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CANAL AND RIVER TRUST Defendant
CLAIMANT’S SKELETON ARGUMENT
This skeleton argument is prepared for use at an application to strike out my claim for Specific Performance in the above claim, on various grounds, and/or for summary judgment. 1. My submission is that it is inappropriate to deal with this at short notice and prior to full disclosure, but my understanding is that this hearing will be looking at broad principles only.
2. In order to understand the nature of the subject contract, it is necessary to relate how and why it came about.
3. Following certain social problems with bankside premises owing to the original gate and fencing having become derelict, I sought to protect them better with replacements, and helped Brentford Yacht & Boat Co [BYB] apply for first registration of what has become known in ensuing cases as the “Blue Land”.
4. An objection was raised by British Waterways [BW], who claimed that all the land belonged to them. By way of support for their claim, they produced a copy
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of a portion of their “Terrier Plan”, on which an area approximating to the “Blue Land” was marked by coloured hatching. 5. The “Blue Land” applied for can be identified from the two-colour area below, from the Land Registry produced plan -
6. On 28 October 2005 solicitors Wright Hassel wrote to the Chief Registrar at Swansea: “Further to our letter dated 27 October 2005, we also enclose our client’s Terrier Plan, which indicates land owned by British Waterways Board. The land hatched blue is the land in question and this is further evidence within our client’s records that they own this land.” The pertinent part of that plan can be seen below at the same scale. There are differences relating to changing contours and because the modern bridge has replaced an earlier one demolished in the early sixties.
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7. On examining this closely, there appeared to me to be anomalies that raised questions as to the validity of this marking, and I said as much to the Registrar. Years later in 2011, as a result of disclosures in different litigation, I was sent a very poor copy of the whole of this Terrier Map, and despite the poor reproduction, it was nonetheless clear enough that no such hatching was on the original, and that the copy that had been produced for the Registrar had been a copy altered for the purpose.
8. Comparing the two versions side by side makes this obvious:
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Altered copy –
9. In the course of checking out the paperwork for referral to the Adjudicator, once it had become clear that negotiations were not to be continued with, it is apparent that Wright Hassel became aware that my suspicions had been wellfounded, and that they quite properly withdrew from the case, not wishing to be associated with a client prepared to use them in that fashion.
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10. TLT Solicitors of Bristol took over, and filed a Statement of Case for BW with reference to Adjudicator Case Reference: REF/2006/1044. It began –
11. The Terrier Plan was included in the accompanying “Respondent’s List of Documents” –
12. Following the filing of Witness Statements in late December 2006, and my exhibited letters from others casting doubt on the authenticity of the Terrier
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Plan, it would then appear that TLT solicitors also, in checking the documentation, became aware of the forgery and sought to remedy the situation rather than withdraw as did Wright Hassel – perhaps because TLT had by then been responsible for filing both document and reliant argument.
13. This would provide the only satisfactory explanation for the ensuing offer to withdraw the objection and allow BYB to be registered as owner. On the face of it, the money saved in not defending the case in the Adjudicator’s court would have been minimal, as indeed my costs would have been.
14. Consequently, TLT wrote to me on 4 April 2007, saying: “Our client wishes to settle this long running matter and thereby save the cost of attending the hearing on 25 September 2007. Our client is willing to withdraw its objection subject to no order being made on the question of costs. Please confirm, within 14 days of the date of this letter, whether you are willing to conclude this matter on this basis.”
15. I replied by return, stating: “I confirm that I am willing to conclude this matter on the basis suggested.”
16. My having emailed the Adjudicator informing him of this agreement and asking for directions, TLT responded to the effect that BW had unilaterally varied the terms of the offer, stating that it “is subject to the Board’s approval.”
17. I shall return to the following exchanges later, but for now will note that in September that year I received a letter from yet another firm of solicitors [Howard Kennedy] who had been representing Town Centre developers Ballymore, in another land dispute over the adjacent premises. Because they wished to have the “Blue Land” to add to the adjacent parcels, they were willing to fund their own solicitors to take over from TLT, and combine both disputes in a joint High Court action, with BW joined as claimants with Geronimo Ltd [the holding company for Ballymore’s Brentford property].
18. Once again, following disclosure of the documentation, Ballymore and/or Howard Kennedy became anxious to settle the matter, which resulted in a Tomlin Order compromising the claims, with Ballymore agreeing to forgo any claim on the “Blue Land”. Howard Kennedy told me that they had received no
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instructions from BW regarding their part of the dispute regarding the “Blue Land”, at the time the Order was sealed.
19. Some time later BW finally found another firm of solicitors who were prepared to represent them, making it obvious that Howard Kennedy themselves had not been prepared to continue doing so.
20. At the Geronimo trial BW wisely left the Terrier Plan out from their argument, and as I had then no proof of my suspicions, I had nothing on which I could rely to cast doubt on the veracity of BW and their witnesses.
21. I note that according to Ms Wright of Shoosmiths in the Disclosure report, that they have copies of the historic paper files of TLT Solicitors, and they certainly had copies of the Adjudicator trial bundle. The failure to present BW’s case leading with the only document that purported to demonstrate ownership of the whole, is, as a consequence, puzzling, unless they came to learn the truth of it.
22. In the event, because they did not advance the document and related argument, they were unable to convince the judge that they could show any title to the portion described in that trial as “the bridge land”. It can only be that Shoosmiths recognised the impropriety of relying on this document, albeit knowledge of their client’s criminality in having sought to do so previously, did not, unlike with their predecessors, put them off continuing to represent them.
23. This remains the case today. Having finally received proof that the hatching was not present on the original Terrier plan, I forwarded copies of both original and amended versions to the claimant against them in a separate action, which was alleging fraudulent registration claims.
24. It is notable that the exhibition of the documentation elicited a swift response from Shoosmiths [who were representing BW in that other matter also]. It is the nature of the response that is interesting; the bulk of the Witness Statement by Nicholas Shepherd, dated 11 November 2011, was devoted to arguing only why the fact of the forgery ought not to be considered by the court: because the area it related to had been withdrawn from the original application, so that it formed no part of the subsequently registered land in that dispute.
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25. Only at the end did Mr Shepherd admit:
“Although it does not affect the relevance of the document it is right to record, however, that in so far as Wright Hassel suggested in their letter to the Chief Land Registrar (exhibited to Mr DeVere’s statement), which letter was sent in respect of the dispute relating to Brentford Yacht & Boat Company as distinct from being a part of BWB’s application for registration resulting in the decision challenged, that the Terrier Plan was evidence of BWB’s ownership of the area hatched blue that was wrong.”
26. Notwithstanding their awareness of their client’s contempt of court in producing a forged document and presenting it in court proceedings [not just in a letter to the Registrar], presumably fooling the previous solicitor firms to begin with, Shoosmiths remain happy to continue representing them.
27. Having clarified just why TLT Solicitors had persuaded BW to settle by way of the offer made, for so minimal a consideration, I shall deal with the specific arguments Shoosmiths now present as to why my claim should be struck out, and their client continue to enjoy the fruits of their breach of contract.
LACK OF STANDING
28. The primary argument presented is that I have no standing to bring the action at all in the first place, so that the case is an abuse of process.
29. The simplest answer is to read the letter forming the offer. It was addressed to me personally.
30. My being an officer of the company gave me official standing with BYB, with the concomitant ability to perform my end of the bargain, but I had interested myself in the claim from the beginning, as TLT knew from the correspondence. They recognised further that I was the one with the greatest personal interest and influence in pursuing the matter, which is why they corresponded with me instead of BYB’s official officer of record on the application.
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31. It is immaterial, in fact, whether I was or was not an officer of the company; the person who was asked to agree with and make happen the agreement was me, as someone recognised as capable [for whatever reason] of having the matter concluded as desired. I was the one who responded with acceptance.
32. Any attempt to further finesse the capacity of myself vis-a-vis the company is a hopeless reliance on a tenuous technicality. For whatever reason, the offer was made to me and I accepted it. It is dishonourable, apart from anything else, to seek to refine the definition of the parties, in order to escape the consequence of the undoubted [and irrefutable] breach of the contract.
33. BYB was the beneficiary subject of the agreement, and naturally I would have benefitted also, by the assurance of a place to keep mooring my boat regardless of what happened with the fight over the main boatyard.
34. I have a practical vested interest in the company being restored with title to the land because fulfilment of the contract would ensure stability of my position as a resident of the property free from more harassment over eviction threats.
35. I have, besides, power of attorney to act for the shareholder which gives me a right to act in the interest of the company owner. I am therefore entitled to claim from the liquidator a debt owed to the company, regardless of whether the liquidator is prepared to risk litigation himself in order to pursue that debt.
MUTUAL VOIDING OF CONTRACT
36. As has been observed by the Defendant, TLT Solicitors later wrote to the Adjudicator asserting that the offer made to me was not unencumbered with conditions more than the simple abstention from seeking costs. The assertion was made that a unilateral amendment of the contract imposed a further condition not present in the initial letter, to the effect that it was reliant upon approval by the Board.
37. Insofar as the BYB director of the time wrote in some impatience regarding the fulfilment of the amended version, I submit that first, she was a beneficiary of the contract not the person with whom it had been made; secondly the comment was made in respect of a unilaterally amended contract after
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fulfilment of my part, not that which had been agreed with me; thirdly that those amended terms were, in any event, repudiated by the Chairman of the Board of BW, so that at all times following the TLT letter to the Adjudicator on which the BYB director had placed reliance, such comments were made in respect of a contract which did not exist – on the authority of the person best placed to say so – and could not lawfully have been modified after the event.
38. The only straightforward offer and acceptance was that in the initial exchange between me and BW via their solicitor of record. I submit that I upheld my end of the bargain once I wrote to the Adjudicator memorialising the agreement. The contract was neither voidable nor amendable in law, after that fact.
39. It cannot be said that the offer was subject to approval of BWB, as it had been BWB who had authorised the offer in the first place, having instructed the solicitors to make the offer for the reasons given. Neither could it be said to have been made subject to approval by the Board of British Waterways, which latter version as understood, was specifically repudiated by the Chair of that Board, stating that it was a matter for the executive only.
40. To establish the point, I quote from the email sent to me by Mr Hales [Chairman of the Board] on Friday 24 August 2007: “Dear Mr Moore . . . There is clearly a dispute between BW and yourself on a number of property, statutory and legal issues. These are matters for the Executive to deal with at present. The Board of BW has not been directly involved and neither do I think it should be. The reference by TLT Solicitors was I suspect a reference to the organisation, British Waterways Board, rather than the Board of British Waterways.” [my underling, Mr Hales’ bold]
41. The organisation British Waterways Board had already authorised an offer to me which I accepted and had complied with. Ms Olcay’s response had been to an amended version of the contract, the existence of which the Chair of the Board denied.
42. The reputed acceptance of a modified contract denied as being made was, in any event, not made by the immediate party to the contract, only the beneficiary.
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43. It is claimed that permitting the proceedings in ‘Geronimo’ to continue leads to claim preclusion now, on grounds of re-litigation, the judgment having been that BYB had not acquired the land through adverse possession by that stage.
44. While it is correct, as I now understand, that there might have been an option to make a claim of estoppel against BW continuing the ’Geronimo’ action based on this contract, I had not understood that at the time, and the fact remains that the action and subsequent decision as to BW’s entitlement to any of the land claimed, has no adverse effect upon the contract, nor does any finding as to BYB’s failure to prove registerable title.
45. The claim by BW embraced the whole of the “Blue Land”, as particularly evidenced by the reliance on the Terrier Plan. The offer to withdraw objection to BYB’s registration as owner included no admission that their assertion of title to the whole of that land was incorrect – the offer was stated as simply being based on the wish to save the money involved in attendance upon the scheduled hearing before the Adjudicator in September 2007.
46. That hearing they never needed to attend [either as scheduled or on any future occasion] nor did they. In the first place I had memorialised the agreement by reference to the Adjudicaor, so upholding my end of the bargain such that no necessity to attend existed thereafter. I later personally withdrew the claim, upon the Adjudicator’s refusal of my substitution as claimant for part of that original claim. BW profited from the agreement on my part that the hearing be vacated – for whatever reason.
47. BW had claimed all of the land involved to be theirs. Even had the ‘Geronimo’ trial resulted in an award of title to all of the “Blue Land”, therefore, that would not negate the offer to allow registration to BYB – it would merely have confirmed that BW were so much the more entitled to allow that registration.
48. That situation still obtains. CaRT still claim all of the land, and they have a finding as to their entitlement to part of it. The instant claim does not involve re-litigation of the ‘Geronimo’ matters, the findings in which can have no adverse affect upon the ability of myself to claim that BW should be held to the agreement to allow registration of that property to BYB; it simply emphasises their standing to authorise such registration.
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49. It is argued that it is too late to apply for Specific Performance at this time, so that the claim must fail on those grounds.
50. My position is that I acted promptly the moment it had been made apparent to me that this legal recourse was open to me.
51. Knowing nothing of contract law it had never occurred to me to view BW’s actions as anything other than simply dishonourable behaviour of a sort I had come to expect; I had never realised that a mechanism existed of actually holding them to the terms of their agreement.
52. The dawning of knowledge as to possible recourse to the courts came only after reading through Mr Stoner’s Skeleton Argument in the main trial of longrunning proceedings on the extent of BW’s statutory powers, the main trial concluding only in February 2012.
53. Referring to the TLT correspondence exhibited, Mr Stoner wrote:
[paragraph 55] “The correspondence referred to above appears clearly to show that an offer was made to withdraw BW’s objection to registration, which offer was accepted.” [paragraph 56] “The author and those instructing him were shocked to see this correspondence, not least because simply no reference was made to the same at the trial . . . Furthermore the relevant personnel at BW involved in the Geronimo action were simply unaware that, arguably, an offer had been made and accepted.”
54. The terminology being foreign to me, my attention was only drawn to these paragraphs by reason of the word “shocked”, because I could not understand what there was to be shocked about, thinking perhaps they had missed seeing it earlier, and were making some point about non-disclosure or something. It seemed out of place, and an unusually extreme vocabulary to employ.
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55. Only when I googled the various terms did I come to learn why Mr Stoner had employed them and what he had been shocked about – and rightly so.
56. My submission in the context of this hearing, is quite simply that on Mr Stoner’s showing [shared by those instructing him as he says], a prima facie case exists for specific performance of a valid contract between myself and CaRT.
57. That being so, it is all the more inappropriate to suggest now, that any action arising from Mr Stoner’s helpful analysis is misconceived.
58. Having learnt what I could on the subject online, I wrote to Ms Wright explaining what I had learnt; put her client on notice of what I had been considering, and suggested that they give thought to an amicable compromising of the situation.
59. For the following year I was altogether taken up with concentrating on and preparing for an appeal in the aforementioned proceedings – any failure in which would have rendered the whole land business pointless.
60. As soon as the Appeal Court proceedings had ended in my favour, in midFebruary this year, I promptly resumed communication with the defendant’s solicitors with a view to working things out by negotiation rather than litigation. I gave adequate time for that suggestion to be considered, before taking the present course of action as the last resort.
61. In the premises, the only, reasonable, delay was engendered by a desire to give every opportunity to the defendant to agree to negotiation on the issue, as required by the pre-action protocols.
62. The fact that I entered into a contract [and fulfilled my end of the bargain] in which the primary beneficiary was a party other than myself, does not remove my cause of action.
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63. The fact that I was an officer of the company does not necessitate any finding that it was only in that capacity that the contract was made with me. It was made with me because there was confidence that I could ensure compliance with the condition – as I in fact did.
64. The fact that the beneficiary remains currently ‘locked away’ does not equate to its being ‘shot dead’. Even had I not had the authority to speak up for the owner of the company [which I do], once it had been dissolved I could still even as Director only - ask for revival in order to pursue the debt owed to the company.
65. If I extracted a promise from a party to donate a sum of money to some charity provided I fulfilled some task, I would not be stopped from suing for specific performance of that contract merely because the benefit of their holding up their end would be to the charity’s immediate benefit, not my own. Even if the charity I had intended the sum to go to had folded after my task but before payment, I ought to be capable of still requiring that the sum owed be paid to an alternative charity of my choice.
66. That is as simply as I can state the case, based on a sense of natural justice and common sense.
67. The contract remains capable of fulfilment, because BYB’s status of being in liquidation is through actions of the defendant alone, who remains able therefore, to renounce the debt and agree that no reason remains why the company should not be restored to the register and awarded title to the “Blue Land” as promised.
68. There can be, therefore, no legal grounds to dismiss this case out of hand as the defendant requests. There are, besides, powerful moral grounds as well as legal, for requiring a national charity to act appropriately and honourably – and to be seen to do so.
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Nigel Moore Ridgeways Wharf, Brent Way, Brentford, Middlesex, TW8 8ES 26th October 2013
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