England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CROYDON COUNTY COURT
(His Honour Judge Coningsby QC)

		Royal Courts of Justice Strand London WC2 Thursday, 16th May 2002

1. LORD JUSTICE WARD: This is an application by Mr Buswell for permission to appeal the order made by His Honour Judge Coningsby QC on 28th November 2001. That order was made in proceedings brought years ago by Lloyds Bank Plc for a possession order.
2. The claim has probably been lost by now because it was brought in 1989, but it became resurrected latterly. According to the particulars of claim, the bank seek to obtain their possession order under a legal charge dated 20th November 1980, which was an all monies charge and which now, says the bank, covers various indebtednesses of Mr and Mrs Buswell, their borrowers, not only for the original monies they thought they were borrowing to build a home, but also for the covering of guarantees given for the indebtedness of Eggersmann (UK) Ltd and Planet Kitchens (Southern) Ltd. The amount alleged to be due to the claimant as at 1st February 1989 was said to be £225,000. It will be considerably more by now, but I do not have current figures. They do not matter.
3. Among the defences taken were, predictably no doubt, a defence by the wife that to some extent the charges are unenforceable against her on Barclays Bank v O'Brien principles. Mr Buswell likewise put in a defence at length, at a time when he was legally advised, and he too sought declarations that the charges and the first guarantee at least are unenforceable.
4. The bank seems to have done nothing much for a long time, resulting in an application to strike out the proceedings. That was dismissed by Judge Coningsby, and an application for permission to appeal failed in this court. Consequently, no less than eight days were set aside for the trial of the issues joined on the pleadings. 28th November 2001 was to be the first day of that trial. Common sense did at last prevail and in the week preceding that fixture the parties made efforts to compromise this litigation. It seems that the running was made by the solicitors for the bank and the solicitors for Mrs Buswell and by counsel respectively instructed on their behalf. Mr Buswell by now was acting in person and was drawn into the negotiations, allying himself much with the second defendant, his wife, in their joint attempt to deal with the bank. The result of those negotiations was accord and satisfaction. The parties came to an agreement which was reduced to writing and was signed by Cameron McKenna on behalf of the bank, by Mr Buswell and by Mrs Buswell.
5. The terms of that compromise were that the parties would submit to an order to be made by consent (as, indeed, in due time it was made by Judge Coningsby) as follows:

"Upon the Parties agreeing that the Second Defendant shall retain a 35% beneficial interest in the property known as Forest Ridge, Woldingham, Surrey ... and that she intends to continue to use the property as a home for herself

BY CONSENT IT IS ORDERED THAT

1. There shall be an Order for Possession of the property ... to the Claimant but that such Order shall be suspended on the terms set out in the Schedule.

2. Each Party's remaining claims and counterclaims are dismissed.

3. There shall be no order as to all costs ...

4. There shall be liberty to apply to implement this Order."

6. The schedule contained the product of the real negotiation. It is a complicated document, which I summarise in this way. It was agreed between the parties that the dispute be resolved in one of three ways. The first way contemplated was set out in paragraph 1 of the agreement:

"The Defendants do pay to the Claimant the sum equal to 65% of the value of the Property (to be calculated by reference to the valuation given by the Valuers in Paragraph 2 below), such sum to be paid to the Claimant by the Defendants by 1600 hours on 31 January 2002."

7. Then details were given for those valuations to be obtained. There were to be two such valuations, the basis of which was to be open market value (as defined in the RICS Appraisal and Valuation Manual). Two valuers were to be appointed, the claimant nominating three within five days and the defendants electing two of those three within seven days thereafter. In default of that, the valuers were to be appointed by the President of the Institute of Chartered Surveyors, the costs of the appointment to be shared between the claimant and the defendants equally.
8. If that scheme did not work, then scheme number two was provided for in paragraph 7 of the agreement:

"That in default of the payment by the Defendants to the Claimant on or before the 31 January 2002 of the sum set out in Paragraph 1 above ..."

the property was to be put on the market for sale forthwith by the defendants, with the conduct of the sale being given to the claimant, the price to be the best possible price in the then prevailing market conditions, on the basis of a sale at an open market value. The possession order was then to take effect, but to be stayed until it took effect on the defendants giving up vacant possession pursuant to the sale. I should add that in the event of that sale the claimant would, of course, receive its 65 per cent, but the second defendant, Mrs Buswell, would take 35 per cent of the net proceeds of sale.

9. The third event was that, in the event of contracts not being exchanged by 31st May 2002, a fortnight thence, the defendants were to give immediate vacant possession to the claimant, who could then sell the property as mortgagee in possession, accounting to the second defendant for 35 per cent of the sale proceeds.
10. That agreement was acknowledged to be in full and final settlement of all claims the parties had against one another in relation to the action, howsoever arising.
11. Mr Buswell apparently reflected upon that agreement and on Monday 26th November 2001, after a weekend to think about it, he appeared before Judge Coningsby and objected to the order being made and sought to resile from the agreement. He said to the judge that the method of valuation was unfair; that the amount to be paid to the bank should at all times be 65 per cent of a forced sale price, not an open market price. The difference at that time was thought to be between 65 per cent of £425,000 and 65 per cent of £360,000. The other parties were happy with their agreement and opposed it being reopened.
12. A point taken by Mr Buswell seems to have been that he had no legal advice before signing the agreement. That was rejected by the judge, who found:

"I find that there was no obligation on the other two parties to the negotiations to make sure that he had legal advice before he signed."

13. I agree with the judge in that conclusion. This was an arm's length negotiation between the parties, who were free and independent, and there is no requirement that everybody should be legally advised. It was a commercial agreement and Mr Buswell was free to have advice but, if he could not get it, it did not impugn the agreement.
14. As to the differences in method of valuation, the judge found that to be irrelevant because, as he said:

"If I find, as I do, that he entered into a binding contract, that is the end of it."

15. Again I agree, as I shall explain in a moment.
16. Mr Buswell complained, thirdly, that he had been pushed into the agreement, which was more for his wife's benefit than for his. But the judge held:

"It is not open to him, in my view, now to say that he was under some sort of unreasonable pressure or duress in entering into this agreement. There is no sign that I can find that there was any improper duress which he could rely on. He was a free party to this negotiation and entered into the agrement of his own free volition. It may be not particularly advantageous to him, but that arises from the commercial situation in which he was vis-a-vis the bank ...; it was a matter for him to judge."

17. The real burden of the judgment appears at page 31, where the judge held:

"My understanding is that once the parties to the litigation have voluntarily entered into a contract and where there appear to be no possible grounds for impugning the agreement, the court has no jurisdiction; it has to act upon the agreement made between the parties. They have decided to compromise the litigation in a particular way and the court has to approve the compromise, the proceedings are over and the court has no power to interfere with what has been agreed. That means that the Claimant and Mrs Buswell are entitled to have this agreement approved by the court. I do not have any residual power to alter the terms of this agreement, nor would any other judge. I could not find that the agreed open market method of valuation should be altered to estimated realisation price. To do that would be to interfere with the parties' contract and I have no power to do it."

18. In his submissions this afternoon Mr Buswell has complained mostly on other grounds. He says, first, that there was some misrepresentation. The misrepresentations, he says, were made by the wife's solicitor, Mr Cooper, who stated that Mr Buswell would be able to remortgage the property. Assuming the representation was made, the agreement provided in its first part for just that to happen, because remortgaging was the only way they were going to raise the money necessary to pay the bank pursuant to that envisaged first method of ending the litigation. The next representation was that further time would be granted to complete the remortgage if further time was needed. That was not a representation that Mr Cooper could have made on his client's behalf or on anyone's behalf. It is the bank who have control. The agreement is quite clear as to its timetable, and I cannot accept anything in that. The fact that Mr Cooper also stated, says Mr Buswell, that the applicant would have a 65 per cent interest in the property and his wife would have a 35 per cent interest in it does not seem to me to matter. If the mortgage had been arranged and paid off, it may well be that if Mr Buswell were to assume the whole of the responsibility for the mortgage repayments he would then stand in the shoes of the bank to the extent of 65 per cent.
19. The second complaint is of undue influence, but that was not really pursued. Mr Buswell was no doubt under pressure, but he was not under anybody's undue influence. He was not being imposed upon by those who owed him duties of confidence. There was no need for independent advice. There is nothing in that complaint.
20. Then he complains that it was inappropriate for the court to deal with matters as between husband and wife in the absence of a Part 20 claim between one or other of them. That would have force if the judge was making a judgment between husband and wife, but the judgment of the court was silent as to that. The judgment of the court was no more than that there be possession suspended on terms, the claims and counterclaims being dismissed. The arrangements between husband and wife, such as they were, for her to take 35 per cent of the property were not the concern of the court, were not before the court and were not the subject of an order of the court. There is nothing in that point.
21. Next, Mr Buswell complains that the timetable was always unworkable. It was not always unworkable. If two of the three names had been accepted, it would have worked perfectly well; and there is, in my judgment, no ground for repudiating a contract on the basis that the timetable was tight. It was not impossible, however tight it was.
22. But all of that, to my mind, comes to nothing. This is an attempt to appeal the order of the court. The order of the court was that by consent there be possession suspended on terms, with the claim and the counterclaim dismissed. Those were orders well within the jurisdiction of the court to make. They were the issues joined on the pleadings between the parties, and the judge had the jurisdiction to make the order he was invited to make.
23. I have come across a decision of this court in Noel v Becker and Another [1971] 1 WLR 355, where Davies LJ deals with the case of a county court judge refusing to make an order by consent. It was held that he should not have done so. Attention was drawn to a practice direction prevailing at least at that time, and Davies LJ said:

"The second paragraph is not in my view unimportant in this context. It reads:

`In the case of terms scheduled to a consent order these terms represent an arrangement between the parties, and the registrar is not concerned to approve them, although he may properly offer suggestions upon them if it appears to him that they may cause some difficulty.'

I think that that applies to the present case. These terms were scheduled to the consent order and, speaking for myself, I do not think that the judge was concerned to approve them or disapprove them. There is nothing in the order which the court was asked to make which was outside the jurisdiction of the court; and, without more ado, I would say that the county court judge fell into error here and ought to have made the order agreed upon between the parties."

24. Edmund Davies LJ added this:

"The county court judge appears to have taken upon himself a duty of scrutiny and vigilance in relation to the Tomlin order drawn up by the parties which he was not called upon to exercise. He fell into that error and as a result this appeal has had to be brought. I agree, both parties conferring, that the appeal should be allowed ..."

25. In my judgment the law is in exactly the same state today. This was an order the judge was asked to make by consent. The order as drawn was within the jurisdiction of the court. The terms scheduled represented the contract made between the parties, with which the court was not directly concerned. That was a matter for the parties freely to negotiate. I am satisfied that they did freely negotiate it. I can see no reasonable ground for impugning that agreement or any reasonable ground for contending that it should be set aside. It follows, in my view, that the application for permission to appeal must be dismissed.
26. I add only this in conclusion. I pointed out to the bank that that part of the order which envisaged the parties putting the property on the market for sale at an open market price was still available to them but, since it envisaged contracts being exchanged within a fortnight, in the real world that is unlikely to happen. Hence the bank, if they enforce their agreement, will have to take possession of the property and sell it for whatever price they best can achieve. On the judge's figures, a sale at open market prices would have produced for them, on my arithmetic, something in the region of £284,000, give or take a pound or two; whereas, on the judge's figures, they would receive £240,000 on an open market valuation. If the bank wish to exercise their right to sell this property without more ado, they are, in my judgment, entitled to do it. They will, if they do so, lose £44,000, and I shall be delighted to see them lose that money if they choose not to enter into a meaningful, but final, negotiation with this couple to come to some sensible arrangement in everybody's best interests to get the best price they possibly can for the property and for the settlement of their respective interests. If the bank wish to play it that way, that is their choice. Mr Buswell is in no position to complain.
27. I add the final footnote to the postscript. If the bank do wish to engage in negotiations with the parties outside this court, having refused to do so when offered the opportunity earlier this afternoon, then Mr Buswell had better appreciate that he is the beggar, that beggars cannot be choosers and that anything that is offered by the bank ought to be grasped with two hands because, alas, his time has run out so far as the court is likely to be concerned.
28. The application is therefore dismissed.
29. LORD JUSTICE KEENE:I agree that this application should be dismissed. I would only add that I am conscious that the court has not heard this afternoon any detailed account on behalf of the bank of the problems they may have encountered during the last six months or so in seeking to deal with the applicant. In those circumstances it may be understandable if the bank is not enamoured of the option of seeking to arrive at some further negotiated settlement with the applicant. Nonetheless, I entirely concur that this application must be dismissed.
Order: application for permission to appeal dismissed.