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
AND AN EXTENSION OF TIME

		Royal Courts of Justice Strand London, WC2 Tuesday, 15 October 2002

1. LORD JUSTICE BUXTON: This is a renewed application for permission to appeal from a judgment of His Honour Judge Charles Harris QC delivered in Northampton County Court in July 2002.
2. The brief background is that in 1999 Mr and Mrs Sykes, who are the respondents and were the defendants before Judge Harris, were owners of and wished to sell a public house called The Nag's Head. In due course, but only in April 2001, they sold it to Mrs Susan Turnbull. Two firms of estate agents were, at various times, engaged in the sale and negotiations. One was a firm called Cookseys, who were represented in the transactions and negotiations by a Mr Craig. The other is the firm Christie Owen & Davies (Christies), who are the claimants in this case. How the two parties became involved in the matter arose as follows. In 1999 when Mr and Mrs Sykes first wished to sell there were - and I use the word "dealings" in a moment in a neutral sense - dealings between Mrs Turnbull and Cookseys under a sole agency agreement that was made between Cookseys and Mr and Mrs Sykes. In due course Mr Sykes came to the conclusion that no progress appeared to be made on his behalf by Cookseys, and there was various correspondence between himself and Mr Craig in which Mr Sykes indicated that he wished to terminate the arrangement with Mr Craig. Mr Craig perhaps understandably did not want that to happen and effectively the matter petered out in the sense that no final determination agreed on both sides took place. That was in February and March 2000. In July 2000 Mrs Sykes - and it was accepted she acted on behalf of her husband as well - signed an agreement with Christies granting that firm what were described as sole selling rights for a period of at least six months. The important part of that agreement for present purposes was clause 5 (b), set out by the judge in paragraph 14 of his judgment. The clause was headed -

"When and how does the liability for payment arise?"

Sub-clause (b) provided:

"If contracts for the sale of the business are unconditionally exchanged after the expiry of the period during which we have sole selling rights but to a purchaser who was introduced to you by anyone during the period or with whom we had negotiations about the business during that period."

The important aspect of that agreement was that Christies required, and the Sykeses agreed to pay, commission on a sale that was made to a purchaser who was introduced to the Sykeses during the period of the Christie contract even though Christies did not themselves claim to have made any such introduction.

3. On 23rd February Mr Sykes terminated that agreement with Christies.
4. During this period Mr Craig of Cookseys had continued to take an interest in the matter and he re-appeared on the scene in active form in February or March that year with the result that on 2 April there was an exchange of contracts between Mr Sykes and Mrs Turnbull. That came to the attention of Christies who contend that they were, and continue to contend that they are, entitled to commission in respect of that sale because the introduction of Mrs Turnbull - and I use the word "introduction" neutrally - took place during their contract period, and therefore attracted the term in their contract I have already mentioned. Mr and Mrs Sykes decline to pay any commission because they say that the introduction of Mrs Turnbull took place before the date of the Christies contract.
5. The issue for the judge therefore was two-fold: first of all, what, on the proper construction of the contract, constituted an introduction; and, secondly, whether such an introduction by Cookseys had taken place before 28 July 2000 when the contact was entered into with Christies.
6. Mr Pawlak, who argued this case before the judge and has argued it before us, has contended that the judge misunderstood the correct meaning in law of the concept of introduction in matters of estate agency and, as a result and cumulatively, came to an incorrect determination on what had been the factual position.
7. First of all, so far as the law is concerned, it is, in my judgement apparent that the judge did direct himself correctly and in the light of the authority upon which Mr Pawlak relies. In paragraph 40 of his judgment the judge referred to the case in this court of John D Wood v Dantata (Estates Gazette 18 July 1987) and, in particular, to the judgment of Lord Justice Nourse. True it is that in that case, as more usually in an estate agency case, two agents were, as it were, competing with each other in an attempt to determine which of them had brought about or caused the sale. That Lord Justice Nourse recognised in the first part of the first paragraph quoted by the judge in our case where he said:

"`In truth I think there is but a single question to be answered: which of the two firms introduced the chief to the sale? Both language and authority established that that question must be answered by answering this further question: which of the two firms was the effective cause of the sale?'"

Lord Justice Nourse went on to say this further in the paragraph cited by the judge:

"Thus it is natural when looking at the word in its present context to attach significance to the first bringing together of the property and the person who ultimately purchases it, but the full phrase is `the introduction of a purchaser' and I think that that can only mean the introduction of the person who ultimately purchases not to the property but to the purchaser, or if you look at it from the vendor's angle, to the sale. In either case to the transaction which ultimately takes place. If you then apply the primary dictionary meaning of `introduction' you find that what you are looking for is the leading or bringing in of the purchaser to that transaction."

It was that test that the judge applied in paragraph 43 of his judgment when he said:

"To use Lord Justice Nourse's words, `Who led or brought in the purchaser to the transaction?' Or who really brought about the relation of buyer and seller?"

8. In this case, without going into the facts in unnecessary detail, it was established before the judge that there was significant contact between Mrs Turnbull and Mr Craig in 1999, well before the signing of Mr Sykes' agreement with Christies. Mr Craig gave her particulars and also kept generally in contact with her. The judge quoted some evidence given by Mrs Turnbull in paragraph 12 of the judgment -

"Kept in regular contact with Gavin"

I interpolate that that is Craig

"and discussed whether The Nag's Head was available on a few occcasions and each time told him that I was still interested in principle."

9. The judge had to look at those transactions and what happened thereafter, bearing in mind the view he formed of the factual reliability of the evidence he was given, in order to determine whether it had been Mr Craig who had brought Mrs Turnbull to the purchase. I interpose, it is quite clear the judge understood, in the light of what he had cited from Lord Justice Nourse, that the question was when Mrs Turnbull had been introduced to the purchase and not merely when she had been introduced to the property. The judge reviewed this matter in his judgment and said in paragraph 43:

"I think that there can really be no doubt that Mr Craig of Cookseys was the person who brought about the transaction. He first interested Mrs Turnbull in the property, he kept in touch with her about it, he arranged visits for her, he organised the provision of accounts and financial details, he agreed the final price. I find that Christie's activities involving the provision of a set of particulars and a website were irrelevant to Mrs Turnbull's decision to buy."

10. So the final and critical question is this: was this introduction of Mr Craig's within or without the period of Christie's agreement, the very question the judge was bound to ask himself. He reviewed the facts in the following three paragraphs of his judgment:

"44 Mrs Turnbull was first told of the property by Mr Craig well before the period but she formed her decision to purchase within that period, late in 2000 or early in 2001. It was then that Mr Craig, as she put it, `stimulated her interest', arranged her visits, procured the provision of the financial information she required and agreed the price with her. Thus, it could be argued, as Mr Pawlak did, that if Mr Craig was the effective cause of the sale it was at a time during the currency of the Christie contract.

45 It thus has to be considered whether it can be said that Mr Craig's original introduction of Mrs Turnbull to the property late in 1999 in some way died or was superseded by his later work so as to nullify its effect. If what Mr Craig did in 2000/2001 had been done by a different agent then I think it would be very strongly arguable that the later work would have constituted the effective introduction, because without it there would not have been a sale. However, I think it inappropriate and artificial to say that a person can supersede himself in this way. Craig first planted the idea of a possible purchase of that hotel into Mrs Turnbull's mind in late 1999. There it rested, alive but dormant, watched by him for 10 or 11 months until as a result of his stimulation it germinated into a decision to purchase, followed by a purchase without significant causative involvement by any other agent.

46 In these circumstances I do not think it appropriate in effect to conclude that the original November 1999 introduction was in some way spent, exhausted, dead, superseded or of no effect. I conclude therefore that Mr Craig's introduction of Mrs Turnbull to the defendants took place before the Christie agreement was signed."

11. It seems to me quite clear that it was entirely open to the judge on the facts he had found to take that view that he did of what had occurred. In particular, it was a realistic and practical view to take that once Mr Craig had introduced Mrs Turnbull to the purchase, as he found he had, it would require some very significant event, such as did not occur in this case, for that introduction to be in some way nullified or rendered of no effect in a context where Mrs Turnbull quite clearly remained interested in purchasing this public house.
12. Mr Pawlak was forced to say that it was not open to the judge to take the view of the facts that he did. I cannot agree. I quite accept that it is possible that a different tribunal might have taken a different view of the facts. That is far from saying that the judge's view of the facts was not open to him, and even further from saying that he made any error of law in his assessment of this case, bearing in mind that he clearly knew what test he had to apply to determine the concept of introduction to purchase, and set out carefully the judgment of Lord Justice Nourse which is agreed on all sides to be the correct guideline.
13. For those reasons therefore I, for my part, would not grant permission in this matter.
14. LORD JUSTICE KENNEDY: I agree. During the course of his submissions to us Mr Pawlak postulated the question - what would have happened if Mr Craig had been superseded by someone else part way through his dealings with Mrs Turnbull? That was a question the judge specifically asked himself in the course of paragraph 45 when he said:

"If what Mr Craig did in 2000/2001 had been done by a different agent then I think it would be very strongly arguable that the later work would have constituted the effective introduction, because without it there would not have been a sale."

But he went on to say that in the circumstances with which he was confronted he could not regard that as the reality.

15. As my Lord has said, in my judgment, that was a course the judge was entitled to take on the evidence with which he was confronted.
16. Accordingly, I too agree that this renewed application should not succeed.
Order: Application refused