BARNS, EVIDENCE, DOCUMENTS AND MEDIATION: A LOT TO THINK ABOUT HERE

There are some interesting observations about both evidence and mediation in the judgment of HHJ Mithani KC in Conway v Conway & Anor (Rev1) [2024] EW Misc 19 (CC).

“One matter that seriously concerns me is why the Defendants did not agree to mediation when it was put to them. The importance of mediation can never be over-emphasised: see, for example, the recent decision of the Court of Appeal in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416. The Defendants will have to advance compelling reasons why the offer of mediation was rejected out of hand by them.”

THE CASE

The claimant sought a declaration that the defendants were not entitled to enter a barn that they had been converting.  There had been an earlier (oral) agreement that the claimants would sell the barn to the defendants and the defendants carried out extensive work on the barn. The relationship broke down when the parties failed to be able to reduce the agreement to writing. The claimant’s case was that there had been an agreement that he had an option to repurchase.

THE JUDGE’S OBSERVATIONS ON EVIDENCE

1. 1. The sole or principal issue in this case is whether the Defendants are entitled to require the Claimant to transfer the property known as “the Barn”, which is part of a much larger property that the Claimant owns known as Church Farm, Hospital Lane in Bedworth, CV12 OJZ, to the Defendants. I will refer to that property as “the Barn”, and the property which the Claimant owns as “Church Farm”.

1. 1. If this court comes to the conclusion that the Claimant succeeds in his claim, i.e., that the Defendants are not entitled to require the Barn to be transferred to them, the question arises whether the court should still grant the injunctions specified in the prayer for relief contained in the Particulars of Claim. The answer to this question has to depend on whether it is likely that the Defendants will trespass on the Claimant’s land if he succeeds. It seems unlikely that they would. Likewise, if the Defendants succeed in their counterclaim, the court would need to consider whether the grant of the relief set out in paras. 4 and 5 of the Counterclaim is necessary or appropriate. It does not appear to me that it would be. However, in either situation, the successful party should, ordinarily, be entitled to the other heads of relief sought in their statements of case.

1. 1. This is a case where the guidance provided in Gestmin SGPS S.A. v Credit Suisse (UK) Limited and another [2013] EWHC 3560 (Comm), about how the court should evaluate competing evidence is important. In that case, Leggatt J said that the presence of contemporaneous documents (and their contents) will be of substantial importance in the assessment or evaluation of the oral evidence of the witnesses. In the context of this case, this is vital. That is because while the Claimant – and his stepson Nathan Walker (“Mr Walker”) who gave evidence on his behalf in support of the claim – are convinced that the agreement purportedly reached between the parties for the sale of the Barn included a buy-back option in favour of the Claimant, the contemporaneous documents generated by the parties’ solicitors show a completely different picture.

1. 1. The Claimant accepts that there was an oral agreement that he would sell the Barn to the Defendants. However, he asserts that he had agreed with the Defendants that they would grant him an option to repurchase the Barn, though it was unlikely that he would ever need to exercise that option. The Claimant says that he needed to have that option in case it impeded his ability to develop Church Farm to its full potential.

1. 1. It probably does not matter why the Claimant wished to have the option, other than to advance before the court that there was a credible reason for him to want it. However, the important point here is that while he and Mr Walker maintain that the option was agreed between the parties from the outset, every document I have seen suggests otherwise. Specifically, the documents extracted from the Claimant’s solicitors file of papers suggest that this was never mentioned by either the Claimant or Mr Walker^[1] to the Claimant’s solicitors until very late in the day.

1. I do not read Gestmin as saying that one simply disregards the oral evidence of the parties. But the important point here is that where there are contemporaneous documents supporting an account put forward by one party, there has to be convincing evidence to demonstrate that those documents do not reflect what the parties had agreed to do. That is not to say that the burden of proof switches from one party to another, simply that the court must regard that as an important consideration in its evaluation of the evidence (both written and oral) that has been adduced in the proceedings.

MEDIATION

The judge found for the defendants.  However there is an important potential “sting in the tail” to the judgment.

“I will deal with any outstanding matters and the issue of costs when I hand judgment down. One matter that seriously concerns me is why the Defendants did not agree to mediation when it was put to them. The importance of mediation can never be over-emphasised: see, for example, the recent decision of the Court of Appeal in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416. The Defendants will have to advance compelling reasons why the offer of mediation was rejected out of hand by them.”