Aroca Seiquer & Asociados & Anor v Adams & Ors

Acceptance of a contractual offer may occur by conduct, but the conduct must be unequivocal. Whether it is unequivocal depends on the precise circumstances. Arranging an appointment with a professional through an intermediary may amount to acceptance where the surrounding transaction shows that the appointment was made to obtain the offered service, rather than to decide whether to instruct the professional.

A procedural unfairness challenge based on a trial judge deciding an unargued point requires a real possibility of relevant evidence which could realistically have affected the decision and which the party would have called if the point had been raised. Where no such material evidence exists and the issue has been fully argued on appeal, the irregularity is not irreparable.

The respondents purchased holiday homes in Spain through UK agents and retained the appellants, a Spanish lawyer and his trading firm, for conveyancing. They paid the purchase prices but did not obtain good title because the vendor had failed to discharge mortgages. The High Court found that the appellants had been retained before the final instalments were paid, were negligent in failing to advise about the absence of security and unencumbered title, and were liable in damages.

On appeal, the principal issue was whether the contracts of retainer were formed when the agents arranged appointments for the purchasers at the appellants’ offices, or only later. The appellants also alleged procedural unfairness because the trial judge’s analysis had not been advanced at trial.

1. Procedural fairness. The complaint that the trial judge decided the retainer issue on a basis not addressed by the parties was unfortunate and capable of creating unfairness. However, such a challenge requires more than showing that the point was unargued. The appellant must identify a real possibility of relevant evidence which could realistically have affected the decision and which would have been called if the point had been raised.
2. The appellants suggested that staff evidence about the system for arranging appointments might have been called. They did not produce evidence of what those witnesses would have said. The existing evidence already established the appointment system, and the court could not see how further evidence about it would assist. The issue had also been fully argued on appeal. The irregularity was therefore not irreparable.
3. Formation by conduct. An offer may be accepted by conduct, but the conduct must be unequivocal. Whether conduct has that character depends on the precise circumstances in which it occurs.
4. The appellants accepted that the letters sent to the purchasers constituted contractual offers. The properties were marketed as part of a one-stop service, the agents recommended the appellants as the purchasers’ Spanish lawyers, the purchasers were non-commercial and relied on professional guidance, and the agents arranged appointments at the appellants’ offices before completion. In those circumstances, the appointments were not realistically made merely to decide whether to instruct the appellants. They constituted acceptance of the offers and formed the retainers before payment of the final instalments.
5. Ground 2 accordingly failed. Ground 5 did not arise for decision, because the appellants had accepted that it was unnecessary if ground 2 failed. Ground 4 had been abandoned and ground 6 had been compromised. The appeal was dismissed.

• High Court of Justice, Queen’s Bench Division: Lavender J found the appellants liable in professional negligence and fiduciary duty and awarded damages to the purchasers.
• Court of Appeal (Civil Division): The appeal was dismissed unanimously. [2018] EWCA Civ 1589