[2024] EWHC 3625 (TCC)

Was there a further binding oral agreement (or a certain binding variation to any prior agreement) reached between Orchard House and the Defendants in or around July 2020 as to the Purchase price for Plot C as part of a wider agreement the total consideration for which was £601,000?

Orchard House contends that its position on this issue is supported by the contemporaneous correspondence and documentation.

In his email dated 13 July 2020, Mr Gregson asked Mr Rose to write to Ms Dimelow “setting out the final agreed offer to purchase both options.” Orchard House’s case is that this can only mean that an agreement had been reached between Mr Gregson (on its behalf) and Ms Dimelow. Approximately 90 minutes later, Mr Rose wrote to Mrs Platt noting his understanding that an agreement had been reached between their respective clients in relation to Plots C and F. Orchard House’s position is that Mr Rose would not have written to Mrs Platt in those terms if he was not satisfied that an agreement had been reached, having taken confirming instructions from Mr Lomax.

Mr Horne asks me to be cautious about Mr Gregson’s evidence on this (and other) point(s), given his apparent hostility towards Mr Lomax.

The Defendants deny that any such agreement was ever reached and they rely on Mr Gregson’s corroborative evidence.

I do not find on the balance of probabilities that a further agreement was reached by, or on behalf of, the parties in July 2020.

Firstly, and crucially, the individuals who are said by Orchard House to have reached the agreement both contend that no such agreement was reached.

I have found Ms Dimelow to be a truthful and honest witness and I have no reason to doubt her evidence on this point. In my judgment, it is in no way inconsistent with the documentary evidence.

Whilst I have expressed reservations about Mr Gregson’s independence as a witness, in his live evidence he was insistent that no such agreement was reached by him and the Defendants. I am persuaded that his evidence on this point was truthful, accurate and consistent with the documentation which has been shown to me.

Mr Gregson’s evidence in his first witness statement (prepared for the reverse summary judgment application) was that Mr Lomax told him that he had made an offer of £601,000 to the Defendants but that they had not responded to it. He, therefore, asked Mr Gregson to reduce the offer to £50,000 because Plot C was landlocked and of no value. In his trial witness statement, Mr Gregson told me that Mr Lomax had informed him that he had reached the agreement with Ms Dimelow. Mr Lomax told him to write to Mr Rose to confirm the position. Mr Gregson later went to see Ms Dimelow on Mr Lomax’s instructions to warn her that the price would go down if it was not confirmed. On cross-examination, Mr Gregson told me that Mr Lomax consistently changed the figure which he was prepared to offer to the Defendants, and that at one point he was asked to put an offer of £601,000 to them. He was clear that they did not accept that offer.

The core point made by Mr Gregson was that he was instructed to threaten Ms Dimelow with a low Purchase Price. I accept his evidence on that point. It is consistent with Mr Lomax’s later decision to exercise Option C based on obtaining an independent determination, which he thought would produce a low valuation.

Secondly, there is no direct evidence from Orchard House’s witnesses that such an agreement was, in fact, reached because they were not involved in any negotiations. Their evidence on this point is, at best, second hand.

In his trial witness statement, Mr Lomax does not say that Mr Gregson told him that he had reached an agreement with the Defendants. He simply relies on the email sent by Mr Gregson to Mr Rose on 13 July 2020.

Mr Lomax told me that he was not certain precisely when it had communicated to him that a Purchase Price of £601,000 had been agreed. He was unable to tell me whether he had a discussion with Mr Gregson or Mr Rose at or around that time. He told me that he had “assumed” that Mr Gregson had told him about the agreed Purchase Price at the time. His evidence on this issue was unclear and was not persuasive.

Mr Rose recalls that Mr Gregson told him that an agreement had been reached with the Dimelows. However, for the reasons I give below, I am not confident that his recollection is entirely consistent with the email correspondence which has been shown to me.

Moreover, given that the conversation took place many years ago, and that Mr Rose has not retained (or been able to retain) a written record of it, I must treat his evidence on this point with some caution.

Thirdly, the contemporaneous communications which I have seen do not support Orchard House’s position. The initial text message from Mr Lomax to Mr Gregson makes no reference to an agreement and Mr Gregson’s email to Mr Rose dated 13 July 2020 does not confirm that a settlement had been reached, but rather refers to “the final agreed offer”, which is somewhat ambiguous in its meaning.

I suspect that, as he told me, Mr Rose is likely to have taken instructions from Mr Lomax before writing to Mrs Platt. I think it likely that Mr Lomax would have told him that he believed that a deal had been concluded. Otherwise, Mr Rose would not have written to Mrs Platt in the terms set out in his email to her. However, as I have already noted, Mr Lomax was not a party to any discussions.

Fourthly, I find it inherently unlikely that the Defendants would have agreed to a Purchase Price of £601,000 at that stage. They had already obtained a valuation from Mr Eckersley, suggesting that Plot C had a value well in excess of the figure which they are said to have agreed with Orchard House. Moreover, at that stage, relations between Mr Lomax and the Defendants had effectively broken down.

Lastly, there is no correspondence or documentation confirming that such an agreement had been reached, save for Mr Rose’s email to Mrs Platt on 13 July 2020 and Mr Lomax’s email to the Defendants dated 21 July 2020 in which he “accepts” their “counteroffer”. Ms Dimelow replied to that email the following day in terms which, on a fair reading, cannot be construed as confirming any settlement. Her reply was, in my judgment, no more than a holding response. I accept her evidence on cross-examination that she was “taken aback” when she received Mr Lomax’s email and that she had not put any offer to him.

For all of these reasons, Orchard House has not persuaded me that, on the balance of probabilities, an agreement was reached for a Purchase Price of £601,000 in aggregate for Plots C and F.