England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRISTOL DISTRICT REGISTRY
MERCANTILE DIVISION
(MR JUSTICE JACOB)

		Royal Courts of Justice Strand London WC2 Monday, 21st January 2002

Monday, 21st January 2002

1. LORD JUSTICE SCHIEMANN: This is an appeal from a judgment by Jacob J. The appeal is concerned primarily with the proper construction of an agreement. There is also an application for the admission of new evidence which will become relevant in due course.
2. I deal first with the construction of the agreement. The agreement is a conditional contract for the sale of land, the obligations under which only lasted for a limited time. That time has now elapsed.
3. The broad position under the agreement is this. The obligation to complete the sale can be triggered in one of two ways: by the vendor before planning permission is granted and by the purchaser thereafter. The vendor can choose to force the purchaser to buy at a non-residential value; if residential permission is granted then either party can secure a sale at residential value. The way the contract is structured is that the vendor may serve a notice at any time before planning permission for residential development is granted just as long as the notice is served before 25th September 1995. If such a vendor's notice is served the contract becomes unconditional and the property is to be sold at 80 per cent of its open market value on the third working day after the date of the service of the vendor's notice. On the other hand if planning permission is granted during the contract period, which expired on 6th March 2000, the contract becomes unconditional. In those circumstances the purchaser must notify the vendor forthwith, and the property is to be sold at 80 per cent of its open market value on the third working day after that notification.
4. The agreement provided for a non-returnable deposit of £20,000 to be paid by the purchaser on the signing of the agreement. The purchaser was under no obligation to apply for planning permission at any time during the contract period. On the other hand the vendor bound himself not to apply for planning permission during the contract period, and not to oppose an application by the purchaser. Once the purchaser has notified the vendor of the grant of planning permission unless there has been an agreement on the price within three days either party can apply for the appointment of a surveyor to determine the price and then no further deposit is payable until the price has been determined.
5. With that rough introduction to the agreement let me turn to the agreement, first explaining that the difficulty arises in this way. The person who was planning to buy the land in due course assigned his rights to someone else, who is now the appellant to this appeal, the assignee, Charles Scott Developments (South Devon) Limited, and it was someone on behalf of that assignee apparently who applied for planning permission; and it so happens that the notice of assignment was not given until after planning permission had been granted, which was long after the assignment. The question at issue in the case is whether the vendor is bound in those circumstances to convey to the assignee.
6. The agreement reads as follows as far as presently relevant:

"This AGREEMENT is made on the sixth day of March one thousand nine hundred and ninety BETWEEN GEORGE FREUND... (hereinafter called 'the Vendor') of the one part and TRIDENT DEVELOPMENT LIMITED... (hereinafter called 'the Purchaser') of the other part

NOW IT IS HEREBY AGREED as follows:-

1. In this Agreement the following expressions shall have the following meanings assigned to them:-

(a) 'the Property' means the freehold property described in the Schedule hereto...

(b) 'Contract Period' shall mean a period of ten years from this Agreement

(c) 'Contract Date' shall mean the third working day after the service by the Purchaser of a notice pursuant to the provisions of clause 2(c) hereof or by the Vendor pursuant to the provisions of Clause 3 hereof

d)'First Deposit' shall mean the sum of twenty thousand pounds

(e) 'Planning Permission' shall mean the grant of outline permission or the approval of any matters reserved in a planning permission following a planning application or appeal made by or on behalf of the Purchaser... for any residential development of the Property or any part or parts thereof OR shall mean the designation of the Property by the local planning authority as an area intended for residential development within the local Structure Plan

(f) 'Purchase Money' shall mean eighty per cent (80%) of the Open Market Value of the Property on the Contract Date

(g) 'Open Market Value' shall mean the value of the Property in the open market with the benefit of vacant possession on a sale between a willing vendor and a willing purchaser and shall be such sum as shall be agreed between the parties prior to the Contract Date or in the absence of agreement as shall be determined by a valuer appointed by the President for the time being of the Royal Institution of Chartered Surveyors on the application of either party at any time thereafter and the decision of the valuer shall be final and binding.

2.

(a) This Contract shall be conditional upon the Planning Permission being granted within the Contract Period

(b) If the Planning Permission shall not be granted within the Contract Period this Contract shall determine

(c) If Planning Permission shall be granted within the Contract Period the Purchaser shall notify the Vendor forthwith

(d) A deposit of ten per cent of the Purchase Money shall be paid to the Vendor's solicitors on the Contract Date or three working days after the amount of the Purchase Money shall have been determined in accordance with the provisions of Clause 1(g) hereof whichever is the later

(e) Completion of this Agreement shall take place at the offices of the Vendor's solicitors four weeks after the Contract Date... and upon that date the Vendor shall convey the Property to the Purchaser free from encumbrances

3. The vendor shall be entitled at any time before the Property is zoned for residential development by the local planning authority or before the Planning Permission shall have been granted but not later than the 25th September 1995 to serve notice on the Purchaser requiring the Purchaser to purchase the Property and thereupon the Contract shall become unconditional and the provisions contained in Clauses 2(d) and (e) shall apply.

4. The Vendor shall sell as beneficial owner and the Purchaser shall purchase the Property in consideration of the Purchase Money

10. The Vendor hereby undertakes to execute any agreement or agreements required under the provisions of section 52 of the Act [that is the Town & Country Planning Act 1990] or any other agreement which may be required by any statutory or local authority or other body as a prerequisite of Planning Permission PROVIDED THAT the Purchaser indemnifies the Vendor against all reasonable and [proper] costs incurred by the Vendor in connection with the execution of any such agreements

11. The Vendor hereby agrees with the Purchaser not to apply for or procure an application for any Planning Permission for the Property nor to oppose or procure opposition for any application for the Planning Permission."

7. On 6th March 1990 Mr Freund entered into the contract which I have just read. On 12th February 1996 there was an assignment between Trident and Scotts, the appellants before us. On 30th October 1998 planning permission was given for residential development over the land in question. On 15th March 1999 Mr Freund was given written notice of the 1996 assignment and of the fact that planning permission had been procured by Scotts. There is some evidence to suggest that Scotts had, through their agents, told Mr Freund of the fact of the grant of planning permission verbally not long after that grant. On 15th September 1999 a valuer was appointed and on 29th September 2000 the vendor issued proceedings to establish that he was not bound by the agreement any longer.
8. The judge decided the case very shortly. He focused on the definition of planning permission (which I have read), and in particular upon the words "following a planning application or appeal made by or on behalf of the purchaser". There is no doubt that the word "purchaser" included Trident; but there is equally no doubt that there is no reference in the agreement to "assignees". It had been argued on behalf of Mr Freund that in those circumstances the only planning application which could trigger obligations under this agreement was an application made by or on behalf of Trident. The judge said this:

"Firstly then, is Mr Blohm right in saying that the clause means exactly what it says, namely that the triggering planning application, which one assumes has succeeded, has to have been made by or on behalf of Trident and none other? Mr Blohm says the recital describes Trident as 'hereinafter called the Purchaser' with a capital P. ... I think there is no escape from that. This agreement did not contain a machinery for planning permission to be obtained by an assignee of the Purchaser, unless of course that assignee was acting for the Purchaser, ie Trident. That is not to say that Trident could not assign the benefit of the agreement, but the machinery for doing it would require that any planning application was made by or on Trident's behalf."

9. The judge then goes on to suggest a number of ways in which, if one substitutes the words "made by or on behalf of the purchaser or his assignees", the agreement would not really work. For my part I think there is force in that broad proposition. A number of potential problems can arise if one accepts that the word "purchaser" at all times in this agreement includes any assignee. In particular, the obligation of the vendor in clause 11 not to oppose any application for the planning permission would, on that construction of the agreement, apply to him even if the application was made by an assignee. That appears to me to be most unlikely to have been wanted by the parties. It could be said that, provided the assignee has given notice of the assignment to the assignor, then at least the vendor knows where he stands. That, however, has not happened in this case.
10. So far as clause 10 is concerned, again there are potential problems because the indemnity is given by the purchaser, and yet, under the construction, which is argued for on behalf of the assignee, the identity of the purchaser varies throughout the agreement and the meaning varies. It was said before us by Mr Dickens, who appears for the assignee, that the indemnity provided for in clause 10 is one that remains with the assignor and in that particular clause the word "purchaser" meant "assignor". That seems to me an unsatisfactory end result, not least because by definition the purchaser has divested himself of the asset in relation to which the indemnity is given and which might be regarded as providing him with the funds to make good that indemnity.
11. Clause 2(c) of the contract indicates that the purchaser shall notify the vendor upon the grant of planning permission forthwith. It is common ground that Trident did not notify the vendor; and although it may be that the assignee did notify the vendor the notification was verbal, whereas it is quite clear from clause 1(c) of the contract that notification under clause 2(c) is intended to be a written notice which is to be served.
12. Those essentially were the arguments before the judge. Before us it has been submitted that the judge was wrong. It is submitted that the assignee did not need to give any notice of assignment to the vendor before his obligations arose. For my part, for the reasons given by the judge, it seems to me that that cannot be right. It cannot be that the vendor is under an obligation not to oppose an application for planning permission made by someone of whose identity he is completely unaware.
13. Mr Dickens hesitated to say that the word "purchaser" in this agreement included anyone who might subsequently become a legal assignee, although at the time of making the application he was not a purchaser. That, he accepted (as I understand him), was not a proposition which squares easily with the way this agreement is formulated. For those basic reasons, which turn entirely on the construction of this particular agreement, I would hold that as a matter of construction the judge came to the right conclusion.
14. However there is before us a further application in relation to the admission of new evidence. The purport of that new evidence is said to be that Mr Freund and his advisers after March 1999 lulled Charles Scott Developments into a sense of false security. The submission proceeds on the assumption that proper notice could have been given thereafter, and if it had been then that would have been good enough in order to establish the claim of Charles Scott, or alternatively Charles Scott could have secured the application by Trident for planning permission so that the terms of the agreement were fulfilled.
15. A number of difficulties face the making of that application. First, it turns upon new evidence and only gets off the ground if the application to admit new evidence succeeds. It is admitted by Mr Dickens that all this evidence could have been taken in the court below and there was no reason why it should not have been done, apart from the fact that at the time it did not occur to anybody that it might have served a useful purpose. For reasons which I shall indicate shortly I have every sympathy with that idea never having occurred to anyone below, because I suspect it is a bad point anyhow; but he is faced with the problem that he did not take it below. Mr Dickens seeks to side-step that problem by an ingenious argument which went like this. There were two issues to be resolved in this case. One is the issue of construction: the other is an issue depending on estoppel and this new evidence. Had he taken both those points in his initial defence then the judge would have split the trial, decided the question in relation to construction, and on the assumption that that had gone against the appellant then the appellant would have appealed to this court. He would, if my proceeding comments are agreed with by my brethren, have lost in this appeal. But then the matter could have gone off as a second hearing which dealt with the facts as opposed to the mere construction of the agreement, and therefore, says Mr Dickens, no time has been wasted because these were entirely separate cherries rather than two bites at one cherry in the traditional phrase.
16. I am not persuaded by this submission. It seems to me by no means clear that the judge would have divided the trial in the way that is suggested. But in any event the point is by no means an overwhelming one; and indeed, in my view, a bad one. It is accepted by Mr Dickens that the point is not so good that if we let the evidence in then this court will find for him inevitably. He says there is enough in this point to send it back down below and see if the judge down below, having heard evidence on either side and perused the correspondence, finds that some form of estoppel, or estoppel by Convention, has arisen. But the whole basis of the estoppel is simply that it is said that Mr Freund's advisers lulled the appellants into a false sense of security until such time as they could no longer take any further action under the agreement because the agreement had run out by effluxion of time.
17. The basis of that submission is as follows. In October 1999 when a surveyor valuer had already been appointed (allegedly pursuant to the agreement) - or was on the point of being appointed, he had already been named - Mr Freund had made it clear that he might wish to make a challenge to the agreement of 6th March 1990. The valuer, in a document sent to both sides, recorded the procedure which had been agreed at a preliminary meeting which included this sentence:

"By 8th November Mr Palmer acting for Mr Freund will decide whether he is going to mount a challenge to the document dated 6th March 1990. If no challenge is to be made the parties will have one month, that is until 8th December, to submit written representations to me to assist me with my Valuation.

3. If a challenge is to be made we will know that by the 8th November and I will then agree to be 'put on hold' until such time as the dispute is settled and then we will make a fresh timetable."

18. On 5th November, before the expiry of this deadline, the solicitors for the vendor, Hugh James Ford Simey, wrote a letter to the valuer and to the solicitors for the purchaser, which included this phrase:

"In accordance with the directions that you gave on 18 October, we write to confirm that Mr Freund wishes to mount a challenge to the validity of the Agreement dated 6 March 1990. We believe that you are aware that Mr Freund does not believe that this accurately reflects the agreement that was reached at the time. We believe there may be other grounds upon which the Agreement can be challenged.

Due to the importance of the matter to Mr Freund - he is of course at risk of losing his home - we are seeking advice from a Barrister as urgently as possible. If so advised, and if agreement cannot be reached with Over Taylor Biggs and their Clients, then we anticipate lodging an application seeking an appropriate Direction with Exeter County Court.

In the circumstances, would you please agree to put the matter on hold for the time being. We anticipate receiving Counsel's Opinion within one month when we should be in a position to either lodge the papers with the Court or ask you to proceed further."

19. There then followed a gap of three months during which the parties, we understand, negotiated to no effect.
20. On 7th February the solicitors for Charles Scott wrote to the solicitors for the vendors rejecting the offer available so far, and continuing:

"There are only two alternatives which our clients are prepared to extend. Either the contract proceeds in accordance with its terms or the arrangement proposed in our Without Prejudice letter of 21st January is adopted. There is little doubt that this represents an extremely conciliatory approach...

Our clients are not prepared to go any further in accommodating Mr Freund and we are instructed that unless we hear from you by 15th February with confirmation that these arrangements are agreed the proposal will be withdrawn and we will be asking Mr Key [that is the valuer] to proceed with his valuation exercise with a view to concluding the purchase and obtaining vacant possession of the whole of the property with as little further delay as possible."

21. This elicited the reply on 15th February from Messrs Hugh James Ford Simey:

"Whilst our client's position remains reserved generally, the two alternatives that you set out in your letter, both involve Messrs Stratton & Holborow undertaking a valuation. In the circumstances, therefore, we would suggest that Mr Key is instructed to proceed with his valuation. We will then write to you further once our client has time to consider his position generally."

22. Mr Dickens argues that by this time, and by their failure before September 2000 to issue proceedings, the vendor has led the purchaser to believe that no point would be taken on the agreement on its validity, and that in those circumstances he was estopped on September 2000 from taking that point.
23. For my part I am not persuaded that any such estoppel even arguably arises on that correspondence. It would have been perfectly possible for the solicitors for the assignee at any time to have taken up proceedings themselves to establish the validity or otherwise of the agreement. They failed to do so. Both parties, perfectly understandably, were proceeding on the basis that something short of proceedings might prove fruitful. It has turned out not to be but there do not seem to me to be significant arguments for saying that there is an estoppel here.
24. In those circumstances I would refuse leave to adduce the extra evidence and also dismiss this appeal.
25. LORD JUSTICE CHADWICK: I agree that the application to adduce further evidence should be refused for the reasons which Lord Justice Schiemann has given. I agree also that this appeal should be dismissed on the issue of construction which is raised by the first five grounds in the notice of appeal. However, I reach that conclusion by a route which may be thought more circuitous than that adopted by my Lord. In those circumstances it is right that I should explain my reasons.
26. The short point raised by the appeal is whether the condition set out in clause 2(a) of the agreement made on 6th March 1990 has been fulfilled. The condition is "the planning permission being granted within the contract period". If that condition has not been fulfilled then under the terms of clause 2(b) the contract determined on 6th March 2000.
27. It is not in dispute that a planning consent in respect of the relevant land was granted on 30th October 1998. The issue is whether that planning consent can properly be regarded as "the planning permission" for the purposes of clause 2(a). That turns on whether the planning consent that was granted falls within the definition of "Planning Permission" set out in clause 1(e). That, in turn, turns on whether the application following which the planning consent of 30th October 1998 was granted was "a planning application made by or on behalf of the Purchaser".
28. The relevant planning application, a copy of which has been provided for us in the course of this hearing, was lodged with the local planning authority on 19th June 1998. It was made on what appears to be a standard form. The applicant is named on the form as "S Westwell", with an address given as "Nelson Securities UK Limited". The agent of the applicant is identified on the form as Ian Hobson Designs. The "Purchaser", named in the agreement of 6th March 1990 as the second party, is Trident Developments Limited, a company with a registered office in Guernsey. It is not suggested that the application of 19th June 1998 was made by or on behalf of Trident Developments Limited. At first sight, therefore, the planning consent obtained in October 1998 does not fall within the definition of "Planning Permission" in clause 1(e); with the consequence that the condition in clause 2(a) is not fulfilled. It was essentially on that short ground that the judge decided the point when it was before him.
29. I would not, myself, accept that the point is quite as simple as that. It seems to me that the expression "the Purchaser", where it appears in this agreement, must be capable of including a person to whom the benefit of the agreement has been assigned by Trident or by the assignees or successors of Trident. Unless the agreement is held to be non-assignable by Trident - a construction for which rightly the vendor does not contend - the expression "the Purchaser" must have that meaning in, for example, clause 2(e), clause 4 and clause 7. For my part I would not hold that the Purchaser, where that expression appears elsewhere in the agreement, cannot include an assignee from Trident.
30. The appellant, Charles Scott Developments (South Devon) Limited, claims as assignee from Trident under a deed made on 12th February 1996. It follows that the appellant was an assignee of Trident's interest under the agreement at the date "in June 1998" when the application upon which planning consent was subsequently granted was made. But, at that date, the appellant had not given notice of the deed of assignment to the vendor or to any person on behalf of the vendor. The appellant had not perfected the assignment under section 136 of the Law of Property Act 1925. It remained an assignment in equity only. The identity of the appellant as assignee was not known to the vendor at any time before the planning consent was granted. Indeed, the relevant notice under section 136 of the 1925 Act was not given until 15th March 1999; where it appears in a letter from the vendor's solicitors.
31. It is said - and the judge accepted - that, when the application for planning consent was made in June 1998, it was made by Mr Westwell of Nelson Securities UK Limited as agent and on behalf of the appellant, Charles Scott Developments (South Devon) Limited. In those circumstances it is said that the appellant, as assignee under the deed of 12th February 1996, was a person who comes within the expression "the Purchaser" for the purposes of clause 1(e); so that the application of June 1998 was made on behalf of the appellant as Purchaser.
32. In my view that argument must be rejected. It seems to me plain from the agreement as a whole, that the parties intended that the identity of the person who could claim to be the Purchaser under that agreement from time to time would be known to the vendor at all relevant times. The most obvious pointer to that conclusion, as it seems to me, is the put option which is contained in clause 3 of the agreement. As Lord Justice Schiemann has pointed out, the vendor was entitled to require the purchaser to purchase the property before planning permission had been granted by serving a notice upon him. If that right was to have any value the vendor has to know who the Purchaser is. He has to know either that the Purchaser is Trident; or that Trident has been supplanted by an assignee who has, by giving notice under section 136 of the 1925 Act, indicated that he has become the Purchaser and, as such, is willing to accept the obligations as well as the benefits under this agreement. It could not have been intended that Trident would remain liable under the put option if the benefit of this agreement had been assigned, at law, to another.
33. Further, it seems to me essential that the vendor should know who the Purchaser is at the time of the relevant planning application. That follows, in my view, from the provisions in clause 11 of the agreement. Those provisions require the vendor not to oppose or procure opposition for any application for the Planning Permission. In order to comply with that obligation the vendor must be able to identify an applicant for planning consent who falls within clause 1(e); because, unless the applicant for planning consent does fall within clause 1(e), the consent that is being sought is not within the phrase "the Planning Permission" for the purposes of clause 11. A person claiming to be the Purchaser, for the purposes of being an applicant for a relevant planning application within clause 1(e), must be an assignee who has given notice of the assignment; otherwise the only sensible meaning that can be given to "the Purchaser" is Trident.
34. Further support for that view, as it seems to me, is obtained from clause 10 of the agreement. That clause obliges the vendor to execute what may be conveniently called a "section 52" agreement in advance of the planning application, if so required, on terms that "the Purchaser" indemnifies the vendor against reasonable and proper costs incurred by the vendor in connection with the execution of such agreement. It is plain, as it seems to me, that the person from whom the indemnity is to be obtained is the person at whose behest the vendor is to execute the section 52 agreement. That person will be the applicant for the relevant planning permission under clause 1(e). It is very unlikely that the parties intended that a relevant application for the purposes of clause 1(e) could be made by an applicant who was not known to the vendor as the person who was to be the Purchaser. That requirement is not satisfied in this case.
35. For those reasons the appellant cannot bring itself within the expression "the Purchaser" for the purposes of clause 1(e) of the agreement; and accordingly, any planning consent obtained on its application of June 1998 cannot be a relevant planning permission for the purposes of clause 2(a).
36. SIR CHRISTOPHER STAUGHTON: I agree that this appeal should be dismissed. I, too, reach that conclusion for reasons somewhat different from those of my colleagues. I would start from first principle. The benefit of a contract can in general be assigned. The burden cannot. There are some classes of contracts where there can be no assignment. In particular, I refer to paragraph 89 of Volume 6 of Halsbury's Laws of England, which has the heading "Personal contracts and covenants":

"Where a contract involves personal skill or confidence, such as a contract between an author and publisher, the one shall write and the other publish a book, it is not assignable, and this principle extends to cases where the ability of one party to a contract to conduct his business and make it pay, and so to be able to pay the other party, is the subject matter of personal confidence. The same rule applies where the effect of the assignment of rights under a contract would be to increase the burden on the other party."

37. The contract for the sale of a farm is not in general a personal contract. The assignment of the rights of the purchaser will not, in general, affect the vendor. Take this very case: so far as we know it would make no difference to Mr Freund whether he executed a transfer in favour of Trident Developments Limited, or in favour of Charles Scott Developments Limited, provided he got the money before he did so.
38. Almost every contract states who the parties to it are. It gives their names. It may also give them labels, such as "vendor" and "purchaser". That is not an obstacle to there being an assignment, because the contract, as I see it, remains a contract between A and B as it always was. The assignee, let us suppose Mr C, has the power conferred on him to enforce the benefit of the contract; that is to say he has the right to enforce the benefits which belongs to B. So in this case. The contract describes the parties as George Freund hereinafter called the vendor; and Trident Developments Limited hereinafter called the purchaser. Their characteristics as vendor and purchaser do not change when there is an assignment. Trident remain the purchaser; but Charles Scott Developments Limited, the assignees, become entitled to enforce the rights of the purchaser.
39. What is the benefit in this case which the assignee became entitled to enforce? It was the right to receive a transfer of the farm if the condition upon which that was to happen had been fulfilled. The condition in paragraph 2(a) was:

"This contract shall be conditional upon the planning permission being granted within the contract period."

40. The planning permission is defined in clause 1(e) as:

"The grant of outline or detailed planning permission following a planning application or appeal made by or on behalf of the purchaser..."

41. That provision is not altered at all, in my view, by the assignment. It remains what it says. The planning permission must follow an application or appeal made by the purchaser. The purchaser in this contract is and remains Trident Developments Limited. Charles Scott Developments, the assignee, becomes entitled to enforce the right of Trident Developments, but that right has no content because the condition is not fulfilled.
42. The judge at the trial referred to the case of Warner Brothers Records Inc v Rollgreen Ltd [1976] 1 QB 430. In that case there was in the contract which was assigned more than one option. The question before the judge and the Court of Appeal was whether an equitable assignee could exercise the options. The judge and the Court of Appeal held that an equitable assignee could not do that. But it would seem that they all held the view that a legal assignee would have been entitled to do so. That, as it seems to me with respect to the judge, was nothing to do with this case. That was directed at whether the assignee could exercise a right, which was one of the benefits under the contract, before having a legal assignment. We are not concerned with whether the assignee in this case could exercise the rights under the contract. This case is about whether there was any right left for the assignee to exercise. I hold that there was not.
43. It may be said with considerable force, that it would have made no difference to Mr Freund whether the application for planning permission was made by Trident Developments or by Charles Scott Developments, although I do see the force of the point made by Lord Justice Chadwick that he would wish to know who, if anybody, was making an application for planning permission. My answer is that it may make not the slightest difference to Mr Freund who applies for planning permission, but it is in the bond: it has to be Trident.
44. As to the application for permission to adduce further evidence, I agree that it should be refused for the reasons given by Lord Justice Schiemann.
(Application and appeal dismissed; Appellants do pay the Respondents costs of the appeal, and of the application if any additional costs; costs to be assessed by a costs judge; permission to appeal to the house of Lords refused).