The defendant was the regulated tenant of residential premises under a lease from the claimant landlord. To enable the claimant to carry out necessary and substantial works of repair and maintenance to the property, the parties agreed that the defendant would move to another of the claimant’s properties, which she would hold on a similar tenancy. It was agreed that the claimant would carry out various works of repair and decoration, and install various fixtures and fittings, before the defendant moved into the new premises.
After the defendant moved in, a lengthy dispute ensued regarding the agreed works, which were defective, with certain items needing replacement or repair. The defendant alleged that the claimant was in breach of its agreement to do the works expeditiously, to the agreed specification and with reasonable skill and care. She limited her rent payments to £4,000 pa, that being a concessionary rate agreed for the first years of the tenancy, rather than increasing them over later years up to the full registered rent of £22,000 as the parties had agreed.
The claimant brought possession proceedings against the defendant on the ground of rent arrears of £34,000. By an amendment to her defence and counterclaim, the defendant advanced a claim for damages of £14m for lost income, on the ground that the dispute over the works had taken up most of her time and energy over several years and a business project that relied on her personal commitment had had to be abandoned.
Appealing against the decision to permit that amendment, the claimant contended that the claim for pure economic loss was not sustainable as a matter of law.
Held: The appeal was allowed. The defendant’s claim in respect of economic loss was not arguable as a matter of law. That claim depended on the existence of a duty of care in tort. In a case involving the negligent provision of services, the existence of the duty will depend on: (i) the purpose of the service; (ii) the knowledge of the alleged tortfeasor; and (iii) the reasonableness of the reliance or dependence of the other party, in addition to whether it is fair and just in all the circumstances to make one party liable for the economic losses of the other. The purpose of the move and associated work was not to further or assist the defendant’s business but to relocate her and make the new premises fit for her residential occupation. Although the claimant had been aware of the defendant’s business activities and her concerns that the move should not disrupt them, knowledge of the potential loss was not sufficient. It was not reasonable in all the circumstances, in the absence of some express contractual term or undertaking, for the defendant to rely on the claimant’s works to enable her to further her business project. The defendant, as tenant, would be entitled to compensation, assessed in the traditional way, for any breach of the claimant’s duty as landlord to perform the works properly and in accordance with the agreed specification. The claimant did not owe a duty in respect of pure economic loss unconnected with the landlord and tenant relationship. It had not undertaken a duty of care to prevent the defendant from losing the opportunity to make money from her intended business venture and it was not fair, just or reasonable to hold the claimant responsible for the alleged losses in that respect. The relevant parts of the amended pleadings should be struck out accordingly.
This was an appeal by the claimant, Eaton Square Properties Ltd, from a decision of Deputy Master Rose granting permission to the defendant, Sonja Shaw, to amend her defence and counterclaim, in proceedings for possession of a residential property, so as to advance a claim in tort for economic loss.
Adam Rosenthal (instructed by Boodle Hatfield) appeared for the claimant; Martin Young (instructed under the direct access scheme) represented the defendant.
Giving judgment, MacDuff J said:
1. This is an appeal, for which permission has already been granted, from an order of Deputy Master Rose (the master) whereby he allowed the defendant’s application for permission to amend the defence and counterclaim. The short point raised in this appeal is whether that part of the counterclaim in which the defendant seeks damages of around £14m is or may be sustainable in law.
2. The background facts need to be briefly stated. This case began its life as an apparently straightforward possession case in the county court. The claimant is the landlord and the defendant the regulated tenant of residential premises, namely 33A Kinnerton Street, London SW1. Before 2000, there had been a similar tenancy of other residential premises owned by the claimant; 2 Kinnerton Place South. By the year 2000, substantial works of repair and maintenance were required on that property and, after some considerable negotiations, it was agreed that Mrs Shaw would relocate on a permanent basis to 33A Kinnerton Street. Agreement was reached for a new lease to be executed that, because it was in substitution for a statutory tenancy, was and remains subject to the Rent Act 1977. Further, as Mrs Sonja Shaw was relocating for the convenience of the claimant, there were further negotiations as to repairs, decorations, fixtures and fittings in respect of the new premises, which were to be undertaken by the claimant prior to her moving. There were also concessions about rent for the first months and years of the tenancy. It is not necessary for me to consider the detailed arrangements.
3. Mrs Shaw moved in September 2001, but was then engaged in a lengthy dispute with the claimant over the works at the new premises. In short, it is the defendant’s case that the claimant was in breach of its agreement to do those works expeditiously, to the standard and in accordance with the specification agreed between them and with reasonable skill and care. There were and remain many defects in the works as well as items requiring replacement or repair. The dispute went on for a very long time and has still not been resolved. As a consequence, the defendant’s time and energy were devoted for several years, virtually full time, to dealing with this dispute, and she was unable to pursue her business interests at great loss to herself.
4. It seems that these proceedings were triggered by the defendant’s failure to pay the agreed rent. Under the agreement, to which I have referred above, the defendant should have paid increasing amounts of rent over the years, and should, by now, be paying the full registered rent. In fact, she continues to pay a little over £4,000 pa against a registered rent of some £22,000. It is claimed that the arrears stood at over £34,000 when these proceedings were issued in April 2009. Possession was claimed together with the alleged arrears of rent.
5. By way of defence and counterclaim, Mrs Shaw contends that the claimant is estopped from claiming rent over and above the amount she currently pays; she counterclaims for breach of repairing and other covenants.
6. The particulars of breach of contract are set out extensively in the amended defence and counterclaim and I do not need to repeat them here save to note that they include alleged breaches of both the agreement to do the works to the agreed standard and specification (an important part of the negotiations prior to the execution of the lease) and of the terms of the lease itself. It is sufficient to note at this point that it is alleged that there were and remain numerous items of disrepair within the premises.
7. It is not disputed between the parties that, when this case comes on for trial, it is open to the defendant to argue the estoppel point, as well as other matters of defence (for example, whether it is reasonable in all the circumstances for a possession order to be made). It is also agreed that, in so far as the defendant seeks damages by way of counterclaim for breach of repairing covenant, breach of the right to quiet enjoyment and so on, she is entitled to do so. However, the claimant contends that it is not open to her to pursue that part of her amended defence and counterclaim by which she seeks damages for loss of business income and profits. That part of her claim cannot be sustained as a matter of law and the master should not have permitted the amendment.
8. I need to say a few words about the history of the action. I need not set it out in detail; but I should mention a few of the main events. The case has had a chequered history partly because of the unfortunate way that Mrs Shaw has been represented in the past. She has been represented by different counsel and solicitors at different stages. On occasions when this case was listed in the county court, those who represented her did not always appear to act in her best interests or to have a full understanding of the nature of her case. Recently, she appeared before me on an application to stay this action and to adjourn the hearing of the appeal. On that occasion, she was unrepresented. Fortunately, she has recently given direct instructions to Mr Martin Young of counsel, who has fully and skilfully represented her interests both before the master and before me.
9. I need to note briefly that, in June 2009, two months after this claim had been issued, Mrs Shaw issued her own claim (9WL 02204) in the county court. That claim has been called “the damages claim” because it was a separate claim by which Mrs Shaw originally claimed the substantial damages that lie at the heart of this appeal. In fact, when it was issued, the claim was not for £14m but for £39m. In respect of that action (which was issued against Eaton Square Properties as well as against other related defendants), an application was made to strike out the particulars of claim on the same basis as is now advanced; that the claim for damages for lost business profits was misconceived and unsustainable at law.
10. There were a number of applications and hearings in the county court in both actions, but matters came to a head on 25 March 2010 at a hearing before Mr Recorder Thomas QC. The damages claim was struck out; and this claim was transferred to the High Court. The striking-out of the damages claim was not opposed by those who represented Mrs Shaw. But neither did they consent. It was clear, however, that the lack of opposition was not by way of a concession that the claim was ill founded. It was indicated that the intention was to pursue an application to amend the defence and counterclaim in this action to include the damages claim within this case. That application to amend had already been filed in the county court and was stood over for determination by the High Court; there was already in place – exhibited to the application – a draft of the proposed amendment. That draft is substantially (although not entirely) the same as the amended pleading for which leave was granted by the master.
11. I need to consider the facts that give rise to the damages claim; that is to say the facts on which Mrs Shaw relies to pursue her claim for economic loss in the amended defence and counterclaim. These facts may be gleaned from Mrs Shaw’s witness statement. I do not propose to set out the detail. I confirm that I have read the statement carefully. In a nutshell (albeit a relatively large nutshell) and in so far as relevant to this issue, Mrs Shaw states the following, namely that:
(a) she was a vigorous, hard-working and successful business woman with many achievements of note. She is a committed christian and an active member of many worthwhile and prestigious organisations. Her success in the past has often been connected with her ability to sense a good business opportunity or – as she calls it – a “niche market”;
(b) in around 1994, she conceived the idea of a venture that was to be named “Illumination”. This was to be a business venture as well as a “mission and ministry”. The purpose of the project was to present the Bible in an inspirational and unique way, with dramatisations involving the use of “in-house pyrotechnics, computer graphic visuals, video and sound to picture, laser projection and other elements to produce a unique spectacular show”;
(c) in order to make a reality of the vision, a great deal of organisation, research and planning took place with demonstrations and an approach to other individuals and bodies to become involved. The starting date for the “pre-launch” of the project was set for around 2002;
(d) a company, Equate Services Ltd, was acquired and/or designated for the purpose of being the vehicle for the Illumination project; it was a company that had not previously traded; the defendant’s son, Mr Philip Shaw was one of the two directors of the company and her aunt, Mrs Ward, who was a shareholder, had agreed to provide the considerable funding that would be required to set the project on its way;
(e) Mrs Shaw was to have no directorship or other interest in the company (save that she was a shareholder) that was to be operated by her son and others. However, the intention was that she would receive consultancy fees and commission for the large quantum of work that she intended to invest in ensuring the success of the venture. Based on projected turnover figures, it would be possible to calculate what she would earn in the future;
(f) in 2000, when plans were being finalised for the “pre-launch”, she was looking forward to two or so decades of prosperity with substantial earnings from this venture;
(g) it was around this time – just as contracts were being arranged for the prelaunch – that she was informed by the claimant that it needed access to her home because of the need to do extensive structural and other works;
(h) she then made the various agreements with the claimant. She agreed to move to the new premises. The promised works were not done either adequately, properly or at all and there were very substantial failures on the part of the claimant. (I do not need to recite any more of the detail; for the purpose of this judgment the summary set out in [3] and [6] above is sufficient.) The claimant’s failures were massive, extensive and recurring;
(i) as a consequence, Mrs Shaw’s considerable energies were all channelled into dealing with her accommodation problems over the many months – and indeed years. As a further consequence, the Illumination project, which relied heavily on her personal commitment and hard work, had to be shelved; following the death of her aunt, the finance ceased to be available; and
(j) the further consequence is that she has lost the massive stream of income that the project would have generated for her by way of consultancy fees and commission. This is the stream of income that she seeks to recover by way of damages from the claimant.
12. In summary, the claimant submitted before the master – and submits before me – that this claim for loss of income does not disclose a cause of action and that there is no arguable case that itowed a duty of care to the defendant to prevent her from suffering the losses she claims. The claimant submits today that the master was wrong to decide that such a claim was arguable.
13. There is no doubt that the master applied the correct test: first, that permission should be refused where the proposed amendments do not disclose a cause of action and would be susceptible to strike out under CPR 3.4; second, where a claim has no proper or sufficient evidential basis to satisfy the court that the proposed claim has a reasonable as opposed to fanciful prospect of success. The test is the same as in respect of an application for summary judgment under CPR 24. As has been repeatedly said, the two different tests, although not identical, clearly have overlapping considerations.
14. On behalf of Mrs Shaw, Mr Young, in his careful and well-structured argument, submitted that this issue is not suitable for summary determination but that the amendment should be allowed and the issue left to the trial judge. He referred to Cobbold v Greenwich London Borough Council unreported 9 August 1999, to which I will return in a few moments. However, the main thrust of his submission was that it would be wrong to disallow the amendment at this stage. Whether a duty of care arose on the particular facts depended on the detailed evidence to be called at the trial. The court would have to apply the principles distilled from such cases as Caparo Industries plc v Dickman [1990] 2 AC 605 and Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 to determine whether a duty of care was owed. This was not something to be done on the basis of pleadings and witness statements in a summary fashion. Rather, a trial judge would have the benefit of the evidence that would yield a full picture from which a proper determination could be made. On behalf of the claimant, it was submitted that the court had to assume that the evidence adduced by Mrs Shaw and averments made in the pleadings on her behalf would be fully made out. In those circumstances, it was entirely possible for the court to determine the issue at this stage, thereby (depending on the outcome) avoiding the expenditure of a large amount of time and money at a trial.
15. As already mentioned, Mr Young also referred to the oft-repeated citation of the words of Peter Gibson LJ in Cobbold to the effect that amendments should generally be allowed to enable the full issues to be determined at a trial, provided that any prejudice to the other party could be compensated in costs. This was cited by the learned master, in [10] of his judgment. Mr Adam Rosenthal, on the other hand, submitted that those words were subject to the obvious caveat that an amendment should not be allowed unless the amended claim has a real prospect of succeeding: see per Lewison J in Fattal v Walbrook Trustees (Jersey) Ltd [2010] EWHC 2767 (Ch), in [48], [56], [57] and [61].
16. On this issue, I agree with the claimant’s submissions. I have to assume that Mrs Shaw’s evidence would be unreservedly accepted and that the factual averments in the counterclaim would be made out. Applying those assumptions, it is clear to me that her case on this issue cannot get any stronger before a trial judge than it presently is before me. The question is whether, taking her evidence at its highest, the claim is arguable, whether one applies the strike out test under CPR 3.4 or the summary judgment test under CPR 24.
17. I now turn to consider the duty of care itself; a duty allegedly owed by the claimant to protect the defendant against pure economic loss. For reasons that it is not necessary for me to consider, it is common ground that, if this duty of care exists, it is a duty in tort and not in contract. The original version of the amended defence and counterclaim pleaded that a duty of care in tort arose out of a contract said to be evidenced by correspondence between the parties. That contract was said to have been made by an offer and acceptance in letters of 26 April 2001 and 21 May 2001 (the May 2001 contract). Before the master, it was submitted that there was an “assumption of responsibility” founded on that contract; that there was a concurrent similar duty in tort to that contained within the contract: see Robinson v PE Jones Contractors Ltd [2010] EWHC 102 (TCC).
18. However, in response to a submission that those two letters, when properly considered, did not form a contract, Mr Young applied to enlarge the amendment to aver that, in the alternative, a duty of care in tort arose independent of any such contract. Regardless of any contract, there was a free-standing duty of care arising out of the relationship formed by the parties, the information passing between them and the other matters pleaded and relied on.
19. In the event, the master, in granting permission to amend, did so on the basis that those further amendments be incorporated into the pleading. In those circumstances, since he was subsequently to express himself satisfied that there was what I have called a free-standing duty of care, it was not necessary for him to decide whether the May 2001 contract was indeed a contract arising out of the two letters; and he declined to do so.
20. In determining this appeal, I am content to make that decision. It will not take a great deal of time, particularly since Mr Young, when I asked him for his submissions on the matter, realistically did not seek to argue the point. It is clear, in my judgment, that the second letter was, in reality, a counter-offer. It was not an acceptance of the terms of the earlier letter. There was much to clarify and the second letter made proposals that were not mentioned in the first. There was patently no concluded contract. Additionally, as Mr Rosenthal submitted on behalf of the claimant, if the second letter were construed as being capable of concluding a contract, it provided for Mrs Shaw to surrender her existing tenancy and for the claimant to issue a new 10-year lease. This would attract the provisions of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989. If for any reason the claimant had refused to issue the new lease, her remedy would have been under the original lease; she could not have relied on this “contract” as a foundation for any claim. Nevertheless, it does seem to me that these two letters, forming part of a wider negotiation, are part of the background factual matrix against which the issue (whether there is a duty in tort owed by the claimant to the defendant) is to be decided.
21. The learned master found, on the basis of Mrs Shaw’s evidence and the averments in the amended pleading that there was a duty of care in tort owed by the claimant to the defendant to protect her against pure economic loss. In this case, there is no doubt that the claimant as landlord owed a package of duties to Mrs Shaw. However, the issue was and remains whether it owed her a duty in respect of pure economic loss unconnected with the landlord and tenant relationship. The line of authorities on the point may here be taken to start with the oft-quoted case of Caparo. The three-part test is well known – whether the loss to the claimant (in this case, the claimant on the counterclaim) is a reasonably foreseeable consequence of the defendant’s acts or omissions; whether the relationship is one of sufficiently close proximity; and whether, in all the circumstances of the case, it is just and reasonable to impose a duty of care. This test was considered and developed in Henderson, where the concept of “assumption of responsibility” was said to arise from the nature of the relationship between the parties. In that case, the issue was whether the defendant was responsible for pure economic loss in the provision of services (as opposed to the provision of advice). Shortly stated, the court should consider whether the party providing the services could be said, from all the surrounding circumstances, to assume responsibility for the loss if it occurred.
22. It is also appropriate to consider Customs & Excise Commissioners v Barclays Bank plc [2006] UKHL 28; [2007] 1 AC 181. Here, it was stated that there was no single test. As Mr Rosenthal submitted, the court should concentrate on the circumstances of each case and the nature of the parties’ relationship in the context of the factual situation in which the duty is alleged to have arisen. He derives this submission – one with which I agree – from the speeches of Lord Bingham, at p192, in [8], and Lord Mance, at p216, in [93].
23. Deputy Master Rose, in a carefully crafted judgment, reached the conclusion that a duty of care was owed. He was satisfied that the claimant here agreed to perform a service for the defendant; also that the claimant held itself out as possessing a special skill and knowledge in respect of those services. He also decided that it was arguable that there was evidence of reliance by Mrs Shaw on which the duty of care could be founded: see [33] and [34] of the judgment. To reach that point, he referred to a number of places within the pleadings and the documents that showed that the defendant had informed the claimant (or the claimant otherwise knew) of the business project, and the possible consequences of any disruption to her ability to work on it: see [36] to [37] at p42J-42L. Additionally, he relied on the speech of Lord Goff in Henderson where, in the case of liability allegedly arising under a contract or in a situation “equivalent to contract” an objective test should be applied when asking the question of whether in a particular case, responsibility should be held to have been assumed by one party to the other.
24. On behalf of the claimant, it is submitted that the master applied too wide a test. Adopting the summary of the current state of the law in Clerk and Lindsell on Torts (20th ed), in para 8-100, it is submitted that where the duty cannot be said to coexist with a concurrent contractual duty, the less likely it is that the “assumption of responsibility” test will be helpful to the analysis. In a case of negligent provision of services, the court is more likely to be helped by: (i) the purpose of the service; (ii) the knowledge of the alleged tort feasor; and (iii) the reasonableness of the reliance or dependence of the other party. Thereafter, it is proper to stand back and ask whether it would be fair and just in all the circumstances to make the one party liable for the economic losses of the other.
25. I am satisfied, on my reading of the authorities, that the learned editors of Clerk and Lindsell have accurately distilled the principles. In this case, there is no doubt that there is abundant material to show that the claimant had knowledge of Mrs Shaw’s business activities and also her concerns that the move from the first to the second premises should not be disruptive of that business.
26. In my judgment, it is clear that the purpose of the move and the associated work was to relocate the defendant and to make the premises fit for her occupation. The purpose was not to further or assist her business. This was a residential tenancy not a business tenancy. If the works had been to a suite of offices, or to relocate her business address, the position would have been different. By way of analogy, I ask myself whether a builder engaged to build an extension to a house (in the absence of an express contractual clause) would be liable for the householder’s loss of business profits if he knew that shoddy workmanship or delay was likely to cause absence from work and likely reduction in income.
27. It is further submitted on behalf of the claimant that the learned master placed too much emphasis on the knowledge to be imputed to the claimant; that he made an impermissible jump from that which the claimant knew to a decision that the duty could arguably arise. It was submitted that knowledge of potential loss is just one factor. In itself it is not sufficient. In Barclays Bank, Lord Rodger made this very point, in [55]:
you do not come under a duty in tort to prevent somone causing me financial harm just because I tell you what is likely to happen to me if you do not take steps to prevent it.
28. It seems to me that that submission is well made. Furthermore, there is nothing pleaded or in the documents to support a proposition that the claimant had knowledge that Mrs Shaw was proposing to rely on the services in order to further and support her business project.
29. In my judgment, if one takes Mrs Shaw’s case at its highest, how can it be said that it was reasonable in all the circumstances for Mrs Shaw – in the absence of some express contractual term or undertaking – to rely on the claimant’s works to enable her to further her business project? I might rely on my taxi driver to get me to the airport on time. I might tell him how important it is that I catch the aeroplane and that a large deal depends on it. Without more, I cannot require him to compensate me for the pure economic loss that I suffer when – because of his fault – I suffer that loss.
30. In my judgment, the landlord here owed a duty to the tenant to do the works properly and in accordance with the specification. In so far as it is proved that it did not do so, the tenant is enabled to get compensation, assessed in the traditional way, for damage flowing from the breach. However, any economic loss that Mrs Shaw may be able to prove is unconnected with the relationship between them. It is and was the relationship of landlord and tenant – not a relationship of economic adviser or provider of services relevant to any business venture. There is nothing anywhere to show or suggest that the claimant undertook so wide a duty – to take reasonable care to prevent Mrs Shaw from losing the opportunity to make the large sums of money that she claims the intended venture would have yielded: see Lord Hoffman in South Australia Asset Management Corporation v York Montague Ltd [1997] AC 191*, at p211H.
* Editor’s note: Also reported at [1996] 2 EGLR 93; [1995] 27 EG 125
31. Accordingly – and with some hesitation because I am conscious that this was the carefully considered judgment of an experienced master – I have concluded that he misdirected himself as to the relevant test and that this appeal should be allowed. In my judgment, it is unarguable on the facts – assumed, as I have said, to be wholly in Mrs Shaw’s favour – that the claimant owed a duty in tort to the defendant to protect her from pure economic loss. The nature of the relationship was one of landlord and tenant. The knowledge of the claimant did not extend to knowledge of reliance. Reliance, in the circumstances, was not reasonable. And standing back, it would not be fair or just to hold the claimant responsible for these alleged losses.
32. I should make it clear that in reaching this decision, I have carefully considered the arguments so ably advanced by Mr Young – in particular, his submissions in para 26 of his skeleton argument as well as the submissions made on the authority of Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas) [2008] UKHL 48; [2009] 1 AC 61. Of course, I acknowledge that the move to the new premises bestowed a significant benefit to the claimant whose responsibility it was that the first property had fallen into disrepair. This, I agree, was part of the factual matrix. The question needs to be considered in the context of: (a) a landlord proposing a solution for a problem of its own making; and (b) a tenant agreeing to a proposed solution that involved a move to new premises not immediately ready for occupation. However, as it seems to me, these matters were the driving force behind the agreement that incorporated the arrangements about refurbishment of the new premises and the substantial rent concessions. At the risk of repetition, they were made in the context of a residential tenancy swap, in a landlord and tenant relationship, and with the relevant “services” connected with making residential premises fit for occupation, unconnected with any business development.
33. This appeal must accordingly be allowed to the extent that the relevant paragraphs in the amended pleading must be struck out. In so far as the master permitted amendments to the original pleading that are unconnected with the claim for economic loss, permission for those amendments may remain.
34. That, of course, is sufficient to dispose of this appeal. However, for the sake of completeness, I should mention two other matters raised by Mr Rosenthal in support of the appeal. He submitted that, if a duty of care arose, there was no evidence before the court on which causation could be established. On the contrary, it was clear that Mrs Shaw would be unable to prove causation. This submission was founded on the fact that her aunt – who had agreed to provide funding – had died. However, as I understand it, the death did not occur until two or three years had elapsed from the date when Mrs Shaw alleged that Illumination would be up and running. By that time, as it seems to me, the relevant finance or much of it, might well have been provided and it may even be that the project by this time would have been capable of financing itself. Without going into the rival contentions in any detail, I was not persuaded by the claimant’s argument – although I appreciate that that will be of little comfort to the defendant. As to Mr Rosenthal’s final submission – that the claim for damages, if allowed, would have no reasonable prospects of success and should be categorised as “fanciful”, I have more sympathy. I do not propose to make any determination of this ground of appeal. I merely note that there is much force in the submissions made to the effect that the future of the project as a successful money making venture was speculative in the extreme. It may be noted that, after six or so years of planning, development and so on, not one contract had been signed and – as I read the evidence – the start up date was hardly any nearer than it had been in about 1997. There appears to have been considerable stalling between 1997 and 2001. If the claim had any provable value, it was the loss of a chance, likely to be assessed at a low figure indeed. Claims expressed in millions of pounds are fanciful.
35. In due course, I will entertain submissions as to the form of order that should be made, costs and any other ancillary matters.
Appeal allowed.
