England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRISTOL COUNTY COURT
(HIS HONOUR JUDGE BURSELL QC)

		Royal Courts of Justice Strand London WC2 Wednesday, 11th September 2002

Wednesday, 11th September 2002

1. LORD JUSTICE WARD: Lord Justice Longmore will give the first judgment.
2. LORD JUSTICE LONGMORE: Allscan Services Ltd ("Allscan") contracted in early 1998 with Bristol Airport for the supply of health care services, including units for deposit of waste. That was a contract that provided for three months' notice on either side. On 26th August 1999 that contract became a contract with the defendants in this case, Dougland Support Services Ltd, rather than with Bristol Airport itself, and the provision about three months' notice continued.
3. There was to be a new terminal at Bristol Airport and when that was underway negotiations took place as to the increase in the services to be provided by Allscan. They sent a quotation in a standard form to the defendants and that quotation in its standard form included a provision as to three months' notice of termination, but added a sentence "the anniversary date then becomes the termination date." It is appropriate that I should read the whole clause as appears in the quotation.

"This continuous agreement may only be terminated provided that written notice is given by the party terminated to the other at least 3 months prior to the anniversary date. The anniversary date then becomes the termination date."

4. That offer was unacceptable to the defendants. A fresh quotation also including that printed term was sent on 19th January 2000 and was accepted as found by the district judge by conduct.
5. The question in the case is whether the contract was varied from an agreement that three months' notice should be given to an agreement that, as well, the date when termination took effect was to be the anniversary date. That is important because notice was given by the defendants to the applicants on 8th March 2001.
6. There was an issue raised by the defendants as to whether there had not been an oral agreement for notice to be one month rather than three months. That was resolved in favour of Allscan Services Ltd. Thus the three-month notice would then expire on 8th June 2001, but if the term in the quotation was incorporated into the contract and took effect, termination would only occur, it seems to have been agreed, in December 2001 or January 2002, the anniversary date of either the final quotation which was accepted, or perhaps the original contract with Bristol Airport.
7. The district judge held that the parties had no intent to alter the agreed termination provisions when the quotation was sent, the intention was only to alter the amount of the services provided and the price. The circuit judge held that once the defendants' evidence in relation to an asserted oral agreement of one month was rejected one should just look at the documents; and he held that the provision as to the date when termination took effect was incorporated into the contract.
8. It is now said on the renewed application for permission to appeal by Mr Kennedy, for the defendants, Dougland Support Services, that that is too simple an approach. He submits that just as the parties must have a common intent objectively ascertained to make a contract at the outset, so they must have a common intent to vary a particular term if a variation is to take place. If the intention objectively ascertained is to vary only some parts of the contract but not others it is at any rate arguable that the variation only takes place as to the aspects of the contract intended to be varied. It does seem to me that that proposition is at least arguable. In Evans v Merzario [1976] 1 WLR 1078 this court took the view that the intention of the parties objectively ascertained was relevant to the question whether there was a variation of the contract at all, and it seems to me arguable that such intention may also be relevant on the question whether a particular term was intended to be included in an agreed variation.
9. Mr Kennedy also makes the point that the circuit judge should not have reversed the district judge on a question of fact. So far as that is concerned, in my judgment it is at least open to Mr Kennedy to submit that the circuit judge is not entirely clear in his judgment as to whether he is saying that the intention of the parties is irrelevant in law and you only look at the documents, or whether he is accepting that the intention of the party is relevant and is intending to reverse the circuit judge on that question of intention. If it was the second, Mr Kennedy of course has the point that it was the district judge that heard and saw the witnesses and not the circuit judge.
10. The only matter that has given me pause for consideration in the granting of the application for permission to appeal is that this is a second appeal, nevertheless it does seem to me that there is a compelling reason for the Court of Appeal to hear the appeal arising from the fact that the circuit judge has departed from the decision of the district judge in a manner which arguably may be appealable.
11. So I would grant permission to appeal on ground 1; I would not grant permission to appeal on ground 2, which relates to quantum, time has gone by for a consideration of that question and it does seem to me that this court should not grant leave for that to be gone into again; and ground 3 as to costs Mr Kennedy accepts is just the same as ground 1. So I would be minded to grant permission to appeal if my Lord were to agree, but confine it to ground 1.
12. LORD JUSTICE WARD: I agree. I also incline to wonder whether, even if the judge is right that the termination clause is as set out in the document of 19th January 2000, three months' notice would not be effective in any event. To construe the termination clause as one which permitted notice to be given, say in the second month of the agreement but not to be effective until the anniversary date, would perhaps surprise men of commerce. They, I would have thought it is arguable, would more likely construe the arrangement (as the author of the document Mr Smith himself construed it) in March as set out in paragraph 7 of the statement of claim, that on its proper construction the agreement envisages three months' notice being given at any time before the end of the ninth month of the year; if given after the ninth month then it would operate on the anniversary. That may be arguable as well, though it has not been taken thus far. I would give permission to appeal on that first ground only. The matter should be listed before a court of three, though one member can be a High Court Judge, with a time estimate of half a day.
13. I add only that it is perhaps a pity that a dispute involving not a vast sum of money is going to incur in costs terms a disproportionate amount, and that the parties have not been able to resolve this by mediation. However I am not making it a condition of permission that mediation should be attempted.
(Application granted in part; no order for costs).