Jersey Unreported Judgments

Injunctions - application by the defendant for summary judgment and to strike out Plaintiff's order of justice and application by the plaintiff to amend order of justice and strike out summary.

[2017]JRC113

Royal Court

(Samedi)

21 July 2017

Before     :		Advocate Matthew John Thompson, Master of the Royal Court.
Between	Shane Michael Holmes		Plaintiff
And	Harry James Lingard		First Defendant
And	HJL Holdings Limited		Second Defendant
And	Angel Fish Limited		Third Defendant

Mr S. M. Holmes appeared in person.

Mr H. J. Lingard appeared in person.

Advocate H. J. Heath appeared as Amicus curiae.

CONTENTS OF THE JUDGMENT

		Paras
1.	Introduction	1-4
2.	Background	5-25
3.	Procedural history in respect of present applications	26-82
4.	Chronology	83-147
5.	Issues	148-152
6.	The legal principles on a strike out	153-155
7.	The law on applications to amend	156-159
8.	The legal principles on a summary judgment application	160-169
9.	An agreement between the parties	170-203
10.	The claim in unjust enrichment	204-225
11.	Losses in respect of the development by Home Farm	226-243
12.	The defendant's counterclaim	244-245
13.	Strike out	246-248
14.	Detailed reasons for certain procedural decisions	249-252
15.	The way forward	253-257
16.	Conclusions	258-261

judgment

the master:

Introduction

1.        This judgment represents my decisions in respect of the following applications:-

(i)        The defendants' applications to strike out the plaintiff's order of justice and for summary judgment that the plaintiff has no claims against the defendants;

(ii)       The plaintiff's applications to amend his order of justice, and to strike out or for summary judgment that the first defendant has no counterclaim against the plaintiff.

2.        The plaintiff had also applied for a stay of the present proceedings pending an application for a judicial review described in more detail below.  However the plaintiff withdrew this application on 14^th June, 2017.  Accordingly, when the judgment is handed down I will hear argument on costs and other orders consequential upon the plaintiff withdrawing his application for a stay. 

3.        This judgment also contains my detailed reasons for certain procedural directions relating to the determination of the above summonses including requests by the plaintiff to cross-examine certain witnesses which requests were refused, imposing sanctions for non-compliance with directions and my refusal to adjourn the hearing dates listed for 19^th and 20^th June, 2017. 

4.        As a result of refusing an adjournment of the hearing dates, the plaintiff elected not to address me orally on the various applications insofar as permitted to do so.  The defendants primarily relied on the written submissions and evidence filed by them although the first defendant addressed me briefly orally.  Advocate Heath as amicus curiae also addressed me briefly. 

Background

5.        The present proceedings were commenced by order of justice signed by W. J. Bailhache, as Deputy Bailiff on 17^th March, 2014. 

6.        I summarised these proceedings in an earlier judgment in this matter concerning security for costs reported at Holmes-v-Lingard and others [2015] JRC 172 (the "security for costs judgment").  Paragraphs 2 to 4 of the security for costs judgment stated as follows:-

"2.      In his order of justice Mr Holmes alleged that he and the first defendant ("Mr Lingard") had entered an agreement in June 2011 to develop Hotel La Tour which was owned by the third defendant Angel Fish Limited ("Angel Fish"), a subsidiary of the second defendant HJL Holdings Limited ("HJL"), which was in turn beneficially owned by Mr Lingard.  As part of that alleged agreement Mr Holmes asserted that HJL was to make available what Mr Holmes described as "Side Funding" to enable certain project works to be undertaken on the hotel site.  This funding would be secured over a separate development Mr Holmes was undertaking through his company Home Farm Developments Limited ("Home Farm"). 

3.        The order of justice alleges that Mr Lingard breached and repudiated this agreement in the autumn of 2012.  The allegations included complaints that Mr Lingard made representations to induce Investec Bank to foreclose a loan facility made to Home Farm and to various estate agents "with the deliberate intent to scupper the Home Farm purchase offers" (paragraph 43). 

4.        As a result of these breaches Mr Holmes claims the following:-

(i)        the sum of £190,000 in respect of the direct costs and expenses incurred by Mr Holmes in the development;

(ii)       the sum of £900,000 being the uplift in value of Hotel La Tour brought about by Mr Holmes as a consequence of his involvement in the development; and

(iii)      the sum of £686,000 being losses in expected sales values in the units being separately developed by Home Farm."

7.        The order of justice also contained injunctions which injunctions were set aside by the Royal Court on 27^th May, 2015.  The Court's reasons for setting aside the injunctions were set out in a judgment of Commissioner Clyde-Smith dated 29^th June, 2015, reported at Holmes-v-Lingard and others [2015] JRC 141 ("the injunction judgement"). 

8.        It is right to record that the plaintiff takes objection to certain conclusions drawn both in the security for costs judgment and the injunction judgment, which I address later in this judgment. 

9.        Prior to the present proceedings being commenced there had also been earlier disputes between the plaintiff and the first and second defendants concerning the sale of Units 2 and 5 Home Farm Developments Limited ("Home Farm").  At all times the plaintiff was the directing mind of Home Farm for the purposes of the earlier proceedings. 

10.      The first of these proceedings was commenced by a representation presented by Home Farm under court file 2013/046 and described in the judgment of W. J. Bailhache, sitting as a single judge of the Court of Appeal, reported at Home Farm Development Limited v HJL Holdings & Lingard [2013] JRC 160 ("the 2013 judgment").  While the 2013 judgment concerned whether or not leave to appeal should be given to appeal a consent order entered into on 22^nd February, 2013, the 2013 judgment at paragraphs 4 and 5 summarised the issues between the parties at that time as follows:-

"4.      The representor claimed that it was the owner of Units 2 and 5 Home Farm, both of which were scheduled for sale - Unit 2 on 15th February and Unit 5 on 22nd February, both to third party purchasers at market value.  Secured against the properties were monies lent by the first respondent totalling £282,500 the loans being made in different tranches between 30th September, 2011, and 7th February, 2012.  The representor claimed that it was unable to complete the sales of Units 2 and 5 because in addition to the capital which was due, the first respondent insisted that it would not cancel its registered charges unless it received interest at rates of up to 4% per month compound, totally £131,503.40, equal to about 58% per annum, and repayment of further loans and costs totalling £67,015.90, which were unsecured.  It was contended that this interest rate, if it were to be applied, would make the representor insolvent. 

5.        The representor asserted that through Mr Holmes it had made a joint venture agreement with the second respondent and his companies, including the first respondent, as a result of which it was not in fact agreed that the interest rates which were claimed would be applicable.  Furthermore it was said that the interest rates were in any event exorbitant, unreasonable and unenforceable, and that the Court should make a declaration as to a maximum rate of simple interest which was applicable on the secured loan, without prejudice to the right of either party to litigate the joint venture agreement."

11.      The following paragraphs of the judgment are also relevant to the issues that now have to be determined:-

"9.      There was therefore clearly a dispute which related to the alleged joint venture agreement, and a dispute as to the amount of capital which had actually been loaned by the first respondent to the representor.  There was no dispute that the sale of Unit 5 Home Farm would generate insufficient funds to repay Investec as the first secured party, which was owed approximately £800,000.  There was no dispute that it was in the interests of both the representor and the respondents that the sale of Unit 5 should proceed. 

10.      I have been told that after 22nd February, the sale of Unit 5 did in fact proceed as planned, and that £600,000 was the gross sale price.  This means that, to the extent that the net proceeds of sale have been paid to Investec, interest on that creditor's prior charge is no longer accruing at the same rate.  To that extent, it may be said that the arrangement made on 22nd February has achieved the objective.  Now however, the respondents seek leave to appeal to enable them to challenge the agreement made by their counsel in Court on 22nd February.  I have an affidavit from the second respondent which indicates that he never instructed his advocate to agree these terms.  It is said by Advocate Heywood that this was an error on Advocate Franckel's part, and that something has clearly gone wrong.  I should therefore give leave to appeal so that the substance of the interest rate can be argued in the Court of Appeal.

13.      On behalf of the representor, Mr Holmes submitted that he had agreed a discount in relation to the sale price on Unit 2 in light of the deal which had been done.  He did not think that the first respondent would consider that Advocate Franckel had made such a big mistake because it had instructed Mr Franckel on a new matter.  Furthermore he thought that Advocate Franckel should have provided an affidavit and a full chronology.  It had taken some 14 days for the respondents to complain about the arrangements after the decision was taken in February."

12.      The Court's conclusions in refusing leave to appeal were set out at paragraph 27 and 28 as follows:-

"27.    It is unfortunate that I was not presented on this application with all the material which was before the Court on 22nd February.  However, it is apparent that on that day Advocate Franckel conceded not only that interest ought to be charged on the basis of simple interest, but also that it was chargeable at a rate of 2% (not 2.5%) over base per annum.  At that time, Mr Holmes did not accept that that offer had been made, but when the relevant email exchanges were reviewed in Court, it was clear that the 2% over base offer had been made, and indeed Mr Holmes indicated to the Court at that time that had he realised that offer had been made he would have accepted it.  That meant that there was no dispute over interest.  It meant also that any dispute over capital was academic at that time because the sale of Unit 5 would generate net proceeds which were insufficient to discharge the full amount of capital due to the first charge holder.  It was against that background that the agreement was made in the face of the Court as set out in the Act of 22nd February.  The agreement involved a concession by the representor that it would not proceed at that time with its claims in relation to the joint venture agreement and the fact that the representation was to go no further at that time enabled the sale of Unit 5 thus improving the overall security which the first respondent has against the remaining property of the representor.  The position was well summarised by Advocate Franckel in his email to the second respondent on 7th March, 2013, at 20:02 hours when he wrote:-

"That's the Court interest we were allowed.  I know it's nothing - but at the time if you remember, it was a price to pay for getting anything at all."  (emphasis added). 

28.      The agreement which was reflected in the Act of 22nd February noted that the sale proceeds of Unit 2, if that sale proceeded, would be held on account by Advocate Franckel pending agreement between the parties or further order of the Court.  The route to that agreement was this.  In order to obtain an undertaking that the first respondent's charge would be cleared out of the proceeds of sale, the representor would almost certainly have to agree to account to Advocate Franckel for the net proceeds of sale after discharge of the remaining monies due to Investec.  The formula contained in paragraph 2 of the Act of 22nd February, albeit not an order, reflected that there was a mechanism for ensuring that the sale of Unit 2 could proceed after the sale of Unit 5 even though there remained a dispute between the first and second respondents on the one hand and the representor on the other as to the effect of the joint venture agreement which the representor alleged.  The reference in the Act of 22nd February to "an apparent agreement" was that Mr Holmes, on behalf of the representor, did not contest that this was in fact the appropriate way forward for dealing with the dispute.  Mr Holmes' acceptance of that position is a further advantage secured by the respondents from the hearing on 22nd February."

13.      On 20^th September, 2013, an answer was filed by the defendants to the representation presented under court file 2013/046. 

14.      On 2^nd April, 2013, proceedings were commenced by the second defendant in the present proceedings (i.e. HJL Holdings Limited) against Home Farm as defendant.  Paragraph 7 of the order of justice states "in addition and subsequent to the secured loans, the plaintiff made further payments to or for the benefit of the defendant since the defendant still needed financial assistance and the plaintiff.  In total the plaintiff loaned the defendant the further sum of £95,856 between approximately February and August 2012.  These further loans were not secured."

15.      These proceedings were allocated court file 2013/138 and were withdrawn by a consent order dated 16^th March, 2016, with the costs of withdrawal being leftover until conclusion of the present proceedings. 

16.      A second representation was presented by Home Farm and the plaintiff with court file number 2013/341 with the present defendants being convened. 

17.      On 4^th October, 2013, an application for substituted service in relation to the second representation was withdrawn by the representors with the defendants receiving a costs order in their favour.  These costs were taxed by the Assistant Judicial Greffier leading to a judgment of Commissioner Clyde-Smith reported at Home Farm Dev. Ltd-v-HJL Holdings and Lingard [2014] JRC 209 where he refused an adjournment of an appeal against the taxation of costs and so the appeal was struck out. 

18.      Ultimately the two sets of proceedings commenced by representation were discontinued in a consent order dated 25^th June, 2015, but without prejudice to the present proceedings. 

19.      Returning to the present proceedings, on 28^th April, 2014, the defendants filed an answer (amended on 27^th March, 2015,) which answer included a counterclaim for repayment of unsecured loans said to have been made by the first defendant to the plaintiff between February and August 2012.  I note that this allegation contrasts with the proceedings under court file 2013/138 referred to in paragraph 13 above where it was alleged that the unsecured loans were made to Home Farm as distinct from being made to the plaintiff.  It is in respect of this counterclaim that the plaintiff seeks summary judgment.  A brief reply to the counterclaim was filed on 21^st May, 2014. 

20.      Although security for costs was refused as set out in the security for costs judgment on 2^nd August, 2015, the present proceedings did not progress because of an argument concerning whether or not the parties had resolved their differences.  In a judgment dated 11^th November, 2015, reported at Holmes-v-Lingard and Another [2015] JRC 226, I concluded that the parties had reached a settlement and therefore ordered the present proceedings be struck out. 

21.      On 23^rd September, 2016, the Royal Court in its judgment reported at [2016] JRC 167 allowed the plaintiff's appeal and decided that the question of whether or not a settlement had been reached was a matter for trial. 

22.      On 31^st October, 2016, reported at Holmes-v-Lingard and Another [2016] JRC 198A, I refused an application for a stay by the plaintiff to allow an application for judicial review to be brought.  This part of the judgment was not appealed.  I also refused to order a preliminary issue. 

23.      The defendants appealed that part of my decision refusing to order a preliminary issue which appeal was dismissed by the Royal Court in a judgment reported at Holmes-v-Lingard and Another [2017] JRC 012 dated 16^th January, 2017. 

24.      As part of refusing a preliminary issue I gave directions for discovery, exchange of witness statements, and exchange of expert evidence and fixing of trial dates. 

25.      Affidavits of discovery have been prepared but the plaintiff did not exchange his affidavit.  Otherwise the remaining directions ordered have not been complied with because they had been overtaken by the applications I now have to determine.  However, the plaintiff has issued a challenge whether the defendants have provided discovery as required by the rules.  This summons and discovery issues have been adjourned pending determination of the applications presently before me. 

Procedural History in respect of the present applications

26.      A strike out summons was first issued by the defendants on 9^th January, 2017; on the same day the plaintiff issued his challenge referred to above that the defendants had had not provided discovery as required by the Royal Court Rules.  At the time the summonses were issued, judgment on the defendants' appeal against my decision refusing to order a preliminary issue was still awaited. Matters only progressed once this appeal was determined. 

27.      Progress of the present proceedings has also been complicated by the fact that the plaintiff, at the end of December 2016, issued two sets of proceedings for judicial review making certain challenges in relation to the refusal to award the plaintiff legal aid including in relation to the present proceedings. 

28.      In respect of the defendants' summons issued in January 2017, initially this was fixed for 1^st February, 2017, with the parties being directed to file skeleton arguments by 25^th January, 2017. 

29.      On 1^st February the summonses did not proceed because by this time it had become clear that the defendants were seeking to strike out the entirety of the plaintiff's order of justice.  Accordingly directions were given to enable such an application to be clearly formulated and determined following argument. 

30.      Directions were also given for the filing of skeleton arguments.  I also required the defendants to identify those parts of the order of justice they were seeking to strike out if that was part of the application.  At the same time I also gave the plaintiff permission to apply to amend his order of justice which application had to be issued no later than 7 days before the date fix to determine the defendants' strike out application. 

31.      While I set out the relevant legal principles on a strike out application later in this judgment, I allowed the plaintiff time to apply to amend because it is well-known in relation to strike out applications, where grounds exist to strike out a claim, that claim might be saved by allowing a pleading to be amended. 

32.      Paragraph 3 of the Act of Court of 1^st February, 2017, therefore stated:-

"3.       if the Plaintiff wishes to apply to amend its order of justice in response to the Defendants' strike out application the Plaintiff shall issue an application accompanied by any amended order of justice no later than 7 days before the date fixed to determine the Defendants' strike out application."

33.      On 13^th February, 2017, the plaintiff by email asked for a date fix hearing for the defendants' strike out application to be deferred until after his judicial review application had been determined. 

34.      On 14^th February, 2017, in light of the fact that no interim stay had been ordered by the Royal Court and no application for such a stay had been made in the judicial review proceedings, I indicated that the date fix for the strike out summons issued by the first defendant should proceed because no stay was in place or being asked for and the issues as I saw them were factual matters.  These factual matters were identified in summary and set out in an email from me dated 14^th February, 2017, sent at 13:32 as follows:-

"1.       What did Mr Holmes agree with Mr Lingard or any of his companies in relation to the Hotel de la Tour site in light of the conclusion of Commissioner Clyde-Smith at paragraph 28 of his judgment reported at [2015] JRC 141, where he concluded that there was no serious issue to be tried that an agreement had been entered into between Mr Holmes and Mr Lingard in June 2011. I reached the same conclusion at paragraph 57 of my decision in the present proceedings reported at [2015] JRC 172.

2.        What misrepresentations were made by Mr Lingard which caused purchases for the Home Farm Development to pull out - see paragraph 60 of my judgment at [2015] JRC 172.

3.        Why it is said that Mr Holmes suffered losses in respect of sales of Units of Home Farm as distinct from these being losses of Home farm the owner of the development.

4.        What is the basis of the claim for £190,000 and how these are made up?"

35.      On 15^th February, 2017, the plaintiff asked me to delay a date fix hearing taking place while he applied for a stay at a hearing before the Royal Court on 17^th February, 2017.  I refused this request because any date fix would not take place until after any order made on 17^th February, 2017, and accordingly the position could be revisited. 

36.      In fact on 17^th February, 2017, no stay was ordered by the Royal Court.  The Royal Court also decided that the question of whether or not the present proceedings should be stayed pending the judicial review application was for me to determine. 

37.      On 20^th February, 2017, the plaintiff asked me by email for a stay of the strike out application pending his application for judicial review. 

38.      By an email dated 27^th February, 2017, at 15:32 I informed the parties that I would hear the plaintiff's application for a stay first before the defendants' strike out application.  Accordingly I directed the plaintiff by Friday, 2^nd March, 2017, to issue an application for a stay before me as well as directing that any such summons should not be heard before Wednesday, 22^nd March, 2017.  This was to allow the plaintiff time to comply with the timetable and directions issued by the Royal Court for his judicial review application before having to prepare arguments for a stay application before me.  In summary, the Royal Court's requirements required the plaintiff to reformulate his various applications in one document supported by one affidavit.  I also directed that the Amicus appointed for the judicial review application also be appointed for the purposes of the stay application before me. 

39.      The stay application was then fixed for Thursday, 30^th March, 2017, at 10am. 

40.      This date was subsequently adjourned to 12^th April, 2017, because it took time to find an Amicus. 

41.      On 11^th April, 2017, at 11:04 I wrote to the parties having considered the plaintiff's reformulated application for judicial review and supporting affidavits copies of which had been provided to me.  I indicated that that there appeared to me to be significant overlap between the application for a stay and the defendants' application to strike out.  I therefore explained I had reached the view that the application for a stay based on the application for judicial review and the defendants' strike out application should be heard at the same time. 

42.      In the same email, I also repeated the questions I was interested in as follows:-

"1.       What agreement is it said Mr Holmes and Mr Lingard entered into and when.

2.        It appears that in the alternative Mr Holmes puts his case on the basis of unjust enrichment (see paragraph 30 of Mr Holmes affidavit in support of his judicial review application in particular sub-paragraphs 4 and 6). I would like to know whether any other factual grounds are advanced in respect of a claim for unjust enrichment by Mr Holmes and if so what those grounds are.

3.        In relation to the claims for misrepresentation referred to in paragraph 31 of the order of justice, I wish to understand why the losses from these claims are those of Mr Holmes and not Home Farm Developments Limited.

4.        I wish to understand the basis upon which losses are claimed in respect of the sale of Unit 1 of the Home Farm Development which occurred before any allegations of misrepresentation had been made.

5.        Finally, I would wish to understand how the figure claimed in the order of justice of £190,000 for direct costs and expenses is made up."

43.      It is also relevant to insert the remainder of the email as follows:-

"While I appreciate that Mr Holmes does not have legal aid and is challenging the withdrawal of legal aid, the above matters are largely all factual questions that are within his own knowledge. To the extent that any legal questions arise he has had the benefit of Advocate Heath's role as amicus

In addition as far as Advocate Heath is concerned, I require her to address as Amicus the following legal questions:-

1.        Any legal authority as to the basis upon which a stay should be granted pending the judicial review application.

2.        Whether Mr Holmes can claim losses in respect of units owned by Home Farm Developments Limited including whether the claim amounts to reflective loss (see Freeman v Ansbacher Trustees (Jersey) Limited [2009] JLR 1 and Booth v Zenith Trust Company Limited [2015] JRC 142.

3.        The applicable legal principles for a claim in unjust enrichment. I refer Advocate Heath in particular to the Supreme Court decision of Benedetti v Sawiris [2014] AC 938.

I do not need addressing on the applicable principles to strike out a case."

44.      In applying for an adjournment of the hearing dates on the morning of the hearing, the plaintiff argued that this email limited the role of the Amicus with the result that he was taken by surprise when the Amicus took steps that went beyond this email.  I address this issue below. 

45.      On 12^th April, 2017, I issued further directions concerning the application for a stay by the plaintiff and the strike out application, directing that both were to be heard on 7^th and 8^th June, 2017.  I further extended time for the plaintiff to issue an application to amend his order of justice which application, if issued, would also be heard at the same time as the strike out and stay applications.  Directions were also given for the filing of affidavits, skeleton arguments and the preparation of bundles. 

46.      Also on 12^th April, 2017, by an email sent to the parties, I set out the order I wished to be addressed at the hearing as follows:-

(i)        The plaintiff would address me on why the action should be stayed and also on any amendments he was seeking;

(ii)       The defendant would then respond as to why the action should not be stayed and why they said if should be struck out including dealing with any application to amend;

(iii)      The plaintiff would be permitted to respond to Mr Lingard's arguments on behalf of the defendants; and

(iv)      Mr Lingard would then reply only on why the case should be struck out and not on any other application. 

47.      Having appointed Advocate Heath to act as Amicus I also indicated that she would have the last word. 

48.      In giving directions I repeated for the third time to the parties the areas I wished to be addressed on namely:-

(i)        What the plaintiff stated he agreed with the defendants and when that agreement was concluded;

(ii)       Was there a claim in unjust enrichment;

(iii)      What losses might flow from any breach of such an agreement or from a claim based on unjust enrichment; and

(iv)      Whether any losses claimed were those of the plaintiff or Home Farm. 

49.      I set out these issues in writing again because both parties are litigants in persons are unrepresented and I therefore considered it appropriate to remind both parties of my areas of interest. 

50.      On 28^th April, 2017, the plaintiff issued his application to amend. 

51.      On 15^th May, 2017, I varied the timetable set on 12^th April, 2017, to permit the plaintiff to file an affidavit in reply to any evidence filed in opposition to his application to amend. 

52.      I also ruled that the time limit for appealing the order of 15^th May, 2017, was extended until 10 days after determination of the parties' summonses. 

53.      As directed on 12^th February, 2017, the defendants were required to file affidavits in response by Friday, 19^th Maym 2017.  As far as I can ascertain, the defendants served the affidavits electronically over the weekend but the plaintiff objected to the first defendant relying on the affidavits as hard copies of documents had not been served; issues also arose whether the plaintiff was available for service early the following week.  Ultimately the affidavits were served in hard copy form on 24^th May, 2017, having previously been delivered by email as noted above.  

54.      On 22^nd May, 2017, at 10:40 I indicated to the parties, having been copied into disputes about whether or not affidavits had been served within time that, I was not minded to exclude the defendants' evidence but permitted the plaintiff to issue an application as soon as possible if he wished to argue otherwise. 

55.      This led the plaintiff the same day by an email sent at 12:10 to apply by summons:-

(i)        to exclude the evidence filed by the first defendant by email over the weekend;

(ii)       In the alternative for more time to file an affidavit in response; and

(iii)      to cross-examine the first defendant and other deponents of affidavits filed by the defendants over the weekend namely Advocate Daniel Young, Mr James Knowles, Mr Arian Artus and Mr Jason Sobey. 

56.      By an email sent on 23^rd May, 2017m at 12:13 the plaintiff sought to amend this summons asking to stay the defendants' strike out application until his summons to amend had been determined. 

57.      In relation to the plaintiff's email of 23^rd May, 2017, seeking to stay the strikeout application until the plaintiff's summons to amend had been determined, I refused this by an email sent at 12:28 on 23^rd May, 2017, because I had already ruled on 11^th April, 2017, that the strike out summons and the summons to amend were to be heard at the same time. 

58.      By an email sent on 23^rd May, 2017, at 13:01, I set out in summary the applicable legal principles on a strike out application and therefore indicated in light of those principles that cross-examination was not appropriate. 

59.      In the same email I also drew to the parties' attention the fact that on 1^st June, 2017, a new summary judgment Rule 7/1 was going to come into force.  I drew this to the parties' attention to allow them to make an application for summary judgment as an alternative to a strike out application. 

60.      Rule 7/1 provides as follows:-

"7/1    Grounds for summary judgment

(1)       The Court may in any proceedings give summary judgment against a plaintiff or defendant on the whole of a claim or on a particular issue in any pleading if -

(a)       it considers that -

(i)        the plaintiff has no real prospect of succeeding on the claim or issue, or

(ii)       the defendant has no real prospect of successfully defending the claim or issue; and

(b)       there is no other compelling reason why the case or issue should be disposed of at a trial.

(2)       A summary judgment hearing may be ordered by the Court of its own motion or on application made by either party in accordance with this Part."

61.      I considered it appropriate to draw this rule to the attention of the parties because they would not necessarily be aware of it.  Rule 7/1(2) also permits the Court of its own motion to order a summary judgment hearing.  I set out below in more detail the applicable legal principles as to how to exercise the powers granted by Rule 7/1 but it is clear that the threshold in Rule 7/1 in granting summary judgment is lower than a strike out application.  It is also clear that an application for summary judgment and for a strike out can overlap.  It was for this reason I permitted the parties to amend their summonses to claim summary judgment in the alternative.  This duly occurred.  The plaintiff filed his summons on 26^th May, 2017. 

62.      As I had indicated I was not prepared to exclude affidavit evidence, to order cross-examination or to hear the stay application first with detailed reasons to follow, the plaintiff sought to appeal my orders:-

(i)        requiring him to file evidence in reply by 26th May, 2017;

(ii)       refusing to exclude the defendants' affidavits;

(iii)      refusing cross-examination; and

(iv)      permitting both parties to make applications under Rule 7 of the Royal Court Rules 2004, as amended ("the Rules"). 

63.      As a result of this appeal, on 1^st June, 2017, the parties appeared before me for further directions.  The plaintiff was given until 8^th June, 2017, to file affidavits in reply with the sanction that if he did not, he could file no further evidence without leave of the Court.  He indicated this was sufficient time to file his evidence in reply.  The hearing dates set for 7^th and 8^th June, 2017, were therefore adjourned until 19^th and 20^th June, 2017. 

64.      Further directions were also given in relation to provision of indexes of bundles and materials to be included in bundles.  The Amicus was also directed to produce an index of authorities with the parties setting out any authorities they wished to be included in the authorities bundle. 

65.      Skeleton arguments were now to be provided by 5pm Wednesday 14^th June, 2017.  The plaintiff was due to provide bundles on the same date. 

66.      The Amicus's skeleton was to be provided by 5pm Friday, 16^th June, 2017. 

67.      Given the problems that occurred with service, I made the unusual order that each party should comply with the obligation to serve the other by delivering a copy of anything required to be served to the Judicial Greffe for collection by the other party.  This was to avoid further arguments over whether or not parties had complied with timetables I had set. 

68.      The plaintiff indicated he could comply with these directions and accordingly on 6^th June, 2017, withdrew his notice of appeal. 

69.      On 8^th June, 2017, the plaintiff filed his affidavit in reply to the affidavits by the defendants heard on 19^th and 24^th May, 2017. 

70.      Sadly, my orders on 1^st June, 2017, did not end the disputes; in particular there were exchanges on 13^th June, 2017, as to what should be included in the court bundles being prepared by the plaintiff. 

71.      Further issues arose because also on 13^th June, 2017, Advocate Heath provided the parties with an index of a chronological bundle she was producing by reference to each exhibit to the affidavits that had been filed.  This followed on an indication from me on 1^st June, 2017, that a chronology would be helpful. 

72.      The plaintiff, by an email dated 13^th June, 2017, to Advocate Heath sent at 21:07, took objection to this chronology because he argued it contained evidence which the first defendant had filed in breach of the Act of Court of 12^th April, 2017, and which the plaintiff alleged he was not permitted to reply to. 

73.      This email was sent to me the following morning where the plaintiff indicated he was not going to respond to the strike out application and sought to withdraw the affidavits he had filed on 12^th May, 2017, and 8^th June, 2017.  It was at this stage he also withdrew his application for a stay.  I therefore replied to the plaintiff as follows:-

"Dear Mr Holmes

I write further to your email received at 08:49 this morning.

Firstly, I regard it helpful to have the full history of the dispute between you and Mr Lingard before the Court including the two representations, to your email sent at 08:49.  The representations are also dealt with in the judgments reported at [2013] JRC 160, [2014] JRC 209 and [2015] JRC 141 which should be in the authorities bundle if they are not already.

As far as your affidavits are concerned, they have been filed with the Court and accordingly I am entitled to have regard to them as I see fit.  You are not entitled to withdraw them without an explanation as to why including if this is your position why they are not accurate. 

As far as the chronological bundle is concerned, I regard this as the Amicus trying to be helpful; furthermore my recollection of the hearing is that I was not referring to a chronological bundle of authorities but a chronological bundle of documents.  I do not regard preparation of a chronology therefore as outside the role of the Amicus.

I should also wish it make it clear that as far as I am concerned, the permission to file evidence in reply in relation to your application to amend covered the affidavit of Mr Young sworn on 24 February 2015, Mr Lingard's affidavits sworn on 25 February 2015 and his second affidavit sworn on 19 May 2017 and the affidavit of Mr Sobey and Mr Fitton also sworn in 2015.  Clearly the affidavits sworn in 2015 are not new to you. For completeness in relation to the affidavits of Mr Artus and Mr Knowles, the relevance of these is limited, as indicated in relation to requests to cross-examine.

I have set out the above because you have made a statement that I do not accept to try and contend that you were prevented from responding to affidavits by the orders I had made.  That is simply incorrect.  I should add that when I gave additional time to respond on 1 June 2017 you did not raise this issue at all.

In relation to withdrawing your summons to stay the proceedings pending the judicial review, that is a matter for you.  I will deal with the costs of such a withdrawal when I deal with the costs of the other summonses.  Ordinarily you should bear the costs incurred by the other party in dealing with the summons until it was withdrawn and possibly on an indemnity basis.  I will want to hear why you have withdrawn this summons in deciding what costs or other orders to make.  The other effect of withdrawing the summons means that whatever is determined in relation to the other summonses this action will proceed.

Finally, I note that Mr Lingard does not intend to appear at the hearing and has asked me to make a decision based on whatever material is before me.  I intend to proceed on this basis."

74.      By 9am Thursday 15^th June, 2017, no skeleton argument or bundle had been filed by the plaintiff.  I accordingly asked the plaintiff by email when these were going to be provided.  The plaintiff responded that he was simply going to focus on the application to amend and indicated he would be in a position to file his application his skeleton by close of business that day or at latest by the following morning i.e. Friday, 17^th June, 2017. 

75.      I replied to the plaintiff by an email sent at 11:04 on 15^th June, 2017.  Firstly I asked for the bundles, which I had still not received.  Secondly, I indicated that the skeleton had to be filed in relation to the application to amend by 3pm that day i.e. Thursday 15^th June, 2017, together with the plaintiff's bundle, otherwise the application to amend would be automatically dismissed and all other matters would be dealt with on the papers only. 

76.      By this time the first defendant indicated he would not appear at the hearing and simply wished me to determine all the applications on the written materials before me as far as he was concerned.  He explained his decision was due to his wife being taken ill due to the stress caused by the litigation in particular how he considered the plaintiff was conducting the litigation.  I indicated I would proceed on this basis.  I did so because ultimately I considered it my duty, in particular since the introduction of the overriding objective, to determine whether or not there is a case fit to go to trial or not. 

77.      The plaintiff filed his skeleton for the application to amend by an email sent at 12:16 Thursday 16^th June.  This skeleton was incomplete but did contain submissions on the application to amend which the plaintiff had indicated he was going to focus on. 

78.      As no other skeleton argument was filed by 3pm on 16^th June, I then informed the plaintiff that he could only address me orally on the matters contained in the skeleton he had filed but he could not expand his submissions on unjust enrichment beyond matters covered by his skeleton or made any submissions in relation to the claims of fraudulent misrepresentation, breach of trust and the tort of interference by unlawful means all referred to in paragraph 41 of his skeleton. 

79.      On Friday 16^th June, 2017, the plaintiff indicated he would not appear at the hearing because I had limited the oral submissions he could make.  Despite this statement, I explained that if the plaintiff wanted the hearing adjourned then an application should be made by the plaintiff issuing a summons supported by an affidavit. 

80.      On the morning of the hearing, (Monday 19^th June) the plaintiff applied for an adjournment by summons and affidavit.  He argued that the effect of having to file bundles and the first defendant only indicating what he wanted to be inserted in the bundles late in the day meant he had no time to complete his skeleton arguments in the manner he desired.  He also argued that the sanction of not permitting to address me on areas not covered by his skeleton was unfair.  He further sought to argue that the Amicus had gone beyond the role permitted by reference to my email of 11^th April, 2017, referred to at paragraph 43 above.  He therefore argued that the Amicus should not have prepared the chronology and should not have expressed any view on what factual conclusions could be drawn from such a chronology.  Finally, he argued that there was conflict between the Amicus giving procedural advice on the requirements to amend an order of justice and the Amicus later making observations on what conclusions could be drawn from the chronology she had prepared. 

81.      I refused this application for an adjournment.  This was for the following reasons:-

(i)        The procedural history of these summonses makes it clear how much time has already passed since the applications were first issued;

(ii)       The plaintiff has been made aware on three occasions since January 2017 of the areas I was interested in in relation to the applications before me.  He has therefore had months to both produce his arguments and his evidence;

(iii)      As set out above the suggestion that the plaintiff was prevented from filing evidence in response was simply wrong;

(iv)      It was always contemplated that the Amicus could file her observations on the merits of the claim as well as legal issues and there was no ruling otherwise.  She was expressly given the last word by my email of 12^th April, 2017, (see paragraphs 46-47 above).  The role of the Amicus was not restricted to certain points of law only.  An Amicus is always invited to provide a view on the issue before the court (see paragraphs 48 (i) and (ii) of In the Matter of II [2015] JRC 194.  The email of 12^th April, 2017, did not restrict this role but only set out certain areas I was interested in for her benefit and that of the parties. 

(v)       There is no conflict between the Amicus giving procedural guidance on what is required in order to amend a pleading and the Amicus expressing a view on the merits once all evidence relevant to an issue has been filed.  An Amicus at no stage is an adviser to a party.  Rather the role of the Amicus is to assist the court;

(vi)      This is also a case that started in 2014 and which needs to move forward.  The plaintiff has therefore had significant opportunity generally to formulate his case and has known for months that the summonses had to be determined.  If the plaintiff has found himself in difficulty by leaving things to the last minute that is the plaintiff's issue;

(vii)     Court orders are also there for a reason.  They are designed to allow parties to exchange evidence or arguments.  They are there to be adhered to and if not sanctions may follow.  The sanction of only allowing the plaintiff to address the court in respect of matters where he had filed a skeleton argument was such a sanction.  Such a sanction was appropriate because otherwise the plaintiff would have been able to shape his skeleton to respond to the written arguments of the defendants and without setting out his own position.  This is an approach that he had adopted on previous applications. 

(viii)    In addition, the plaintiff's position is that he has no income or assets for which he blames the defendants; any costs sanction that could in theory be imposed is not likely to be of any effect as the plaintiff contends he has no ability to pay such a costs order.  Other sanctions therefore have to be found to ensure that orders are complied with.  Having already granted further time on 1^st June, 2017, for the filing of evidence and skeletons and the plaintiff having not met that revised time limit, it was appropriate to impose the sanction that I did.  If I had granted an adjournment, this would have undermined the orders I had previously made;

(ix)      The chronology produced was also no more than a chronology of documents exhibited to affidavits filed by both parties.  As indicated later in this judgment, this chronology in this case was a useful tool to evaluate the rival contentions of the parties by reference to the contemporaneous documents exhibited to affidavits.  It should not have taken the plaintiff by surprise in particular because I had made it clear on three occasions the factual areas I was interested in.  The chronology covered these areas;

(x)       The chronology also did not contain anything new.  The key documents in it were those sent to or from the plaintiff.  He should therefore have been extremely familiar with them;

(xi)      Furthermore, the plaintiff still had time to evaluate the chronology between its delivery to the Judicial Greffe on the morning of Friday, 16^th June, 2017 and the hearing on Monday 19th June 2017 in order to make oral submissions on it in relation to his application to amend.  He had also first seen it the previous Wednesday evening. He chose not to evaluate the chronology and therefore ran the risk of the hearing proceeding;

(xii)     The plaintiff argued that the sanction imposed for not filling a skeleton within the time limits contemplated and refusing to allow him more time to further prepare his skeleton and oral arguments including to respond to the chronology prepared by the Amicus denied him a right to a fair trial under Article 6 of the European Convention on Human Rights which is part of the law of Jersey.  However, in my judgment the right to a fair trial cuts both ways.  Both sides are entitled to have summonses heard in accordance with the rules but must abide by those rules.  Article 6 also does not prevent a court from imposing appropriate sanctions to ensure compliance with timetables it has set.  For the reasons already given I do not regard the timetables set in this case as unfair or inappropriate.  The plaintiff also had time to consider the chronology again as set out above.  Accordingly, he was not denied the opportunity to respond to the chronology insofar as it covered matters addressed by his skeleton argument. 

82.      Finally, in this part of my judgment I must make the following more general observation.  I consider the above chronology shows that the court has attempted to accommodate the plaintiff to allow him reasonable time to present his arguments.  Yet the extent of the email correspondence sent by the plaintiff exceeds significantly the normal level of communications normally sent from parties to the court including litigants in person.  If the plaintiff had spent less time raising procedural challenges and instead had focused on the merits of the applications brought by him and against him, I consider it is more than likely than not that he could have set out arguments both written and oral on all the issues raised by the summonses.  Rather however I am left with the impression that the plaintiff's focus was trying to exploit any advantage he could by raising procedural challenges.  The Royal Court has not regarded such practices as acceptable for many years; the introduction of the overriding objective on 1^st June, 2017, has simply underlined this point. 

Chronology

83.      Before I consider the various arguments advanced by the plaintiff and by the defendants in their schedules and in their evidence, and orally by the defendant it is appropriate to set out, as far as I am able to do so, a chronology in relation to the subject matter of this dispute.  This factual background is based on documents, exhibited to various affidavits filed by both parties and the helpful chronology produced by Advocate Heath as Amicus.  I have also identified as best I can the exhibits where any documents referred to are located. 

84.      I am conscious that this chronology may not be complete and, given the nature of the applications before me, that affidavits filed will not be tested by any form of cross-examination.  However, to evaluate whether or not there are claims fit to be tried, I consider it helpful for the sequence of events that occurred as far as possible to be identified.  I address later in this judgment the applicable tests and what conclusions can be drawn in relation to those tests by reference to the evidence filed including this chronology. 

85.      It appears to be common ground that the plaintiff and the first defendant first met in April 2011.  The plaintiff deposed, at paragraph 4 of his affidavit filed in support of his application for injunctive relief in 2014, that at this time the first defendant introduced himself as owner of Hotel La Tour.  In paragraph 2 of the defendants' answer the first defendant's case is that he and the plaintiff were initially introduced by Hanson Renouf to arrange a short term loan for the plaintiff which proposal did not proceed.  This contention by the defendant is consistent with an email 14^th April, 2011, from Advocate Renouf to the first defendant (Page 32 HJL1 of the second affidavit of the first defendant). 

86.      The first defendant further pleads in paragraph 2 of his answer that he was next approached by the plaintiff, through Bois Bois, when the plaintiff required a loan of £25,000.  This pleading is consistent with an email dated 16^th June, 2011, from the first defendant to Mr Young, a partner in Bois Bois, which was forwarded to the plaintiff on that date (Pages 9 and 10 of exhibit DY1 of Mr. Young's affidavit). 

87.      The plaintiff claims at paragraph 5 of his 2014 affidavit filed in support of his application for injunctive relief that negotiations with the first defendant in relation to Hotel La Tour Limited began in May 2011.  The first defendant in his answer accepts that it was known to the plaintiff that Hotel La Tour was for sale and that the discussions took place between them without pleading when this occurred. 

88.      In his order of justice filed in 2014, the plaintiff alleges that in June 2011 a profit share agreement was reached and exhibited an agreement to the order of justice said to be that agreement. 

89.      In his draft amended order of justice, the plaintiff alleges that in or around June 2011 the plaintiff and the first defendant agreed what he described as "operative" terms for a part exchange plus a profit share agreement in relation to two different schemes to develop Hotel La Tour.  The plaintiff still relied on the agreement annexed to the order of justice.  In his order of justice he had described these terms as "key" terms.  I explore what the plaintiff meant by this distinction later in this judgment. 

90.      The Heads of Terms attached to the order of justice were for the plaintiff to purchase the third defendant as owner of Hotel La Tour.  This purchase was for a price of £5 million based on predictive sale costs of developed units of £9.6 million.  A deposit of £2.1 million was to be provided based on "execution of option/bank funding" including £900,000 within three months of execution of the option from the sale proceeds of Units 1, 2 and 5 of Home Farm.  The balance of the purchase price was to be paid from the sale proceeds of the five units developed.  The defendants were to receive 30% of any sales proceeds achieved over £9.6 million.  There was also an option fee of £200,000.  The amount to be borrowed was to be capped at £4.6 million.  The agreement also referred to a "side loan/equity release; £250k all monies loaned from HR to SH secured against HFD".  The proposed amendments to the order of justice did not alter these terms. 

91.      In or around July 2011, according to Mr Young, different agreements were produced to him containing manuscript amendments as exhibited to his affidavit.  The first is described as Heads of Terms between Angel Fish Limited ("the third defendant") and SD.  SD is a reference to Strata Developments (Jersey) Limited ("Strata") a company that is now dissolved.  This version described a total payment of £5.3 million (albeit crossed through in part) and with sale prices over £10.6 million attracting a 50% uplift with borrowings being limited to £3 million.  There was also to be a deposit of a company holding two properties at Home Farm plus an unspecified cash amount. 

92.      The second set of terms Mr Young received in July 2011 were again marked with manuscript amendments and were described as a Joint Venture Agreement.  These Heads of Terms were between Strata and the third defendant.  This joint venture involved Strata paying a £1.5 million deposit based on a combination of cash generated from refinancing and a transfer of properties at Home Farm by Strata.  It is not clear the precise date upon wish these terms were produced; they also referred to the first defendant receiving 30% of any sales uplift over a price of £9.6 million but with the uplift being capped at £10.6 million. 

93.      On 4^th July, 2011, the architect for the Hotel La Tour received draft planning conditions which he forwarded by an email to the first defendant at Hotel La Tour.  The second paragraph of the email stated "I am over tomorrow to see Shane and will pop in to Mike's office to see how the building reg drawings are cooking."  This document is therefore indicative of the plaintiff having some involvement at this stage. (Pages 72-75 of exhibit SH2 of the plaintiff's affidavit on 8^th June, 2017. 

94.      The email of 4^th July, 2017, from Mr Thomas was forwarded from Hotel La Tour to the plaintiff. 

95.      The following day by email the plaintiff responded to the first defendant and sent proposed amendments to the proposed conditions; the architect in turn forwarded these amendments to the planning department. 

96.      On 1^st August, 2011, Advocate Young by email sent what he described as a "discussion draft re Hotel la Tour for the plaintiff to purchase Angel Fish Limited" from the defendants.  (Pages 18-43 of DY1 affidavit). 

97.      The plaintiff forwarded this agreement to the first defendant the following day (exhibited to the first defendant's affidavit sworn on 25^th February, 2017, at page 81). 

98.      By reference to paragraph 2 of the affidavit of Jason Sobey sworn on 31^st May, 2014, Mr Sobey stated he was contacted by the second defendant on 22^nd August, 2011, enquiring whether Mr Sobey would be interested in joint funding of a bridging loan to the plaintiff in respect a property described as Home Farm. 

99.      On 1^st September, 2011, planning permission was given for the demolition of Hotel La Tour and the construction of five dwellings. 

100.   On 18^th September, 2011, the first defendant emailed the first plaintiff (page 81 of Mr Young's affidavit of 25^th February, 2015,) and stated as follows:-

"Shane can we work to some timescales as to when we can have an agreement can I suggest that by the end of this week this will give you time to put your offer into a contract to buy."

101.   This email was written in response to the email dated 2^nd August, 2011, from the plaintiff to the first defendant sending the first draft of the purchase agreement produced by Advocate Young. 

102.   On 26^th September, 2011, the plaintiff emailed the first defendant as follows:-

"Here is my draft for your comment which appears to be a fair interpretation of what we agreed today.  We should definitely be able to top and tail this tomorrow."

103.   The document attached to the email as described as Heads of Terms for the plaintiff to purchase 100% of Angel Fish Limited.  This document is the same format as the Heads of Terms attached to the order of justice save that:

(i)        The purchase price was £5.3 million rather than £5.0 million;

(ii)       The figures for the sale of the five units had increased from £9.6 million to £10.6 million;

(iii)      The figure for a side loan/equity release was reduced from £250,000 to £100,000; and

(iv)      The balance of the purchase price was said to be £2.9 million, (which appears to be an error). 

104.   On 30^th September, 2011, Home Farm entered into an agreement borrowing £50,000 from the second defendant secured over Home Farm's development by a second charge (page 45-49 of DY2).  The document was in standard form and contained no reference to Hotel La Tour. 

105.   On 2^nd October, 2011, in a document headed "Draft Without Prejudice" the first defendant responded to the plaintiff.  This appears to be a response to the email of 26^th September, 2011. 

106.   The difference between this document and the document sent by the plaintiff on 26^th September, 2011, is as follows:-

(i)        If the units sold for more than £10.6 million the first defendant wanted 50% of any uplift;

(ii)       Borrowings on Hotel La Tour were to be limited to £3 million only rather than £4.6 million proposed by the plaintiff (page 50 of DY's affidavit of 25^th February, 2017,); and

(iii)      Instead of an option of £200,000, the first defendant wanted "a deposit in a company holding properties of Home Farm Grouville to be valued by RBS in the cash amount of the difference between the valuation and £2 million to be paid on completion."

107.   The document concluded by saying:-

"HR to be given adequate security at all times.

Approval of all documents by Bois"

108.   On 7^th October, 2015, Home Farm borrowed a further £50,000 from the second defendant again secured by way of a second charge.  The documentation was in standard form and contained no reference to Hotel La Tour (see pages 50-56 of DY1). 

109.   On 9^th October, 2011, the first defendant emailed the plaintiff and stated "must finish this deal before Thursday as I will be away for two weeks" (page 34 of exhibit SH1 of plaintiff's affidavit dated 19th May 2017). 

110.   The plaintiff replied later that same day at 15:09 stating "do you mean our deal on La Tour" (same reference). 

111.   At 16:31 on 9^th October, 2011, the first defendant replied saying "yes needs to be signed off this week, push RBS and agree with Investec so we can plan start date cheque in the morning for roadster one month for part" (same reference).

112.   On 10^th October, 2011, at 18:27 the plaintiff emailed the first defendant, the first paragraph of which stated "Herewith copy of the heads of terms we last prepared together.  On the basis of the worst case finding we now have sanction with Investec, we could move forward by instructing Hanson Renouf to draft our agreement in nice simple format" (page 12 of plaintiff's costs affidavit sworn in June 2015 namely security for costs). 

113.   It is not clear which heads of terms were attached to this email.  However, in support of his application to amend the plaintiff produced a memorandum of advice dated 16^th November, 2011.  This document is headed "Joint Venture Agreement for development of Hotel La Tour Limited".  This joint venture proceeded on the basis that the first defendant would receive £5.3 million and after discharging the existing loan on the site he would receive £4.1 million out of the proceeds of sale.  This document indicated the development funding has been agreed with Investec capped at £4.6 million which included repayment of existing borrowings from HSBC of £1.2 million.  This document further contemplated the plaintiff paying £900,000 out of net sale proceeds of three properties owned by Home Farm.  Any side loan was to be dealt with separately. 

114.   The advice from Advocate Renouf which was produced at the time the plaintiff issued his application to amend in April 2017 was headed as follows:-

"These Heads of Terms set out the principles agreed between the parties.  Both parties have to be separately advised by different firms and consequentially these Heads of Terms either need to be endorsed as a final agreement after such independent advice is received or replaced by more specific agreements as it is not possible to have an "agreement to agree" under Jersey law, these Heads of Terms do not initially form a binding agreement.""

115.   The Heads of Terms were never endorsed by either party and more detailed requests were not produced. 

116.   The plaintiff alleges that both he and the first defendant around the time of this advice met Advocate Renouf at Hanson Renouf. 

117.   Prior to Advocate Renouf's memorandum, Investec Bank (Channel Islands) Limited on 17^th October, 2011, had written to the plaintiff at Hotel La Tour setting out indicative Heads of Terms in relation to the proposed development site.  These Heads of Terms in part were the refinancing of the existing borrowings of HSBC on Hotel La Tour.  There was a requirement for personal guarantees from the plaintiff and the first defendant in the sum of £1,400,000 each and the borrower was to pay £350,000 towards the development costs.  Also required was the confirmation that Hotel La Tour was purchased in 2007 for £3 million and at least one property at Home Farm to be sold with a 10% deposit paid prior the drawdown of any facility.  This proposal was never accepted.  The first defendant now asserts these terms were not acceptable to him. 

118.   On 19^th November, 2011, Home Farm borrowed a further £100,000 from the second defendant on the same terms as for the previous borrowings on 30^th September, and 7^th October, (Exhibit 57-61 of DY1).  This took the total secured borrowings to £200,000. 

119.   On 24^th November, 2011, the plaintiff emailed the first defendant and stated "as discussed last week please find below our fee proposal for providing consultancy project management, contracting services (design and build services) necessary for the demolition of the Hotel La Tour and the associated design and build of that of temporary retaining structures (the works)."  (Exhibit HJL5 to D1 affidavit of 25^th February, 2015). 

120.   The first defendant replied on 24^th November, 2011, stating "has the drugs worn off now". 

121.   The plaintiff on 25^th November, 2011, responded (page 83 of DY1):-

"personal likes aside, obviously I can't survive off fresh air

I do the following because you told me several times we had a deal a) redrafting of draft planning permit conditions to make you viable and get the permit issued; b) Got s Qs to prepare a bill of quantities for the build and share the costs with you; c) drafted a comprehensive development plan to submit as a funding application; d) Negotiated with the bank to get a sanction; e) Drafted heads of terms and engaged lawyers to prepare our agreement; f) brainstormed ways of enhancing the plans and shared these ideas with you etc, now we only might deal with all this work which I have done in good faith as being used to sell to third parties. g) I have so far spent well over 300 hours and built-up bills with my QS and staff and obviously cannot keep spending more time and resources on a chance we might do something one way or another.  I have done way more work than I would normally have done without a deal in place and without doing so I have already show considerable good faith." (emphasis added).

122.   On 25^th November, 2011, the first defendant replied as follows:-

"simple give me Home Farm as first agreed you cannot that is why we are in this situation we are in but you cannot see it I just want out lets agree to differ you do what you promised and we have a deal."

123.   On 6^th December, 2011, the plaintiff on Strata notepaper wrote to the first defendant setting out a second fee proposal (pages 87-88 of DY affidavit of 25^th February, 2015).  This proposal did not contain any hourly rate whereas the fees proposed and the consultancy sent on 24^th November, 2011, were in two parts:-

(i)        Part 1. For an hourly or daily rate capped at where a maximum estimate of 120 days with £30,000 for third party consultancy fees. 

(ii)       Part 2. The works for demolition were proposed to cost a lump sum of £160,000. 

124.   On 20^th January, 2012, by reference to paragraph 4 of the affidavit of Jason Sobey sworn on 13^th May, 2014, Mr Sobey indicated he was contacted by the plaintiff by telephone who informed him that he was "trying to buy Hotel La Tour in Jersey a property owned by the third defendant."  Mr Sobey deposed "he asked if I could assist in trying to find finance for the works of the property.  He hoped to raise finance by pledging his own personal property portfolio.  On this basis I conducted several companies including West Circle Capital Limited and Liquid Wealth Limited however the plaintiff was unable to verify the value of the properties so the funders were unwilling to help."

125.   On 21^st January, 2012, by email (exhibit 1 of Mr Sobey's affidavit) the plaintiff sent Mr Sobey what he described as a consolidated refinance proposal.  The essence of this proposal, according to Mr Sobey, was that the plaintiff was proposing to combine his own property portfolio with Hotel La Tour to raise finance.  Mr Sobey deposed "this was of great concern to him as during the conversation it became clear he did not have the authority of the first and second defendant to propose the same."

126.   On 23^rd January, 2012, Mr Sobey emailed the first defendant (exhibit 3 to Mr Sobey's affidavit) and stated as follows:-

"Harry as discussed I told Shane you were not interested in linking the finance.  After speaking to Clint he cannot organise finance on Shane's property unless there was more equity on Shane's side which there is not.  I do not understand how this can work he has all this debt outstanding.  You would have to be bonkers to allow him to use Hotel La Tour as collateral for your deal.

Unless he puts the £2.5 million in for his share of the project (raised by him) you would be mad to enter into anything with him.  Hotel La Tour needs to be a standalone venture and will be straightforward to raise finance against.  Currently anything the only thing Shane is bringing is debt and potential problems on projects you know nothing about."

127.   Also in January 2012 according to paragraph 9 the first defendant's answer, the first defendant pleads that the terms proposed by Investec were in October 2011 were unacceptable.  However, the first defendant accepts that the first plaintiff conducted negotiations between October 2011 and January 2012.  He further admits that a meeting also took place in January 2012 where the first defendant contends again that terms proposal by Investec Bank were unacceptable and were rejected.  This pleading is confirmed by a letter dated 5^th August, 2014, from Investec to the first defendant (exhibit HJL3 to DY's affidavit of 19^th May, 2017,) which concludes "discussions regarding a funding proposal for the development considered in January 2012 without the bank issuing a formal offer of funding via a bank facility."

128.   On 7^th February, 2012, a further loan in the sum of £82,500 was advanced from HJL Holdings Limited to Home Farm Developments Limited on the same terms as previously agreed (pages 63-68 of DY1).  By this time £282,500 in total had therefore been advanced. 

129.   On 7^th February, 2012, the plaintiff replied to Advocate Young's email stating:-

"Thanks for the docs.

"would you kindly reconfirm when the other loans commenced & at what rate (as I know they differ) so I can check calculations on the total return that will likely be owed to Harry."

130.   Between July and 21^st November, 2012, the plaintiff was, according to the register of directors, a director of the third defendant. 

131.   By an exchange of emails between the plaintiff and the first defendant on 17^th May, 2012, the plaintiff and the first defendant were discussing issues concerning a retaining wall at the rear of the Hotel La Tour. 

132.   On 24^th February, 2012, the plaintiff emailed the first defendant about a temporary supply of electricity from the JEC to Hotel La Tour site. 

133.   On 7^th April, 2012, the plaintiff met with a neighbour (Lady Gooch) in relation to the demolition and construction of the hotel leading to an email from Lady Gooch's personal assistant, Mrs Diane Webber, dated 11^th April, 2012, to which the plaintiff responded that same day. 

134.   Further correspondence between the plaintiff and Mrs Webber took place on 10^th May, 2012. 

135.   On 21^st May, 2012, Mr Young met the plaintiff in relation to whether proposed development encroached on adjoining land. 

136.   On 11^th July, 2012, the plaintiff emailed other neighbours copied to the first defendant in relation to their objections to the development.  This followed a meeting on 6^th July, 2012, attended by both the plaintiff and the first defendant with the neighbours. 

137.   On 12^th July, 2012, the plaintiff as a director of and on behalf of the third defendant wrote to the planning officer to respond to planning objections filed by Lady Gooch.  This lead to correspondence between Mr Philip Syvret representing Lady Gooch and Mr Young. 

138.   On 15^th August, 2012, Mr Young wrote to the population office seeking permission to transfer the ownership of the plaintiff's shares in Home Farm to the second defendant and for the properties to be let for one year to avoid a foreclosure by Investec Bank. 

139.   On 27^th September, 2012, the plaintiff wrote to Mr Young and stated:-

"Further to my earlier email, I can confirm that both me and Harry are in agreement to execute the transfer of 100% of the shares in HFD at the earliest opportunity.  Harry returns from France this weekend, so would be grateful if you could assist us with the transfer next week.  Would you kindly confirm your availability and seek the necessary authorisation from Simon Brown of Investec."

140.   On 15^th October, 2012, Mr Young sent a draft Share Vending Agreement ("SVA") to the plaintiff and the first defendant for the second defendant to acquire Home Farm (pages 80-95 of DY1). 

141.   Further correspondence took place in relation to the SVA on 24^th October, 2012.  (Pages 96-99 of DY1). 

142.   On 30^th October, 2012, the plaintiff emailed the first defendant (pages 101-102 of DY1).  The first part of the email contained proposals in respect Home Farm; the second part stated the following:-

"With la tour, the engineer needs paying & rates need another £527.   They miscalculated.  It's still better than nearly £4k.  The plumber has a small bill for sorting the water before we demo'd the small garage and stripped out inside etc.  Can I please have some ex's paid like phone etc for work so far, & maybe a small retainer.  What about Godels claims ..."

143.   Mr Young responded on behalf of the first defendant on 30^th October, 2012, with a further proposal for the first defendant to buy the plaintiff's shares in Home Farm. 

144.   The plaintiff responded on 31^st October, 2012.  His email stated "from day one I only added to my statement without any third party prompt to do so the various unsecured payments that your client has made in good faith and for my sole benefit".  His schedule was attached setting out what the plaintiff considered he owed the first defendant (page 102 of DY1). 

145.   On 6^th November, 2012, the plaintiff wrote to the first defendant (page 102 of DY1) stating as follows:-

"Going through the emails I missed whilst in London and found yours below!  So calling me 'a piece of shit' is your thanks for me putting my heart and soul into persuading you to let me rehash your hotel scheme, giving you 14 months of loyal service, adding circa £1.5 million in GDV, making the houses 10 times more saleable and taking on all those asshole residents on your behalf - and all for free so far!  What more do you want from me?" and

I gave both you and Daniel a rational explanation and statement to explain why I couldn't sign the original share vending agreement last week, and since then I have secured two buyers to get yours and Investec's debt settled + interest.  There is sufficient equity in Home Farm to ensure these repayments can happen.  I have openly acknowledge to both you and Daniel all the debt and asked you to review the statement so we can agree a settlement position.  So what's the problem that warrants the above or you getting enraged?" (emphasis added). 

146.   On 20^th November, 2012, the plaintiff wrote to Mr Young by email (page 108 of DY1) further complaining about the conduct of the first defendant and what the plaintiff described as "your Client's more recent attempts to sabotage the sales..."

147.   The first set of proceedings were commenced by Home Farm in February 2013 as described above. 

Issues

148.   In light of the way arguments were presented to me, I now set out the main legal and factual issues I consider I have to analysis in relation to the remaining applications before me. 

149.   The factual issues are those indicated to the parties in previous emails namely:-

(i)        What agreement was reached between the parties?

(ii)       Is there an alternative case in unjust enrichment?

(iii)      In relation to the claims for misrepresentation referred to in paragraph 31 of the order of justice, whether these losses are those of Home Farm or the plaintiff?

(iv)      What losses might flow from any breach of any agreement or from a claim based on unjust enrichment?

150.   In relation to the applicable legal principles, the relevant principles I have to consider concern:-

(i)        applications to strike out;

(ii)       applications to amend;

(iii)      applications for summary judgment in relation to the new Part 7 of the Rules;

(iv)      the law on unjust enrichment; and

(v)       the law on reflective loss. 

151.   In relation to the legal principles concerning the procedural aspects of this decision namely strike out, summary judgment and amendment of pleadings I summarise these in the next section of this judgment. 

152.   In relation to the relevant substantive law legal principles, I deal with these in the relevant part of this judgment when addressing the factual issue to which the legal principle relates. 

The legal principles on a strike out application

153.   The defendants' application invokes all four grounds of Rule 6/13. 

154.   These principles were recently considered by the Court of Appeal in Home Farm Developments Limited v Le Sueur [2015] JCA 242 at paragraphs 23 to 29.  In particular, paragraphs 27 to 29 are pertinent to the way the defendants have framed their application and state as follows:-

"The Deputy Bailiff in Pike referred further to the meaning of the expression "scandalous, frivolous or vexations" when he quoted (at p. 38-39) from paragraphs 18/19/14 and 15 of the White Book at pp. 322-323 - being passages which we consider to be relevant to this appeal:-

"'The Court has a general jurisdiction to expunge scandalous matter in any record or proceeding ... Allegations of dishonesty and outrageous conduct, etc, are not scandalous, if relevant to the issue ... But if degrading charges be made which are irrelevant, or if, though the charge be relevant, unnecessary details are given, the pleading becomes scandalous ... By [the words frivolous or vexatious] are meant cases which are obviously frivolous or vexatious, or obviously unsustainable ...  For instance, it is vexatious and wrong to make solicitors or others, parties to an action merely in order to obtain from them discovery or costs ..."

The test in an application to strike out was considered further by this Court in the case of Trant to which we have already referred.  In the course of his judgment, Beloff JA said this:-

"22     The test on an application to strike out is well established. It is only where it is plain and obvious that the claim cannot succeed that recourse should be had to the court's summary jurisdiction to strike out. Particular caution is required in a developing field of law. Provided that a pleading discloses some cause of action or raises some question fit to be decided by a judge, jurats or jury, the mere fact that a case is weak is not a ground for striking it out. These propositions are vouched for by a wealth of Jersey authority embracing principles deployed by the courts of the United Kingdom, see e.g. In re Esteem Settlement ... (2000 JLR at 127) (we note en passant that a new regime, arguably more favourable to an application to strike out, has been introduced in England and Wales by the Civil Procedure Rules).

23       On an application to strike out under sub-para. (a) of r.6/13(1) (that there is no reasonable cause of action) evidence is not admissible. The facts alleged in the Order of Justice must be taken as correct. However, where an application is made under sub-para. (b) (scandalous, frivolous or vexatious), or sub-para. (d) (abuse of process), or where the application to strike out is made out under the inherent jurisdiction of the court, evidence is admissible and may be considered by the court. It follows that, on this application, evidence was and is admissible."

It may be observed that the decision of the Deputy Bailiff in Pike was not referred to in Trant but for our part we see nothing in it which could be said to demonstrate an approach which is materially different. 

Applying these principles to the circumstances of the present case, the Appellants' Order of Justice should be struck out only if we are satisfied, based upon the conclusions which we can draw from the relevant documents and facts which are not in dispute, that any trial of the issues would be unnecessary because the claim would inevitably fail.  In doing so, we acknowledge that in the particular circumstances of this case a distinction may made between paragraph (1)(b), which refers to a claim or pleading which is "scandalous, frivolous or vexatious", and paragraph (1)(d) which refers to "abuse of process".  Whilst the former expression might, as the Deputy Bailiff referred to in Pike (at p. 37), suggest a degree of opprobrium about what has been pleaded, for example the making of unjustified allegations of outrageous conduct or the unreasonable inclusion of a solicitor as a defendant, we do not consider that the expression "abuse of process" necessarily carries the same connotation.  In the context of striking out, we consider that a claim or pleading may be said to be an abuse of process where, after applying the test set out in Trant, the conclusion can be reached that to allow the proceeding to continue would be an unnecessary waste of the court's time because at the end of any trial the result would inevitably be that the claim would fail."

155.   I have applied these principles in reaching my decision in particular bearing in mind that:-

(i)        an application can only be struck out if it is plain and obvious to do so;

(ii)       all or part of a pleading may be struck out as being scandalous, frivolous or vexatious where the pleading contains unjustified allegations of outrageous conduct; and

(iii)      a pleading might be an abuse of process where to allow the allegation to continue would be an unnecessary waste of court time because at the end of any trial the result would inevitably be that the claim would fail. 

The law on applications to amend

156.   As with a strike out application, the applicable principles on an application to amend are well known. 

157.   At paragraph 27 of MacFirbhisigh and Ching v CI Trustees and Others [2014] 1 JLR 244 I therefore stated as follows:-

"27     The applicable legal principles on a strike-out application and an application to amend are generally well known. In particular, I was referred to the decision of Birt, then Deputy Bailiff, in Cunningham v. Cunningham (2) and the following passages (2009 JLR 227, at paras. 17-19):

"'.-�.-�. Today in England and Wales the courts will take account of the following (amongst other) factors-the strains which litigation imposes on personal litigants, and on particular individuals in litigating companies and other bodies; the expectation that all the issues have already been fully defined; the efficient disposal of the particular case in ways proportionate to the sums involved, its importance, its complexity, and the parties' respective financial positions; the effects on the efficient disposal of other cases; the use of an appropriate share of the court's resources; and similar matters covered by Part 1 of the CPR, in which an 'overriding objective' is encapsulated.

Jersey civil procedure has not been taken down the same route as the CPR. But the statement of principle in Esteem Settlement quoted in para. 4 above and the other observations in that and subsequent Jersey cases show that by judicial decisions rather than wholesale rewriting of rules, Jersey civil procedure is moving in a similar direction, though with material differences. For example, in a smaller jurisdiction such as Jersey with a relatively small number of fought civil actions, and a reasonable number of permanent Judges and part-time Commissioners, it is less likely that any impact on the progress of other actions will prove to be strongly relevant in a case such as the present.

Where there is a late application for an amendment to the order of justice (or to the answer or reply) the Jersey courts have to strike a balance which is primarily between the parties to the instant case. The burden on the applicant is a heavy one to show, for example, (1) why the matters now sought to be pleaded were not pleaded before; (2) what is the strength of the new case; (3) why an adjournment should be granted, if one is necessary; (4) how any adverse effects on the other party including the effects of any adjournment, any additional discovery, witness statements or experts reports, or other preparation for trial can be remedied; and (5) why the balance of justice should come down in favour of the party seeking to change its case at a late stage of the proceedings.'

Another convenient summary of the relevant considerations can be found in Charlesworth v. Relay Roads Ltd. .-�.-�. where Neuberger, J. said this ([1999] 4 All E.R. at 401-402):

'As is so often the case where a party applies to amend a pleading or to call evidence for which permission is needed, the justice of the case can be said to involve two competing factors. The first factor is that it is desirable that every point which a party reasonably wants to put forward in the proceedings is aired: a party prevented from advancing evidence and/or argument on a point (other than a hopeless one) will understandably feel that an injustice has been perpetrated on him, at least if he loses and has reason to believe that he may have won if he had been allowed to plead, call evidence on, and/or argue the point. Particularly where the other party can be compensated in costs for any damage suffered as a result of a late application being granted, there is obviously a powerful case to be made out that justice indicates that the amendment should be permitted.-�.-�.

    On the other hand, even where, in purely financial terms, the other party can be said to be compensated for a late amendment or late evidence by an appropriate award of costs, it can often be unfair in terms of the strain of litigation, legitimate expectation, the efficient conduct of the case in question, and the interests of other litigants whose cases are waiting to be heard, if such an application succeeds.'

The application in that case was made after the hearing and after judgment had been handed down, although before the order had been drawn up.

It is, furthermore, well established that the court will not permit amendments which infringe the rules of pleading or introduce a claim which is so hopeless that it would be liable to be struck out under the Royal Court Rules 2004, r.6/13.""

158.   It is also well-known that a Court will not normally strike out a claim if it can be rescued by an amendment to a pleading.  In Cunningham v Cunningham [2009] JLR 227 (referred to in the extract set out above) at paragraph 43, the Royal Court also noted that it was not right to refuse leave to amend altogether if the draft submitted to the Court was deficient but any deficiencies could be cured by further change. 

159.   While I set out the applicable principles on a summary judgment application below, I also consider that the principles as to when a strike out application may be rescued by an amendment to a pleading including correcting any deficient draft also apply to an application for summary judgment.  In other words if an amendment to a pleading or a proposed amendment would permit the Court to conclude that there was a matter necessary to be determined at trial then the Court should allow such amendments and not enter summary judgment.  This observation is subject however to one qualification which is that any exercise of discretion to allow an amendment to take place must take into account the overriding objective introduced by Rule 1/6 of the Rules.  The overriding objective might mean on a case by case basis that a proposed amendment may not in future save the day in every case. 

The legal principles on a summary judgment application

160.   This is the first occasion upon which Rule 7 introduced by Royal Court (Amendment No.20) Rules 2017 has been considered.  The wording of Rule 7 is based extensively on Rule 24 of the Civil Procedure Rules ("CPR").  As there is no material difference between the wording of Rule 7 of the Royal Court Rules and Rule 24 of the CPR, I have followed the relevant English jurisprudence as to how the power contained in Rule 7 should be interpreted and applied. 

161.   Paragraph 24.2.3 of the White Book 2017 for the CPR sets out what is meant by there being no real possibility of succeeding on a claim or successfully defending a claim as follows:-

"In order to defeat the application for summary judgment it is sufficient for the respondent to show some "prospect" i.e. some chance of success.  That prospect must be "real", the court will disregard prospects which are false, fanciful or imaginary.  The inclusion of the word "real" means that the respondent has to have a case which is better than merely arguable.  The respondent is not require to show that their case will probably succeed at trial.  A case may be held to have a 'real prospect' of success even if it is improbable."

162.   By contrast under the former Rule 7, if a party was able to show they had an arguable defence then summary judgment would not have been granted (see for example Toothill v HSBC Bank Plc [2008] JLR 77 at paragraph 29).  The new Rule 7 therefore means that more is required from a party facing a summary judgment application than before to satisfy the Court that there is an issue which ought to be tried.  Simply showing an arguable case will no longer be sufficient. 

163.   Paragraph 24.2.3 of the 2017 White Book also contains the following useful guidance:-

"The hearing of an application for summary judgment is not a summary trial.  The Court at the summary judgment application will consider the merits of the respondent's case only to the extent necessary to determine whether it has sufficient merit to proceed to trial.  The proper disposal of an issue under Pt 24 does not involve the court conducting a mini-trial... 

At a trial, the criterion to be applied by the court is probability; victory goes to the party whose case is the more probable (taking into account the burden of proof).  This is not true of a summary judgment application.  The criterion which the judge has to apply under CPR Pt 24 is not one of probability; it is absence of reality.

Conversely, an application for summary judgment is not appropriate to resolve a complex question of law and fact, the determination of which necessitates a trial of the issues having regard to all of the evidence."

164.   Paragraph 24.2.5, of the 2017 White Book also contains the following statement:-

"If the applicant for summary judgment adduces credible evidence in support of their application the respondent becomes subject to an evidential burden of proving some real prospect of success or some other reason for a trial.  The standard of proof required of the respondent is not high.  It suffices merely to rebut the applicant's statement of belief.  The language of r.24.2 ("no real prospect ... no other reason...") indicates that, in determining the question, the court must apply a negative test.  The respondent's case must carry some degree of conviction: the court is not required to accept without analysis everything said by a party in his statements before the court.  In evaluating the prospects of success of a claim or defence judges are not required to abandon their critical faculties.  However, the proper disposal of an issue Pt 24 does not involve the judge in conducting a mini-trial."

165.   A similar approach was taken by the Jersey Court of Appeal in Amy v Amy [2011] JLR 603 in relation to the former Rule 7 where at paragraph 28 the Court of Appeal stated as follows:-

"28     On the other hand, as r.7/2(1) makes clear, where the application is within the rule and properly supported by an affidavit on behalf of the plaintiff, it is for the defendant to satisfy the court that there is an issue which ought to be tried. This, in general, requires evidence on behalf of the defendant rather than just an assertion or the production of a pleading; and it is well established that the defendant's affidavit should be specific enough to enable the court to see that there is a real issue to be tried (see Toothill v. HSBC Bank plc. (6) (2008 JLR 77, at para. 29, per Birt, Deputy Bailiff)):

"In short, the court must consider whether the defendant has shown an arguable defence, i.e. whether there is a triable issue. If so, leave to defend should be given. We would, however, refer specifically to the passage at para. 14/4/5, at 173 which states:

'The defendant's affidavit must "condescend upon particulars," and should, as far as possible, deal specifically with the plaintiff's claim and affidavit, and state clearly and concisely what the defence is, and what facts are relied on to support it.'

As is stated later in the same passage: 'Indeed, in all cases, sufficient facts and particulars must be given to show that there is a triable issue.'"

166.   In Swain v Hillman [2001] 1 All ER 91 at page 92 line J the English Court of Appeal in relation to CPR 24 stated "under r.24.2 the court now has a very salutary power, both to the exercise in a claimant's favour or, where appropriate, in a defendant's favour.  It enables the court to dispose summarily of either claims or defences which have no real prospect of being successful.  The words "no real prospect of succeeding" do not need any amplification, they speak for themselves.  The word "real" distinguishes fanciable possibly of success or, as Mr Bidder Q.C. submits, they direct the court to the need to see whether there is a realistic as opposed to a fanciable prospect of success."

167.   In ED&F Man Liquid Products Ltd v Patel & Anor [2003] CP Rep 51 the Court of Appeal stated as follows:-

"8 I regard the distinction between a realistic and fanciful prospect of success as appropriately reflecting the observation in the Saudi Eagle that the defence sought to be argued must carry some degree of conviction. Both approaches require the defendant to have a case which is better than merely arguable, as was formerly the case under R.S.C. Order 14."

168.   The Court also stated at paragraph 10 as follows:-

"It is certainly the case that under both rules, where there are significant differences between the parties so far as factual issues are concerned, the court is in no position to conduct a mini-trial: see per Lord Woolf MR in Swain v Hillman [2001] 1 All ER 91 at 95 in relation to CPR 24. However, that does not mean that the court has to accept without analysis everything said by a party in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporary documents. If so, issues which are dependent upon those factual assertions may be susceptible of disposal at an early stage so as to save the cost and delay of trying an issue the outcome of which is inevitable: see the note at 24.2.3 in Civil Procedure (Autumn 2002) Vol 1 p.467 and Three Rivers DC v Bank of England (No.3) [2001] UKHL/16, [2001] 2 All ER 513 per Lord Hope of Craighead at paragraph [95]."

169.   I have adopted these principles in deciding whether or not to grant summary judgment. 

An agreement between the parties?

170.   I next consider the rival contentions of the parties as to whether or not an agreement was reached between them.  However the extent of the decision required is whether or not there is a case that can be disposed of summarily or whether a trial is required.  I have applied this test first because, if no trial is required applying the summary judgment principles referred to above, then it is not necessary to determine the other way in which the defendants frame their application namely that the claims should be struck out. 

171.   However, because the defendants also put their application by reference to the manner in which the plaintiff has conducted its litigation, this judgment also rules on that alternative ground. 

172.   The starting point to consider whether or not to grant summary judgment to dismiss the plaintiff's claim that he reached a legally binding agreement with the defendants is the allegations put forward by the plaintiff. 

173.   In his order of justice, the plaintiff as paragraph 5 alleged that in June 2011 he and the first defendant agreed to enter into a part exchange/profit share agreement and exhibited a copy of that agreement.  He described it as containing the following key terms:-

"(a)      Option Fee: £200K, taken only in the form of security I secured charges against Holmes's Home Farm property referred at (c)ii below ("Secured Charges"); the security to continue until it is effectively expunged by payment of the deposit referred at (c)ii below.

(b)       Sales: Total projected sales £9.65M.

(c)       Lingard consideration: £5.0M FIXED; i.e. £4M asking for site, plus £1.0M share of Project profits, to be paid over as follows:

(i)        Deposit of £1.2M on execution of option and project bank funding, to repay Lingard's existing £1.2M HSBC hotelier loan secured on La Tour.

(ii)       Deposit of £900K, within 3 months of execution of Agreement, from sale of Holmes's property known as Units 1, 2 & 5 Home Farm, or alternatively the transfer to HJL of Holmes's SPV Company that owns the property and the equity - namely Home Farm Developments Ltd ("Home Farm").

(iii)      Balance of £2.9M from projected sales profits, as agreed with bank funder and prior to Holmes's draw.

(d)       Holmes consideration: £2.15M FLOATING; i.e. [£9.65 sale- (£4.6M bank + £2.9M Lingard) = £2.15M]- risk weighted against Holmes's sole responsibility for executing and managing the design and construction of the Project and taking all risk in fluctuation in projected sales and Project costs.

(e)       Sales Uplift: 30% of any sum of any sales accepted over and above the stated sales price would be added to Lingard's consideration (Holmes thereby retaining circa 70%).

(f)        Conditions Precedent:

(i)        Lingard to receive formal written planning permit, pursuant to the above      ministerial approval, with customary non-contentious conditions;

(ii)       Holmes to obtain bank sanction for development funding of up to £4.6M ("Project Funding"}, to include the £1.2M deposit referred to at (c)i above to enable Lingard to refinance his existing HSBC hotelier loan. Holmes and Lingard to jointly and severally guarantee Project Funding."

174.   In the draft amended order of justice the plaintiff alleged these terms were now operative terms.  However the financial terms said to have been agreed remained the same. 

175.   The reason for the amendments was that the agreement attached to the order of justice alleging an agreement in June 2011 could not have been reached in June 2011.  This led Commissioner Clyde-Smith in the injunction judgment [2015] JRC 141 at paragraph 28 to say this:-

"28.    Even so, it did not seem seriously arguable to us that an agreement had been entered into in June 2011 in the terms of the document appended to Mr Holmes' affidavit-the first of many drafts.  It is that agreement that underpins all of the claims made in the Order of Justice.  As the Order of Justice is currently drafted, therefore, we could not see that there was a serious issue to be tried and therefore, the injunctions would not be re-imposed."

176.   I reached the same view in the security for costs judgment at paragraph 57. 

177.   In relation to these judgments the plaintiff now argues that the agreement set out in the amended order of justice was entered into by conduct.  The plaintiff further contended this was always his case. 

178.   In his skeleton argument, he relied on the case of Reveille Independent LLC v Anotech International UK Limited [2016] EWCA Civ 443 in support of this argument.  Paragraphs 40 to 42 of the Reveille decision state as follows:-

"40     There are a number of rules of English contract law which, in combination, bear on the resolution of this appeal. First, classical analysis finds the parties' consent to a contract in the acceptance of an offer, and it is well accepted that acceptance can be by the conduct of the offeree so long as that conduct, as a matter of objective analysis, is intended to constitute acceptance: Brogden v. Metropolitan Railway Co (1877) 2 App Cas 666 . Secondly, as in Brogden , acceptance can be of an offer on the terms set out in a draft agreement drawn up between the parties but never signed. Thirdly, if a party has a right to sign a contract before being bound, it is open to it by clear and unequivocal words or conduct to waive the requirement and to conclude the contract without insisting on its signature: Oceanografia SA de CV v. DSND Subsea AS (The Botnica) [2006] EWHC 1360 (Comm); [2007] 1 All E.R. (Comm) 28 at [94], per Aikens J.

41       Fourthly, if signature is the prescribed mode of acceptance an offeror will be bound by the contract if it waives that requirement and acquiesces in a different mode of acceptance. In my view it follows that where signature as the prescribed mode of acceptance is intended for the benefit of the offeree, and the offeree accepts in some other way, that should be treated as effective unless it can be shown that the failure to sign has prejudiced the offeror: see  Chitty on Contracts  , 32nd ed, 2015, §§2-066, 2-067; MSM Consulting Ltd v. United Republic of Tanzania [2009] EWHC 121 (QB) , at [119] per Christopher Clarke J. Fifthly, a draft agreement can have contractual force, although the parties do not comply with a requirement that to be binding it must be signed, if essentially all the terms have been agreed and their subsequent conduct indicates this, albeit a court will not reach this conclusion lightly: RTS Flexible Systems v. Molkeroi Alois Muller GmbH [2010] UKSC 14, [2010] 1 WLR 753 , at [54]-[56]. Finally, the subsequent conduct of the parties is admissible to prove the existence of a contract, and its terms, although not as an aid to its interpretation:  Chitty on Contracts, 32nd ed, 2015, §13-129.

42       These rules take effect against the background of legal policies recognised in the case law. One such policy is the need for certainty in commercial contracts, a policy which since Lord Mansfield's time has run as a thread through the jurisprudence. That need for certainty applies as well in commercial negotiations and to the question of whether a contract has come into existence: see Cobbe v. Yeoman's Row Management Ltd [2008] UKHL 55; [2008] 1 WLR 1752, at [91] per Lord Walker. A second policy is that in commercial dealings the reasonable expectations of honest, sensible business persons must be protected. In giving the judgment of the Supreme Court in RTS Flexible Systems Ltd v. Molkerei Alois Muller GmbH, Lord Clarke, at [50], approved dicta of Steyn LJ in G. Percy Trentham Ltd v. Archital Luxfer Ltd [1993] 1 Lloyd's Rep 25, that when considering whether a contract has come into existence, "the governing criterion is the reasonable expectations of honest sensible businessmen. Contracts may come into existence, not as a result of offer and acceptance, but during and as a result of performance" (see also First Energy (UK) Ltd v. Hungarian National Bank Ltd [1993] BCC 533 , 533, per Steyn J). In a further passage in Percy Trentham, also approved by Lord Clarke, Steyn LJ said that a matter of importance to be considered in contract formation was

"the impact of the fact that the transaction is executed rather than executory... The fact that the transaction was performed on both sides will often make it unrealistic to argue that there was no intention to enter into legal relations. It will often make it difficult to submit that the contract is void for vagueness or uncertainty. Specifically, the fact that the transaction is executed makes it easier to imply a term resolving any uncertainty, or, alternatively, it may make it possible to treat a matter not finalised in negotiations as inessential." at page 27.

In my view the same realistic approach must be taken in deciding whether a party has accepted an offer through its conduct."

179.   The Reveille decision referred to RTS Flexible Systems Ltd v. Molkerei Alois Muller Gmbh [2010] UK SC 14.  The relevant discussion is at paragraphs 45 to 49 as follows:-

"45     The general principles are not in doubt. Whether there is a binding contract between the parties and, if so, upon what terms depends upon what they have agreed. It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations. Even if certain terms of economic or other significance to the parties have not been finalised, an objective appraisal of their words and conduct may lead to the conclusion that they did not intend agreement of such terms to be a pre-condition to a concluded and legally binding agreement. (emphasis added)

46       The problems that have arisen in this case are not uncommon, and fall under two heads. Both heads arise out of the parties agreeing that the work should proceed before the formal written contract was executed in accordance with the parties' common understanding. The first concerns the effect of the parties' understanding (here reflected in clause 48 of the draft written contract) that the contract would "not become effective until each party has executed a counterpart and exchanged it with the other" - which never occurred. Is that fatal to a conclusion that the work done was covered by a contract? The second frequently arises in such circumstances and is this. Leaving aside the implications of the parties' failure to execute and exchange any agreement in written form, were the parties agreed upon all the terms which they objectively regarded or the law required as essential for the formation of legally binding relations? Here, in particular, this relates to the terms on which the work was being carried out. What, if any, price or remuneration was agreed and what were the rights and obligations of the contractor or supplier?

47       We agree with Mr Catchpole's submission that, in a case where a contract is being negotiated subject to contract and work begins before the formal contract is executed, it cannot be said that there will always or even usually be a contract on the terms that were agreed subject to contract. That would be too simplistic and dogmatic an approach. The court should not impose binding contracts on the parties which they have not reached. All will depend upon the circumstances. This can be seen from a contrast between the approach of Steyn LJ in the Percy Trentham case, which was relied upon by the judge, and that of Robert Goff J in British Steel Corporation v Cleveland Bridge and Engineering Co Ltd [1984] 1 All ER 504, to which the judge was not referred but which was relied upon in and by the Court of Appeal.

48       These principles apply to all contracts, including both sales contracts and construction contracts, and are clearly stated in Pagnan SPA v Feed Products Ltd [1987] 2 Lloyd's Rep 601, both by Bingham J at first instance and by the Court of Appeal. In Pagnan it was held that, although certain terms of economic significance to the parties were not agreed, neither party intended agreement of those terms to be a precondition to a concluded agreement. The parties regarded them as relatively minor details which could be sorted out without difficulty once a bargain was struck. The parties agreed to bind themselves to agreed terms, leaving certain subsidiary and legally inessential terms to be decided later.

49       In his judgment in the Court of Appeal in Pagnan Lloyd LJ (with whom O'Connor and Stocker LJJ agreed) summarised the relevant principles in this way at page 619:

"(1)     In order to determine whether a contract has been concluded in the course of correspondence, one must first look to the correspondence as a whole...

(2)       Even if the parties have reached agreement on all the terms of the proposed contract, nevertheless they may intend that the contract shall not become binding until some further condition has been fulfilled. That is the ordinary 'subject to contract' case.

(3)       Alternatively, they may intend that the contract shall not become binding until some further term or terms have been agreed...

(4)       Conversely, the parties may intend to be bound forthwith even though there are further terms still to be agreed or some further formality to be fulfilled...

(5)       If the parties fail to reach agreement on such further terms, the existing contract is not invalidated unless the failure to reach agreement on such further terms renders the contract as a whole unworkable or void for uncertainty

(6)       It is sometimes said that the parties must agree on the essential terms and it is only matters of detail which can be left over. This may be misleading, since the word 'essential' in that context is ambiguous. If by 'essential' one means a term without which the contract cannot be enforced then the statement is true: the law cannot enforce an incomplete contract. If by 'essential' one means a term which the parties have agreed to be essential for the formation of a binding contract, then the statement is tautologous. If by 'essential' one means only a term which the Court regards as important as opposed to a term which the Court regards as less important or a matter of detail, the statement is untrue. It is for the parties to decide whether they wish to be bound and if so, by what terms, whether important or unimportant. It is the parties who are, in the memorable phrase coined by the Judge [at page 611] 'the masters of their contractual fate'. Of course the more important the term is the less likely it is that the parties will have left it for future decision. But there is no legal obstacle which stands in the way of the parties agreeing to be bound now while deferring important matters to be agreed later. It happens every day when parties enter into so- called 'heads of agreement'".

180.   The same principles apply where, as here, the Court is considering whether a contract was concluded in correspondence as well as by oral communications and conduct.  I am of course also conscious that these cases are discussing principles of English contract law rather than Jersey contract law.  Advocate Heath as Amicus quite properly reminded me of what is required under Jersey law for there to be a valid contract by reference to Selby v Romeril [1996] JLR 210 as follows:-

"In our judgment, it may now be asserted that by the law of Jersey, there   are four requirements for the creation of a valid contract, namely (a) consent; (b) capacity; (c) an "objet"; and (d) a "cause." Counsel for the defendant submitted that here there was no objet. He referred us again to Pothier (op. cit., Part 1, Chapter 1, para. 53, at 27): 

"Les contrats ont pour objet, ou des choses que l'une des parties  contractantes stipule qu'on lui donnera, & que l'autre partie promet 45 de lui donner; ou quelque chose que l'une des parties contractantes  stipule que l'on fera, ou qu'on ne fera pas; & que l'autre partie  promet de faire, ou de ne pas faire." 

In essence, the object of a contract (or more precisely the obligation which the contract creates) is the content of what the party undertakes. As to the content of the undertaking, it is the rule that it must be sufficiently certain.  (emphasis added)

Pothier (op. cit., Part 1, Chapter 1, para. 137, at 59) states: "Pour qu'un fait puisse être l'objet d'une obligation, il faut aussi que ce que le débiteur s'est obligé de faire, soit quelque chose de déterminé.""

181.   Both the English cases also emphasise that there must be certainty.  As it was put in RTS all the terms which the parties "regarded or the law requires as essential for the formation of legally binding relations" had to be agreed.  Reveille also underlined the importance of certainty in commercial contracts.  This is no different from the observations of Sir Philip Bailhache in the Selby case that the terms of a contract governed by Jersey law must be "sufficiently certain". 

182.   The question I have to decide therefore is whether there is an issue fit for trial in relation to the plaintiff's claim as put in his order of justice and his amended order of justice.  In summary, that case is that the parties reached agreement on all the terms of the proposed contract in June 2011 and intended to be bound by that agreement even though there were certain further terms to be agreed, or some formality to be fulfilled which was not a pre-condition to a legally binding agreement and that the parties' later conduct indicated agreement of these terms. 

183.   The plaintiff further argued in this case that there was a volonté between him and the first defendant.  This appears to be a reference to Sutton v ICCI [2011] JRC 027 where at paragraph 46 W. J. Bailhache, (then Deputy Bailiff) described volonté as being whether there was any "true common will" to agree the terms of a contract".

184.   The position of the defendants by contrast is that no agreement was ever concluded as alleged.  What the first defendant received were a number of different proposals none of which were acceptable to him or ultimately reached fruition. 

185.   The starting point for my decision is that I accept as a matter of law that parties can agree a contract by conduct.  I also accept that terms set out in a draft agreement but never signed can be accepted by clear unequivocal words or conduct to waive the requirement to sign.  I further accept that a draft agreement can have contractual force if all the essential terms have been agreed and the subsequent conduct of the parties indicates that they intended the essential terms to have legal effect.  Subsequent conduct of the parties is therefore admissible to prove the existence of a contract, although not to interpret it.  I am accordingly satisfied that there are relevant legal principles which would permit the plaintiff to argue his case as pleaded.  However, that is not the end of matter.  I also have to consider all the material before me to decide whether the claim as pleaded by the plaintiff is one where that is a real as distinct from a fanciful prospect of success applying the English authorities referred to at paragraphs 160-169 above. 

186.   In this case it is important to record the plaintiff's case.  His case is that he reached agreement with the defendants in or around June 2011 as follows:-

(i)        An option fee was payable secured against property owned by Home Farm of £200,000;

(ii)       The agreement was based on total projected sales of £9.6 million;

(iii)      The first defendant was to receive £5 million with a deposit of £1.2 million based on bank funding and £900,000 payable out of the sales of units at Home Farm;

(iv)      30% of any sales proceeds over and above the projected sales price would also be paid to the first defendant; and

(v)       There were conditions precedent for obtaining planning permission and the plaintiff obtaining bank finance up to £4.6 million. 

(vi)      A side loan was to be made by the first defendant to Home Farm which appears to be an early release of equity to the plaintiff in the Hotel La Tour development. 

187.   The difficulty with the plaintiff's case is that it is inconsistent with documents produced after June 2011. 

188.   The document described at paragraph 91 above called 'Heads of Terms' provided for a total payment of £5.3 million and 50% uplift of sale prices over £10.6 million.  Borrowings were also limited to £3 million and a cash payment was looked for albeit of an unspecified amount. 

189.   The terms referred to paragraph 92 above were also between a different entities namely Strata and third defendant.  This document proposed an initial payment of £1.5 million. 

190.   The Heads of Terms sent by the plaintiff on 26^th September, 2011, (see paragraph 102 above) contained variations to the agreement referred to in the plaintiff's pleadings because the purchase price set out was £10.3 million and was based on projected total sales of £10.6 million not £9.6 million. 

191.   The document dated 2^nd October, 2011, (see paragraph 106 above) set out that the first defendant wanted 50% of any uplift of sales over £10.6 million, borrowing being kept to £3 million and a total payment of £2 million from a combination of properties from Home Farm and cash payable on completion of the acquisition (as distinct from completion of the development). 

192.   The joint venture agreement produced by Advocate Renouf indicated that the first defendant would receive £5.3 million with borrowing being kept to £4.6 million.  The projected sales figures were £10.6 million.  Any split of any uplift was noted as still to be agreed. Any side loans were a separate issue. 

193.   I have set out these different versions of Heads of Terms and the agreements because I am not satisfied that there was certainty in respect of the following terms between the plaintiff and the first defendant:-

(i)        There was no certainty between the different documents as to what the plaintiff was going to pay the first defendant i.e. was it £5 million or £5.3 million;

(ii)       There was no certainty as to a total value of projected sales expected, was it £9.6 million or £10.6 million. 

(iii)      There was no certainty on how any profit over a projected sales figure could be split.  The plaintiff was looking for 30% and the first defendant 50%;

(iv)      There was no certainty as to how the first defendant was going to be paid.  The plaintiff's case is based on a deposit of £1.25 million from financing and £900,000 secured over property owned by Home Farm; the first defendant's last proposal was that he wanted £2 million secured by properties and owned by Home Farm a cash balance. 

(v)       The first defendant further would not agree to borrowing beyond £3 million; the plaintiff wanted to borrow up to £4.6 million;

(vi)      What were the terms in respect of any side loan and how much was it for. 

194.   Just looking at these different versions alone, the certainty required by Selby and Reveille is simply not there.  In my judgment the plaintiff therefore has no real prospect of showing that essentially all the terms were agreed given the different versions that post-date his case that agreement on the essential or objective terms was reached in June 2011.  The documents in July, September, October and November 2011 are all inconsistent with there being certainty of terms.  The question has to be posed why such documents would exist at all if there were certainty of terms.  These differences also go far beyond certain terms of economic significance not being agreed.  Rather they are at the very heart of what the bargain was between the parties. 

195.   The plaintiff contends that different versions existed because they were drafts that were being amended and updated as matters progressed.  However matters progressing is inconsistent with an agreement already having been reached in or around June 2011 which is how the plaintiff puts his case.  Furthermore, the different versions are not updates of a project in progress but are both sides setting out different positions on what they were prepared to agree.  There is no point in time where it can be said with any degree of conviction that the certainty of terms required for there to be a contract was clear. 

196.   In conclusion, while I accept that there was 'volonté' in the sense of a willingness to by both sides to want to enter into an agreement, and there no suggestion that either party lacked capacity to do so, that is not the central question for this application.  The question is whether there is an issue to be tried that the terms of the agreement between the parties were sufficiently certain in June 2011.  The lack of clarity on the terms set out in paragraph 193 above mean that I am not satisfied that there is a case that requires a trial. 

197.   In addition to inconsistencies with documents recording the terms that I have referred to, the following matters are also inconsistent with there being an issue for trial on this part of the case as pleaded by the plaintiff:

(i)        Advocate Young sent out an agreement in August 2011, the email was headed "re La Tour Hotel''; the plaintiff forwarded this email to the first defendant indicating he was going to review it the next day and then call the first defendant. 

(ii)       The plaintiff and the first defendant were clearly having further discussions in September 2011 (see paragraphs 100 to 102 and 105). 

(iii)      On 9^th October, 2011, as highlighted at paragraph 109 above the first defendant's email to the plaintiff stated "must finish this deal before Thursday as I will be away for 2 weeks", again this begs the question as to why the deal would need to be finished if the parties had already agreed the essential terms in June 2011. 

(iv)      The plaintiff's ultimate response to this email chain at paragraph 112 above is illustrative.  He forwarded a copy of the Heads of Terms last prepared together.  What he did not say was that agreement had already been reached. 

(v)       The first defendant's response of 2^nd October (paragraphs 105-107) requiring any agreement to be approved by Bois Bois. 

(vi)      The plaintiff's case is also inconsistent with the advice from Advocate Renouf relied upon.  Advocate Renouf was the plaintiff's own adviser and he stated in November 2011 that the Heads of Terms recorded in this document set out "the principles agreed between the parties".  The same advice also stated "consequentially these Heads of Terms either need to be endorsed as a final agreement after such independent advice was received or replaced by more specific agreements as is not possible to have an "agreement to agree" Jersey Law, these Heads of Terms do not initially form a binding agreement".  (emphasis added).  The plaintiff did not challenge this statement at the time it was made by his own adviser.  This was also a statement made in November 2011 some five months after the plaintiff now alleges that the parties reached agreement on the essential terms. 

(vii)     When the parties finally fell out in November 2012, the plaintiff in complaining about the first defendant's approach described the benefits he had provided to the defendants as being "all for free so far"; again the plaintiff did not state at that stage that agreement had already been reached (paragraph 145 above). 

(viii)    The plaintiff has also not explained why he or Strata made two proposals for providing consultancy services.  This is relevant because, if the plaintiff had agreed terms to acquire the first defendant's interest in Hotel La Tour in June 2011, an agreement to provide consultancy services for developing the project would not have been necessary.  The two offers made (see paragraphs 119 and 123) are therefore also inconsistent with any agreement being reached in June 2011. 

(ix)      Likewise the attempts by the plaintiff in January 2012 to raise funds and Mr Sobey's advice to the first defendant (see paragraphs 124 to 126 above) are also inconsistent with an agreement having been reached the previous June.  Neither the approaches nor the observations of Mr Sobey would have been necessary had an agreement already had been concluded. 

(x)       In February 2012, the plaintiff, when asking for details of what monies were owed to the first defendant, did not say that these monies were side loans payable out of his share of the profits of development of Hotel La Tour (paragraph 129). 

(xi)      The loans made to Home Farm totalling £282,000 did not contain any provision linking repayment to the development of Hotel La Tour and repayment out of any equity payable to the plaintiff. 

(xii)     The proposal for the first defendant to acquire Home Farm in October 2012 (paragraphs 139-144 above) makes no mention of any agreement concerning an acquisition of an interest in Hotel La Tour by the plaintiff. 

198.   In reaching this conclusion, I accept that the plaintiff has a case that carries some degree of conviction that he provided the following assistance to the defendants in relation to the development of Hotel La Tour:-

(i)        Commenting on the conditions of a planning agreement (see paragraphs 93 to 95 above);

(ii)       Attending meetings to raise money from Investec Bank (see paragraph 117);

(iii)      Acting as director of the third defendant between July and November 2012 (see paragraph 130);

(iv)      Dealing with issues concerning a retaining wall (see paragraph 131);

(v)       Dealing with a supply of electricity (see paragraph 132);

(vi)      Dealing with neighbours (see paragraph 133 to 134);

(vii)     Dealing with encroachments (see paragraph 135);

(viii)    Attending a meeting with neighbours with first defendant (see paragraph 136);

(ix)      Sorting out payments of certain bills or supplies (see paragraph 142).

(x)       These matters are consistent with how he frames his case in the draft amended order of justice. 

199.   These matters could amount to factual matters relied upon as to why the plaintiff argues that the first defendant had by his conduct agreed terms with the plaintiff.  These matters are not fanciful and are supported by contemporaneous evidence.  However, they are not an answer to the conclusions I have reached namely that there is no realistic prospect of the plaintiff establishing what terms he agreed in June with the first defendant at trial.  The plaintiff's problem is not therefore that a contract cannot be agreed by conduct.  His problem is that there is no realistic prospect of him demonstrating what the terms of that contract were.  In Amy v Amy [2011] JLR 603 the Court of Appeal (paragraph 28) drew a distinction between evidence "rather just an assertion or the production of a pleading".  The chronology referred to above is based on contemporaneous evidence; by contrast the material relied upon by the plaintiff relates to earlier pleadings (e.g. the proceedings started by representation described at paragraphs 10-12 above) or statements made by him rather than documentation relating to the agreements relied upon.  The plaintiff's affidavits or skeletons do not therefore "condescend upon particulars" to show why there is an issue fit to be tried on what the parties agreed in June 2011. 

200.   The plaintiff's claim is also not saved by the amendments proposed.  Those amendments, although clarifying that his case is that an agreement was reached by conduct, still do not plead a case to show why there is certainty in respect of the operative terms in light of the documents I have referred to above.  The use of the phrase 'objective terms' instead of 'key terms' adds nothing and does not produce the certainty required. 

201.   The plaintiff has further not produced any other material to show that there is a real prospect of success on this issue which justifies a trial and which should lead to a further permission being granted to amend this part of his order of justice.  Despite the parties having reviewed their own discovery, no documents have been produced by the plaintiff to indicate that an agreement was reached in June 2011 showing that there were certainty as to the terms agreed. 

202.   The plaintiff was also made aware on three occasions this year that the Court wanted to know his case and in particular all material facts relied upon as to what he said he agreed with the defendant.  Yet, much of the material produced by the first defendant was also not new and was known to the plaintiff at the latest since he received affidavits from the defendant in 2015.  The plaintiff has therefore had every opportunity, having been given permission to file two affidavits, to set out the material he relies upon and to provide the necessary particulars in order for the Court to be satisfied that there is a case fit for trial.  As nothing has been produced to show that there is such an issue it is not appropriate to permit the plaintiff to have more time to amend this part of his case. 

203.   Finally, I note that the Amicus in her written observations for which I am grateful expresses the view at paragraph 27 "in summary the Court has before it no evidence as to when the agreement was reached or in what precise circumstances.  The evidence before the Court is that of unsuccessful negotiations between the parties which never came to a conclusion".  I can do no more than agree. 

The claim in unjust enrichment

204.   The order of justice and the amended order of justice both plead as the first cause of action "breach of agreement and unjust enrichment".  The plaintiff's skeleton argument relied on the matters contained at paragraphs 2 to 47 of his amended order of justice in support of a claim in unjust enrichment as well as his claim for breach of an agreement.  The losses he claimed were the same namely:-

(i)        £190,000 for the costs and expenses incurred for works to Hotel La Tour;

(ii)       £900,000 in terms of the value of uplift on loss of earnings;

(iii)      Damages in relation to additional legal fees;

(iv)      Loss of sales value in respect of Home Farm; and

(v)       Loss in respect of additional default interest charged by Investec. 

205.   The services the plaintiff alleges he provided to the defendants are those pleaded at paragraphs 12 to 28 of the amended order of justice.  They are evidenced by the matters set out at paragraph 197 above. 

206.   I reviewed the concept of unjust enrichment forming part of the law of Jersey in CMC v Forster [2017] JRC 041A at paragraphs 66 to 71 as follows:-

"66.    To address these rival contentions decisions it is firstly necessary to consider how far the law of unjust enrichment has become part of the law of Jersey.  In Re Esteem Settlement [2002] JLR 053 at paragraph 156, Sir Michael Birt, then Deputy Bailiff, stated:-

"Any principle of restitutionary recovery against a fault-free recipient can only be based on the principle of unjust enrichment."

67.      It is therefore clear that from at least this decision, if not before, that the law of unjust enrichment forms part of the law of Jersey. 

68.      However it is appropriate to bear in mind the warning at paragraph 157 of Esteem as follows:-

"157    This is a complex area. We are conscious that many ramifications may flow from a decision to allow such a claim. Accordingly, we deliberately express our decision in terms that are no wider than is strictly necessary for the present case, without wishing to be taken to suggest that a remedy would not also be available in other analogous situations. We hold that, under the law of Jersey, where property in respect of which a person (a beneficiary) has an equitable proprietary interest (because the property has been taken from the beneficiary by a person who is in a fiduciary position towards that beneficiary) is received by an innocent volunteer, the beneficiary has a personal claim in restitution against the recipient even where the recipient has not been guilty of any "fault" in receiving the property. In other words, the state of mind required for a "knowing receipt" claim under English law is not required in Jersey. It is a strict restitutionary liability. However, the claim is based upon unjust enrichment and, accordingly, the beneficiary can only succeed to the extent that the recipient remains unjustly enriched. A defence of change of position is therefore available. We emphasize that the liability is a personal one; the recipient is not a constructive trustee for the beneficiary."

69.      The Esteem judgment was therefore very much a first step in recognising a claim based on unjust enrichment but clearly leaving it for another day as to the extent of the doctrine. 

70.      The next significant case which considered the doctrine of unjust enrichment is Flynn v Reid [2012] (1) JLR 370 at paragraphs 93 to 108.  Firstly, having cited paragraphs 156 and 157 of Esteem, WJ Bailhache, Deputy Bailiff ( as he then was) at paragraph 99 stated as follows:-

"99     For the purposes of this case, two principles arise out of that extract. The first is that the doctrine of unjust enrichment is one which the Royal Court is prepared to recognize in principle. The second is that the Royal Court deliberately refrained from setting out the limits of a claim of unjust enrichment and specifically expressed its decision in terms that were no wider than was strictly necessary for the purposes of that case."

71.      Secondly, at  paragraph 107 and 108 he continued as follows:-

"107    So there we have a reference from Lord Hope to two Scottish cases where the law of unjust enrichment has been applied. In Mckenzie v. Nutter (14), Sheriff Principal Lockhart, having summarized the relevant law, described his approach as follows (2007 S.L.T. (Sh. Ct.) 17, at para. 33):

"On the basis of the law which I have set out it is clear that the court may allow an equitable remedy in circumstances where one party has been unjustly enriched at the expense of another party. I propose to deal with this matter under four headings:

a.        Has the appellant been enriched at the expense of the respondent and what is the nature of that enrichment?

b.        If so, was that enrichment unjust?

c.        If so, what remedy, in the particular circumstances of this case, is open to the respondent?

d.        Is that remedy equitable?"

108     In our view, this approach to the questions of unjust enrichment is one which is not inconsistent with such slender authority as can be ascertained in Jersey law from the cases and is consistent with principle. It also provides a modern statement of an approach currently adopted by French courts to questions of enrichissement sans cause. The starting point is the legal interest. The court then looks at whether there has been enrichment which benefits the legal owner or owners or perhaps some of them at the expense of the claimant in a way that is unjustifiable. We also think that approaching the problem in this way will enable the court to consider enrichment problems holistically, rather than in separate compartments. We apply these principles to the facts of the instant case.""

207.   I also stated at paragraph 74 as follows:-

"74.    However the general recognition of the law of unjust enrichment forming part of the law of Jersey initially in Esteem and confirmed as a matter of general principle by Flynn v Reid which should be developed holistically is consistent with the general observations found in Goff & Jones at paragraphs 1-07 and 1-08 which state as follows:-

"1-07

It has been alleged that unjust enrichment is a vague principle of justice of no practical value However, the search for principle should not be confused with the definition of concepts. Unjust enrichment is not a high-level notion lacking in substantive content, "an indefinable idea in the same way that justice is an indefinable idea". Rather, as Deane J held in the High Court of Australia, unjust enrichment is a".

"... unifying legal concept, which explains why the law recognises, in a variety of distinct categories of case, an obligation on the part of the defendant to make fair and just restitution for a benefit derived at the expense of a plaintiff and which assists in the determination, by the ordinary processes of legal reasoning, of the question whether the law should, in justice, recognise such an obligation in a new or developing category of case.

1-08

Whatever may be the underlying moral justifications for the award of restitution in these cases the "unjust' element in "unjust enrichment" is simply a "generalisation of all the factors which the law recognises as calling for restitution. In other words, unjust enrichment is not an abstract moral principle to which the courts refer when deciding cases; it is an organising concept that groups decided cases on the basis that they share a set of common features, namely that in all of them the defendant has been enriched by the receipt of a benefit gained at the claimants expense in circumstances that the law deems to be unjust. The reasons why the courts have held a defendant's enrichment to be unjust vary from one set of cases to another, and for this reason the law of unjust enrichment more closely resembles the law of torts (recognising a variety of reasons why a defendant must compensate a claimant for harm) than it does the law of contract 'embodying a single principle that expectations engendered by binding promises must be fulfilled). In this respect, "English law does not have a unified theory of restitution""

208.   On the facts of CMC I found that there was a prima facie case that a dishonest assister could seek a contribution from individuals said to be in breach of a fiduciary duty. 

209.   While unjust enrichment is still developing, as a matter of Jersey law, a claim in unjust enrichment if properly pleaded, in the ordinary course would require a determination at trial. 

210.   In this case, I also referred to the parties to the Supreme Court decision of Benedetti v Sawiris [2014] AC 938.  At trial the judge ruled that the plaintiff was entitled to an award of damages based on quantum meruit for his services provided in expectation of reward under a contract which contract was not ultimately entered into. 

211.   In the Supreme Court, Lord Clarke at paragraph 13 to 16 of the Benedetti judgment stated as follows:-

"13     The basic principle is that a claim for unjust enrichment is "not a claim for compensation for loss, but for recovery of a benefit unjustly gained [by a defendant] ... at the expense of the claimant": NEC Semi-Conductors Ltd v Inland Revenue Comrs [2006] STC 606, para 175, per Mummery LJ; see also Goff & Jones, The Law of Unjust Enrichment, 8th ed (2011) ("Goff & Jones"), para 4-01. Given that Mr Benedetti's other claims have fallen away, the concern in the present case is not the value of Mr Benedetti's loss but of Mr Sawiris's gain. The question is whether an objective or subjective approach should be adopted when calculating that gain.

14       Whichever approach is adopted, it is clear that the enrichment is to be valued at the time when it was received by Mr Sawiris: BP Exploration Co (Libya) Ltd v Hunt (No 2) [1979] 1 WLR 783, *956 802, per Robert Goff J; see also Goff & Jones, para 4-34. As appears at para 52 below, in the present case, the services rendered were completed for all practical purposes by 26 May 2005, by which time there was no possibility of, or need for, further services from Mr Benedetti. Similarly, it is clear that, whether an objective or a subjective approach is taken to the evaluation of the benefit, the question is what is the value of the services themselves, not of any end-product or subsequent profit made by the defendant: see e.g. Cobbe v Yeoman's Row Management Ltd [2008] 1 WLR 1752, paras 41-42, per Lord Scott of Foscote.

15       In my view, the starting point in valuing the enrichment is the objective market value, or market price, of the services performed by Mr Benedetti. That is consistent with the view taken by Professor Graham Virgo in The Principles of the Law of Restitution, 2nd ed (2006) ("Virgo"):

"Much of the uncertainty concerning the definition of enrichment stems from the lack of consensus about where the analysis should start. Essentially there are two options available. Either we start with an objective test, ascertained by asking whether reasonable people would consider the defendant to have received something of value, or we start with a subjective test, by considering whether the defendant considers that he or she has received something of value. Whilst both the objective and subjective tests are relevant to the identification of an enrichment, the better view is that the objective test should always be considered first" p 64.

16       I agree. Although Professor Virgo is there considering the approach to the question whether a benefit has been conferred on the defendant at all, as opposed to the question how such a benefit should be valued, it is clear that he takes the same view in relation to valuation: see Virgo, at p 98, where he says that the general test of valuation which should be adopted is an objective test. Both the editors of Goff & Jones (e.g. at para 4-08) and Professor Andrew Burrows in The Law of Restitution, 3rd ed (2011) ("Burrows"), (at p 61) also take this view. The approach is supported by, e.g.: BP Exploration v Hunt [1979] 1 WLR 783, 840, per Robert Goff J; Cressman v Coys of Kensington (Sales) Ltd [2004] 1 WLR 2775, para 40, per Mance LJ; Cobbe v Yeoman's Row, para 42, per Lord Scott; and Sempra Metals Ltd (formerly Metallgesellschaft Ltd) v Inland Revenue Comrs [2008] AC 561, paras 116-119, per Lord Nicholls of Birkenhead. It is to be noted that Professor Virgo, in the passage quoted above, does not list as an available option the value which the claimant considers that he conferred on the defendant. That is because, as he puts it at p 69, "it is not the function of the law of restitution to assess relief by reference to the claimant's loss ... compensation is not a function of the law of restitution." It is to my mind for this reason that Mr Benedetti's request for euro 200-300m in June 2005 has little or no relevance. For these reasons I agree with Lord Neuberger of Abbotsbury PSC and Lord Reed JSC (whose judgments I have read in draft) that the general test, or prima facie position, is that the court should apply an objective test to the issue of market value."

212.   In other words the plaintiff was permitted to claim the objective market value of the services provided by him. 

213.   In the present case, as noted above, there is evidence that the plaintiff provided services to the defendants; the plaintiff therefore has some chance of establishing at trial that he provided such services.  This chance is not fanciful. 

214.   There is also clearly an issue as whether such services, if provided, were of benefit.  The plaintiff claims he provided a significant value; the first defendant his answer at paragraph 18 above contends that this was because the plaintiff wished to purchase Hotel La Tour, and any steps taken were at the plaintiff's risk and for his own account.  He also argues they added no value to the development of the Hotel. 

215.   The precise extent of what the plaintiff was doing and how far this benefitted the development of Hotel La Tour are not matters that can be resolved on a summary judgment application. 

216.   However, what can be resolved is what category of loss can form the basis of such a claim.  What cannot be claimed is any uplift in value to Hotel La Tour as a result any of services found to have been provided by the plaintiff.  This is clear from Cobbe v Yeoman's Row Management Limited & Anor [2008] 1 WLR 1752.  In Cobbe, a claim for the imposition of a constructive trust over an interest in a development property failed, even though the value of the property concerned had been increased by the grant of planning permission which had been obtained by the claimant.  On this basis it was straightforward for the House of Lords to conclude that the defendant company had been enriched at the expense of the claimant and unjustly enriched.  In discussing the extent of the unjust enrichment Lord Scott at paragraph 41 stated:-

"It is not, in my opinion, the difference in market value between the property without the planning permission and the property with it. The planning permission did not create the development potential of the property; it unlocked it. The defendant company was unjustly enriched because it obtained the value of Mr Cobbe's services without having to pay for them."

217.   Cobbe was cited with approval in Benedetti in paragraph 16 set out above. 

218.   Accordingly, the plaintiff in the present case in bringing a claim of unjust enrichment cannot claim a share of any uplift in value of Hotel La Tour assuming in his favour that his actions produced such an uplift.  All he is entitled to claim is the objective market value for his services together with any expenses he has actually incurred. 

219.   The Amicus drew to my attention that the first defendant's rejection of consultancy services offered by the plaintiff by his email of 24^th November, 2011, (see paragraphs 119 to 122 above) was inconsistent with a claim in unjust enrichment.  She also suggested that a similar conclusion could be drawn from the plaintiff's email of 6^th November, 2012, (see paragraph 145). 

220.   This led the Amicus at paragraph 41 of her skeleton to suggest that the plaintiff had "gifted his services over a 14 month period" to the first defendant, leading to the conclusion that it was not open to someone to give another a gift and then subsequently seek to charge for that gift once the gift was perfected. 

221.   It is right to remind myself that this a summary judgment, alternatively a strike out application.  While the plaintiff may face difficulties by reference to the documents identified by the Amicus, the question I have to consider whether there is some degree of conviction for such a claim.  In my judgment, unlike in respect of the plaintiff's claim that he reached an agreement with the first defendant in June 2011, a claim in unjust enrichment for the market value of the services provided is one that can only be determined at trial.  It is not a claim that is either false or fanciful even if it is not straightforward to prove.  Despite the observations of the Amicus, I am not therefore prepared to dismiss the plaintiff's claim based on unjust enrichment in the way I have described it.  What the plaintiff cannot claim however is any uplift in value but only the objective market value of services found to have been provided. 

222.   For sake of completeness I should observe that nothing in this decision should prevent the defendants from arguing that the value of any services provided, if a claim of unjust enrichment is established, is less than the market value of those services.  This is an addition to arguments raised by the defendants' answer that the plaintiff was working at his own risk and for his own account and therefore there was no unjust enrichment. 

223.   At present however the quantum of any such claim is unparticularised.  The order of justice simply refers to a claim for £190,000 for costs and expenses.  This has still not been particularised despite the questions posed in my emails of 14^th February, 2017, at paragraph 4 and 11^th April, 2017. 

224.   I note in relation to this issue that, in the first consultancy proposal suggested by the plaintiff on 24^th November, 2011, he proposed an hourly rate of £120 or a daily rate of £900.  His proposal also set out total costs of £30,000 for consultancy fees and £160,000 for demolition works.  This appears to be where the figure of £190,000 claim has come from. 

225.   However, by reference to Benedetti the plaintiff is only entitled to a market rate plus expenses.  At present the plaintiff's claim does not set out what rate is claimed.  Once I have considered the remainder of the issues between the parties I set out how this part of the plaintiff's claim should progress. 

Losses in respect of the development by Home Farm

226.    The order of justice and the amended order of justice also claim for losses based on the first defendant persuading Investec to commence foreclosure proceedings against Home Farm and taking steps "with the deliberate intent to intimidate and scupper the Home Farm purchase offers". 

227.   In relation to this claim, there is clearly a factual dispute about what happened in October and November 2012 onwards in relation to prospective sales of units owned by Home Farm and what statements were made by the first defendant and to whom in relation to sales of units at the development at Home Farm. 

228.   For the purposes of this application I consider that the factual matters complained of are capable of founding an action in damages, based on the tort of causing loss by unlawful means.  In OBG Limited & Ors v Allan & Ors [2007] UKHL 21 at paragraph 47 the tort was described as follows:-

"The essence of the tort therefore appears to be (a) a wrongful interference with the actions of a third party in which the claimant has an economic interest and (b) an intention thereby to cause loss to the claimant."

229.   The allegations in the present proceedings are that the first defendant interfered by making statements to Investec to induce Investec to foreclose on its loans to Home Farm.  The first defendant is also alleged to have made statements to Thompsons Estate Agents and Broadlands Estate Agents to scupper offers being made. 

230.   I should add that the amended order of justice still lacks particularity in relation to the statements said to have been made by the first defendant referred to at paragraph 53(3) of the amended order of justice to Miss O'Brien of Broadlands because as noted at to paragraph 60 of the security for costs judgment the evidence of Ms O'Brien states that the purchasers withdrew due to financial uncertainties surrounding Home Farm and not necessarily because of the actions of the first defendant.  The plaintiff's evidence does not address this issue. 

231.   The plaintiff's evidence also does not address why losses can be claimed in respect of the sale of unit 1 of the development because the sale occurred some three months before the breakdown in the relationship between the plaintiff and the first defendant. 

232.   However it is possible to infer from the plaintiff's evidence, that properties at Home Farm (at least units 2 and 5) were sold at a lower prices because effectively a foreclosure situation existed following on from statements made by the first defendant. 

233.   Other than in respect of unit 1 of the development at Home Farm where I do not see how a claim can be made because unit 1 was sold prior any breakdown in relations, I am otherwise satisfied that the factual matters underpinning a claim based on the tort of causing loss by unlawful means cannot be resolved on a summary judgment application. 

234.   However, I am not satisfied that the other way the plaintiff put its claim which is based on fraudulent misrepresentation is one that that can proceed to trial.  A claim based on fraudulent misrepresentation is ultimately a claim to set aside a contract (see Sutton v Insurance Corporation of the Channel Island [2011] JLR 80).  However in this case any statements made in 2012 did not lead the plaintiff and the first defendant to enter into any agreement.  They were long after loans were made by the first defendant to Home Farm in late 2011 and early 2012.  Rather the claim is one that is capable of falling within the tort of causing loss by unlawful means as noted above. 

235.   To the extent that the claim in fraudulent misrepresentation is intended to be an allegation of fraud, it is not open to the plaintiff to bring such a claim based on the material before me.  What is meant by fraud was considered in Booth v Zenith [2014] JRC 231 where at paragraph 17 fraud was defined as follows:-

"...in summary as a defendant deliberately making a false representation with the intention of causing thereby and with the result in fact of causing thereby actual prejudice to someone, and an actual benefit to himself or somebody else."

236.   The problem with an allegation in fraud is that the facts set out in the order of justice assuming the first defendant deliberately made false representations to cause prejudice to the plaintiff, and also actually caused prejudice to the plaintiff, the allegations do not show any benefit to the first defendant.  Ultimately the first defendant neither obtained ownership of Home Farm or any of the properties.  He simply obtained repayment of monies lent by him which was always secured over properties owned by Home Farm.  By contrast to succeed on a claim based on the tort of causing loss by unlawful means, it is not necessary for the plaintiff to show any benefit to the first defendant but only loss to the plaintiff. 

237.   However, the real difficulty with this part of the plaintiff's claim is that whether or not my reasoning on a claim in fraudulent misrepresentation or based on fraud is correct and such claims can be pursued in addition to the plaintiff relying on the tort of causing loss by unlawful means, these are not claims the plaintiff is entitled to bring.  This is because all such claims belong to Home Farm.  Home Farm owned the properties at all material times.  Any loss caused by unlawful means was therefore that of Home Farm.  Any loss due to fraud or fraudulent misrepresentation is that of Home Farm.  The additional conveyancing fees claimed were those of Home Farm in respect of last sales.  Similarly the default interest claimed of £49,000 was claimed against Home Farm by Investec.  The total sum of £282,500 which the plaintiff seeks to set off against the value of works provided to Hotel La Tour was money lent to Home Farm. 

238.   At no point has the plaintiff justified why he is entitled to claim such losses beyond saying they are in breach of the agreement reached in June 2011.  However, I have found that there is no issue to be tried that such an agreement was concluded.  The losses claimed in respect of sales of units of Home Farm are therefore claims belonging to Home Farm.  They are not claims vested in the plaintiff. 

239.   The plaintiff's position appears to be that he was a shareholder in Home Farm (although there is some doubt as to whether he was the sole owner at all times (see paragraph 6 of Home Farm Developments Limited & Ors v Le Sueur [2014] JRC 079)).  However, it is not necessary to resolve this issue on this application because, whether the plaintiff was a shareholder or the sole shareholder of Home Farm, in either case he is not entitled to bring a claim vested in Home Farm.  This is clear from Freeman v Ansbacher Trustees (Jersey) Limited [2009] JLR 001 where at paragraph 76 the Court approved the judgment of Johnson v Gore-Wood & Co [2002] 2 AC 1 where Lord Millet stated:-

"Accordingly, where a company suffers loss as a result of an actionable wrong done to it, the cause of action is vested in the company and the company alone can sue.  No action lies at the suit of a shareholder suing as such, though exceptionally he may be permitted to bring a derivative action in right of the company and recover damages on its behalf......."

240.   No grounds have been set out for a derivative action meaning that only Home Farm could pursue a claim for causing loss by lawful means, not the plaintiff. 

241.   In the absence of any argument or evidence to contrary, the losses claimed in respect of sales of units 1 (assuming such a claim can be made) , 2 and 5 are claims vested in Home Farm and not the plaintiff and accordingly are struck out as showing no reasonable cause of action.  In the alternative it would also be an abuse of process following the principles laid down by the Court of Appeal in Home Farm Developments v Le Sueur to allow such an issue to proceed to trial.  In the further alternative there is no issue to be determined between the plaintiff and the defendants in respect of sales of the units owned by Home Farm and consequential losses because any claim belongs to Home Farm and so summary judgment is also given in favour of the defendants. 

242.   I accept it is open to me to give permission to join Home Farm as a second plaintiff rather than strike out or give summary judgment in respect of the plaintiff's claims.  However I am not prepared to make such an order because Home Farm does not exist as a legal entity and has not existed since 2015.  Nor has the plaintiff attempted to reinstate Home Farm or apply for it to be joined as a co-plaintiff.  This is the despite the fact that the plaintiff has been on notice since 2015 that the losses claimed are not ones that the plaintiff can pursue (see paragraph 47 of the security for costs judgment).  The plaintiff was also put on notice on three occasions this year that I wished to be addressed on why these losses were those of the plaintiff rather than Home Farm.   Yet he has not done so.   I am not therefore prepared to grant any further indulgence to the plaintiff. 

243.   Even if Home Farm did exist, or was reinstated, in addition the events relating to the claims that it could bring occurred more than three years ago.  A claim for causing loss by unlawful means is a claim in tort (see OBG Limited & Ors v Allan & Ors).  Accordingly, as more than three years has elapsed since the matters giving rise to such a claim took place, any tortious claim vested in Home Farm is arguably time barred and so leave to amend to add Home Farm as a second plaintiff should not be granted for such a claim (see Bagus Investments Limited v Kastening [2010] JLR 355.  For the sake of completeness, in stating that the relevant events occurred more than three years ago I have assumed in the plaintiff's favour that the 10 month period for which the claims were held by me to have been settled should not be taken into account in calculating the three year time period for limitation purposes. 

The defendants' counterclaim

244.   Insofar as the plaintiff seeks to have the defendants' counterclaim dismissed, I can deal with this relatively briefly.  The counterclaim is pleaded at paragraphs 41 to 46 of the defendants' answer and counterclaim.  The counterclaim is that the first and second defendants lent the plaintiff the further sum of £95,856.  The dispute between the parties is whether this sum was lent to Home Farm or to the plaintiff.  The defendants argue that the plaintiff signed an acknowledgement of debt.  The plaintiff argues that this was signed on behalf of Home Farm.  He also points out that the defendants counterclaim is inconsistent with proceedings commenced by the second defendant in 2013. 

245.   In my judgment there is a real issue to be tried as to whether these loans were made to Home Farm on unsecured basis or to the plaintiff personally.  Again, this is not a matter which I can resolve on a summary judgment application.  This issue can only be resolved by the court by the plaintiff and the first defendant giving evidence and being questioned on all relevant documents relating to the monies advanced. 

246.   I should add that when a draft of the judgment was handed down, the plaintiff suggested that no date had been fixed for his summary judgment summons.  I disagree as I gave permission on 23^rd May, 2017, for an amended summons to be filed which duly occurred on 26^th May, 2017, (see paragraphs 59 and 61 above).  The plaintiff also sought to appeal this order (paragraph 62) which appeal he later withdrew (paragraph 68). 

Strike Out

247.   I should also deal with the defendants' applications to strike out strike out the plaintiff's claim.  In respect of these applications, my conclusions are as follows:-

(i)        Insofar as the defendants allege that the order of justice does not show a reasonable cause of action, I would not have been prepared to strike out the application relying on this ground.  This is because I am required to assume that the factual matters set out in the order of justice are true.  The problem with the order of justice, assuming the matters in it are true is not that it does not disclose a reasonable cause of action based on such an assumption.  Rather the problem is that there are contemporaneous documents as set out above inconsistent with the order of justice and the amended order of justice. 

(ii)       The existence of these contemporaneous documents and the lack of any other documents showing certainty as to the terms agreed in June 2011 means that in the alternative I would have struck out the order of justice as an abuse of process as that term was explained by the Court of Appeal in Home Farm Developments Limited v Le Sueur.  To allow the allegation that the plaintiff reached an agreement with the defendants in June 2011 to continue to trial is an abuse of process because I am satisfied the inevitable result would be that the claim would fail.  I express this view for the same reasons that I consider that the defendants are entitled to summary judgment on the issue of whether or not the plaintiff and the first defendant reached an agreement in June 2011. 

(iii)      In relation to the claim in unjust enrichment, I also strike out the claim for an uplift in value as disclosing no reasonable cause of action because there is also no basis in law for such a claim following the Benedetti and Cobbe judgments. 

(iv)      In relation to the counterclaim, this should not be struck out because it is not plain and obvious that any of the grounds set out in Rule 6/13 apply to such a counterclaim.  This for the same reasons that it is not appropriate to grant summary judgment to dismiss the counterclaim. 

248.   Finally, in respect of the strike out, I address the alternative ground raised which is effectively that the plaintiff's conduct of this dispute litigation is vexatious and accordingly the claims should be struck out on this basis.  In my judgment while the plaintiff's conduct of litigation by reference to the procedural chronology set out above, leaves a lot to be desired, it is a high threshold to strike out a claim for the way in which a case has been conducted.  In my judgment that threshold has not been met.  What I do wish to make clear however is that in future is that if any procedural directions given are not met without appropriate justification then appropriate sanctions will be imposed.  This could include striking out the entirety of the claim if similar behaviour to that described in this judgment continues in the future in the context of how the case has been progressed to date.  The focus of the parties in particular the plaintiff should be on taking all necessary steps to prepare what remains of this case for trial and complying with procedural directions set to enable this to happen. 

Detailed reasons for certain procedural decisions

249.   In this part of the judgment I deal with the following procedural decisions:-

(i)        Why I was not prepared to exclude evidence filed late by the defendants after 19^th May, 2017;

(ii)       Why I was not prepared to order cross-examination; and

(iii)      Why I was not prepared to hear the plaintiff's stay application before determining the application to strike out and summary judgment on the applications to amend. 

250.   In relation to why I was not prepared to exclude evidence filed by the defendants over the weekend after 19^th May, 2017, it is a significant step to exclude evidence.  This should only be a last resort.  Furthermore the evidence filed in large part was either argument or evidence previous filed in 2015.  There was nothing of substance or new in the evidence that was going to take the plaintiff by surprise in respect of the main issues I had to determine. 

251.   In relation to cross-examination, to order cross-examination would have fallen into the trap of conducting a mini-trial which is not the way to approach either a strike out or summary judgment applications by reference to the legal principles set out earlier in this judgment.  This applies to the affidavits of the plaintiff and the first defendant in particular.  Furthermore, the affidavit of Mr Artus was of no real relevance to whether or not the plaintiff's claims should be allowed to proceed to trial or not.  I reached the same view in respect of the evidence of Mr Knowles.  Both these affidavits primarily attacked the credit of the plaintiff which is not a matter that can be determined either on a strike out or a summary judgment application.  In relation to the affidavit of Mr Robertson, the Royal Court had already ruled in its judgment reported at [2016] JRC 167 that the issue of whether or not the parties had settled their differences including the evidence of Mr Robertson was a matter for trial.  In light of this conclusion it would not have been appropriate for cross-examination of Mr Robertson to take place.  Mr Robertson's evidence was also not relevant to the issues I had to decide. 

252.   Finally, in relation to why I was not prepared to hear the plaintiff's stay application before determining the application to strike out and summary judgment, as noted above when I considered the plaintiff's application for judicial review and the affidavit in support, it was clear that these overlapped with the affidavits filed by the defendants in relation to their application for summary judgment and a strike out.  I could not determine one in advance of the other.  Furthermore, it would be wrong in principle to stay a case pending an application for judicial review if in fact there was no issue to be tried.  Ultimately the issue fell away because the plaintiff elected not to pursue his application for a stay. 

The way forward

253.   In light of this judgment what remains of these proceedings are:-

(i)        A claim by the plaintiff in unjust enrichment for the market value of the services provided to him, but not any uplift to Hotel La Tour; and

(ii)       A counterclaim by the first and second defendants against the plaintiff for loans said to have been made to the plaintiff. 

254.   As to how to progress the action if the plaintiff wishes to progress the claim in unjust enrichment that I have allowed him to pursue, I consider he should start again by preparing a fresh order of justice limited to this claim; this is adopting the approach set out in Papadimitriou & Anor v Quorum Management Limited & Anor [2004] JRC 142 at paragraph 36. 

255.   The plaintiff will therefore have 28 days from the date of the judgment has been handed down to reformulate an order of justice and agree directions.  In the absence of any reformulated order of justice or directions being agreed within 28 days the plaintiff shall within 7 days after expiry of the 28 days issue an application to amend his order of justice with the reformulated draft annexed and directions.  If these time limits are not met then the entirety of the plaintiff's claim in unjust enrichment will be struck out without further order. 

256.   As far as the first and second defendants' counterclaim is concerned, directions will be given to enable the counterclaim to be determined once the position in respect of a claim by the plaintiff based on unjust enrichment as permitted by this judgment is clear.  

257.   In relation to the withdrawal by the plaintiff of his application for a stay of these proceedings pending application for judicial review, subject to hearing further from the parties when this judgment is handed down, I propose that :-

(i)        no further applications should be brought for a stay except with leave of the court; and

(ii)       costs orders should be made against the plaintiff either on the standard basis or the indemnity basis. 

Conclusion

258.   In conclusion, for the reasons set out in this judgment the defendants' application for summary judgment is granted in respect of:-

(i)        The plaintiff's claim that he reached agreement with the first defendant in June 2011; and

(ii)       Losses claimed in respect of the development of Home Farm which the plaintiff cannot pursue. 

259.   In the alternative the plaintiff's claim that he reached agreement with the first defendant in June 2011 is struck out as an abuse of process. 

260.   The plaintiff's application to strike out the defendant's counterclaim or for summary judgment in respect of the defendant's counterclaim is refused. 

261.   The plaintiff is permitted to bring a claim in unjust enrichment for the objective market value of services rendered, save that no uplift in value may be claimed and provided such a claim is pleaded within 28 days in accordance with the directions contained in this judgment. 

Authorities

Holmes-v-Lingard, HJL Holdings and Angel Fish [2015] JRC 172.

Holmes-v-Lingard and others [2015] JRC 141.

Home Farm Development Limited v HJL Holdings & Lingard [2013] JRC 160.

Home Farm Dev. Ltd-v-HJL Holdings and Lingard [2014] JRC 209.

Holmes-v-Lingard and Another [2015] JRC 226.

Holmes-v-Lingard and Another [2016] JRC 198A.

Holmes-v-Lingard and Another [2017] JRC 012.

Royal Court Rules 2004.

In the Matter of II [2015] JRC 194.

Home Farm Developments Limited v Le Sueur [2015] JCA 242.

MacFirbhisigh and Ching v CI Trustees and Others [2014] (1) JLR 244.

Cunningham v Cunningham [2009] JLR 227.

Royal Court (Amendment No.20) Rules 2017.

White Book 2017.

Toothill v HSBC Bank Plc [2008] JLR 77.

Amy v Amy [2011] JLR 603.

Swain v Hillman [2001] 1 All ER 91.

ED&F Man Liquid Products Ltd v Patel & Anor [2003] CP Rep 51.

Reveille Independent LLC v Anotech International UK Limited [2016] EWCA Civ 443.

RTS Flexible Systems Ltd v. Molkerei Alois Muller Gmbh [2010] UK SC 14.

Selby v Romeril [1996] JLR 210.

Sutton v ICCI [2011] JRC 027.

Benedetti v Sawiris [2014] AC 938.

Cobbe v Yeoman's Row Management Limited & Anor [2008] 1 WLR 1752.

OBG Limited & Ors v Allan & Ors [2007] UKHL 21.

Sutton v Insurance Corporation of the Channel Island [2011] JLR 80.

Home Farm Developments Limited & Ors v Le Sueur [2014] JRC 079.

Freeman v Ansbacher Trustees (Jersey) Limited [2009] JLR 001.

Johnson v Gore-Wood & Co [2002] 2 AC 1.

Bagus Investments Limited v Kastening [2010] JLR 355.