England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		7th December 2004

Sir Donald Rattee :

1. This case concerns a piece of land known as the Redwood Nursery Site ("the Nursery Site") situated on the edge of Potton, Bedfordshire. In June 1988 the Nursery Site was bought by a company called Cresta Management Services Ltd. ("Cresta"), which carried on the business of land development. Cresta was a family company whose shares were held as to half by the Claimant, Mrs. Francis, and as to half by her husband. In 1990 Cresta sold off part of the original Nursery Site, and this case concerns only the remainder retained by Cresta. In the remainder of this judgment I shall use the term "the Nursery Site" to mean such remainder. The Nursery Site adjoins a piece of land to which I shall refer as the "Recreation Ground Site", which was at the material time owned by a charitable body called Potton Consolidated Charities ("PCC") and used as a public recreation ground.
2. On 9 September 1991 the Defendant Barclays Bank plc ("the Bank") agreed to provide loan facilities to Cresta. The Bank took security for the repayment of such loan including:

(a) A first legal charge over the Nursery Site;

(b) An unlimited personal guarantee by Mr. Francis of all Cresta's liabilities to the Bank; and

(c) A first legal charge over a house, 26, Station Road, Potton, which shortly afterwards became the matrimonial home of Mrs. Francis and her husband, which was then beneficially owned by them as joint tenants, but is now owned by them as tenants in common in equal shares, such latter charge being to secure any indebtedness of Mr. Francis to the Bank under his guarantee.

3. On 3 February 1992 Cresta went into compulsory liquidation owing a substantial sum to the Bank. On 8 October 1993 the Bank made demand on Cresta's liquidators and Mr. Francis in the sum of £409,569 odd in respect of Cresta's indebtedness to the Bank, and informed Mrs. Francis that, unless it received from her an amount equal to the value of its security over 26, Station Road, the Bank might proceed to sell that property without further notice to Mrs. Francis.
4. On 8 February 1994 the Bank appointed the Defendants Duncan Kirkby and Henry Diamond as Law of Property Act receivers of the Nursery Site, which was Cresta's only significant asset. Messrs. Kirkby and Diamond were partners in the Part 20 Defendant firm Kirkby & Diamond. That firm carried on a practice of surveyors, including, in the words of Mr. Diamond, valuation and development planning work. Mr. Diamond is, and was at all material times, a Chartered Surveyor.
5. On 15 February 1994 a bankruptcy order was made in respect of Mr. Francis. In due course the Receivers proceeded to sell the Nursery Site, and on 30 October 1995 an agreement for sale was entered into between the Bank as mortgagee and a company called Broadland Developments Ltd. ("BDL"). Under the terms of that agreement the price payable on completion (which in fact took place on 27 November 1995) was £50,000, but the agreement also provided for payment by BDL of a further sum ("the seller's share") in the event, within 10 years of the date of the agreement, of (a) a disposal by BDL or any successor in title of BDL of the Nursery Site, or part of it, with the benefit of planning permission other than planning permission for the use of the property as residential accommodation for people in need of care or (b) the implementation of any such planning permission by BDL or any successor in title of BDL. The seller's share was defined as one half of (a) in the case of a disposal, in effect, the amount of the consideration for the disposal, less the costs of any development carried out on the property before disposal or (b) in the case of implementation of a planning permission, the then current market value of the property less a figure of £10,100 per acre. I shall refer to these provisions of the sale agreement as "the clawback provisions".
6. Following this sale of the Nursery Site, Messrs. Kirkby and Diamond resigned from office as receivers on 4 December 1995.
7. BDL was a company of which half the issued shares were held by a Mr. Robert Green and his wife. In January 1997 Mr. Green approached Mr. Diamond, the former receiver of the Nursery Site, offering to make an immediate payment to the Bank of £25,000 in consideration of the Bank agreeing to a variation of the clawback provisions to the effect that the seller's share payable to the Bank on any future disposal of the Nursery Site with planning permission or implementation of planning permission on that property should be limited to the sum of £75,000. I shall have to say considerably more later in this judgment about the circumstances and manner in which Mr. Green made the approach to Mr. Diamond which I have just mentioned, and the negotiations which followed that approach. For present purposes, it is sufficient to say that the Bank agreed to Mr. Green's proposal subject to the immediate payment by BDL being increased to £35,000 and the capped seller's share to £80,000. A variation of the clawback provisions to this effect was executed by BDL and the Bank on 27 March 1997. The variation agreement made certain other amendments to the clawback provisions, but the only one I need mention is the addition to the events in which the seller's share should become payable on the grant of any planning permission in relation to the Nursery Site pursuant to an application submitted by BDL or duly authorised on behalf of BDL.
8. At all times up to and including the variation of the clawback provisions the Nursery Site was outside the area of Potton allocated by the planning authorities for residential development. However, in November 1997 what is called the First Review Deposit Draft of the Local Plan was published. This included the Nursery Site in the area allocated for possible residential development, and in particular provided that the Nursery Site and the Recreation Ground Site together should be regarded as appropriate for development with approximately 95 dwellings.
9. On 23 November 1998 BDL submitted a planning application for the residential development of land including the Nursery Site. This application was revised on 16 March 1999 and recommended for approval by the Mid-Beds District Council planning committee on 25 May 1999. Before the formal grant of planning permission occurred, on 3 March 2000 BDL contracted with a development company called Westbury Homes (Holdings) Ltd. ("Westbury") to sell the Nursery Site to that company for the sum of £2,200,000. The Bank was paid the sum of £80,000 due to it from BDL as the seller's share under the terms of the variation of the clawback provisions on 5 April 2000. On 1 October 2002 a revised planning application was approved for the erection of 96 dwellings on the combined area of the Nursery Site and the Recreation Ground Site. Having acquired the Nursery Site from BDL, Westbury acquired the Recreation Ground Site from PCC and the combined site has been developed. The recreation ground has been moved to an alternative site in Potton.
10. Meanwhile, on 8 December 2000 a possession order was made by the court in favour of the Bank relating to Mr. and Mrs. Francis's house, 26, Station Road. That order has not yet been enforced, and Mr. and Mrs. Francis still live in the house.
11. In these proceedings Mrs. Francis now alleges that, in entering into the agreement with BDL varying the clawback provisions on the terms on which it did, the Bank was in breach of the equitable duty which it owed, as mortgagee of the Nursery Site, to her as a person interested in the equity of redemption. She had an interest in such equity of redemption by reason of the fact that 26 Station Road, in which she is interested, is charged to the Bank by way of collateral security in respect of the indebtedness that was charged on the Nursery Site. In essence her case as pleaded is that the Bank was in breach of that duty in not either refusing BDL's request for such a variation, or agreeing to it only on terms that were much more favourable to the Bank than those in fact accepted by it. However, in the course of his closing submissions, Mr. Buttimore, counsel for Mrs. Francis, submitted that, on a proper view of the evidence, it was clear that, had it and its agents acted properly, the Bank would not have entered into any variation of the clawback provisions. On this basis, on the assumption that the other events that I have described had still occurred as they did, the seller's share received by the Bank would have been of the order of £1 million, leaving nothing to be recouped by the Bank from 26, Station Road. Mrs. Francis therefore seeks a declaration that that property is free from the Bank's charge.
12. The Bank denies that it acted in breach of the duty which it accepts it owed to Mrs. Francis as a person interested in the equity of redemption of the Nursery Site, but it claims against Messrs. Kirkby and Diamond and their firm, Kirkby & Diamond, damages for negligent breach of duty in respect of advice given to the Bank by Mr. Diamond in connection with the variation of the clawback provisions. The Bank's case against them is based on the proposition that, had Mr. Diamond given the Bank proper advice, the Bank would not have agreed to any variation of the clawback provisions, so that in 2000 it would have received a seller's share of the order of £1million. The Bank's claim against Kirkby & Diamond is not limited to the amount (if any) by which Mrs. Francis succeeds in reducing the Bank's charge against her property. Instead it is for the full amount of what would have been produced for the Bank by the clawback provisions, had they not been varied. It is not even limited to the outstanding indebtedness to the Bank of Cresta, because on 17^th July 2003 the Bank bought from Cresta's liquidator any outstanding interest he might have had in the equity of redemption in the Nursery Site.
13. Kirkby & Diamond deny that Mr. Diamond was guilty of any breach of his duty to the Bank. The Bank rightly accepts that it has no defence to Mrs. Francis' claim on the basis that it acted properly in instructing Kirkby & Diamond and then acting on Mr. Diamond's advice. For it is now clearly established that in carrying out its duty to those interested in the equity of redemption, a mortgagee is responsible for the negligence of its agents. (see Cuckmere Brick Co. Ltd. v. Mutual Finance Ltd. [1971] 1 Ch. 949 at 969B, 973E and 980B-E and Raja v. Austin Gray [2002] EWCA Civ 1965 paras. 29-36).
14. The basis of the claim by Mrs. Francis against the Bank and the claim by the Bank against Kirkby & Diamond is that, had Mr. Diamond acted properly in advising the Bank about Mr. Green's request for a variation of the clawback provisions in 1997, it would have become apparent to the Bank that there was a very real prospect of planning permission for residential development of the Nursery Site being obtained well within the 10 year period of the clawback provisions, and of some disposal or implementation of such a planning permission also happening within that period, so as to give rise to the Bank's entitlement to a seller's share ascertained in accordance with the original clawback provisions. Had this been properly made apparent to the Bank by Mr. Diamond, it is alleged by Mrs. Francis and the Bank, it is clear from the evidence that the Bank would not have agreed to vary the clawback provisions, and likely, in the light of actual subsequent events, that the Bank would have received of the order of £1 million from those provisions, instead of the £115,000 actually received from the variation of the clawback provisions.
15. Thus it is now necessary to consider in more detail the facts relating to Mr. Green's approach to Mr. Diamond in January 1997 and the way in which Mr. Diamond and the Bank dealt with that approach.
16. As I have previously said, at all times prior to Mr. Green's approach the Nursery Site was not included in the Local Plan for the area as appropriate for residential development. However it is clear from the evidence that very soon after BDL's purchase of the Nursery Site from the Bank in November 1995, Mr. Green on BDL's behalf was seeking the Potton Town Council's support for its allocation in an expected revision of the Local Plan as suitable for residential development. This is apparent from a letter dated 13 March 1996 written by Mr. Green to a Mr. Bicknell, Vice-Chairman of the Potton Town Council, and referring to a meeting he and one Stephen MacCormack had had the previous evening with the Town Council. Mr. MacCormack's wife held the half of the issued shares in BDL which was not held by Mr. Green and his wife. The letter purported to be written by Mr. Green as a director of another company, BMH Construction Company (Clifton) Ltd., building contractors, whose shares Mr. Green told me were held by Mr. & Mrs. MacCormack. Having referred in the letter to both the Nursery Site and the Recreation Ground Site, Mr. Green went on to say this:

"As stated during the meeting we are particularly keen to join with you and promote both sites in order that they may be allocated for residential purposes in the next structure plan. As a demonstration of our will to work together with yourselves and the PCC, we are prepared to offer either up to an acre of land on which to locate the new village hall/pavilion or alternatively provide a cash sum of £150,000 to be expended as directed by the PCC in association with yourselves."

17. On 21 March 1996 the Clerk to Potton Town Council, Mrs. Mayne, who gave evidence before me, wrote to Mr. Green a letter referring to his offer in his letter and saying this:

"This matter was discussed by the Town Council on Tuesday 19 March and it was agreed that your offer would be accepted and a recommendation made to the District Council that [the Recreation Ground Site] and [the Nursery Site] should be included in the Local Plan as the preferred site for development in Potton."

18. On 13 June 1996 the Potton Town Council Clerk wrote to the District Planning Officer of the Mid-Beds District Council (the relevant Planning Authority) referring to a letter in which the Town Council had told the District Planning Officer that the Town Council wished to have the Recreation Ground Site included in the Local Plan as potential housing development land and saying that the Town Council had now agreed to support the Nursery Site for similar inclusion.
19. On 14 June 1996 a deed was executed between BDL and Potton Town Council. It recited that BDL "is proposing the designation of the [Nursery] Site for residential development purposes in the forthcoming First Review of the Mid Bedfordshire Local Plan ('the Local Plan Review') and if successful is willing to assist the Council in the provision of a new Village Hall/Pavilion as herein set out." The deed then provided that, on satisfaction of the condition set out in a schedule to the deed, BDL would either transfer a piece of land of about one acre to the Council for the purpose of a new village hall or pavilion or pay the sum of £150,000. The condition set out in the schedule to the deed was the expiration of 19 weeks after formal notice of the final adoption of the Local Plan Review should be published by the planning authority, including therein the designation of the Nursery Site for residential development.
20. On 17 June 1996 Mr. Green on behalf of BDL wrote to the District Planning Officer in the following terms:

"Dear Chris,

Re Redwood Nurseries, Potton

Further to our meeting, we write as registered owners of the above mentioned site.

We are aware that historically the Potton Town Council have objected to the residential location of the site in Myers Road currently proposed in the First Review Consultation Draft Local Plan as being inappropriate. We are also aware that there is a strong local need for a village hall/community centre which is at present unable to be developed due to the lack of sufficient funds and/or appropriate site.

After serious discussions and negotiations with Potton Town Council, this Company has offered considerable planning gain in order that the two sites on Sandy Road, namely Redwood Nurseries and the Recreation ground, may be allocated for residential development as an alternative to that proposed in the First draft of the Local Plan.

To this end the Company have [sic] entered into a Deed with the Town Council to the effect that in the event that the two sites are allocated in the current review of the Local Plan, considerable benefit in the form of land and/or cash sum will accrue to the Town Council for the benefit of the whole community. I also believe that our proposals have the support of the local Mid Beds District Councillors, namely Anita Lewis and Diane Gurney.

I am also able to confirm that this Company has already made progress in securing an option to purchase sufficient land to relocate the current Recreation Field, should the Town Council so wish in due course.

Please accept this letter as a demonstration of our support for both sites and in particular the seriousness of our intent by virtue of the planning gain which would accrue to the local community. I trust the foregoing may be considered along with support from both Potton and Mid Beds District Councillors.

I enclose a site plan for ease of reference and if there is any further information you may require from us I would be only too happy to meet with you and discuss the matter further."

21. On 12 December 1996 Mr. Green on behalf of BDL wrote to the Mid-Beds District Council Planning Department reporting that BDL had obtained an option to acquire from a Mrs. Munns of an address in Potton approximately 5 acres of land that BDL could offer for use as an alternative recreation ground, should both BDL and PCC be jointly successful in "the promotion of" the Nursery Site and the Recreation Ground Site. It is clear from its terms that this letter was written as a matter of urgency so that it could be placed before a meeting of the Mid-Beds District Council Local Plan Review Working Party scheduled for the following day. Minutes of that meeting record that "subject to an appropriate package that will enable the satisfactory relocation of the recreation ground and associated buildings at Sandy Road, officers conclude that the development of this site may well be appropriate. It could provide for some 90 dwellings." It is in my judgment clear that "this site" referred to was the Nursery Site and the Recreation Ground Site.
22. By an Option Agreement also dated 12 December 1996 BDL did indeed acquire such an option as Mr. Green described in his letter, exercisable within a five year period, and by the same agreement BDL in fact undertook to promote the Nursery Site (for some reason defined in the agreement as "the Recreation Ground") for development as a residential housing estate during the period of the option.
23. Mr. Green said under cross examination that the definition of the Nursery Site as "the Recreation Ground" in the option agreement was a mistake that he had not noticed before, and that he had intended the obligation undertaken by BDL to be to promote residential development of the Recreation Ground Site and not the Nursery Site. It was put to him that this was not so, and that the reason for defining the Nursery Site as "the Recreation Ground" was to conceal from Mrs. Munns that it was in fact the Nursery Site that BDL was intending to develop. I found Mr. Green a very unsatisfactory and at times untruthful witness. I do not accept his assertion that the definition was a mistake.
24. I also reject as untrue Mr. Green's evidence that he did not trouble to ascertain the result of the Working Party meeting on 13 December, which he had clearly been anxious should know of the option to acquire land from Mrs. Munns. I find that he did know of the recommendation made at that meeting and recorded in the terms which I have just quoted.
25. I therefore find that, when he approached Mr. Diamond with his request for a variation of the clawback provisions, Mr. Green believed that there was at least a very real prospect that planning permission for the residential development of the Nursery Site would be available in the near future. I am satisfied that this was the only reason he was prepared to offer the Bank an immediate payment of £25,000 to get the seller's share under the clawback provisions capped at a figure of £75,000, so that he could make his development plans free from the liability to pay a very much bigger sum to the Bank once they matured.
26. So what did he tell Mr. Diamond of his plans? Sometime in January 1997, before 17 January, Mr. Green initiated a meeting with Mr. Diamond, whom he knew from previous business dealings with him, and who he knew had been one of the receivers of the Nursery Site at the time of its sale to BDL. Not surprisingly at this distance of time Mr. Diamond accepted in his evidence to me that he had no actual recollection of what was said at the meeting. Unfortunately he does not appear to have made any attendance note of it. He set out in his witness statement a fairly detailed account of what he was told by Mr. Green, but it became clear from his cross-examination that this was not from his own recollection, but from his reading of subsequent contemporaneous correspondence, and I consider that correspondence is the only reliable evidence of what transpired between Mr. Green and Mr. Diamond. I shall refer to some of it, but before I do I should say that I find that after Mr. Diamond's initial meeting with Mr. Green, Mr. Diamond telephoned a Mr. John Read of the Bank, and told him of Mr. Green's approach. Various versions of the instructions given by the Bank to Mr. Diamond emerged from the evidence. There is no written record of them on either side. However, both Mr. Read of the Bank and Mr. Diamond asserted or accepted that the former instructed the latter to investigate the offer made by Mr. Green and report upon it to the Bank. I accept Mr. Read's evidence that he was suspicious of Mr. Green's motives in making the approach reported by Mr. Diamond. He realised, as any sensible person must have done, that Mr. Green was unlikely to volunteer an immediate payment in consideration of a variation of the clawback provisions, unless he considered there was a real prospect of their coming into operation.
27. I turn now to the contemporaneous correspondence. On 17 January 1997 Mr. Green wrote to Mr. Diamond a letter which included the following:

"Re: Sandy Road, Potton.

Further to our recent meeting and telephone conversation in connection with the above mentioned development, I am pleased to be able to table our proposal which I trust the Bank will find acceptable.

We are prepared to offer a down payment of £25,000 on account of the overage provision [i.e. the clawback provisions] with a proviso, that should any further enhancement accrue under the Terms of the Agreement already in existence between Broadlands/Barclays such additional overage as may become payable shall not exceed £75,000. For the avoidance of doubt, the total overage will be minimum of £25,000 payable immediately and maximum of £100,000."

28. It is Mr. Diamond's evidence that, after receiving the approach from Mr. Green, he telephoned the Development Control Department of the Mid-Beds District Council and enquired whether there had been any recent change in the current deposited town plan affecting the planning status of the Nursery Site, and was told, quite correctly, that there had not been any such change. Mr. Diamond accepted under cross examination that he was aware from published information that a review of the town plan was under consideration, but he made no further inquiries of the planning authority relating to this. I have to say that I did not find his evidence of his telephone call to the Development Control Department of that authority very satisfactory. Kirkby & Diamond's original defence to the Bank's claim contained no reference to Mr. Diamond's having made enquiry of the planning authority, despite the fact that an alleged failure on his part to make proper enquiries before advising the Bank on Mr. Green's approach was clearly an issue raised by Mrs. Francis' and the Bank's pleadings. The making of such an enquiry of the Development Control Department of the planning authority was first mentioned in Mr. Diamond's witness statement. Moreover, Mr. Diamond's recollection of events in 1997 is understandably vague except where he has reminded himself from available documents. There is no documentary evidence of such an enquiry, but this fact is consistent with Mr. Diamond's failure to keep attendance notes generally. On the other hand I found Mr. Diamond an honest witness, though at times a careless one. I accept that he believes that he made the telephone call to the Development Control Department which he now says he did, and on balance I find that he did make such call.
29. On 28 January 1997 Mr. Diamond wrote what has become an important letter in this case to the Bank. In it, after referring to the then existing clawback provisions and Mr. Green's proposal to vary them, Mr. Diamond said this:

"4. The Mid Beds Draft Local Plan is currently under review. The village boundaries for Potton are as shown on 'Potton Inset 42' attached. The site we are concerned with is shown edged green upon that plan. I consider it most unlikely that any agreement can be reached with the Local Planning Authority within the remaining claw-back period to extend the village boundary to include the site.

5. Broadlands Developments Ltd are in discussion with a number of local councillors, and the Potton Consolidated Charities who own the recreation ground shown edged blue upon 'Potton Insert 42' with a view to reaching agreement that representations should be made in the consultation process to get the recreation ground re-zoned for residential development. Part of that approach would involve identifying an alternative recreation ground – hence the interest in Redwood Nurseries.

6. Considerable work will need to be undertaken by Broadlands Developments Ltd to get such an amendment approved, but it is clear from their approach that they believe they have a reasonable chance of success. As part of the negotiations with both local councillors and the Consolidated Charities it has been provisionally agreed that the Charities would get not only land to replace the existing recreation ground, but also a new pavilion as payment in kind. The extent of the pavilion has yet to be defined but I enclose copies of plans 3 and 4, showing some indicative layouts.

7. It has to be recognised that a re-zoning of the recreation ground to residential use does not necessarily impart value to Redwood Nurseries, as other land upon the periphery of the village could be utilized. Nevertheless, if planning consent were to be forthcoming for the use of Redwood Nurseries for a pavilion and playing field, a value in excess of 'base value' under the claw-back would be created. Were any planning consent granted for residential development of the recreation field to be conditioned such that an alternative facility needs to be provided before development could commence, then there might be a case for claiming a 'ransome' [sic] price – however, it is recognised by the Courts that any condition to a planning consent that identifies a specific alternative site is open to challenge.

8. In the light of the above, I am of opinion that the best the Bank can reasonably hope to achieve within the time span of the claw-back would be some re-zoning as a pay-off for changes within the established village boundary. There is little evidence of sales of land for playing fields, but as playing fields alone the base value of £10,000 per acre is probably near open market value. However, for a pavilion building, and taking account of the key location of the Redwood Nurseries site, I believe that it would be quite reasonable to expect a value for the land to be developed (as distinct from purely playing fields) of 50% residential value. In today's market that could mean a figure in the order of £150,000 or more per acre, to which the Bank would entitled to 50% of the net proceeds. In addition, there has to be a convenience value for the remainder of the site.

9. Broadland Developments Ltd have stated that without an agreement upon a cap, they will not pursue the matter at this stage, and will await the next review of the Local Plan. That will take the timescale beyond the claw-back period.

10. Broadland Developments Ltd have [sic] offered an immediate payment of £25,000, with a further payment of up to a maximum of £75,000 (£100,000 in total) in the event that they secure an agreement along the lines I have outlined.

11. Drafting an amendment to the claw-back will prove to be difficult. I attach a letter from Broadland Developments Ltd which begs more questions than it answers. You will note the matter of fees.

12. My recommendation is that the Bank should pursue these negotiations. I am of the opinion that there is little prospect of securing development value for the site in isolation due to the well established village boundaries and other housing allocations within those boundaries. Provided that a clear definition of additional value can be established, securing the payment of the £75,000, then it is my opinion that agreement should be secured.

I look forward to receiving your instructions."

30. After receiving the letter from which I have just quoted, Mr. Read of the Bank and a Mr. Bindefeld, his immediate superior in the Bank, met Mr. Diamond at the Nursery Site, and discussed Mr. Green's approach. There is no clear evidence as to what transpired at that meeting, save that Mr. Diamond was instructed to continue negotiations with Mr. Green. On 8 February 1997 Mr. Diamond wrote to Mr. Green as follows:

"Dear Bob,

REDWOOD NURSERIES, SANDY ROAD, POTTON.

I refer to your letter of 17^th January, and to our subsequent telephone conversations. I visited the site on Friday with the Bank, and I am able to confirm that there is interest in coming to some agreement with you. There is, however, one matter in particular that is of concern. The 'overage' payment, in addition to the initial payment, will have to be related to a fixed event. The basis of your negotiations with the Consolidated Charities may, in due course, lead to the grant of consent for residential development of their land. Presumably it will be at that stage that some kind of land exchange will take place. I suggest, therefore, that the overage payment is directly linked to the grant of planning consent that will give rise to the disposal of the Redwood Nursery land for use as replacement playing fields. I will need to be satisfied that such payment accrues to the Bank at the time that you obtain financial benefit from the transaction. I also think that, for the sake of simplicity, the figures should be agreed now, and the overage linked to the RPI.

We clearly need to talk this through in more detail, and I suggest that you ring me early next week."

31. On 11 February 1997 Mr. Green on behalf of BDL wrote to Mr. Diamond as follows:

"Re: Redwood Nurseries, Sandy Road, Potton.

Further to our letter of 17^th January 1997, your facsimile of 8^th February 1997 and our subsequent telephone conversation, I confirm that we are prepared to amend the Terms of the Agreement proposed in our earlier letter as follows.

There will be a down-payment of £30,000 and a guaranteed fixed sum of £70,000 to be paid to the Bank arising from any future disposal or implementation of any planning consent at the above mentioned development within the relevant period. I believe that the terms contained within the existing Agreement address the timing of when a beneficial transaction occurs.

As our offer is for a fixed sum of money irrespective of cost to us, I do not feel it fair or reasonable to link the said sum to the RPI (we are now paying an additional £5,000 up front money [sic] more than our original offer).

I would restate my previous offer to underwrite the Bank's costs to a maximum of £500.00 plus VAT.

I look forward to hearing from you in due course with the Bank's response."

32. It is noticeable that nowhere in Mr. Green's response did he disabuse Mr. Diamond of what was clearly a misunderstanding by Mr. Diamond that the only residential development contemplated by Mr. Green was on the Recreation Ground Site and not on the Nursery Site. This was a misunderstanding which I find was deliberately created by Mr. Green to conceal his true intentions and, therefore the potential value to BDL of the proposed variation of the clawback provisions.
33. On 12 February 1997 Mr. Diamond sent a fax to Mr. Bindefeld of the Bank, by which he forwarded to the Bank a copy of Mr. Green's letter of the previous day, which I have read, and said this:

"REDWOOD NURSERIES, POTTON

Please see the attached letter received from Broadland Developments Ltd. You will note that two matters have changed:

1. The initial payment has been increased to £30,000

2. The subsequent payment has been fixed at £75,000, regardless of the type of planning consent achieved. This has the advantage of removing the problems of valuing the land against a land exchange deal where the real value lies in the land being acquired. It also fixes quite clearly when the Bank will get the additional income.

The potential risk to the Bank is that Broadland Developments obtain a consent upon the Nursery within the remaining period of the clawback agreement that would give rise to a higher figure to the Bank. It is my opinion that this is unlikely to happen given the content of the Local Plan. I therefore recommend that the Bank should accept the offer now put forward."

34. The Bank responded on 20 February 1997 by a letter signed by Mr. Bindefeld, but drafted by Mr. Read, as follows:

"REDWOOD NURSERIES, POTTON, BEDS

Thank you for your facsimile of 12^th February 1997 containing the latest offer from Broadland Development [sic] Limited with regard to the claw-back agreement on the above property. We have, of course, discussed this offer in some depth and whilst many questions remain unanswered, we are of opinion that the latest offer represents a reasonable return for the Bank.

However, we would ask that you return to Broadland Developments Limited with the following counter-proposal:

1. An initial payment of £35,000 to be received by 31^st March 1997.

2. A subsequent payment of £80,000 as soon as the planning permission has been obtained.

Our counter-proposal is not based on any specific calculations, but simply upon the assumption that there is a little more in the pot for us without being too greedy and forcing the company to forego the deal entirely. You are, however, authorised as our Agent to accept the offer as it stands if, in your opinion, the deal is in danger of being jeopardised."

35. The revised terms suggested by the Bank were accepted by Mr. Green on behalf of BDL and the agreement varying the clawback provisions accordingly was executed on 27 March 1997. The subsequent history relating to the Nursery Site I have already related earlier in this judgment. It is clear from it that, in the events which happened, the variation agreement represented an exceedingly good bargain for BDL and an exceedingly bad one for the Bank. It is, in my judgment, quite clear that the Bank would never have agreed to it had it known that at the date of it, Mr. Green expected to be able to obtain planning permission for residential development of the Nursery Site in the near future. I accept the evidence of both Mr. Bindefeld and Mr. Read to the effect that the Bank would have refused to agree any variation of the clawback provisions at least unless BDL offered a much higher price for it than was in fact agreed. I found both these witnesses for the Bank frank, honest and convincing. One reason the Bank did not know the truth about BDL's plans and expectations was, of course, that they were concealed from the Bank by Mr. Green. However, Mrs. Francis and the Bank allege that they would still have become apparent to the Bank, but for Mr. Diamond's negligence in not making proper enquiries as to the prospects of planning permission for residential development of the Nursery Site becoming available.
36. I accept the Bank's evidence that, in agreeing to the variation of the clawback provisions on the terms that it did, the Bank was relying on Mr. Diamond's advice contained in the letters from which I have quoted. In my judgment the Bank was entitled to rely on that advice. It had instructed Mr. Diamond as an expert in the relevant field and was entitled to rely on the advice he gave, which was unequivocally to the effect that the Bank should accept Mr. Green's proposals.
37. As part of their defence Kirkby & Diamond allege contributory negligence on the part of the Bank in not obtaining a report on the Nursery Site from Development Land and Planning Consultants Ltd, a firm of planning consultants from whom the Bank had obtained a report before it sold the Nursery Site to BDL, or from "some other similar professional". I reject this allegation. Mr. Diamond, on his own evidence, held himself out as practising in "valuation and development planning work." He at no stage suggested to the Bank that nonetheless it should seek some other planning advice. I consider the Bank acted reasonably and properly in relying on Mr. Diamond's advice.
38. The next question which I must determine is whether, in giving such advice as he did, Mr. Diamond was negligent. The principal allegation of negligence made against him is that he failed to make reasonable enquiries of Potton Town Council and Mid-Beds District Council to ascertain whether there was any, and if so what, prospect of the Nursery Site being allocated for residential development in the revised Local Plan which Mr. Diamond knew was under consideration.
39. Mr. Diamond's response to this allegation is that he fulfilled his duty in relation to making enquiries relating to likely future development of the Nursery Site by making the telephone enquiry that I have found that he did to the Development Control Department of the Mid-Beds District Council. This response is supported by evidence given by a Mr. Storey, an independent surveyor called by Kirkby & Diamond as an expert witness. He expressed the view that Mr. Diamond acted reasonably in limiting his planning enquiries to such a telephone enquiry. The contrary view was expressed by a Mr. Hay, an independent surveyor called by Mrs. Francis as an expert witness. His view was that a reasonably competent surveyor in Mr. Diamond's position, knowing, as he did, that a revision of the local plan was under consideration by the planning authority, and that Mr. Green was clearly anxious for some reason to severely limit the operation of the clawback provisions, would have enquired of the Local Plan Department of Mid-Beds District Council as to whether there was any, and if so what, prospect of the Nursery Site being allocated for residential development in a revised local plan. It is common ground, admitted by Mr. Diamond, that the Local Plan Department, and not the Development Control Department – the only department of the planning authority of which Mr. Diamond made enquiry – was the appropriate source of information as to possible future revisions of the local plan. Mr. Diamond accepted under cross examination that, with hindsight, it would have been better if he had made enquiry of the Local Plan Department, but denied that he was negligent in not doing so. He maintained that it was reasonable for him to assume that the Development Control Department would have referred him to the Local Plan Department, had it considered that that Department might be able to give him further information germane to his enquiry. One difficulty about this argument is that the reasonableness or otherwise of such an assumption clearly depends on the actual terms of Mr. Diamond's enquiry of the Development Control Department. As to this there is no reliable evidence. For, consistently with what appears to have been his careless practice throughout his dealing with the Bank's instructions in this matter, Mr. Diamond made no note of his telephone conversation with the Development Control Department. As I have already indicated Mr. Diamond's evidence of the conversation is very unsatisfactory. In paragraph 52 of his first witness statement in the case he said this:

"However, before reporting the detail of Mr. Green's offer, and in order to assist the Bank, I did make a telephone inquiry of Development Control at Mid Bedfordshire District Council to see if the allocation position had changed since the involvement of DLPCL [Development Land & Planning Consultants Ltd.] and the sale in October 1995. I was informed by the person to whom I spoke that there had been no change whatsoever. Having made that enquiry, I then wrote to the Bank on 28 January 1997 setting out the offer from Barclays Bank [sic] and my views as to that offer. In doing so, I was merely passing on the information which I had learned. I had not been instructed to act on the Bank's behalf and regarded myself as being under no obligation to carry out any investigations whatsoever."

40. I have already alluded to the fact that it is clear from his evidence as a whole that, not surprisingly, Mr. Diamond really has no recollection of the detail of what took place in January 1997. I can only think that the extraordinary final sentence of the paragraph of his witness statement that I have just read is a result of his lack of reliable recollection. For it is clear from other evidence in the case, and indeed from the most recent version of Kirkby & Diamond's amended pleading, that Mr. Diamond had been instructed by the Bank before he made the telephone call to the Planning Control Department, and that he had been instructed, in the words of his own pleading "consider and report on BDL's proposals." I do not understand how he could properly carry out these instructions, given the nature of BDL's proposals, without making appropriate enquiries to ascertain the likelihood of the clawback provisions coming into operation if there were no variation such as proposed by Mr. Green. Such enquiries would necessarily include enquiries to ascertain the likelihood of a change in the future allocation of the Nursery Site for planning purposes. It is clear that the proper place to make such latter enquiries was the Local Plan Department of Mid-Beds District Council.
41. Such enquiries of the Local Plan Department Mr. Diamond did not make. In my judgment in failing to make them he was in negligent breach of the duty he owed to the Bank. In my judgment any reasonably competent and careful surveyor holding himself out, as Mr. Diamond did, as competent to give advice on planning matters, would have made such enquiries. I do not accept Mr. Storey's evidence to the contrary. I have to say that I found his evidence generally unduly partisan in defending Mr. Diamond's position. I preferred the evidence of Mr. Hay on this question. It confirmed the view I would have taken quite apart from any expert evidence. I do not consider that Mr. Diamond can properly rely on what he says was his assumption that the Development Control Department would have re-routed his enquiry to the Local Plan Department if the former department had thought that appropriate. Mr. Diamond knew that the appropriate source of information as to possible future changes to the allocation of the Nursery Site in the local plan was the Local Plan Department. With that knowledge, and with the knowledge that he must have acquired from Mr. Green's wish to vary the clawback provisions that he, Mr. Green, thought there was a real prospect of those provisions becoming operative, in my judgment, any reasonably competent and careful surveyor in Mr. Diamond's position would have enquired of the Local Plan Department what the prospects were of the Nursery Site being allocated as appropriate for residential development.
42. Neither do I consider that Mr. Diamond can, in resisting the conclusion I have just expressed, rely on the fact that he was given to understand by Mr. Green that the only change of use BDL had in mind for the Nursery Site was use as a recreation ground. Once it became clear, as it must have done to Mr. Diamond, that Mr. Green was anxious to limit the effect of future operation of the clawback provisions, I do not see how any reasonably competent surveyor in Mr. Diamond's position could properly have carried out his instructions to consider Mr. Green's approach and advise the Bank on it, without making appropriate enquiries as to the likelihood of the clawback provisions coming into operation, and the likely benefit to the Bank of their doing so. This must have involved a consideration of the prospects of planning permission for residential development of the Nursery Site being obtained in the near future.

What would have happened if Mr. Diamond had not been negligent?

43. I am satisfied that, had Mr. Diamond (as I have found he should have done) made enquiries of the Local Plan Department of Mid-Beds District Council as to the prospects of a change in the allocation of the Nursery Site for planning purposes, he would have discovered that there was a good chance that the Nursery Site would be included in the next Local Plan as appropriate for residential development. This was the evidence of Mr. Hyde, who was the leader of the Local Plan Department at the relevant time. I found his evidence entirely convincing.
44. Thus if he had made the appropriate enquiry of the Local Plan Department, Mr. Diamond could not possibly have given the Bank the advice he did as to the prospects of residential development of the Nursery Site. I accept the evidence of the Bank's witnesses, Mr. Read and Mr. Bindefeld, that, had they known that there was a good prospect that planning permission for residential development of the Nursery Site would become available following the forthcoming revision of the Local Plan (which is what they would have been advised by Mr. Diamond had he acted properly on the Bank's behalf) the Bank would not have agreed to the proposed variation of the clawback provisions, at least unless BDL paid a much higher price for such a variation than it in fact did.
45. It is Kirkby & Diamond's case, based on evidence given by Mr. Green, that BDL would not, indeed could not, have paid any more for the variation of the clawback provisions than in fact it did. Mr. Green gave evidence that BDL did not have any more money available at that time. It does not seem to me clear from the evidence that this was in fact the case, but I need not consider the point further, because in their closing submissions both Mrs. Francis and the Bank submitted that the true view of the evidence was that, had the Bank been properly advised by Mr. Diamond, then there would have been no variation of the clawback provisions. Thus by the end of the trial it was common ground that, if the Bank had refused to accept the price it did from BDL for the variation of the clawback provisions, there would have been no variation. I therefore proceed on that basis.
46. Thus I find that, had Mr. Diamond not been negligent in the manner that I have found, there would have been no variation of the clawback provisions. The next question I have to answer is whether, had there been no variation of the clawback provisions, they would in fact have come into operation, and, if so, with what benefit to the Bank. In the events which in fact happened after the variation, the clawback provisions would have come into operation on the development of the Nursery Site being commenced by Westbury following the grant of planning permission after that company's acquisition of the land from BDL, and, had there been no variation of the clawback provisions, the seller's share payable to the Bank would have been of the order of £1 million. In fact planning permission had not been granted before the sale by BDL, so that under the terms of the clawback provisions they would become operative on the subsequent implementation of planning permission by Westbury. However, the latter company required that, as a condition of its purchase of the Nursery Site, BDL should obtain an extinguishment of the future liability for the seller's share from the Bank. That is why in fact the £80,000 payable to the Bank under the revised clawback provisions was paid by BDL on that sale, although strictly speaking no event had yet happened to trigger those provisions. I accept the submission of Mrs. Francis and the Bank that it is likely that, had there been no revision of the clawback provisions, a seller's share based on the price obtained by BDL on the sale would similarly have been paid to the Bank on the occasion of the sale, treating the sale as a sale with the benefit of residential planning permission, rather than waiting for the actual commencement of development, because Westbury would have insisted on such payment being made by BDL as a precondition of completion of its purchase of the Nursery Site.
47. However, it is Kirkby & Diamond's case that, had the Bank not agreed to the variation of the clawback provisions required by BDL, in fact BDL would have taken steps to ensure that the clawback provisions were not brought into operation, by delaying any development of the Nursery Site, or any disposal of it with the benefit of planning permission, until after the clawback provisions had expired on 30 October 2005. This is based on evidence given by Mr. Green to that effect. I will refer to Mr. Green's evidence in this regard in some detail a little later.
48. On the other hand Mrs. Francis and the Bank contend that such would have been the financial risk to BDL of waiting to realise its investment in the Nursery Site until 2005, that it would have preferred a bird in the hand rather than two in the bush, and would accordingly have proceeded to sell for development as soon as such a sale became practicable, despite the fact that its profit would be reduced by something like 50 per cent. This contention is based in particular on the following factors:

1. The Nursery Site was BDL's only asset of any significance;

2.BDL's option agreement with Mrs. Munns, which was to be the means whereby BDL could acquire an alternative site for the recreation ground, which would be necessary to enable the proposed joint development of the Nursery Site and the Recreation Ground Site to take place, would expire on 12 December 2001, and Mr. Green accepted in his evidence that development of the Nursery Site on its own would be more problematical;

3. Under the agreement between BDL and the Potton Town Council BDL would, once 19 weeks had expired from the finalisation of the revised local plan have to pay the Council £150,000 or give it an acre of the Nursery Site, which was likely to prove the more expensive option, and according to Mr. Green's evidence BDL had no other assets with which to provide such a sum; and

4. To enable the proposed joint development of the Nursery Site and the Recreation Ground Site to go ahead BDL needed the continued cooperation of PCC who might well not be prepared to wait for the expiration of the clawback provisions.

49. In fact, because of unexplained delays formal notice of the final adoption of the Local Plan Review, which under the agreement between BDL and the Potton Council was necessary to start the 19 week period after which BDL's obligations under that agreement became enforceable, has still not happened, but it is the case of Mrs. Francis and the Bank that in 2000 (when it actually sold the Nursery Site for development) BDL would have had no reason to think that finalisation of the Review Plan would be so long delayed, and in considering what BDL would have done had the clawback provisions not been varied it is its belief at the time that is relevant.
50. Moreover, in the events which have happened, the option to acquire alternative recreation ground land from Mrs. Munns was not exercised, and an alternative site was obtained by Westbury from some other source. However, again, Mrs. Francis and the Bank contend that BDL had no reason to think that would have been possible in 2000.
51. The only direct evidence of what BDL would have done had the Bank refused to agree to the variation of the clawback provisions is that of Mr. Green, called as a witness by Kirkby & Diamond. In a witness statement he said that, if the Bank had not agreed to vary the clawback provisions, he would have "put the matter to one side", meaning that he would not have proceeded with development proposals for the Nursery Site until the clawback provisions had expired. I have already in this judgment referred to the unsatisfactory nature of Mr. Green's evidence, and it became clear from his cross-examination that his evidence in chief to which I have just referred was far from the whole truth. In the course of cross-examination he said that he did not know what would have happened if the Bank had refused to agree to the variation of the clawback provisions. However, in answering questions as to what BDL would have done in that event, Mr. Green accepted that in January 1997 he appeared to have put together all the elements to enable BDL to achieve a deal for the joint development of the Nursery Site and the Recreation Ground Site. He also said that he believed the Nursery Site had to be developed together with the Recreation Ground Site, and that if BDL could not achieve that, it would be left with an "undevelopable site." He accepted that BDL "had to move quickly or [it] would have been left behind. The Charity [PCC] could have developed its own land."
52. Mr. Green also said that in January 1997 he did not believe that the clawback provisions would operate whether varied or not, because the process of obtaining final planning permission and disposing of the Nursery Site with such permission would take too long for the clawback provisions still to operate. I do not accept this evidence. Had it been true, Mr. Green would not have made the approach he did to the Bank in January 1997. In any case, events proved that any such belief would have been quite unfounded.
53. It was common ground between the parties that, if (as I have done) I decided that Mr. Diamond had been negligent, then, since the assessment of damages involves answering hypothetical questions about what third parties would or would not have done if the facts had been different from what they actually were, the appropriate approach for the court to adopt is not to consider what, on the balance of probabilities, the third parties concerned would have done or not done, but to decide whether the Bank has, as a result of Mr. Diamond's negligence, lost a real, rather than a purely speculative, chance of the clawback provisions having come into operation on a disposal or development of the Nursery Site, had there been no such variation of them as was in fact agreed in 1997, and, if there was such a chance how should it be quantified. (see Allied Maples v. Simmons & Simmons [1995] 1 WLR 1602, per Stuart-Smith LJ at p.1614)
54. In my judgment, as I have said, but for Mr. Diamond's negligence, the Bank would not have agreed to Mr. Green's proposal to vary the clawback provisions, and there would have been no such variation. On that hypothesis, in my judgment, there would have been a very real prospect of BDL still continuing to do exactly what it did, namely sell the Nursery Site on for residential development as soon as it could, without waiting for the expiry of the clawback provisions in 2005. I accept that there can of course be no certainty of this. It is possible that BDL would have preferred to take the risks of waiting until after 30 October 2005, so as to double what would otherwise be its profit on the sale, but on the basis of Mr. Green's own evidence in cross-examination, to which I have referred, as well as all the other facts I have found, it seems to me more likely than not that BDL would have decided not to take these risks, and continued to do exactly what it in fact did.
55. It is, in my judgment, clear from the evidence to which I have referred that Mr. Green would have appreciated that there was a significant risk that, if he delayed unduly in pursuing his development proposal after he had succeeded in putting together all the elements which he thought in January 1997 were necessary to achieve a sale of the Nursery Site for residential development, his plans on behalf of BDL, which he had worked hard with the Potton Town Council and PCC to put together, would begin to unravel and fall apart. In particular, it is clear that in January 1997, rightly or wrongly Mr. Green believed that it was very important to BDL's ability to sell the Nursery Site for residential development that PCC should remain willing to develop the Recreation Ground Site in conjunction with the Nursery Site, and not decide to proceed with a separate development of its land. Given that BDL had no other significant asset, and was not itself in the business of developing land, but needed to achieve a sale on of its land to a developer in order to make any profit, I consider that there is a significantly more than even chance that BDL would have preferred the bird in the hand rather than the possibility of two birds in the bush. If Mr. Green had really believed in January 1997 that BDL could easily afford to wait to realise its investment until after the expiry of the clawback provisions in 2005, then it seems to me very unlikely that he would have proposed to the Bank a scheme involving BDL's paying a total of £115,000 to discharge the clawback provisions.
56. How should the chance of BDL selling the Nursery Site as and when it did, even if there had been no variation of the clawback provisions, be quantified? All the evidence to which I have referred brings me to the conclusion that a realistic assessment of that chance is that it is twice as likely that BDL would have continued to effect the sale it did, when it did, than it is that it would have waited until after the expiry of the clawback provisions. In other words, in my judgment, by Mr. Diamond's negligence the Bank has lost a two to one chance of recovering the amount that would have been payable as the seller's share under the clawback provisions on the sale to Westbury, on the footing that that sale was a disposal of the Nursery Site with the benefit of residential planning permission.
57. The next step in assessing the Bank's loss caused by Mr. Diamond's negligence is to determine what would have been the seller's share on this hypothetical basis. I accept the submissions of Mrs. Francis and the Bank that on this basis the seller's share would have been £1,065,750, as calculated by Mrs. Francis's expert witness, Mr. Hay, in paragraph 4 of a series of revised valuations put before the court and referred to in paragraph 7 of a Joint Statement of Agreed and Unagreed Facts made by all the expert witnesses following a meeting of experts on 13 October 2004.
58. It follows that the value of the two to one chance of receiving that seller's share on the sale of the Nursery Site in April 2000 lost to the Bank by Mr. Diamond's negligence is two thirds of £1,065,750 or £710,500. As at April 2000 when the seller's share should have been received by the Bank, the latter was itself only beneficially entitled to part of that share, representing the amount of the outstanding indebtedness due to it from Cresta. The remainder the Bank would have been bound to pass on to the liquidator of Cresta. However, this is in my view immaterial to the Bank's present claim against Kirby & Diamond. For the Bank has now acquired the liquidator's rights in relation to the Nursery Site by virtue of an agreement reached between the Bank and the liquidator on 17 July 2003. At the date of its Part 20 Claim against Kirby & Diamond the Bank was entitled to recover the full amount of the loss caused to the Bank by Mr. Diamond's negligence for the benefit of itself and the liquidator. It is now itself beneficially entitled to the whole amount recoverable.
59. Thus, in my judgment, the Bank is entitled to recover from the Part 20 Defendants the sum of £710,500 less the £115,000 it received from BDL pursuant to the variation of the clawback provisions. For the reasons I have already given earlier in this judgment those Defendants' defence of contributory negligence fails.
60. I must turn now to the claim of Mrs. Francis against the Bank. It is common ground between the parties that as mortgagee the Bank was under a duty to all persons, including Mrs. Francis, who had an interest in the equity of redemption of the Nursery Site to take reasonable steps to preserve and enforce the clawback provisions. This it failed to do as a result of Mr. Diamond's negligence. As I have said earlier it is also common ground that the Bank cannot rely on the fact that it, as opposed to its agent, Mr. Diamond, was not guilty of any negligence as a defence to the claim by Mrs. Francis. As a result of Mr. Diamond's negligence, for which the Bank is answerable to Mrs. Francis, Mrs. Francis lost the benefit of a two to one chance that the Bank would have recovered from the clawback provisions for application by the Bank in satisfaction of Cresta's indebtedness (for which Mrs. Francis's property was charged as collateral security) the sum of £1,065,750, instead of the total of £115,000 which the Bank in fact received. In my judgment it follows that, had the Bank in fact applied her property in satisfaction of that indebtedness, Mrs. Francis would have been entitled to recover from the Bank in these proceedings two thirds of the amount by which the sum which the Bank had recovered from her property was increased by reason of the Bank having received £115,000 instead of £1,065,750 from the clawback provisions. In fact the Bank has still not enforced its security over Mrs. Francis's property. In these circumstances counsel for Mrs. Francis submitted that the appropriate remedy for her is some sort of declaration that as against the Bank her property is released from the Bank's security as to the whole or alternatively some part of Cresta's indebtedness. Counsel wisely submitted that the best way of dealing with the actual formulation of the relief to be granted to Mrs. Francis should be the subject of further consideration by the parties and the court, once I had determined the quantum of the damages, if any, to which the Bank is entitled against the Part 20 Defendants and the validity of Mrs. Francis's claim against the Bank in principle. This I have now done, and will hear further argument in due course on the form of relief to be granted both to Mrs. Francis and to the Bank.