Statement of Agreed Facts in development valuation dispute: "to bind or not to bind, that is the question..." Anna Ralston-Crane, Marcus Barclay & Nick Wood
The Court of Appeal has just handed down its Judgment in the Crest Nicholson and Great Dunmow dispute, which was first before the courts in summer 2018 (Great Dunmow Estates Ltd v Crest Nicholson Operations Ltd & Crest Nicholson PLC (1) Stephen Downham (2)).
It looks like the matter may be heading back to the High Court for round three, however.
Summary and implications
• In summary, the Court of Appeal has held that the parties in an expert determination were not contractually bound by an agreement (as to the valuation date to be adopted by the expert) recorded in a ‘statement of agreed facts’.
• The date that they had purportedly agreed was not the date provided by the sale contract.
• The rationale for the appeal court decision in this case is that the underlying sale contract (which was also the agreement under which the expert was appointed) contained an express clause outlining how the parties were to lawfully effect any variation to the contract.
• The statement of agreed facts did not comply with this variation regime and so did not bind the parties.
The Court of Appeal has left it open to the landowner (who is seeking to uphold the position reached in the statement of agreed facts) to ask the High Court to consider a further argument based on estoppel, so this may not be the end of the road.
Background and Analysis
The central (and doubtless valuable) issue between the landowner (Great Dunmow Estates) and the developer (Crest) is the valuation date on which an appointed expert (Mr Downham) is required to use in determining the price of a development site acquired by Crest.
The sale contract stated, in terms, that the land price must be ascertained by Mr Downham on the challenge expiry date (the date on which the relevant planning consent became incapable of challenge) or (if later) the date of his determination.
The key point is the status and legal effect of the valuation date adopted in the statement of agreed facts.
The parties had seemingly agreed, through the parties’ surveyors compiling and signing the statement of agreed facts, that the valuation date should be the date of the expert’s determination.
Yet it transpires that the contract provides for a different date.