Brian Burgess v Robert Kempson

An oral remuneration agreement is construed from the parties’ words, conduct and commercial context. Where payment is conditional on achieving improved terms, the claimant must establish the agreed trigger and the required causal connection between the claimant’s work and those terms. A merely necessary condition is insufficient to establish effective cause.

Where a binding contract allocates the circumstances in which payment is due, the contractual allocation of risk ordinarily excludes a restitutionary claim for the same services when the payment condition is not met. A claim based on an increase in abstract land value is also uncertain where no valuation date has been agreed and several dates are objectively possible.

The claimant, a chartered surveyor, advised the defendant concerning development land and alleged an oral agreement under which he would receive 15% of any increase in the land’s value above £250,000 per acre. He alternatively claimed a quantum meruit for unjust enrichment.

The court found that the parties entered into a binding oral contract, but that its trigger was an improved offer or improved terms, not an abstract increase in land value. The claimant also had to be at least an effective cause of the improvement. The defendant’s eventual transaction was unrelated to the claimant’s work. The central issues were the contract’s terms, causation, contractual intention, uncertainty and the availability of restitutionary recovery.

1. Contractual form and formation. The arrangement was bilateral, because the claimant sought a promise to pay rather than merely payment upon performance. The parties entered into a binding oral commercial contract. The family relationship and references to honour did not displace contractual intention.
2. Terms of the agreement. The contract entitled the claimant to 15% of any amount offered for the land above £250,000 per acre, provided that he was at least an effective cause of securing the improved terms. The contemporaneous references to improved “terms” did not extend to a merely theoretical increase in land value. The later correspondence attempted to add protections, including a best-price requirement, which had not been agreed.
3. Causation. The claimant’s work had to cause the improved terms. Preventing the defendant from accepting the Liberty offer was no more than a causa sine qua non, which was insufficient. The Latimer transaction resulted from another person’s introduction and was unrelated to the claimant’s strategy. The contractual claim therefore failed.
4. Uncertainty. If the agreement had instead depended on land value, it would have been void for uncertainty. No valuation date had been agreed, the possible dates had materially different consequences, and no single implied solution was objectively required.
5. Unjust enrichment. Applying [2023] UKSC 3, the contractual allocation of risk excluded a quantum meruit where the agreed payment trigger was not achieved. The November 2014 exchange did not create an effective variation or new contract and, in any event, was linked to an option which was never executed. The alternative restitutionary claim consequently failed.
6. Disposition. The claim failed. The judge nevertheless stated that, had there been no enforceable agreement, a quantum meruit could have been available for objectively established work performed after 3 August 2013 and before 30 March 2015, at £190 per hour.