Civil procedure — Unless order — First defendant ordered to make available a signed contract for sale of property failing which previous order for sale deemed repudiated — First defendant breaching order by mistake — Whether judge at first instance having jurisdiction to grant relief to first defendant under CPR 3.8 — Appeal allowed
The parties to the case were brothers who disputed the title to the family home. In December 2001, after protracted litigation, an order was made by consent that the claimant and the second defendant should sell the property to the first defendant. In April 2002, an order was made imposing conditions upon the way in which the sale was to be conducted, including a condition that the first defendant was to offer a signed contract for exchange by 15 May 2002. In May, a further order was made to the effect that the appropriately signed contract was to be “made available for collection”, at a specific time, from the office reception area of the first defendant’s solicitor. Breach of either order meant that the order for sale could be treated as repudiated.
However, because of a mistake on the part of the first defendant’s solicitor, the second defendant was handed a wrong copy of the contract. Accordingly, the April and May orders were breached and the second defendant applied to have the December order treated as repudiated. In reply, the first defendant applied for relief from the conditions imposed in the April order. The judge held that he had no jurisdiction, under CPR 3.8 and 3.9, to grant to the first defendant the relief that he sought on the basis that, in establishing the positions of the respective parties at that date, he had been determining a question of substantive law, rather than procedure.
The first defendant appealed on the grounds that: (i) he had complied with the May order, in that he had made the signed contract “available for collection”, and that had the second defendant requested the correct contract, it would have been made available to him; (ii) the April order had operated primarily to serve a procedural function, rather than to record substantive rights under a contract, meaning that the judge was able to exercise his discretion under CPR 3.8 to grant the relief sought; or, alternatively, (iii) if the April order had indeed operated to record the litigants’ substantive rights, then, by imposing a condition relating to the date by which the contracts were to be exchanged, the judge had effectively made time of the essence in a private contract agreed between the parties, which was beyond the ambit of his judicial power.
Held: The appeal was allowed.
(1) The order that the contract was to be available for collection was clearly intended to facilitate a process whereby the second defendant could take possession of the contract in the simplest way possible; there was no onus upon him to enquire after the contract. It had not been available in the manner in which the judge had intended by the order, and the first defendant had therefore not complied with its terms.
(2) The determination of the April “unless” order formed part of the mechanics for the pursuit of the sale, leaving open the possibility of further directions and orders being given by the court. Since it was procedural in effect, the judge was able to exercise his discretion under CPR 3.8, and could have awarded relief to the first defendant as he had indicated that he would.
(3) Time was of the essence, not as a component of the contract for sale, but as a necessary component of the court’s power to ensure compliance with the order.
Alistair Wyvill (instructed by Challinors Lyon Clark, of Birmingham) appeared for the first defendant; the claimant and second defendant appeared in person.
Vivienne Lane, barrister
