BL-2023-MAN-000072 - [2025] EWHC 2442 (Ch)

Mr Demachkie submitted that outward expression of accord is demonstrated by the Deed of Postponement itself, and its interaction with the Development Services Agreement. However, I consider a difficulty with this is that Together was not a party to the Development Services Agreement, and the evidence suggests that Together might not have seen a copy thereof until after its representatives had signed the relevant loan documents.

However, I do consider that outward expression of accord is demonstrated by the correspondence, and in particular Ms Williamson’s email dated 24 April 2020 (11:19) referring to Together having a first charge, and to its concerns in relation to clause 10 therefore not making sense. Although this email was sent to Ms Williams at Mulbury, the evidence shows that it was passed on to Priority, and thus to Together.

Further, I consider that this is a case where the necessary outward expression of accord was, if not otherwise provided, provided by understandings that the parties thought so obvious as to go without saying, and which were reached without being spelled out in so many words. I consider that there was more likely than not to have been a tacit understanding reflected in the parties’ communications that the Together Charge would have unqualified priority. In circumstances in which there can, as I have found, only have been two reasons or purposes behind clause 13, as to which see paragraph 43 above, the tacit understanding must have been that clause 13 recorded that the subordination provided for by the Deed of Postponement related simply to the security provided for by the Together Charge and the JAK Charge and not the underlying debts secured thereby.