Pretoria Energy Company (Chittering) Ltd v Blankney Estates Ltd [2022] EWHC 1467 (Ch)
Background
The Claimant (Pretoria Energy Company) was the tenant, who agreed and signed Heads of Terms (HoT) with the Defendant (Blankney Estates), the landlord. Signed in November 2013, the HoT granted the Claimant a right to lease a site for 25 years.
The site was occupied by a factory, and once the Claimant obtained planning permission for the development of a new Anaerobic Digestion Plant, the Defendant began the demolition of the factory on site.
However, the local authority intervened and suspended any further work, on the basis that specific planning conditions were not complied with.
Issues
The Defendant initially notified the Claimant the exclusivity period (the period during which negotiations with third parties were prohibited) under the HoT had expired, and new HoT would be drafted to replace these. However, the Defendant subsequently informed the Claimant the exclusivity period could no longer be granted due to concerns with the Claimant.
The Claimant issued proceedings against the Defendant for breach of contract.
Were the HoT legally binding?
Judgment
The judge dismissed the Claimant’s claim for breach, for the following reasons:
1. There was no binding obligation on the Defendant to lease the site to the Claimant, as the exclusivity period ended in July 2014 and the Defendant was entitled to liaise with third parties regarding the site;
2. The Landlord and Tenant Act 1954 did not apply to the HoT, which shows that neither party intended to be bound by the HoT or form a binding contract, until the required processes had been complied with; and
3. The HoT did not include essential provisions in order to be deemed the final contract i.e it was silent on aspects relating to the Anaerobic Digestion Plant.
For further information, please see: https://www.bailii.org/ew/cases/EWHC/Ch/2022/1467.html
Pitalia and another v NHS England [2023] EWCA Civ 657
Background
The claim was issued on 12 August 2019 and the appellant’s solicitors failed to notice that the court had not returned the issued claim form to them until the time for service had almost expired. An unsealed version of the claim form with the particulars of claim was served on 27 November 2019. On the date of the deadline for service, the respondent informed the court that good service had not been made.
On 2 January 2020 the appellants served a sealed version of the claim form on the respondent. On 17 January 2020 the appellant sought an order for rectification of the claim form under CPR 3.10, in the alternative, an extension of time on the service. In their acknowledgement of service, the respondent indicated the intention to defend the claim, but neglected to tick the box to challenge jurisdiction. On 24 January 2020, the respondent applied for the claim to be struck out for failure to comply with CPR 7.5, for which the district judge did exactly that.
The appellant appealed on the grounds that the respondent accepted jurisdiction in not indicating its intention to challenge as such in their acknowledgement of service, and as such, lost any right to challenge the validity of the claim under jurisdiction due to a failure to use the correct procedure under Part 11. The Respondent argued that their acknowledgement of service dated 24 January 2020 should have been treated as a Part 11 application.
Issues
Was the Judge’s decision to dismiss the appeal based on a prohibited use of the rectification power under CPR 3.10, which by its nature should not be used to achieve an outcome that is expressly prohibited by other provisions.
Was there a valid challenge to jurisdiction?
Judgement
The appeal was dismissed. The judge provided the following reasoning for his judgement:
Service – Rule 7.5(1) stipulates that a claim form must be issued within 4 months of its issue. The case of Barton v Wright Hassall LLP [2018] UKSC 12, [2018] 1 W.L.R. 1119, [2018] 2 WLUK 454 was stressed by the judge, whereby the supreme court highlighted the importance of the timing and lawful service of originating process, and that a failure to comply with CPR provisions in relation to service would be treated much harsher than other procedural errors and distinguished as in a class of their own.
Rectification – The principle established in Vinos v Marks & Spencer Plc [2001] 3 All E.R. 784, [2000] 6 WLUK 152, is that CPR 3.10 does not operate to override an express prevention in another rule, however it would deprive the principle of its usefulness to not allow its use from rectifying any breach of CPR. The use of CPR 3.10 to rectify the technical error made by the respondent in their acknowledgement of claim by not indicating their intent to challenge jurisdiction therefore differs from a failure to comply with CPR service provisions and therefore does not contradict the principle established in Vinos. A distinction was made in reference to Steele v Mooney [2005] 1 WLR 2819, that there is a big difference between making an application which contains an error, and failing to make a necessary application at all.
Jurisdiction – CPR 11(1) does not say that a box has to be ticked, simply that an application must be made. It is this kind of technical error that CPR 3.10 functions to address.
For further information, please see: https://www.bailii.org/ew/cases/EWCA/Civ/2023/657.html
Gohil v Advantage Insurance Co Ltd (unreported), 11 May 2023 (Birmingham County Court)
Background
The Claimant made a Part 36 offer which was accepted by the Defendant. The claimant prepared a schedule of fixed costs amounting to £4,937.07 and the Defendant was ordered to pay the fixed costs and disbursements in that total sum. The issue arose as a result of the claimant having made a previous offer for £4,937, a total of 7 pence lower than the sum claimed. The claimant therefore tried to claim additional sums pursuant to CPR 36.17.
Issue
Was the offer made to deliberately incur the benefits of a Part 36 offer?
Judgement
The judge determined that the additional awards under CPR 36.127 did not apply as the reduction of 7 pence was not a genuine attempt to settle the proceedings. The judge relied on the following reasoning in his judgement:
- In making his judgement, the judge took into account the principles established in Huck v Robson [2002] EWCA Civ 398 by Lord Justice Jonathan Parker at 63 and the example given at 71 , “in order to qualify for the incentives provided….the claimant’s Part 36 offer must represent at the very least a genuine and realistic attempt by the claimant to resolve the dispute by agreement. Such an offer is to be contrasted with one which creates no real opportunity for settlement but is merely a tactical step designed to secure the benefit of the incentives”, and the example given at 71, “I would however add that it was self-evident that the offer made was merely a tactical step designed to secure the benefit of the incentives provided by the rule (e.g. an offer to settle for 99.9% of the full value of the claim) I would agree….that the judge would have a discretion to refuse indemnity costs”. The discount offered was even less than the example in Huck, and presented no real opportunity for settlement, but instead appeared to be a tactical step to secure the benefits of a Part 36 offer, with an absence of an explanation as to why the discount was chosen.
This case went unreported however a link to the transcript is available on Practical Law at: https://uk.practicallaw.thomsonreuters.com/Gohil v Advantage Insurance Co Ltd
