Saturn Leisure Ltd v Havering London Borough Council

[2014] EWHC 3717 (Ch)

Chancery Division

Mr S Monty QC sitting as a Deputy Judge of the Chancery Division

14 November 2014

Local authority - Land - Misrepresentation - Power to develop land - Case concerning development of site of leisure facility - Whether defendant local authority representing it would demolish certain premises no matter what, or representing it would only demolish them if claimant company having protected tenancy - Whether proper disclosure having occurred - Whether defendant's decision taken with proper authority.

Judgment

APPROVED JUDGMENT

               I DIRECT THAT PURSUANT TO CPR PD 39A PARA 6.1 NO OFFICIAL SHORTHAND NOTE SHALL BE TAKEN OF THIS JUDGMENT AND THAT COPIES OF THIS VERSION AS HANDED DOWN MAY BE TREATED AS AUTHENTIC.             

               MR S MONTY QC:             

               Introduction             

1. This is the hearing of the Claimant's appeal from a decision of Deputy Master Nurse. On 18 December 2013 the Deputy Master gave summary judgment for the Defendant with costs to be assessed. On 7 January 2014 the Claimant appealed that order, and on 13 August 2014 Peter Smith J gave permission to appeal.

2. In this judgment, I shall refer to the Claimant as Saturn, and to the Defendant as Havering.

3. I was addressed on behalf of Saturn by Mr Philip Jinks, a director of Saturn, who is an Unregistered Barrister. Mr Mark Sefton of counsel appeared for Havering.

               The background             

4. Saturn used to manage the Romford Ice Arena, a public leisure facility, on Havering's behalf, originally pursuant to a management agreement entered into on 1 August 2003. The Romford Ice Arena was situated on land owned by Havering ("the Ice Rink site"). The agreement provides for a profit-share between the parties, and states that the parties did not intend the agreement to confer exclusive possession. On 13 January 2009 Saturn entered into a Creditors Voluntary Arrangement ("CVA"), the principal creditor being HMRC for unpaid VAT. The proposal for the CVA stated that Saturn was not trading and had no intention of trading in the future. Saturn was released from the CVA in October 2014.

5. By 2011, Havering had reached an agreement with Morrisons, the well-known supermarket group, for the transfer of the Ice Rink site to Morrisons, on which Morrisons would build a new supermarket, and the transfer to Havering of a site in Romford then owned and operated as a supermarket by Morrisons, on which Havering intended to build a new leisure facility including a new ice rink. Morrisons agreed to pay Havering £21.7m. As part of those contractual arrangements, Havering had to provide vacant possession of the Ice Rink site, and on 3 May 2011 it served a notice on Saturn under section 25 of the Landlord & Tenant Act 1954. The notice was expressly served without prejudice to Havering's contention that Saturn did not have a tenancy of the Ice Arena, and opposed any statutory renewal on grounds (b) (persistent non-payment of rent) and (f) (landlord's intention to redevelop).

               The Possession Proceedings (1)             

6. On 4 August 2011 Havering commenced possession proceedings against Saturn in Action No HC11C02757 ("the possession action"), claiming also a money judgment for the profit share which it alleged had never been paid. Saturn filed a Defence and Counterclaim, disputing the money claim, asserting that the management agreement was now on different terms with Havering's knowledge and consent and was a tenancy, and seeking an order that the tenancy be renewed at a nil rent. Havering's Reply and Defence to Counterclaim asserted that (1) the management agreement was not a tenancy; (2) if it was, then it was not a protected tenancy under the 1954 Act because Saturn was not in occupation for the purposes of a business carried on by it therein for the purposes of section 23 of the 1954 Act; and (3) if contrary to this there was a protected tenancy, a renewal should be refused under either ground (b) or ground (f).

7. Havering served a Part 18 Request on Saturn in relation to its money claim, seeking details of income and expenditure so that the profit share could be calculated, but Saturn failed to answer the request. On 25 June 2012 Havering applied for orders that Saturn answer the request and provide proper disclosure of income and expenditure. On 31 July 2012, by consent, Master Price ordered Saturn to answer the request and give disclosure by 21 August 2012. Saturn failed to comply with that order, and Havering applied on 28 August 2012 for an order striking out the Defence and Counterclaim unless the request was answered and disclosure given. On 7 September 2012 Master Price ordered, again by consent, that unless Saturn answered the request and gave disclosure by 21 September 2012, the Defence and Counterclaim be struck out. Saturn failed to do so, and accordingly its Defence and Counterclaim were struck out.

8. On 24 September 2012 Havering applied for judgment to be entered. On 26 September 2012 Saturn applied to set aside the two consent orders of 31 July and 7 September, and for an order that the action be stayed under the Arbitration Act 1996. Saturn's applications were dismissed by Deputy Master Moraes on 22 October 2012, and Havering's application for judgment was stood over to 19 November 2012. Saturn then issued an application for relief from sanction, a lengthy extension of time to provide disclosure, and an adjournment of the trial, which had by then (29 October 2012) been listed for trial in December 2012.

9. Havering served a witness statement from Mr Garry Green, its Property Strategy Manager, on 14 November 2012. Mr Green said in that statement in relation to ground (f) that the necessary decision to demolish the Ice Arena was in the process of being made; that he was confident that the decision would be made before trial; and that the decision he expected Havering to make would be to demolish in the event that the court held that there was a protected tenancy. It is clear from that statement that Havering's decision was to be conditional; Havering would demolish the Ice Arena if it needed to do so to obtain possession, but it would not do so if the court held that there was no tenancy, or that there was a tenancy which did not have statutory protection.

10. Master Price heard Havering's application for judgment and Saturn's various applications on 19 November 2012. Master Price ordered Saturn to disclose its income and expenditure. The order was endorsed with a penal notice and was to be served on Mr Jinks personally. Havering's application for judgment, and Saturn's application for relief from sanction, were stood over to be dealt with by the trial judge at the start of the trial, which was to proceed solely in relation to Havering's possession claim, with the money claim to be dealt with by inquiry at a later date.

               The decision to demolish             

11. At this point I must leave the chronology of the possession proceedings to set out the history of the decision to demolish. It is Saturn's case, on this appeal, that Havering never had an intention to demolish, and I will return to that in more detail later in this judgment.

12. On 15 June 2011 a report was presented to a meeting of Havering's Cabinet. The report was exempt from publication under paragraph 3, Schedule 12A, of the Local Government Act 1972, because of its commercial sensitivity. The report invited the Cabinet to agree in principle to a redevelopment of the Ice Rink site in conjunction with Morrisons under the agreement to which I have referred at paragraph 5 of this judgment, and invited the Cabinet to make 9 specific decisions in relation to the scheme. Decision 9 was as follows:

  	"Subject to full Council approval of the funding, to delegate the final decision on whether to proceed, finalise the various property transactions, finalise the final arrangements, finalise the building contracts and finalise other assorted agreements, to the Leader [of the Council], the Lead Member Finance and Commerce [later renamed the Lead Member for Value] and the Lead Member for Culture, Towns and Communities."

13. Item 57 of the Minutes of the meeting of 15 June 2011 recorded the Cabinet's decision as follows:

  	"ROMFORD LEISURE DEVELOPMENT PROPOSALS - exempt information. Cabinet received a report (containing exempt information and not available to the press or public) setting out in detail aspects of the proposals ... Cabinet decided to proceed with the proposals as recommended in the report submitted. The details of those decisions are set out in the Appendix to these minutes containing exempt information (and not available to the press or public)."

14. The Appendix to the Minutes shows that the decisions made by the Cabinet were to agree to the recommendations in the report and to make the 9 decisions which the report had invited, including at decision 9 to delegate decisions to three councillors as set out above, subject to full Council approval of the funding.

15. On 20 July 2011 Havering held a full Council meeting. The minutes show that the Cabinet presented the full Council with the report, and that the Council approved the estimated spending budget of £24.447m and amended the Council's Capital Programme accordingly.

16. On 23 May 2012 Havering entered into an agreement with Optimisation Developments Limited ("ODL") and Perimeter Holdings Limited (both part of the Morrisons' group of companies) reflecting the agreement reached between Havering and Morrisons to which I have already referred. Havering was to transfer the Ice Rink site to Morrisons; Morrisons was to transfer to Havering its city centre site; and Morrisons would pay Havering £21.7m. The agreement was conditional upon Havering obtaining vacant possession of the Ice Rink site. The agreement entitled Havering to demolish the Ice Rink before completion, and entitled it to instruct ODL to carry out the demolition works on its behalf as its agent.

17. On 28 November 2012, the week after Master Price made the orders set out at paragraph 10 above, Mr Green reported to the Leader of the Council, the Lead Member for Value and the Lead Member for Culture, Towns and Communities, with a recommendation that they reach a decision in the following terms:

  	"To agree ... to implement and fund the demolition of the existing Ice Rink in Rom Valley Way if it proves necessary to do so in order to secure vacant possession of the Premises (that is to say, if the Court considers that Saturn does have a 1954 Act protected tenancy and therefore the Council is required to satisfy ground (f), which includes demolition, in order to secure possession)."

The report notes the risk that if the sale to Morrisons does not subsequently become unconditional, then the costs of demolition may have been wasted.

18. The three councillors agreed with the recommendation and made the decision. Their decision is recorded in a document bearing their three signatures against the dates, respectively, 28 November, 29 November and 3 December 2012. The document is recorded as having been lodged on 5 December 2012. It sets out the authority under which the decision was made as follows:

  	"Minute 57, Cabinet 15th June 2011, item 9: Subject to Full Council approval (since obtained), to delegate the final decision on whether to proceed, finalise the various property transactions, finalise the final arrangements, finalise the building contracts and finalise other assorted agreements, to the Leader, the Lead Member for Value and the Lead Member for Culture, Towns and Communities."

That was a reference back to two decisions. First, the decision made on 15 June 2011, and secondly the approval of that decision by the full Council on 20 July 2011.

19. I shall refer to the decision by the three councillors as "the executive decision".

               The Possession Proceedings (2)             

20. I now return to the possession proceedings. Saturn served a witness statement of Mr Jinks on 3 December 2012 in which he asserted that a decision to demolish the Ice Rink would be contrary to Havering's Core Strategy and Development Control Policies, in particular PPG17, concerned with the retention of sports and recreation buildings unless surplus to requirements. In response, Havering served a second witness statement from Mr Green, in which he said that the decision to demolish had been taken

  	"in the event that it is necessary to do so to secure vacant possession (that is to say, if the Court concludes that Saturn has a tenancy protected by the Landlord and Tenant Act 1954)".

The statement exhibited a copy of the written record of the executive decision, but the copy exhibited to the statement was not the signed copy.

21. That same day, Mr Jinks emailed Havering's solicitors saying that he was going to apply to vacate the trial, and he issued an application for an order that Havering's claim be struck out. The statement supporting that application said that he was

  	"...investigat[ing] a train of enquiry relating to the authenticity of ... documents in respect of the Claimant's claimed intention to ... demolish"

and that documents had been withheld which

  	"are highly relevant to the matter of whether the Council, rather than officers acting beyond their powers, actually seeks possession and/or demolition of the premises at all".

22. On 5 December 2012 Mr Tonkin emailed Mr Jinks with a copy of Mr Green's second statement and copies of further documents including the decision made on 15 June 2011 (which was not signed by the Mayor), an email confirming that this matter had been exempted from the call-in procedure (see paragraph 61 below), and a signed copy of the executive decision. The minutes of the Council meeting of 20 July 2011, signed by the Mayor, were exhibited to Mr Green's second statement.

23. On 6 December 2012 Mr Jinks served a skeleton argument for the trial. It said, amongst other things, that the demolition of the Ice Rink site would be contrary to Havering's Core Strategy and therefore that Havering did not have the required intention under ground (f) notwithstanding that it has made a decision to that effect.

24. In response to that assertion, on 7 December 2012 Havering served a copy of the minutes of the 20 July 2011, signed by the Mayor on 21 September 2011.

25. All of the documents to which I have referred above were in the trial bundles.

26. On 10 December 2012 the trial window opened. On 11 December 2012 Saturn issued an application to adjourn the trial on the grounds of Mr Jinks's ill health, and the next day solicitors came on the record for Saturn. On 13 December 2012, a Thursday, the application to adjourn came on before HHJ Barker QC, the trial judge. Counsel for Saturn explained that he was briefed only for the application to adjourn, and not for the trial itself. The learned judge indicated that he intended first to determine whether Saturn should be granted relief from sanction (as matters stood, Saturn's Defence and Counterclaim was struck out) and he relisted that application for hearing on 17 December, the following Monday, to allow Saturn time to obtain representation.

27. On 14 December 2012, Saturn accepted an offer to settle the proceedings which had been made some months earlier and which remained open for acceptance. It was agreed that Havering would pay Saturn £150,000, and that Saturn would give vacant possession. The agreement was embodied in an order in Tomlin form dated 14 December 2012, and the order was approved by the court on 17 December 2012.

28. In due course, as agreed in the schedule to the order, on 1 May 2013 Havering paid Saturn £150,000 and Saturn vacated the Ice Rink.

               The present proceedings             

29. On 5 September 2013 Saturn issued a claim against Havering for damages said to be limited to £10m based on compensation for misrepresentation under section 37A(1) of the 1954 Act, which provides for compensation to be payable where a court refuses a lease renewal based on a misrepresentation or concealment of material facts.

30. The Particulars of Claim assert as follows.

  	i) The consent order of December 2012 was obtained on the basis of Havering's representation that Havering "had a settled intention to demolish the premises within a 4 month timescale or thereabouts" and that Havering had said that demolition would take place within two months of the termination of any tenancy held to exist. There is a reference at paragraph 5 of the Particulars of Claim to the executive decision and to Mr Green's statement.

  	ii) In reliance on Havering's representations, vacant possession of the premises was given by Saturn to Havering, "which means the demolition was to commence on or about 1 June 2013 and would last no longer than 8 weeks ending on the 24 August 2013": Particulars of Claim, paragraph 6.

  	iii) By 28 August 2013 the premises had not been demolished: Particulars of Claim, paragraph 7.

  	iv) Havering "has therefore misrepresented, to [Saturn] and the High Court of Justice Chancery Division, its intention to demolish the premises within the stated timeframe or at all and has therefore breached the contract between the parties, as a consequence [Saturn] has suffered loss and damage": Particulars of Claim, paragraph 8.

31. Havering filed a Defence on 2 October 2013, and on 11 October 2013 applied for summary judgment, alternatively, for security for costs. The Defence asserted that Havering's intention was that set out in the statements of Mr Green (to which I have already referred), namely to demolish the premises if the court were to find that Saturn had a protected tenancy and if Havering therefore needed to establish ground (f) as a ground for possession. Accordingly, the Defence stated that there was no representation that Havering intended to demolish whatever the circumstances, and that since the possession proceedings were compromised by the consent order, the conditional intention to demolish never became unconditional. The Defence also referred to the executive decision.

32. Saturn filed a Reply on 21 October 2013 in which it asserted that any acts beyond the development of a detailed proposal in reliance on the executive decision were "mistaken, illegal or had been obtained by misrepresentation and/or the concealment of relevant facts": Reply, paragraph 12 vi.

33. On 1 December 2013, Saturn provided draft Amended Particulars of Claim. Havering offered to consent to the amendments on the usual terms as to costs, but Saturn refused to agree those terms.

               The Deputy Master's decision             

34. On 18 December 2013, Havering's application for summary judgment was heard by Deputy Master Nurse. In paragraph 23 of his judgment, the Deputy Master refers to the draft Amended Particulars of Claim as follows:

  	"[Saturn] has amended the Particulars of Claim. These amended Particulars of Claim in paragraph 3 refer to the consent order in the previous action. The principal allegation is that Saturn was induced to vacate the ice rink on 31 May 2013."

35. In fact, it does not appear that the Deputy Master formally gave permission to amend the Particulars of Claim, and I will return to the question of amendment at paragraph 84 below. The transcript at pages 13-14 shows that Mr Sefton told the Deputy Master that Havering had offered to consent to the amendments subject to the usual order as to costs, but that Saturn had not agreed that the usual order should be made, so the application for permission to amend was still live. Mr Sefton then told the Deputy Master, "it seemed sensible to us to put the draft amended particulars before you so that you can see all of what Mr Jinks wishes to allege. It would be unhelpful to say you should proceed solely on the basis of the unamended particulars." The transcript shows that Mr Jinks did not ask for permission to amend, and that the Deputy Master did not grant permission. Be that as it may, the Deputy Master set out in his judgment reference to paragraphs 4 to 8 of the Amended Particulars of Claim.

36. Paragraphs 4 to 6 and paragraph 8 were almost identical to paragraphs 4 to 8 of the original Particulars of Claim; paragraph 7 in the Amended Particulars of Claim introduced the following:

  	"As evidenced by the Defendants' Regulatory Services Committee Report dated 30 April 2013 at Paragraph 2 of the Summary and elsewhere in the body of that report, it is clear that the Council [the Defendant] did not have any settled intention to demolish the Ice Rink, at any time up to the 30th April 2013."

The Amended Particulars of Claim also made a claim for unpaid VAT on the £150,000 paid by Havering to Saturn pursuant to the schedule to the consent order.

37. The Deputy Master gave summary judgment for Havering, referring to Mr Green's statement that Havering intended to demolish the premises only if the court rejected Havering's primary case about there being no protected tenancy, and holding that Havering therefore never represented that it intended to demolish the premises whatever the circumstances. The Deputy Master said, at paragraph 33:

  	"It seems to me that there is no prospect of successfully arguing that this was a representation (if indeed it was) of a present intention to demolish when it is absolutely clear that it was entirely contingent upon there being a finding or agreement that Saturn had a protected tenancy."

38. As to the VAT claim, the Deputy Master held that

  	"issues concerning the carrying into effect of the terms of the schedule to the Tomlin order should properly be dealt with by way of an application in that action. That is the whole point of having an agreement bringing an action to an end by way of a schedule to a Tomlin order."

39. The Deputy Master concluded that

  	"it would be wholly disproportionate to keep this action alive merely for the purposes of a small dispute about the VAT on the £150,000. In the circumstances, therefore, I see no reasonable prospect of success and, accordingly, I allow the defendant's application for summary judgment."

               The appeal             

40. On 7 January 2014 Saturn filed an appellant's notice with a request for permission to appeal. There are 13 grounds of appeal, which are repeated in Saturn's skeleton argument. It is not an easy document to follow. Saturn also filed a supplemental skeleton argument, to which I will refer below.

41. On 13 August 2014 Peter Smith J gave permission to appeal, for the following reasons:

  	"It seems to me that it is at least arguable that the learned Deputy Master is wrong in concluding that there is no misrepresentation. Further it is arguable in my view that given the allegations made against the Respondent that of itself ought to be a 'some other reason' for matters proceeding to trial rather than being disposed of summarily."

42. As I observed in the course of oral submissions, whilst I have great respect for the learned judge, his reasons for granting permission are not in any way binding on me nor are they indicative of any approach I ought to take on this appeal.

               Summary judgment             

43. The principles to be applied on an application for summary judgment are those summarised by Lewison J in Federal Republic of Nigeria v Santolina Investment Corporation and others [2007] EWHC 437 at [4]. The Deputy Judge set them out in his judgment at paragraph 6, and for completeness I set them out below:

  	i) The court must consider whether the defendant has a "realistic" as opposed to a "fanciful" prospect of success: Swain v Hillman [2001] 2 All ER 91;"

  	ii) A "realistic" defence is one that carries some degree of conviction. This means a defence that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8];

  	iii) In reaching its conclusion the court must not conduct a "mini-trial": Swain v Hillman;

  	iv) This does not mean that the court must take at face value and without analysis everything that a defendant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10];

  	v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550;

  	vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63;

  	vii) Although there is no longer an absolute bar on obtaining summary judgment when fraud is alleged, the fact that a claim is based on fraud is a relevant factor. The risk of a finding of dishonesty may itself provide a compelling reason for allowing a case to proceed to trial, even where the case looks strong on the papers: Wrexham Association Football Club Ltd v Crucialmove Ltd [2006] EWCA Civ 237 at [57].

44. An appeal from a Master is limited to a review of the decision of the lower court unless a practice direction provides otherwise (which is not the case here) or the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing: CPR 52.11(1). The appeal will be allowed where the decision of the Master was wrong or unjust because of a serious procedural or other irregularity in the proceedings in the lower court: CPR 52.11(3).

45. In considering whether an appeal should be a review or a re-hearing, the court must bear in mind the five general observations made by Jonathan Parker LJ (with whom Tuckey and Pill LJJ agreed) in Audergon v La Baguette Ltd [2002] EWCA Civ 10, as noted in the White Book at paragraph 52.11.1:

  	(1) The general rule is that appeals at all levels will be by way of review. (2) A decision to hold a re-hearing will only be justified where the appeal court considers that in the circumstances of the individual appeal it is in the interests of justice to do so. (3) It is undesirable to attempt to formulate criteria to be applied by the appeal court in deciding whether to hold a re-hearing. (4) In a case involving some procedural or other irregularity in the lower court it will be material for the appeal court, when considering whether to hold a re-hearing, to have regard to the fact that an appeal will be allowed where the decision of the lower court is rendered unjust because of serious procedural or other irregularity. (5) The word "will" in the opening words of CPR r.52.11(3) throws no light on the approach to be adopted in deciding whether to hold a re-hearing under CPR r.52.11(1)(b) .

46. I also take into account the points made by May LJ in E.I. Du Pont Nemours & Co v S.T. Du Pont [2006] 1 WLR 2793 which are mentioned in the same paragraph of the White Book, one of which is that CPR 52.11 contains a degree of flexibility necessary to enable the court to achieve the overriding objective of dealing with individual cases justly. In other words, the precise meaning and application of review and re-hearing will depend upon the circumstances of the case.

47. I am satisfied in the particular circumstances of this case that it is in the interests of justice to deal with this appeal on the basis of a re-hearing. Saturn's grounds of appeal and skeleton argument went beyond matters which were pleaded and were in issue before the Deputy Master. Whilst that of itself would not, I think, be sufficient grounds for departing from the general rule, the fact is that Saturn has permission to appeal on those grounds, and it was not part of Havering's submissions on the appeal that I should not consider those grounds at all; Havering's case was that on any footing (whether on the basis of the case as pleaded in either of its iterations or as set out in the grounds of appeal) Saturn's claim was hopeless.

               The grounds of appeal (1)             

48. The grounds of appeal and Mr Jinks's skeleton argument are peppered with allegations of and references to fraud, deceit, conscious and deliberate dishonesty, and bad faith. In his oral submissions however Mr Jinks said that he was not actually alleging fraud and (as stated in his supplemental skeleton argument) "the words are used by Saturn to embellish and emphasise the point made within the relevant paragraph."

49. Although I will deal with each of the grounds in turn, it is to be noted as follows:

  	i) At paragraph 3 of the supplemental skeleton argument, Mr Jinks says that the issues in this appeal could be summarised in one paragraph:

  	"Should the Defendant [Havering] be awarded Summary Judgment when Havering has not disclosed or served, in the manner in which it was required to disclose or serve, all of the information it was under a duty to disclose or serve, thereby wrongly assisting it in obtaining a Tomlin order or a Summary judgment it might otherwise not have obtained?"

  	ii) In a letter dated 19 December 2013 from Mr Jinks to Havering's solicitors, Mr Jinks asserted:

  	a) Saturn was induced into agreeing the terms of the Tomlin order on the basis that Havering had a settled intention to demolish if necessary to get vacant possession.

  	b) That intention was based on the executive decision, which referred to it being "subject to Full Council approval (since obtained)".

  	c) Havering has failed to disclose the Full Council approval, and thus the executive decision was based on an authority which had not been obtained.

  	d) Havering had therefore made a false representation in order to establish ground (f) and had acted dishonestly and fraudulently.

50. These two points - which conveniently may be referred to as "the disclosure issue" and "the authority issue" respectively - were the real themes underpinning Saturn's appeal.

               (1) The disclosure issue             

51. In the course of oral submissions by Mr Jinks, two aspects of this issue emerged.

52. First, Saturn asserted that Havering had failed to comply with its disclosure obligations in the possession proceedings, because it had not disclosed the Minutes of the meeting of 15 June 2011 until December 2012. Havering therefore did not have "clean hands" and summary judgment was not appropriate. This expressly appears to be ground 1 of the Grounds of Appeal (although the paragraphs said to support that ground in the skeleton argument deal in the main with a somewhat different point, namely setting aside a consent order on the grounds of alleged fraud).

53. In my view, there is nothing in this assertion. It was not until the beginning of December 2012 that Saturn raised, for the first time in the possession proceedings, a suggestion that the executive decision was ultra vires i.e., those three councillors who had taken the executive decision had no power or authority to take it. The relevant sequence of events was as follows:

  	i) The evidence which Havering served for the trial was that of Mr Green. I have referred to his statements above. Both statements are clear. In the first statement Mr Green said that no decision had yet been taken, but any decision would be conditional upon a finding that there was a protected tenancy. In the second statement Mr Green said that the executive decision had now been taken to demolish if necessary to do so, and he exhibited a copy (unsigned) of the executive decision and the relevant extracts from the minutes of the meeting of 15 June 2011.

  	ii) In a witness statement of 3 December 2012, Mr Jinks asserted that no decision of the Council actually existed. Mr Green's second statement was served to deal with this point, which was being raised by Saturn for the first time.

  	iii) In his skeleton argument for the trial Mr Jinks asserted that Saturn had been denied full disclosure (in fact, one of Saturn's applications of 15 November 2012 was for disclosure but that was refused) but in any event that Havering was "misdirecting itself as to its powers to act, does not have the authority and therefore intention to demolish the premises." The skeleton argument continued by referring to "an alleged delegated authority" (the minutes of the 15 June 2011 meeting) but that the copy provided "has not been signed by the Mayor as a true record". Therefore Havering did not have any settled intention whatsoever. The skeleton argument also referred to the demolition being contrary to Havering's Core Plan, a point to which I must return below.

  	iv) Thus, for the first time in early December 2012, Saturn was taking an ultra vires point, by attacking the validity of the delegation of the power to take decisions, and by saying that the decision was in any event contrary to Havering's Core Policy.

  	v) It is for that reason that Havering disclosed the signed executive decision (it could not have done so in any event before it was signed by all three councillors), the signed minutes of the meeting of 15 July 2011, and the signed minutes of the Council meeting of 20 July 2011.

54. It is to my mind abundantly clear that Saturn's point is a bad one. Havering had validly delegated decision-making powers to the three councillors at the meeting on 15 June 2011. The full council had approved that at its meeting on 20 July 2011. The three councillors had taken the executive decision, very shortly before the trial as they were entitled to do; it is not surprising that it was left late, because Saturn's Defence and Counterclaim had been struck out and it was only taken at the last minute, it seems to me to be clear, because of Saturn's application for relief from sanction and the impending trial. Havering served copies of all the relevant documents in the possession proceedings, which proves that each of these steps was validly taken. I do not see how, in the light of the chronology, Havering can be criticised on the grounds of alleged late or failed disclosure. In my view, Havering was not in breach of its disclosure obligations in the possession action. Moreover, and of central importance, before entering into the consent order Saturn had been provided with signed copies of all the relevant documents.

55. Secondly, Saturn says that Havering was not entitled to summary judgment in the present proceedings because it had failed to file and serve the evidence on which it relied, it being the obligation of an applicant for summary judgment to do so under CPR 24.5.

56. This again is a thoroughly bad point. In support of the summary judgment application, Havering had served a witness statement of Mr Tonkin, setting out the background in some detail, and referring to the two witness statements of Mr Green, which were placed in the hearing bundle and were before the Deputy Master. Those statements, as I have already indicated, exhibited and referred to all of the documents on which Havering relied; there was no "missing" document nor did Havering fail to serve and file the evidence on which it relied.

57. Furthermore, on 28 October 2014 Mr Jinks emailed Mr Tonkin alleging that certain documents (those dealing with the delegation of authority) had not been included in the original trial bundles for the possession action and had not been disclosed to Saturn before 14 December 2012 (the date of the consent order); and on 29 October 2014, at 4.14 am, Mr Jinks sent an email to Mr Sefton essentially repeating the same point. As Mr Tonkin has demonstrated in his fourth witness statement dated 29 October 2014, that allegation was untrue, as the documents were sent to Saturn on 5 and 7 December 2012, well before the consent order was entered into, and were inserted into the trial bundles. Despite this, Mr Jinks asserts, or appears to assert, that on the present application Havering cannot refer to these documents because they were not before the Deputy Master - which again (as I have explained) is incorrect.

               (2) The authority issue             

58. As set out in some detail above, Havering's evidence established a clear line from the meeting of 15 June 2011, through to the full Council approval, and ending with the executive decision.

59. It is crystal clear, on the evidence before me (which was also before the Deputy Master), that Havering had taken a decision to demolish the Ice Rink if necessary to do so in order to defeat Saturn's claim for a renewal, and that this decision was taken with full, proper, authority.

60. The decision to demolish, even though it was conditional upon the court finding that Saturn had a protected tenancy, was in my opinion more than mere contemplation on the part of Havering. There was a clear firm and settled decision to demolish, conditional upon Saturn having a protected tenancy, and Havering disclosed documentation which showed, through the financial arrangements authorised by the Council and the agreement with ODL, that it had a reasonable prospect (in my view, more than merely a reasonable prospect) of being able to carry out that demolition if necessary. There is no need for a landlord to establish the necessary intention at any stage earlier than the trial. On all these points, see Woodfall, Landlord and Tenant, paragraph 22.106.

61. Moreover, it is also plain that before entering into the consent order on 14 December 2012, Saturn was in possession of all the relevant documents, and that there remained in issue between the parties (if and only if Saturn was able to obtain relief from sanction) the question of authority, whether the decision had been properly taken or had been taken at all, and whether the decision if any was contrary to the Council's Core Policy. Further, Saturn was aware because of those documents that the Council's contingent decision to demolish had been exempted from the "calling in" procedure by which a local authority's overview and scrutiny committees have the power to "call in" decisions for further consideration by the decision maker or the full council as may be appropriate. Against that background, and knowing all of these things and thus knowing what remained in issue between the parties, Saturn entered into the consent order.

62. I agree with Mr Sefton that it is not surprising that both parties regarded the consent order as a sensible commercial deal. Saturn had to obtain relief; it then had to prove there was a tenancy and that it occupied the premises for the purposes of its business; it then had to defeat Havering's case on ground (f); and even if it did so, there remained the money claim and ground (b) which was to be dealt with at a later date if and when Saturn gave disclosure. As for Havering, it was buying certainty, avoiding the costs of a contested hearing, and importantly avoiding the costs of demolition prior to completing the contract with Morrisons. By entering into the consent order, Saturn's allegations - all of them, including the ultra vires point and the alleged absence of a (valid or any) decision to demolish - were compromised, and Havering never had to demolish the premises. As the schedule to the order recites, each party released the other

  	"from all demands claims proceedings or liabilities in respect of the Premises and shall not bring any claims against one another in respect of the Premises save for any claim to enforce the terms of this Order."

There was no court decision as to whether Saturn had a tenancy, or if it did the status of that tenancy, and Havering's conditional intention to demolish never became unconditional. The effect of the consent order was to settle and stay all issues arising in the possession proceedings: see for example The Carphone Warehouse UK Ltd v Malekout [2006] EGLR 35 at [20-21].

               The grounds of appeal (2)             

63. I now turn to consider each ground of appeal.

                                Ground 1 - Deputy Master Nurse failed to take account sufficiently or at all of the need to follow the authority in Royal Bank of Scotland plc v Highland Financial Partners LLP [2013] EWCA Civ 328. Where fraud in terms of deceit and or withholding relevant material is alleged or becomes apparent during the course of proceedings, the Defendant's unclean hands offends equity to the extent that summary judgment is not an appropriate order.                            

64. For the reasons I have set out above, in my judgment Havering did not withhold any material from Saturn and was not in breach of its disclosure obligations in the possession proceedings. There is not the slightest evidence of deceit or of the withholding of relevant material. It is abundantly clear that Havering had authority to take the decision to demolish if necessary, that there was authority properly vested in the three councillors to make that decision, and that Havering had produced and disclosed all the relevant documents.

65. In my view it can never be sufficient, to avoid summary judgment, to assert fraud unless there is at least some evidence to support it. In this case, it is abundantly clear that there is not the slightest evidence of fraud (which, in any event, was not pleaded in either the original or draft Amended Particulars of Claim, and as I have observed, Mr Jinks expressly disavowed making any allegation of fraud on this appeal). It must follow that simply by referring to the possibility of fraud or the risk of a finding of fraud, without there being a shred of evidence to support it, is not enough to allow this case to proceed to trial.

66. I therefore reject ground 1.

                                Ground 2 - Deputy Master Nurse failed to take account sufficiently or at all of the need to consider the circumstances where a key document which had influenced the settlement of case HC11C02757 and where the contents and probity of that document was the material issue in HC13A03903 the risk of finding that the document was procured by fraud meant that summary judgment was not an appropriate order.                            

67. There is not the slightest question mark, on the evidence I have seen, over whether the "contents and probity" of any document produced by Havering should be called into question. Mr Jinks emphasised the words "the risk" of a finding of fraud. In my view there was and is absolutely no such risk. I reject ground 2.

                                Ground 3 - Where there was prima facie a conscious and deliberate dishonesty by the Defendant in relation to the procurement of key decisions and statements of intention by the officers and or members of the Defendant local authority upon which the Defendant then sought to rely upon in its Claim in HC11C02757; its defence in HC13A03903 and in its application for summary judgment, summary judgment was not an appropriate order in that it avoided scrutiny of the Defendant's actions and produced a result that was unjust.                            

68. There is in my judgment no evidence - prima facie or otherwise - of dishonesty in relation to the decisions made by Havering. Mr Jinks argued that by applying for summary judgment, Havering was avoiding having to disclose - in the present action - the documents which would show dishonesty. This is completely without foundation. I reject ground 3.

                                Ground 4 - In deciding that ultra vires actions of a local authority were a live issue in a stayed case, the Deputy Master misdirected himself that he could not unstay the case in order to consider whether the lack of consent inherent in an ultra vires action formed the necessary misrepresentation to sustain an action under the Misrepresentation Act 1967.                            

69. This is in my view another wholly unsustainable argument. The ultra vires allegation was not only a bad one, as all the documents giving authority to make the executive decision were disclosed, it was compromised by the consent order. If there was any evidence whatsoever - and there is not - that any of Havering's decisions were ultra vires and that it did not hold the intention or any intention to demolish, then that might have been a basis for alleging misrepresentation. But as the Deputy Master held, there was no misrepresentation at all, and I agree with that conclusion. I therefore reject ground 4.

                                Ground 5 - In allowing the Defendant to avoid its duties of disclosure under CPR 31.11 the Deputy Master arrived at a decision that was perverse and unjust.                            

70. Mr Jinks submitted that full disclosure is a requirement that must be met where an applicant seeks summary judgment. Mr Jinks further submitted that Havering had acted fraudulently by applying for summary judgment without giving disclosure.

71. Not only are those bad propositions, because summary judgment can be and frequently is sought at an early stage in an action before disclosure, in the present case all relevant documents had been disclosed in the possession proceedings and were in evidence before the Deputy Master on the summary judgment application and were before me. I therefore reject ground 5.

                                Ground 6 - The Deputy Master erred in law in allowing the Defendant to refer to documents which had not been disclosed or made available for inspection which is a breach of CPR 31.21.                            

72. For the reasons I have already set out in detail, this is a bad point, and I reject ground 6.

                                Ground 7 - In deciding that a conditional consent could not be a misrepresentation where the conditions of the consent were not met, the Deputy Master failed to take account of the fact that for a local authority to hold a conditional consent first required a consent to hold such a conditional consent, and if such consent was absent it must as a consequence have been absent for the purported conditional consent. The representation of a conditional consent must be a misrepresentation if no consent existed which countenanced the conditional consent. In other words where the Defendant is a local authority a conditional consent can only exist if a prior consent to have a conditional consent existed prior to the existence of the conditional consent. Since the documents which the Defendant relied upon to show that the local authority had consented to the conditional consent had not been disclosed, and the Defendant's barrister confirmed that they were not in the bundles, the Defendant could not as a matter of law rely upon them and Deputy Master Nurse, in failing to consider that such prior consent might not exist and then assuming rather than investigating whether it did, arrived at a decision that is perverse, wrong and unjust.                            

73. This prolix and internally repetitive ground was the main one upon which Mr Jinks relied. It really amounts to this: that Havering did not have even a conditional intention to demolish because the three councillors, upon whose decision the intention was based, were not authorised to make such a decision. Therefore, the representation that Havering had an intention to demolish was a misrepresentation. For the reasons I have already given, this is simply wrong; there was an intention conditional upon the court's findings, and that intention was arrived at with proper authority, as evidenced by the documents. The decision for Deputy Master Nurse was really quite straightforward, and ultimately it is the principal point on this appeal. Was there a misrepresentation? I agree with his conclusion that there was not. I reject ground 7.

                                Ground 8 - In breach of CPR 31.11 Havering was able to influence the outcome of a hearing and avoid scrutiny of its dishonesty by breaching the continuing duty to disclose material documents.                            

74. Saturn's skeleton argument makes clear that this is directed towards the allegation that Havering was in breach of its disclosure obligations in the possession proceedings. As I have held, it was not. There is nothing in ground 8 and I reject it.

                                Ground 9 - The Deputy Master in ordering summary judgment failed to consider all the relevant facts, facts which disclosure would have made available to the court at trial.                            

75. It was not explained either in the skeleton argument or orally what facts the Deputy Master had failed to take into account, but if as I understand it this is an allegation that Havering had avoided having to make disclosure in these proceedings by applying for summary judgment, the point is the same as that under ground 5. If it is related to the point Mr Jinks made about the call-in procedure then that in my view is a bad point. Mr Jinks said that the exemption of the decision from the call-in process was something of which Saturn only became aware after the consent order, but that is not correct, since as I have set out above the documents provided for the trial of the possession proceedings made it clear that the decision had been exempted. For these reasons, I reject ground 9.

                                Ground 10 - Where the court failed to appreciate the effect of Havering's dishonesty, the Deputy Master misdirected himself as to the court's ability to combine cases HC11C027757 and HC13A03903.                            

76. I reject entirely the allegation that Havering acted in any way dishonestly. The Deputy Master was, in my view, right to have held that the dispute over VAT payable under the terms of the consent order should properly be dealt with by an application in the possession proceedings. I reject ground 10.

                                Ground 11 - Where two cases are inextricably and inseparably linked, and the earlier one of those cases was stayed upon a Tomlin order, the learned Deputy Master misdirected himself that he could not or that it was not appropriate to unstay proceedings in the earlier case in order to consider issues that were pertinent to both. The result was therefore not in accordance with the overriding objectives of saving expense, dealing with cases justly, proportionately to the amount of money involved, dealing with as many aspects of the case on the same occasion and avoiding a multiplicity of actions.                            

77. I refer to what I have said at paragraph 76 above. In my view the Deputy Master was right to have rejected Saturn's claim for misrepresentation by giving summary judgment in favour of Havering, and to have held that any disputes arising from the consent order be dealt with by application in the earlier action. This cannot and does not possibly offend the overriding objective. I reject ground 11.

                                Ground 12 - The Deputy Master failed to consider the weight of the Defendant's bad faith in assessing the Claimant's prospects of success and awarding summary judgment in favour of the Defendant.                            

78. There was no bad faith. The Deputy Master's conclusions were correct, and should be upheld on this appeal. I reject ground 12.

                                Ground 13 - Where the Claimant claims "any other remedy to which the Claimant is entitled", the court must consider all possible options to achieve a result that is just, including the unstaying of a relevant case. In restricting himself to considering the issue of a conditional consent, the Deputy Master's order of summary judgment produced a result that was perverse and unjust.                            

79. I repeat what I have said at paragraphs 76 and 77 above, and I reject ground 13.

               An overall perspective             

80. Saturn's claim, as set out in the original Particulars of Claim, was that Havering said it intended to demolish the Ice Rink within 2 months of the termination of Saturn's tenancy, but no demolition took place; this was therefore a misrepresentation. That claim has no reasonable prospects of success, because as Mr Sefton says it is based on a false premise. Havering had never represented an intention to demolish the premises come what may, but only if the court held that Saturn had a protected tenancy. There was no misrepresentation.

81. The amended claim (for which no permission to amend was in fact ever given) likewise also has no reasonable prospects of success, based as it is on the same false premise. The only material difference in pleading between the amended and the original Particulars of Claim is the reference to the Report of 30 April 2013. A copy of the Report was handed to me in the course of submissions. Mr Jinks submitted that the Report showed that Havering could not have held any intention to demolish the previous year because planning permission was needed, but he is wrong about that. I gave Mr Jinks a short adjournment so that he could identify the paragraphs in the Report which he said evidenced the fact that Havering could not have held an intention to demolish. The paragraphs he identified were those which showed that the Regulatory Services Committee of the Council was considering the planning issues against the Council's Core Policy. This was, of course, one of the points which Saturn had put in issue in the possession proceedings, and which was compromised by the consent order. Further, under the Town And Country Planning (General Permitted Development) Order 1995 no planning permission is needed for demolition works; the developer must however apply for a determination as to whether prior approval is required to the method and proposed restoration of the site, and (as evidenced by documents in the trial bundle) that application was made and approval was given. There was nothing, in my view, in the Report which suggested that Havering did not have, or could not have had, an intention to demolish in December 2012.

82. The case presented on appeal as set out in the grounds of appeal likewise has no reasonable prospect of success, for the reasons I have given in rejecting each of the grounds of appeal.

83. There is no other compelling reason why this action to proceed to trial. The VAT point was not raised in the original Particulars of Claim, but only in the draft Amended Particulars of Claim, for which permission was not granted. I need to deal briefly with the amendment issue and will do so below, but in my judgment, even if it was properly a live issue before him, the Deputy Master was right in holding that any dispute over the terms of the consent order - which is the VAT point - needs to be the subject of an application in the possession proceedings under the liberty to apply provisions of the consent order. I am of the same opinion. Mr Sefton told me that there was, in any event, a complete answer to the VAT claim (in that VAT was not, in the circumstances, payable) but I need not decide that issue as strictly - permission to amend not having been granted - it was not before the Deputy Master and it is not before me.

84. So far as amendment is concerned, the Deputy Master referred to Saturn having amended the Particulars of Claim. However, as I have already set out, the transcript of the hearing shows that there was no consent to the amendment (Saturn having refused to pay the usual consequential costs of the amendment), no application to amend was ever made to the Deputy Master, and no order for amendment was ever made. Thus the claim remains as set out in the original Particulars of Claim. Mr Sefton submits that a party cannot apply to amend the pleadings on an appeal against summary judgment, because the power to allow amendment subsists only until the date on which the court's order is perfected: Stewart v Engel [2000] 1 WLR 2268. In that case, the Court of Appeal held that the jurisdiction to reopen the wide discretion to amend which the judge hearing a summary judgment application has should only be exercised sparingly and where there were exceptional circumstances or strong reasons for doing so. For my part, if an application had been made to me for permission to amend the Particulars of Claim (which it was not) I would have refused it, for two reasons.

85. First, the substance of the amendment was the introduction of the new paragraph 7, which I have set out at paragraph 35 above. Mr Jinks told me that his discovery of the 2013 Minute was the catalyst behind these proceedings; if that was so, there is no reason why it could not have been pleaded in the original Particulars of Claim and no reason was put forward as to why it was not.

86. Secondly, and more importantly perhaps, for the reasons I have given in this judgment the amendments go nowhere; they certainly do not enable Saturn (for example) to make out a case for misrepresentation against Havering on the amended pleading so as to rescue a claim with no prospects of success. Therefore, I would have concluded that there were no exceptional circumstances and no good reason to allow an amendment to the claim at the hearing of this appeal.

87. However, as I have made clear, I have dealt with this appeal as a re-hearing by considering all three of the ways in which Saturn's case has been advanced: on the original Particulars of Claim, on the draft Amended Particulars of Claim, and on the basis of the grounds of appeal as explained in Saturn's two skeleton arguments.

88. I have already dealt at paragraph 69 of this judgment with the question of whether, in this case, the allegation or risk of a finding of fraud might constitute some other reason for there being a trial of this action, and have concluded that it does not. There is absolutely no question of fraud or any risk of a finding of fraud on the evidence I have seen.

               Disposal             

89. For the reasons I have given, in my view the Deputy Master was right in his conclusions. In my view also, having heard Mr Jinks's oral submission and having carefully read the grounds of appeal, the skeleton argument and the supplemental skeleton argument, there was no misrepresentation, each of the grounds of appeal which has been advanced by Saturn fails, and this appeal is dismissed.

90. As a consequence, I make no order on Havering's application for security for costs which would only have been a live issue had this appeal been allowed.

91. For all of the reasons set out in this judgment, Saturn's appeal was totally without merit. Pursuant to CPR 52.10(5) and (6) first, the order consequent on this judgment must record that finding, and secondly I must consider whether it is appropriate to make a civil restraint order ("CRO"). Practice Direction 3C applies where the court is considering whether to make a CRO against a party where such a finding has been made. A limited CRO may be made where a party has made 2 or more applications which are totally without merit. A general CRO may be made where a party has persistently issued claims or made applications which are totally without merit. When this judgment is handed down, I will hear both parties on the question of whether I should make a CRO, and deal with any other matters consequent on the findings in this judgment.