion, that it is sufficient to find a common continuing intention in regard to a particular provision or aspect of the agreement. If one finds that, in regard to a particular point, the parties were in agreement up to the moment when they executed their formal instrument, and the formal instrument does not conform with that common agreement, then this court has jurisdiction to rectify, although it may be that there was, until the formal instrument was executed, no concluded and binding contract between the parties. That is what the judge decided, and, as I say, with his reasoning I wholly concur, and I can add nothing to his authority in the matter, except that I would say that, if it were not so, it would be a strange thing, for the result would be that two parties binding themselves by mistake to which each had equally contributed, by an instrument which did not express their real intention, would yet be bound by it. That is a state of affairs which I hold is not the law, and, until a higher court tells me that it is the law, I shall continue to exercise the jurisdiction which Clauson J, as I think rightly, held might be entertained by this court. Secondly, I want to say this upon the principle of the jurisdiction. It is a jurisdiction which is to be exercised only upon convincing proof that the concluded instrument does not represent the common intention of the parties. That is particularly the case where one finds prolonged negotiations between the parties eventually assuming the shape of a formal instrument in which they have been advised by their respective skilled legal advisers. The assumption is very strong in such a case that the instrument does represent their real intention, and it must be only upon proof which Lord Eldon, I think, in a somewhat picturesque phrase described as “irrefragable” that the court can act. I would rather, I think, say that the court can only act if it is satisfied beyond all reasonable doubt that the instrument does not represent their common intention, and is further satisfied as to what their common intention was. For let it be clear that it is not sufficient to show that the written instrument does not represent their common intention unless positively also one can show what their common intention was. It is in the light of those principles that I must examine the facts of this somewhat complicated case. ”

“In our judgment the law is as expounded by Simonds J in Crane’s case with the qualification that some outward expression of accord is required. We do not wish to attempt to state in any different phrases that with which we entirely agree, except to say that it is in our view better to use only the phrase “convincing proof” without echoing an old-fashioned word such as “irrefragable” and without importing from the criminal law the phrase “beyond all reasonable doubt”

“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event is more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A step-father is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation. Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J expressed this neatly in In re Dellow’s Will Trusts [1964] 1 WLR 451, 455: “The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it”.”

“Where only one party is mistaken, a species of equitable estoppel precludes a person who knows of the other party‟s mistake from resisting rectification: Snell, Equity, 31st ed 2005, para 14-15(2). Slade LJ described it as a “drastic remedy” in The Nai Genova [1984] Lloyd‟s Rep 353 at 365. In George Wimpey UK Ltd. v. VIC Construction Ltd. [2005] EWCA Civ 77, [2005] BLR 135 Peter Gibson LJ referred to the “exceptional jurisdiction to rectify for unilateral mistake” (para 51). The requisite knowledge is actual, including for that purpose “blind eye” knowledge: Commissioner for the New Towns v. Cooper (Great Britain) Ltd. [1995] Ch 259; George Wimpey UK Ltd. v. VIC Construction Ltd. [2005] BLR 135, per Blackburne J at [79] (close to dishonesty).”

“There may of course be cases where the surrounding circumstances enable a party to say that words cannot be taken at what might otherwise be their face value, and that they bear, objectively, some other meaning. In the light of the dicta in the Centrovincial case and The Antclizo, I would further proceed on the basis that Vickers would not be bound if they could show that OTAL, or those acting for OTAL, either knew or ought reasonably to have known that there had been a mistake by Vickers or those acting for Vickers. I put the onus that way round, as it appears so in the authorities, but it would not make any difference in this case if it were the other way round. The authorities contain no support for any more widely expressed principle qualifying the binding nature of an apparent agreement. Raffles v. Wichelhaus (1864) 2 H & C 906 to which Miss Heilbron referred as a suggested analogy in support of a wider principle deals with a situation where, objectively, there is no contract at all – because the offer and acceptance, although verbally identical, could objectively refer to different ships of the same name. Here there is objectively agreement on a particular sum. The question is what is capable of displacing that apparent agreement. The answer on the authorities is a mistake by one party of which the other knew or ought reasonably to have known. I accept that this is capable of including circumstances in which a person refrains from or simply fails to make enquiries for which the situation reasonably calls and which would have led to the discovery of the mistake. But there would have, at least, to be some real reason to suppose the existence of a mistake before it could be incumbent on one party or solicitor in the course of negotiations to question whether another party or solicitor meant what he or she said.”

“I attach agreements for Woody Sez, Blues Brothers and a deal memo setting out the terms for Guide to Sexual Misery (full document not to hand) as requested. Sorry for the delay since yesterday, but I had taken it upon myself to apply some pressure on the Woody people to improve the deposit position they had suggested. It has paid off in that they have now said that if the deposit is reduced from £71,000 (all in escrow) to £50,000 they would agree that none of it is held in escrow but could be released immediately upon your signing a new agreement with them to replace the one we have. That would mean your liability to us would be dealt with immediately and you would receive £20,000 immediately, instead of waiting until next year. I have incorporated this in the revised draft contract attached, so if you are happy with that we can proceed.”

“They [Mr. Hayley and Mr. Drew] also gave us the “Woody Sez” agreement to sign. Mr. Hayley suggested that I put my signature on each page, to be sure that nothing could be changed at a later date, which I found a reassuring comment. I did this, and then signed the Draft Memorandum in its amended, final form (“the Agreement”, page 140) [which was the Wimpole Agreement]. We left the offices with the very clear understanding that we were getting the theatre at the end of the week.”

“Wimpole will use its reasonable endeavours to ensure a smooth transition of the following shows/events currently booked into the theatre: a. Blues Brothers to 7th November 2010”

“65. The meeting at S&H‟s offices began at about 16.00. In attendance were me, my husband Mike, JJ [Mr. Goodman], Mr. Drew and Mr. Hayley. 66. The conversation was friendly, although Mr. Drew did not say much. Mr. Hayley asked JJ lots of questions about his new business venture with Raymond Blanc and wished him well. We had tea and eventually got down to business. 67. I asked Mr. Hayley for the answers to my questions in the email I had sent him that morning. He apologised for not having all of the documentation with him, but he assured me that, if I contacted Susie Heath of EOP, she would send it over to me the next day. He said that Susie was aware that we would be taking over that weekend and had been told to help all she could. We were concerned that Ms Buchanan was going to cause problems, but Mr. Hayley and Mr. Drew assured us that they were the ones in control and to “leave Bronia to them” (or words to that effect). 68. When it came to the agreed hand-over date, Mr. Hayley assured us that they would be out of the Theatre by that Friday, 29 October, and that there would be absolutely no difficulty in them doing so – all they would be taking was a few computers. It would be a smooth transition, and we would take over the control of the Theatre without fuss or disruption. We said that we had contacted Groupline and White Light, and that both companies were happy to start invoicing us from Monday 1 November. 69. Mr. Drew, however, tried to persuade us again to delay the hand-over for 2 weeks – so that they would have the benefit of the final week of the “Blues Brothers” run and the remaining “Guide to Sexual Misery” shows (the last of which was scheduled for 13 November). He said that it would make it “cleaner” in terms of apportioning box office monies between Brasrat and JJG. 70. However, we pointed out that, since we were going to be extending the “Blues Brothers” run, there would not be a “clean” box office break, even if the hand-over took place in mid-November. We made it quite clear that we were not prepared to delay the hand-over, and that we had to have the last week of the scheduled “Blues Brothers” run (and the “Guide to Sexual Misery” dates). Mr. Drew went quiet again and was clearly not happy, but he can have been in no doubt whatsoever as to what our position was. 71. The 15 October Draft was produced, and Mr. Hayley and/or Mr. Drew proposed some changes to some of the wording. I cannot now recall precisely what changes were proposed, but there was no suggestion that any of the proposed changes was intended to have the effect of altering the agreed hand-over date. Had there been any such suggestion, I would – as Mr. Hayley and Mr. Drew knew full well – have refused outright. 72. Mr. Hayley and/or Mr. Drew left the room, in order to have a clean copy of the Draft Memorandum produced for signature. When they returned, they told us that they had decided to take out the reference to Brasrat (in clause 2), and to replace it with a reference to “Woody Sez”

“4. Present at the meeting were Clive Hayley and Terence Drew of Southcombe & Hayley. My understand [sic] at the time was that the 2 of them were also, in effect, Brasrat Limited (“Brasrat”), the company which was then the leaseholder of the Theatre. As for “Wimpole Theatre”, I had no real understanding of what this was, save that it was some other business interest of Mr. Hayley and Mr. Drew, and one which had some kind of interest in or involvement with the Theatre. 5. Present at the meeting on our side were me, Lizzie, and Lizzie‟s son (my step-son), John Goodman, who was at the time the sole director of JJG. 6. By the time the meeting took place, I was aware that a deal had already been agreed in principle between Lizzie and Mr. Hayley. Provided that Brasrat was out of the Theatre by the end of that week (31 October), and there was a smooth transfer of the Theatre and its existing bookings to JJG, JJG would give up £30,000 of the rent which it would otherwise have stood to receive from a show called “Woody Sez”, which was booked to run at the Theatre in early 2011. I was aware that Southcombe & Hayley was holding a deposit against this rent, and the £30,000 was going to come out of that deposit. 7. Mr. Hayley knew that our figures for agreeing to lose £30,000 in “Woody Sez” rent were based on us getting the Theatre, and its existing shows, from 31 October. He also knew that our calculations were based on an intention to extend the run of “Blues Brothers” which was due to come to an end shortly and that, in order to be able to do that, the hand-over had to happen very soon. 8. The deal did not change during the course of the meeting, and Mr. Hayley and Mr. Drew cannot have believed that it did. Indeed, Mr. Drew tried to persuade us to change the hand-over date, to move it back until the scheduled “Blues Brothers” run came to an end, but we refused. 9. Mr. Hayley and Mr. Drew produced an amended version of the one-page agreement and presented it to us for signature. It still referred to the right date (31 October), it referred to there being a “smooth transition” and, at our request, the figure of £6,000 had been inserted into the clause dealing with the repayment of rent. We trusted Mr. Hayley and Mr. Drew to have presented us with a document which properly reflected what had been agreed, and it was on that basis that Lizzie proceeded to sign it.”

“I look forward to meeting with you at your office at 4.00pm today. Before we meet is it possible to arrange the following. 1. Revised Memorandum of Agreement. 2. Please confirm the following a) contracts drawn by you for The Arts showing after 31st October can be transferred to JJG b) £6,000 + VAT is returned to JJG for rent paid for November before 1st November c) £20,000 + VAT is paid to JJG for the payment you received from Woody Sez production on completion of contract. d) details of suppliers for utilities, telephones, insurance, web page, all hired equipment fire, lighting, technical, box office e) Aid in transfer of licences. f) Ensure coop-oration [sic] and as little disruption as possible to the theatre during hand over. g) Vacant Possession 31st October, 2010.” a) contracts drawn by you for The Arts showing after 31st October can be transferred to JJG b) £6,000 + VAT is returned to JJG for rent paid for November before 1st November c) £20,000 + VAT is paid to JJG for the payment you received from Woody Sez production on completion of contract. d) details of suppliers for utilities, telephones, insurance, web page, all hired equipment fire, lighting, technical, box office e) Aid in transfer of licences. f) Ensure coop-oration [sic] and as little disruption as possible to the theatre during hand over. g) Vacant Possession 31st October, 2010.”

“1. This Agreement is made the 8th October 2010 between Wimpole Theatre, a partnership between Clive Hayley and Terence Drew (Wimpole) (1) and the London Cocktail Club Ltd (LCCL) (2) 2. In consideration of Wimpole procuring the surrender of Brasrat‟s lease of the Arts Theatre as soon as full documentation can be drafted and signed LCCL agree that they will pay Wimpole the sum of thirty thousand pounds (30,000) on or before the 5th April 2011. 3. It is further agreed that an escrow agreement relating to the Woodie Sez deposit shall be entered into between LCCL and Southcombe & Hayley solicitors to facilitate the assignment of the contract for Woodie Sez that is due to go into the Arts from 17th January to 4 th April 2011. 4. It is further agreed that Wimpole will use its reasonable endeavours to ensure a smooth transition of the following shows/events currently booked into the theatre: a. Blues Brothers 11 th October to 7November 2010 b. Day Hire for Giddy Ox 1 stNovember c. Day Hire for Convilles 8 th November d. Guide to Sexual Misery currently running every Friday and 13 th November e. Woodie Sez 17 th January to 4 th April 5. It is intended that the documentation required to fully document the above be prepared as soon as possible and no later than the end of the week commencing Monday 11 th 6. Subject to the agreement of all documentation, completion should take place as soon as possible thereafter and no later than the 30th October.”

“Brasrat Ltd. will repay Rent paid to them by JJGL from completion date to 31st [sic] November 2010.”

“It is agreed that an apportionment of rent paid in advance by JJG to the end of November will be calculated to the date of completion of the surrender of the existing lease and that sum will be set off against the monies due to JJG under clause 2 above.”

“The Claimant also failed to use any or any reasonable endeavours to ensure the smooth transition of any of the shows and events referred to at clause 3 of the Agreement. The Claimant made no attempt to ensure that the Defendant was in possession of the Theatre such as to take the benefit of any of these shows or events and its interference with equipment and other facilities at the Theatre would have made any “smooth transition” of the shows and events impossible in any case.”