Plaintiff taking lease of public house – Plaintiff falling into arrears and surrendering lease – Plaintiff claiming first defendant misrepresenting derelict land next to public house to be developed within two years – Trial judge finding misrepresentation made and relied on but reliance not reasonable – Whether misrepresentation made – Court of Appeal reversing trial judge’s finding
In January 1991 the plaintiff tenant took a 20-year lease on a public house known as the Bridge, Uckfield, East Sussex, after negotiations conducted by the first defendant. The first defendant was the surveyor and estate agent subsidiary of both Courage Ltd, who owned the public house, and the Grand Metropolitan group, and was responsible for letting their public houses. After just over two years of trading, the plaintiff fell into arrears of rent and the lease was surrendered. The plaintiff brought proceedings and alleged that the first defendant had misrepresented, inter alia, that a derelict area of land next to the public house was to be redeveloped to include shops and offices, and that the redevelopment would be completed within two years.
The misrepresentation was alleged to have taken place at a meeting between the parties on January 9 1991, prior to the plaintiff taking the lease. The trial judge found that the only misrepresentation made by the first defendant was that the derelict land was to be redeveloped within two years, and that that misrepresentation had been relied upon by the plaintiff. However, the judge went on to find that the plaintiff’s claim failed because it was unreasonable for him to have relied upon the misrepresentation without making further enquiries. The plaintiff appealed. The defendant served a respondent’s notice contending that the decision of the court should be affirmed or, alternatively, a retrial should be ordered.
Held The plaintiff’s appeal was dismissed.
1. The trial judge’s approach had been flawed. He had failed to take account of the particular circumstances or probabilities material to an estimate of the evidence, and he had given credence to testimony which turned out on more careful analysis to be substantially inconsistent with itself. The finding that the first defendant had made the representation that the derelict land was to be redeveloped within two years could not stand.
2. Having considered all the evidence against the whole background of the judge’s assessment of the basic credibility of the witnesses, it was not appropriate to order a retrial on the issue. The plaintiff would not be able to overcome the difficulties that confronted him in establishing that the representation was made, not least of which was the fact that, from the date of the meeting to the issue of the statement of claim in October 1993, any objective view of the plaintiff’s conduct would conclude that no such representation had been made. Therefore the trial judge’s finding that the representation had been made was to be reversed.
Stephen Ruttle QC and Mark Brealey (instructed by Charles Russell, of Cheltenham) appeared for the appellant; Richard Field QC and Martin Rodger (instructed by Masons) appeared for the respondent.
