England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION

		Royal Courts of Justice Strand. London. WC2A 2LL
		26th July 2005

Mr. Justice Lewison:

Introduction	1
The facts	3
Common ground	29
Causation	30
What would have been the chances of success in late 2000?	39
The T&R land	46
Loss of profits	51
Costs of proceedings	53
Result	55

Introduction

1. This is a claim for damages for professional negligence brought against Weightmans, a firm of solicitors. The agreed facts not only display an astonishing level of incompetence; but, unfortunately show that the responsible fee earner lied time and again to the client.
2. The case concerns a failure by Weightmans to apply on behalf of Vision Golf Ltd for relief against forfeiture of a valuable lease that had been forfeited by peaceable re-entry on the ground of non-payment of rent. It is common ground that if Weightmans had made the application(as they were instructed to do) it would have succeeded. In fact it was made much later, by different solicitors, and failed on the ground of delay. The breach of duty is admitted; but Weightmans (or more accurately their insurers) say that the admitted breach caused no loss. To understand why they make this submission, it is necessary to set out the facts.

The facts

3. Vision Golf was incorporated on 11 February 1993 with a view to developing a disused colliery and brickfield near Wakefield as a golf course. Part of the land on which the prospective club stood was owned by T & R Developments Ltd and Messrs Barrs and Cowen ("the T & R land"); and the remaining pan was owned by George Armitage and Sons plc ("the GA land"). In December 1993 Vision Golf entered into two separate agreements for lease, one with each freeholder; and set about developing the land as a golf course. The work was finished by the end of 1994. The GA land was in fact closer to the main road; and it was on that land that Vision Golf built the first nine holes of the golf course; and the clubhouse. The development costs borne by Vision Golf were somewhere between £400,000 and £500,000.
4. On 15 December 1994 Vision Golf entered into two leases; one in relation to the T & R land and the other in relation to the GA land. The two leases were plainly intended to subsist side by side. Thus each lease contained a covenant to comply with the covenants in the other lease; and each lease was liable to forfeiture in the event of a breach of covenant in the other lease. Each lease was granted for a term of 50 years, at an initially modest rent. The leases were valued, for loan purposes, at £700,000. Unfortunately, in the first of many errors by the legal profession, the leases were not registered at the Land Registry.
5. Mr Richard Hall, who was the moving spirit behind Vision Golf, entered into a contract with the freeholders of the T & R land at the end of December 1996 to buy the freehold for £150,000. He paid a deposit of £50,000. The balance was due within the next twelve months. He could not raise the money at the time; and secured an extension of three months, to March 1998. Unfortunately he was still unable to raise the money; and the contract was terminated. Mr Hall lost his deposit of £50,000. It occurred to no one to seek to recover it as a penalty.
6. In the meantime Mr Hall began negotiations in 1997 to sell his shares to a Mr Middleton. The details of the negotiations do not matter. Three things are, however, important. The first is that Mr Middleton entered into a contract to buy the T & R land; which he completed in the name of a company controlled by him in December 1998. From then on, Mr Middleton was effectively Vision Golf's landlord as regards the T & R land. The second is that Mr Hall allowed Mr Middleton to run the golf club on Vision Golf's behalf, in the expectation that the share sale would ultimately be completed. He had expected Mr Middleton to pay the outgoings (including rent) out of the profits of the club (including rent to Mr Middleton's company); but this did not happen. Rent arrears began to build lip. Another facet of importance of Mr Middleton's management of the golf club was that he and his sons were in physical control of the club and the golf course. The third feature of importance is that within a few months Mr Hall began to lose faith in Mr Middleton; and began to mistrust him. However, although he wanted to eject Mr Middleton from the land, he was advised that because the leases had not been registered at the Land Registry, Vision Golf did not have sufficient title to do so.
7. In the meantime, having become disillusioned with Mr Middleton, some time in 1998 Mr Hall decided to sell his shareholding in Vision Golf to Mr Jonathan Edwards. In fact it was Mr Edwards' solicitors who discovered the non-registration of the leases.
8. There now occurred another piece of professional incompetence. Due to the misreading of a letter dealing with a debt owed by Vision Golf to HM Customs & Excise, Vision Golf's solicitors failed to defend a winding up petition, and an" order winding up Vision Golf was made on 25 February 1999. The winding up order was eventually rescinded on 6 July 1999 after Mr Edwards gave a personal undertaking to pay Vision Golf's creditors.
9. Mr Edwards' solicitors, now acting for Vision Golf, applied for registration of the leases. Mr Middleton opposed the registration in his capacity as landlord of the T & R land; on the ground that he (or more accurately his company) had bought the freehold in ignorance of the lease. It is plain that this was untrue; and this objection was summarily rejected by the Land Registry. The leases were duly registered in March 2000.
10. Mr Hall was recommended to Weightmans by business contacts of his; and he met them on 9 May 2000. The responsible fee earner was Mr Chris Dunham; a solicitor of many years standing. Unfortunately his wife was in poor health that the time; and this may be the explanation (although emphatically not an excuse) for the way in which he handled the file. The first meeting lasted for over three hours; in the course of which Mr Hall explained Vision Golf's situation. The explanation included an explanation of the two parallel leases. Mr Hall's instructions were that Vision Golf wanted to recover possession from Mr Middleton.
11. Matters came to a head two days later on 11 May 2000. On that day GA peaceably re-entered the GA land in reliance on arrears of rent. Although a section 146 notice had been served many months earlier, relying on alleged breaches of covenant, it is plain that that was not the reason for the forfeiture. It was based on arrears of rent alone. GA was not the landlord of the T & R land and did not purport to forfeit the lease of that land.
12. Pinsent Curtis who were acting for GA, sent a fax to Mr Dunham on the day of the forfeiture to inform him that it had happened. They required vacant possession of the property. More worryingly, they said that their client intended to relet the land immediately. On the same day, Mr Dunham faxed back to say that It was Vision Golf's intention to apply for relief against forfeiture; and to discharge all arrears of rent immediately. He said that GA should not proceed with the reletting. On the same day Pinsent Curtis responded. Their response included a breakdown of the arrears, totalling some £36,411 plus VAT. This represented some two years' rent. They said that their client would be willing to consent to relief if all the arrears were paid, and the alleged breaches of covenant (which had not formed the ground for forfeiture) were remedied.
13. There was now a short period of confusion during which it was not clear whether Weightmans really were instructed by Vision Golf; but that was sorted out fairly quickly.
14. In the immediate aftermath of the forfeiture, Mr Dunham acted entirely properly and correctly. He told Mr Hall that it was imperative that he be put in funds to the extent of the arrears; and that it was necessary to apply to court for relief against forfeiture. On 15 May he made inquiries whether the money had been received in Weightmans' client account; and on the following day he wrote to Mr Hall to say that Pinsent Curtis were pressing for a response to the question whether Vision Golf would apply for relief. He said that if he had not received the money by mid-day on 17 May (together with an amount for costs on account) he would put the file on hold. The ;money had still not arrived by the following morning; and Mr Dunham sent Mr Hall an e-mail in which he said:

"Time is running against you. The longer it takes to put me in funds the greater the risk that your application for relief from forfeiture will fail."

15. The money, some £44,000, in fact arrived on 19 May. On that day Pinsent Curtis sent Weightmans a copy of a letter in which they said that GA had already granted a tenancy at will of the GA land to a third party; that the terms of a lease had been agreed; and that they were applying to the county court for an order excluding sections 24 to 28 of the Landlord and Tenant Act 1954 from the new lease. They added that completion of the lease was imminent. On the same day, Mr Dunham wrote to Pinsent Curtis. He said that he was in receipt of cleared funds with which to discharge the arrears; but he queried the amount in fact due. He said that he was instructed to issue proceedings for relief but hoped that the matter could be dealt with amicably. Pinsent Curtis responded on the same day, justifying the amount of arrears claimed. They also pointed out that the allegation about breaches of covenant had not been dealt with in Mr Dunham's letter. They concluded by saying that the terms of the new lease had been agreed and that they were applying that day for the contracting t d Mr Dunham responded on the same day. He said that an application for out order. Mr Dunham responded the same day. He said that an application for relief would be made, now that he had cleared funds. He rejected allegations of breach of covenant.
16. On 26 May 2000 Pinsent Curtis responded. They adduced evidence in support pf the allegation of breach and expressed the view that relief against forfeiture would not be granted. They enquired whether, in the light of the evidence, Vision Golf still intended to apply for relief.
17. There astonishingly, the matter ended so far as Pinsent Curtis were concerned. Mr Dunham never replied to the letter of 26 May; never refuted Pinsent Curtis' assertion that relief would not be granted; and never issued any application for relief against forfeiture. His failure to do so is all the more surprising since he was given written instructions by Mr Hall a day or two later that:

"I think it is imperative that we immediately serve application for relief (our right in law) and we do not allow the landlord to cloud the issue by producing red herrings in relation to alleged breaches of covenant that happened years ago."

18. On 8 June 2000 Pinsent Curtis informed Mr Dunham that the new lease (for a term of 50 years) had been granted. It now transpired that the new lessee was Mr Middleton's company. It seems probable (with hindsight) that Mr Middleton's company had been lined up before the forfeiture to take a new lease in the event that relief against forfeiture was not granted. AB freeholder of the adjoining parcel of land, which also formed part of the golf course, it was the obvious choice.
19. Still Mr Dunham did nothing. On a review of his file on 27 June he recorded that no action was required. On the following day Mi Hall was told that papers had been sent to counsel. This was quite untrue. But Mr Hall's enquiry seems to have spurred Mr Dunham into instructing counsel a week later. Even then the instructions were inadequate, and did not contain the right documents (not even the leases). Two days after instructing counsel Mr Dunham wrote to Mr Hall to say that:

"Counsel confirms that service is imminent. The delay has been caused by the unavailability of the leases [in] this matter."

20. In so far as this is intelligible, it was also untrue. In fact counsel rang on 17 July asking for more documents which, not surprisingly, included the leases.
21. By now some £44,000 of borrowed money had been sitting in Weightmans' client account for six weeks awaiting the application for relief. Nothing had yet happened and, understandably, Mr Hall thought that there were better uses for the money. Although Mr Dunham said that he would transfer the money, nothing happened for some time. Mr Hall telephoned on 24 July and asked whether anything had been heard from counsel: it was now five weeks (so Mr Hall thought) since he had been instructed ..
22. Apart from transferring, money out of the client account, Mr Dunham did nothing more. July, August and September slipped by. On his file review on 27 October Mr Dunham again recorded that there was no activity required. Mr Hall was chasing for news of progress. On 9 November 2000 Mr Dunham wrote to him to say:

"I advise that there are two current aspects the subject of proceedings. The first is an application for relief against forfeiture of one of the leases held by Vision Golf Limited and the second is an application for recovery of the chattels and other items of property belonging to Vision Golf Limited."

23. This statement was quite untrue. There were no proceedings. Mr Hall was not satisfied with this; and pressed Mr Dunham for chapter and verse about the issue of proceedings. On 15 November 2000 Mr Dunham said:

"Counsel's opinion has been sought on the matters and the applications lodged with the court for issue."

24. This was also untrue. No applications had been lodged with the court. By now more than six months had expired since the date of the re-entry. On the same day Mr Hall raised with Mr Dunham the possibility that a six month time limit applied to an application for relief against forfeiture. He had apparently heard of this from Mr Edwards, who had had informal advice to this effect from his own solicitors in late October or early November. Mr Dunham replied that he had been advised by counsel that there was no time limit on making an application for relief in a case where there was no court order and the re-entry was peaceable. This advice was literally correct, but misleading; and it may well have lulled Mr Hall into a false sense of security.
25. By the second half of November, Mr Hall had had enough. He and Mr Edwards formally consulted Ingram Winter Green. Ingram Winter Green asked Mr Dunham for the file and asked him whether any application for relief had in fact been issued. This question was first posed on 23 November and repeated several times without an answer. It was not until 5 December that Mr Dunham wrote to say that "no actual application for relief from forfeiture was applied for".
26. Ingram Winter Green considered the papers and took advice from Mr Ken Munro of counsel on the merits of an application for relief against forfeiture. On 7 February 2001 Mr Green reported to Mr Edwards that:

"Ken Munro's belief (shared by us) is that such application would be "doomed to failure", because of the real difficulty of proving collusion."

27. He added that the cost of an application would be in the region of £20,000. A few days later Mr Green put forward the claim against Weightmans. He was met with a denial of liability by insurers on 27 February; and a refusal to confirm that the costs of an application for relief would be met by insurers. In the light of this and Mr Green's advice, Vision Golf decided not to make the application.
28. However, the position was revisited some time later, when Vision Golf were seriously contemplating suing Weightmans. They asked insurers whether they would agree that an application was now bound to fail. The stance then taken on Weightmans' behalf was that ~ application would have failed even if it had been made promptly: a stance now rightly abandoned. However, an application for relief was issued in December 2002; but not surprisingly, since it Was not made until over two and a half years after the forfeiture, it was summarily dismissed.

Common ground

29. It is common ground that:

i) Weightmans were in breach of duty in having failed to apply for relief against forfeiture on Vision Golf's behalf;

ii) The application could and should have been made by the end of June 200 at the latest;

iii) Had it been made then, it would almost certainly have succeeded.

Causation

30. Weightmans argue that even though there was an admitted breach of duty, it has caused no loss to Vision Golf. This argument proceeds on the basis that an application for relief against forfeiture would equally have succeeded if made in the winter of 2000-2001, when Ingram Winter Green were first instructed. The cause of the loss is not Weightmans' abject failure to comply with their instructions, but Ingram-Winter Green's own failure to make a prompt application. Mr Seitler QC says that in negligence cases a breach of duty may, through sheer luck, not cause any damage; and Weightmans have been lucky.
31. The speech of Lord Nicholls of Birkenhead in Kuwait Airways Corporation v. Iraqi Airways Co (No 6) [2002] 2 AC 883 , 1090 contains an authoritative discussion of the role of causation in tort. I quote selected passages (although the whole speech repays careful study):

"69 How, then, does one identify a plaintiffs "true loss" in cases of tort? This question has generated a vast amount of legal literature. I take as my starting point the commonly accepted approach that the extent of a defendant's liability for the plaintiffs loss calls for a twofold inquiry: whether the wrongful conduct causally contributed to the loss and if it did, what is the extent of the loss for which the defendant ought to be held liable. The first of these inquiries, widely undertaken as a simple "but for" test, is predominantly a factual inquiry. The application of this test in cases of conversion is the matter now under consideration. I shall return to this in a moment.

70 The second inquiry, although this is not always openly acknowledged by the courts, involves a value judgment ("ought to be held liable "). Written large, the second inquiry concerns the extent of the loss for which the defendant ought fairly or reasonably or justly to be held liable (the epithets are interchangeable) ... [T]he inquiry is whether the plaintiffs harm or loss should be within the scope of the defendant's liability, given the reasons why the law has recognised the cause of action in question. The law has to set a limit to the causally connected losses for which a defendant is to be held responsible. In the ordinary language of lawyers, losses outside the limit may bear one of several labels. They may be described as too remote because the wrongful conduct was not a substantial or proximate cause, or because the loss was the product of an intervening cause. The defendant's responsibility may be excluded because the plaintiff failed to mitigate his loss. Familiar principles, such as foreseeability, assist in promoting some consistency of general approach. These are guidelines, some more helpful than others, but they are never more than this.

71 In most cases, how far the responsibility of the defendant ought fairly to extend evokes an immediate intuitive response. This is informed common sense by another name. Usually, there is no difficulty in selecting, from the sequence of events leading to the plaintiff's loss, the happening which should be regarded as the cause of the loss for the purpose of allocating responsibility. In other cases, when the outcome of the second inquiry is not obvious, it is of crucial importance to identify the purpose of the relevant cause of action and the nature and scope of the defendant's obligation in the particular circumstances. What was the ambit of the defendant's duty? In respect of what risks or damage does the law seek to afford protection by means of the particular tort?"

"72 The need to have in mind the purpose of the relevant cause of action is not confined to the second, evaluative stage of the twofold inquiry. It may also arise at ~he earlier stage of the "but for" test, to which I now return. This guideline principle is concerned to identify and exclude losses lacking a causal connection with the wrongful conduct. Expressed in its simplest form, the principle poses the question whether the plaintiff would have suffered the loss without ("but for") the defendant's wrongdoing. If he would not, the wrongful conduct was a cause of the loss. If the loss would have arisen even without the defendant's wrongdoing, normally it does not give rise to legal liability."

"73 This threshold "but for" test is based on the presence or absence of one particular type of causal connection: whether the wrongful conduct was a necessary condition of the occurrence of the harm or loss .... Torts cover a wide field and may be committed in an infinite variety of situations. Even the sophisticated variants of the "but for" test cannot be expected to set out a formula whose mechanical application will provide infallible threshold guidance on causal connection for every tort in every circumstance. In particular, the "but for" test can be over-exclusionary.

74 This may occur where more than one wrongdoer is involved. The classic example is where two persons independently search for the source of a gas leak with the aid of lighted candles. According to the simple "but for" test, neither would be liable for damage caused by the resultant explosion. In this type of case, involving multiple wrongdoers, the court may treat wrongful conduct as having sufficient causal connection with the loss for the purpose of attracting responsibility even though the simple ''but for" test is not satisfied. In so deciding the court is primarily making a value judgment on responsibility. In making this judgment the court will have regard to the purpose sought to be achieved by the relevant tort, as applied to the particular circumstances.

75 One situation where the courts have had to grapple with the multiple wrongdoers' conundrum concerns how far the liability of one wrongdoer should be diminished by loss flowing from the conduct of another wrongdoer. This has arisen particularly in the context of personal injuries, where the plaintiff was first injured by one wrongdoer and later by another, and in the context of a ship suffering successive collisions at sea. Another situation is where the· defendant's wrongful act caused damage to the plaintiff, but even if he had acted lawfully the same or similar damage would have been produced by the wrongful act of someone else."

32. There is, in my judgment, no doubt that the "but for" test is satisfied in the present case. But for Mr Dunham's failure to apply for relief against forfeiture by the end of June 2000, it is common ground that Vision Golf would have obtained relief, and would have had its 50 year: lease of the GA land restored. The purpose of the law m imposing a duty on solicitors to act with reasonable skill and care is to protect the client against the risk that his legal rights might be lost. That is precisely what happened in the present case.
33. Mr Seitler QC argues that the "but for" test is irrelevant in this case, because no damage was caused by Weightmans' inactivity. If no damage was caused, no loss can have been caused either, and so it is not relevant to consider who might have been responsible for it. He stressed that his point did not rely on any failure by Vision Golf to mitigate its loss; or on any allegation of a new intervening cause of loss. His point was that it could not be said that any damage had occurred before the change of solicitors. In essence his point is that the right to apply for relief is a chose in action; and that at the time that instructions were withdrawn from Weightmans and transferred to Ingram Winter Green the chose in action was just as good as it ever had been.
34. Mr Seitler relied on the decision of the Court of Appeal in Khan v. Falvey [2002] EWCA Civ 400 That case involved a claim against solicitors for failing to progress causes of action. The question that arose was whether the claim was statute barred. For that purpose the Court of Appeal had to consider when the cause of action arose. The claimant relied on an earlier decision of the. Court of Appeal in Hopkins. v. MacKenzie [1995] PIQR 43, in which it was apparently held that no cause of action for failing to prosecute an action arose until the action was actually struck out. In Khan v. Falvey the Court of Appeal said that that decision could not stand with later authority in the House of Lords. Stuart-Smith LJ said that a claimant suffered real damage when there was a serious risk that his action would be struck out even before it was actually struck out. Thus the cause of action accrued before the actual strike out. Chadwick LJ said that the effect of cumulative delay makes It difficult to pinpoint a date when a claim first becomes susceptible to being struck out. Sometimes it is possible to say with confidence that before a certain date a claim is not vulnerable; and that after a certain date it was. Between those two dates, there is room for difference of view. Once a claim has entered that intermediate period, it is impossible to say that damage has not occurred because of the previous delay.
35. Khan v. Falvey was concerned with identifying when a lass was suffered for the purpose of the Limitation Act 1980. There was no doubt that a lass had been suffered in that case, because the claimant last his cause of action. In the present case equally there seems to me to be no doubt that Vision Golf suffered a lass. It had a good claim to relief against forfeiture an 12 May 2000; and that claim was definitively last by 2003. The question is: what caused the lass? As Lord Nicholls explains, once the "but for" test has been passed, questions of remoteness, failure to mitigate, and so on are all facets of the same exercise; namely attributing legal responsibility. It does not seem to me to be correct to stop the clack at the moment when Weightmans were dis-instructed. Mr Seitler accepted this, because he accepted that if a client with a good cause of action had been let dawn by his solicitor's inactivity until a day or two before the expiry of the limitation period whereupon he transferred the instructions to a new solicitor, the first solicitor would be liable if the second solicitor did not issue proceedings in time. Moreover, Mr Seitler's disclaimer of reliance an a new intervening cause of loss also means that it is inappropriate to stop the clack an the day that instructions were withdrawn from Weightmans. Once the clock is allowed to run an beyond the date when the first solicitor is dis-instructed, his culpability for a subsequent lass becomes a matter of evaluation.
36. I do not consider that fact (if it is a fact) that an application could have been made in December 2000 or February 2001 absolves Weightmans of their responsibility. If that is a value judgment; so be it. There is, in my judgment, nothing unfair or unreasonable in holding Weightmans liable for the very damage that their duty required them to prevent. If there are two tortfeasors who are responsible for the same damage, the one may have a claim for contribution against the other; but that does not absolve an original tortfeasor from his liability to the injured claimant ..
37. Mr Seitler suggested that one reason for Vision Golf's decision not to apply for relief against forfeiture was its awn lack of funds, for which Weightmans were not responsible. But this submission smacks of the now discredited theory that a claimant's impecuniosity absolves a tortfeasor from liability. The law has now abandoned this theory: see Lagden v. O'Connor [2004] 1 AC 1067 A tortfeasor must take his victim as he finds him.
38. That is enough to dispose of this defence. However, in deference to the argument of Mr Seitler QC I must deal with the question whether an application for relief in late 2000 or early 2001 would have had the same chance of success as an application made before the end of June 2000 ..

What would have been the chances of success in late 2000?

39. So far as an application to the county court was concerned, this would have been barred after the lapse of six months from the re-entry because of the effect of section 139 (2) of the County Courts Act 1984. So Mr Dunham's inactivity undoubtedly caused the right to apply to the county court to be irretrievably lost.
40. So far as an application to the High Court is concerned, there is no statutory time limit. The High Court exercises the ancient equitable jurisdiction to relieve against forfeiture. The exercise of this jurisdiction was considered by Sir Jocelyn Simon P sitting at Bristol Assizes in Thatcher v. CH Pearce & Sons (Contractors) Ltd [1968] 1 WLR 748 . The tenant in that was the tenant of a scrap yard. He had paid his rent promptly, until he was sent to prison. Thereafter he failed to pay the rent; and had no access to legal advice. The landlord peaceably re-entered for non-payment of one quarter's rent. Six months and four days after the re-entry the tenant applied for relief. Simon P said:

"The decision of the Court of Appeal in Lovelock v. Margo makes it plain that where a landlord re-enters peaceably and not through an action for forfeiture of the lease the jurisdiction of the court to give relief from forfeiture is not a statutory one but the old equitable one. As I understand the old equitable doctrine, the court would not give relief in respect of stale claims. Furthermore, if there were a statute of limitation applying at common law, equity followed the law and applied the statute to strictly analogous proceedings in Chancery. But there is no question in the instant case of a Limitation Act applying to the present situation; and it seems to me to be contrary to the whole spirit of equity to boggle at a matter of days, which is all that we are concerned with here, when justice indicates relief.

I think that a court of equity -. and it is such jurisdiction that I am exercising now -- would look at the situation of the plaintiff to see whether in all the circumstances he acted with reasonable promptitude. Naturally it would also have to look at the situation of the defendants to see if anything has happened, particularly by way of delay on the part of the plaintiff, which would cause a greater hardship to them by the extension of the relief sought than by its denial to the plaintiff."

41. It does not appear from the report that Simon P was referred to section 191 (3) of the County Courts Act 1959 (which was the predecessor to section 139 (2) of the County Courts Act 1984); and which did, in my judgment, impose a limitation period for applications for relief after peaceable re-entry (but only in the county court). Section 191 (3) was referred to in Lovelock v. Margo [1963] 2 QB 786, but does not appear to have been quoted verbatim. It seems to me, therefore that after November 11 2000 (when the six month period expired) there would, to put it no higher, have been a serious argument that the six month limitation period should have been applied by the High Court by analogy. I do not question Simon P's statement that equity would not "boggle at a few days" because even where a court of equity applies a limitation period by analogy, it does not do so rigidly. As Nicholls LJ explained in Billson v. Residential Apartments Ltd [1992] 1 AC 494, 529:

"This is not to say that courts of equity should now grant relief without any regard to the statutory provisions. Equity follows the law, but not slavishly nor always: see Cardozo C.J. in Graf v. Hope Building Corporation (1930) 254 N.Y. 1,9. On this we have the benefit of guidance elsewhere in the field of relief from forfeiture. Section 210 of the Common Law Procedure Act 1852, which is still in force, limited to six months after judgment the period within which a tenant could apply for relief in the non-payment of rent cases to which that statute applied, viz., where the rent was six months in arrears. Courts of equity have due regard to this statutory limitation in non-payment of rent cases where the statute does not apply: in cases of forfeiture by peaceable re-entry, and' in cases where possession has been taken under a court order where less than six months' rent was in arrears."

42. This question was not discussed on the subsequent appeal to the House of Lords. But a few days is not a few weeks.
43. It must also not be forgotten that a claim for relief against forfeiture is not a common law claim which the claimant is entitled, as of right, to issue within a statutory limitation period. On the contrary, it is an appeal to the court's discretion. The exercise of that discretion in the tenant's favour is itself influenced by any delay in making the application; and even within the six month period, relief may be refused if it is inequitable to grant it.
44. Suppose that a claim for relief against forfeiture had been made towards the end of 2000. How would the matter then have stood? The landlord would have been entitled to make the following points:

i) .The rent had not been paid since March 1998;

ii) Since the date of the forfeiture a further two quarters' rent would have fallen due;

iii) The tenant had been repeatedly asked whether it intended to make an application for relief; and nothing had been heard since 19 May 2000;

iv) The landlord had expressed their view that relief would not be granted in their letter of 26 May; that assertion was not refuted; and the landlords had thereafter granted a new lease of the GA land of which the tenant had been repeatedly warned;

v)The new lease was not in fact completed until about 28 days after the forfeiture;

vi) Well over six months had now elapsed since the date of the forfeiture, during which time the new tenant had been in possession and running the golf club;

vii) The six month period applicable in the county court should be applied by analogy; or at the very least there should be a presumption against the grant of relief outside that six month period;

viii) If the tenant had lost the right to relief through the incompetence of its solicitors it bad a remedy over against them.

45. I am not saying (and do not need to decide) whether an application for relief would or would not have succeeded if it had been made at the end of 2000. However, it is clear to me that, as Mr Tager QC submitted, it would have been a hard fought application, unsuitable for summary determination, capable of being brought only in the High Court, and much more difficult than the equivalent application would have been if made in June 2000. In my judgment it is clear that Vision Golf's chose in action consisting of the right to apply for relief had been substantially damaged or devalued by Weightmans' inactivity.

The T & R land

46. One of the heads of damage that Vision Golf claims is the loss of the T & R lease. The facts surrounding this are obscure. It is clear that the T & R lease was not forfeited on 11 May 2000. First, GA had no power to forfeit that lease (since it was not the landlord). Second, it did not purport to do so. Third, Mr Middleton did not purport to forfeit on 11 May 2000. At one stage he claimed to have done so many years earlier; but that seems to have been untrue. There is also evidence that the title was closed some two years later, but the circumstances in which that occurred are obscure.
47. Mr Dunham does not appear to have been given any instructions to make an application in respect of the T & R land; and it is not, as I understand it, alleged that he should have done before his instructions were withdrawn.
48. The way in which Vision Golf puts its case is that the T& R land was, in effect useless without the GA land. Thus once the GA land was lost, the T & R land would also be lost. However, I do not consider that Vision Golf has established that the loss of the T & R land was caused by Weightmans' inactivity between May and November 2000. I reach this conclusion in part because it is quite unclear why and in what circumstances the title to that land was closed; and in part because I consider that it is probable that an application to regain possession of the T & R land could have been made well into 2001 (if, indeed, the T & R lease had been forfeited by then).
49. Vision Golf had an alternative way of putting its case under this head. That was that as a result of the loss of the GA land, the T & R lease became liable to forfeiture and was therefore less valuable. This contention was based on the argument that the T & R lease was liable to forfeiture if there were a breach of covenant under the GA lease. But as Mr Seitler submitted, once the GA lease had been forfeited, there were no covenants in that lease to perform (or to breach). Thus once the GA lease had gone, the T & R lease was no longer susceptible to forfeiture on the ground of breach of covenant under the GA lease.
50. I do not therefore consider that Vision Golf is entitled to damages for the loss of the T & R lease on the basis of the case it advanced.

Loss of profits

51. In addition to the value of the lost GA lease, Vision Golf claims the profits that it would have made in running the golf course. However, it seems to me that since the, only permitted use under the lease was use as a golf course, its value will be assessed by reference to the opportunity it provided for earning profits. If profits are awarded on top of the value of the lease, Vision Golf will be over-compensated. Quite apart from anything else, Vision Golf has not in fact been exposed to the business risks involved in running a golf club; and those risks will be reflected in the market value of the GA lease.
52. Although the analogy is not a perfect one, it seems to me that an award of damages based on the value of the lease alone is consistent with the decision of the Court of Appeal in Crehan v. Inntrepreneur Pub Co (CPC) [2004] 3 EGLR 128, 147-148.

Costs of proceedings

53. Vision Golf made an application for relief against forfeiture in December 2002. It was in part struck out and in part abandoned in 2003. Vision Golf claims the costs of those proceedings as part of the damages recoverable against Weightmans. The basis of the claim is that the costs were expenses reasonably incurred in attempting to mitigate the loss.
54. I regret that I do not agree. Although it is well settled that the actions of an injured party in attempting to mitigate his loss are to be benevolently regarded, in my judgment the application for relief had, by December 2002, become hopeless. Mr Tager himself so advised; and that is why it was abandoned. I do not consider that those costs were reasonably incurred; and I do not consider that they form part of Weightmans' liability.

Result

55. I will give judgement for Vision Golf for damages to be assessed; and I direct that the assessment be limited to the value of the GA lease. There are some other minor sums spent on legal advice (including Weightmans' own fees) which are claimed; and, as I understand it, not disputed. Vision Golf will have to give credit in the assessment for the arrears of rent that it would have had to pay in order to obtain relief; together with the legal costs it would have incurred in the making of such an application.