Approved Judgment - clients.squareeye.com

THE HONOURABLE MR JUSTICE EADY
Approved Judgment
Butler-Creagh v Hersham
iii) They would not have countenanced any right on his part to pass on any such
exclusivity to a third party without their consent – whether for a fee or
otherwise.
Against that background, even if she had been unwise enough to promise him £5m,
the agreement could have been set aside for misrepresentation. There would, in any
event, be no identifiable consideration for the £5m. Yet she was unaware of these
matters at the time, having been presented like the Marian Fathers with a false picture.
20. Any reasonable onlooker is thus left wondering how Mr Butler-Creagh could possibly
pursue a claim against Ms Hersham and on what legal basis. By the time he went into
the witness box, his stance was uncomfortably straddling two alternatives. His
primary case was that Ms Hersham had agreed to pay £5m on the first day they met,
in order to “step into his shoes”, accepting what he said at face value and not taking
the elementary precaution of checking whether he had anything to give in exchange.
What he actually said was:
“The discussion was quite brief. I was asked what I wanted for
her to take over my position, to step into my shoes and
effectively walk away from it, and that‟s it. I put my fee
forward, which was £5m and it was never negotiated.”
From time to time, however, his case metamorphosed into a claim that Ms Hersham
had agreed to pay him £5m to “facilitate” the sale to her by the Marian Fathers or to
“facilitate” completion (whatever that means). An attempt was made in his closing
submissions to crystallise what this term was supposed to convey, namely that Mr
Butler-Creagh would take the following steps:
i) relinquish the opportunity to purchase Fawley Court himself;
ii) nominate a special purpose vehicle suitable to Ms Hersham to proceed with
the sale;
iii) satisfy the vendors as to the “suitability” of the vehicle (and those individuals
behind it);
iv) “secure” the exchange of contracts on behalf of the relevant corporate vehicle;
v) “ensure” that completion took place.
Another gloss put on the case was that there was “an agreement which (at its core)
involved [Mr Butler-Creagh] transferring his position as preferred purchaser to Mrs
Hersham for which he would be paid his fee upon completion”. It was also submitted
that there is no requirement in law “for every baroque detail of a contract to be
stipulated in order for that contract to be binding”. What matters is the “clear
intention of the parties”: see e.g. Chitty on Contracts (30 th edn) at 2-113 to 2-114. I
still remain unclear what Mr Butler-Creagh contends that the intention was. Was he
“to walk away from it” or “to ensure that completion took place”?
21. My first task is to decide whether there was any such agreement. Is it possible to
discern any “clear intention” at all? This depends on assessing the evidence of the