Woodar Investment Development Ltd v Wimpey Construction UK Ltd

Woodar Investment Development Ltd v Wimpey Construction UK Ltd

HOUSE OF LORDS

LORD WILBERFORCE, LORD SALMON, LORD RUSSELL OF KILLOWEN, LORD KEITH OF KINKEL AND LORD SCARMAN

19, 20, 21, 22 NOVEMBER 1979, 14 FEBRUARY 1980

Contract - Repudiation - Rescission - Attempted rescission amounting to repudiation - Purchaser wishing to withdraw from contract with vendor for sale of land - Purchaser purporting to rely on term of contract to rescind - Judge holding that purchaser not entitled to rescind - Whether purchaser's erroneous attempt to rescind amounting to repudiation and entitling vendor to damages.

The vendors agreed to sell and the purchasers to buy 14 acres of land for development for a price of £850,000 with provision for payment on completion of a further £150,000 to a third party who had no legal connection with the vendors. The contract further provided for the purchasers to be entitled to rescind the contract if prior to completion a statutory authority 'shall have commenced' to acquire the property by compulsory acquisition. In fact at the date the contract was signed the Minister had already commenced compulsory purchase proceedings for part of the property. It later became clear that there was a prospect of planning permission being granted for most of the land, but in the meantime land prices had fallen drastically and the purchasers wished to withdraw from the contract. After taking legal advice they purported to rescind the contract because of the Minister's actions, stating in a letter accompanying the notice of rescission that '... the contract is now discharged'. The rescission was not accepted by the vendors, although their representative stated that he would let the court decide the issue and that he assumed both parties would abide by the result. The vendors accordingly brought an action against the purchasers seeking a declaration that the purchasers were not entitled to rescind the contract. By their defence and counterclaim the purchasers sought a declaration that they had validly rescinded the contract. Thereafter the vendors brought a second action against the purchasers claiming that the notice of rescission and the defence and counterclaim together amounted to a repudiation, which they accepted and which consequently entitled them to sue for damages. Included in their claim was a claim for damages on behalf of the third party. The two actions were consolidated, and at the trial the judge held (i) that the purchasers were not entitled to rescind, because they only had power to do so in respect of compulsory purchase proceedings commenced after the date of the contract and the Minister's actions on which they had purported to rely had commenced before the contract, (ii) that by wrongly insisting on the right to rescind the purchasers had repudiated the contract, and (iii) that the vendors were entitled to recover £312,000 damages on their own account and £150,000 on behalf of the third party. On appeal the purchasers conceded that they were not entitled to rescind. The Court of Appeal, by a majority, affirmed the judge's decision on liability but reduced the damages to £137,943 payable to the vendors and £135,000 to be held on behalf of the third party. On appeal to the House of Lords on the issues of whether the purchasers' attempted rescission amounted to a repudiation of the contract and whether the vendors were entitled to recover more than nominal damages on behalf of the third party.

Held (Lord Salmon and Lord Russell of Killowen dissenting) - Unjustified rescission of a contract did not always amount to repudiation, and, although a party who had withdrawn from a contract might have had every motive for so doing, it was necessary, when deciding whether he had in fact repudiated it, to consider the circumstances and the party's conduct as a whole. On that basis, because the purchasers in attempting torescind were in fact relying (albeit erroneously) on the contract itself rather than refusing to be bound by it and because there was no evidence that they intended to abandon it or refuse future performance if the court decided against them, their erroneous and unsuccessful attempt at rescission did not amount to a repudiation. Furthermore (Lord Salmon and Lord Russell concurring) because the purchasers' defence and counterclaim had not carried their notice of rescission any further, their pleadings also did not amount to a repudiation. Accordingly, the appeal would be allowed (see p 574 c to h, p 575 e and j, p 576 c d, p 577 c, p 582 h j, p 584 g, p 586 c d, p 587 c d and g h, p 588 c to e, p 589 a b and p 590 a to, f, post).

Dicta of Lord Coleridge CJ in Freeth v Burr (1874) LR 9 CP at 213, Spettabile Consorzio Veneziano di Armamento e Navigazione v Northumberland Shipping Co Ltd [1918-19] All ER Rep 963, James Shaffer Ltd v Findlay Durham & Brodie [1953] 1 WLR 106 and Sweet & Maxwell Ltd v Universal News Services Ltd [1964] 3 All ER 30 applied.

Federal Commerce and Navigation Ltd v Molena Alpha Inc [1979] 1 All ER 307 distinguished.

Observations on the unsatisfactory state of the law regarding the recovery of damages for the benefit of third parties and (per Lord Salmon, Lord Keith of Kinkel and Lord Scarman) the need for the House of Lords to review the law in an appropriate future case (see p 576 e to p 577 b, p 583 c, p 584 h to p 585 h, p 588 f to p 589 a and p 590 h to p 591 f, post).

Jackson v Horizon Holidays Ltd [1975] 3 All ER 92 explained.

Dictum of Lord Denning MR in Jackson v Horizon Holdiays Ltd [1975] 3 All ER at 95-96 disapproved.

Tweddle v Atkinson [1861-73] All ER Rep 369, Beswick v Beswick [1967] 2 All ER 1197 and dictum of Lush LJ in Lloyd's v Harper (1880) 16 Ch D at 321 referred to.

Notes

For repudiation of contract by rescission, see 9 Halsbury's Laws (4th Edn) para 548, and for cases on the subject, see 12 Digest (Reissue) 413-415, 3042-3048.

Cases referred to in opinions

Appeal

The defendants, Wimpey Construction UK Ltd ('Wimpey'), appealed against the judgment of the Court of Appeal (Lawton and Goff LJJ, Buckley LJ dissenting in part) given on 26 October 1978 varying an order made by Fox J on 21 December 1976 awarding the plaintiffs, Woodar Investment Development Ltd ('Woodar'), £462,000 damages, for breach of contact dated 21 February 1973 for the sale by Woodar and purchase by Wimpey of 14·4341 acres situated at Cobham, Surrey, such damages to include the sum of £150,000 for the use and benefit of a third party nominated by Woodar, Transworld Trade Ltd. By its order of 26 October 1978 the Court of Appeal reduced the damages to £272,943 including £135,000 for the use of Transworld Trade Ltd. The facts are set out in the opinion of Lord Wilberforce.

Jonathan Parker QC and S Acton for Wimpey.

Leolin Price QC and Nicholas Stewart for Woodar.

Their Lordships took time for consideration

14 February 1980. The following opinions were delivered.

LORD WILBERFORCE.

My Lords, the appellants ('Wimpey') are defendants in this action brought by the respondents ('Woodar') on a contract of sale dated 21 February 1973. This contract, in which Woodar were the vendors and Wimpey the purchasers, related to 14 acres of land at Cobham, Surrey, near to the site later occupied by the Esher by-pass road. There was the prospect of planning permission being granted for development. The purchase price was £850,000 and there was a special condition (condition I) that on completion Wimpey should pay £150,000 to a company called Transworld Trade Ltd. Completion was fixed for the earliest of three dates, namely (i) two months from the granting of outline planning permission for the development of the property, (ii) 21 February 1980, (iii) such date as Wimpey should specify by not less than 14 days' notice in writing.

The contract contained a special condition, condition E, under which there was reserved to Wimpey power to rescind the contract in either of three events. The first related to failure to obtain outline planning permission, the second to failure to obtain an easement giving access to the property, and the third condition (E(a)(iii)), was in the following terms:

'[If prior to the date of completion] any Authority having a statutory power of compulsory acquisition shall have commenced to negotiate for the acquisition by agreement or shall have commenced the procedure required by law for the compulsory acquisition of the property or any part thereof.'

On 20 March 1974 Wimpey sent to Woodar a notice in writing purporting to rescind the contract under this provision. The notice stated that the ground relied on was that the Secretary of State for the Environment had commenced the procedure required by law for the compulsory acquisition of 2·433 acres of the property.

It was in fact known to both parties at the date of the contract that certain steps had already been taken in relation to these 2·433 acres. In 1970 the Minister had given notice of a draft compulsory purchase order to the then owner, and this fact had been published in the local press. Notice had been given of the appointment of an inspector to hold a public inquiry, and this was held. A compuslory purchase order was made on 8 November 1973. On these facts, Woodar contended that special condition E(a)(iii) could not be invoked by Wimpey because the relevant procedure for compulsory purchase had started before the date of the contract, and so did not come within the words 'shall have commenced'. This contention was upheld by Fox J at the trial and was not the subject of appeal, so that Wimpey's claim to invoke the condition has failed.

This gives rise to the first issue in this appeal: whether, by invoking special condition E(a)(iii), and in the circumstances, Wimpey are to be taken as having repudiated the contract. Woodar so claim, and assert that they have accepted the repudiation and are entitled to sue Wimpey for damages.

My Lords, I have used the words 'in the circumstances' to indicate, as I think both sides accept, that in considering whether there has been a repudiation by one party, it is necessary to look at his conduct as a whole. Does this indicate an intention to abandon and to refuse performance of the contract? In the present case, without taking Wimpey's conduct generally into account, Woodar's contention, that Wimpey had repudiated, would be a difficult one. So far from repudiating the contract, Wimpey were relying on it and invoking one of its provisions, to which both parties had given their consent. And unless the invocation of that provision were totally abusive, or lacking in good faith, (neither of which is contended for), the fact that it has proved to be wrong in law cannot turn it into a repudiation. At the lowest, the notice of rescission was a neutral document consistent either with an intention to preserve, or with an intention to abandon, the contract, and I will deal with it on this basis, more favourable to Woodar. In order to decide which is correct Wimpey's conduct has to be examined.

One point can, in my opinion, be disposed of at once. Woodar, in March 1974, started proceedings against Wimpey: this is one of the actions consolidated in the litigation before us. They claimed a declaration that Wimpey's notice of rescission was not valid, and Wimpey, by their defence asserted the contrary and they counterclaimed for a declaration to that effect. Woodar now contend that if the original notice did not amount to a repudiation, the defence and counterclaim did. I regard this contention as hopeless. Wimpey's pleading carried the matter no further: it simply rested the matter on the contract. It showed no intention to abandon the contract whatever the result of the action might be. If the action were to succeed (ie if Wimpey lost) there was no indication that Wimpey would not abide by the result and implement the contract.

The facts indicative of Wimpey's intention must now be summarised. It is clear in the first place that, subjectively, Wimpey in 1974 wanted to get out of the contract. Land prices had fallen, and they thought that if the contract was dissolved, they could probably acquire it at a much lower price. But subjective intention is not decisive: it supplied the motive for serving the notice of rescission; there remains the question whether, objectively regarded, their conduct showed an intention to abandon the contract.

In early 1974 there was a possibility that some planning permission might be granted. If it were, and unless Wimpey could take valid objection to it, completion would (under the conditions) have to follow in two months. Therefore, if a notice of rescission were to be given, it had to be served without delay, ie before the planning permission arrived. In this situation, Wimpey's advisers arranged a meeting with a Mr Cornwell, who was acting for Woodar, or as an intermediary with power to commit Woodar, to discuss the matter. This took place on 7 March 1974 and is recorded as a disclosed aide memoire dated the next day. This document was prepared by Wimpey, and we have not had the benefit of Mr Cornwell's evidence on it: he died before the trial. But the rest of the correspondence is fully in line with it and I see no reason to doubt its general accuracy. After recording each side's statement of position, the document contained, inter alia, these passages: 'He [Mr Cornwell] stated that if we attempted to rescind the contract, then he would take us to court and let the judge decide whether the contract could be rescinded on the point we were making.' This 'point' was undoubtedly that relating to the compulsory purchase of the 2·435 acres. The aide memoire continues:

'I told him that our Legal Department would be serving the Notice to Rescind the Contract within a short while--this would ensure that the company was fully protected and was prudent. He assured me that he would accept it on that basis and not regard it as a hostile act.'

The notice was then served on 20 March 1974. On 22 March Woodar's solicitors wrote that they did not accept its validity. On 30 May 1974 Mr Cornwell wrote a long letter to Sir Godfrey Mitchell, president of Wimpey. I refer to one passage:

'... within a few days of the original meeting, a notice of rescission was served upon the vendor company by your organisation that the contract was to be rescinded. Simultaneously with that notice of rescission, proceedings were instituted and there the matter remains so far as the legal situation is concerned and both parties, from the legal point of view, must now await the decision of the court as to the validity of the claim made by Messrs. George Wimpey & Co. Limited that they are entitled to rescind this contract upon the grounds which they have so stated.'

On 4 June 1974 Mr Cornwell wrote again: 'All I need say now is that we will retire to our battle stations and it goes without saying I am sure that you will abide by the result as I will.'

My Lords, I cannot find anything which carries the matter one inch beyond, on Wimpey's part an expressed reliance on the contract (in condition E(a)(iii)), on Woodar's side an intention to take the issue of the validity of the notice (nothing else) to the courts, and an assumption, not disputed by Wimpey, that both sides would abide by the decision of the court. This is quite insufficient to support the case for repudiation. There is only one other matter relied on. At the date of the contract (21 February 1973) there were arrangements made for a loan of £165,000 to be made to Woodar by the National Westminster Bank. Wimpey guaranteed, subject to three months' notice of termination, Woodar's indebtedness to the bank up to £165,000 and agreed with the bank to meet interest and other charges. As between Wimpey and Woodar it was agreed that Wimpey should indemnify Woodar against all interest on the loan for seven years or until the contract should be 'fulfilled or discharged'. These arrangements did not form part of the contract of sale but were collateral to it.

When the notice of rescission was served on 20 March 1974, it was accompanied by a covering letter, of the same date, referring to the loan arrangements stated which:

'The undertaking was limited to seven years from the date of exchange, or until the Contract was fulfilled or discharged. As the Contract is now discharged by the enclosed Notice, [Woodar] will now be liable for the charges incurred in respect of this loan.'

Wimpey also gave three months' notice to the bank terminating the guarantee. Again, in my opinion, this carried the matter no further. It simply drew the attention of Woodar to the consequences which would follow from rescission of the contract, nothing more. Woodar, in fact understood it as such, for they wrote to the bank on 8 April 1974 stating that proceedings had been instituted against Wimpey for a declaration 'which, if successful, will reinstate the arrangements which you now give notice you intend to bring to an end.'

My Lords, in my opinion, it follows, as a clear conclusion of fact, that Wimpey manifested no intention to abandon, or to refuse future performance of, or to repudiate the contract. And the issue being one of fact, citation of other decided cases on other facts is hardly necessary. I shall simply state that the proposition that a party who takes action relying simply on the terms of the contract and not manifesting by his conduct an ulterior intention to abandon it is not to be treated as repudiating it, is supported by James Shaffer Ltd v Findlay Durham & Brodie and Sweet & Maxwell Ltd v Universal News Services Ltd.

In contrast to these is the case in this House of Federal Commerce and Navigation Co Ltd v Molena Alpha Inc ([1979] 1 All ER 307 at 315, [1979] AC 757 at 780) which fell on the other side of the line. Of that I said:

'The two cases relied on by the owners (James Shaffer Ltd v Findley Durham & Brodie and Sweet & Maxwell v Universal News Services Ltd) ... would only be relevant here if the owners' action had been confined to asserting their own view, possibly erroneous, as to the effect of the contract. They went, in fact, far beyond this when they threatened a breach of contract with serious consequences.'

Spettabile Consorzio Veneziano di Armamento e Navigazione v Northumberland Shipbuilding Co Ltd, though in some factual respects distinguishable from the present, is nevertheless, in my opinion, clear support for Wimpey.

In my opinion, therefore, Wimpey are entitled to succeed on the repudiation issue, and I would only add that it would be a regrettable development of the law of contract to hold that a party who bona fide relies on an express stipulation in a contract in order to rescind or terminate a contract should, by that fact alone, be treated as having repudiated his contractual obligations if he turns out to be mistaken as to his rights. Repudiation is a drastic conclusion which should only be held to arise in clear cases of a refusal, in a matter going to the root of the contract, to perform contractual obligations. To uphold Woodar's contentions in this case would represent an undesirable contention of the doctrine.

The second issue in this appeal is one of damages. Both courts below have allowed Woodar to recover substantial damages in respect of condition 1 under which £150,000 was payable by Wimpey to Transworld Trade Ltd on completion. On the view which I take of the repudiation issue, this question does not require decision, but in view of the unsatisfactory state in which the law would be if the Court of Appeal's decision were to stand I must add three observations.

1. The majority of the Court of Appeal followed, in the case of Goff LJ with expressed reluctance, its previous decision in Jackson v Horizon Holidays Ltd. I am not prepared to dissent from the actual decision in that case. It may be supported either as a broad decision on the measure of damages (per James LJ) or possibly as an example of a type of contract, examples of which are persons contracting for family holidays, ordering meals in restaurants for a party, hiring a taxi for a group, calling for special treatment. As I suggested in New Zealand Shipping Co Ltd v A M Satterthwaite & Co Ltd ([1974] 1 All ER 1015 at 1020, [1975] AC 154 at 167), there are many situations of daily life which do not fit neatly into conceptual analysis, but which require some flexibility in the law of contract. Jackson's case may well be one.

I cannot agree with the basis on which Lord Denning MR put his decision in that case. The extract on which he relied from the judgment of Lush LJ in Lloyd's v Harper ((1880) 16 Ch D 290 at 321) was part of a passage in which Lush LJ was stating as an 'established rule of law' that an agent (sc an insurance broker) may sue on a contract made by him on behalf of the principal (sc the assured) if the contract gives him such a right, and is no authority for the proposition required in Jackson's case, still less for the proposition, required here, that, if Woodar made a contract for a sum of money to be paid to Transworld, Woodar can, without showing that it has itself suffered loss or that Woodar was agent or trustee for Transworld, sue for damages for non-payment of that sum. That would certainly not be an established rule of law, nor was it quoted as such authority by Lord Pearce in Beswick v Beswick.

2. Assuming that Jackson's case was correctly decided (as above), it does not carry the present case, where the factual situation is quite different. I respectfully think therefore that the Court of Appeal need not, and should not have followed it.

3. Whether in a situation such as the present, viz where it is not shown that Woodar was agent or trustee for Transworld, or that Woodar itself sustained any loss, Woodar can recover any damages at all, or any but nominal damages, against Wimpey, and on what principle, is, in my opinion, a question of great doubt and difficulty, no doubt open in this House, but one on which I prefer to reserve my opinion.

I would allow the appeal.

LORD SALMON.

My Lords, this case raises a point of law of considerable importance in relation to the repudiation of contracts.

Between July 1969 and February 1973 prolonged negotiations took place between Mr Ronald Cornwell and Wimpey for the purchase by Wimpey of 14·4341 acres of freehold land known as Mizen's Nurseries at Cobham. In January 1973 Wimpey learnt from Mr Cornwell that the vendors were to be Woodar. By February 1973 the purchase price had been agreed at £1 million. In that month Mr Cornwell proposed that part of the purchase price should be paid to him as European agent for Transworld Trade Ltd, and a few days later it was agreed that that part of the purchase price should amount to £150,000 and be paid to Transworld direct.

It was also arranged that the contract should provide for a loan of £165,000, secured by a charge on the land (the subject-matter of the contract) to be made to Woodar by Wimpey through their bank and that Wimpey should be responsible for servicing the loan. Wimpey were, however, advised that the loan should be treated separately from the contract, otherwise the contract might be void as constituting a clog on the equity of redemption under the charge. Accordingly, on 21 February 1973 Wimpey's bank lent Woodar £165,000 and Woodar executed a legal charge on the land in respect of the loan. Wimpey gave a written undertaking to the bank to meet all interest and other charges in respect of the loan until 21 February 1980 'or until the contract should be fulfilled or discharged' (emphasis mine). The facts which I have related are all taken out of Wimpey's printed case.

The written contract for the purchase of the land by Wimpey from Woodar was also executed on 21 February 1973. It specified the purchase price as £850,000 and laid down at the end of the contract in condition I that on the completion of the purchase of the whole or any part of this land, Wimpey should pay Transworld £150,000.

I will now turn to the material clauses in the contract. Condition E(a) so far as relevant reads:

'This Contract shall be absolutely binding on both parties ... for a period of seven years from the date hereof but there shall be reserved to [Wimpey] only the power to rescind this contract if prior to the date of completion ... (iii) any Authority having a statutory power of compulsory acquisition shall have commenced to negotiate for the acquisition by agreement or shall have commenced the procedure required by law for the compulsory acquisition of the property or any part thereof.'

This condition, quite obviously, refers only to any such negotiation or procedure commenced after the execution of the contract and prior to completion but not to any negotiation or procedure which had commenced and of which both parties were well aware before they executed the contract.

Condition E (c), so far as relevant, reads:

'The power to rescind reserved to [Wimpey] by sub-clause (a) ... shall be exercisable by the service of a notice in writing to that effect upon [Woodar] ... and [Wimpey] liability under ... this Contract shall from the date of service of such notice cease.'

Condition E(g) provides that completion shall take place on the earliest of the three dates it mentions, namely (i) two months after the date on which outline planning permission for the development of the property was granted, (ii) 21 February 1980, (iii) such date as Wimpey should specify but not by less than 14 days' written notice.

Returning to condition E(a)(iii) of the contract, it is common ground that Wimpey and Woodar both knew, well before the contract between them was executed, (1) that in 1970 the Minister of the Environment had given notice of a draft compulsory purchase order in respect of 2·433 acres of the 14·4341 acres covered by the contract, (2) that this fact had been published in the local press, and (3) that notice had also been given of the appointment of an inspector to hold a public inquiry which he had duly held. Indeed, there is a provision in the contract under condition G which, so far as relevant, reads:

'It is hereby agreed that [Woodar] shall not require [Wimpey] to include in the Transfer to [Wimpey] and part ... of the land hereby agreed to be sold which shall be required by the Surrey County Council ... or any Statutory Authority ... and the purchase price shall be abated at the rate of £70,000 per acre ... for any part ... of the land hereby agreed to be sold which shall not be included in the Transfer to [Wimpey].'

It is to be observed that if the land is priced in the contract at £70,000 an acre, the 14·4341 acres sold under the contract would, in fact, be priced at about £1 million.

By March 1974 there had been a very alarming slump in the value of land. It is quite clear from one of Wimpey's internal memoranda, written at the beginning of that month, that Wimpey had no intention of honouring their contract by paying the agreed price of £70,000 an acre for the land; and that they intended to repudiate the contract but would gladly enter into a new contract with Woodar to buy the land at £48,000 an acre, on otherwise the same terms as those of the existing contract. The relevant part of the memorandum reads as follows:

'Revised broadsheets have been prepared taking account of the reduced selling price of houses and increased building costs and these indicate that currently to show 20% profit we can offer £48,000 per acre, to show 15% profit £53,000 per acre. The indications are that this piece of land could obtain outline planning permission within the next 4 months, in which case we as a company would be obliged to perform in accordance with the obligations of our contract to purchase subject to the various conditions. We propose arranging a meeting with Mr. Cornwell to discuss formally with him: (a) Our intention to rescind the contract so that he is obliged to pay the interest on the loan thereafter from that date. (b) To make him a proposal that we are prepared to proceed with the purchase of the land at the reduced figure of £48,000 per developable acre subject, of course, to the same terms and conditions.'

On 20 March 1974 a notice was sent to Woodar by Wimpey in the following terms:

'Pursuant to Clause E (c) of a Contract dated the Twenty-first day of February 1973 and made between Woodar Investment Development Limited of the one part and George Wimpey & Co, Limited of the other part the said George Wimpey & Co, Limited hereby rescinds the said Contract on the ground that within the meaning of Clause E(a)(iii) of the said Contract the Secretary of State for the Environment has commenced the procedure required by law for the compulsory acquisition of part of the property (a Compulsory Purchase Order relating to the land edged red on the plan annexed hereto having been made).'

I am afraid that I am entirely unable to agree with the proposition that this notice of rescission was a neutral averment consistent either with the intention to preserve or with an intention to abandon the contract. To my mind it was served with the clearly expressed intention of bringing the contract to an end. This notice was accompanied by a letter of the same date, the last paragraph of which reads as follows:

'When Contracts for the sale and purchase of the above land were exchanged, an undertaking was given by [Wimpey] indemnifying Woodar Investment Development Limited against all interest charges payable to the National Westminster Bank Limited as a result of a loan by them to you of a sum of £165,000.00. The undertaking was limited to seven years from the date of exchange or until the Contract was fulfilled or discharged. As the Contract is now discharged by the enclosed Notice, Woodar Investment Development Limited will now be liable for the charges incurred in respect of this loan.' (Emphasis mine.)

My lords, it was conceded in this House on behalf of Wimpey that they had no right to rescind, discharge or repudiate the contract. In my respectful opinion, Wimpey had made it crystal clear by their notice and letter of 20 March that they purported to bring their liability under the contract to an end by rescinding and discharging it; and that they had no intention of paying the contract price for the land in question. If this does not go to the root of the contract and evince an unequivocal intention no longer to be bound by it, and therefore amounts to a repudiation of the contract, I confess that I cannot imagine what would.

In the court of first instance, Wimpey sought to justify their notice and letter of 20 March 1974 on the ground that prior to the execution of the contract of 21 February 1973, steps had been taken for the compulsory acquisition of 2·433 acres out of the 14·4341 acres the subject matter of the contract. I have already described these steps and I shall not repeat them. It is common ground that all these steps were well known both to Wimpey and to Woodar at the time they were taken. The point was nevertheless argued on behalf of Wimpey before the trial judge that because of these steps having been taken when they were, Wimpey were entitled under condition E(a)(iii) of the contract to rescind the contract and refuse to perform it. The learned trial judge made short work of that point and decided that it was untenable. The point was so obviously bad that it was wisely decided by counsel on behalf of Wimpey not to be worth taking in the Court of Appeal. It was however accepted by Woodar that on 20 March 1974, Wimpey honestly believed in the point which they later abandoned. I do not understand how Wimpey's honest belief in a bad point of law can in any way avail them. In Federal Commerce Navigation Co Ltd v Molena Alpha Inc ([1978] 3 All ER 1066 at 1082, [1978] QB 927 at 979) Lord Denning MR said:

'I have yet to learn that a party who breaks a contract can excuse himself by saying that he did it on the advice of his lawyers; or that he was under an honest misapprehension. Nor can he excuse himself on those grounds from the consequences of a repudiation.'

I gratefully adopt that passage which seems to me to be particularly apt in the present case. It certainly was never questioned in your Lordships' House when the appeal from the decision of the Court of Appeal in the Federal Commerce case was dismissed.

In Freeth v Burr ((1874) LR 9 CP 208 at 213, [1874-80] All ER Rep 750 at 753) Lord Coleridge CJ said:

'... where the question is whether the one party is set free by the action of the other, the real matter for consideration is whether the acts or conduct of the one do or do not amount to an intimation of an intention to abandon and altogether to refuse performance of the contract.'

In Mersey Steel and Iron Co Ltd v Naylor, Benzon and Co ((1884) 9 App Cas 434 at 439, [1881-5] All ER Rep 365 at 368 ) Lord Selborne LC, after approving what Lord Coleridge CJ said in Freeth v Burr ((1874) LR 9 CP 208 at 213, [1874-80] All Rep 750 at 753), went on to say:

'... you must examine what the conduct is, as to see whether it amounts to a renunciation, to an absolute refusal to perform the contract, such as would amount to a rescission if he had the power to rescind, and whether the other party may accept it as a reason for not performing his part ... '

In Spettabile Consorzio Veneziano di Armamento e Navigazione v Northumberland Shipbuilding Co Ltd ((1919) 121 LT 628 at 634-635, [1918-19] All ER Rep 963 at 968) Atkin LJ said:

'A repudiation has been defined in different terms--by Lord Selborne as an absolute refusal to perform a contract; by Lord Esher as a total refusal to perform it; by Bowen, L.J. in Johnstone v Milling as a declaration of an intention not to carry out a contract when the time arrives, and by Lord Haldane in Bradley v H. Newsom, Sons, & Co. Limited as an intention to treat the obligation as altogether at an end. They all come to the same thing, and they all amount, at any rate to this, that it must be shown that the party to the contract made quite plain his own intention not to perform the contract.'

In Heyman v Darwins Ltd ([1942] 1 All ER 337 at 350, [1942] AC 356 at 378-379) Lord Wright said:

'There is a form of repudiation, however, where the party who repudiates does not deny that a contract was intended between the parties, but claims that it is not binding because of the failure of some condition or the infringement of some duty fundamental to the enforceability of the contract, it being expressly provided by the contract that the failure of condition or the breach of duty should invalidate the contract ... But perhaps the commonest application of the word "repudiation" is to what is often called the anticipatory breach of a contract where the party by words or conduct evinces an intention no longer to be bound, and the other party accepts the repudiation and rescinds the contract. In such a case, if the repudiation is wrongful and the rescission is rightful, the contract is ended by the rescission, but only as far as concerns future performance. It remains alive for the awarding of damages ... for the breach which constitutes the repudiation.'

In my opinion, the repudiation in the present case exactly fits the repudiation which Lord Wright explains in the passage which I have just cited.

I do not recall that any of these definitions of a repudiation of a contract have ever, until now, been questioned. The fact that a party to a contract mistakenly believes that he has the right to refuse to perform it cannot avail him. Nor is there any authority for the proposition that if a party to a contract totally refuses to perform it, this refusal is any the less a repudiation of the contract because he honestly but mistakenly believes that he is entitled by a condition of the contract to refuse to perform it.

It would indeed be unfortunate if the law were otherwise. A mistake in the construction of a contractual condition, even such a glaringly obvious mistake as the present, can apparently easily be made especially perhaps when the market price has fallen far below the contract price. It is acknowledged in this case that the mistake was an honest one. If, however, a case arose in which a mistake of this kind was alleged to be an honest mistake, but not acknowledged to be so, it would be extremely difficult, if not impossible to prove the contrary.

James Shaffer Ltd v Findlay Durham & Brodie and Sweet & Maxwell Ltd v Universal News Services Ltd were strongly relied on on behalf of Wimpey. Those two cases were very different from each other and even more different from the present case; in my opinion they certainly lend no more support to Wimpey than they did to the appellants in the Federal Commerce case. Indeed, if anything they are of some help to Woodar. In the former case, Singleton LJ said ([1953] 1 WLR 106 at 121 ) '... is it possible to say that the defendants ... showed an intention to abandon and altogether to refuse the performance of the contract? ... I think not.' Morris LJ said ([1953] 1 WLR 106 at 124 ): 'I have no doubt that (the defendants) wanted to go on with the contract.' In the latter case, Harman LJ said ([1964] 3 All ER 30 at 39, [1964] 2 QB 699 at 729)

'... repudiation really is not in the picture here at all, because if the defendant company was not wholly justified in the attitude it took up [on the construction of the agreement], the plaintiff company was not wholly justified in its attitude either and could only treat the defendant company's refusal to comply with its demands as repudiation if its demands were wholly right. Therefore ... repudiation does not really arise: but as it was the ground of the judgment of the learned judge below I think that I ought to say something about it ... there was not that absolute refusal to go on which is necessary to arrive at a conclusion that an agreement ... has been entirely repudiated.'

Pearson LJ said much the same.

The present case is, however, quite different from the James Shaffer case and the Sweet & Maxwell case because Wimpey made it very plain by their notice and letter of 20 March 1974 that they had no intention to go on with the contract and buy the land at the contract price.

Spettabile Consorzio Veneziano di Armamento e Navigazione v Northumberland Shipbuilding Co Ltd was also strongly relied upon on behalf of Wimpey. The facts of that case were very strange and clearly distinguishable from the present. Goff LJ in the Court of Appeal made a long and masterly analysis of that case with which I agree and gratefully adopt. I do not consider that that case is, in reality, of any help to Wimpey.

I cannot accept that the majority of the Court of Appeal concentrated too much attention on Wimpey's rescission notice of 20 March 1974 and not enough on its surrounding circumstances. In any event, it seems to me that those surrounding circumstances supported Woodar's case rather than Wimpey's. I think that it is obvious from the surrounding circumstances that Wimpey had made up their mind at the beginning of March 1974 (and never changed it) that, in no circumstances would they comply with their contractual obligation to buy the land in question at the price of £70,000 per acre. This is made clear by the language of their memorandum which I have already cited and which appears to have been written a day or two before Wimpey's aide memoire of 8 March 1974 on which Wimpey rely. I do not understand how that document can be evidence against Woodar, even if Mr Cornwell were still alive. Nor do I think that even if the document were admissible in evidence it could be accepted as being accurate in every detail. Looking at the document as a whole, however, it seems to support Woodar's case rather than Wimpey's. It indicates (1) that Wimpey made plain to Mr Cornwell what was recorded in the memorandum which I have cited, (2) that Mr Cornwell was anxious to effect a compromise and suggested that 'the money could be paid to him over a period of up to say five years, or that the price could be lowered or a combination of both', (3) that Wimpey replied that 'the mere extension of five years would not be attractive to us, but that if the land value was vastly reduced we would still like to remain with the deal' (emphasis mine), and (4) that Mr Cornwell then said 'that he would go away and consider the lowest price that he could afford to sell it to us and that below that price he would fight us through the Courts'.

On 22 March 1974, two days after the notice of rescission was served by Wimpey, Woodar's solicitors wrote that they did not accept its validity. By a writ of summons endorsed with a statement of claim served on 29 March 1974 Woodar, amongst other things, claimed against Wimpey a declaration that their notice of 20 March 1974 did not rescind the contract. It may well be that Woodar considered that once they commenced legal proceedings, Wimpey would throw in their hand. If so, they were mistaken, for Wimpey served a defence and counterclaim on 18 May 1974 alleging that the notice of rescission of 20 March 1974 was valid and counterclaimed a declaration that the contract had been rescinded by that notice.

Mr Cornwell, who seems to have done all the negotiations on behalf of Woodar, was obviously anxious if possible to settle rather than embark on lengthy and expensive litigation. He was no doubt disappointed when Wimpey made it clear by their defence and counterclaim that they intended to fight. He probably, I think, wrote his lengthy letter of 30 May 1974 in one last effort to effect a settlement. Wimpey have sought to make much of this letter which in my view helps Woodar rather than Wimpey. It seems to make it very plain that Mr Cornwell had consulted counsel on the notice of rescission and had been advised that it constituted a wrongful repudiation of the contract. I cite one brief passage from it: '... unless some compromise is reached and quickly, then I shall feel obliged to sell immediately in the best possible circumstances with a certain knowledge, so far as counsel's advice is concerned, that we have a complete redress against [Wimpey].' Of course there was nothing to stop the parties waiting and doing nothing until the litigation constituted by the first action was over as Mr Cornwell said earlier in his letter. But there was nothing to prevent Woodar from selling immediately and bringing another action claiming damages, once they had accepted the repudiation to which I have already referred.

At the time when Mr Cornwell's letter of 4 June 1974 was written, on which my noble and learned friend Lord Scarman places considerable reliance, Woodar had not accepted the repudiation: and a repudiation, however wrongful is nugatory until accepted by the other contracting party.

The result of the first action must have been in Woodar's favour. They could have waited until completion was due under the contract, which could not have been later than 21 February 1980. Wimpey might then perhaps have completed the contract or they might have failed to complete it, in which event they would have had no defence to an action for specific performance or damages. There was, however, nothing to compel Woodar to confine themselves to the first action. They had a free choice to do so or to accept the wrongful repudiation which would enable Woodar to bring the second action claiming damages for an anticipatory breach of the contract.

I entirely agree with my noble and learned friend Lord Wilberforce that Wimpey's counterclaim in the first action did not amount to a repudiation of the contract. For the reasons I have given, however, their repudiation of the contract had, in my view, been effected by the notice of rescission dated 20 March 1974 and supported by the letter of the same date.

Although I cannot agree with Buckley LJ that the contract was not wrongfully repudiated, I do agree with his view that, if Wimpey's notice of 20 March 1974 did not constitute a wrongful repudiation of the contract of 21 February 1973, the proceedings launched by Woodar against Wimpey on 29 March 1974 could not preclude them from accepting that repudiation and bringing another action against Wimpey claiming damages for an anticipatory breach of contract. And this is what Woodar did. On 10 July 1974, through their solicitors, they accepted the wrongful repudiation of 20 March 1974 and then launched their action for damages for an anticipatory breach of contract. The two actions were consolidated and duly tried by Fox J who found that Wimpey had wrongfully repudiated the contract of 21 February 1973 and gave judgment in favour of Woodar for, in all, £462,000 damages.

The Court of Appeal by a majority affirmed Fox J's decision on liability but reduced the damages to £272,943.

My Lords, for the reasons I have stated, I would dismiss the appeal on the issue of liability. Since, as I understand, the majority of your Lordships are for allowing the appeal on liability, the interesting question in relation to damages in respect of the claim for £150,000 does not now arise. I do, however, agree with what my noble and learned friend Lord Wilberforce has said about the finding of the majority of the Court of Appeal (Goff LJ with reluctance) on this topic. I would add that, in my opinion, the law as it stands at present in relation to damages of this kind is most unsatisfactory; and I can only hope that your Lordships' House will soon have an opportunity of reconsidering it unless in the meantime it is altered by statute.

LORD RUSSELL OF KILLOWEN.

My Lords, the contention advanced by the purchaser ('Wimpey') was that it was entitled to rescind the contract by notice of rescission under special condition E(a)(iii) of the contract, because the relevant authority had 'commenced the procedure' required by law for compulsory acquisition not earlier than the making of the compulsory purchase order on 8 November 1973, subsequent to the contract. Fox J held that this was incorrect; and that even if it were a correct construction of the contract there should be rectification to make it clear that steps taken by the authority in that connection prior to the contract constituted commencement of the relevant procedure and were not intended to afford a ground for rescission under the special condition. From that holding there was and is no appeal.

Consequently there was no justification in law for the notice of rescission, and the first question in this appeal is whether the notice of rescission was capable of being accepted by the vendor ('Woodar') as a renunciation or repudiation of the contract by Wimpey. An affirmative answer to that question was assumed, or not disputed, before Fox J, and was given by the majority in the Court of Appeal (Buckley LJ dissenting).

The difference of opinion on this point in the Court of Appeal and in your Lordships' House turns on a question which can be shortly stated. If a party to a contract has a power thereunder totally to rescind and renounce all liability to perform any part of its obligations under a contract, and in terms purports absolutely so to rescind and renounce on grounds that in law are not justified, can there ever be circumstances which enable the rescinder to dispute the renunciatory and repudiatory quality of his action?

My Lords, in my opinion the answer to that question is in the negative.

I do not of course dispute that a mistaken concept of the rights of a party under the contract, and action (or inaction) on the basis of that mistaken concept, need not constitute such a renunciation of the contract as to be capable of being accepted as repudiation of the contract. Nor do I dispute that repudiation is a serious matter not lightly to be found. Nor do I dispute that in most cases repudiation or non-repudiation falls to be decided having regard to all the circumstances of a case. But I deny that a clear case of the purported exercise of a power of rescission, a total renunciation of all future obligation to perform any part of the contract, such as now concerns your Lordships, can by any circumstances be watered down or deprived of its repudiatory quality. I further assert that it is fallacious to deny that totally renunciatory and repudiatory quality on the ground that because the action is purportedly taken under a clause in the contract it is somehow affirming rather than repudiating the contract. The notice of rescission given in this case by Wimpey was wholly unequivocal, in effect saying that Wimpey would not in any circumstances fulfil the contract: and that flat statement is not to be regarded as otherwise than renunciatory of the contract because Wimpey genuinely thought that it was entitled in law to take that attitude.

It is of course true that in previous discussion with Mr Cornwell (for Woodar) it was indicated that Wimpey's right to rescind on the ground suggested would be challenged by Woodar in proceedings. But I see no ground in that for watering down the absolute nature (or colour) of the notice of rescission as being somehow conditional on the rectitude in law of Wimpey's stance. Indeed I do not accept a view that the notice of rescission could have been (i) expressed to be conditional on its justification in law but (ii) then operative to terminate all liability of Wimpey under the contract, as it was manifestly intended to be because it was feared that shortly a planning permission would be forthcoming (though it was not) which would trap Wimpey irrevocably into an unprofitable bargain.

I can, my Lords, envisage a situation in which a party in the position of Woodar might state unequivocally in advance that if Wimpey were to serve the notice which it did serve, Woodar would not, when it was shown in proceedings that the notice was unjustified, treat it as repudiatory. But that would achieve a position in which Woodar would be debarred from asserting repudiation, rather than constitute a circumstance qualifying the fundamental renunciatory character of the purported exercise by Wimpey of the power. But it cannot be said that such a position was achieved by anything said by Mr Cornwell in this case.

I am, my Lords, not led to a contrary view by the circumstances of the Spettabile case at first instance. There the view was taken that if originally a communication would have indicated a repudiatory attitude, subsequent approach to the court by the 'repudiator' for a decision on the rights of the case should be taken as withdrawal of the original repudiation. That is not this case. The resort to the court was not by Wimpey, and Wimpey never withdrew its notice of rescission to abide the outcome of the litigation.

It was suggested that the proceedings by Woodar for declaration and/or rectification somehow constituted an election not to accept the rescission as a repudiation, so that Woodar's later purported acceptance of it as such was ineffective. In common with, I believe, all your Lordships I cannot accept that. Woodar was obliged to take the steps that it did in order to establish that the notice was unjustified in law and therefore an unjustified repudiation.

Accordingly in my opinion Wimpey wrongfully repudiated the contract by its notice of rescission, and Woodar accepted that repudiation so as to entitle it to damages for total breach.

In arriving at my conclusion I do not rely on the reference to interest payments in the covering letter enclosing the rescission notice, or on the defence or counterclaim of Wimpey. These seem to me to add nothing to the repudiatory nature of the notice itself.

In conclusion on this point I cannot agree that, if my opinion were correct, it would be an unfortunate step in the law. If a party takes such a bold step he risks disaster. If he plunges in without first testing the temperature by a construction summons asking whether the rescission remedy is available to him he runs the risk of catching a severe cold.

There is no question on this appeal as to quantum of damage save under the heading of damages for breach of special condition I, under which Wimpey agreed on completion of the sale to pay £150,000 to Transworld, a Hong Kong company. Transworld was in some way connected with Mr Cornwell, who died before action. No evidence connects Transworld with Woodar, the party to the contract. No evidence suggests that Woodar could suffer any damage from a failure by Wimpey to pay £150,000 to Transworld. It is clear on the authority of Beswick v Beswick that Woodar on completion could have secured an order for specific performance of the agreement to pay £150,000 to Transworld, which the latter could have enforced. That would not have been an order for payment to Woodar, nor (contrary to the form of order below) to Woodar for the use and benefit of Transworld. There was no suggestion of trust or agency of Woodar for Transworld. If it were necessary to decide the point, which in the light of the views of the majority of your Lordships on the first point it is not, I would have concluded that no more than nominal damages had been established by Woodar as a consequence of the refusal by Wimpey to pay Transworld in the light of the law of England as it now stands. I would not have thought that the reasoning of Oliver J in Radford v De Froberville supported Woodar's case for substantial damages. Nor do I think that on this point the Court of Appeal was correct in thinking it was constrained by Jackson v Horizon Holidays Ltd to award substantial damages. I do not criticize the outcome of that case: the plaintiff had bought and paid for a high class family holiday; he did not get it, and therefore he was entitled to substantial damages for the failure to supply him with one. It is to be observed that the order of the Court of Appeal as drawn up did not suggest that any part of the damages awarded to him were 'for the use and benefit of' any member of his family. It was a special case quite different from the instant case on the Transworld point.

I would not, my Lords, wish to leave the Jackson case without adverting with respectful disapproval to the reliance there placed by Lord Denning MR, not for the first time, on an extract taken from the judgment of Lush LJ in Lloyd's v Harper. That case was plainly a case in which a trustee or agent was enforcing the rights of a beneficiary or principal, there being therefore a fiduciary relationship. Lord Denning MR in Jackson's case ([1975] 3 All ER 92 at 95-96, [1975] 1 WLR 1468 at 1473) said this:

'The case comes within the principle stated by Lush LJ in Lloyd's v Harper (16 Ch D 290 at 321): "... I consider it to be an established rule of law that where a contract is made with A. for the benefit of B., A. can sue on the contract for the benefit of B. and recover all that B. could have recovered if the contract had been made with B. himself". [Lord Denning continued:] It has been suggested that Lush LJ was thinking of a contract in which A was trustee for B. But I do not think so. He was a common lawyer speaking of the common law.'

I have already indicated that in all the other judgments the matter proceeded on a fiduciary relationship between A and B; and Lush LJ in the same passage made it plain that he did also, for he said (16 Ch D 290 at 321):

'It is true that the person [B] who employed him [the broker A] has a right, if he pleases, to take action himself and sue upon the contract made by the broker for him, for he [B] is a principal party to the contract.' (Emphasis mine.)

To ignore that passage is to divorce the passage quoted by Lord Denning MR from the fiduciary context in which it was uttered, the context of principal and agent, a field with which it may be assumed Lush LJ was familiar. I venture to suggest that the brief quotation should not be used again as support for a proposition which Lush LJ cannot have intended to advance.

In summary therefore, in disagreement with the majority of your Lordships, I would have dismissed this appeal on repudiation. Had I been correct I would, as at present advised, have allowed the appeal on the Transworld point, and awarded only nominal damages on that point to Woodar, and not substantial damages to be paid to Woodar 'for the use and benefit of' Transworld, a form of order which I cannot see was justified.

LORD KEITH OF KINKEL.

My Lords, in deciding the issue of repudiation which arises in this appeal, the guiding principle is that enunciated by Lord Coleridge CJ in Freeth v Burr ((1874) LR 9 CP 208 at 213, [1874-80] All ER Rep 750 at 753):

'In cases of this sort, where the question is whether the one party is set free by the action of the other, the real matter for consideration is whether the acts or conduct of the one do or do not amount to an intimation of an intention to abandon and altogether to refuse performance of the contract.'

The matter is to be considered objectively--per Bowen LJ in Johnstone v Milling ((1886) 16 QBD 460 at 474):

'The claim being for wrongful repudiation of the contract it was necessary that the plaintiff's language should amount to a declaration of intention not to carry out the contract, or that it should be such that the defendant was justified in inferring from it such intention. We must construe the language used by the light of the contract and the circumstances of the case in order to see whether there was in this case any such renunciation of the contract.'

The importance of looking at the whole circumstances of the case was emphasised by Lord Selborne LC in Mersey Steel & Iron Co Ltd v Naylor, Benzon & Co ((1884) 9 App Cas 434 at 438-439, [1881-5] All ER Rep 365 at 367-368 ) and by Singleton LJ in James Shaffer Ltd v Findlay Durham & Brodie ([1953] 1 WLR 106 at 116).

There is a tract of authority which vouches the proposition that the assertion by one party to the other of a genuinely held but erroneous view as to the validity or effect of a contract does not constitute repudiation. In the Spettabile case the plaintiffs sent to the defendants a letter claiming that certain contracts were no longer binding on them and followed it up with service of a writ seeking declarations to that effect. The Court of Appeal held that the plaintiffs' conduct did not amount to repudiation of the contracts. Warrington LJ said (121 LT 628 at 633, [1918-19] All ER Rep 963 at 965-966) with reference to the letter:

'It seems to me that that is not telling the defendants that whatever happens, whatever is the true state of the case, whether the contracts are binding on the plaintiffs or not, they will not perform them: but that they have instructed their solicitors to take proceedings with the object of having it determined that the contracts are not binding upon the plaintiffs and are at an end ... [and with reference to the writ] ... I think that it is desirable to say this, that in my opinion where one party to a contract conceives that he is no longer bound by the contract or has a right to have it rescinded or declared null and void, and issues a writ for the purpose of obtaining that which he believes to be his right, he does not by that mean to repudiate the performance of the contract in any event. It seems to me that he submits to perform it if the court, as the result of the action, comes to the conclusion that he is bound to perform it, and it cannot be taken to be an absolute repudiation.'

Atkin LJ, after observing that it must be shown that the party to the contract made quite plain his own intention not to be bound by it, said (121 LT 628 at 635, [1918- All ER Rep 963 at 968):

'... the substance [of the writ] appears to me to be this: that the plaintiffs in the action are asking the court to declare whether or not they are any longer bound by the contracts. It appears to me that that is an entirely different state of facts altogether from an intimation by the plaintiffs, apart from the courts of law, that they in any event are not going to perform the contracts. It is something quite different from a repudiation. So far from expressing the intention of the parties not to perform the contracts, it appears to me to leave it to the court to say whether or not the contract is to be performed, and if the court says it is, then it impliedly states that it will be performed. I think, therefore, there was no repudiation of the contract.'

In two other cases it was held by the Court of Appeal that the expression by one party to a contract of a genuine but erroneous view as to the obligations which on a proper construction of it were thereby imposed did not infer an intention to repudiate the contract. These cases are James Shaffer Ltd v Findlay Durham & Brodie and Sweet & Maxwell Ltd v Universal News Services Ltd. Finally, it is worth observing that in Ross T Smyth & Co Ltd v T D Bailey, Son & Co ([1940] 3 All ER 60 at 72) Lord Wright said: '... a mere honest misapprehension, especially if open to correction, will not justify a charge of repudiation.'

So in the present case the question comes to be whether, having regard to all the circumstances, the conduct of Wimpey in relation to their invocation of condition E(a)(iii) of the contract was such that a reasonable person in the position of Woodar would properly infer an intention 'in any event' (to use the expression employed by Warrington and Atkin LJJ in the Spettabile case) to refuse to perform the contract when the time came for performance.

The terms of condition E(a)(iii) have been quoted by my noble and learned friend Lord Wilberforce. It conferred on Wimpey the right lawfully to rescind the contract in the event there described. Wimpey had come to find the contract burdensome in view of the dramatic collapse of the property market. They accordingly desired to be relieved of it and took legal advice as to whether there existed grounds on which they might lawfully do so. The advice received was to the effect that condition E(a)(iii) provided such a ground. Wimpey did not, however, at once give notice of rescission under the clause. They sought an interview with Mr Cornwell, as representing Woodar, which took place on 7 March 1974 and proceeded on the lines described in the aide memoire which is in evidence. Wimpey informed Mr Cornwell of their position as regards the application of condition E(a)(iii) and proposed a renegotiation of the contract, failing which they stated their intention to serve notice of rescission in terms of the clause. Mr Cornwell contested the correctness of their position, and expressed the intention, that if Wimpey served notice of rescission, of taking the matter to court and obtaining a decision on their right to do so. Wimpey served their notice of rescission about two weeks later, clearly in the expectation, which was duly and promptly realised, that Woodar would initiate legal proceedings in order to test its validity. In my opinion there was nothing in Wimpey's conduct up to this point, there being no dispute about the genuineness of their belief that they were entitled to terminate the contract on the stated ground, which might reasonably be treated as inferring that it was their intention to refuse performance in the event of a judicial determination that that belief was erroneous. The letters written by Mr Cornwell to Sir Godfrey Mitchell on 30 May and 6 June 1974, the material parts of which have been quoted by my noble and learned friend Lord Wilberforce, clearly indicate that he himself did not draw any such inference. I am unable to regard Wimpey's conduct as evincing an intention 'altogether to refuse performance of the contract' as Lord Coleridge CJ put it in Freeth v Burr ((1874) LR 9 CP 208 at 213, [1874-80] All ER Rep 750 at 753), or as constituting 'an absolute repudiation' in the sense in which Atkin LJ used that expression in the Spettabile case. I would accept without hesitation the statement of Lord Denning MR in Federal Commerce and Navigation Co Ltd v Molena Alpha Inc ([1978] 3 All ER 1066 at 1082, [1978] QB 927 at 979) that a party who breaks a contract cannot excuse himself by saying that he did it on the advice of his lawyers, or that he was under an honest misapprehension. If in the present case the time for performance had passed while Wimpey were still maintaining their position based on the erroneous interpretation of condition E(a)(iii), they would have been in breach of contract and liable in damages accordingly. Lord Denning MR goes on to say: 'Nor can he excuse himself on those grounds from the consequences of a repudiation.' That may be so, but it is first necessary to determine whether or not there has been a repudiation.

The doctrine of repudiatory breach is largely founded on considerations of convenience and the opportunities which it affords for mitigating loss, as observed by Cockburn CJ in Frost v Knight ((1872) LR 7 Exch 111 at 114, [1861-73] All ER Rep 221 at 225). It enables one party to a contract, when faced with a clear indication by the other that he does not intend to perform his obligations under it when the time for performance arrives, to treat the contract, if he so chooses, as there and then at an end and to claim damages as for actual breach. Where one party, honestly but erroneously, intimates to the other reliance on a term of the contract which, if properly applicable, would entitle him lawfully to rescind the contract, in circumstances which do not and are not reasonably understood to infer that he will refuse to perform his obligations even if it should be established that he is not so entitled, legal proceedings to decide that issue being in contemplation, I do not consider it in accordance with ordinary concepts of justice that the other party should be allowed to treat such conduct as a repudiation. Nor, in my opinion, are there any considerations of convenience which favour that course.

I would add that in my view the lodging by Wimpey of their defence and counterclaim in answer to Woodar's first writ did not constitute further conduct on their part which can itself be regarded as having a repudiatory character. They thereby demonstrated nothing more than an adherence to their position as they had earlier expressed it. Further, the action taken by Wimpey in relation to the guarantee arrangements with the National Westminster Bank appear to me to have been no more than a natural consequence of the view taken by Wimpey as to their right to terminate the contract.

In the circumstances the issue regarding Woodar's right to damages in respect of alleged breach of Wimpey's obligation under the contract to pay £150,000 to Transworld does not arise for decision. It is desirable, however, that I should express my agreement with my noble and learned friend Lord Wilberforce that the decision in favour of Woodar on this issue, arrived at by the majority of the Court of Appeal, was not capable of being supported by Jackson v Horizon Holidays Ltd. That case is capable of being regarded as rightly decided on a reasonable view of the measure of damages due to the plaintiff as the original contracting party, and not as laying down any rule of law regarding the recovery of damages for the benefit of third parties. There may be a certain class of cases where third parties stand to gain indirectly by virtue of a contract, and where their deprivation of that gain can properly be regarded as no more than a consequence of the loss suffered by one of the contracting parties. In that situation there may be no question of the third parties having any claim to damages in their own right, but yet it may be proper to take into account in assessing the damages recoverable by the contracting party an element in respect of expense incurred by him in replacing by other means benefits of which the third parties have been deprived or in mitigating the consequences of that deprivation. The decision in Jackson v Horizon Holidays Ltd is not, however, in my opinion, capable of being supported on the basis of the true ratio decidendi in Lloyd's v Harper, which rested entirely on the principles of agency.

I would also associate myself with the observations of my noble and learned friend Lord Scarman as to the desirability of this House having an opportunity of reviewing, in some appropriate future case, the general attitude of English law towards the topic of jus quaesitum tertio.

My Lords, I would allow the appeal.

LORD SCARMAN.

My Lords, for the reasons given by my noble and learned friend Lord Wilberforce I would allow Wimpey's appeal. In my judgment Wimpey did not commit, or threaten to commit, a repudiatory breach of contract. The principle of the modern law is now 'perspicuous', as Lord Wilberforce observed in Federal Commerce and Navigation Co Ltd v Molena Alpha Inc ([1979] 1 All ER 307 at 314, [1979] AC 757 at 778 ). To be repudiatory, the breach, or threatened breach, must go to the root of the contract. If an anticipatory breach is relied on, the renunciation must be 'an intimation of an intention to abandon and altogether to refuse performance of the contract'; or, put in other but equally clear words, 'the true question is whether the acts or conduct of the party evince an intention no longer to be bound by the contract': per Lord Coleridge CJ in Freeth v Burr ((1874) LR 9 CP 208 at 213, [1874-80] All ER Rep 750 at 753 ). The emphasis on communication of the party's intention by his acts and conduct is a recurring theme in the abundant case law. Two well-known cases illustrative of the emphasis are Mersey Steel and Iron Co v Naylor, Benzon & Co and Bradley v H Newsom, Sons & Co (see in particular the speech of Lord Wrenbury).

Difficulty, however, does arise in the application of the principle to particular facts, as the difference in judicial opinion in the present case shows. The dividing line between what is repudiatory and what is not emerges from three very persuasive dicta to be found in the case law. When the Federal Commerce case ([1978] 3 All ER 1066 at 1082, [1978] QB 927 at 979) was in the Court of Appeal, Lord Denning MR said:

'I have yet to learn that a party who breaks a contract can excuse himself by saying that he did it on the advice of his lawyers: or that he was under an honest misapprehension ... I would go by the principle ... that, if the party's contract, objectively considered in its impact on the other party, is such as to evince an intention no longer to be bound by his contractual obligations, then it is open to the other party to accept his repudiation and treat the contract as discharged from that time onwards.'

In the Spettabile case ((1919) 121 LT 628 at 634-635, [1918-19] All ER Rep 963 at 698 ) Atkin LJ said of the various definitions of repudiation: 'They all come to the same thing, and they all amount at any rate to this, that it must be shown that the party to the contract made quite plain his own intention not to perform the contract' (emphasis mine). In James Shaffer Ltd v Findlay Durham & Brodie the Court of Appeal had under consideration a breach of a long term supply contract where the defendant, who had undertaken to pass on orders of not less than a specified value each year, failed to do so. He honestly believed his failure was not a breach of contract; but the Court of Appeal held that it was, his construction of the contract being erroneous in law. The court held, however, that the breach did not evince an intention not to be bound by the contract. Singleton LJ, who referred to Freeth v Burr and the Spettabile case, made this comment ([1953] 1 WLR 106 at 120):

'Streatfield J. said that this was a very difficult case and near the line. I think that that is a true description. Sometimes when a case is put in one particular way it has great appeal, and, when it is put in the other way, it has an almost equal appeal. I do not think that it is right to look at the interview of May 18 alone; as I understand the law, it is our duty to have regard to the circumstances.'

Morris LJ and Upjohn J ([1953] 1 WLR 106 at 124, 127) said the same thing.

My Lords, as I see it, the error of the majority of the Court of Appeal in the instant case was, notwithstanding some dicta to the contrary, to concentrate attention on one act, ie the notice of rescission with its accompanying letter. They failed to give the consideration which the law requires of all the acts and conduct of the defendants in their dealings with Mr Cornwell, the 'alter ego' of Woodar. The law requires that there be assessed not only the party's conduct but also, 'objectively considered', its impact on the other party. The error is neatly exposed in Goff LJ's terse conclusion: 'In my judgment rescission is repudiation, and if it cannot be justified by the terms of the contract it is wrongful and a breach.' Goff LJ was, with respect, concentrating too much attention on one act isolated from its surrounding circumstances and failing to pay proper regard to the impact of the party's conduct on the other party.

In this case the contract provided for the possibility of rescission by Wimpey. But the notice of rescission, which Wimpey gave, was not, in the circumstances which existed when it was given, one which Wimpey had any contractual right to give. But they honestly believed the contract did give them the right. When one examines the totality of their conduct and its impact on Mr Cornwell it is plain, as shown by my noble and learned friend Lord Wilberforce's analysis of the facts, that Wimpey, though claiming mistakenly to exercise a power given them by the contract to bring it to an end, were not evincing an intention not to be bound by the contract. On the contrary, they believed they were acting pursuant to the contract. And Mr Cornwell well understood the situation. As he put it in his final letter to Sir Godfrey Mitchell, the president of Wimpey: '... all I need say now is that we will retire to our battle stations and it goes without saying I am sure that you will abide by the result as I will.' It never occurred to Mr Cornwell that Wimpey, if held not to have been entitled to give notice of rescission, would refuse to perform the contract. In fact, it would seem that he believed exactly the contrary. Such was the impact on him of Wimpey's conduct.

It being the view of the majority of the House that there was no repudiation, the appeal must be allowed, with the result that there is no need to consider the other issues raised. But, because of its importance, I propose to say a few words on the question of damages.

Woodar agreed to sell the land to Wimpey for £85,000. They also required Wimpey to pay £150,000 to a third party. The covenant for this payment was in the following terms: 'I. Upon completion of the purchase of the whole or any part of the land the purchaser shall pay to Transworld Trade Limited of 25 Jermyn Street, London, S. W. 1. a sum of £150,000.' No relationship of trust or agency was proved to exist between Woodar and Transworld. No doubt, it suited Mr Cornwell to split up the moneys payable under the contract between the two companies; but it is not known, let alone established by evidence (though an intelligent guess is possible) why he did so, or why Woodar desired this money to be paid to Transworld. It is simply a case of B agreeing with A to pay a sum of money to C.

B, in breach of his contract with A, has failed to pay C. C, it is said, has no remedy, because the English law of contract recognises no 'jus quaesitum tertio': see Tweddle v Atkinson. No doubt, it was for this reason that Transworld is not a party to the suit. A, it is acknowledged, could in certain circumstances obtain specific performance of the promise to pay C: see Beswick v Beswick. But, since the contract in the present case is admitted (for reasons which do not fall to be considered by the House) to be no longer in existence, specific performance is not available. A's remedy lies only in an award of damages to himself. It is submitted that, in the absence of any evidence that A has suffered loss by reason of B's failure to pay C, A is only entitled to nominal damages.

I wish to add nothing to what your Lordships have already said about the authorities which the Court of Appeal cited as leading to the conclusion that Woodar is entitled to substantial damages for Wimpey's failure to pay Transworld. I agree that they do not support the conclusion. But I regret that this House has not yet found the opportunity to reconsider the two rules which effectually prevent A or C recovering that which B, for value, has agreed to provide.

First, the jus quaesitum tertio. I respectfully agree with Lord Reid that the denial by English law of a jus quaesitum tertio calls for reconsideration. In Beswick v Beswick ([1967] 2 All ER 1197 at 1201, [1968] AC 58 at 72 ), Lord Reid, after referring to the Law Revision Committee's recommendation (Sixth Interim Report (1937) Cmd 5449, p 31 ) that the third party should be able to enforce a contractual promise taken by another for his benefit, observed: 'If one had to contemplate a further long period of Parliamentary procrastination, this House might find it necessary to deal with this matter.' The committee reported in 1937; Beswick v Beswick was decided in 1967. It is now 1979; but nothing has been done. If the opportunity arises, I hope the House will reconsider Tweddle v Atkinson and the other cases which stand guard over this unjust rule.

Likewise, I believe it open to the House to declare that, in the absence of evidence to show that he has suffered no loss, A, who has contracted for a payment to be made to C, may rely on the fact that he required the payment to be made as prima facie evidence that the promise for which he contracted was a benefit to him and that the measure of his loss in the event of non-payment is the benefit which he intended for C but which has not been received. Whatever the reason, he must have desired the payment to be made to C and he must have been relying on B to make it. If B fails to make the payment, A must find the money from other funds if he is to confer the benefit which he sought by his contract to confer on C. Without expressing a final opinion on a question which is clearly difficult, I think the point is one which does require consideration by your Lordships' House.

Certainly the crude proposition for which Wimpey contends, namely that the state of English law is such that neither C for whom the benefit was intended nor A who contracted for it can recover it if the contract is terminated by B's refusal to perform, calls for review, and now, not 40 years on.

Appeal allowed.

Solicitors: P J Ward (for Wimpey); Sharpe Pritchard & Co (for Woodar).

Mary Rose Plummer Barrister

Tagged with: contract law, case law, contract law cases, Woodar Investment Development Ltd v Wimpey Construction UK Ltd

Woodar Investment Development Ltd v Wimpey Construction UK Ltd

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