[2011]JRC043
royal court
(Samedi Division)
21st February 2011
Before : |
M. C. St. J. Birt, Esq., Bailiff, and Jurats Le Breton and Liddiard. |
Between |
H C Carpenters & Joiners Limited |
Appellant |
And |
Crionne Developments Limited |
Respondent |
Mr P. Horgan, Director on behalf of the Appellant.
Mr J. Farley, Director on behalf of the Respondent.
judgment
the bailiff:
1. This is an appeal, with leave of the Deputy Bailiff, against a decision of the Acting Magistrate, dated 30th June, 2010, sitting in the Petty Debts Court. On that occasion he gave judgment in favour of the respondent for the return of a deposit in the sum of £3,582.63 paid by the respondent to the appellant in respect of a contract for the manufacture and supply by the appellant of certain windows. The Magistrate held that the contract in question was illegal with the consequence that it could not be enforced and the respondent was entitled to repayment of its deposit.
2. The appeal turns on certain findings of fact which the Magistrate made. We shall for convenience refer to the appellant as the defendant and the respondent as the plaintiff, as these were their respective roles before the Petty Debts Court.
Factual background
3. Much of the factual background is not in dispute. We propose to summarise this and then turn to the key issue upon which the parties differed. The Magistrate heard three witnesses. Mr John Farley is the principal of the plaintiff and is a developer; Mr Paul Horgan is the principal of the defendant which is a joinery company; and Mr Sean Osmand is a planning and design consultant who was retained by Mr Farley on behalf of the plaintiff to design the windows which were the subject of the action.
4. The plaintiff was at material all times the owner of Maison de la Carrière, St Ouen ("the property"), which was designated as a building of local interest (BLI). The plaintiff wished to redevelop it. Mr Farley retained Mr Osmand to design and obtain planning permission for new windows at the property. Because the property was a BLI, this was not a simple process and required a number of revisions to the style and detail of the windows. But eventually, on 25th March, 2009, planning permission was granted and the plans submitted by Mr Osmand were stamped as approved. Subsequently, although there is a dispute as to the date, Mr Osmand sent the approved plans to Mr Farley.
5. Mr Osmand had at some stage suggested Mr Hogan's company to Mr Farley as a suitable firm to manufacture and supply the new windows. On 1st April, 2009, Mr Farley met Mr Horgan at the property. There is a dispute between the parties as to exactly what was agreed at that meeting and we shall return to that later in this judgment. What is not disputed however is that, at the meeting, it was agreed that the defendant would quote for the supply of 10 windows for installation in the property.
6. The next day, 2nd April, the defendant submitted a quotation (No. 95) to the plaintiff. The quotation had certain drawings attached and the narrative referred to the windows as being "spiral balanced'. It is not disputed that the windows for which the defendant quoted were very different from the windows which had been approved in the planning permission. It is not necessary to go into the technical details, which were much discussed before the Magistrate, and we shall for convenience simply refer to the windows for which planning permission had been approved as "box-frame" windows and the windows for which the defendant quoted as being "spiral balance" windows.
7. Mr Farley did not notice or understand the difference between the approved windows and those quoted for and on 13th April he e-mailed Mr Horgan accepting the quotation. He added that he now also required a quote for two dormer windows and further said "Please confirm the design is acceptable to Planning". Mr Horgan replied by e-mail seeking clarification of exactly what was required in respect of the dormer windows. This was presumably suggested at some stage although the papers do not disclose this. On 20th April Mr Horgan e-mailed Mr Farley suggesting Mr Farley might wish to look at certain windows for another site which the defendant had manufactured as this would be a good opportunity of inspecting the defendant's factory finished products prior to the plaintiff finalising its order.
8. On the 9th May Mr Horgan, on behalf of the defendant, submitted a revised quotation (No.95 - A) which now included the dormer windows but was otherwise identical to the first quotation in respect of the original ten windows. The terms and conditions attached to the quotation required a 30% deposit on placing of the order and also contained the following provision:-
"Any order placed cannot be cancelled, deferred or altered by the Buyer except by mutual agreement confirmed in writing."
Further down in the terms and conditions there was a note to the effect "We assume all necessary permissions have been granted under the current Island Planning/Building regulations".
9. On 21st May, 2009, Mr Horgan e-mailed the Planning Department as follows:-
"We are currently manufacturing windows for John Farley for the above-mentioned project. The architect for the project is Sean Osmand and he has recently furnished me with manufacturing details of the windows.
The details provided differ in the following areas to our design:- [details were then given]. I would appreciate it if you would advise if these design details are acceptable for this project..
We have recently supplied sash windows to Martin Fernando for the Nil Solitaire project and these would be indicative of what we intend to provide for the above-mentioned project.
I look forward to hearing from you".
Mr Horgan sent a copy of this e-mail to Mr Farley.
10. There were subsequent exchanges with the Planning Department and Mr Horgan submitted details of the drawings upon which he had quoted. However, on 16th June, the Planning Department rejected any amendment to the windows as previously approved. Mr Horgan replied by e-mail the same day stating that certain aspects of what had been approved were impossible to build. There were some further exchanges between the parties and Mr Horgan indicated that some amendments could be made to the windows which he had proposed, although the cost would now be greater. The upshot was that on 30th June, Mr Farley, on behalf of the plaintiff, wrote formally cancelling the contract on the basis that the window design quoted for in the contract had not been approved by the Planning Department. He demanded the return of the deposit. In due course he instigated proceedings for the retention of the deposit and it was those proceedings which came before the Magistrate.
The nature of the dispute
11. It is convenient at this stage to summarise the nature of the dispute. It relates almost entirely to what happened at the meeting on 1st April.
12. According to Mr Horgan, on behalf of the defendant, he was not shown any plans at the meeting. Mr Farley did not produce the plans approved by the Planning Department. There was reference at some stage to the nature of the windows which Mr Osmand had designed for another property Nil Solitaire and which Mr Horgan's company was supplying. He therefore prepared his quotation of 2nd April for windows which were broadly similar to those at Nil Solitaire. So far as he was concerned a contract for the supply of windows in accordance with the quotation was formed on 12th May when the defendant returned the order form and paid the deposit. In accordance with the provision quoted at para 8 above, the contract could only by cancelled by mutual agreement. He only became aware of any difficulty on 20th May when, at a meeting with Mr Farley on site, he was for the first time shown the stamped approved plans. It was clear to him immediately that these were very different from the windows for which he had quoted; they were box-frame windows rather than the spiral balance windows. He telephoned Mr Osmand and outlined the problem to him and he then sent the e-mail to the Planning Department on 21st May which we have referred to above.
13. Mr Farley, on the other hand, says that he produced the stamped approved plans to Mr Horgan at the meeting on 1st April. He therefore expected the quotation to be a quotation for the supply of those windows. He was not an expert and did not know enough to realise that the windows in fact quoted for were different. He said that Mr Horgan stated at the meeting that he might wish to make minor variations to the plans but said that he would come up with a design to satisfy the Department. It was for this reason that Mr Farley referred in his e-mail of 13th April to the need for the design to be acceptable to Planning. As far as he was concerned, the quotation was to supply windows as per the stamped approved plans subject to any minor variation which Mr Horgan might agree with the Planning Department. He was not aware of any problem until receiving a copy of the e-mail to the Planning Department of 21st May. When it subsequently became clear that planning permission could not be obtained for the windows for which the defendant had quoted, he cancelled the contract.
14. Mr Osmand confirmed that he had prepared detailed plans for the windows and that, after much negotiation with the Planning Department, he had obtained consent for box frame windows. He had sent the approved plans to Mr Farley. He knew Mr Farley was going to meet Mr Horgan and he sent additional copies to Mr Farley prior to that meeting. He had not seen the defendant's quotation or had any material involvement after obtaining planning permission although he had been telephoned by Mr Hogan at some stage. He asserted that Mr Farley was fully aware of the importance of the windows being exactly in accordance with the planning permission because he had kept Mr Farley informed about the difficulties he had had in obtaining the permission in the first place. He also said that there was nothing in the quotation to alert a non-expert such as Mr Farley to the fact that the windows quoted for were quite different from the windows for which planning permission had been obtained.
The Magistrate's decision
15. The Magistrate rightly considered that the matter turned on whether the approved plans had been supplied to Mr Horgan at the meeting on 1st April. He reviewed the evidence of all the witnesses and concluded that they had not been so supplied. He held that the contract of 12th May, being for the supply of windows which had not been approved and for which permission was subsequently rejected, was an illegal contract and could not therefore be enforced. The plaintiff was therefore entitled to re-payment of the deposit.
16. There is no doubt that the parties entered into a contract. The quotation of 9th May constituted an offer by the defendant to enter into a contract for the supply of the windows specified in the quotation (i.e. spiral balance windows) and the completion of the order form accompanied by the payment of the deposit constituted an acceptance of that offer on the part of the plaintiff. The necessary consent of both parties to the contract had therefore been given.
17. Neither the Magistrate nor the Court was addressed on the law. It may well be that the Magistrate was correct in his analysis that the contract was vitiated by illegality for the reasons he gave. An alternative view, if the evidence of the plaintiff is accepted, is that the contract was vitiated by mistake (erreur). On the plaintiff's case, the defendant was asked to quote for the supply of windows in accordance with the plans approved by the Planning Department. Unknown to him, the quotation in fact related to very different windows for which planning permission had not been granted and for which it proved impossible to obtain planning permission. It seems to us strongly arguable that this is a classic case of consent to a contract being vitiated by erreur.
18. However, whichever analysis is supplied, it is clear that the case turns on a factual issue, namely whether the defendant was supplied with the approved plans at the meeting on 1st April and asked to quote on the basis of those plans (as the plaintiff contends) or whether no plans were supplied at that stage and the defendant was simply asked to quote for some windows broadly along the lines of those at Nil Solitaire (as contended by the defendant).
The parties' contentions
19. Mr Horgan, who spoke impressively and persuasively on behalf of the defendant, contended that the Magistrate had been wrong to conclude that Mr Horgan was shown the approved plans at the meeting on 1st April. We would summarise his key points as follows:-
(i) If the defendant was supplied with the approved plans, why should the quotation be for completely different windows? There would be no point in doing so and, as an expert he was of course completely familiar with the difference between spiral balance windows and box frame windows.
(ii) There was very little time for the plans, once they had been approved on 25th March, to be sent by the Planning Department to Mr Osmand and then by Mr Osmand to Mr Farley prior to the meeting of 1st April. It was unlikely that Mr Farley would have been in possession of the approved plans by then.
(iii) This was doubly so when one considered Mr Osmand's evidence that, having sent the original approved plans to Mr Farley, he was asked to supply further copies for a meeting with Mr Horgan. Furthermore, Mr Osmand's Affidavit referred to the request for further copies being made "sometime later" than when he had sent the original plans. This was not consistent with everything having been done between 25th March and 1st April. It was far more consistent with the defendant's case, namely that it was for the meeting on 20th May between Mr Farley and Mr Horgan that the copy plans were supplied.
(iv) If Mr Horgan had received the original approved plans at the meeting on 1st April, he believed he would have referred to them in the quotation as this would have been his normal practice.
(v) In his oral evidence, Mr Osmand recalled that, although he could not be sure, he thought that the telephone call from Mr Horgan telling him that there was a problem was more like two weeks than six weeks after he had sent the copies of the plans to Mr Farley. This was more consistent with the plans having been sent to Mr Farley some time before 20th May than with the plaintiff's case that this all occurred prior to 1st April.
(vi) The contemporaneous e-mail to the Planning Department of 21st May was consistent with the defence case. This referred to the defendant only having seen the approved plans the day before.
20. The arguments in support of the Magistrate's decision on this aspect can be summarised as follows:-
(i) By 1st April Mr Farley knew that the Planning Department had not been easy over the new windows, that Mr Osmand had had to prepare several revisions to satisfy them, and that planning permission had eventually been received on 25th March. It was inconceivable that, knowing all this, Mr Farley would meet Mr Horgan before he had received the approved plans and ask Mr Horgan to quote for the manufacture and supply of windows other than in accordance with the approved plans. It would be a completely pointless exercise.
(ii) Mr Osmand's oral evidence that he sent the approved plans on to Mr Farley just after receiving them supported Mr Farley's evidence that he was in possession of those plans prior to the meeting on 1st April. If he was in possession of them, it was even more inconceivable that he would have asked Mr Horgan to quote for anything other than the approved windows.
(iii) From the start Mr Horgan had expressed some reservations about the approved plans and indicated that he would try and get the Planning Department to agree minor changes. This would explain why he felt it appropriate to quote for windows which did not accord with the permission; he hoped to persuade the Planning Department to change its mind.
Decision
21. This is a case where the Magistrate has had the advantage of seeing and hearing the witnesses give evidence before him. This Court has not had that opportunity. On the crucial issue of whether Mr Farley produced the approved plans to Mr Horgan at the meeting on 1st April, the Magistrate preferred the evidence of Mr Farley.
22. It is trite law that in Jersey, as in jurisdictions in the United Kingdom, appellate courts are extremely slow to overturn findings of fact made by lower courts when those courts have seen and heard the witnesses in question. See for example Taylor-v-Fitzpatrick (1979) JJ 1761; Davies-v-Stirling (1983) JJ 77; Shales-v-Jersey Granite and Concrete Co Limited (1967) JJ 755. The most recent restatement of the position is to be found in Jones-v-Plane [2006] JLR 438, a decision of the Court of Appeal. We would refer in particular to paragraphs 27 - 29 of the judgment of the Court delivered by Rokison JA:-
"27. Mr Landick accepted the difficulty which he faced in seeking to persuade an appellate court to upset clear findings of fact made by a court at first instance which has had the benefit of seeing and hearing the relevant witnesses.
28. In the case of Shales-v-Jersey Granite and Concrete Co Limited, cited in the reply contentions of Mr Jones dated August 29th 2006, this court quoted from the speech of Lord Sumner in The Hontestroom [1927] AC at 47:-
"one the less, not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he had failed to use or has palpably misused his advantage, the higher court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case."
29. As was pointed out, this passage in the speech of Lord Sumner was endorsed by Lord Wright in Powell-v-Streatham Manor Nursing Home in the following terms [1935] AC at 265 - 266:-
"Two principles are beyond controversy. First it is clear that in an appeal of this character, that is from the decision of a trial judge based on his opinion of the trustworthiness of witnesses whom he has seen, the Court of Appeal 'must, in order to reverse, not merely entertain doubts whether the decision below is right, but be convinced that it is wrong'... And secondly the Court of Appeal has no right to ignore what facts the judge had found on his impression of the credibility of the witnesses and proceed to try the case on paper on its own view of the probabilities as if there had been no oral hearing.'"
23. In this case, when considering the probabilities, there are difficulties in the way of each side. If, as the plaintiff contends, the approved plans were supplied to Mr Horgan on 1st April, why did Mr Horgan then prepare a quotation for different windows? Conversely, if, as the defendant suggests, the plans were not produced at that meeting, why would Mr Farley ask the defendant to prepare plans for windows based on those of Nil Solitaire when he was aware that, after considerable difficulty, planning permission had eventually been received for windows in accordance with the plans submitted by Mr Osmand.
24. Ultimately, this case turns on whose evidence the Magistrate preferred, having seen and heard the witnesses. He chose to prefer the evidence of Mr Farley. This Court cannot intervene unless it is convinced that that decision on the part of the Magistrate was wrong. It is not a question of what individual members of this Court might have decided on the basis of the transcripts, the documentary evidence and the probabilities.
25. We have carefully considered the arguments put forward by Mr Horgan on behalf of the defendant but these have not convinced us that the Magistrate was wrong. It was not an easy decision for the Magistrate to choose between the two competing versions of events and there was evidence and respectable reasoning to support a finding either way. In these circumstances there are no grounds for this Court to overturn the Magistrate on a pure finding of fact and accordingly we dismiss the appeal.
26. It follows that the decision of the Petty Debts Court granting judgment in the sum of £3,582.63 in favour of the respondent stands.
27. At the conclusion of the hearing, both parties agreed that, regardless of the outcome of the Court's decision on the appeal, there should be no order for costs. Accordingly, that is the order the Court makes.
Authorities
Taylor-v-Fitzpatrick (1979) JJ 1761.
Davies-v-Stirling (1983) JJ 77.
Shales-v-Jersey Granite and Concrete Co Limited (1967) JJ 755.