‘Subject to contract’ condition — Case illustrating the effectiveness of this condition or qualification even where it leads to an unmeritorious result which has to be accepted with regret — Appeal from decision of Kilner Brown J — Appellant (plaintiff in court below) had sought specific performance of an alleged agreement to grant him a leasehold term of 99 years of a flat — In order to succeed he had to be able to put in evidence an alleged firm oral agreement arrived at in the course of a meeting — Before this meeting there had been prolonged correspondence some of which had been expressly stated to be subject to contract, but others had not — No reference made at the meeting to the discussions then taking place being subject to contract — Held by Court of Appeal, affirming decision of Kilner Brown J, that the subject to contract qualification covered the discussions at the meeting, so that the oral agreement then reached could not be the foundation for an action for specific performance — Negotiations had been interrupted but not abandoned — ‘Subject to contract’ protection can be removed only if both parties expressly agree that it should be expunged or if such an agreement must necessarily be implied — Appeal dismissed with expressions of regret in view of unmeritorious conduct of respondents.
This was an
appeal by the plaintiff, Ronald Cohen, from a decision of Kilner Brown J
refusing an order of specific performance sought by the plaintiff against
Nessdale Ltd, the present respondents, of an alleged agreement to grant the
appellant a lease for 99 years of Flat 2 at 11 Rutland Gate, London SW7. The
appellant was the statutory tenant of this flat.
R Bailey-King
(instructed by Coode, Kingdon, Somper & Co) appeared on behalf of the
appellant; David Neuberger (instructed by Harold Stern & Co) represented
the respondents.
Giving
judgment, CUMMING-BRUCE LJ said: This appeal raises first, and, on the view
which I have formed, raises only, one short point. The facts have been set out
in the judgment of the learned judge below, which judgment has been reported in
[1981] 3 All ER 118, and in the circumstances it will not be necessary for me
to elaborate very much upon the facts which I am content to take from the
findings of the learned judge.
The background
of the matter is that at all material times the plaintiff below — the appellant
in this court — was statutory tenant of a flat in a building called 11 Rutland
Gate, holding from the defendants below — the respondents in this court — a
company called Nessdale Ltd. The history of the tenancy prior to the year 1976
included a protracted argument in which the tenant was alleging that the
landlords had failed to observe their covenants for repair, which had led him
to withhold his rent. The history includes the fact that the landlords, for
practical purposes, consisted of two persons: someone called Sadleir and a
person called Henderson, who had been charged by the company with
responsibility for negotiations with tenants or prospective purchasers as to
the terms of their leases or purchases.
The well-known
firm of Goddard & Smith had instructions from the landlords to deal with
tenants or prospective purchasers of leases on three matters, and three matters
only: collection of rents; business arising out of the obligations of the
landlords to observe their covenants; and thirdly, in connection with the
negotiation of long leases, such work as was requisite for the purpose of
ascertaining the detail of apportionment of service charges between the landlords
on the one hand and their several tenants on the other.
The first and,
on my view of the appeal, the only question that arises on this appeal is
whether the learned judge was right in holding that the discussion and
agreement entered into and arrived at between Nessdale Ltd on the one hand and
Mr Cohen, the tenant, on the other hand, on November 18 1977, was, by necessary
implication, proceeding under the same umbrella as that which had covered
earlier negotiations in the year, whereby those negotiations were all subject
to contract.
For the
purpose of deciding whether the judge was right in his conclusion about that,
it is necessary to look in a little detail at the history between March 15 1977
and May 10 1977, which represented the first stage of negotiations between the
parties connected either with the negotiations of a long lease or,
alternatively, terms for surrender by Mr Cohen of his interest in the premises.
I say that was the first stage in the negotiations, but it is right to refer to
the fact, though it is not of importance, that in 1971 there had been earlier
discussions which had come to nothing.
So one comes
to consider that history which conveniently can begin with a letter from Mr
Henderson, on behalf of the landlords, to Mr Cohen, their tenant, dated March
15. I read it:
I refer to
our meeting last year and wonder whether you have further considered purchasing
a leasehold interest of the above. We are prepared to sell a term of 99 years
from 25/12/1968 for the sum of £20,000, subject to contract. The ground rent
will be £50 pa for the first 33 years doubling every 33 years thereafter. There
will be a service charge of £60 pa payable on account being 25% of the
landlords’ outgoings. Should this not be of interest to you we are prepared to
pay you a sum of monies for the surrender of your tenancy providing this takes
place in the relatively near future. I look forward to hearing from you in due
course.
So there is a
proposal in which the interest proposed to be transferred is a term of 99
years. The consideration is offered at £20,000 together with the stated ground
rent and the proposed service charge, which, as the tenant later observed,
called for clarification, because it is offered as ‘£60 pa payable on account
being 25% of the landlords’ outgoings.’
Therefore it did require some clarification in order to see the exact
obligation that was being undertaken over the years.
On May 2 the
tenant replied, thanking Mr Henderson for his letter. He said:
I have
considered what you say and would point out the following; I assume that the
price you are quoting for approximately 90 years takes into account that I am a
sitting tenant, but nevertheless I am advised that
be prepared to consider, subject to contract, a figure of £15,000 on the same
conditions subject to clarification of the Service Charge which I don’t, at the
moment, quite follow. Alternatively, bearing in mind my own circumstances and
what this would entail for me to vacate the property, I would be prepared to
consider subject to agreement a payment of £12,000 to surrender my position
here.
So there, at
the beginning of that correspondence, you have both the landlords’
representative, Mr Henderson, and the tenant both negotiating, expressly
stating, that they are so doing, subject to contract.
Those
negotiations continued. The landlords, on May 3, in a letter with a label at
the bottom ‘SUBJECT TO CONTRACT AND WITHOUT PREJUDICE’, say:
Having given
the matter some consideration, we would be prepared to proceed at a compromise
figure of £18,500, subject to contract.
On May 5 Mr
Cohen came back, in a letter addressed to Mr Glover of the landlords, saying:
I don’t
really feel that £18,500 is a compromise and therefore I think that the best
course would be to proceed along the second alternative suggested in your
letter of March 15 on which I have made an offer.
On the next
day Mr Glover answered, and said:
If you do not
feel that £18,500 . . . is a compromise figure, I do not think that it is very
likely that you will consider the maximum which we are able to pay by way of
compensation for vacant possession to be a compromise, as we certainly cannot
reach anywhere near your figure. I would, however, advise you that if you were
to give vacant possession by the end of June, we would be able to pay to you
compensation of £5,000 or if you were to complete the purchase of the long
lease by that date, we would be prepared to make a small further reduction to
£17,500, subject to contract.
That letter
has ‘SUBJECT TO CONTRACT AND WITHOUT PREJUDICE’ written at the bottom.
The next
material matter is that Mr Cohen received notice of an application by the
landlords to the rent registration office for an increase in rent. That he felt
was an action really quite inconsistent with the kind of negotiations that were
proceeding. He was evidently very angry. It may be — I do not know — that the
explanation was that Goddard & Smith, who were dealing with the rent
matter, were a right hand not aware of what the left hand was doing. However,
Mr Cohen wrote to Mr Glover on May 10:
Thank you for
your letter of May 6. In the meantime I have received notice from the rent
registration office upon your application for an increase in the rent. In these
circumstances obviously there is nothing further we can do in the matter.
That is the
letter which was relied upon below, and in this court, as bringing those
negotiations subject to contract to a complete end, thus finally ending and
interrupting that negotiation. It is against that background that the
submission on behalf of the appellant is that what happened afterwards in
November was not in any sense a continuation of negotiations, but that it was
the opening of a new chapter which was not affected by what had gone before.
It is
necessary to note the further activities of the tenant in his correspondence
with Goddard & Smith. Goddard & Smith were, of course, dealing with the
application to the rent officer for an increase in the statutory rent, and they
were also responsible for dealing on behalf of the landlords with the
controversy about the landlords’ alleged failure to comply with, and observe,
their covenants to repair. So it was that, on July 7, Mr Cohen wrote to the
senior partner in Goddard & Smith, and in that letter, in the second
paragraph, he said:
I would
venture to put you in the picture about this flat . . . I am holding over as a
sitting tenant from an original lease which expired in 1969 and recently in May
Messrs Nessdale, the landlords, wrote to me and asked me if I would like a new
99 year lease or, alternatively, would I like to be bought out by surrendering
my interest. We started some correspondence on the matter which did not
finalise because in the middle of the correspondence I had notice from the fair
rent tribunal that an application had been made to increase the rent. I was
quite flabbergasted to find myself firstly in negotiation with my landlord at
his instigation and then he applies to have the rent increased, whereas one
would have expected that since he was in negotiation with me he would have
written about this and suggested something instead of carrying out the
procedure in this extraordinary manner. As a result of this I terminated the
negotiations.
Then he deals
with his troubles about the failure of the landlord to comply with his
covenants and he goes on to say this:
I am trying
to be reasonable about this matter and this is why I am writing to you because
I am quite prepared now to have my premises done up completely if we can only
get some sense out of Messrs Nessdale and conclude a lease at a proper price
and not £20,000 being asked for a sitting tenant.
He says that
the rent people have suggested that ‘the correct price ought to be
£10,000.’ He then says:
Bearing in
mind all the above . . . matters perhaps you could try and see whether we can
do something constructive on the lines suggested . . . Thanking you very much
for your assistance, I await hearing from you.
Mr Cohen was there
hoping to use the good offices of Goddard & Smith, who, I may say, come
very well out of this history, in order to get the landlords to take what Mr
Cohen thought to be a more realistic view of the appropriate consideration for
the negotiation of a long lease. Goddard & Smith acknowledged his letter.
Then, on
August 2, Mr Cohen wrote another letter to Goddard & Smith, in which he
said this:
Now I have to
do all these repairs and, as I have said before, I am quite prepared to have
the porch roof repaired whilst my builders are here but it is going to be very
expensive if I have to have them in twice in relation to having the flat done
up. I must now ask the landlords to deal with this matter properly and I repeat
that I am willing to pay £10,000 for the lease, which is the correct price, and
then to have the flat done up and all the repairs carried out. Can I now please
have some action on this so that we can stop all this going backwards and
forwards which is getting no one anywhere.
On August 22
Mr Cohen, again to Goddard & Smith, mentions the problem of the porch and
says:
May I remind
you that your clients came to me to either take a lease or to give up my
tenancy and, at the same time, went to the fair rents tribunal to increase the
rent . . . I want to get the builders in here in one go and I want to get this
matter of the lease resolved, together with the question of the rent.
Goddard &
Smith, on August 25, answered and said this:
We are
forwarding a copy of your letter to our clients with whom you have been
negotiating the terms for a new lease, in order that they may deal direct. We
will [get on with] remedial works . . . to the porch and balcony.
Goddard &
Smith did that in their letter to Mr Sadleir of Nessdale, enclosing a copy of
Mr Cohen’s letter.
The next
letter to which I may refer is a letter from Goddard & Smith to Mr Cohen
dated October 25 1977. It refers to dealings with contractors and refers to a
letter of October 12 from Mr Cohen addressed to Mr Ongley of Goddard &
Smith. That letter is not in the bundle and we do not know what it said. I only
refer to it because the last paragraph of that letter says this:
With regard
to the other matters raised in your letter, we would respectfully point out
that these are matters which are subject to discussion between yourself and our
clients, and we are therefore unable to comment.
Thus, the
stance of Goddard & Smith throughout, which was perfectly correct, was that
they were not going to come in to the negotiations for a new lease, which was
why they had sent Mr Cohen’s earlier letter about the new lease and resumption,
or beginning, of negotiations straight on to Nessdale, Mr Sadleir.
So one comes
to the crucial period of the history when at last Nessdale Ltd respond to the
approaches of Mr Cohen made to them through the intermediary, Goddard &
Smith. On November 2 1977 Mr Henderson wrote to Mr Cohen:
You may
recall our earlier meeting concerning our proposals for the flat you occupy.
Namely the possibility of you surrendering your tenancy in favour of a capital
sum, or in purchasing a leasehold interest. I would have thought it to be in
your interest to take advantage of your position as a sitting tenant rather
than continue occupying on a somewhat negative basis as at present. If you
would care to communicate with me at the above I will be happy to discuss the
matter further. Accordingly I look forward to hearing from you in due course.
That led to a
vital meeting between Mr Henderson, for the landlords, and Mr Cohen to discuss
the question of a new lease or surrender. About that meeting, the learned judge
has made findings of fact. I quote from the judgment:
There is a
conflict of evidence as to what was said at that meeting and I accept the
plaintiff’s evidence and reject that given by Mr Henderson. The plaintiff’s
evidence was to the effect that there was a general discussion trying to get
the whole thing settled up. He acknowledged that rent for the
this rent because the landlords had defaulted on their obligations and that the
negotiations for sale of the lease had broken down because the landlords were
wholly unreasonable. Therefore taking all these matters into consideration a
figure of £17,000 by way of premium was agreed. It was further agreed that the
maintenance charge should be £100 a year being 25 per cent of the outgoings and
that ground rent should be £50 a year payable as from January 1 next. The lease
and contract were to be drawn up and completed by the end of the year. At the
end of the discussion Mr Henderson said that he was so glad that everything was
agreed and they shook hands on it. Nothing was said at any time about the
decisions reached being subject to contract. I find as a fact that that is what
happened. I do not believe Mr Henderson when he gave evidence to the effect
that he made it plain that the whole discussion was subject to contract in the
accepted sense. The contemporary and subsequent documents indicate that he
regarded the agreement as final and binding and he gave a very significant
answer when giving evidence as to his understanding of the words ‘subject to
contract’. He said and I quote from the transcript as well as relying on my
note ‘I understand them to mean subject to the terms being reduced in an
agreement which would be finalised by the solicitors or in writing at a later
date.
The judge goes
on:
In the
afternoon of the same day, November 18, Mr Henderson sent a letter in the
following terms. ‘Further to our discussion, I have pleasure in confirming the
sale of the above to you for the sum of £17,000, subject to contract. This is
for a term of 99 years from December 25 1968 with a service charge of £100 per
annum payable on account being 25% of the landlords’ outgoings. The ground rent
will be £50 per annum for the first 33 years doubling every 33 thereafter. I
have requested our solicitors Messrs Harold Stern & Co of 6 Holborn Viaduct
. . . to submit a draft contract to Messrs Kood Kingdom Sompen (sic) attention
Mr J M Davies for their approval.’
In fact, as
the judge finds:
Mr Henderson
wrote, not on that day, but his letter was dated November 21. This began with
the significant words ‘I have pleasure in advising that I have sold the above
flat to the tenant, Mr R Cohen subject to contract.’
In the letter
of November 18 in which Mr Henderson began with the words, ‘Further to our
discussion, I have pleasure in confirming the sale of the above to you for the
sum of £17,000 subject to contract’, he added at the bottom of the letter in
capital letters the ditty ‘SUBJECT TO CONTRACT & WITHOUT PREJUDICE.’
The judge, in
his summary of findings, namely, no 11 in his judgment, summarised it in this
way:
Later the
same day, November 18, Mr Henderson confirmed the agreement in writing but
introduced the words subject to contract in that confirmatory letter.
So the facts
are that in the conversation between Mr Henderson for the landlords and Mr
Cohen, on his own behalf as tenant, there was no express mention that the
discussion or agreement was subject to contract. It is against that background
that this court has to consider the correctness or otherwise of the judge’s
finding that, although there was no express reference to that agreement being
subject to contract, there was an implication to that effect because that
discussion was still under the umbrella, subject to contract, which had clearly
been erected over the negotiations which had ended in May when Mr Cohen had
called the negotiations off.
I do not think,
for the purposes of the limited question with which I am dealing, that it is
necessary for me to repeat or to recite any part of the judge’s findings on the
history after the letter of November 18, save to say that the effect of those
findings was that Mr Sadleir, with great acuteness and indeed cunning,
succeeded in keeping Mr Cohen under the illusion that Nessdale Ltd were
intending to honour the agreement of November 18 entered into between Mr
Henderson and Mr Cohen, and, by a clever strategem of carefully avoiding
answering Mr Cohen’s letters, they left him expecting and assuming, quite
wrongly, that Mr Sadleir’s standards of commercial conduct were such that,
though it was taking a long time, the agreement was clearly going to be
honoured, though there seemed to be some delay about completing the
documentation.
The judge’s
findings make it plain that any reliance of Mr Cohen upon Mr Sadleir’s
standards of commercial behaviour was wholly mistaken, as it is perfectly clear
from the histories recited by the judge that this was a careful strategem
executed, as I say, with great shrewdness, but Mr Cohen took far too long to
awake to the vendor’s methods of doing property business. In the event, finally
on September 2, when I suppose Mr Sadleir decided that for his own reasons it
was time to come out into the open, he called the whole deal off, and said that
Nessdale Ltd were not bound by any contract and therefore there was no point in
proceeding any further. Not surprisingly, Mr Cohen and his solicitors went into
action in order to see whether the law could give them a remedy in order to
surmount this manifest history of trickery.
As it is a
matter of real property law, in which the law has, necessarily, to be settled
and has reached a high degree of certainty, Mr Cohen was, of course, in very
considerable difficulty. Below and in this court, every argument that can
possibly be put forward on Mr Cohen’s behalf has been put forward. For myself,
I take the same view as the learned judge: if one could help Mr Cohen by
finding a legal remedy in order to frustrate the artifices of Mr Sadleir
clearly one would be eager to do so, but real property law has to attain a
certain certainty and the question is, whether, on the facts that I have
summarised, it can be shown that the judge was wrong in the implication that he
found.
The starting
point, as Mr Bailey-King recognises, is really the statement of the law recited
in this court in the case of Sherbrooke v Dipple (1981) 41
P&CR 173* and in particular the judgments in this court, reported on p 176.
The Master of the Rolls said this:
There is this
overwhelming point: Everything in the opening letter was ‘subject to contract’.
All the subsequent negotiations were subject to that overriding initial
condition. We were referred by Mr Parish to a decision of Brightman J
as he then was
in 1972. It
is Tevanan v Norman Brett (Builders) Ltd (1972) 223 EG 1945.
Brightman J said: ‘parties could get rid of the qualification of ‘subject to
contract’ only if they both expressly agreed that it should be expunged or if
such an agreement was to be necessarily implied’.
*Also
reported at (1980) 255 EG 1203, [1980] 2 EGLR 140.
He went on to
deal with the application of that principle to the facts of the case before
him. Templeman LJ quoted the whole of the passage to which the Master of the
Rolls had referred from the judgment of Brightman J, and I quote it:
when parties
started their negotiations under the umbrella of the ‘subject to contract’
formula, or some similar expression of intention, it was really hopeless for
one side or the other to say that a contract came into existence because the
parties became of one mind notwithstanding that no formal contracts had been
exchanged. Where formal contracts were exchanged, it was true that the parties
were inevitably of one mind at the moment before the exchange was made. But
they were only of one mind on the footing that all the terms and conditions of
the sale and purchase had been settled between them, and even then the original
intention still remained intact that there should be no formal contract in
existence until the written contracts had been exchanged.
Brightman J
thought
parties could get rid of the qualification of ‘subject to contract’ only if
they both expressly agreed that it should be expunged or if such an agreement
was to be necessarily implied’.
I do not think
that any assistance is to be derived from looking at the facts in Sherbrooke
or in the case of Tevanan v Brett. Brightman J neatly and
accurately stated the question: in such a situation, have the parties expressly
agreed that subject to contract qualifications should be expunged or should it
necessarily be implied? In this court
counsel for the appellant has submitted — I hope that I do him justice when I
try to summarise his submission — that what happened in this case was this:
there was an initial period of negotiation which was clearly subject to
contract, but that was terminated; as Mr Cohen himself said in his correspondence,
he terminated that negotiation. I observe that it is perfectly plain, and Mr
Cohen would accept, that he did not terminate that negotiation because of any
difficulty in continuing the negotiation having regard to the terms that the
parties were respectively putting forward for agreement. He terminated because
he was very angry at what he thought was really outrageous behaviour on the
part of Nessdale: on the one hand trying to deal with him as a gentleman on the
negotiation of the long lease, and then behind his back going along to the rent
people to raise his rent, which he probably interpreted as an attempt to bring
pressure on him to accede to the negotiating offer then being put forward by
the landlord. Whether he was right about that is another matter, but that was
the reason why he terminated the negotiations. Counsel submits that that very
context explains the fact that when Mr Cohen terminated the negotiation he
intended to terminate it. It
him to break the whole thing off altogether, and, having broken it off
altogether, what began to happen in November was the opening of a completely
new chapter in the history and not a continuance of the earlier negotiation. I
hope that summarises the way in which counsel put it in this court.
There are, to
my mind, and I say it with regret, very great difficulties about accepting that
approach. First, the parties to the transaction: on the one hand the landlords,
who were manifestly experienced, and indeed fly, commercial men; secondly, the
tenant himself, who described himself in his correspondence with a rather
splendid though faintly obscure title, as a consultant in commerce and the law.
It was those two parties who in May had been carefully covering their offers,
their negotiations, with the qualification ‘subject to contract’. Indeed,
Nessdale seem commonly not only to have put it in the text of the letter, but,
in case the recipient cannot read, they also put it in capital letters at the
bottom.
How far do the
facts support the submission that the termination was such a final termination
that it is a misunderstanding to think in terms of a resumption or continuance
of the negotiations begun in May? The
difficulty is this: although Mr Cohen after May did not, until November,
communicate directly to Mr Sadleir or Mr Henderson, he did, in the
correspondence to which I have referred, make a number of requests to the
landlords’ agents, albeit agents with a limited scope of authority, to
encourage the landlords to reopen the negotiations. I have referred to the
letters and I have described how Goddard & Smith did pass correspondence on
to Mr Sadleir. So, far from the truth being that Mr Cohen, like Achilles, got
into his tent and stayed in it, he got into his tent, but then he put out
feelers through Goddard & Smith with a view to resumption of negotiations.
It is against
that background that one comes to the letter of November 2 written by Mr
Henderson, with the label ‘WITHOUT PREJUDICE’ at the bottom, when he used this
expression:
You may
recall our earlier meeting concerning our proposals for the flat you occupy . .
. If you would care to communicate with me at the above I will be happy to
discuss the matter further.
In that letter
Mr Henderson is inviting further discussion on the matter which had been the
subject of the landlords’ earlier proposals. To my mind it is very difficult,
against that history of the transactions between the parties, to take the view
that, when Mr Henderson and Mr Cohen began their discussions on November 18,
they were not, by so doing, resuming the interrupted negotiations which had
been interrupted for what I would call a collateral reason, namely, the alleged
misbehaviour of the landlords in going behind the tenant’s back while they were
negotiating and trying to get an uplift in rent. There is no question here of
any express agreement to expunge the qualification involved in the words
‘subject to contract.’
Is it
necessary, against this history, to imply that the parties on November 18
intended that, though they had previously always been negotiating subject to
contract, they were on that day intending to enter into a firm contract in
which all the essential terms had been agreed, so the solicitors would do
nothing except put on the dots and fill in the gaps which could readily be
filled in? I do not think so.
These parties
must have realised, both of them, that in connection with this kind of real
property transaction the normal procedure that both parties would expect was a
procedure by which there would be no concluded contract until solicitors had
settled the terms of the contract, signatures had been obtained from the
parties and contracts exchanged. I can see no reason to suppose that, when Mr
Cohen and Mr Henderson met and had a discussion in which they managed to reach
agreement on November 18, it was a common intention that the parties would
abandon the stance which they had hitherto taken up, a stance which may be
described as the normal stance of experienced business people dealing with a
property transaction, and had decided to take up a new position in which a firm
and final contract without any qualification and without anything in writing
was to be completed or made on November 18 in an oral discussion.
It would to my
mind be perfectly reasonable to imply such a term, but the question for
decision is not whether it is reasonable to imply the term but whether it is
necessary to do so. Like the judge, I find myself constrained, reluctantly to
the view that, however badly these landlords, Nessdale Ltd, behaved — and, of
course, they did behave badly — it is not possible to arrive at the conclusion
that it is necessary to imply into the conversation of November 18 that the
stance which had been a most important qualification accepted by both of them a
few months before had been abandoned so that the qualification no longer
applied. For those reasons, I would dismiss the appeal.
Agreeing,
DONALDSON LJ said: I share my Lord’s regret that this appeal must be dismissed,
but dismissed it must be. The effect of the subject to contract qualification
to the earlier negotiations was not in my judgment spent when agreement was
reached between the parties on November 18 1977. It follows that that agreement
was, in law, provisional in nature and so unenforceable.
I, too, would
dismiss the appeal.
Also agreeing,
SIR SEBAG SHAW said: I reach that conclusion with regret, particuarly as, upon
the findings of fact of the learned judge, the conduct of this matter by those
who acted for Nessdale — I mean of course Mr Sadleir and Mr Henderson —
reflects little credit upon their integrity or upon their sense of business
propriety. However, the matter is concluded upon the learned judge’s findings,
which are not subject to any challenge.
I would
dismiss the appeal.
The appeal
was dismissed with costs. Leave to appeal to the House of Lords was refused.
