BL-2022-000438 - [2025] EWHC 2212 (Ch)

Limitation Issue 1: Is the Limitation Period 6 or 12 years?

This issue turns on whether the JVA is to be analysed as a simple contract or a deed for limitation purposes. If it is the former then the limitation period is six years and if the latter, 12 years.

As regards execution requirements for a deed, I note that s.1(3) of the Law of Property (Miscellaneous Provisions) Act 1989 (“LPMPA”) provides:

As noted above, the JVA was executed as a deed by or on behalf of Mr Kazolides, Mr Stylianou and the Company. However, on Mr Dunn’s side it was signed on his behalf without an attestation from a witness. In that sense, it was not compliant with the formal execution requirements contained in s.1(3) of LPMPA.

Section 1(2) of LPMPA provides that:

“An instrument shall not be a deed unless—

(a)

it makes it clear on its face that it is intended to be a deed by the person making it or, as the case may be, by the parties to it (whether by describing itself as a deed or expressing itself to be executed or signed as a deed or otherwise); and

(b)

it is validly executed as a deed by that person or, as the case may be, one or more of those parties.”

In MacDonald Hotels Ltd v Bank of Scotland Plc [2025] EWHC 32 (Comm.) at [234], HHJ Pelling KC analysed (albeit obiter) this provision and concluded that the question of whether a document could be a deed had a binary answer. He rejected the argument that an agreement might take effect as a deed against some parties but not others. He considered that there were two statutory requirements before an agreement could be classed as a deed:

I have given careful consideration to the decision in MacDonald and I have also considered an article about the case entitled “Schrodinger's deed: can an instrument be two things at once?” by James Hall and William Golightly B.J.I.B. & F.L. 2025, 40(6), 372-374 and footnote 14 of Section 3 of the Law Commission Report entitled The Execution of Deeds and Documents by or on behalf of Bodies Corporate (CP143) which was cited by HHJ Pelling KC.

I note the view expressed in Macdonald that s.1(2) envisages a binary answer to the question of whether a document is a deed. The opening words to s.1(2) state that they are dealing with the characterisation of an instrument (“An instrument shall not be a deed unless…”). On that basis, the instrument is either a deed or it is not.

As to the conditions identified by HHJ Pelling KC, the logic of his interpretation is that, if it is clear from the face of an instrument that it is intended to be a deed for all parties and all the parties agree to its terms, then the mere fact that it has not been validly executed by all parties should not be a bar to it being considered to be a deed. The interpretation means that a party could not evade the consequences of having agreed that an instrument should take effect as a deed simply by failing to have their signature attested.

I note, however, the decision of Newey J (as he then was) in Briggs v Gleeds [2015] Ch 212. That case concerned the question of whether certain pension scheme documents took effect as deeds. The intention was for such documents to be deeds. The trustees of the scheme executed them as deeds but the employers did not. The judge found that the instruments were not deeds.

The decisions in Macdonald Hotels and Briggs are not easy to reconcile. I note that Briggs is not referenced in the judgment of HHJ Pelling KC in Macdonald Hotels, probably because the decision was not drawn to the judge’s attention.

If the approach in Macdonald Hotels applies, I note that both of the conditions identified by HHJ Pelling KC are met. The agreement does make clear on its face that it is intended to be classed as a deed by all of the parties. Page 16 states: “IN WITNESS whereof the Parties hereto have executed this instrument as their Deed”. Similarly each of the signature blocks record that the document is “Signed as a Deed”. The document was executed as a deed by all of the parties, save for Mr Dunn.

However, in the present case, I do not need to decide whether to prefer the approach in Briggs or Macdonald Hotels because, as is further explained below, the cause of action accrued more than 12 years before the issue of the claim and so even if the approach in Macdonald Hotels is to be preferred, the claim is statute barred.