PT-2022-BRS-000100 - [2025] EWHC 2743 (Ch)

Fortunately, much of the evidence given in the witness statements is underpinned by correspondence passing between the two sides’ solicitors, and I think I can therefore place reliance on that correspondence to establish the sequence of events. I have read all of it, and what follows is an attempt to summarise the points which have most impressed me. What the correspondence demonstrates is that relatively little progress had been made by March 2025 towards the implementation of the settlement arrived at by the acceptance of the Part 36 offer in June 2024. Part of this delay can be explained by the fact that the claimant did not have immediately to hand the £500,000 needed to pay the defendants, and was seeking funding from third parties. Another part of it can be explained by the need to involve other third parties in the settlement. Thus, for example, it took until about mid-September to obtain consent from the two banks (Barclays and the Clydesdale) with charges on the land concerned.

At about the same time (mid-September) the defendants’ solicitors provided the claimant’s solicitors with draft conveyancing documents. The claimant complains about this. The defendants’ solicitors were clearly reluctant to incur further legal costs before the claimant showed whether he could raise the £500,000. But there was no reason why those documents had to come from the defendants. The claimant’s solicitors could themselves have drafted them much earlier if they had wished to do so. Indeed, since the claimant was the intended transferee of the land concerned, that would have been the normal course in an ordinary conveyancing transaction. In the last week of October, the claimant’s solicitors supplied draft corporate documents and a draft settlement agreement to the defendants’ solicitors. In mid-November (about two months after receipt) the claimant’s solicitors raised a number of points on the draft conveyancing documents. Some of these were resolved in correspondence between the conveyancers by January 2025.

As a general point the correspondence between the parties is markedly different in tone. That from the defendants’ solicitors is generally proactive, conciliatory and “can-do” in tone. That from the claimant’s solicitors is generally reactive, hostile and negative in tone. It conveys a strong sense of entitlement, of foot-dragging, and of self-excuse by blaming the defendants. (I expressly except from this comment the correspondence between the conveyancers, which, although sometimes slow or delayed, is almost always sensible, practical and polite. I pay tribute to their ability to remain happily distanced from their litigation colleagues. I commend their approach to others seeking professionally to resolve emotionally charged conveyancing situations.)

The correspondence indicates that the defendants made a number of concessions to the claimant in order to secure his agreement on the documents. However, it also shows that the claimant made further demands at a late stage for changes to be made to the settlement documents. These included the claimant’s request for assistance with an adverse possession claim against a third party. These changes were no part of the original settlement terms. In March 2025, the defendants indicated in correspondence that they had instructions to return to court for an order to enforce the settlement terms. Matters were then batted back and forth between the two sides.

One matter that was raised late in the correspondence was the question of payment for upkeep of certain accessways, the land over which the accessways passed the claimant wished to own, but in respect of which he intimated he would not contribute to upkeep. This caused a considerable discussion to arise. On 31 March 2025, the defendants’ solicitors wrote (in part):

“Thank you for your letter of 25 March 2025.

Your letter notes that the only significant outstanding matter is completing the transfer. That matter remained with your client until late on Friday 28 March, at which point comments were returned. We note, with some concern, that the position taken by your client appears to include that:

1.

In respect of the yellow and purple accessways (in which our clients have already compromised and conceded to your client’s request), he is now stating he wishes to own and use the accessway but pay no maintenance at all to it; and

2.

In respect of the orange accessway (which we had assumed was agreed after our clients compromised and accepted your client’s plan), he has now stated that he no longer agrees with his own plan and wants it amended, without specifying in what manner.

These responses are as unreasonable as they are unhelpful and appear to support our clients’ conclusion that your client does not intend to settle this matter and is now seeking to frustrate the process.”

The claimant’s solicitors replied on 1 April 2025 in a lengthy letter, going through the correspondence to date. That letter included the following:

“Our client’s position has not changed. At no point did our client offer, nor was it suggested by either party that he would contribute the maintenance of the Accessway. Our client does not wish to alter the position after an agreement has been reached and reduced to wording in the transfer document.”

It also made clear that the claimant was unwilling to execute any deeds of covenant which required third party involvement until the third parties concerned had themselves executed the deeds. I am afraid that there is more than a mere whiff of amour propre here.

Thirdly that letter referred to a further issue of banking consents:

“In relation to banking consents, whilst the banks have agreed to release the property(ies) from the existing charges, and indemnities exist in the settlement agreement, this is distinct from the requirement of our client’s lender to receive written evidence from both Barclays and Clydesdale that they do not regard our client being liable for any partnership debt from Completion onwards.

The evidence they require is beyond our control, but necessary to allow this transaction to progress. Our client’s lender will not release funds without such evidence. If not already requested (please confirm if not, why not) please can you ensure that this has been done to avoid any further delays. If your clients have an issue with providing this evidence, please explain why.”

In a letter in reply dated 2 April 2025, the defendants’ solicitors wrote in part:

“We understand your letter to state that your client considers it an agreed position that he make no contribution to the maintenance of the purple and yellow accessways, even were he a user. That is disputed by our clients for the reasons given above, with their position being that it was a default user clause agreed in respect of both accessways. That is certainly what we and they understood from previous correspondence. In respect of the yellow accessway, that was to be only after there had been a relevant disposal or development, but the drafting has gone beyond that.

Given the matter is, as you say, relatively minor, our clients would invite yours to confirm agreement to the default user clause that was understood to be agreed given it is an inherently fair solution, rather than favouring one party or another.

As an alternative, our clients would be willing to take on responsibility for maintenance if the transfers were amended such that they retain the accessways in question.”

As to the third party deeds issue, the defendants’ solicitors wrote:

“As had been discussed between the conveyancers we had been awaiting comments so that a final version could be put before the third-parties, rather than having to make repeat approaches. We had thought this point was not controversial but our clients have no objection to making the approaches now.”

As to banking consents the defendants’ solicitors wrote:

“We must express some considerable concern that this has arisen, as a supposedly definitive requirement, at this late stage. This is despite our clients’ previous requests for information in relation to your client’s lender where it has been repeatedly assured that all was in place and the lending available. You are now suggesting those previous representations were wrong. We would be grateful, also, if you could confirm that your client’s lender is aware of the indemnities offered in respect of the Partnership debt in the settlement agreement and that they require the confirmations despite that?”

A further point was made more generally:

“We note, with some frustration, that your previous letter stated the only outstanding matter of any significance was the transfer. It now appears that there were a number of other significant points that your client considered to be outstanding, as well as unexpected areas of disagreement.”

On 7 April 2025, the claimant’s solicitors responded to the letter of 2 April 2025. This maintained the claimant’s position in relation to the purple and yellow accessways. They said:

“It seems to us that you have missed the correct meaning of the agreed contributions but nevertheless agreed to them. We do not see that you can now resile from that.”

They then set out two pages of detailed quotations from earlier correspondence in support of their client’s position. In relation to other issues, including deeds of covenant and banking consents, they say simply:

“Dealt with by conveyancing partners.”

There was further correspondence between the parties’ solicitors. Finally, on 17 April 2025, the defendants’ solicitors wrote to the claimant’s solicitors, in part as follows:

“Thank you for your letters of 7 and 10 April 2025, the contents of which we note.

Your client accepted our client’s part 36 offer by notice of acceptance dated 25 June 2024 (the ‘Settlement’). Since then our respective firms have corresponded at length over the suite of documents needed to give effect to the Settlement, and also to tie-up other matters.

Purple and Yellow Accessways

We have properly set out our client’s concerns regarding the Purple and Yellow Accessways. You have failed to engage with these and have simply reiterated your client’s position, and have quoted extensively from your earlier letters, which we have already read and considered.

Our clients are dismayed at the stance taken. However, they wish to bring this matter to as speedy a conclusion as possible and will make a further concession and accept the demand from your client that there be a specific exclusion from the user clause despite him being one of the users. This brings the transfer into agreed form. We ask that on behalf of your client you confirm his acceptance of the TP1 in the form attached to this document.

Documents for Completion

Our clients are concerned to note that even at this very advanced stage your client raises new issues and requires further concessions which do not form part of the Settlement. This letter is written with a view to concluding what appear to be the remaining outstanding issues and ascertaining whether your client will not (Footnote: ¹) proceed to execute the necessary documents. If your client is unwilling to conclude this matter now, please confirm that by return so that our clients may make an application back to Court for directions.

[ … ]

Our clients are of the view that there must now be immediate engagement on agreeing the final documents to give effect to completion. By 10 am on Wednesday, 23 April 2025 (the ‘Deadline’), please confirm that your client irrevocably agrees to the form and content of the documents enclosed to this letter, and marked as items 1 to 6 above. Our understanding is that the majority of these documents have either previously been agreed or are substantially close to agreement.

[ … ]

Please note that if you do not provide such confirmation by the Deadline, we are instructed to apply to the Court to seek an order compelling your client to execute the documents in the form enclosed and listed as 1-6 above, or in the alternative for a Judge to execute the documents on his behalf. For the avoidance of doubt, the papers for this application are in the final form so we expect to issue very shortly after the Deadline if the confirmation requested is not received.

[ … ]”

There was a short email exchange in which the claimant’s solicitors sought to extend the “Deadline” to Friday 25 April, and the defendants’ solicitors agreed to extend it to 10 am on Thursday 24 April. The claimant’s solicitors responded substantively to the letter of 17 April by letter dated 24 April 2025, which was the date on which the defendants issued their application. This letter said in part as follows:

“We write in reply to your letter dated 17 April 2025 and subsequent email communications agreeing to a further extension. We and our client are trying to get this matter to completion as soon as practicable. Giving arbitrary and very short deadlines does not assist.

[ … ]

Our client’s agreement to the longform settlement agreement is conditional on the below:

(i)

Possession proceedings

The settlement agreement will need to deal with disposing of the possession proceedings. We have therefore made tracked changes to deal with this issue.

It would be impractical and nonsensical to refuse this inclusion due to the unnecessary time and costs which would subsequently follow for both parties should it not be agreed.

(ii)

Indemnity by the Company

We understand that two items of equipment to be transferred to our client are in fact owned by the Company as opposed to the Partnership … The equipment will we assume therefore be subject to the Barclays debenture.

In order that our client can take good title of these assets, the Company is required to remain as a party to the agreement.

[ … ]

We repeat that any application to the court at this time is entirely unnecessary and will only increase costs. If an application is made we will of course be showing the court the sum of our correspondence.”

The reference in this letter to “possession proceedings” is a reference to separate legal proceedings taken by the defendants against the claimant in respect of his continued occupation of a residential property belonging to the defendants, after the service of a notice to quit. This formed no part of the settlement terms, and the inclusion of the disposal of those possession proceedings in the settlement agreement is a (very late) further demand by the claimant.

On the same day, 24 April 2025, the defendants’ solicitors replied (in part):

“Thank you for your letter of 24 April 2025.

Our letter of 17 April 2025 requested an irrevocable confirmation that the documents numbered 1-6 were in agreed form. The fundamental reason for this, as has been noted multiple times, was that our clients are not willing to allow the ongoing situation, namely one without certainty of a resolution, to continue indefinitely.

Your letter comments on just two of the six classes of documents, and whilst we accept those comments are predominantly sensible your response gives our clients no comfort on there being a prompt resolution. It leaves the matter entirely open for your client to raise further issues and seek to indefinitely delay completion. This is a situation our clients find particularly concerning given that their previous requests for confirmation of outstanding issues and engagement on a proposed consent order went unanswered, and when your firm has failed to comment on the remaining four classes of documents set out in our letter of 17 April without providing any indication when that reversion might be provided.

We have therefore filed the enclosed application notice, draft order, and supporting evidence (the ‘Application’) with the Court and enclose the same by way of service. We shall revert with service of the sealed application notice when received from the Court.

To be clear, our clients will intend to work towards an amicable resolution which we hope can be reached before any hearing is listed by the Court. It remains our clients’ preference that such a resolution be on a full and final settlement and full release basis, including in respect of the possession proceedings and enclosed Application.”

I should record that the draft order attached to the defendants’ application is not identical to that which ultimately I made at the hearing on 9 May 2025. By the time of the hearing the defendants had redrafted the order that they sought. But the substance was much the same, and most of the detailed wording remained exactly the same. The main change was that, instead of an obligation on both parties to execute the documents, the defendants sought an order that the claimant sign and release documents to the defendants, who should execute them once third-party consents were received. The order as actually made by me was differently worded again in some respects, but it involved a recital of the claimant’s willingness to execute documents to give effect to the settlement terms, although subject to taking certain legal advice. The substantive effect, however, was very largely the same.