Peart Stevenson Associates Ltd v Holland, Court of Appeal - Queen's Bench Division, July 30, 2008, [2008] EWHC 1868 (QB)
Linked as:
Extract
Peart Stevenson Associates Ltd v Holland, Court of Appeal - Queen's Bench Division, July 30, 2008, [2008] EWHC 1868 (QB)
Neutral Citation Number: [2008] EWHC 1868 (QB)
Case No: HQ07X03235 IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONRoyal Courts of JusticeStrand, London, WC2A 2LLDate: 30/07/2008Before :HIS HONOUR JUDGE RICHARD SEYMOUR Q.C.(Sitting as a Judge of the High Court)- - - - - - - - - - - - - - - - - - - - -Between :- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -David Wicks (instructed by Leathes Prior) for the ClaimantMichelle Stevens-Hoare (instructed by Owen White) for the Defendant Hearing dates: 9, 10, 11, 14 July 2008- - - - - - - - - - - - - - - - - - - - -JudgmentHIS HONOUR JUDGE RICHARD SEYMOUR Q.C.: Introduction1. The claimant, Peart Stevenson Associates Ltd. (``the Franchisor'') carries on business, amongst other things, as a provider of inspection services in relation to gas and electrical appliances, and a repairer of such appliances, in the area of Potters Bar, Hertfordshire and North London. In this judgment I shall refer to that business as ``the Home Business''. The Home Business is, and was at all times material to this action, carried on under the style or title ``The Power Service''. I shall call that name in this judgment ``the Trade Name''. It was the case for the Franchisor that it had developed a distinctive system (``the Method'') of operating the Home Business under the Trade Name. 2. The Franchisor also carries on business as a grantor of franchises to others to carry on business under the Trade Name in accordance with the Method.3. By an agreement (``the Agreement'') in writing in a standard form utilised by the Franchisor, dated 27 October 2005, the Franchisor granted a franchise to ``Holland & Co'' to carry on a business similar to the Home Business under the Trade Name in accordance with the Method in parts of Staffordshire designated by particular post-codes (``the Territory''). ``Holland & Co'' was in fact a trading style of the defendant, Mr. Brian Holland.4. By a letter dated 16 June 2006 the Franchisor terminated the Agreement in accordance with the provisions of clause 13.1(a), (c), (k) and (l) thereof. It was not contended in this action that the Franchisor had not been entitled to terminate the Agreement by the letter of 16 June 2006, although it was disputed that some of the matters relied upon as justifying such termination were correct. 5. By the time it came to trial the Franchisor claimed in this action a sum which was alleged to be due to it from Mr. Holland in respect of fees which had become payable prior to the termination of the Agreement, damages for the breaches of the Agreement which led to it being terminated, and damages for alleged breaches of clause 15.1 of the Agreement. In the course of the trial it was agreed that the sum which was due to the Franchisor, subject to the counterclaim of Mr. Holland, in respect of fees which had become payable prior to the termination of the Agreement was £875.6. Mr. Holland contested the allegation that he was liable to pay damages for the breaches of the Agreement which led to it being terminated. However, he also sought to set off against any damage which might be proved so much as was necessary of the sums found to be due to him in respect of his counterclaim. That counterclaim was for damages for misrepresentation.7. It was the case for Mr. Holland that the provisions of clause 15.1 of the Agreement were not enforceable against him because they were, on proper construction, in unreasonable restraint of trade. It was also contended on his behalf that in any event his breaches of that provision were minor and that it had not been proved that the Franchisor had suffered damage as a result of the breaches which he admitted. Again, Mr. Holland sought to set off against any sum which was found to be due to the Franchisor as damages for any breach of the provisions of clause 15.1 so much as was necessary of the amount found to be due to him in respect of his counterclaim.8. In terms of the time occupied at the trial the most significant issues were those which arose in respect of the counterclaim of Mr. Holland. However, before turning to those issues it is convenient to notice the material provisions of the Agreement and to consider the issues which arose in relation to the outstanding claims of the Franchisor.The terms of the Agreement9. By clause 3.1 of the Agreement it was provided that:- ``This Agreement shall commence on the Commencement Date [5 December 2005] and shall continue in force thereafter unless and until determined in accordance with its terms for an initial period of five (5) years ending on the Expiry Date and subject to the Franchisee's right of renewal contained in the next following sub-clause.''10. The expression ``the Expiry Date'' was defined in clause 1 of the Agreement as ``the date specified in Schedule 1''. ``The Expiry Date'' specified in Schedule 1 to the Agreement was in fact ``5th December 2011''. Given the terms o...See the full content of this document
Sponsored links
