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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Donington Park Leisure Ltd v Wheatcroft & Son Ltd  EWHC 904 (Ch) (07 April 2006)
Cite as:  EWHC 904 (Ch)
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Strand, London, WC2A 2LL
B e f o r e :
Sitting as a deputy High Court Judge of the Chancery Division
|DONINGTON PARK LEISURE
|- and -
|WHEATCROFT & SON
Keith Rowley QC and Katherine McQuail (instructed by Browne Jacobson LLP) for the Defendant
Hearing dates: 28th, 29th, 30th and 31st March 2006 and 7th April 2006
Crown Copyright ©
1. WSL accepts and acknowledges that:
a. the Agreement was final, binding and concluded;
b. WSL is bound by all the terms of the Agreement applicable to it;
c. The terms of the Agreement are set out in paragraphs 28-34 (inclusive) of the particulars of claim; and
d. By virtue of the Agreement the previous proceedings ("the 2003 proceedings") have been compromised on the basis set out in paragraph 28 of the particulars of claim.
2. WSL agrees to perform all its obligations under the Agreement and to reinstruct its solicitors to complete the documentation required to record and give effect to the Agreement.
5. Both parties agree to accept the above provisions in full and final satisfaction of all of the Claimant's claims in the present proceedings.
6. Both parties agree to prepare and execute all documentation necessary to give effect to the Agreement by 31st May 2005.
"WSL would guarantee DPL car parking on the site known as "the Sunday Market Site" (which site is shown tinted blue on the plan at annex 5 to this statement of case) for 3 days in each year for the premier motorsports event held at Donington Park each year at a fee of £30,000 per annum (subject to the same terms and conditions as the existing rent paid under the Lease), this arrangement running from 2004 and thereafter for each year of the term of the Lease. However, this arrangement was subject to the proviso that if DPE or WSL should require the SMS for further development at some future time, then DPL would agree to exchange it for suitable and similar land at a suitably appropriate location at no cost to it (except that DPL would retain an ongoing liability for payment of the annual fee in respect of such alternative site)"
(i) Permitted use whether the expression 'car parking' includes a number of additional or ancillary rights. DPL contends for rights of access and egress for emergency and service vehicles, and for sewerage tankers; to place temporary traffic direction signs, crowd control barriers, traffic management stewards and security personnel, bollards, mobile overhead lighting, mobile lavatories, ticket sales points and mobile observation towers on the SMS.
(ii) Access DPL contends for unrestricted rights of vehicular access and egress by means of all of the gates fit for vehicular access (gates 1, 6 and 7) and likewise for rights of pedestrian access and egress by means of all of the other gates (gates 2 to 5). WSL contends that in law DPL is entitled by virtue of necessity to one means of access only, which may be by means of either of gates 6 and 7, unless it is established by evidence that these gates must, of necessity, be incorporated in a one-way traffic management system. However, this is not in fact its position, which is that it stands by an agreement, concluded in correspondence between WSL's solicitors and DPL's solicitors shortly before the making of the Tomlin Order, that both gates may be used for vehicular access.
(iii) The event and the permitted days whether there should be a cut-off date by which DPL must give notice of (a) the event in the particular year in question and (b) the permitted days in that year required by DPL in conjunction with the event.
(iv) Assignment whether the benefit of the licence is assignable with or without restriction, and whether WSL should be barred from dealing with the SMS during the term of the Agreement, or required to enter a restriction against its registered title.
(v) Alternative site WSL and DPL contend variously for the imposition by the court of a comprehensive mechanism to provide against all foreseeable contingencies and disputes which could stem from their mutual obligations in this connection. These include, on DPL's part, insistence on 12 months' prior notice of WSL's intention, together with provision for dispute resolution by arbitration and suspension of the notice period in the meantime. WSL contends for a shorter period of notice and resists dispute resolution by arbitration and suspension of the notice period in the meantime.
(vi) Licensor's obligations DPL contends for the imposition of a number of onerous obligations on WSL.
(vii) Termination WSL contends for the right to forfeit. DPL resists this but insists that if a forfeiture clause is to be implied then a corresponding right to relief from forfeiture must be implied.
(viii) Exclusivity DPL contends the licence is to be exclusive, of others apparently, not, as I understand the position, so as to confer exclusive possession.
"When it implies a term in a contract the court is sometimes laying down a general rule that in all contracts of a certain type sale of goods, master and servant, landlord and tenant and so on some provision is to be implied unless the parties have expressly excluded it. In deciding whether or not to lay down such a prima facie rule the court will naturally ask itself whether in the general run of such cases the term in question would be one which it would be reasonable to insert. sometimes, however, there is no question of laying down any prima facie rule applicable to all cases of a defined type but what the court is being in effect asked to do is to rectify a particular often a very detailed contract by inserting in it a term which the parties have not expressed. Here it is not enough for the court to say that the suggested term is a reasonable one the presence of which would make the contract a better or fairer one; it must be able to say that the insertion of the term is necessary to give as it is put "business efficacy" to the contract and that if its absence had been pointed out at the time both parties assuming them to have been reasonable men would have agreed without hesitation to its insertion."
For any term falling within the second category to be implied:
(i) it must be reasonable and equitable;
(ii) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it;
(iii) it must be so obvious that it goes without saying;
(iv) it must be capabpe of clear expression;
(v) it must not contradict any express term.
The courts' usual role in contractual interpretation is, by resolving ambiguities or reconciling apparent inconsistencies, to attribute the true meaning to the language in which the parties themselves have expressed their contract. The implication of contract terms involves a different and altogether more ambitious undertaking: the interpolation of terms to deal with matters for which, ex hypothesi, the parties themselves have made no provision. It is because the implication of terms is so potentially intrusive that the law imposes strict constraints on the exercise of this extraordinary power
The question of whether a term should be implied, and if so what, almost inevitably arises after a crisis has been reached in the performance of the contract. So the court comes to the task of implication with the benefit of hindsight, and it is tempting for the court then to fashion a term which will reflect the merits of the situation as they then appear. Tempting, but wrong
And it is not enough to show that had the parties foreseen the eventuality which in fact occurred they would have wished to make provision for it, unless it can also be shown either that there was only one contractual solution or that one of several possible solutions would without doubt have been preferred: Trollope & Colls Limited v North West Metropolitan Regional Hospital Board  2 All ER 260,  1 WLR 601 at 609-10, 613-14.
"An unexpressed term can be implied if and only if the court finds that the parties must have intended that term to form part of their contract; it is not enough for the court to find that such a term would have been adopted by the parties as reasonable men if it had been suggested to them: it must have been a term that went without saying, a term necessary to give business efficacy to the contract, a term which though tacit, formed part of the contract which the parties made for themselves."
The event and the permitted days