Commission — Sale of site to be developed as a supermarket — Agreement to pay an acquisition fee and commission on subsequent disposal — Surveyor’s claim for damages for breach of agreement — Conflict of evidence — Surveyor’s evidence preferred
a chartered surveyor providing specialised services in relation to commercial
developments — At the material times he was the sole principal of the firm that
bore his name — The present litigation had its origin in a meeting between the
plaintiff and a representative of the defendant company, a subsidiary of a
property group — This meeting was a critical one which unfortunately resulted
in a conflict of testimonies — Plaintiff’s evidence was that there was an oral
agreement at the meeting that he should be paid an acquisition fee of 1% of the
purchase price paid for the site which it was proposed to develop as a
supermarket, ie a fee of £12,000 plus VAT — It was also agreed, according to
the plaintiff, that on the sale of the site to Waitrose, one of the supermarket
chains possibly interested, with which the plaintiff had a particularly good
contact, the plaintiff would be paid 1% (he had at first asked for 1.5%) of the
sale price — It may be mentioned here that the sale to Waitrose did eventually
take place, for £1.45m — The evidence given by the defendants’ representative
was different — He admitted that the acquisition fee had been agreed at the
meeting (this fee was in fact eventually paid to the plaintiff), but there had
not been agreement as to a fee payable to the plaintiff on the completion of
the subsequent disposal — The plaintiff’s testimony was confirmed by a note,
produced at the trial, which the plaintiff had taken at the time — On the day
after the meeting the plaintiff wrote to the defendants recording his account
of what had been agreed — Defendants did not reply to that letter or to a
reminder — They did, however, subsequently write confirming the acquisition fee
of £12,000, but stating that a fee for the sale or funding of the site had
still to be agreed — There was further correspondence, but the matter was
brought to a head by a letter from the defendants’ solicitors stating that
their clients totally denied the existence of arrangements for a fee of 1% or
of any other fixed percentage of the sale proceeds — They also asserted that
the plaintiff’s involvement in the disposal had been minimal
led to a writ from the plaintiff claiming damages — The defence admitted that
an oral agreement had been made but averred that the plaintiff’s fee on a sale
was to be a reasonable one reflecting his actual involvement in negotiations —
The issue in the case was whether there had been an oral agreement in the terms
asserted by the plaintiff — The judge found the plaintiff a reliable witness at
the trial but could not say the same for the defendants’ representative — The
judge also found that the plaintiff’s evidence was confirmed by the note he
made of the meeting, by the letter he wrote the next day and by the failure of
the defendants’ representative to contest the plaintiff’s statements
immediately
accordingly, that the plaintiff had established the oral agreement on which he
relied; that the defendants were in breach of the agreement; and that the
plaintiff was entitled to damages to the amount of his commission as agreed, at
the rate of 1% of the sum paid by Waitrose, namely, £1.45m, together with
interest from the date on which he could have expected to receive the
commission
No cases are
referred to in this report.
In this
action, which Mr Colin James Buckle, chartered surveyor, brought in his firm’s
name, the plaintiff claimed damages against the defendant company, Charterhall
Properties (Chesham) Ltd, for breach of an agreement to pay him commission on
the sale by the defendants of a site to be developed as a supermarket at High
Street, Chesham, Buckinghamshire.
D Serota QC
(instructed by Finers) appeared on behalf of the plaintiff; D Hodge (instructed
by Simmons & Simmons) represented the defendants.
Giving
judgment, MR FRANCIS FERRIS QC said: In this action the plaintiff, Mr
Colin James Buckle, seeks against the defendant, Charterhall Properties
(Chesham) Ltd, damages for breach of an agreement which he claims to have been
made between him and the defendant for the payment of a commission on the sale
by the defendant of a site to be developed as a supermarket at High Street,
Chesham in Buckinghamshire.
Mr Buckle is a
chartered surveyor, specialising in the provision of surveying and estate
agency services relating to commercial developments. At the material times he
carried on practice under the name Colin Buckle & Co, a firm of which he
was then the sole principal. I understand he still carries on practice under
that name, although I was given to understand he might no longer be the sole
principal. This action is, in fact, brought by him in his firm’s name
In the course
of his practice under that name, Mr Buckle had a long-standing connection with
a property company called Rugby Investments Ltd. The principal director or
person concerned on behalf of that company was a Mr Rodbourne. In the year 1985
Mr Buckle introduced to Mr Rodbourne two different sites at Chesham — different
sites, although apparently adjacent to each other. One of these sites is
described as 79-81 High Street and the other as 95-101 High Street. Each of
those sites has had different descriptions applied to it from time to time, but
I shall so far as possible use those descriptions.
As a result of
Mr Buckle’s introduction, Rugby Securities Ltd [an associate company] acquired
79-81 High Street and paid Mr Buckle a fee in connection with that acquisition.
I am not concerned with this fee or as to any disposal of 79-81. In respect of
95-101 High Street, Rugby Securities proposed either from very soon after the
time of the introduction or a later time (it is not clear which and it does not
matter) to enter into a joint venture of some kind with a company named
Charterhall Properties of which Mr James Smith was
the event it came to nothing. Rugby Securities dropped out of the picture as
far as 95-101 High Street was concerned and this site was acquired by a company
in the Charterhall Properties group as sole purchaser, apparently some time in
the latter part of 1985. The acquiring company was the defendant company,
Charterhall Properties (Chesham) Ltd, which was a subsidiary of the group
formed for the purpose of this acquisition.
Mr Buckle had
originally expected to receive a commission for his introduction of 95-101 and
also eventually to be retained on the disposal of this property to a suitable
purchaser. It appears that he had arranged with Mr Rodbourne that his
introduction fee would be 1% of the price paid for the property, and on the
sale of the property to a purchaser introduced by him he would receive 1.5% of
the purchase price. When Rugby Securities dropped out of the picture Mr Buckle
was given to understand that he would have to look primarily, if not
exclusively, to Charterhall (Chesham) for both his introductory commission (his
acquisition commission) and for any sale commission to which he might become
entitled. He did not altogether give up whatever residuary rights he might be
able to assert against Rugby Investments, but clearly he appreciated that he
would be looking primarily to Charterhall (Chesham).
Mr Smith, who
at all times seems to have been the only person dealing with these matters on
behalf of Charterhall (Chesham) with Mr Buckle, said in effect that Mr Buckle
pestered him about agreement on his fees, and that was an expression that Mr
Buckle himself accepted.
It is common
ground that a meeting took place between Mr Buckle and Mr Smith on November 21
1985 at the offices in London of a firm of architects, Holder Mathias & Co.
Effectively, Mr Buckle and Mr Smith were the only persons present at that
meeting. One or more representatives of the firm of Holder Mathias may have
been in the room where the meeting was being held from time to time, but no
such representative in any effective sense took part in the meeting.
Mr Buckle’s
evidence about the meeting was as follows. He said it was an amicable meeting.
He and Mr Smith agreed that he would be paid by Charterhall (Chesham) an acquisition
fee of £12,000 plus VAT. That represented 1% of the purchase price of £1.2m
which had apparently been paid by Charterhall (Chesham). It was agreed that
this fee would be paid on March 1 1986, which was later than Mr Buckle would
have liked, but Mr Buckle said he agreed to postpone payment until that time
because Mr Smith asked for postponement because of cash-flow problems. He and
Mr Smith then discussed two things: first, the part that Mr Buckle would play
in a disposal of the property by Charterhall (Chesham) and, second, the fee
which would be payable to him in respect of that. The site was intended and
expected to be sold to a supermarket company to be used for a supermarket
development, and before the meeting on November 21 Mr Buckle had approached a
number of supermarket companies to see if they were interested. At the meeting
on November 21 Mr Smith said to Mr Buckle that Charterhall (Chesham) wanted its
own agents, a firm called Anthony Green & Spencer, to be involved in the
further negotiations, but Mr Buckle indicated that he had a particularly good
contact with the John Lewis Partnership which owns Waitrose, and it was agreed
that Mr Buckle would conduct negotiations on behalf of Charterhall (Chesham)
with Waitrose.
As to the
amount of the fee, Mr Buckle said he asked for 1.5% on the price to be paid by
Waitrose, which was his usual fee; but Mr Smith did not agree this. Mr Buckle
then indicated that he would accept 1%, which Mr Smith did agree. Mr Buckle
said he would write to Mr Smith confirming their agreement, and Mr Smith,
according to Mr Buckle, agreed that he or his solicitors would respond to Mr
Buckle. Having regard to what Mr Smith said in evidence, it seems that when he
refers to his solicitors he may be referring to them not in their capacity of
legal advisers but as a firm a partner in whom is the company secretary of
companies in the Charterhall group.
Mr Smith’s
evidence was somewhat different. He indicated, as I have said, that before the
meeting on November 21 he had been, as he put it, badgered by Mr Buckle for
some time to agree Mr Buckle’s fees. He agreed that the principal matter
discussed at the meeting on November 21 was the matter of Mr Buckle’s fees. He
originally said that Mr Buckle asked for an acquisition fee of 1.5% which was
then reduced to 1%, but later on in his evidence he corrected that to say that
the acquisition fee was always agreed at 1% and that the conversation about
1.5% reducing to 1% was in relation to the disposal fee.
As far as Mr
Buckle’s further involvement was concerned, Mr Smith said that he agreed that
Mr Buckle asked for a fee of 1%, but he denied that he agreed this fee on
behalf of Charterhall (Chesham). His evidence, as I noted it, was as follows:
He wanted to
know about his further involvement. He asked me for 1% in the event of a sale
or funding to another party. I told him I always negotiated fees and you get
paid by results for work done and I won’t depart from that. His reaction was,
‘Let’s see how we get on’. He already had the confidence of the acquisition fee
which I said I would write and confirm.
As to what Mr
Buckle was to do, Mr Smith said he told him that he, Mr Smith, wanted to handle
negotiations with the Gateway Supermarket chain himself, and he would like to
put the handling of the other proposed negotiations with Anthony Green &
Spencer; but he agreed that Mr Buckle should deal with Waitrose.
In his
evidence before me yesterday, Mr Buckle said that he had made no note of the
meeting on November 21, but when the case was resumed before me this morning Mr
Buckle, through his representatives, corrected that and drew attention to the
fact that there was in the agreed bundle a note which had been placed at a
position in the bundle appropriate to the date March 1 1986, which is a date
prominently stated in the note, but which Mr Buckle had identified overnight as
being a contemporary note of his made on November 21 1985 which he had
forgotten about. I allowed Mr Buckle to be recalled, and he gave further
evidence both as to why he had forgotten about the note and as to what its
meaning was, and he was of course cross-examined. Mr Buckle gave me an
explanation for his forgetting about the note connected with the fact that,
after he had passed it on to his solicitors, he had been concentrating on a
file which did not contain the note and it had simply slipped his mind. I will
not set out the whole of the explanation, but I am satisfied that it is a
correct explanation and that the note which Mr Buckle explained is indeed a
note that he made at the meeting with Mr Smith on November 21.
There are
really only two items in that note which are of significance to matters which I
have to decide. First of all, there is the date I have already mentioned near the
beginning of the note, March 1 1986. While that had erroneously been taken as
the date of the note, Mr Buckle explained, and I accept, that he wrote it down
as representing the date on which Mr Smith agreed that the acquisition
commission should be paid. The other relevant item is a note which appears
towards the bottom of the page and says: ‘Sale, 1% payable on completion’.
Mr Buckle said
that that was his note recording the agreement which he had spoken about in his
oral evidence that Mr Smith would pay 1% disposal commission on completion of a
sale of the site. It was put to Mr Buckle in cross-examination that what he had
been recording was not an agreement but a proposal, but he insisted that it was
his record of what had been agreed. I will come back to this matter later.
On November 22
1985 — that is the very day after the meeting — Mr Buckle wrote quite a long
letter to Mr Smith. The material parts of that letter for present purposes read
as follows:
I refer to
our meeting yesterday at the offices of Messrs Holder Mathias at 53 Mount
Street when I discussed with you my firm’s involvement in your proposed
development at the above address. You confirmed to me that you would be
responsible for payment of my fees based on 1% of the purchase price, namely,
£12,000. You pointed out that in view of your present cash flow situation you
would prefer to pay this by no later than 1st March 1986.
Then I omit a
paragraph which relates to VAT and other matters. The letter continues:
As far as the
future agency is concerned you have only confirmed to me that you are prepared
to pay my fees on the basis of a transaction being completed with Waitrose, and
have indicated that you yourself wish to carry out negotiations with Tesco,
Carrefour, Safeway and Dee Corporation. As I pointed out to you, this is not
the normal way that I would work, but in view of the particular circumstances
of this case I am prepared to proceed. This does not, however, cover Argyll
Stores who are also showing some interest, and I presume that you are happy
that I should conduct such negotiations with them.
I pause to
interpolate that in evidence Mr Buckle explained that after the meeting he
realised that they had not said anything about Argyll Stores, who had expressed
some interest, and he put in that sentence in the hope that it would be agreed
that he could conduct those negotiations if they were to proceed.
The letter
continues:
In the event
of a sale being completed you have undertaken to pay me a fee based on 1% of
the sale consideration on completion of such sale, and
ask your solicitors to write to confirm such an arrangement, as it is an
absolutely integral part of my involvement.
Then the rest
of the letter does not matter, except to note that in the last paragraph Mr
Buckle concluded by saying that he looked forward to receiving Mr Smith’s
confirmation on the above points.
Mr Smith did
not reply to that letter. He accepted that he had received it. The explanation
that he gave from the witness box for his failure to reply was that he was not
in accord with that letter. He went on to say that he felt Mr Buckle was trying
to push him into acquiescence with his fees which he considered to be Mr
Buckle’s sole preoccupation. He said he did not like it and wanted to consult
with his solicitor as to the sort of letter he should write back. I am bound to
say that I found that explanation for not replying quite extraordinary.
In a letter of
November 27 1985 Mr Buckle passed on to Mr Smith an offer which Waitrose had
made to purchase 95-101 High Street for the price of £1.6m. In view of some
other evidence which Mr Smith gave, it is worth noting that that offer was said
clearly to relate to 95-101 High Street only and was not conditional upon any
arrangement with London Transport, who owned some additional land which
apparently it had been hoped to bring into the development for use as a car
park. Mr Buckle suggested to Mr Smith that this was a proposition which Mr
Smith should seriously consider. He ended his letter by saying:
Obviously the
above proposal is made on the basis that your company are responsible for my
fees based on 1% of the consideration as agreed.
Mr Smith did
not reply to this letter as such, but there were evidently some discussions
between him and Mr Buckle because Mr Buckle was instructed to go back to
Waitrose and invite them to increase their offer to £1.85m. This he did, but
Waitrose indicated that they were not interested in proceeding at that price and
they thereafter lost interest — or had a considerably diminished interest at
any rate — for some time.
On December 5
1985 Mr Buckle, who had still not received a written response or any other
response to his letter of November 22 regarding fees, wrote a reminder to Mr
Smith asking him for confirmation that what he set out had been agreed. Mr
Buckle received no reply to this letter at that time, although there was
correspondence between him and Mr Smith between December 16 and 23 about fees
on another site at Chesham.
Some time
before Christmas 1985 Mr Buckle went to the United States for a time. While he
was away, on January 6 1986, Mr Smith wrote a letter to Mr Buckle which reads:
I refer to
our discussions concerning your appointment and fees for the above project
— that is
clearly 95-101 High Street, Chesham, although it was described somewhat
differently —
and would
apologise for the delay in replying. I confirm on behalf of Charterhall
Properties (Chesham) Ltd that you will be paid an all-inclusive figure of
£12,000 for the introduction of the above site with payment to be made no later
than the end of March 1986. I also confirm your appointment to act on the
company’s behalf in negotiations with Waitrose Ltd in relation to the sale or
funding of the site at a rate to be mutually agreed between us, and will you
please note that this appointment does not relate to any resale and any other
retailer directly introduced by the company.
Mr Buckle
received or saw that letter on his return from the United States, which was on
or shortly before January 10 1986, and he spoke to Mr Smith on the telephone
about it because he was concerned about what Mr Smith meant by ‘all-inclusive’.
It seems there was a dispute between them as to whether VAT was or was not
included, but that was resolved by agreeing that VAT should be charged in
addition to the £12,000 but that no disbursements were to be added to the
£12,000.
Mr Buckle
wrote to Mr Smith on January 10, a letter confirming that telephone
conversation, and in relation to his future involvement he said:
Thank you
also for confirming our appointment to act on your company’s behalf in
connection with the negotiations with Waitrose, but it is understood that you
are handling other negotiations yourself.
Then he
referred to a drawing.
On February 6,
after some further negotiations with Waitrose had taken place, Mr Buckle wrote
to Mr Smith about those matters and concluded his letter as follows:
I am
naturally pleased that this transaction has been concluded and I would be most
obliged if I could now confirm that you will be responsible for my fees based
on 1.5% of the sale consideration in accordance with the old RICS scale.
Perhaps when replying you could also confirm that such fees will be paid to me
within, say, four weeks of completion of the sale.
Just under a
month later on March 3 1986 Mr Buckle submitted to Mr Smith an invoice for his
introduction fee of £12,000 plus VAT, a total of £13,800. When this fee had not
been paid by the end of March — and indeed by the middle of April — he wrote to
Mr Smith on April 18 reminding him about this and saying:
Would you
also be kind enough to confirm that you will be responsible for my fees in
connection with the sale to Waitrose on the basis outlined in my letter dated
February 6.
The
acquisition fee of £13,800 was paid on April 21 1986. Mr Buckle received it
under cover of a letter from Halliwell Landau, solicitors in Manchester, a
partner in which firm was the company secretary of the Charterhall company. On
April 23 Mr Buckle acknowledged this cheque and went on to say this to
Halliwell Landau:
You will be
aware that this relates to the acquisition of the site and that this firm have
subsequently been instructed to act on behalf of Charterhall Properties in the
proposed sale to Waitrose. You will also be aware that there has been a certain
amount of discussion over the question of such sale fees, but we had overlooked
the fact that such fees were agreed with James Smith at a meeting on November
21 1985. We subsequently wrote to Mr Smith on November 22 confirming our
arrangement and we enclose herewith a copy of that letter. Will you be kind
enough to confirm that such fees will be paid to us within three or four days
of completion of the sale taking place, and also that they will be paid out of
the completion.
Mr Buckle
received no reply for some time after that, but eventually he received a reply
from Halliwell Landau dated June 2 1986 in which, after some preliminary
matters, they say:
Our clients
totally deny the existence of any other arrangements for payments to you of 1%,
or for that matter any other fixed percentage, of the sale proceeds of 95-101
High Street. We understand from Mr Smith that he made it clear to you at the
outset that the company normally conducts its main tenant negotiations itself,
or through its retained agents, Anthony Green & Spencer. Because of your
involvement with Rugby Securities Ltd and your introduction of Waitrose to that
company, our clients agreed that you should have a continuing involvement in
the scheme but on the basis that you would receive a reasonable fee based on
your overall involvement in the sale of the property. We should point out that
in our clients’ view your involvement in the proposed disposal of the property
has in fact been minimal for the following reasons
— and a number
of reasons were then set out, which although they found themselves in the
pleadings in this action were not put to Mr Buckle in cross-examination.
That letter
was treated by Mr Buckle as an anticipatory breach of what he alleged to be the
obligation to pay a sale commission of 1%, and this action was commenced by
writ issued on July 23 1986. In the statement of claim endorsed on that writ by
para 5, the agreement relied on by Mr Buckle is alleged in terms which are in
conformity with the letter of November 22 1985 which I have read. The letter
from Halliwell Landau dated June 2 1986 was then pleaded, and Mr Buckle claimed
a declaration that he is
entitled to
receive from the Defendant commission equal to 1% of the selling price of a
development site at
— according to
the prayer it is 79-81 and 95-101 High Street, Chesham —
in the event
of the same being sold by the Defendant to the John Lewis Partnership
— I read that
as being a prayer for the declaration only in relation to 1% of the selling
price of 95-101 because that is the only matter which has been canvassed before
me —
damages, or
an inquiry as to damages; further or other relief and interest.
In its defence
served on September 11 1986 Charterhall (Chesham) admitted that a meeting took
place between Mr Buckle and Mr Smith on November 21 1985 but denied that para 5
of the statement of claim accurately reflected the whole agreement. The nub of
the disagreement as to those terms is to be found in a sentence in para 2(iv)
of the defence in which it is said:
The Defendant
company avers that it was agreed between the parties that the Plaintiff’s fee
would be a reasonable one reflecting the value of the extent of the Plaintiff’s
involvement in negotiations.
That averment
is clearly an averment of an agreement made at the meeting on November 21.
During the
course of these proceedings a transaction with Waitrose has been brought to
finality. By a contract dated March 6 1987
I believe is the land which belonged to London Transport — for a total
consideration of £2m of which £1.45m was apportioned to 95-101 High Street.
That contract was completed, so far as 95-101 High Street was concerned, by a
conveyance dated October 8 1987 made between Charterhall (Chesham) and Waitrose
Ltd.
The only issue
which is raised in this case is whether or not there was such an oral agreement
as Mr Buckle alleges, made between him and Mr Smith, on November 21 1985. My
findings as to whether such an agreement was made or not depend essentially
upon whether I accept the evidence of Mr Buckle, on whom the burden of proving
that case lies, or whether I prefer the evidence of Mr Smith, or at any rate
regard the evidence of Mr Smith as leaving me in a state of uncertainty as to
whether there was an agreement or not.
Generally, I
found Mr Buckle a careful witness. I thought he was mindful of the difficulties
which he has placed in his own way because of certain statements in the
correspondence which I have read, which I shall comment upon further, and that
he faced up to those difficulties and also accepted the limits of his own
recollections. Generally, I found him a reliable witness.
I am afraid I
cannot say the same of Mr Smith. I found his evidence confused and confusing,
contradictory of itself in a number of respects. He told me different things
from time to time about whether it was his recollection that a sale fee had or
had not been agreed at the meeting on November 21, and whether what had been
pleaded in the defence formed part of that agreement or whether it had only
come in later. I found his evidence more redolent of argument than containing a
reliable account of events which had occurred. In so far as the matter rests on
oral evidence, I have no hesitation in preferring Mr Buckle’s evidence to that
of Mr Smith’s where there is a conflict.
However, the
matter does not end there. It appears to me that Mr Buckle’s evidence is
confirmed and corroborated in vital respects by his contemporaneous note, the
substance or material parts of which I have already referred to, and more
particularly by his letter of November 22 1985, the material parts of which I
have read. I simply refuse to accept that when Mr Buckle said in that evidence:
‘you have undertaken to pay me a fee based upon 1% of the sale consideration’,
he was putting forward a mere proposal to Mr Smith. In my judgment, he was
undoubtedly recording what he understood to have been agreed the previous day.
Having heard Mr Smith, I am not prepared to accept that he and Mr Buckle were
at cross-purposes about the matter on November 21. I accept that Mr Buckle is
correct in his recollection and in what he recorded in that letter. The wording
of that sentence is, to my mind, in marked contrast to the wording of the
preceding sentence about Argyll, where Mr Buckle was admittedly putting forward
a proposal which had not been discussed at the meeting on November 21 but which
he hoped Mr Smith would accept, where he did not use the language of
representing that Mr Smith had agreed something. He said: ‘I presume you are
happy that I should conduct such negotiations’, which of course left it open to
Mr Smith to say: ‘I am not.’
It seems to me
also that Mr Smith’s conduct in not immediately repudiating what Mr Buckle had
said is of significance. Mr Smith accepted that he understood that Mr Buckle
was saying they had made an agreement the previous day about a sale commission,
and he said he did not agree it. It seems to me that if he really thought that,
nothing would have been simpler than immediately to write to Mr Buckle and say
so. After all, he had engaged himself to write in reply to Mr Buckle by way of
confirmation. Or at the very least he could have rung Mr Buckle up and pointed
out his error. In fact he did nothing for some seven weeks, until on January 6
he wrote the letter to which I have referred, putting forward some different
arrangement without any reference to the fact that he was in fundamental
disagreement with what Mr Buckle had said on November 22, or that he repudiated
utterly any idea that he had already agreed that. It seems to me that Mr
Smith’s conduct simply was not the conduct of a man who had refused to agree
the proposal which Mr Buckle thought he had agreed and which he said in his
letter of November 22 that Mr Smith had agreed.
The main
difficulty in Mr Buckle’s way is one of his own creation; that is to say, that
having received the letter of January 6 he failed to say anything himself about
the fact that, as far as he was concerned, his appointment was to be for a sale
commission of 1% and not, as Mr Smith proposed, ‘at a rate to be mutually
agreed between us’. Moreover, in his next letter of February 6 he put forward a
proposal that Charterhall (Chesham) should be responsible for his fees at a
rate of 1.5% of the sale consideration; and in his letter of April 18 he asked
for confirmation not of the terms which he had said were agreed in November but
of the terms which he had set out in his letter of February 6. Certainly those
letters do not appear to be the letters of a man who thought that he had got an
agreement in the terms recorded in his letter of November 22. Not surprisingly,
that fact has been strongly relied upon as indicating Mr Buckle’s
unreliability. It is not, incidentally, suggested that, if there had been an
agreement in November, its terms were varied by the later correspondence. What
is relied upon is simply that these statements undermine Mr Buckle’s
credibility.
While I attach
some weight to that, it seems to me that the explanations of Mr Buckle, to the
effect that he just failed to take account of or failed to notice the
difference between what he thought were the agreed terms and Mr Smith’s letter
of January 6 and later forgot that he had agreed a 1% rate, are to be accepted.
If I were to reject them it throws me back on this: that the letter of November
22 does not mean what it says. It seems to me that that is totally
inconceivable, and having heard Mr Buckle I am sure that that letter is a
genuine record of what had been agreed the previous day and that what took
place in the correspondence early in the year 1986 was a mistake on Mr Buckle’s
part which has to be taken into account in weighing the evidence but which,
when taken into account, does not affect my conclusion.
Accordingly, I
take the view, and so hold, that Mr Buckle makes out the agreement on which he
relies. It follows — because there is no dispute about it — that Charterhall
(Chesham) is in breach of that agreement. I apprehend there is also no dispute
about the damages; that is to say, that Mr Buckle is entitled to 1% of the
£1.45m which was actually paid by Waitrose for 95-101 High Street. Mr Buckle
applies for interest, and prima facie it seems to me that he is entitled
to interest from a date which represents the approximate date on which he could
have expected to receive his commission, if the agreement had not been broken.
I do not think that should be taken as October 7 1987; I would fix as the date
for commencement of interest November 1 1987. I have not heard submissions as
to the rate of interest but I will deal with that and any other matters.