Ian Green Residential Ltd v Asfari and another
Judge Richard Seymour QC:
Introduction
Wood, () from Project Tadema Ltd. at a price of £14,500,000. Wood, and she saw that work was being done on it, and asked Mr. Green to arrange for her to inspect it. (). The difference between Mr. Green’s evidence and that of both Mr. Asfari and Mrs. Asfari about this matter was really as to whether any particular rate of fee had been mentioned. are in fact almost parallel roads adjacent to each other. Mr. Hutchings did not suggest that the Property was not in fact almost behind 60, or that Mrs. Asfari could not have seen building work in progress at the Property. Equally he did not challenge Mrs. Asfari’s declared love of the Property over a considerable period.
Judge Richard Seymour QC: Introduction 1. The claimant, Ian Green Residential Ltd., is the corporate manifestation of Mr. Ian Green. Mr. Green is an estate agent, and estate agency is the business of the claimant. Mr. Green is a shareholder in, and the managing director of, the claimant. He was employed until about May 2004 by a company of estate agents called Bargets (Estate Agents) Ltd. In that capacity he came to know the defendants, Mr. and Mrs. Ayman Asfari. 2. On 26 October 2006 Mr. and Mrs. Asfari completed the purchase of the property known as and situate at 44, Grove End Road, St. John’s Wood, London (“the Property”) from Project Tadema Ltd. at a price of £14,500,000. 3. In this action the claimant sought payment from Mr. and Mrs. Asfari of an amount of £170,375, calculated as 1% of £14,500,000, being £145,000, plus Value Added Tax at 17.5%, in respect of the alleged introduction by it to Mr. and Mrs. Asfari of the Property. The claimant’s case was that it was agreed between Mr. Green and Mrs. Asfari on 9 January 2006 that the defendants would retain the claimant to introduce them to the Property. Whilst it was accepted on the part of the claimant that the fee to be paid in respect of that introduction was not specifically mentioned on that occasion, it was contended that, by virtue of previous dealings between the parties in relation to the introduction of other properties, it was understood that the fee would be 1% of the purchase price, plus Value Added Tax, in the event that Mr. and Mrs. Asfari bought the Property. Alternatively, it was said that it was a term of the agreement made orally on 9 January 2006, to be implied as a matter of law, that a reasonable fee would be paid for the introduction, and a reasonable fee would be 1% of the purchase price, plus Value Added Tax. 4. To guard against the possibility that the court might not be satisfied that an agreement had in fact been made between Mr. Green and Mrs. Asfari on 9 January 2006, the claimant advanced an alternative case that it was entitled to be paid on a quantum meruit basis for the services which it said that it provided to Mr. and Mrs. Asfari in relation to the Property, and it asserted that the appropriate basis of calculation of that entitlement was 1% of the purchase price of the Property, plus Value Added Tax. 5. The case of Mr. and Mrs. Asfari was that no agreement of any sort was made between them and the claimant for the making of any payment by them in respect of the introduction by the claimant to them of the Property. Their case, indeed, was that it was not the claimant who introduced the Property to them. Mrs. Asfari told me in her evidence that the Property was not far from the property in which she was living in January 2006, 60 Circus Road, St. John’s Wood, and she saw that work was being done on it, and asked Mr. Green to arrange for her to inspect it. 6. It was contended on behalf of Mr. and Mrs. Asfari that, not only was there no actual agreement to pay any sum to the claimant for any service, but that, if there had been any agreement of any sort, there was no basis in law for implying any term as to payment of any sum. The defendants’ case was that no rate of commission of 1% of a purchase price had ever been discussed. It was contended that, even on the claimant’s case, such discussion about a rate of commission as there had been was insufficient to amount to a course of dealing between the parties. Moreover, it was submitted on behalf of Mr. and Mrs. Asfari by Miss Katharine Holland that to imply a term as to payment of a fee of 1% of the purchase price would be contrary to the provisions of Estate Agents Act 1979 s.18. I shall consider the terms of that section later in this judgment. Miss Holland accepted that by Supply of Goods and Services Act 1982 s.15 it is provided that:- “(1) Where, under a contract for the supply of a service, the consideration for the service is not determined by the contract, left to be determined in a manner agreed by the contract or determined by the course of dealing between the parties, there is an implied term that the party contracting with the supplier will pay a reasonable charge. (2) What is a reasonable charge is a question of fact.” However, she submitted that it was not open to the claimant to rely upon that section because of the failure of the claimant to comply in the circumstances of the present case with the provisions of Estate Agents Act 1979 s. 18. She contended that for the same reason no term to pay a reasonable sum could be implied at common law. Additional objections to the implication of a term to pay a reasonable sum at common law were said to be that such a term was not one that was so obvious that it went without saying, and in any event it was not capable of being clearly formulated. 7. The other points raised on behalf of Mr. and Mrs. Asfari were that if, contrary to their basic case, a contract along the lines of that contended for on the part of the claimant had been made, it did not comply with the requirements of Estate Agents Act 1979 s. 18 and was thus unenforceable, that the claimant did not in fact do anything to justify payment, even if there had been an agreement, that a fee of 1% of the purchase price of the Property would not be reasonable in any event, and there was no justification in law for awarding the claimant any sum assessed on a quantum meruit basis. 8. It will be plain from this short summary of the issues that the most significant factual dispute between the parties was as to whether an agreement had been made on 9 January 2006, and to that issue I now turn. Was an agreement made between Mr. and Mrs. Asfari and the claimant for the retainer of the claimant? 9. The resolution of the issue whether an agreement was made between Mr. Green and Mrs. Asfari on 9 January 2006 depended, ultimately, upon whether I accepted his evidence or hers of what took place on that day. Before indicating my conclusion on that point it is appropriate to rehearse the relevant evidence led before me which impacted on that conclusion. 10. An aspect of the alleged agreement on 9 January 2006 was whether, as was contended on behalf of the claimant, but denied on behalf of the defendants, it was understood at the time of the relevant conversation that, if the claimant became entitled to a fee, that fee would be 1% of the purchase price of the Property, plus Value Added Tax. 11. The claimant’s case on that point was that there had been discussion and agreement, first between Mr. Green and Mrs. Asfari, and then between Mr. Green and both Mr. and Mrs. Asfari, about Mr. and Mrs. Asfari paying a fee of 1% of the purchase price, plus Value Added Tax, if the claimant introduced Mr. and Mrs. Asfari to a property which they bought. That discussion and agreement, the claimant contended, took place in relation to a property known as and situate at 59 Marlborough Place (“the Marlborough Property”). The difference between Mr. Green’s evidence and that of both Mr. Asfari and Mrs. Asfari about this matter was really as to whether any particular rate of fee had been mentioned. 12. Mr. Green, in his witness statement prepared for the purposes of this action, dated 26 April 2007, said about the discussion concerning the Marlborough Property, so far as is presently relevant:- “6. When talking to Mrs. Asfari in the High Street [on 12 or 13 May 2004] I told her that I did know of a period property that had just come on the market in Marlborough Place and which may be suitable. However, I explained that I was not instructed by the Vendor so wasn’t able to obtain a fee from the vendor nor was I able to obtain a fee from the vendor’s agent so I, (the Company) would have to be retained by her and her husband who would have to pay me an acquisition fee if they agreed to purchase the property. Mrs. Asfari happily agreed to this. I did not specify a rate of commission payable during this conversation with Mrs. Asfari. 7.1 As regards Mrs. Asfari’s understanding of having to retain the Company, she was well aware what this meant and familiar with the concept. I say this because, amongst other things, the Defendants had, while I was employed by Bargets, retained Bargets. They had agreed to pay an acquisition fee equal to 1% of the eventual purchase price plus VAT to Bargets on properties introduced by Bargets where Bargets were not instructed by the vendor and thus were unable to obtain a fee from the vendor or obtain a fee from the vendor’s agent. Indeed Mrs. Asfari knew that Bargets (or whoever the retained agent may be) would then act for the purchaser and not the vendor and thus act in the purchaser’s best interest. I can say with certainty that Mrs. Asfari was aware of such matters because I had explained them to her while employed by Bargets. Mrs. Asfari knew full well (indeed I had also explained this to her while at Bargets) that if an agent was not instructed by a vendor of a property or was unable to obtain any part of the commission being charged by the vendor’s agent, then the only way to ensure the agent who was willing to introduce the property could get paid and earn a fee was by being retained by the purchaser and charging an introductory/acquisition fee based on the percentage of the purchase price (with the standard fee being equal to 1% of the purchase price plus VAT) in the event the purchaser exchanged contracts to buy the property. 7.2 Not only had I explained this to her while at Bargets but I was also aware that over a considerable period of time the Defendants had retained other agents in the St. John’s Wood/Regent’s Park areas in consideration of them introducing particular properties to them. I feel sure that Mrs. Asfari was fully aware as a result of all of these dealings that the standard rate of commission charged was 1% of the eventual purchase price plus VAT. 7.3 … 8. Mrs. Asfari agreed (during our conversation in the High Street) to me being retained and thus paying a fee, as a result of which I then introduced the property to her being 59 Marlborough Place, London NW8 (“Marlborough”). She liked the sound of the property and asked if I could arrange a viewing. I said I would and that I would call her later to confirm a time and date for the viewing. 9. I called Mrs. Asfari either later that day or shortly after and fixed an appointment for her to view Marlborough at 3.00 pm on 18th May 2004. When fixing the appointment, I again reiterated that I would have to be retained by the Defendants and at that time said the fee would be the usual 1% plus VAT of the eventual purchase price which would have to be paid if she and her husband exchanged contracts to buy the property. She said that was absolutely no problem and it was on that basis that I showed her Marlborough. …. 11. Having viewed Marlborough, Mrs. Asfari expressed an interest in it and told me she wanted to view it again with her husband. I arranged that second viewing with the vendor’s agent for Saturday 26th June 2004 and refer to the appointment recorded on the Company’s system … 12. I met Mr. and Mrs. Asfari outside Marlborough Place on 26th June 2004. Just before we viewed the property, whilst we were still outside, I spoke to Mr. Asfari and reminded him of that which I had agreed with his wife, namely that they had agreed to retain me because I was not instructed by the vendor nor able to obtain a fee from the vendor’s agent; that they would therefore have to pay the usual fee equivalent to 1% of the purchase price plus VAT if they exchanged contracts to purchase the property. Mr. Asfari said that was all fine. I am always careful to ensure that when being retained by a purchaser that the agreement is reached before I show the property to the prospective purchaser. It is certainly not my practice to show a property to a prospective purchaser and then tell them you expect to be retained. That is not how I work. A short time after the viewing I spoke to, I believe, Mrs. Asfari who said that she and her husband had decided Marlborough was not for them.” 13. Mrs. Asfari made two witness statements for the purposes of this action. The first was dated 4 May 2007 and the second 31 May 2007. 14. In her first witness statement Mrs. Asfari dealt with her contact with Mr. Green concerning the Marlborough Property in this way:- “4. On or around 12 May 2004, I happened to meet Ian Green on St. John’s Wood High Street. Mr. Green was aware that my husband and I were looking for a new home. During our conversation, I asked whether he knew of any properties for sale. Mr. Green indicated that he knew of a property which might be suitable. The property Mr. Green had in mind was 59 Marlborough Place, London NW8 (“Marlborough Place”). 5. I viewed Marlborough Place with Mr. Green on or around 18 May 2004. During that visit, Mr. Green mentioned that he was not retained by the vendor for that particular property therefore, he would need to be retained by my husband and I. I confirmed that this was acceptable however, there was no mention of commission agreements or rates during that conversation. 6. My husband and I viewed Marlborough Place together accompanied by Ian Green on or around 26 June 2004. Again, there was no mention of commission agreements or rates during that visit. After a great deal of deliberation, my husband and I decided not to make an offer on Marlborough Place. ” 15. In her second statement, at paragraph 2, Mrs. Asfari modified her evidence a little. She said:- “In my first statement I say, at paragraph 5, that whilst viewing Marlborough Place, Mr. Green mentioned that he was not retained by the vendor for that particular property therefore, he would need to be retained by my husband and I. I then say that I confirmed that this was acceptable. What I actually said to Mr. Green during the visit was that I did not envisage a problem as my husband and I had not retained an agent at that stage however, I told Mr. Green that he would need to speak to my husband when he viewed the property. My husband and I viewed Marlborough Place together on or around 26 June however, my husband did not like the property.” 16. The claim form in this action was issued on 5 December 2006. In the Particulars of Claim as originally served the way in which the claimant’s case in relation to the discussion and agreement concerning the fee of 1% at the time of the viewing of the Marlborough Property was put was this:- “3. The 2nd Defendant [Mrs. Asfari] (who acted at all material times on her own behalf, and on behalf of the 1st Defendant) met Ian Green on about 12 or 13 May 2004, in St. John’s Wood High Street and she asked the Claimant to assist the Defendants in finding a suitable property for them. 4. Ian Green indicated orally to the 2nd Defendant, during this conversation, that he knew of a property that might be suitable for the Defendants. He further indicated that because the Claimant was not retained by the vendor, nor was it able to claim a fee from the vendor’s agent, in respect of the property, the Claimant would have to make a fee agreement, direct with the Defendants. 5. The 2nd Defendant agreed to this and accordingly, Ian Green agreed orally with the 2nd Defendant during this conversation, that the Claimant would be paid a commission fee by the Defendants, in the event that the Defendants exchanged contracts in respect of the property to be introduced (“the first commission agreement”). 6. … 7. Ian Green accordingly introduced a property known as 59 Marlborough Place London NW8 (“Marlborough Place”) to the Second Defendant. The Second Defendant first viewed Marlborough Place (with Ian Green) on 18th May 2004. She viewed the property again on 26th June 2004 with Ian Green and the First Defendant. 8. On that second visit, Ian Green reminded the 1st Defendant of the terms of the first commission agreement, which the 1st Defendant orally acknowledged, and, Ian Green further orally agreed at that time with the 1st Defendant, (who acted at all material times on behalf of both Defendants), that the Claimant’s reasonable commission fee in respect of Marlborough Place would be 1% of the purchase price plus VAT, payable in the event of an exchange of contracts (this being the standard commission fee charged by the Claimant in respect of residential acquisitions).” 17. The originally pleaded case was thus that the agreement of the 1% fee was made with Mr. Asfari, not Mrs. Asfari, and on 26 June 2004, not about 12 or 13 May 2004. Amended Particulars of Claim were served on 16 May 2007. In those Amended Particulars of Claim the allegations in paragraph 7 were altered to include a plea that, “When (on, or shortly after 12th or 13th May) Ian Green phoned the Second Defendant to make the appointment with her to view Marlborough Place, Ian Green specifically orally agreed with the Second Defendant that the reasonable sum payable would be a fee of 1% of the purchase price plus VAT.” Paragraph 8 of the Particulars of Claim was amended so as to allege that the previously alleged agreement made with Mr. Asfari was by way of confirmation of the new alleged agreement of the fee of 1% made with Mrs. Asfari. 18. Miss Holland invited Mr. Green during his cross-examination to explain how it was that the allegation that the agreement of a fee of 1% of the purchase price in the event that Mr. and Mrs. Asfari decided to purchase the Marlborough Property had been made with Mrs. Asfari on 12 or 13 May 2004 was not the originally pleaded case of the claimant and only emerged in the Amended Particulars of Claim. It did not seem to me that Mr. Green was able to provide any convincing explanation of this point. 19. It was not suggested by Mr. Green that he had put the terms of the understanding for which he contended in relation to the Marlborough Property in writing. Miss Holland put to him that, by virtue of the provisions of Estate Agents Act 1979 s.18 and Estate Agents (Provision of Information) Regulations 1991, SI 1991 No. 859, reg. 3 and 4, the claimant should have produced a document recording the retainer which he alleged had been agreed. 20. Estate Agents Act 1979 s.18 contains the following provisions which are presently material:- “(1) Subject to subsection (2) below, before any person (in this section referred to as “the client”) enters into a contract with another (in this section referred to as “the agent”) under which the agent will engage in estate agency work on behalf of the client, the agent shall give the client – (a) the information specified in subsection (2) below; and (b) any additional information which may be prescribed under subsection (4) below. (2) The following is the information to be given under subsection (1)(a) above – (a) particulars of the circumstances in which the client will become liable to pay remuneration to that agent for carrying out estate agency work; (b) particulars of the amount of the agent’s remuneration for carrying out estate agency work or, if that amount is not ascertainable at the time the information is given, particulars of the manner in which the remuneration will be calculated; … (4) The Secretary of State may by regulations – (a) prescribe for the purposes of subsection (1)(b) above additional information relating to any estate agency work to be performed under the contract; and (b) make provision with respect to the time and manner in which the obligation of the agent under subsection (1) or subsection (3) above is to be performed; and the power to make regulations under this subsection shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.” 21. For present purposes the material provisions of Estate Agents (Provision of Information) Regulations 1991 are:- “3 (1) The time when an estate agent shall give the information specified in section 18(2) of the Act, as well as the additional information prescribed in Regulation 2 above, is the time when communication commences between the estate agent and the client or as soon as is reasonably practicable thereafter provided it is a time before the client is committed to any liability towards the estate agent. (2) … 4. The additional information prescribed in Regulation 2 above and the information required to be given under section 18(2) and (3) of the Act shall be given by the estate agent in writing.” 22. Mr. Green accepted that he ought to have produced a written document setting out the terms upon which he was being retained by Mr. and Mrs. Asfari in relation to the Marlborough Property. However, he appeared to think that in circumstances in which he was being retained on a one-off basis in respect of a particular property it was not as urgent to produce a written document as it would have been had the claimant had a standing retainer to look for properties for Mr. and Mrs. Asfari. 23. It was common ground that, after Mr. and Mrs. Asfari had decided not to pursue the possibility of purchasing the Marlborough Property, Mr. Green showed Mrs. Asfari some other properties. In respect of some of those properties, but not others, the claimant was the selling agent. 24. Mr. Green’s evidence about showing Mrs. Asfari over properties after the Marlborough Property was set out in paragraph 13 of his witness statement and was, so far as is presently material, to this effect:- “I showed a number of other properties to Mr. and Mrs. Asfari during 2005 including 16 Hanover Terrace (shown on 24th January 2005) …, 64 Avenue Road and 39 Avenue Road (both shown on 10th March 2005 …), Primrose House (which was shown on both 25th April 2005 and 26th April 2005 …), 100 Hamilton Terrace, shown on 10th May 2005 … and 25 Avenue Road, (12th November 2005). I recall that as regards the introduction of 25 Avenue Road, I heard that this had come onto the market on 12th November 2005 and as soon as I discovered this, I called the Defendants and made an immediate appointment for them to view the property which they did that day. I was not in the office when I did all this hence the appointment was not recorded on the Outlook system. There is also reference to 68 Hamilton Terrace on the appointment system for 10th May 2005. In fact Mrs. Asfari did not view this property but she and I drove past it looking at it from the outside. I knew the owner well and the fact he was thinking of selling but the property wasn’t actually on the market at this time. With the exception of 39 Avenue Road, 25 Avenue Road and Primrose House, I was instructed by the vendor in relation to all of the properties so had no need to be retained by Mr. and Mrs. Asfari. They were made aware of this by me. Just like the position with Marlborough, in the case of 39 Avenue Road, 25 Avenue Road and Primrose House I informed Mrs. Asfari verbally, before introducing any of these properties, that the Company wasn’t instructed by the Vendor nor could we obtain a fee from the Vendor’s agent so she and her husband would have to retain me and pay an introductory fee if they agreed to purchase the property. Again, and as with Marlborough, she agreed to this in the case of each of these properties. No rate of commission was discussed in relation to the properties. I had previously, in relation to Marlborough, made plain the rate applicable in circumstances where the Company was to be retained by a purchaser namely a fee equivalent to 1% plus VAT of the eventual purchase price and did not feel the need to mention that again plus the fact the Defendants were aware that was the standard rate that was charged by me and other agents for acquisition fees. I trusted Mr. and Mrs. Asfari, had known them for some time and we had a good relationship. ” 25. Mrs. Asfari in her first witness statement, and, indeed in cross-examination by Mr. Martin Hutchings on behalf of the claimant, accepted that on the occasion of some viewings – she thought in cross-examination two, one concerning the Marlborough Property and one in respect of a property in Avenue Road which she viewed in about November 2005 – Mr. Green had mentioned the issue of the claimant being retained on behalf of Mr. and Mrs. Asfari to find a property to purchase. Mrs. Asfari told me that she understood that the issue was whether the claimant should be entitled to a fee in respect of introducing the property in question. In her first witness statement Mrs. Asfari said:- “7. I viewed a number of other properties in the St. John’s Wood area with Mr. Green during the early part of 2005. None of the properties were suitable. 8. … 9. In January 2006, Ian Green informed me that he had a property in St. John’s Wood which my husband and I may be interested in. The property was 44 Grove End Road, London NW8 (“Grove End Road”). I assumed that the Claimant was acting on behalf of the vendor of the Property as Mr. Green had previously informed me if this was not the case when we had viewed other properties.” 26. Mrs. Asfari assented to the suggestion of Mr. Hutchings that by what she said in the last sentence of paragraph 9 she meant that Mr. Green had previously said on occasion that he was not acting for the vendor and would need to be retained by Mr. and Mrs. Asfari. 27. By an agreement (“the Property Vision Agreement”) dated 3 November 2005, but signed by Mr. Asfari on 9 November 2005, made between a company called Property Vision Ltd. (“Property Vision”) and Mr. and Mrs. Asfari, Mr. and Mrs. Asfari engaged Property Vision to search for a property for them and to negotiate to acquire any property which they decided to try to buy. 28. By clause 1 of the Property Vision Agreement it was provided that:- “Following receipt of the Initial Fee, and in accordance with your Instructions, we shall use all reasonable endeavours to locate a suitable property for your purchase or rental (as appropriate) and, if requested, negotiate on your behalf the terms of such purchase or rental. If you locate a property, the details of which have not previously been supplied to you by us, then you agree that we will conduct any negotiations required on your behalf for the terms of purchase or rental.” 29. For the services to be provided by Property Vision under the Property Vision Agreement Mr. and Mrs. Asfari agreed to pay an initial fee of £1,500 plus a fee of 2.5% of the purchase price of any property which they bought, plus Value Added Tax, subject to a ceiling of £200,000 plus Value Added Tax. The way in which the Property Vision Agreement was structured was that the fee payable in respect of the purchase of a property was payable whether or not the property was found as a result of the efforts of Property Vision. 30. The person at Property Vision with whom Mr. and Mrs. Asfari dealt was Mr. Peter Mackie. 31. There was an issue as to when Mr. Green became aware of the existence of an arrangement between Property Vision and Mr. and Mrs. Asfari. Mr. Green’s evidence, at paragraph 32 of his witness statement, was that he did not become aware of the involvement of Property Vision until about 4 February 2006. Mrs. Asfari told me in cross-examination that she had mentioned to Mr. Green on the occasion of the visit to the property in Avenue Road in November 2005, shortly after the making of the Property Vision Agreement, that Property Vision had been engaged by her and her husband as their sole retained agent. She told me that the issue had arisen because Mr. Green had said on the occasion in question that he would need to be retained by Mr. and Mrs. Asfari. She had said that Property Vision had been retained and that her husband would not agree to retain two agents. Mr. Green’s reaction, according to Mrs. Asfari, was that she was a silly girl, and why had she retained Property Vision. Mrs. Asfari did not mention in either of her witness statements this conversation. She was asked why not. She said that it had not seemed important when writing her statements, as the focus of attention was on what happened in relation to the Property in January 2006 and afterwards. 32. There was a difference between Mr. Green and Mrs. Asfari as to how it was that the subject of the Property first arose between them. There was also a difference as to what was actually discussed between them on the occasion of the first inspection of the Property by Mrs. Asfari. Mr. Green’s account in his witness statement was this:- “16. I recall that on or about Monday 9th January 2006 I received a telephone call from Mrs. Asfari, expressing disappointment that she and her husband couldn’t find a suitable house to buy. Being the start of the year, she called me saying they were still really keen to buy and asked whether any new properties had come on to the market. I told Mrs. Asfari that there were a few properties that were coming onto the market and I suggested that she and I go out for a drive in the St. John’s Wood area to drive by some properties. I collected her from 60 Circus Road on 9 January 2006 and we went out from there. While we were out, we drove past Hamilton Terrace and I pointed out number 68 Hamilton Terrace. I had already identified this as a potential property to be purchased in May 2005. I explained this property was now on the market but that it was currently divided into 3 flats and so one would need to obtain planning permission to convert it into one substantial house. At the time Mrs. Asfari didn’t express much interest in that house because of the issues with obtaining planning permission. 17. I had also heard a rumour that the property at 44 Grove End Road (“the Property”) was coming onto the market and that Knight Frank had been or were to be instructed by the vendor. At this time, 9th January 2006, the Property certainly was not being publicly advertised for sale. 18. I drove down Grove End Road and I pointed out the Property which was a large Grade 1 Listed house that was undergoing extensive modernisation/refurbishment. I had viewed the Property approximately 1 year earlier so knew it’s [sic] features and layout. However, as I have said it was at this time (Jan 06) undergoing complete refurbishment. I told Mrs. Asfari that I believed this was a very good house. At the time we drove by, the Property looked like a building site. When I pointed the Property out to Mrs. Asfari I remember thinking to myself that while I thought it may be suitable for her, she would probably not like the idea of it because it was a Grade 1 Listed property and thus there was only limited scope to carry out alterations, it had no leisure complex nor any prospect of one being added it was a property undergoing extensive remodelling/refurbishment and being sold in “shell” form so that even after it was purchased it would still require substantial money being spent on it whereas the Defendants’ preference was to buy a “turnkey type operation” by which I mean a property all “done up” and “ready to move into”. 19. Mrs. Asfari said that she wanted to view the Property. While in the car with Mrs. Asfari I telephoned Knight Frank’s St. John’s Wood office and spoke to Jamie Simpson about the Property. He confirmed Knight Frank had been instructed by the vendor of the Property to sell it. I told him that I was with someone who was interested in the Property. He told me that no marketing details had yet been produced and made it plain to me that I would have to be retained by the purchaser because Knight Frank wouldn’t be able to offer me any proportion of their fee. He told me the Property was to be marketed at £17m. I then asked him to hold a moment and relayed the conversation to Mrs. Asfari who was sitting next to me in the car. The first thing I told her was that I wasn’t instructed by the vendor and couldn’t obtain a fee from the vendor or the vendor’s agent so had to be retained and thus she would have to pay me a fee if she and her husband exchanged contracts to buy the Property. She said that that was fine. I did not mention the rate of commission because she was familiar with the usual rate payable being 1% of the eventual purchase price plus VAT. I feel sure Mrs. Asfari would have known, when I referred to a fee being payable, that I was referring to 1% of the purchase price. Having agreed to the fee agreement I then gave her the guide price and explained that there were no details available as yet as the Property wasn’t yet being marketed and asked if she still wanted to view it. 20. Mrs. Asfari was keen to view the Property and I then went back to Jamie Simpson who had been holding on and said that my applicant, whose name I gave, wanted to view the Property and asked if we could view it as soon as possible that day. Jamie Simpson said he would meet us at the Property shortly. I told Mrs. Asfari and we waited outside the Property for Jamie Simpson. We were unable to look inside the Property before Jamie Simpson arrived because there were gates at the entrance to the Property which were locked. 21. Jamie Simpson met Mrs. Asfari and me at the Property a short time following my call to him on 9th January 2006. I remember that there were builders at the Property. The Property had no roof and there was scaffolding everywhere. Indeed, I recall that all 3 of us had to go to a portakabin to get hard hats to wear and to the best of my memory I believe that Jamie Simpson had to sign a book in order to ensure that we could gain access to the Property. I recall that the plans of the Property were pasted on the wall of the portakabin from which we obtained the hard hats. There is no doubt in my mind that without my involvement Mrs. Asfari would not have been able to view the property when she did. 22. Jamie Simpson walked around the Property with Mrs. Asfari and me and we inspected it for 45 minutes to an hour. While we were walking around Jamie Simpson provided information on the proposed refurbishment. 23. After we had viewed the Property, Jamie Simpson left. I then spoke to Mrs. Asfari about the Property. To my pleasant surprise, Mrs. Asfari told me that she loved it. I remember saying to her words to the effect of “I can’t believe you like it” given that it did not meet all of her requirements. At the time I showed the Property to Mrs. Asfari it was not publicly advertised for sale, no “For Sale” board had been erected at the Property. Indeed, the Property was literally just coming to the market – again I am sure that Mrs. Asfari would not have learnt of the property at the time she did, had it not been for my endeavours. 24. Mrs. Asfari did not get back into my car after we viewed the Property. Instead since she lived nearby she decided to walk home. I believe it was later that afternoon that Mrs. Asfari telephoned me and asked me if I could obtain plans for the Property and send them to her. It is possible that Mrs. Asfari made this request before we went our separate ways at the Property but to the best of my recollection the request was made by means of a telephone call from her later in the day.” 33. It was common ground that Mr. Green did in fact obtain plans of the Property for Mrs. Asfari and deliver them to her. 34. At paragraph 12 of the Particulars of Claim in its original form it was alleged that:- “On 11th January 2006, whilst in his car with her, Ian Green informed the 2nd Defendant that the Claimant had found another property (44, Grove End Road) which might possibly be of interest to the Defendants.” That allegation was amended in the Amended Particulars of Claim to substitute for the date 11th January 2006, the date 9th January 2006. 35. At paragraph 12 of the Defence in its original form the allegations in paragraph 12 of the Particulars of Claim were admitted. Thus, at that stage, on the parties’ statements of case there was no issue that it had been Mr. Green who had introduced Mrs. Asfari to the Property. However, in an Amended Defence that admission was withdrawn and a denial was substituted. 36. In her first witness statement Mrs. Asfari said this about the circumstances leading up to, and the discussion on, the occasion of the first visit which she made to the Property:- “9. In January 2006, Ian Green informed me that he had a property in St. John’s Wood which my husband and I may be interested in. The property was 44 Grove End Road, London NW8 (“Grove End Road”). I assumed that the Claimant was acting on behalf of the vendor of the Property as Mr. Green had previously informed me if this was not the case when we had viewed other properties. 10. I viewed Grove End Road with Mr. Green on or around 11 January 2006. My husband was not present. After the viewing, Mr. Green explained that the Claimant was not retained by the vendor and would therefore need to be retained by us. This was the first time that Mr. Green had mentioned that he was not retained by the vendor of Grove End Road. I explained to Mr. Green that this would not be possible as my husband and I had appointed Peter Mackie of Property Vision as our sole agent. Property Vision had an exclusive mandate. In response, Mr. Green said that this was a “silly thing to have done” as Mr. Mackie was not an expert on the North London area. I explained that my husband and I had spent many months searching for our ideal home without success and had effectively given up trying to find a suitable property ourselves. I reiterated that Property Vision had been appointed as our sole agent but suggested that Mr. Green speak to my husband.” 37. In her second witness statement Mrs. Asfari modified somewhat the account given in her first witness statement. She said:- “3. In my first statement I also say, at paragraph 9, that Ian Green of the Claimant informed me that he had a property in St. John’s Wood (44 Grove End Road) which may interest my husband and I. I have given the point considerable thought since making the first statement. This is not in fact correct. 4. In early January 2006, I was walking along the High Street in St. John’s Wood when I bumped into Ian Green. I do not recall the exact date however, it was certainly before I viewed 44 Grove End Road. Mr. Green and I often ran into one another in or around the St. John’s Wood area. 5. Mr. Green and I were discussing various matters as friends do. I mentioned that my husband and I had still not managed to find a suitable property. In passing, I mentioned that there seemed to be various building works going on at 44 Grove End Road. I noticed the works as the property is located almost directly behind my current home, 60 Circus Road. It is a building I have always loved ever since my husband and I moved to the area. I walked past it every day when visiting my mother who lives on the same road. I often said to my husband that some day, I would love to live there. 6. Mr. Green said that he would find out and try to arrange a viewing. 7. On or around 9 January 2006, Mr. Green and I were driving around the St. John’s Wood area looking at properties which were due to come onto the market. Whilst out, we drove along Grove End Road and I pointed out number 44, the property I had mentioned to Mr. Green during our conversation on the High Street. I reiterated that it was a property I had liked for some time. We parked the car just outside the property and Mr. Green proceeded to make a call on his mobile telephone. I was not entirely sure who Mr. Green had called however, he arranged for me to view the property later that day. There was absolutely no mention of Mr. Green not being retained by the vendor. Equally, there was no mention of commission agreements or percentages. 8. The first time Mr. Green mentioned that he was not retained by the vendor and would need to be retained by my husband and I was following the first viewing of 44 Grove End Road. As I have already said in my first statement, I made it clear to Mr. Green at that stage that it was not possible as we had retained Property Vision as our sole retained agent. Having made the position clear, I assumed that Mr. Green would reach some form of agreement with the vendor’s agent in respect of his commission. 9. At no point did I ever discuss let alone agree any form of commission arrangement or percentage with Mr. Green. I would never discuss matters of this nature. I would have no idea what an agent should be paid or whether a percentage based fee was reasonable. All such matters are dealt with by my husband exclusively.” 38. The essential difference between the account of Mrs. Asfari in her first witness statement and that in her second was that in the second she said that she had mentioned the Property to Mr. Green on the occasion of the meeting in the High Street in St. John’s Wood before the occasion on which she and Mr. Green had been driving around the area looking at properties on about 9 January 2006. She did not seek to go back on the account that on about 9 January 2006 she had been driving with Mr. Green or that on that occasion there had been a conversation between them about the Property, leading to Mr. Green making a telephone call and arranging a viewing. Mrs. Asfari’s accounts were not, therefore, to any significant degree inconsistent. Rather, the fuller version in the second statement fleshed out what was in the first. Mr. Hutchings, on behalf of Mr. Green, attached considerable importance to the issue of whether Mrs. Asfari asked Mr. Green about the Property or he suggested it to her, without any prompting from her. Mr. Hutchings thus pressed Mrs. Asfari as to how she had come to give the fuller account in the second witness statement which was not in the first. He also emphasised the originally pleaded admission in paragraph 12 of the Defence. Mrs. Asfari told me that in the course of reading the papers in this action and thinking about the issues her recollection had been prompted as to the meeting in the High Street at the beginning of January 2006. Circus Road and Grove End Road are in fact almost parallel roads adjacent to each other. Mr. Hutchings did not suggest that the Property was not in fact almost behind 60, Circus Road or that Mrs. Asfari could not have seen building work in progress at the Property. Equally he did not challenge Mrs. Asfari’s declared love of the Property over a considerable period. 39. The Claimant’s pleaded case, set out in the Amended Particulars of Claim, was that it was on 9 January 2006 that Mrs. Asfari, acting on her own behalf and on behalf of her husband, entered into a binding agreement to retain the Claimant to act for them in seeking to acquire the Property. How the case was put, omitting words deleted in the amendments to the Particulars of Claim, and underlining, was this:- “12. On 9th January 2006, whilst in his car with her, Ian Green informed the 2nd Defendant that the Claimant had found another property (44, Grove End Road) which might possibly be of interest to the Defendants. 13. Ian Green made clear on this occasion, following a telephone conversation with the vendor’s agent (Knight Frank), that, as this was a property in respect of which the Claimant did not act for the vendor, and nor would it be able to obtain a fee from the vendor or the vendor’s agent, a commission agreement between the Claimant and Defendants would be necessary. 14. The 2nd Defendant duly agreed for the Defendants to pay a commission on the same terms and in the same circumstances as set out in relation to the first commission agreement, save that the precise commission rate was not expressly agreed, for the reasons set out in paragraph 10 above (“the contract”). 15. It was accordingly an implied term of the contract that the commission payable in the event of an exchange of contracts, would be 1% of the purchase price plus VAT; alternatively, 1% plus VAT was a reasonable sum. 16. Accordingly, on 9th January 2006, pursuant to the contract, the Claimant introduced the 2nd Defendant to 44, Grove End Road, St. John’s Wood (“the property”), and the 2nd Defendant viewed the same on that day.” 40. Although the pleaded case of the Claimant was that the contract alleged was made on 9 January 2006, it was, as it seemed to me, also material to consider events after that date in reaching my conclusions as to whether the alleged contract had been made or not. 41. Attention was focused on the events of 14 January 2006 by the plea in paragraph 17 of the Amended Particulars of Claim that:- “Both Defendants then viewed the property with the Claimant on 14th January 2006, during which visit the parties expressly confirmed the terms of the contract (save as to commission).” 42. It is also right to say that Mr. Green did not, after the viewing of the Property on 9 January 2006, produce any documentary material in relation to the alleged retainer of the Claimant. Again he was asked about that by Miss Holland. Once more he said that, whilst he should have produced something in writing, the rather ad hoc nature of the agreement and the trust he had in Mr. and Mrs. Asfari meant that he did not. 43. Mr. Green’s account of what happened on 14 January 2006 he set out in his witness statement as follows:- “34. I met Mr. and Mrs. Asfari at the Property just before 9.00 am on Saturday 14th January 2006. When we got there the foreman had not arrived and we spoke outside the gates of the Property waiting for the foreman to arrive. I remember it was a cold morning. I explained that the Property had not been actively marketed and was very unique. I reiterated that they would have to pay me a fee if they agreed to purchase the Property and was again told that was fine. No discussion took place about the amount of the fee. As I have said, I trusted Mr. and Mrs. Asfari so did not see any need to dwell on this. Furthermore, they were aware that the usual fee in these circumstances was 1% of the purchase price plus VAT. As on the first appointment, we went to the portakabin and were all given hard hats to wear and I recall again that the plans of the Property were still fixed to one of the walls of the portakabin and we looked at these together. We spent about an hour at the Property. Mr. Asfari was not as keen as Mrs. Asfari. While Mr. Asfari said he liked the Property he said he was not sure if it was perfect for their requirements. Mr. Asfari expressed the desire to see more of a finished product. The Property was being built to a builder’s finish so effectively it would be sold while the “second fix” stage had been carried out so that the walls would be plastered, the electrics and plumbing would have been completed but there would have been no landscaping to the garden, no decoration, no bathroom fittings or kitchen fitted all of which works would have to be carried out by the purchaser at their own cost. It was all of this that made Mr. Asfari a little less enthusiastic than Mrs. Asfari about the Property. He was also concerned that because of the substantial amount of work to be carried out to the Property after it was purchased, that the ultimate cost of the Property would be somewhere closer to £20m when one took into account the cost of the works needed to complete the Property as well as the purchase price. Matters were left on the basis that while Mrs. Asfari really liked the Property they weren’t in a position to move forward. I remember that Mrs. Asfari was particularly enthusiastic about the Property, she said she loved the feel of it, it was a very special house but Mr. Asfari wasn’t as excited. They wanted to monitor what was happening with the Property and see it again when it was in a more advanced state of refurbishment so they could get a better perspective on what it would end up looking like. Mrs. Asfari asked me to keep an eye on what was happening with the Property and to update her.” 44. Both Mr. Asfari and his wife disagreed with the account of Mr. Green that they had indicated on the occasion of the viewing on 14 January 2006 that they would retain the claimant and pay it a fee. 45. In her first witness statement Mrs. Asfari said, at paragraph 11:- “My husband and I viewed Grove End Road together the following week. This was my husband’s first viewing. Initially, my husband did not like Grove End Road as he felt that the bedrooms were too small and the garden was overlooked by the neighbours. However, we visited the property again several weeks later when the constructions works were further advanced. I managed to convince my husband that Grove End Road had great potential. My husband and Peter Mackie arranged for architects to visit the property to advise whether the bedrooms could be altered to make them bigger. A landscape architect was also instructed to see whether the extent to which the garden was overlooked could be resolved.” 46. Mr. Asfari’s account in his witness statement dated 4 May 2007 of what happened on 14 January 2006, and of how matters progressed thereafter, was this:- “10. In early 2006, my wife viewed 44 Grove End Road, St. John’s Wood, London NW8 (“Grove End Road”) with Mr. Green. After the viewing, Mr. Green informed my wife that he was not retained by the vendor of Grove End Road therefore, he would need to be retained by my wife and I otherwise he would be unable to secure a commission. My wife explained that this was not possible as Property Vision had been appointed as our sole agent. My wife suggested that Mr. Green speak to me. 11. I was approached by Mr. Green a few days later after my wife and I had viewed a property on Avenue Road with him. Again, Mr. Green explained that he was not retained by the vendor of Grove End Road therefore, if we were interested in that property, he would need to be retained by my wife and I. I explained, as previously confirmed by my wife, that this was not possible as Property Vision had been appointed as sole agent. 12. I viewed Grove End Road with my wife a few days later. This was my first viewing. Initially, I did not like Grove End Road as it was overlooked by a number of adjacent buildings and the bedrooms were relatively small. My wife however thought that Grove End Road had a great deal of potential and suggested that we view it again once the constructions works had finished. 13. My wife and I then viewed a property on Hamilton Terrace with Mr. Green. Although the location was good, neither my wife nor I were particularly impressed with the property itself. At that stage, I indicated to Mr. Green that my wife and I were reconsidering Grove End Road. Mr. Green attempted to persuade me that his company, the Claimant, should be retained as agent in place of Property Vision as Peter Mackie was not an expert on the North London area. Again, I reiterated that Property Vision had been retained however, I did say that if the purchase of the Grove End Road proceeded, I would ask Property Vision and/or Knight Frank, the vendor’s agent, to share their commission with the Claimant. Mr. Green acknowledged this and commented that he would not expect his usual 1% commission, he would happily accept 0.5% in the circumstances. 14. I contacted Peter Mackie and explained that my wife and I had found a property, Grove End Road, we were very interested in. Mr. Mackie explained that he knew of the property as he had met the vendor the previous week and would make contact directly. 15. My wife and I viewed a number of other properties in the Kensington area. We also looked around Grove End Road again. The inner shell of the Property was nearing completion at that stage. Mr. Mackie visited the Property with a number of architects to ascertain whether the bedrooms could be altered to meet our requirements. Landscape architects were also instructed to see whether anything could be done to limit the extent to which the garden of Grove End Road was overlooked by the adjacent buildings. 16. The advice received from the architects was positive so my wife and I decided to make an offer for Grove End Road. Before doing so, I asked Peter Mackie to consider, as gesture of goodwill, giving part of Property Vision’s fee to the Claimant if it was unable to reach any form of commission sharing arrangement with the vendor’s agent. Mr. Mackie said he would consider this request if the sale proceeded. 17. My wife and I made a number of offers/counter offers for the Property. I made those offers/counter offers conditional upon the vendor’s agent agreeing to share its commission with the Claimant. I asked Peter Mackie to contact the vendor’s agent to enquire whether they would be willing to share their commission with the Claimant as it had not been retained by my wife and I. Mr. Green also approached Knight Frank to enquire whether they would be willing to share their commission with the Claimant. Knight Frank refused. … 18. The vendor refused to accept the condition that its agent share its commission with the Claimant. I eventually withdrew the condition as I was concerned that the vendor may in fact walk away and sell the Property to someone else. Peter Mackie agreed, as a gesture of goodwill and nothing more, to reduce Property Vision’s fee by £20,000 so that this figure could be made available to the Claimant given the vendor’s agents refusal. 19. A sale price of £14,500,000 was eventually agreed for Grove End Road in July 2006. The sale completed on 26 October 2006. In August [a date corrected by Mr. Asfari in his oral evidence to July] 2006, Mr. Green called me to say that he had been told that contracts for the sale of Grove End Road had been exchanged and demanded that I pay a commission to him in respect of the purchase as he had been unable to agree a commission sharing arrangement with the vendor’s agent. I explained that although he had not been retained by my wife and I, Property Vision had agreed (as a gesture of goodwill and without any admission on the part of my wife or I that a commission was due to the Claimant), to reduce its own fee by £20,000 so that this figure could be paid to the Claimant. 20. Mr. Green demanded the sum of £50,000. I reminded Mr. Green that he was not entitled to anything as Property Vision was our sole retained agent and that I considered this to be a very generous offer in the circumstances. I explained that I was only making the offer as he, on behalf of the Claimant, had been unable to secure a commission from the vendor and/or Knight Frank. Mr. Green then stated that the Claimant would accept £40,000. I did not want to become embroiled in lengthy debates with Mr. Green on the issue and, without any admission of liability, offered to give a further £10,000 in addition to the £20,000 ‘donated’ by Property Vision. I also offered to retain Mr. Green as sole agent for my current property, 60 Circus Road, if the property was sold in the future (unless the sale was to a friend or family member). Mr. Green asked me to confirm this in writing however, I refused as I was concerned that it would be misinterpreted as an admission that the Claimant had been retained by my wife and I in respect of Grove End Road which was not the case. The call was terminated.” 47. In cross-examination Mr. Asfari accepted that the chronology of his account, in particular in relation to the discussion with Mr. Green after viewing a property in Avenue Road, might be adrift, but he was firm that he had never agreed to retain Mr. Green to introduce any property to him. Mr. Asfari told me that he had never retained anyone to perform that role before entering into the Property Vision Agreement. He also said, as did Mrs. Asfari, that in their relationship it was he, and not her, who made decisions about financial matters. She said that she would never incur any sort of financial obligation without consulting her husband. His evidence was that he believed that that indeed was the position. In cross-examination Mr. Asfari added the details, in relation to the discussion with Mr. Green which he had originally put as being in August 2006, that it was probably 29 June 2006 and that the conversation had been terminated by him when he considered that Mr. Green had threatened him by suggesting that Mr. Green had been advised that there were other ways of obtaining payment of an appropriate amount of money from Mr. and Mrs. Asfari than by agreement with him if he was not prepared to pay enough. 48. Mr. Green’s evidence was that after the viewing of the Property on 14 January 2006 he continued to show both Mrs. and Mr. Asfari properties for sale in the area of St. John’s Wood. One of the properties which he showed Mr. Asfari was 23, Avenue Road, on 4 February 2006. It seems that this was the occasion of which Mr. Asfari spoke at paragraph 11 of his witness statement. Mr. Green in his witness statement said, at paragraph 37, so far as is presently material that:- “I recall that when I turned up at the property on Saturday 4th February the first person to turn up was not Mr. Asfari but Peter Mackie from a company called Property Vision. I had met Peter Mackie previously (although in a context which had nothing to do with the Defendants) so knew who he was and was aware PV was a search agent who acted for purchasers. I was surprised that he was there and asked him what he was doing there. He told me he had been retained by the Defendants to find them a house. (He did not tell me when he had been retained.) I had no reason to ask him any further details because this was not my concern. I had my own arrangement with the Defendants and if they had employed the services of PV for some purpose that was their concern. I therefore had no reason to question PV’s presence. However, I can categorically confirm that this was the first occasion on which I had any inkling/idea about PV being involved with the Defendants.” 49. In cross-examination Mr. Green told me, before being reminded of the passage from his witness statement which I have quoted in the previous paragraph, that on 4 February 2006 he did not discuss with Mr. Mackie why he was present. That evidence and his witness statement on this point were therefore inconsistent. 50. Mr. Green agreed that he and Mr. and Mrs. Asfari had viewed a property at 68, Hamilton Terrace on 27 May 2006. It seems that that was the occasion to which Mr. Asfari referred in paragraph 13 of his witness statement. Mr. Green accepted that on that occasion there had been discussion about the Property. In his witness statement Mr. Green dealt with that discussion in this way:- “40. … However, while we were at 68 Hamilton Terrace a discussion took place about the Property. Mr. and Mrs. Asfari told me how much they liked the Property, Mr. Asfari told me that Peter Mackie of PV claimed to know the owners and that Peter Mackie had begun enquiries about whether a deal could be tied up on the Property and at what price. I was very surprised to learn this because I had introduced the Property to them and up until this time the Defendants had always sought my advice in relation to it. I reminded both Mr. and Mrs. Asfari of the commission agreement that they had entered into with me saying words to the effect of “don’t forget you have agreed to retain me”. Mr. Asfari said that was not a problem and that if they decided to purchase this property the payment of my fee would not be an issue. I remember being comforted by what Mr. Asfari said which was to the effect of, “we won’t let you down, you found the Property for us, there’s no problem, you won’t lose out”. In view of the relationship I enjoyed with the Defendants, the fact I trusted them, I really didn’t have any concerns at this time. As far as I was concerned, they had acknowledged their commitment to pay me a fee under the agreement that I had with them. 41. The owner of 68 Hamilton Terrace, Bruce Ritchie, is a property developer and he had been contemplating the purchase of the Property but had decided not to proceed. Bruce Ritchie informed me that he had a relationship with the owner of the Property and that the owner had been trying to persuade Bruce to purchase the Property privately. Bruce Ritchie told me that he had decided not to proceed with the purchase but while I was at his (Bruce Ritchie’s) property on 27th May 2006 he provided me with information about the Property which I passed onto the Defendants. He told me about his interest in the Property and the fact that it was his view that while the vendor of the Property claimed that there were interested purchasers in the Property he, Bruce Ritchie, did not believe anyone was so interested and he was convinced that a deal could be done to purchase the Property at somewhere between £14m and £14.5m. I relayed this information to Mr. and Mrs. Asfari while we were at 68 Hamilton Terrace. We also discussed how much it might cost to landscape the garden and furnish the house. The discussion about the Property ended on the basis the Defendants would get back to me if Peter Mackie made any headway.” 51. It was common ground that Mr. Green did report to Mr. and Mrs. Asfari following the discussion which he had had with Mr. Ritchie and inform them that Mr. Ritchie thought that the Property could be purchased for between £14 million and £14.5 million. Mr. Asfari told me in cross-examination that by that time he had made an offer for the Property of that general order of magnitude. 52. It was also common ground that Mr. and Mrs. Asfari asked Mr. Green to arrange a further viewing of the Property on 31 May 2006 and that he did so. 53. There was no dispute between Mr. Green and Mr. Asfari that on 10 June 2006 Mr. Asfari telephoned Mr. Green. Mr. Green’s account in his witness statement was:- “46. …. Mr. Asfari, who was on his mobile and on speakerphone so hands-free in his car said that he and his wife really liked the Property and wanted to take the matter further. Mr. Asfari asked me whether there was any way in which I could obtain a fee from the vendor’s agent. He explained to me that he did not want to pay a fee to me and a fee to PV. I was surprised that he made reference to PV wanting a fee in relation to the Property because they had not introduced it. I said that to Mr. Asfari and pointed out that they had not even known about the existence of the Property let alone introduced it to the Defendants. He said that was right but that the agreement he had with PV meant that he would have to pay them a fee, come what may, if he purchased the Property. Mr. Asfari said that he and his wife had instructed Property Vision because their strengths lay in finding properties in the West London area. I said that Property Vision had no detailed knowledge of the St. John’s Wood/North West London area. 47. Mr. Asfari reiterated that the arrangement he had with PV was such that PV would have to be paid a fee if the Defendants bought the Property and he asked me to try and help him. He asked that I try and obtain a fee from the vendor’s agent. I remember telling him that the vendor’s agent had already told me that they could not share their fee with me. He asked me to try again. He said to me that if they would not share their fee then he would speak to PV and try and get them, PV, to split their fee with me. I had no idea what fee the Defendants were paying to PV and did not ask. As far as I was concerned I did not think there was any possibility that PV would split their fee with me. I remember saying to Mr. Asfari that I did not want him penalising me simply because he had to pay PV a fee. I reminded him that it was me who had introduced the Property, and provided information in relation to it. The conversation was a perfectly pleasant one and was not, in any way, confrontational. Mr. Asfari said that he understood all that I had done in relation to the Property. He asked that I have a word with the vendor’s agent to see if I could obtain any part of their fee because that would help him. I remember saying to Mr. Asfari that there was no way that the vendor’s agent (Knight Frank) would share their fee with me. I said that they had already told me at the outset that they could not share their fee and it was a waste of time me trying to speak to them about this. I explained that the Defendants had to pay my fee, come what may. Mr. Asfari said that he fully understood that and there would not be a problem paying my fee if he agreed to buy the Property, but he wanted me to have a word with the vendor’s agent to see if I could get anything out of them. I agreed reluctantly to speak to them but made it absolutely plain that I did not think I would get anywhere and that if he and Mrs. Asfari exchanged contracts to purchase the Property then they would have to pay my fee. He said that was not a problem, he would not let me down and indeed would not make an offer to buy the Property or do anything relating to it until the amount of my fee was agreed between us. I felt reassured by what he told me and didn’t envisage any problems. After we spoke about the fees we chatted about the Property. 48. I remember Mr. Asfari asking my opinion about the price of the Property and what he should be paying for it. I reiterated that which we had discussed on 27th May when we were at 68 Hamilton Terrace namely that I thought he could acquire the Property for somewhere in the region of £14m to £14.5m. We talked about the square footage and I remember saying to him that even if he had to spend circa £5m after he had purchased the Property, when one took into account the square footage and the present state of the market, then the Property did not look that expensive. During this conversation he told me that he was going to use Peter Mackie of PV to negotiate the price. In their Defence (para.20) the Defendants admit that Mr. Asfari and I discussed the price to be offered for the Property and such like.” 54. Mr. Asfari in his evidence put a different slant on the discussion on 10 June 2006. His position was that he had made it clear before this conversation, and maintained it during this conversation, that the claimant had not been retained in relation to the introduction of the Property and there was no liability on the part of himself and his wife to pay anything to the claimant. However, he recognised that Mr. Green had been of assistance at the time Mrs. Asfari had first wanted to look round the Property, and had subsequently been of help in obtaining plans and arranging other viewings. In those circumstances, as a matter of goodwill, Mr. Asfari wished the claimant to receive some financial recognition of what Mr. Green had done, but he felt that it was for the selling agent of the vendor of the Property to provide that recognition as, in effect, if Mr. and Mrs. Asfari decided to purchase the Property, Mr. Green would have helped Knight Frank LLP to achieve the sale. The whole focus of the conversation, according to Mr. Asfari, was him pressing Mr. Green to try to obtain a fee from Knight Frank LLP, with Mr. Asfari saying that if the claimant could not obtain a share of the fee of Knight Frank LLP, he, Mr. Asfari, would try to persuade Property Vision to share its fee with the claimant. It was in that context, according to Mr. Asfari, that he sought, in making his first offers to purchase the Property, to make it a condition that Knight Frank LLP share its fee with the claimant. However, when it appeared that such insistence might prejudice the purchase, he abandoned that position. 55. Mr. Stephen Lindsay is a member of Knight Frank LLP. He was called to give evidence on behalf of Mr. and Mrs. Asfari. In his witness statement dated 4 May 2007 Mr. Lindsay said:- “3. In January 2006 Ian Green of the Claimant contacted me and explained that he had a couple, Mr. & Mrs. Asfari, who were interested in Grove End Road. Mr. Green claimed that the Claimant had been retained by Mr. & Mrs. Asfari. Mr. Green also enquired whether Knight Frank would be willing to share its commission with the Claimant. It is not unusual for agents to try and negotiate a share of the selling agent’s commission even when they are being remunerated by another party. I confirmed that Knight Frank would not share its commission with the Claimant. 4. On or around 11 January 2006, I attended Grove End Road with Mr. Green and Mrs. Asfari. Mrs. Asfari appeared very interested in the property. Mrs. Asfari viewed the property again the following week with her husband. 5. Shortly after the second viewing, I was contacted again by Ian Green. Mr. Green explained that he had not in fact been retained by Mr. & Mrs. Asfari and asked, once more, whether Knight Frank would be willing to share its commission with the Claimant in the event that the sale proceeded. I repeated that Knight Frank would not share its fee with the Claimant.” 56. Unfortunately it emerged during the cross-examination of Mr. Lindsay that he had prepared his witness statement without reference to the file of Knight Frank LLP relating to the Property and that in some respects his witness statement was inaccurate. In particular, it appeared, after he had consulted his file, that the appointment of Knight Frank LLP to act on behalf of the vendor of the Property had been agreed in October 2005, not in March 2006, and that it had not been Mr. Lindsay himself who had attended the Property on 9 January 2006. However, Mr. Lindsay was adamant that he had had at least three or four conversations with Mr. Green about whether Knight Frank LLP would share its commission with him, and that was always declined. He also said that in about July 2006 he had been asked by Mr. Grant Alexson, another member of Knight Frank LLP, whether a fee should be paid by Knight Frank LLP to the claimant. Mr. Lindsay understood that that question had arisen because the vendor of the Property had asked Knight Frank LLP to consider it. However, Mr. Lindsay advised against the sharing of any part of the fee with the claimant. 57. Mr. Green disputed the entirety of the evidence of Mr. Lindsay. He contended that he had not spoken to Mr. Lindsay until much later than the dates of which Mr. Lindsay spoke. Mr. Green said that it was not Mr. Lindsay, but Mr. Simpson of Knight Frank LLP who had shown him and Mrs. Asfari round the Property on about 9 January 2006, which, of course, in cross-examination Mr. Lindsay in effect accepted. Mr. Green denied contacting Mr. Lindsay shortly after the second viewing. 58. Mr. Alexson sent Mr. Mackie an e-mail dated 10 August 2006, a copy of which was put in evidence. In the e-mail Mr. Alexson said, so far as is presently material:- “Further to our telephone conversations yesterday, I write to confirm that I have spoken with my St. Johns Wood office and they inform me that Ian did approach them for fees and was consistently told that he would have to be retained. We are therefore not prepared at this stage to reserve any fees for him.” 59. Mr. Green disputed the accuracy of the contents of Mr. Alexson’s e-mail. He contended that it was incorrect that he had approached Knight Frank LLP asking for a share of its fees any earlier than the request from Mr. Asfari that he do that. Mr. Green had, however, said in his evidence that Knight Frank LLP, in the shape of Mr. Simpson, had made plain at the time of his telephone call on 9 January 2006 that Knight Frank LLP was not prepared to share its fees with Mr. Green. 60. Mr. Mackie was also called to give evidence on behalf of Mr. and Mrs. Asfari. In his witness statement dated 2 May 2007 he said, so far as is presently material:- “6. In June 2006, I received a call from Mr. Asfari saying that he and his wife had viewed a property in St. John’s Wood which they were very interested in. The property was 44 Grove End Road, NW8 (“Grove End Road”). Mr. Asfari mentioned that he and his wife had viewed the Property with Ian Green of the Claimant. I assumed that Mr. Green was acting on behalf of the vendor or, that he was helping the Asfaris in the hope that he would be instructed if the Asfaris decided to sell their current property. It is perfectly normal in the industry for this to happen. Mr. Green will have no doubt been aware that Property Vision is not a selling agent, it provides acquisition advice only and would not therefore be instructed by the Asfaris on any future sales. I confirmed to Mr. Asfari that I would make contact with the vendor directly to progress negotiations as I had met her a week or so before. 7. Following my initial contact with the vendor, I conducted all subsequent negotiations with the vendor’s agent, Knight Frank. Following a number of offers/counter offers, the sale price was eventually agreed at £14,500,000. 8. Prior to exchange of contracts, I was contacted by Mr. Asfari who asked me to speak to the vendor’s agents to see whether they would be willing to share their commission with the Claimant. Mr. Asfari explained that the Claimant had not been retained by the vendor and would not therefore be entitled to any form of commission in respect of the sale of Grove End Road. Mr. Asfari also asked me to consider giving part of Property Vision’s commission to the Claimant as gesture of goodwill in the event that Knight Frank refused. I confirmed that I would approach Knight Frank and, if they were not agreeable, consider giving part of Property Vision’s fee to the Claimant as a gesture of goodwill. 9. I called Grant Alexson of Knight Frank in August 2006 to discuss the terms of the sale. In passing, I mentioned that the Claimant was not retained by the Asfaris and was not therefore entitled to a commission from them. I asked whether Knight Frank would consider sharing their own commission with the Claimant. Mr. Alexson pointed out that Ian Green of the Claimant had already approached Knight Frank and asked them to share their commission with him. Knight Frank had refused. I received an e-mail from Mr. Alexson dated 10 August 2006 confirming this.” 61. Mr. Mackie’s evidence in cross-examination was that he had conducted all of the negotiations in relation to the acquisition of the Property by Mr. and Mrs. Asfari and that he had never been asked to, or had sought to, make it a condition that the commission of Knight Frank LLP be shared with the claimant, until about the beginning of August 2006. At that time, but not before, Mr. Asfari, he said, had asked him to get in touch with Knight Frank LLP, and also to consider giving part of Property Vision’s own commission to the claimant, if Knight Frank LLP would not agree to share its commission with the claimant. 62. From the perspective of Mr. Mackie and Mr. Lindsay, therefore, it appeared that Mr. Asfari had not sought to impose any condition on the purchase of the Property that Knight Frank LLP share its commission with the claimant. Rather, Mr. Asfari seems to have raised that issue directly with the vendor of the Property, who then raised it with Knight Frank LLP, and a little later Mr. Asfari raised the matter with Mr. Mackie. 63. What appeared to have prompted Mr. Asfari to raise the issue of a fee for the claimant with Mr. Mackie was the receipt by Mr. Asfari from Mr. Green of a letter dated 18 July 2006. That letter was important. The case of Mr. and Mrs. Asfari before me was that the terms of the letter were totally inconsistent with Mr. Green having any belief, at the time that he wrote it, that Mr. and Mrs. Asfari had entered into any agreement to retain the claimant to introduce them to the Property. The letter was in these terms:- “I refer to our recent discussions following your agreement to purchase 44 Grove End Road through Knight Frank for £14.5 million. I am pleased that you have found a suitable property. As you are aware, we need to agree a fee in respect of my commission as your retained agent in introducing the property to you. I have, of course, had numerous discussions about the matter and I note and appreciate your confirmation that you are obligated, should the matter proceed to exchange of contracts, to pay me a fee. However, I thought that it would be best to set out my position in writing in order to assist in agreeing an appropriate fee. I have represented your interests for several years showing you properties from between £6m to £22m within the St. John’s Wood area as well as being instructed by you to dispose of your current property located on Circus Road. In the present case, I was instructed by you to look for properties up to £20 million. Normally, I would present fixed terms for any formal retention but in view of our past relationship, as agreed and discussed with you, we were to delay agreeing a specific fee until a suitable property had been found. Nevertheless, I had always mentioned to you (and this was accepted) that I would need to be retained in this instance and that this was acceptable to you. On three occasions I showed your wife and yourself around the property. I would also confirm that at this time there was never any mention or suggestion that you had Property Vision acting for you in any particular purchase. Whilst I understood that at a later date you had also retained Property Vision, this does not affect my entitlement for a fee in respect of my own retention. In fact Property Vision did not ever mention or introduce this property to you or discuss it with yourself until you informed me them of your interest. I can recall various conversations when you informed me that this was correct and that the only reason you had instructed Property Vision was because you were looking for a house in West London and that Property Vision were strong in that particular market. You also confirmed to me that Peter Mackie the representative of Property Vision was friendly with the owner/s of Grove End Road and that he might be able to do a deal direct with them whilst at the same time asking my advice on what to offer on the property and its likely value when refurbishing etc. However, I have since been informed that Peter Mackie was dealing direct with Grant Alexson from Knight Frank. Accordingly, as you suggested I would not expect Property Vision to share their fees with me along with the suggestion that I try and get Knight Frank to pay my fees as you did not want to end up paying 2 fees. My fee needs to be separately negotiated between ourselves. In the past you did advise me that you did not want to make an offer for a property until my commission arrangement had been agreed and so I was surprised recently to learn from Stephen Lindsay of Knight Frank that despite the terms of your purchase having been settled, that we have not had any further discussion regarding my commission on the matter. My normal fee would be 1% of the purchase price of the property. I am prepared to discount this fee and I appreciate when you come to sell your own property that you would be happy to appoint my firm the sole agent. Nevertheless, I am entitled to a reasonable sum and I would propose that I submit an invoice for ¾% of the purchase price on contracts being exchanged. Please confirm that this is in order. I am happy to have a further conversation with you or indeed meet to finalise the matter.” 64. Mr. and Mrs. Asfari did not respond to that letter. The claimant, however, never rendered any invoice. 65. Mr. Green’s evidence of his dealings with Mr. Lindsay commenced at paragraph 52 of his witness statement, where he said:- “I believe it was a few days after I spoke to Mr. Asfari on 10th June, that I was speaking to Stephen Lindsay who was and is a partner of Knight Frank (St. John’s Wood office). I am in regular contact with him as we speak about the deals we are doing. I remember that he told me the Defendants were negotiating to purchase the Property. He knew of my involvement and told me that he would let me know if they agreed to buy it. I remember him telling me that PV were dealing with Grant Alexson about the Property. Grant Alexson is a partner in the Knight Frank office in Hampstead. It was during this conversation that I asked Stephen Lindsay whether there was any chance of Knight Frank being able to share their fee with me. As I say I was embarrassed to ask him about this and was told in no uncertain terms that there was no possibility of them splitting their fee with me. Stephen Lindsay explained to me that not only would Knight Frank have to split their fee with the joint sole agent, Goldschmidt & Howland but his office also had to give a proportion of any fee they earned to the Knight Frank Hampstead office. I was not in the least surprised when I was told that Knight Frank were unable to share their fee with me.” 66. Mr. Green’s evidence was that he reported to Mr. Asfari on about 21 June 2006 that he had not been able to agree with Knight Frank LLP a share of that firm’s commission for selling the Property. At paragraph 54 of his witness statement he said about the reaction of Mr. Asfari to that news:- “I recall that for the first time Mr. Asfari then became rather less friendly; he told me that he had to pay Property Vision and as far as he was concerned he was not obliged to pay me anything. This was the first time he had said such a thing and I was rather taken aback. I said that was totally unacceptable and he had to honour the agreement that he had entered into with me. He said that he wanted to resolve matters amicably. I told him that I needed my fee paid if he chose to buy the Property. The conversation was left on the basis that he would get back to me. This was the first occasion on which I felt that payment of my fees was in jeopardy.” 67. Mr. Green and Mr. Asfari agreed that there was a conversation between them on about 29 June 2006. I have already set out the account of Mr. Asfari concerning that conversation at paragraphs 19 and 20 of his witness statement. Mr. Green’s account was:- “56. Either on 29th June or a few days thereafter I managed to speak to Mr. Asfari. He told me that Property Vision were liaising with the vendor and he had further thoughts about the commission and he wanted to discuss these. He said rather than paying me a fee, his idea was to make me a sole agent as and when he and his wife decided to sell the property at 60 Circus Road provided the sale was to someone other than a friend or family member. He said on top of that he would arrange for PV to pay me £20,000 from the fee that they, PV, were going to receive from the Defendants and in addition he and Mrs. Asfari would pay me £10,000. I said to him that this was unacceptable and that I needed my full fee to be paid as agreed. I said to him I was expecting to be paid the usual fee being 1% of the purchase price plus VAT. The conversation became quite heated. I remember Mr. Asfari saying words to the effect of “I don’t have to pay you anything; I am offering you an “ex gratia” fee. I distinctly recall thinking that wasn’t his usual language and that he’d probably spoken to a lawyer. The conversation wasn’t a particularly constructive one and matters were left on the basis Mr. Asfari would get back to me but with me making it plain I expected to be paid if the Defendants chose to acquire the Property. I remember asking Mr. Asfari to put the offer to me in writing (thinking that may assist my position in due course) but he refused saying he wasn’t putting anything in writing.” 68. Mr. Green told me that, after what he considered to be a rather evasive meeting in the street with Mrs. Asfari, he telephoned Mr. Lindsay on 14 July 2006 to find out how matters stood in relation to the Property. Mr. Lindsay told him that a deal had been agreed at £14,500,000. Mr. Green said that he then telephoned Mr. Asfari. Mr. Green’s account of that conversation was set out at paragraph 60 of his witness statement, and was to this effect:- “I told Mr. Asfari that I had learned he and his wife had agreed to buy the Property for £14.5m and congratulated him on that. I asked him about my fee. He was fairly abrupt with me. Mr. Asfari said he had spoken to PV to try and get PV to get them to split their fee with me but they would not. I was not in the least bit surprised by this. However, he said he was still willing to make what he termed a “non gratia” payment and that I should not call him any more or write to him and I should consider myself lucky he was taking my call or paying me any fee. He said the payment he was prepared to make was the same as the one he’d offered to make previously. … I told him this was unacceptable but that I wanted to sort things out and asked him to confirm his offer in writing which he refused to do and at which point he effectively terminated the call. Sensing real difficulties, I made a note of my conversations with both Mr. and Mrs. Asfari in my day book …. I am certain that I saw and spoke to Mrs. Asfari before speaking to Mr. Asfari despite the fact the notes in my day book appear in the reverse order. The reason for that is simply that I made the notes immediately following my telephone conversation with Mr. Asfari.” 69. Mr. Green plainly anticipated at the time of the preparation of his witness statement that he would have to give some account of the letter which he wrote to Mr. and Mrs. Asfari dated 18 July 2006. What he said about it was this:- “62. The letter was not intended to be confrontational; far from it. It was a genuine attempt on my part to try and see if matters could be sorted out amicably. The one thing I wanted to avoid was litigation which is exactly where I now find myself. 63. Mr. Asfari had specifically told me not to contact him or to put things in writing and since the Defendants had made it plain that they were now reneging on the agreement, I decided to record that which we had discussed. 64. At the time of writing the letter I did not want to fall out with the Defendants or jeopardise the prospect of a deal being done in relation to the Property and it was against that backdrop that I wrote the letter. I wanted to wrap matters up and move on. While I believed I was entitled to a fee equal to 1% of the eventual purchase price of the Property plus VAT (and for that matter believed that to be the Defendants’ understanding) at the time I was willing to accept a lesser sum than that to which I was entitled. I was conscious I had not actually expressly agreed my commission rate at 1% of the eventual purchase price plus VAT and felt therefore that I would (in order to prevent any disagreement – but without being obliged to do so) agree to be flexible as to the actual amount I would be paid. (I suppose that I was conscious that I should have put the1% figure in writing). 65. As regards the third paragraph of my letter in which I state that “as agreed and discussed with you, we were to delay agreeing a specific fee until a suitable property had been found” I was referring to the fact no specific rate of commission had been agreed in relation to the Property and to the conversation we’d had back in June. While I agree therefore that I never agreed a specific rate of commission in relation to the Property what I was at pains to point out in the letter was that at all times the Defendants had agreed to retain me and pay an introductory fee in return for me introducing the Property. The Defendants know full well that was agreed between us. For the reasons I have stated I believe the Defendants were well aware that the fee was equal to 1% of the eventual purchase price plus VAT and, further, that is the usual rate applicable when a firm of agents is retained by a purchaser (which fact is and was well known to the Defendants). I fully appreciate that it was remiss of me not to put matters in writing at the material time but it was because of the good relationship that I enjoyed with the Defendants that I did not spell matters out but I realise this was an error on my part. Saying that no prejudice has been caused to the Defendants by my failure to put matters in writing. In my letter I also recorded the fact that Mr. Asfari said he would not make an offer for the Property until he had sorted out my fee. 66. In my letter I suggested to the Defendants that I invoice them a fee equal to ¾% of the purchase price on contracts being exchanged thus reducing my normal fee by ¼%. At this stage I was prepared to take a lesser fee than that to which I was entitled because of the good relationship I enjoyed with Mr. and Mrs. Asfari, but as I say they never responded to my letter or made any offer of settlement hence the reason for these proceedings. ” 70. There were put in evidence copies of written offers made for the Property by Mr. Mackie on behalf of Mr. and Mrs. Asfari. The offers were contained in letters dated, respectively, 21 June 2006, 4 July 2006 and 14 July 2006. The sums offered were, respectively, £14,000,000, £14,250,000 and £14,500,000. In none of these letters was any condition sought to be imposed that Knight Frank LLP share its commission with the claimant. 71. By an invoice dated 3 November 2006 Property Vision sought payment from Mr. Asfari of an amount of £180,000 plus Value Added Tax in respect of its services. In a file note dated 7 August 2006, of which a copy was put in evidence, Mr. Mackie explained the reasoning behind the sum invoiced in this way:- “Based on our current Terms of Business, we have a capped fee of £200,000 plus VAT. PM and Mr. Ayman Asfari had a conversation relating to 44 Grove End Road and agreed a reduced fee of £180,000 plus VAT, rather than £200,000 to reflect the selling agent [a reference which Mr. Mackie agreed in cross-examination was to Mr. Green] having taken Mrs. Asfari around the property. PM believes that there was no fee agreement with Mr. Ian Green as Mrs. Asfari was taken around on the basis that he would be paid by the selling agents. However, Mr Asfari wants to have the ability to give him a small reward on the basis of a long term relationship.” 72. In their respective closing submissions both Mr. Hutchings and Miss Holland accepted that the nature of the differences between Mr. Green’s evidence, on the one hand, and that of Mrs. Asfari and Mr. Asfari, on the other, in particular concerning the discussions which took place between them, indicated that one side or the other was just not telling the truth about what had occurred. 73. In his closing submissions Mr. Hutchings pointed to a number of factors which, in his contention, indicated that it was Mrs. Asfari and Mr. Asfari who were not telling the truth, and Mr. Green who was. Mr. Hutchings relied forcefully upon the apparent interest of Mr. Asfari in obtaining payment for the claimant from Knight Frank LLP or Property Vision as indicating that Mr. Asfari did in fact recognise that he and his wife had entered into a commitment to pay a fee to the claimant. Why should Mr. Asfari have any interest in whether or not the claimant was paid if he and his wife had made plain to Mr. Green that they accepted no liability to the claimant? It is a powerful point. Associated with it was Mr. Hutchings’s rhetorical question, why did Mr. and Mrs. Asfari look to Mr. Green, and not to Mr. Mackie, to make arrangements for the viewings on 14 January 2006 and 31 May 2006 if they had not retained the claimant? Mr. Hutchings also relied heavily upon the late amendments to the Defence in relation to what was said to have happened in respect of the discussions concerning the Marlborough Property and in relation to the question of who it was who first raised the possibility of acquiring the Property, Mr. Green or Mrs. Asfari. Mr. Hutchings sought to analyse the evidence of Mr. Asfari and Mrs. Asfari, concentrating on that of Mr. Asfari, to demonstrate what he described as inconsistencies and confusion. I have already observed that indeed Mr. Asfari’s chronology and the detail of some of his evidence, in particular in relation to seeking to make a sharing of the fee of Knight Frank LLP with the claimant a condition of the purchase of the Property, appeared to be awry. Mr. Hutchings contended that the evidence of both Mr. Asfari and Mrs. Asfari given at the trial that in their relationship he dealt with financial and business matters, and she would not incur any obligation without consulting him, was self-serving and designed to provide a foundation for an unpleaded case that she had no authority to contract with the claimant on behalf of her husband. As to the critical conversations on 9 January 2006, Mr. Hutchings contended that Mr. Green’s account had always been clear and consistent, while that of Mrs. Asfari was inconsistent and, to a degree, vague. 74. Miss Holland, in urging me to accept the evidence of Mr. and Mrs. Asfari, submitted that a very telling piece of evidence against Mr. Green was the terms of the letter dated 18 July 2006. The various references in the letter to the need to agree a fee, and the proposal of a fee of ¾ %, showed, she contended, that in fact, contrary to the pleaded case of the claimant, there had been no agreement of any sort that Mr. and Mrs. Asfari would pay the claimant a fee of 1%. Miss Holland also relied upon the evidence of Mrs. Asfari that she told Mr. Green both in November 2005 and again on 9 January 2006 that she and her husband were not in a position to retain the claimant because of the Property Vision Agreement. She contended that it would have been ridiculous for Mr. and Mrs. Asfari to have entered into an agreement with the claimant when the effect of so doing would have been to render them liable to pay two fees in respect of the acquisition of the Property. That also is a powerful point. Mr. Hutchings sought to answer it by contending that I should find that Mrs. Asfari did not understand that a fee would be payable to Property Vision even if Property Vision did not itself find the Property. 75. So far as the evidence that in their relationship Mrs. Asfari did not make decisions with financial implications without consulting her husband was concerned, Miss Holland did not in fact seek to contend that, in the light of that evidence, Mrs. Asfari had no authority to contract on behalf of her husband. Miss Holland’s point was simply that, in the light of that evidence, it was unlikely that Mrs. Asfari would have entered into the agreement upon which the claimant sought to sue. 76. I think that Miss Holland accepted that, in detail, some of the evidence of Mr. Asfari as to matters of chronology and as to seeking to make a sharing of commission between Knight Frank LLP and the claimant a condition of offers to purchase the Property, was unreliable. However, she submitted that on the main points – that the alleged discussions with Mr. Green in which Mr. Asfari acknowledged that there was a liability to pay the claimant never took place, that he would never have agreed to employ more than one search agent and that in their relationship he, and not his wife without consulting him, made business decisions – his evidence was clear. 77. Miss Holland criticised the evidence of Mr. Green on a number of points in addition to the criticism based on the terms of the letter dated 18 July 2006. In particular she contended that, if indeed there had been an agreement for the retainer of the claimant in relation to the Property, the claimant would have confirmed that in writing, as required, in her submission, by the provisions of Estate Agents Act 1979 s.18 and Estate Agents (Provision of Information) Regulations 1991. That there was no such letter, she submitted, was evidence that Mr. Green knew perfectly well that there had been no agreement. Miss Holland also contended that, if there had been a retainer, the claimant would have opened a file for Mr. and Mrs. Asfari, and yet there was none. Miss Holland pointed out that, if there had been an agreement at a particular rate of commission, one would have expected that the claimant would have issued an invoice addressed to Mr. and Mrs. Asfari seeking payment of the sum said to have been agreed, yet no invoice of any sort was raised by the claimant. Again, contended Miss Holland, the evidence of Mr. Green approaching Knight Frank LLP for a share of its commission was inconsistent with him having thought that he had entered into any agreement with Mr. and Mrs. Asfari. 78. In the end, whether the claimant had made out its claim that a contract had been concluded between Mr. and Mrs. Asfari and the claimant orally in conversation on 9 January 2006 between Mr. Green and Mrs. Asfari depended simply upon whose evidence I accepted. 79. I did not find Mr. Green to be a satisfactory witness. I reached that conclusion both from his demeanour in the witness box and from inconsistencies in his evidence. One inconsistency concerned the evidence of what discussion he had with Mr. Mackie on 4 February 2006, in relation to which his oral evidence contradicted his witness statement. Another concerned the letter dated 18 July 2006. Despite the contentions of Mr. Green, it is plain just from reading the letter that he did not in that letter assert that he had entered into an agreement with Mr. and Mrs. Asfari under which they were to pay the claimant a fee of 1% of the purchase price of the Property, plus Value Added Tax, in the event that they purchased it. I am confident that he would have contended that in the letter, had he believed at the time that such an agreement had been made. It would have made sense to put forward that contention in the letter, if he had believed it to be correct, and it made no sense not to put it forward in those circumstances. The proposal that the claimant accept a fee of ¾ % of the purchase price of the Property, plus Value Added Tax, was clearly inconsistent with any belief that a fee of 1%, plus Value Added Tax, had been agreed. It is notable that, although in his witness statement Mr. Green contended that the purpose of the letter of 18 July 2006 was to record what had been discussed, in it he did not set out any contention as to when, where or how any agreement between the claimant and Mr. or Mrs. Asfari had been made. I accept the criticisms of Mr. Green’s evidence made by Miss Holland in relation to the failure to produce any letter confirming the agreement of a retainer in respect of the Property, approaching Knight Frank LLP for a share of its fee, and his failure to produce any invoice in respect of fees considered to be due. The fact that Mr. Green did not open a file for Mr. and Mrs. Asfari seems to me to be of little significance, given that the claimant’s case was that there was a one-off retainer in respect of the Property, and not a standing retainer to look for properties. 80. I was very impressed by Mrs. Asfari as a witness. She is plainly an intelligent and educated woman. It seemed to me that she considered her answers in cross-examination carefully and sought to be accurate in what she said. I accept without reservation her evidence. I am satisfied that, as she told me, her modifications in her second witness statement to what she had said in the first were the result of her thinking further about the facts of the case after making her first witness statement and having her recollection prompted by reading the documents in the case. Her evidence that she first raised the Property with Mr. Green, rather than the other way round, was in no way surprising, given that there was no dispute that the Property lay almost at the end of the garden of her current residence and that she went past it frequently. Again, her evidence that, in her relationship with her husband, she consulted him about business and financial matters and did not make decisions without doing so, involved no challenge to the imagination. In many marriages the relationship is reinforced by consultation and discussion between the spouses about matters of significance to the family. Moreover, it is notorious, at least in the case of a female Cabinet Minister in relatively recent times, that intelligent women may be anxious or content that in a family situation financial decisions are made by the other spouse. 81. I was impressed by the frank and straightforward manner of Mr. Asfari. While I have commented on some aspects of his evidence in relation to which it appeared that he was somewhat confused or his memory at fault, I have no hesitation in accepting that he was a truthful witness and that his evidence on the main themes of this action – that he never agreed with Mr. Green that he or his wife had any liability to the claimant in respect of the Property, that his wife would not have entered into any significant financial commitment to the claimant without consulting him, and that he would never have agreed to engage two search agents and expose himself to the risk of having to pay two fees, – was accurate. I accept without reservation Mr. Asfari’s explanation as to why he interested himself in the question of the claimant obtaining a payment in respect of the involvement of Mr. Green in the Property. His action seemed to me to be an aspect of his character, as I assessed it – that of a thoroughly decent and honourable gentleman. 82. The evidence of Mr. and Mrs. Asfari was supported, to a degree, by that of Mr. Mackie. I found him to be enormously impressive as a witness. He was careful, thorough, balanced, and transparently honest. He could not give evidence on the critical issues, but his evidence of surrounding circumstances I accept without hesitation. 83. Mr. Lindsay’s evidence was tainted by the facts that he had prepared his witness statement without reference to his firm’s file and that it contained plainly erroneous contentions. However, his major contribution to the evidence in this case was what he said about having a number of conversations with Mr. Green in which Mr. Green sought a share of the fee of Knight Frank LLP. I accept Mr. Lindsay’s evidence on that question. It provided important support to the case of Mr. and Mrs. Asfari, as being inconsistent with the contention that the claimant had an agreement with them under which they were liable to pay a fee. 84. On all issues in dispute between Mr. Green and Mrs. Asfari I prefer the evidence of Mrs. Asfari. That includes the issue as to discussion, or not, of a commission of 1% of the purchase price, plus Value Added Tax, in the context of the Marlborough Property. I therefore find that there was no such discussion and that Mr. Green never mentioned to Mrs. Asfari any such rate. It also includes the difference as to who found the Property. I find that Mrs. Asfari found the Property herself. Critically I also find that Mrs. Asfari did not agree at any stage on 9 January 2006 to engage the claimant to introduce her and her husband to the Property. I find that the question of possible retainer was not raised until after Mrs. Asfari had viewed the Property and that when it was raised she told Mr. Green that the claimant could not be retained because she and her husband had retained Property Vision to act as their search agent. 85. In relation to the differences between the evidence of Mr .Green and that of Mr. Asfari I prefer the evidence of Mr. Asfari as to the substance of the various discussions between them, regardless of any chronological inexactitude. I am completely satisfied that Mr. Asfari never agreed to pay the claimant any fee in respect of the Property and that the suggestion that a fee of 1% of the purchase price, plus Value Added Tax, was never put to him in relation to the Marlborough Property. I accept the evidence of Mr. Asfari that, with the exception of the Property Vision Agreement, he and his wife had never entered into any agreement with any agent to search for a property for them. 86. I therefore reject the case of the claimant that Mrs. Asfari agreed with Mr. Green on 9 January 2006 that she and her husband would retain the claimant to introduce the Property to them. Implied terms 87. Given my finding that there was no agreement between the claimant and Mr. and Mrs. Asfari, it follows that there can be no question of implying a term. However, for completeness, since a certain amount of attention was given at the trial to the issue of whether, in law, it was permissible to imply terms into an agreement of the type for which the claimant contended, it is convenient to indicate the conclusions to which I would have come, had it been material to do so, concerning the implication of terms. 88. The first context in which the possibility of implying a term arose was whether a term should be implied, as a result of a course of dealing, into the agreement which Mr. Green said had been made on 9 January 2006 that the commission to which the claimant was entitled as a result of introducing Mr. and Mrs. Asfari to the Property should be 1% of the purchase price, plus Value Added Tax. I have found that in fact there was never any discussion or agreement of a rate of 1% of the purchase price, plus Value Added Tax, in the context of the Marlborough Property, so the contention that such a term should be implied would have failed on the facts anyway. However, Miss Holland also submitted that a discussion of a rate on one occasion, with it never being mentioned again, even on the claimant’s case, did not amount to a course of dealing. I accept that submission. Consequently in any event the contention that a term should be implied by reason of a course of dealing would have failed on that account. 89. Mr. Hutchings submitted that, if it were not appropriate to imply a term that commission should be paid at a rate of 1% of the purchase price, plus Value Added Tax, it would have been appropriate to imply a term that a reasonable sum be paid for services which the claimant agreed to undertake for Mr. and Mrs. Asfari. Mr. Hutchings contended that such implication fell to be made both at common law on the ground of business efficacy and by reason of the provisions of Supply of Goods and Services Act 1982 s.15. 90. Miss Holland initially resisted the submissions of Mr. Hutchings in relation to the implication of a term as to payment of a reasonable sum on the grounds that business efficacy did not require it, and that it was not clearly formulated. I think that ultimately she accepted that there was no substance in these objections. Certainly in my judgment there was no substance in them. The implication of a term for payment of a reasonable sum, if a contract is silent as to the sum to be paid for the provision of a service, is a matter of common occurrence both at common law and as a result of the provisions of Supply of Goods and Services Act 1982 s.15. Miss Holland’s real objection to the implication of such a term seemed to be that to do so would, she contended, infringe the provisions of Estate Agents Act 1979 s.18 and Estate Agents (Provision of Information) Regulations 1991 regs. 3 and 4, because the term would not have been communicated in writing before Mr. and Mrs. Asfari were committed to liability to the claimant. 91. Mr. Hutchings’s answer to Miss Holland’s point was two-fold. First, he submitted that in fact the provisions of Estate Agents Act 1979 did not apply to the circumstances of the making of the contract for which the claimant contended. Second, he asserted that, if it did, the effect of the relevant provisions was not that no implication was possible, but that, in the light of such implication, it would have been necessary for the claimant to apply to the court under Estate Agents Act 1979s.18(6) for the enforcement of the contract. 92. By Estate Agents Act 1979 s.1(1) it is provided that:- “This Act applies, subject to subsections (2) to (4) below [not presently material] to things done by any person in the course of a business (including a business in which he is employed) pursuant to instructions received from another person (in this section referred to as “the client”) who wishes to dispose of or acquire an interest in land – (a) for the purpose of, or with a view to, effecting the introduction to the client of a third person who wishes to acquire or, as the case may be, dispose of such an interest; and (b) after such an introduction has been effected in the course of that business, for the purpose of securing the disposal or, as the case may be, the acquisition of that interest; and in this Act the expression “estate agency work” refers to things done as mentioned above to which this Act applies.” 93. In his written skeleton opening Mr. Hutchings submitted that:- “40. It is submitted that the definition of “estate agency work” cannot have been intended to “catch” the specific situation in which the agent is not formally retained – either to sell or acquire a property for a person, but is rather (as with our contract) seeking on an “ad hoc” basis a finder’s fee in respect of specific properties which the agent feels may be suitable. The definition in the Act is appropriate to a “retainer” in the more common sense in which that phrase is used – i.e. an agent taking on a continuing duty to the client in respect of the sale of a specific property or a specific ongoing search for a property. 41. That is not the arrangement that C reached with Ds. 42. This is emphasised by the words “pursuant to instructions received from another person (in this section referred to as “the client”)” in s.18(1). Those words are inimical to the contract that C and D2 entered into on 9/1/06. C was not retained in the sense that these words imply – or, in the way that (for example) Property Vision were apparently employed by D – i.e. an on-going retainer, for a specific period, during which Property Vision would use “reasonable endeavours to locate a suitable property for you” … This was not the arrangement that C had with Ds. There was no (formal, contractually binding) “instruction received from … “the client”” to “find a property” for Ds. The nature of the arrangement as understood by the parties was that, if C chose to, he would introduce specific properties to Ds, provided that, on each specific occasion, before he did so, Ds agreed to pay a finder’s fee where C was not instructed for the vendor of the property. 43. The fact that the Act cannot apply and cannot have been intended to apply to the “finder’s fee” circumstances of our case is illustrated by the previous contracts that C had entered into with the Ds as well as the contract. If Ds are right that the Act applied in each case, C would have been obliged, when (say) driving D2 around NW8 and happening upon a property of interest, to have complied with the Act and the Regulations before he could introduce the particular property. In no way could C conclude an enforceable contract. This would in the circumstances, have been totally impractical – as the parties would have recognised at the time.” 94. Miss Holland submitted that, on the face of Estate Agents Act 1979 s.1(1), the agreement which Mr. Green contended he had made with Mrs. Asfari on 9 January 2006 was “estate agency work”. 95. The issue whether the agreement which Mr. Green contended he had made with Mrs. Asfari fell within the scope of Estate Agents Act 1979 s.1(1) was simply a question of construction of the Act against the background of what Mr. Green contended had been agreed. He asserted that he had said to Mrs. Asfari, in effect, “Are you prepared to pay the claimant a fee if I introduce you to the Property?”, to which she replied, “Yes”. In those circumstances Mrs. Asfari would have been a person who wished to acquire an interest in land – what the subsection defines as a “client”. Mr. Green would have been a person acting in the course of a business, that of the claimant. Mrs. Asfari would, in the exchange postulated, have given instructions to Mr. Green “for the purpose of, or with a view to, effecting the introduction to the client of a third person who wishes to … dispose of” the Property that she be introduced to the owner of the Property. I see no justification for concluding that Estate Agents Act 1979 did not apply to an agreement for an introduction to a single property, as opposed to an agreement to search for properties generally. In the case of a single property the indication of the “client” that it wished to be introduced to the owner of the property in question, can only, as it seems to me, have amounted to a giving by the “client” of “instructions” to effect that introduction. If, which I doubt, the practical difficulty consequent upon that conclusion, that a period must elapse between first setting eyes on a property and being introduced to it, in which period the requirements of Estate Agents Act 1979 are complied with, is relevant to the matter of construction, in my view, that there should be such a period, is discernible from the provisions of Estate Agents Act 1979 designed to protect those dealing with estate agents. Thus I reject the submission of Mr. Hutchings that Estate Agents Act 1979 had no application to such a situation. 96. However, I accept the alternative submission of Mr. Hutchings that where a term as to payment of a reasonable sum prima facie falls to be implied into a contract concerning “estate agency work”, either at common law or by virtue of the provisions of Supply of Goods and Services Act 1982 s.15, the implication of such a term is not prevented by the provisions of Estate Agents Act 1979 s.18 and Estate Agents (Provision of Information) Regulations 1991, but rather the effect of Estate Agents Act 1979 s.18(5) and (6) is that the resulting contract would only be enforceable by an order of the court. Estate Agents Act 1979 s.18(5) and (6) plainly contemplate failure to comply with the provisions of the Act, yet do not prescribe the consequence as being that the resultant contract is unenforceable. The material provisions are these:- “(5) If any person – (a) fails to comply with the obligation under subsection (1) above with respect to a contract or with any provision of regulations under subsection (4) above relating to that obligation, or (b) fails to comply with the obligation under subsection (3) above with respect to any variation of a contract or with any provision of regulations under subsection (4) above relating to that obligation, the contract or, as the case may be, the variation of it shall not be enforceable by him except pursuant to an order of the court under subsection (6) below. (6) If, in a case where subsection (5) above applies in relation to a contract or a variation of a contract, the agent concerned makes an application to the court for the enforcement of the contract or, as the case may be, of a contract as varied by the variation – (a) the court shall dismiss the application if, but only if, it considers it just to do so having regard to prejudice caused to the client by the agent’s failure to comply with his obligation and the degree of culpability for the failure; and (b) where the court does not dismiss the application, it may nevertheless order that any sum payable by the client under the contract or, as the case may be, under the contract as varied shall be reduced or discharged so as to compensate the client for prejudice suffered as a result of the agent’s failure to comply with his obligation. ” Enforceability under Estate Agents Act 1979 s.18(6) 97. If I had come to the conclusion that the agreement for which Mr. Green contended had been made, whether with a term implied that the fee payable should be 1% of the purchase price of the Property, plus Value Added Tax, or with a term implied that a reasonable fee be paid, Mr. Hutchings accepted that, unless I accepted his submission that the provisions of Estate Agents Act 1979 were not applicable at all, it would have been necessary for me to consider whether to permit enforceability of the contract under Estate Agents Act 1979 s.18(6). He submitted that I could only refuse enforcement if I considered that it was just to do so, having regard to the prejudice to Mr. and Mrs. Asfari caused by the failure of the claimant to comply with the requirements of the Act and the degree of culpability of the claimant for the failure. That must be correct. He contended that in fact no prejudice had been caused to Mr. and Mrs. Asfari and that, while Mr. Green had made no effort to supply in writing the details required by the Act, little culpability attached to the claimant as a result of that. 98. Miss Holland contended that, if the question of enforceability under Estate Agents Act 1979 s.18(6) arose, Mr. and Mrs. Asfari had been prejudiced by being subjected to a liability to pay two sets of fees in respect of the acquisition of the Property, by having no opportunity of knowing upon what terms the claimant was appointed and by having no ability to ensure that the claimant earned its commission. The latter two points seem to me to disregard the fact that, if the question of enforceability under Estate Agents Act 1979 s.18(6) had arisen, it would inevitably have been as the result of me finding that Mr. and Mrs. Asfari had entered into an agreement with the claimant, and what the terms of the agreement were. Thus at this stage those points would have been overtaken. 99. Mr. Hutchings’s answer to the objection that Mr. and Mrs. Asfari would have been prejudiced by being exposed to liability to pay two amounts of fees was that that alleged prejudice was not pleaded and in any event was not prejudice resulting from any breach of the Act on the part of the claimant. Rather it was a consequence of making an agreement with the claimant after making the Property Vision Agreement. 100. I accept the submission of Mr. Hutchings that there would in fact have been no prejudice in this case, for the reason he submitted. Had it been necessary to consider the provisions of Estate Agents Act 1979 s.18(6) in the context of whether it was appropriate to permit enforceability of a contract in this case, I should have held that there was no prejudice to Mr. and Mrs. Asfari and that the culpability of the claimant in relation to the failure to comply with the provisions of the Act did not justify dismissing the application. I should thus have permitted the contract, had the alleged contract been proved, to have been enforced in accordance with its terms as found by me. What work did Mr. Green do? 101. There was no dispute between the parties as to what Mr. Green did, save for the issue whether he introduced Mr. and Mrs. Asfari to the Property. I have found that Mrs. Asfari found the Property herself. The work which Mr. Green did thereafter was to make contact with Knight Frank LLP to arrange a viewing on 9 January 2006 and accompany Mrs. Asfari on that viewing, to obtain plans of the Property and deliver them to Mrs. Asfari, to arrange a viewing of the Property for Mr. and Mrs. Asfari on 14 January 2006 and to accompany them on that viewing, to arrange a viewing of the Property for Mr. and Mrs. Asfari on 31 May 2006 and to accompany them on that viewing, to provide information as to the views of Mr. Ritchie concerning the price for which the Property might be obtained, and to have some discussion with Mr. Asfari about costings for work for the Property. The actual negotiations for the acquisition of the Property and obtaining views of architects and landscape architects concerning various proposals for the Property were all undertaken by Property Vision, and principally by Mr. Mackie. 102. While Miss Holland, in her closing submissions, raised an issue as to whether the claimant had performed its retainer to the extent necessary to demonstrate an entitlement to a fee, that issue does not need to be addressed in the light of the findings which I have already set out. A second issue which she raised which again does not fall to be considered is to what sum the claimant was entitled under the contract for which it contended. 103. However, what does need to be considered is the alternative claim of the claimant in restitution for payment of a sum assessed upon a quantum meruit. 104. Mr. Hutchings, in his written opening skeleton argument, put his submissions in respect of this alternative case in this way:- “50. It is submitted that, even if the Court finds that there was no contract; C should be entitled to recover a fee upon a quantum meruit. (i.e. upon a restitutionary basis) … The extensive services carried out by C in relation to the Property must have been rendered in anticipation of a contract being entered into later. Further or alternatively, there has plainly been enrichment (or incontrovertible benefit) to Ds – not only in the direct sense – in that the Property would not have been introduced and advice etc would not have been given by C without the understanding that C would receive a fee, but, also, in the sense that Ds have clearly used the “obligation” that they had to pay C to secure a significant reduction (of £20k) in the fee that they would have otherwise have had to pay Property Vision. Plainly this was secured at the expense of C – in that C otherwise will have rendered its services, over several months, free of charge. 51. It is submitted that an appropriate quantum meruit sum would be the standard 1% fee. The court is not necessarily limited in the award it makes to the amount of the actual benefit accruing to Ds.” 105. In her written closing submissions Miss Holland made, amongst others, these points in relation to the quantum meruit claim:- “9.1.1 If there is no enforceable contract, then it is submitted that it would be wrong to award a ‘quantum meruit’. The quantum meruit claim merely amounts to an attempt to claim the alleged contractual amount by another route. Moreover, if there was no contract, then the parties were not proceeding on the basis of any expectation of payment for Mr. Green. It was instead the case that Mr. Green was being ‘helpful’ on the basis that he would receive something from the vendor’s agent or by being appointed on the sale of 60 Circus Road. 9.1.2 … 9.1.3 In any event, there is insufficient evidence before the Court upon which the Court could or should determine such a claim on this basis. 9.1.4 For the reasons set out above, the Claimant did not ‘introduce’ the Property and nor was he the effective cause of the purchase. It was Mr. Mackie who was responsible for conducting all the negotiations for the acquisition of the Property by the Asfaris. ” 106. In considering a claim to payment in restitution on a quantum meruit basis in this type of case, as it seems to me, it is of great significance whether the services in respect of which the claim is made were rendered in circumstances in which both parties recognised that compensation for the provision of the services would be made. Although restitution in general no longer rests on a foundation of an implied contract to pay, in the particular circumstances with which I am concerned, whether it was the expectation of the parties that payment would be made for services is, as it seems to me, a consideration of the first importance. In this case I have accepted the evidence of Mr. and Mrs. Asfari in preference to that of Mr. Green on all disputed points. It follows that I find that it was made plain to Mr. Green at all material times that Mr. and Mrs. Asfari were not accepting any liability to pay any sum to the claimant. Thus, with that knowledge, Mr. Green continued to do what I have found that he did. In those circumstances it would be wrong in principle, as it seems to me, to hold that any sum was due to the claimant on a quantum meruit basis. I do not need to speculate as to why Mr. Green might have been prepared to do what he did in relation to the Property in the face of a firm rejection on the part of Mr. and Mrs. Asfari of any liability to pay, but it may be that Mr. Mackie’s thoughts, that he might have thought the claimant could obtain a fee from Knight Frank LLP, or that it might have obtained a benefit in the form of sole agency instructions in relation to the sale of the property of Mr. and Mrs. Asfari at 60, Circus Road, were well-founded. It may be ironic that in fact a payment of £30,000 and a promise of sole agency instructions were within the grasp of the claimant until Mr. Green rejected the offer of such. 107. I recognise that there came a time, certainly by about 10 June 2006, when Mr. Asfari considered that it was appropriate that the claimant recover some remuneration from somewhere in relation to its involvement with the Property. However, the potential sources of remuneration which Mr. Asfari then identified were, first, Knight Frank LLP, and, second, and failing Knight Frank LLP, Property Vision. Only at the very final stage, in an attempt to achieve a settlement with Mr. Green which would bring matters to a conclusion, did he contemplate making any contribution himself. Mr. Asfari told me that his concerns about the claimant were based upon him wishing to behave honourably in a gentlemanly fashion, and not because he considered that he had any liability towards the claimant. As I have said, I accept that. 108. I also recognise that, as a step preparatory to what was hoped to be a settlement with the claimant, Mr. Asfari persuaded Property Vision to reduce its fee by £20,000. Thus Mr. and Mrs. Asfari have benefited from that reduction. However, the cause of that benefit was not anything which the claimant did – Mr. Green did not procure a benefit of £20,000 for Mr. and Mrs. Asfari. Rather, it was the negotiating skill of Mr. Asfari and the generosity of Property Vision and Mr. Mackie which produced that benefit. Mr. Asfari offered to pass that benefit, and more, to the claimant, but the claimant rejected the offer, preferring to stake all on the claim for a commission of 1% of the purchase price of the Property, plus Value Added Tax, which has failed. 109. If it had been appropriate to award an amount to the claimant on a quantum meruit basis, then the evidence upon which any assessment could have been made was almost wholly lacking. The evidence called on behalf of the claimant stuck fairly rigidly to seeking to justify, even on a quantum meruit basis, a commission of 1% of the purchase price of the Property, plus Value Added Tax. There was no real evidence of how much time Mr. Green spent in relation to his involvement with the Property. There was no evidence at all of an hourly rate at which Mr. Green in 2006 was accustomed to charge for his work. Apart from the provision of the plans of the Property and accompanying Mr. and Mrs. Asfari on viewings on three occasions, which may have had some value to them, the evidence of the worth of what Mr. Green did for Mr. and Mrs. Asfari was scant. Mr. Asfari’s evidence about the information which Mr. Green gave him which originated with Mr. Ritchie was that it rather confirmed the appropriateness of the level of the offer which Mr. Asfari had, by the date of the receipt of the information, made. Mr. Asfari may have been in error as to whether an offer had actually been made by that date, but it is plain from the offers in fact made that Mr. Mackie advised figures of the same general order of magnitude as those indicated by Mr. Ritchie and reported by Mr. Green to Mr. Asfari. Whatever views Mr. Green may have expressed to Mr. Asfari about the amount to be offered for the Property or the costings likely to be incurred in relation to various proposals, the fact of the matter was that it was Mr. Mackie who was advising on offers and organising the obtaining of advice from architects and landscape gardeners. Had it been necessary to assess an appropriate sum to be paid by way of compensation to the claimant, the only real indication of the worth of what Mr. Green did which was before me was the fact that Mr. Mackie considered that the appropriate sum to be paid to the claimant was £20,000. Thus I should have assessed the sum payable to the claimant on a quantum meruit basis at that figure. Conclusion 110. For the reasons which I have given, the claims of the claimant against the defendants fail and are dismissed.
