Proteus Property Partners Ltd v South African Property Opportunities Plc

A claimant may elect at trial to pursue damages instead of specific performance. The election may be inferred from the way the case is pleaded, presented and argued, even without a formal statement using the word “elect”. Where a specific-performance claim is not pursued or considered at trial, the court may award damages on the basis of breach. A party cannot subsequently seek to alter the agreed damages figure by relying on an alternative remedy that was not advanced at trial.

The judgment supplemented an earlier judgment in Proteus Property Partners Ltd v South African Property Opportunities Plc, reported at [2011] EWHC 768 (QB). After judgment had been handed down, the defendant argued that 25% of a performance fee should be satisfied by issuing shares rather than by payment of damages. It contended that the pleaded claim included specific performance and that the court’s order should reflect that remedy. The claimant maintained that the damages figure had been agreed and that specific performance had not been pursued at trial.

The issue was whether the claimant had elected damages in lieu of specific performance and whether the defendant could reopen the form of the final order.

1. The application was refused. The court held that the damages figure had been agreed and that it was too late for the defendant to withdraw that agreement.
2. A claimant is entitled to elect at trial to seek damages in the alternative to specific performance: Johnson v Agnew [1980] AC 367 at 392F–G. No formal use of the word “elect” is required. The election may be established from the manner in which the case was presented and argued.
3. The claimant’s written opening sought damages for non-payment of the performance fee, and the written closing adopted that position. No argument or evidence addressed specific performance or the steps required to comply with the relevant contractual provision. The specific-performance claim was therefore not pursued or considered at trial.
4. The court had found a breach of the Management Agreement and awarded damages on that basis. The claimant’s proposed final order was consequently the appropriate order.
5. Permission to appeal this ruling was refused because the defendant had no reasonable prospect of success, subject to any additional ground it might seek to advance.

This was a supplementary first-instance judgment following the earlier judgment of the High Court in Proteus Property Partners Ltd v South African Property Opportunities Plc, [2011] EWHC 768 (QB). The court refused permission to appeal on the issue addressed in the supplementary judgment.