London & Regional Investments Ltd v TBI Plc & Anor

Permission to appeal should be granted where the proposed appeal has a real prospect of success. The existence of substantial difficulties in proving contractual, equitable or estoppel claims does not, by itself, justify striking out the claim or entering summary judgment. Where several claims arise from a common factual background, permission should ordinarily be granted generally rather than confined to selected issues, unless there is good reason to limit it.

The claimant agreed to purchase a property portfolio from TBI Plc. The agreement referred to a proposed joint venture concerning land adjoining Belfast and Cardiff airports, and an annexed document containing heads of terms was headed Subject to Contract.

The claimant later alleged breach of contract, constructive trust and estoppel after TBI declined to proceed with the joint venture. The Deputy High Court judge entered summary judgment for the defendants and dismissed the claimant’s claim. Permission to appeal was initially refused on paper. The claimant renewed its application before the Court of Appeal, principally relying on the equitable claim and alleging unconscionable conduct.

1. Permission granted. Lord Justice Jonathan Parker granted permission to appeal, with Lord Justice Aldous agreeing. The claimant had shown arguable grounds and a real prospect that it might establish at trial an entitlement to equitable relief.
2. The judge’s conclusions disclosed significant obstacles. These included the Subject to Contract heading, the alleged uncertainty of the heads of terms, and the judge’s view that the contractual provision was no more than an agreement to agree. Those difficulties did not necessarily justify striking out the claim, which was in substance the effect of the order under challenge.
3. For the purpose of the permission application, the factual allegations were assumed to be true. On that basis, it was not inconceivable that the alleged payment of more than the claimant considered appropriate, in the expectation of a joint venture known to or induced by the defendants, could support a finding of unconscionable behaviour warranting equitable intervention.
4. Permission was not limited to the equitable issue. Given the nature of the claims and their common factual background, it was inappropriate to restrict permission to particular issues.

The costs of the application were ordered to be costs in the appeal.

• Court of Appeal (Civil Division): Permission to appeal granted against the order of Mr Peter Smith QC, sitting as a deputy High Court judge, dated 9 March 2001. The costs of the application were made costs in the appeal.