April 20, 2015
IN THE COUNTY COURT AT SOUTHAMPTON CLAIM NO xxxxx
PENYARDS COUNTRY PROPERTIES LIMITED
(1) MR xxxxxx xxxxxx
(2) MRS xxxxxx xxxxxx
WITNESS STATEMENT OF xxxxxx xxxxxx
I, xxxxxx JAMES xxxxxx will say as follows:
1 I am the First Defendant in this matter and make this statement in support of our application to set aside the Default Judgment dated 28 August 2014. Unless otherwise stated, the facts contained in this statement are within my own knowledge. Where this is not the case, I have stated the reason for my knowledge and belief.
2 There is now shown to me, marked Exhibit PJT1, a bundle of documents to which I shall refer. Numbers appearing in square brackets are references to page numbers in the exhibit.
3 My wife and I instructed the Claimant to sell our property, xxxxxxxxxxxxx (“the Property”) by an agreement dated 19 February 2012. We agreed that we would pay the Claimant a fee calculated at 1.5% of the selling price of the Property.
4 On or before 14 August 2012, Penyards received an offer from a Mr Parker for the sum of £1.6 million. On 14 August, the Claimant’s Lisa Evans sent an email to my wife in relation to the offer from Mr Parker and stated “I have confirmed the deal” to Mr Parker’s partner by telephone .
5 The following day, the Claimant prepared a Memorandum of Proposed Sale  which confirmed a sale of the Property to Mr Parker for the sum of £1.6 million. The Memorandum was sent by email to my wife on 16 August .
6 However, by an email dated 22 August from Ms Evans to my wife , the Claimant advised that the sale had fallen through as Mr Parker had lost his own sale, on which he was dependant.
7 On 20 March 2013, my wife emailed Ms Evans  and requested that the Claimant withdraw the Property from the market immediately. The email further stated that it should be taken as written notice that we were cancelling our contract with the Claimant. About a month and a half later, we instructed new selling agents, Spencers, to market the Property on our behalf. This involved a new marketing campaign with the Property being offered for sale at £1.6 million.
8 On 2 July 2013, Ms Evans emailed my wife and I  to say that Mr Parker was now “potentially proceedable and remain[ed] interested”. Ms Evans was unsure if we were still selling the Property and she therefore said “Do let me know the situation and if you are it may be that we can resurrect something”. On 5 July, Ms Evans sent a further email to both me and my wife  in which she said that Mr Parker’s partner would like to arrange a further visit to the Property as they were once again in a proceedable position. The email went on to say that “whilst they would still be interested in pursuing xxxxxxx it would only be at significantly less than the offer that had been accepted last time. They or indeed I don’t therefore want to waste your time if your expectation on a sale figure is still at a similar level to last time”. The email concluded with the following: “I will look forward to hearing from you before I go any further with them”.
9 On 9 July, Ms Evans emailed us both again  and said that she was “continuing to keep talking” to Mr Parker’s partner, and that Mr Parker and his partner would be viewing “a number of properties throughout the course of tomorrow”. Ms Evans said that she felt Mr Parker remained interested in the Property. Crucially, she then went on to say “I remain hopeful there may still be a deal to be done albeit at the right price… my concern is we might not even get the opportunity to discuss this with them as they may commit to something else and we lose any opportunity”. It was therefore clear to me from Ms Evans’ email that there was no deal at that stage with Mr Parker and there was every possibility that he would purchase elsewhere.
10 On the same day, my wife replied by email to Ms Evans  to ask that all contact should be through our new agents, Spencers. Ms Evans’ response was that she had called Spencers but was confused as to why we wanted her to deal with them. The email contained a vague reference to the Claimant seeking payment of their fee, even though we had ended their contract some four months earlier.
11 I subsequently responded to the email, from my wife’s email account, the following day  in which I made it clear that the Claimant was not to communicate either with us or the Parkers further.
12 Ms Evans responded that day with a further email to us both . She acknowledged that the Claimant was no longer instructed and went on to say “we have an extremely limited opportunity to try and negotiate something with a previously interested buyer who is now proceedable”. Once again, it was quite clear that no deal had been done with Mr Parker. As Ms Evans was not instructed by us, I have no idea on what basis she thought she had any authority to continue to discuss matters with Mr Parker and his partner, or indeed to contact us about the matter.
13 Subsequently, Mr Parker contacted Spencers and re-viewed the Property with them on 10th July. Initially, he made an offer to Spencers of £1.3 million. However, Spencers were able to negotiate the price with him and we eventually agreed a sale at £1.45 million and Mr Parker completed his purchase on 25 November 2013. However, the course of the negotiations did not go smoothly, I understand from Spencers, as there were several occasions when it appeared that Mr Parker would walk away from the Property. In my opinion, it was only thanks to the hard work of Rob Batten at Spencers that a deal was agreed and the sale completed. At all times, we left the Property on the market as we were concerned that the sale would not go through. As far as we are concerned, the terms eventually agreed with Mr Parker for the sale to him of the Property were substantially different from the terms proposed over fifteen months previously.
14 On 4 June 2014, my wife and I were handed a bundle of papers relating to these court proceedings. I was somewhat surprised to receive the papers. Whilst there had been some further email correspondence between me and Mr Evans of the Claimant in August 2013, and we also received letters from the Claimant’s solicitors dated 6 August 2013 [12-15], 4 September [16-18] and 24 September [19-20], we had not heard anything for nearly one year.
15 On behalf of my wife and I, I acknowledged the proceedings by sending an email on 6 June, within the 26 days set out in the Court Order dated 8 April 2014. I filed what I believed to be our Defence on 14 July, again by email, and received an automated email of acknowledgement from the court [21-22].
16 On or around 29 July, I received an email from the court requiring us to make some amendments to our Defence. Whilst I cannot find the email, I recall that it required us to add a statement of truth and to sign the document. On 1 September I sent a further email to the Court with an amended Defence [23-43], and also sent a copy by post. I received an automated response from the Court acknowledging receipt of my email and I therefor believed that the Defence had been filed.
17 I heard nothing further from the Court or the Claimant’s solicitors and assumed that the matter had been dealt with. I accept now that my assumption was naïve, but as a lay person, I thought at the time that the matter had been dealt with. It was only over the Christmas period when my wife and I went to visit friends who used to be neighbours that we were made aware that correspondence had been sent to our old address. Our former landlord handed us some post which included a copy of the Judgment that had been made against us. My wife and I realised that we would need to instruct UK lawyers to deal with the matter on our behalf. However, due to the Christmas and New Year break, we were unable to contact anyone until the start of the year.
Merits of Defence
18 I believe that my wife and I have a good defence to the Claim because the Claimant did not introduce the buyer to the purchase. I understand that there are a number of cases dealing with estate agents’ claims for commission which have already been decided by the Court and, in particular, in the case of Foxtons Limited v Pelkey Bicknell, Lord Neuberger held that the buyer had to be introduced to the purchase and not just to the property.
19 The Claim is for a substantial amount of money and justice will not be served if we are denied the opportunity to defend the Claim. We are just seeking a fair hearing so that the issues we have raised can be fully considered.
20 I note from the papers that I have now seen that the Claimant’s solicitors sent a copy of the Judgment to me by email to xxxxxx@xxxxxx. I rarely use this email address due to problems with an overwhelming number of spam emails being sent to the address, which then led to most emails automatically going to the spam file. We have been having issues with this address for over a year. The main issue is that mails sent to it are undeliverable due to the extremely high spam filters that have had to be applied. Having looked at the server log files, by way of example, I can see that an ‘undeliverable notification’ was sent to Dutton Gregory in reply to an attempt to contact us on 24th September 2013. Therefore I was not aware of the Judgment as the email sent by Dutton Gregory had not come to my attention. As soon as my wife and I were aware of the on-going proceedings over the Christmas period, we made contact with lawyers in the UK. Unfortunately, the first firm that we contacted were unable to act for us, but recommended another firm to us. We were unable to instruct UK lawyers until the New Year and I therefore believe that we have acted as quickly as we can in the circumstances once the matter came to our attention.
21 My wife and I ask the court to set aside the Judgment obtained in default, and also the Certificate issued by District Judge Lindsay Powell. We had no knowledge of the Judgment or the continuation or the Court proceedings until the Christmas break. Furthermore, for the reasons set out above I believe that the Claimant is not entitled to its fee and that we therefore have a real prospect of successfully defending the Claim.
Statement of Truth
I believe that the facts stated in this witness statement are true.