QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Strand, London, WC2A 2LL
B e f o r e :
| 1) Nicholas Lee Morgan
2) Dinah Alison Morgan
|- and -
|Alan Raymond Pooley
Ann Elsie Pooley
Mr David Parry (instructed by Warners) for the Defendants
Hearing dates: 20 - 22 July 2010
Crown Copyright ©
The Honourable Mr Justice Edwards-Stuart :
"Have you either sent or received any letters or notices which affect your property or the neighbouring property in any way (for example, from or to neighbours, the council or a government department)?"
To this question Mr and Mrs Pooley's answer was "No".
The notices in relation to the application for the new drive
The previous planning applications by Mr and Mrs Moore
"The Council also placed notices of the planning application on Three Oaks Lane: one on the gate of the old driveway next to our house; and one on the gate of the field where the proposed new driveway would be. I remember seeing them when walking the dog down Three Oaks Lane with my wife. We read the notices and talked about the work that would be carried out. The notices contained the same sort of information as the letter we had received.
I am surprised that the Pooleys say they did not see the notices put up by the Council. When you live in the countryside, in an area of Outstanding Natural Beauty, and you see a notice close to your property, you go and see what it is about."
The letter to which Mr Rodgers was referring was the formal notification from the Council about the application by the Moores in relation to the proposed driveway.
The dispute about the receipt of the letter
The dispute about the nature of the hedgerow
The expert evidence
Mr Highwood's evidence
"The loss of privacy when considered in the competitive market that existed in July 2007 would be enough for many to reconsider whether to proceed but with little alternatives available the Property would still sell but at a discount of say 10% or £200,000 in this case (see paragraph 16.6 above). This equates to a discount of 12% on the sale price of £1,660,000.
The effect on value today is quite different and this property would find the competition of other available properties difficult and so a larger percentage discount would result at starting from a lower market value."
Mr Watson's evidence
"It is my view that unless the track was used by a particularly high tractor or lorry, careful replanting of shrubs and bushes of a height of six to eight feet would prevent users of the track from looking into the garden or first floor windows of Three Oaks House."
My conclusions in relation to the expert evidence
My conclusions on the misrepresentation issue
The issues of law in relation to misrepresentation
The contract and the history of the negotiations
"4. In the light of the decision in William Sindall plc -v- Cambridge County Council (1994) 3 All ER 932, it is agreed and declared that that the reply to any enquiry or information supplied in any property information form is given to the best knowledge, information and belief of the Seller, and that neither the Seller nor his legal representative has made any further enquiries into such matters (such as, but without limitation - conducting a site inspection or making specific enquiries of statutory authorities or utilities), and the replies are therefore given on that basis.
6. The Buyer acknowledges that this Contract has not been entered into by the Buyer in reliance upon any representations made by or on behalf of the Seller except those made in writing by the Seller's conveyancers prior to the date hereof as being representations upon which reliance is placed and such as were not capable of independent verification by the Buyer."
William Sindall plc v Cambridgeshire CC
"It is well established that a statement that a vendor is not aware of a defect in title carries with it an implied representation that he has taken reasonable steps to ascertain whether any exists (compare Brown v. Raphael  Ch. 636). This may require him, in the first instance, to examine his title deeds and other records, inspect the property, and obtain legal advice. If there is anything to put him on inquiry as to the existence of a defect, he may have to pursue the matter further by questioning others, or examining their documents."
The purpose of Special Condition 4 was to displace this implied representation which, for the reasons that I have given, I consider it did.
"Undisclosed defects in title such as easements are a common hazard in conveyancing and the transaction traditionally provides in some detail for what is to happen if they appear. In the absence of contrary provision, the obligation of a vendor under a contract for the sale of land is to deduce a good title. Until this has been done, the purchaser cannot be required to take a conveyance and pay the price. It is customary, however, for a vendor, by means of standard and special conditions, to restrict his obligation to having to show only such title as he is confident he will be able to deduce. Such conditions require the purchaser to accept the risk that the title for which he has contracted will turn out to be in some other respect defective. This risk is mitigated by law and custom in various ways. One is that the vendor is under a duty to disclose any defects of title of which he knows or has the means of knowledge. Another is that a purchaser can search in the Land Registry and Register of Local Land Charges for registrable encumbrances and make enquiries of the local authority about others of a public nature. He will commonly also submit Enquires before Contract to the vendor, asking specific questions about possible encumbrances. The vendor's answers will constitute representations on which the purchaser will ordinarily rely when entering into the contract. If they turn out to be wrong he will have the normal remedies for misrepresentation.
At completion the purchaser accepts the title offered by the vendor and the latter's contractual obligations to deduce title are discharged. They are replaced by qualified covenants for title expressed or implied in the conveyance or transfer. Until the Misrepresentation Act 1967 the purchaser's remedy for misrepresentation was (in the absence of fraud) also extinguished by completion, and he was left with no remedy except the covenants for title. But Section 1 of the Act provides that completion shall not be a bar to rescission for innocent misrepresentation."
"When the learned judge speaks of the contract allocating risk "by express or implied condition precedent or otherwise" I think he includes rules of general law applicable to the contract and which, for example, provide that, in the absence of express warranty the law is caveat emptor. This would, in my view, allocate the risk of an unknown defect in goods to the buyer, even though it is not mentioned in the contract. Similarly, the rule in Hill v. Harris,  2 QB 601, that a lessor or vendor does not impliedly warrant that the premises are fit for any particular purpose means that the contract allocates the risk of the premises being unfit for such a purpose. I should say that neither in Grist v. Bailey,  Ch. 532, nor in Laurence v. Lexcourt Holdings Ltd.  1 WLR 1128 did the judges who decided those cases at first instance advert to the question of contractual allocation of risk. I am not sure that the decisions would have been the same if they had.
In this case the contract says in express terms that it is subject to all easements other than those of which the vendor knows or has the means of knowledge. This allocates the risk of such incumbrances to the buyer and leaves no room for rescission on the grounds of mistake."
The authorities on non-reliance clauses
"It is common to include in certain kinds of contracts an express acknowledgement by each of the parties that they have not been induced to enter the contract by any representations other than those contained in the contract itself. The effectiveness of a clause of that kind may be challenged on the grounds that the contract as a whole, including the clause in question, can be avoided if in fact one or other party was induced to enter into it by misrepresentation. However, I can see no reason in principle why it should not be possible for parties to reach an agreement to give up any right to assert that they were induced to enter into it by misrepresentation, provided that they make their intentions clear, or why a clause of that kind, if properly drafted, should not give rise to a contractual estoppel of the kind recognised in Colchester Borough Council v Smith. However, that particular question does not arise in this case. A clause of that kind may (depending on its terms) also be capable of giving rise to an estoppel by representation if the necessary elements can be established: see E A Grimstead & Son v McGarrigan (CA) 27 October 1999, unreported."
"I do not regard condition 17 as satisfying that requirement in the circumstances of this case. Another way of putting it is that Mrs Boyle has not shown that it does satisfy that requirement."
The issues of law in relation to breach of contract
"7.1 Errors and omissions
7.1.1 If any plan or statement in the contract, or in the negotiations leading to it, is or was misleading and inaccurate due to an error or omission, the remedies available are as follows.
7.2.2 When there is a material difference between the description or value of the property ... as represented and as it is, the buyer is entitled to damages."
MY ANSWERS TO THE AGREED ISSUES
Does not arise.
As a matter of law, No. However, they were influenced by the answers in the SPIF when deciding to buy the property.
If this issue had arisen, the answer would be Yes.
If the answer had been Yes, the recoverable damages would have been £50,000.
Does not arise (but see the answer to issue 8 above).
Does not arise.