Day Morris Associates v Voyce & Anor

An estate agent's terms may be accepted by conduct even where the client does not sign them. The question is objective: the conduct must show final and unqualified assent, be clearly referable to the offer, and not reasonably support another interpretation in the circumstances. Where agreed terms make commission payable on unconditional exchange with a purchaser introduced by the agent, entitlement is not conditional on the client retaining control of the sale or choosing the purchaser. The Estate Agents Act 1979 requires written terms before the relevant contract. Alternative quantum meruit issues were left open.

Day Morris Associates claimed estate-agent commission from Mrs Voyce following the sale of jointly owned matrimonial property to Miss Lee, whom the agents had introduced. The agents had sent Mrs Voyce written terms on 18 July 2000. She did not sign them, but allowed the property to be marketed and prospective purchasers to view it. The county court judge found an arrangement under which commission was payable for a sale to an agent-introduced purchaser, but dismissed the claim because a later consent order left the choice of purchaser with Mr Voyce. The appeal raised the procedural fairness of that reasoning and the substantive questions whether the written terms had been accepted by conduct and whether control over the sale was necessary for commission to arise.

Disposition. Mrs Justice Black allowed the appeal. Lord Justice Sedley agreed, making the decision unanimous. The county court order dismissing the claim was set aside.

1. The procedural complaint did not lead to a fresh hearing. Day Morris accepted that the issues could be argued fully on appeal. Because the trial judge's findings were uncertain, the court allowed more than the usual latitude in addressing the facts, although the argument remained principally directed to their legal effect.
2. Section 18 of the Estate Agents Act 1979 required the agents to provide written information about their terms before the relevant estate-agency contract was entered. The letter of 18 July was therefore properly analysed as a pre-contract document, rather than as a record of an existing agreement or an acceptance of prior instructions.
3. An offer may be accepted by conduct. Acceptance requires a final and unqualified expression of assent. The test is objective. Conduct may suffice despite uncommunicated reservations, but it must be clearly referable to the offer and, in the circumstances, not reasonably capable of another interpretation. The contractual position must be judged when the conduct occurred, without hindsight based on later developments.
4. On the facts, Mrs Voyce's acquiescence in the agents' marketing activities after 18 July objectively signified acceptance of the written terms. The agents' terms made commission payable only upon unconditional exchange with an introduced purchaser and placed the risk of an unsuccessful marketing exercise on the agents. The fact that Mrs Voyce did not sign the letter did not prevent acceptance by conduct. The keys were not relied upon as acceptance because the agents already had them.
5. The trial judge had wrongly added a requirement that commission depended on Mrs Voyce retaining control of the sale or choosing the purchaser. She had voluntarily ceded control through the consent order, remained a necessary party to the transfer, and the purchaser had been introduced by the agents. The later sale to Miss Lee therefore attracted commission and the causative connection was not broken.
6. The court expressly declined to determine the alternative quantum meruit argument. It also indicated that any contract inferred from the parties' dealings might face difficulties concerning certainty of terms and compliance with section 18, including the possible need for the court's indulgence under section 18(6). The operative order substituted a judgment debt of £17,000 plus VAT, totalling £19,975, required an agreed minute of order, and refused leave to appeal to the House of Lords. The reasons elsewhere referred to £17,500 plus VAT.

1. Court of Appeal (Civil Division): On 26 February 2003, allowed the appeal, set aside the county court order and substituted a judgment debt for the agents' fees: [2003] EWCA Civ 189.
2. County court: His Honour Judge Hallgarten QC dismissed Day Morris Associates' claim for commission.