COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Buckley)
Strand London WC2 Friday, 12th July 2002 |
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B e f o r e :
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BOYD & HUTCHINSON (A FIRM) | ||
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JOHAN MICHAEL RICHARD FOENANDER | Applicant |
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of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0207-421 4040
Fax No: 0207-831 8838
Official Shorthand Writers to the Court)
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Crown Copyright ©
"Yourselves -v- Foenander. Hearing - 23rd November 1999
We write further to our various telephone conversations today to confirm that agreement has been reached in settling the outstanding amount owed to you on the following basis. Upon such agreement being reached we agree to an adjournment of the hearing tomorrow with liberty to restore. The agreement is based on the amount said to be due today under the terms of a charging order absolute obtained by you against our client on 17th December 1997."
"Therefore, by payment of the total sum of £6,900 as indicated above, our client will discharge all liabilities due to you, including any orders for costs and interest in the above mentioned proceedings. We are grateful that you will attend court tomorrow to indicate to the district judge that agreement has been reached on that basis." (emphasis added)
there was a postscript in manuscript:
"This agreement is made on the assumption that no monies have been paid to you since 17th December 1997 and therefore that at that date the sum of £6,928.78 plus interest was due and owing. You also agreed to secure the removal of the caution registered in your favour upon payment of the £6,900."
"I am entirely satisfied that the £5,300 is a debt owed, in addition to the matters that were the subject of the proceedings in the Lambeth County Court; but, more to the point, looking at the history of this matter and at all the circumstances, it is plain to me that there was not what has been referred to as a 'global compromise', and that there is nothing, when one looks at the letters and attendance notes in context, and reads the whole of them -- there is nothing to demonstrate that such an agreement was made, nor even that such an agreement was intended. If Mr Foenander himself subjectively hoped that that was what was being done, that is unfortunate because what one side hopes or subjectively believes is going on, unless it is communicated in some way to the other side, is not going to have any effect as a matter of law."