Philp & Anor v Cook [2017] EWHC 3023 (QB)

Appeal Ref: CL/17/022/EX[2017] EWHC 3023 (QB)IN THE HIGH COURT OF JUSTICEON APPEAL FROM EXETER COUNTY COURTOrder of Recorder Christopher Gardner QCCounty Court Case No: B09EX053Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/11/2017
Before
MRS JUSTICE MAY DBE
Between
ELAINE PHILPAppellants and ClaimantsROBERT IRVINGAppellantLESLEY JOAN COOKRespondent and Defendant
Shaen Catherwood (instructed by Coffin Mew Solicitors) for AppellantsClive Wolman for RespondentHearing Hearing dates: 13 October 2017
Judgment

Introduction

[1]This appeal is against the refusal by the judge, Mr Recorder Gardener QC, to order summary judgment on the Claimants’ claim for an indemnity from the Defendant.[2]The Claimants (“the Sellers”) were the owners and proprietors of a business – Beside the Seaside Ltd (“the Company”). The Sellers were friends with the Defendant (“the Buyer”). In 2012 the Buyer agreed to purchase the Company from the Sellers, under a Share Purchase Agreement drawn up by solicitors dated 5 March 2012 (“the SPA”). Consideration for the sale was £1. At the time of the sale, the Company had a substantial bank loan secured on Company assets and guaranteed by the Sellers. Under the terms of the SPA, the Sellers agreed to continue as guarantors of the bank loan after the sale, in return for an indemnity from the Buyer.[3]Unfortunately, in the years following the sale the business failed and the bank appointed receivers. The Company assets realised less than the outstanding indebtedness owed to the bank, which claimed the shortfall from the Sellers under the guarantee. The Sellers negotiated the sum down to £130,000 and paid this to the bank, after which they sought reimbursement from the Buyer, together with associated costs of £9,414.84, under the indemnity. Proceedings were issued on 24 April 2015.[4]The Buyer lodged a defence and counterclaim alleging various breaches of contractual warranties and misrepresentations. The Sellers issued an application to strike out the defence and counterclaim and/or for summary judgment, relying on the Buyer’s failure to notify of any claim within 2 years of sale, as required under the terms of the SPA.[5]In his judgment dated 14 February 2017, the judge held that(i) the notification provisions contained in the SPA were mandatory and had not been complied with, precluding any counterclaim in respect of losses arising from breach of warranty; however,(ii) that the Buyer could nevertheless rely on those same alleged breaches of warranty as a defence, by way of equitable set-off. The judge also held that the Buyer could not rely on any separate misrepresentation claims. Accordingly, he struck out the counterclaim, but refused summary judgment on the claim.[6]The Sellers now appeal that decision, permission having been granted on the papers. The Buyer sought permission to bring a cross-appeal against the judge’s refusal to permit her to counterclaim for various alleged pre-contractual misrepresentations. Permission for the cross-appeal has been refused.[7]The material provisions of the SPA are as follows: “1. Interpretation … “Warranties”; the representations and warranties in clause 7 and Schedule 3 … 5. Personal Guarantee5.1 At and after Completion, the Sellers shall continue to provide security for the Bank Loan by way of the Personal Guarantee already provided to Lloyds TSB Bank plc until such time as the loan is renewed or repaid by 2 August 2012.5.2 The Sellers shall not call in the Personal Guarantee and will comply with all the terms of the Personal Guarantee so as not to affect a default.5.3 Subject to the Seller’s compliance with clause 5.2, between Completion and such time as the loan is renewed or repaid, the Buyer will Indemnify the Sellers on a pound for pound basis in respect of any obligation that may arise for the Sellers to repay the Bank under the Personal Guarantee. … 7. Warranties7.1 The Buyer is entering into this agreement on the basis of, and in reliance on, the Warranties.7.2 The Seller jointly and severally warrants and represents to the Buyer that each Warranty is true, accurate and not misleading on the date of this agreement.7.3 Without prejudice to the right of the Buyer to claim on any other basis or take advantage of any other remedies available to it, if any Warranty is breached or proves to be untrue or misleading, the Sellers shall pay to the buyer on demand:7.3.1 the amount necessary to put the Company into the position they would have been in if the Warranty had not been breached or had not been untrue or misleading7.3.2 the amount necessary to compensate the Buyer if Warranty 2 (Sale Share constitutes all of the issued shares) is untrue or incorrect in any respect; and7.3.3 all costs and expenses (including, without limitation, damages, claims, demands, proceedings, costs, legal and other professional fees and costs, penalties, expenses and consequential losses whether directly or indirectly arising) incurred by the Buyer or the Company as a result of such breach of 7.3.1 or 7.3.2 or of the Warranty being untrue or misleading. … 8. Limitations on Claims8.1 The definitions and rules of interpretation in this clause apply in this agreement. “Claim”:a claim for breach of any of the Warranties. “Substantiated Claim”: a Claim in respect of which liability is admitted by the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal.8.2 This clause limits the liability of the Sellers in relation to any Claim.8.3 The Sellers are not liable for a Claim unless the Buyer has given the Sellers notice in writing of the Claim, summarising the nature of the Claim as far as it is known to the Buyer and the amount claimed:8.3.1 in the case of a Claim relating to Tax, within the period of 7 years beginning with the Completion Date; and8.3.2 in all other cases, within the period of 2 years beginning with the Completion Date.8.4 The Sellers shall not be liable for a Claim unless the amount of all Substantiated Claims together exceeds £500, in which case the whole amount (and not merely the excess) is recoverable by the Buyer.8.5 Nothing in this clause 8 applies to a Claim that arises or is delayed as a result of dishonesty, fraud, wilful misconduct or wilful concealment by the Sellers, their agents or advisors.” 7.3.1 the amount necessary to put the Company into the position they would have been in if the Warranty had not been breached or had not been untrue or misleading 7.3.2 the amount necessary to compensate the Buyer if Warranty 2 (Sale Share constitutes all of the issued shares) is untrue or incorrect in any respect; and 7.3.3 all costs and expenses (including, without limitation, damages, claims, demands, proceedings, costs, legal and other professional fees and costs, penalties, expenses and consequential losses whether directly or indirectly arising) incurred by the Buyer or the Company as a result of such breach of 7.3.1 or 7.3.2 or of the Warranty being untrue or misleading. “Claim”:a claim for breach of any of the Warranties. “Substantiated Claim”: a Claim in respect of which liability is admitted by the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal. 8.3.1 in the case of a Claim relating to Tax, within the period of 7 years beginning with the Completion Date; and 8.3.2 in all other cases, within the period of 2 years beginning with the Completion Date.[8]There was no cross-appeal against the judge’s decision that the effect of clause 8.3 is to preclude any claim for breach of warranty that has not been notified in correct form within 2 years from of the Completion Date (as defined). The Buyer accepts that she did not give timely notification in proper form. Mr Wolman, representing the Buyer at this appeal, did not seek to challenge that part of the judge’s decision.[9]The single remaining issue arising out of the judge’s decision, therefore, is whether the terms of clause 8 of the SPA permit the Buyer to rely on alleged breaches of warranty as a set-off, reducing the value of the Seller’s claim for reimbursement under the indemnity.

Set-off and the decision in Aries Tanker

[10]In Hanak v. Green [1958] 2 QB 9 at 23 Morris LJ set out the three categories of set-off, of which only the third is relevant here, namely:
“reliance upon equitable set-off and reliance as a matter of defence upon matters of equity which formerly might have called for injunction or prohibition.”
It was this third category of set-off on which the Buyer sought to rely before the judge and which he found provided her with an arguable defence to the claim made by the Sellers.[11]Mr Catherwood, for the Sellers, argued that the effect of the limitation provision in clause 8 of the SPA, as well as precluding any counterclaim for breach of warranty, was also to prevent an equitable set-off which might otherwise arise by virtue of any breach of warranty.[12]He relied for this purpose on the House of Lords decision in Aries Tanker Corporation v. Total Transport Ltd [1977] 1 WLR 185. That case concerned a claim by owners against charterers for an outstanding sum in respect of freight which had been withheld by the charterers owing to short delivery of the cargo. The charterers defended the claim asserting a counterclaim and an entitlement to set-off their loss against the unpaid amount of freight. The owners obtained summary judgment and the House of Lords dismissed the appeal, holding that article III, r.6 of The Hague Rules operated as a time bar with the result that the charterers’ claim had ceased to exist. It could not therefore be introduced for any purpose into legal proceedings, whether as a counterclaim or as a defence by way of set-off.[13]Article III rule 6 of the Hague Rules provides that:
“…In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered”
As the charterers had brought their counterclaim more than one year after delivery it was time-barred under the contract. The issue was whether this contractual time-bar also prevented the charterers from asserting the right to an equitable set-off in defending the owners’ claim against them. Lord Wilberforce found that it did, giving his reasons as follows, at 188C-G:
“My Lords, if this case is to be decided on the terms of the contract it would appear to me to be a comparatively simply one. There is an obligation to pay freight, calculated upon the amount of cargo intaken, which obligation arises upon discharge. There is no dispute as to the amount: it is a liquidated claim. The contract contemplates the possibility of a cross-claim by the charterers in respect of loss or damage to the cargo and it expressly provides by incorporation of article III, r.6 of the Hague Rules that the carrier and the ship shall be discharged unless suit is brought within one year after the date of delivery or the date when delivery should have been made. This amounts to a time bar created by contract. But, and I do not think that sufficient recognition to this has been given in the courts below, it is a time bar of a special kind, viz., one which extinguishes the claim…not one which, as most English statues of limitation (e.g. the Limitation act 1939, the Maritime Conventions Act 1911), and some international conventions (e.g. the Brussels Convention on Collisions 1910, article 7) do, bars the remedy while leaving the claim itself in existence. Therefore, arguments to which much attention and refined discussion has been given, as to whether the charterer’s claim is a defence, or in the nature of a cross-action, or a set-off of one kind or another, however relevant to cases to which the Limitation Act 1939 or similar Acts apply, appear to me, with all respect, to be misplaced. The charterer’s claim, after May 1974 and before the date of the writ, had not merely become unenforceable by action, it had simply ceased to exist, and I fail to understand how a claim which has ceased to exist can be introduced for any purpose into legal proceedings, whether by defence or (if this is different) as a means of reducing the respondents’ claim, or as a set-off, or in any way whatsoever. It is a claim which, after May 1974, had no existence in law, and could have no relevance in proceedings commenced, as these were, in October 1974. I would add, though this is unnecessary since the provision is clear in its terms, that to provide for the discharge of these claims after 12 months meets an obvious commercial need, namely, to allow shipowners, after that period, to clear their books.” “My Lords, if this case is to be decided on the terms of the contract it would appear to me to be a comparatively simply one. There is an obligation to pay freight, calculated upon the amount of cargo intaken, which obligation arises upon discharge. There is no dispute as to the amount: it is a liquidated claim. The contract contemplates the possibility of a cross-claim by the charterers in respect of loss or damage to the cargo and it expressly provides by incorporation of article III, r.6 of the Hague Rules that the carrier and the ship shall be discharged unless suit is brought within one year after the date of delivery or the date when delivery should have been made. This amounts to a time bar created by contract. But, and I do not think that sufficient recognition to this has been given in the courts below, it is a time bar of a special kind, viz., one which extinguishes the claim…not one which, as most English statues of limitation (e.g. the Limitation act 1939, the Maritime Conventions Act 1911), and some international conventions (e.g. the Brussels Convention on Collisions 1910, article 7) do, bars the remedy while leaving the claim itself in existence. Therefore, arguments to which much attention and refined discussion has been given, as to whether the charterer’s claim is a defence, or in the nature of a cross-action, or a set-off of one kind or another, however relevant to cases to which the Limitation Act 1939 or similar Acts apply, appear to me, with all respect, to be misplaced. The charterer’s claim, after May 1974 and before the date of the writ, had not merely become unenforceable by action, it had simply ceased to exist, and I fail to understand how a claim which has ceased to exist can be introduced for any purpose into legal proceedings, whether by defence or (if this is different) as a means of reducing the respondents’ claim, or as a set-off, or in any way whatsoever. It is a claim which, after May 1974, had no existence in law, and could have no relevance in proceedings commenced, as these were, in October 1974. I would add, though this is unnecessary since the provision is clear in its terms, that to provide for the discharge of these claims after 12 months meets an obvious commercial need, namely, to allow shipowners, after that period, to clear their books.”
[14]In Macquarie Internationale Investments Lts v. Glencore UK Ltd [2009] EWHC 2267 (Comm) the claimant purchaser brought a multi-million-pound breach of warranty claim which failed; however in the course of his judgment the trial judge, Andrew Smith J, dealt with an argument by the defendant vendor to be entitled to a credit, in response to which the claimant had asserted an entitlement to off-set a claim for certain transportation costs. The claim for such costs had not been notified in accordance with the provisions of the contract but the claimant maintained that it was still entitled to a set-off.

The judge held as follows (at para 243):

“Macquarie’s claim about transportation charges was not the subject of the requisite notice, and the question is whether, nevertheless, Macquarie can rely upon it by way of a set off against the… credit. They say that they can, citing Derham The Law of Set-Off (3rd edn, 2003) para 4.39 in support of the proposition that – ‘Equitable set-off…is a substantive defence which does not require an order of the court for its enforcement. As a consequence, an equitable set-off may be asserted notwithstanding that the cross-demand upon which it is based is no longer enforceable by action because of the expiration of a limitation period.’ Even assuming this to be so where a period of limitation extinguishes the remedy to enforce a right, the argument is not available to Macquarie in this case because paragraph 2.2 [of the contract] makes it clear that, if notice of a claim is not given, not only the remedy but the liability giving rise to a claim is extinguished”
The relevant notification provisions in Macquarie were different from those in the SPA, being in two parts: para 2.1 of the contract in that case provided that “no claim shall be brought” unless notice was given within a year. Para. 2.2 went on to provide that:
“The liability of the Sellers in respect of a claim notified in accordance with Paragraph 2.1 shall absolutely terminate…if legal proceedings in respect of that claim containing full particulars of it shall not have been properly issued and validly served on the relevant Sellers within nine (9) months of the date of service of that notice.”
[15]Mr Catherwood’s submission, based on the Aries Tanker and Macquarie decisions, was that liability in respect of any claim for breach of warranty under the SPA ceased to exist (or never came into existence) unless notified in proper form within 2 years of the sale, as provided for by clause 8.3 of the SPA.[16]Mr Wolman argued that the decision in the Aries Tanker case has to be understood in the context of the special rules applicable to freight cases. He submitted that clause 8.3 of the SPA, unlike Art III, r. 6 of the Hague Rules, acts only to bar the judicial remedy and not to extinguish the underlying right generating the remedy.[17]Mr Wolman relied in support of this submission on the following matters:(i) The heading applied to clause 8, viz. “Limitations on claims”;(ii) The wording of clause 8.4: “the Sellers shall not be liable for a claim unless the amount of all Substantiated Claims together exceeds £500...”, where a “Substantiated Claim” is one in respect of which liability has been admitted or on which judgment has been obtained.(iii) His interpretation of “claim” in clause 8, Mr Wolman suggested, was supported by the dicta of Lord Denning in The Brede [1974] QB 233, a case that he said had not been overruled by the House of Lords in Aries Tanker.

Discussion

[18]As to the first of Mr Wolman’s points, Clause 1.2 of the SPA specifically provides that “Clause and Schedule headings do not affect the interpretation of this agreement”. The heading to clause 8 cannot, therefore, avail Mr Wolman’s argument.[19]Mr Wolman next relied on the definition of “Substantiated Claim” in Clause 8.1 and its use in clause 8.4. If I followed Mr Wolman’s argument correctly, it was that in this context a “Claim” is to be understood as the assertion of a cause of action in judicial proceedings, and that this was open to interpretation. He argued that the assertion of a cause of action should be understood on the basis that a cause of action, if upheld by the court, merges into the judgment or order granting a remedy. He referred me to the judgment of Parke B in King v. Hoare [1844] 13 M & W 494 at 504, approved by the Supreme Court in Virgin Atlantic Airways v. Zodiac Seats UK [2013] UKSC 46 at para 17. Mr Wolman submitted that the wording “shall not be liable” in clause 8.4 refers to preventing the conversion/merger of the cause of action into the judgment or order granting the remedy, rather than the extinguishing of the cause of action itself. He pointed out that if the intention had been to extinguish the underlying right then very clear words should have been used. He compared the wording of Art III r.6 of the Hague Rules (“shall be discharged from all liability…”) with the wording in clause 8.3 (“are not liable for a claim...”).[20]Mr Wolman emphasised that the equivalent provision in Marquarie [2010] 1 BCLC 238 was constructed differently to clause 8 of the SPA. He suggested that the first part of the relevant provision in Macquarie, dealing with notification, only operated as a limitation clause. The second part operated to extinguish the right but in the case of clause 8.3 of the SPA, Mr Wolman pointed out, there was no second stage.[21]Mr Wolman submitted that the default position at common law is that parties should be entitled to assert a set-off. He relied upon the dissenting judgment of Lord Denning MR in The Brede at 249C, approved and applied by the Court of Appeal in the case of Filross (1999) 31 H.L.R. 456.[22]Mr Catherwood rejected the notion that clause 8.3 was in any way ambiguous. He submitted that the word “Claim” is defined at clause 8.1 as “a claim for breach of any of the Warranties”; it is not defined by reference to any court procedure. Use of the word “Claim” in other parts of clause 8 – to be notified before proceedings are commenced (clause 8.3), capable of being admitted prior to any proceedings being commenced (clause 8.1), or as arising as a result of dishonesty (clause 8.5) - indicated that a “Claim” for the purposes of the SPA existed independently of any court proceeding. Moreover use of the word “claim”, he suggested, was consistent with the parties having intended the contractual limitations to apply as much to equitable set-off as to a free-standing claim. He referred me in this context to the case of Fearns (trading as Autopaint international) v. Anglo-Dutch Paint & Chemical Co Ltd and others [2011] 1 WLR 366where George Leggatt QC (sitting as a deputy High Court Judge), dealing with equitable set-off, reviewed a number of lines of authority and concluded as follows:
“..where A has a claim against B which A is entitled in equity to set off against a claim made by B against A, neither the existence nor the exercise by A of this right of equitable set-off has the effect of extinguishing or reducing either claim”
(emphasis added)[23]Mr Catherwood submitted that the assertion of liability which forms the basis of the equitable set-off was a “claim” in the same way as the Sellers’ claim against which it operated as a defence.[24]Mr Catherwood accepted that the notification provision in Marquarie was in different and more explicit in its terms. He submitted, however that the substantial effect of the provision in Marquarie was the same as that of clause 8.3, namely to extinguish the underlying liability upon a failure to give timely notification.[25]Finally, Mr Wolman relied on the wording in clause 7.3, suggesting that the initial phrase “[w]ithout prejudice to the right of the Buyer to claim on any other basis or to take advantage of any other remedies available to it…” indicated that the Buyer retained for itself a right to other forms of remedy such as set-off, which as he pointed out is sometimes referred to as a “self-help remedy”. Mr Catherwood responded arguing that clause 7.3 was dealing with claims and remedies in respect of any breach of warranty and was not apt to open up the field to a claim by way of set-off.

Conclusion

[26]I do not find myself much assisted by the wording of notification provisions in other contracts. Clause 8.3 must be construed, in accordance with ordinary principles of contractual construction, in its own context. If on its proper construction the phrase “The Sellers are not liable for a Claim…” in clause 8.3 is apt to refer to the underlying liability, and not just to the monetary remedy, then Aries Tanker applies to exclude any equitable set-off. Whilst the principle was enunciated by Lord Wilberforce in the context of a freight case, it is evident that the principle was of general application, and not specific to such a case.[27]That part of Lord Denning’s judgment in The Brede to the effect that a set-off falling within the third of Morris LJ’s categories would not be subject to a time-bar (at pp.247F-249A) did not form part of the reasoning in the judgments of Cairns or Roskill LJJ in the same case. Moreover the decision of the House of Lords in Aries Tanker contradicts that part of Lord Denning’s reasoning. The case of Filross, in which the Court of Appeal approved and applied Lord Denning’s reasoning, involved a statutory limitation time bar. Lord Wilberforce in Aries Tanker specifically distinguished statutory time-bars from contractual ones (see the passage set out above).The present case, unlike Filross, does not concern a statutory limitation: clause 8.3 of the SPA is a contractual limitation provision.[28]The learned recorder took the view that clause 8.3 could not be construed to preclude a set off; his reasoning was that the Buyer would otherwise have been required to bring protective proceedings “which might have the effect of provoking a claim by the Claimants that might otherwise not be brought” (see paragraph 39 of the judgment). But this is not the effect of clause 8.3, which required the seller only to have notified of a claim, not actually to have commenced proceedings, within 2 years of the sale.[29]I find myself arriving at the opposite conclusion to the learned recorder. I entirely agree with his conclusions up to this point in his excellent judgment, but find myself differing from him in the final part of the argument. In my view the effect of clause 8.3 on its proper construction is plain: the words “..are not liable for a Claim unless..” in clause 8.3 operate to extinguish the underlying claim, not merely to bar the remedy whilst leaving the claim intact. As Mr Catherwood pointed out, even if one understands “Claim” in clause 8.3 to refer to the assertion of an entitlement as Mr Wolman submitted, the barring of that assertion applies equally to a set-off as to a claim.[30]Clause 7.3 does not influence the construction in the way Mr Wolman suggested, as in my view the clause is dealing only with claims and remedies in respect of any breach of warranty. The middle part of the clause “…if any Warranty is breached or proves to be untrue or misleading...” in my view makes this quite plain.[31]I do not accept that there is any ambiguity in the wording of clause 8.3, or that the circumstances of the case require the contract to be read in a particular way, or that there is a need, given the presence of the guarantee and indemnity clauses, to construe the provision in the Buyer’s favour. Both sides were represented by solicitors and must be taken to have understood the implications of all the provisions, including the notification provision. There seems to me to be no especial hardship in requiring the Buyer, who takes the benefit of the warranty provisions, also to be bound by the notification requirements.

Cited in 1 later judgment