Lumley v (1) Foster & Co Group Ltd & Ors

[2022] EWHC 54 (TCC)

The only issue before Deputy Judge Coppel QC was: which of the six potential defendants were parties to the contract formed with Mrs Lumley on or around June 2016?  It was common ground that the contract was concluded at a meeting at the property on 21 June 2016 which was attended by Mr Foster and Mrs Lumley. The parties accepted that the scope of the works was agreed in broad terms at that meeting as well as a contract price (£100,000). Mr Foster’s normal business practice was to provide his clients with a formal written contract but that did not occur in this case.

To answer the question as to who were the parties to the contract, the Judge took, as a starting point, the objective test set out in the case of Hamid v Francis Bradshaw Partnership [2013] EWCA Civ 470:

“The question is what a reasonable person, furnished with the relevant information, would conclude. The private thoughts of the protagonists concerning who was contracting with whom are irrelevant and inadmissible.”

Having ascertained the relevant facts surrounding the meeting on 21 June 2016, what would a reasonable person conclude from those facts as to the identity of the parties to the contract?

A key to this was the witness evidence. Ultimately, the Judge found Mrs Lumley to be: “an honest but frustrating witness … open and persuasive, and clear in her recollections.” It was significant that there was no documentary evidence which contradicted any part of her testimony. In contrast, there was documentary evidence which contradicted the competing account of Mr Foster, which was “internally inconsistent and inconsistent with contemporaneous documentation.”

One important issue was the existence (or not) of a written quotation. Mr Foster said it had been hand-delivered; Mrs Lumley said the first time she had seen it was as part of the disclosure process. The Judge noted that there was no evidence that Mr Foster or anyone else requested that Mrs Lumley return a signed copy of the quotation or reminded her to do so at any stage, including when he visited the property again on 30 June 2016. There was no reference to the quotation in any of the communications between the parties. The Judge also considered the metadata on drawings, which suggested that at least one, which was referenced in the quotation, had not been prepared until after the quotation had been allegedly delivered. 

The importance of this issue was that it also coloured the Judge’s assessment of the evidence on issues other than the quotation. 

The precise terms of the contract were not for this court, but the Judge here found that Mr Foster offered, and Mrs Lumley accepted his offer, to undertake her project for £100,000 including VAT. At that point in time, the Judge found that the objective evidence did not support the proposition that Mr Foster held himself out as contracting on behalf of a company. On the contrary, he was concerned to give every impression that Mrs Lumley was reaching agreement with him, that she could trust him and that he would be personally responsible for the project. It may have been that, if Mr Foster had taken reasonable steps to document and formalise the contract, it would have been made clear that the contract was with FCCL or some other corporate entity. But that was not done.

Back to the previous page

Click to download PDF