Successful appeal to the Supreme Court from the Court of Appeal on the issue of whether Mr Devani, an estate agent, and Mr Wells, a vendor, had reached a complete and enforceable agreement despite there being no express identification of the event which would trigger the obligation to pay the commission. The second issue, raised by Mr Wells, on his cross appeal, was whether, by reason of Mr Devani’s failure to comply with the requirements imposed by section 18 of the Estate Agents Act 1979, the trial judge ought to have dismissed the claim or discharged Mr Wells’ liability to pay the commission.
In unanimously allowing Mr Devani’s appeal and dismissing Mr Wells’ cross-appeal, the Supreme Court decided that, when assessed objectively, the parties had, by word and conduct, entered into an agreement the natural meaning of which was that Mr Wells agreed to pay Mr Devani a commission of 2% plus VAT on the sale price if Mr Devani found a purchaser for the flats which Mr Wells was wanting to sell. Mr Devani found a purchaser who completed the purchase and thus earned his commission. On the second issue, the trial judge had correctly approached the question of whether to permit Mr Devani to enforce the agreement and, notwithstanding some criticisms by the Court of Appeal as to the weight attached to various factors, the Court of Appeal had been correct not to interfere with the evaluative judgment of the trial judge to permit enforcement subject to a deduction to reflect the degree of prejudice suffered by Mr Wells.
David Giles was counsel in the Court of Appeal. Mr Devani engaged David as sole counsel to apply to the Supreme Court for permission to appeal and a continued stay on the Court of Appeal’s Order. David identified the points of law of general public importance, prepared the Notice of Appeal and drafted Grounds of Appeal. David advised Mr Devani on and oversaw his compliance with the Supreme Court’s rules. David was instructed to contest Mr Wells’ Notice of Objection and application for security for costs. On 6 November 2017, the Supreme Court granted Mr Devani unconditional permission to appeal.
Andrew Warnock QC was retained as leading counsel in early 2018. David worked with Andrew to prepare the Statement of Facts and Issues, the Chronology and the Appellant’s Case. David supervised the preparation of the bundles for the Supreme Court including the Appendix and electronic bundle. Andrew Warnock QC appeared as leading counsel at the hearing of the appeal with David as first junior and Laura Giachardi second junior.
Related barristers: David Giles