Timothy Holmes v Christopher Dowing & Ors

In a dispute about oral commercial agreements, the court determines contractual terms from the evidence as a whole, giving particular weight to reliable contemporaneous documents and relevant post-agreement conduct. A fee is payable only on the terms proved on the balance of probabilities. Unexpressed conditions, deductions or qualifications cannot be added merely because they would make commercial sense. Authorities concerning estate-agent commissions may have limited relevance where the claimant’s entitlement depends on specifically negotiated contractual terms. A party need not challenge every detail in cross-examination where its case has been fairly and sufficiently put to the witness. The court entered judgment for a £700,000 fee relating to one property acquisition, but dismissed the separate claim for £200,000 because no contract on those terms was proved.

The claimant, a property intermediary, claimed £700,000 for services concerning the acquisition of portfolio CB161 and £200,000 concerning apartment block CB182. He relied on oral agreements made with the first defendant, who acted for himself and the deceased Meyrick Cox. The defendants accepted that an agreement concerning CB161 had been made, but disputed its terms and contended that the fee was subject to deductions for retentions and contributions. They denied that any binding agreement had been made concerning CB182. The central issues were the terms of the alleged agreements, the services performed, and the evidential significance of contemporaneous documents and witness testimony.

1. CB161—January agreement. The contemporaneous email sent by the first defendant to his solicitor on the day of the agreement was the most important evidence of its terms. The agreement entitled the claimant and Mr Daniel to half the difference between the original and final purchase prices, divided equally between them. The fee was not subject to deductions for retentions, donations or contributions, and there was no contractual condition concerning the properties’ condition.
2. CB161—March agreement. The email sent by Ms Few immediately after the meeting recorded a fee of £700,000 for CB161 and contained no qualification. Later tracker spreadsheets, the request for an invoice and the draft invoice were consistent with a fixed fee. The defendants’ alleged deductions were not proved to be contractual terms. On completion of the acquisition, £700,000 became payable.
3. The court preferred reliable contemporaneous documents to the evidence of several witnesses. It treated the decision in Blue v Ashley [2017] EWHC 1928 (Comm) as useful guidance in a commercial case. Commercial sense was relevant but inconclusive and could not supply terms which the parties had not agreed.
4. The claimant had performed the agreed intermediary services for CB161, including negotiating the final purchase price and facilitating the transaction. The claim for £700,000 therefore succeeded.
5. CB182. The claimant’s evidence about the alleged £200,000 agreement was vague, inconsistent as to its date and unsupported by contemporaneous documents. The claim was not proved on the balance of probabilities and was dismissed. The court additionally found that the claimant had not shown that he performed the alleged contractual services, although it was unnecessary to decide that issue.
6. The general rule requiring a witness’s evidence to be challenged in cross-examination is subject to fairness and practicality. Where the party’s position has been sufficiently made clear and the witness has had a fair opportunity to respond, the court may determine the issue. The approach in Rahme v Smith & Williamson Trust Corporation Ltd [2009] EWHC 911 (Ch) was treated as stating a general, not inflexible, principle.
7. Judgment was entered for the claimant for £700,000, with interest. The CB182 claim was dismissed. The parties were invited to agree interest, costs and the form of order.