Barton & Ors v Morris & Anor

Appellant (Morris & Another)

Andrew Twigger KC

Robert Sterling

(Instructed by Phillips Law (Basingstoke))

Respondent (Philip Barton)

Brad Pomfret

Arnold Ayoo

(Instructed by Athena Solicitors LLP (Manchester))

Respondents

(1) Philip Barton

[(2) Julie Ann Swan]

[(3) Mark Richard Phillips]

[(4) Foxpace Ltd]

LADY ROSE (with whom Lord Briggs and Lord Stephens agree):

1. A claimant who has performed a service for the defendant and wants now to be paid something for those efforts has to establish a legal entitlement to the money claimed. There are, broadly, two ways in which such an entitlement can be established. The first is where the parties are in a contractual relationship and the terms of their binding agreement define if and when the defendant will be bound to pay for the service. If there is no contract between them, the claimant may base a claim on the assertion that if the defendant does not pay, then the defendant will have been unjustly enriched at the claimant’s expense. It is the intersection of those two kinds of legal entitlement - and the scope of any overlap between them — that generates the issue that arises in this appeal.
2. The First Respondent, Mr Barton, performed a service for the Fourth Respondent, Foxpace Limited, by introducing to Foxpace a buyer who ultimately bought a property that Foxpace owned and was keen to sell. The buyer, Western UK (Acton) Limited (“Western”), paid Foxpace £6 million for that property. The judge at first instance, HHJ Pearce sitting as a High Court Judge, held that Mr Barton was not entitled to any payment: [2018] EWHC 2426 (Ch). There was no written agreement on which Mr Barton or Foxpace could rely, but the judge found that they had arrived at a binding oral agreement. According to that agreement, Mr Barton would be paid £1.2 million for making the introduction if Western bought the property for £6.5 million. Since the contract made no provision as to what would happen if the property was sold to Western for anything less than £6.5 million, there was no contractual obligation on Foxpace to pay anything to Mr Barton. As regards Mr Barton’s alternative claim in unjust enrichment, the judge relied on the principle he said emerged from the decision in MacDonald Dickens & Macklin v Costello [2012] QB 244. He held that that principle applied to preclude any claim for unjust enrichment because such a claim would undermine the contractual terms agreed between the parties.
3. The Court of Appeal allowed Mr Barton’s appeal: [2019] EWCA Civ 1999, [2020] 2 All ER (Comm) 652. The main judgment was given by Asplin LJ. Males LJ and Davis LJ agreed with her reasoning and gave short concurring judgments. They held that the silence of the contract as to what would happen if the sale to Western was for less than £6.5 million meant that the contract did not rule out a claim in unjust enrichment. They held, further, that Foxpace would be unjustly enriched if it…