Strand. London. WC2A 2LL
B e f o r e :
| VISION GOLF LTD
|WEIGHTMANS (a firm)
Mr. Jonathan Seitler QC & Mr. Thomas Dumont (instructed by Brown Jacobson) for the Defendants
Hearing dates: 20th & 2151 July 2005
Crown Copyright ©
Mr. Justice Lewison:
|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|
"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."
"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."
"Counsel confirms that service is imminent. The delay has been caused by the unavailability of the leases [in] this matter."
"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."
"Counsel's opinion has been sought on the matters and the applications lodged with the court for issue."
"Ken Munro's belief (shared by us) is that such application would be "doomed to failure", because of the real difficulty of proving collusion."
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.
"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."
What would have been the chances of success in late 2000?
"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."
"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."
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.
The T & R land
Loss of profits
Costs of proceedings