Thorne v Courtier & Ors

The scope of an expert’s remit is determined by construing the parties’ agreement. The court may determine the limits and conditions of that remit, although it will ordinarily await the expert’s decision unless exceptional circumstances make earlier intervention procedurally convenient.

General contractual language takes its meaning from its context, including the existing pleadings and prior exchanges. Issue estoppel requires an issue to have been determined. A party does not abuse the court’s process by later advancing an argument which neither arose for decision nor reasonably called for determination in earlier proceedings.

The claimant brought possession proceedings concerning agricultural land and associated buildings occupied by the defendants. The parties compromised the claim through correspondence providing for a rural chartered surveyor, acting as an expert, to determine “damages for trespass”.

Mr Recorder Hollington QC declared that the damages were limited to mesne profits for use and occupation. He also rejected arguments that observations made by Judge Griggs during an earlier settlement hearing created an issue estoppel or made the defendants’ construction an abuse of process.

The claimant appealed, challenging the court’s intervention before the expert’s assessment, the construction of the agreement, the rejection of estoppel and abuse of process, and the costs order. She also sought permission to challenge Judge Griggs’s earlier order.

1. Appeal dismissed. The Court of Appeal also dismissed the application to amend the notice of appeal to challenge Judge Griggs’s order. That order was not a final decision under paragraphs 1(2)(c) or 1(3) of the Access to Justice (Destination of Appeals) Order 2000. An appeal from it therefore lay to the High Court, and the Court of Appeal lacked jurisdiction. In any event, a challenge brought after two years and two further costly hearings was far too late.

2. The respective roles of the court and a contractual expert depend upon construction of the agreement. Where the parties have prescribed principles governing the expert’s task, the court may determine the limits of the remit and set aside a determination made outside it. The court ordinarily waits until the expert has acted, but the timing of intervention is ultimately discretionary and governed by procedural convenience.

3. The agreement did not entrust its legal construction to the rural surveyor. Determining what “damages for trespass” meant defined the scope of the expert’s instructions and was properly a matter for the court. Early determination was justified because the parties’ opposing constructions had greatly different financial consequences and a later challenge to the expert’s assessment was readily foreseeable.

4. Viewed objectively and in context, “damages for trespass” meant compensation for loss of use of the land and buildings. The pleaded claim, the previous correspondence and the contemplated use of a rural surveyor all supported that construction. There had been no pleaded or notified claim for loss arising from inability to sell the farmhouse. The Recorder therefore correctly limited recovery to mesne profits.

5. Judge Griggs had neither been asked nor required to decide the agreement’s meaning. His observation during argument merely recognised what would follow if the claimant’s construction were correct. It was not a determination and created no issue estoppel.

6. The defendants’ later reliance on their construction was not an abuse of process. The construction question had only recently emerged, was outside the issue before Judge Griggs, and had not been prepared for argument at that hearing. The Recorder’s costs order and his refusal to direct the costs judge on proportionality disclosed no error of discretion.

1. Court of Appeal (Civil Division): Dismissed the claimant’s appeal and her application to challenge Judge Griggs’s earlier order: [2011] EWCA Civ 460.

2. Exeter County Court (Mr Recorder Hollington QC): Declared that “damages for trespass” under the settlement meant mesne profits for use and occupation only. Rejected issue estoppel and abuse of process arguments, and awarded the defendants part or all of their costs for the relevant periods.

3. Exeter County Court (His Honour Judge Griggs): Held that the claimant’s offer remained capable of acceptance under Part 36 and that the proceedings had been compromised. Declared the claim settled and stayed it except for implementation of the settlement.