England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
APPLICATION FOR PERMISSION TO RELY ON FURTHER EVIDENCE

		Royal Courts of Justice Strand London WC2 Monday, 29th July 2002

1. LORD JUSTICE TUCKEY: This is an application for permission to appeal by Mr Roger Freeguard from a decision of Judge Barratt QC, given in The Chichester County Court, in which he dismissed an appeal from a district judge who had made a charging order on the applicant's house. The order was made to enforce payment of a judgment debt for something over £5,000 which the applicant had been found liable to pay the judgment creditor, Arun Estates, for commission on the sale of his daughter's house.
2. When the judgment debt was not paid Arun threatened enforcement proceedings. On or shortly before 19th September 2001 - the date does not matter - it is common ground that the applicant and Mr Gearing from Arun Estates had a telephone conversation in which the applicant told Mr Gearing that a bankruptcy petition was due to be heard shortly against his wife, who was the co-owner of his house, and Mr Gearing agreed to accept £3,900 in settlement of the judgment debt. The applicant says that Mr Gearing did not specify any time for payment. Mr Gearing says that he wanted immediate payment. At all events, no such payment was actually received by Arun Estates. They started enforcement proceedings and the charging order nisi was made on 28th September. A few days before the return date in November the applicant sent a cheque for £3,900 to Arun's solicitors, enclosing copies of two letters which he had sent earlier to Arun. The solicitors returned the cheque saying that it was too late for them to accept it on behalf of their clients. The two letters had been sent to an office from which Arun had moved and they did not receive them. I need not refer .....
3. THE APPLICANT: May I interrupt you? You mentioned two things.
4. LORD JUSTICE TUCKEY: I am giving judgment. If you want to raise points you think I should correct, save them until the end.
5. I need not refer to the first of those letters because it cannot, in my judgment, have any legal consequence. The second letter was dated 26th September 2001, and said:

"Further to my letter of 20th September, as the action in bankruptcy against my wife is not proceeding, I am able to settle this matter on the terms which you offered. You stated that you would accept £3,900 in settlement.

I enclose herewith a cheque in the sum of £3,900 in order to settle this matter fully and finally."

6. The applicant's copy of the letter has at the bottom of it a copy of the cheque for that amount made out to Arun Estates, dated 26th September.
7. The applicant contended that there had been an accord and satisfaction and so the judgment debt had been discharged by 26th September or shortly thereafter and so the charging order should not have been made. The district judge and the judge disagreed. The judge held that the letter was not an acceptance of Mr Gearing's offer because it was too late and acceptance by post was not appropriate in the circumstances. If he was wrong about this he said that the rule in Pinnel's case did not preclude recovery of the full amount of the debt and Arun were not estopped from doing so.
8. The applicant in his notice of appeal complains that the judge allowed Arun to put in a further statement from Mr Gearing and that the judge cross-examined him while he was addressing him. In my judgment, the statement could not in any way have affected the outcome of the appeal and so there is nothing in that complaint. Moreover, there is no evidence to suggest that the hearing before the judge was unfair. It is obvious that the judge listened patiently to Mr Freeguard's submissions, and he went out of his way to pay tribute to his legal research.
9. For all that research, as I have tried to explain to Mr Freeguard this afternoon, there is a simple answer to his point about accord and satisfaction. Unless there was such accord and satisfaction it is unnecessary to consider the rule in Pinnel's case or equitable estoppel. Assuming for this purpose that there was an accord - that is to say an agreement comprised by Mr Gearing's offer on the telephone and the applicant's acceptance of that offer by posting his letter of 26th September, even though it was not received - there had also to be satisfaction. Often the promise of payment - put in legal language, executory satisfaction - will be enough, but not so here where it was obvious Mr Gearing was looking for payment or at least the receipt of the cheque before the impending bankruptcy. At the very least the satisfaction contemplated was receipt of cash or a cheque and possibly in the circumstances - although it is not necessary to go that far - if a cheque was sent it was contemplated that until it was presented and paid there would be no satisfaction. If the situation were otherwise any creditor who reluctantly agreed to accept a lesser sum on the promise of "cheque in the post" would find itself saddled with a bargain which had never been fulfilled. That is not what accord and satisfaction is about. This, I think, is the answer to the applicant's point.
10. Even if Arun took the risk that his letter of 26th September accepting their offer would not be received in terms of there being an accord or agreement, the applicant took the risk that the agreed satisfaction would be received. It was not. Having said that, I add that I would, if necessary, have agreed with the judge's analysis that there was no accord and satisfaction because in the circumstances the letter of 26th September was too late and there was nothing in Mr Gearing's conduct which would mean that Arun estopped from enforcing the original judgment debt. For those reasons I have concluded that this proposed appeal has no real prospect of success. So permission to appeal must be refused.
11. Mr Freeguard, what did you want to say?
12. THE APPLICANT: There are two points; I think the evidence is there. On the matter of bankruptcy, it was not in any way a ransom or threat to Mr Gearing because he and I discussed the matter and he said he would take advice from his solicitors as to whether or not a payment to them would be voided by any bankruptcy if they were treated as preferential creditors and paid.
13. LORD JUSTICE TUCKEY: I do not think I described it in terms of a threat. I merely said that in the course of the conversation you mentioned that, as you did, as you would accept.
14. THE APPLICANT: The other thing I would mention is two matters of fact. Mr Gearing says in his first statement that there was one telephone call and denied any further telephone calls. In fact, there were several telephone calls.
15. LORD JUSTICE TUCKEY: I have seen your additional statement.
16. THE APPLICANT: The most important thing as far as I am concerned is that if they had left their office - - well, they had not left their office. No 5 East Street, Horsham is still an Arun Estates office. Mr Gearing has moved around the corner into North Street. I am assured that post sent to 5 East Street would be received and ultimately in the hands of Mr Gearing. He says he moved. 5 East Street is the address of service. This is why I am saying that I am not at all happy that you say I said I stuck a cheque in the post. Mr Gearing is saying he never received it. It is a question of balancing - - - - -
17. LORD JUSTICE TUCKEY: They did not challenge you that you had sent a cheque in the post. You raised a query but you did not challenge them about them saying they had not received a cheque. It is a bit odd. If they had received a cheque they would have cashed it.
18. THE APPLICANT: By the time he did get the cheque they had instigated the application for a charging order nisi. It surprised me they were just going to go ahead with the charging order nisi - I do not know. It seems a bit hard that I am criticised for not checking that he had received the cheque.
19. LORD JUSTICE TUCKEY: That is not the basis for my decision.
20. THE APPLICANT: There it is.
21. LORD JUSTICE TUCKEY: Mr Freeguard, I will look at the transcript of what I have said, bearing in mind the points you have made. It does not undermine the conclusion at all, but I will make sure I have considered what I have said in the light of what you have said.
Order: Application refused