BL-2025-000402 - [2025] EWHC 2974 (Ch)

Wallace and Cradick served Defences. Both Defences asserted that Cradick had instructions from Powis to instruct Wallace to include a 5-year Overage Period. Cradick’s defence (at 16(d)(i) and 38(b)) asserted that Cradick had discussed the Overage Period with Powis and Powis instructed Cradick that a 5-year overage period was acceptable.

After taking instructions, Mr Pilling pleaded a Reply to those paragraphs of Cradick’s Defence. The response included this:

“4.3

The allegation, in paragraph 16(d)(i) is lacking in any particulars: notably the individual with whom the discussion is alleged to have taken place is not identified. Powis is not aware of any such discussion taking place, and accordingly paragraph 16(d)(i) is not admitted, and Cradick is put to strict proof thereof. In any event, it is averred that Powis did not know, at any material time, that the five-year overage period had been volunteered by Wallace and/ or Cradick on its behalf nor was it ever advised on the commercially available alternatives”.

Powis’ Reply to Wallace (at paragraph 9.2) said that “for the avoidance of doubt, it is denied that Mr Cradick discussed the inclusion of a five-year overage period with Powis, or obtained its agreement that such a period should be included in the contract of a sale”. The Reply pleaded that “even if (which is not admitted)” Wallace had been instructed by Cradick to include the Overage Period, Wallace was still at fault, amongst other things, for failing to provide any advice to Powis in relation to the Overage Period.

So Powis’ case was clearly pleaded by Mr Pilling as being that Wallace had acted without instructions from Powis in including the overage clause, and that even if there had been a conversation between Mr Cradick and Ms Boot as alleged by Wallace, Mr Cradick had no instructions from Powis, and that did not absolve Wallace from liability. Powis’ belief that the facts stated in the Particulars of Claim and the Replies were true was certified by Statements of Truth signed by the partner at W&S with conduct of the litigation.