Contract – estoppel – media and entertainment Contracts: oral agreements: drafts: offer: acceptance: shared assumptions: acts of reliance: handshake
The claimant failed to prove the existence of any agreement by the defendant to use a property for the purposes of making a television programme or any estoppel preventing the defendant from resiling from the alleged agreement. McNicholas Construction (Holdings) Limited v Endemol UK plc (2003) Ch.D (Anthony Mann QC) 13/10/2003 Claim for payment of sums by the defendant under an alleged agreement to occupy a property owned by the claimant for 14 weeks to make a television programme. The claimant’s representative (‘C’) alleged that he had shaken hands on an oral agreement with the defendant’s representative (‘J’) after a meeting in July 2002. The claimant’s case was that from that moment a written agreement was no longer necessary, although the claimant remained willing to finalise such an agreement. Alternatively, the claimant argued that the parties were bound by the terms of a draft agreement that was signed for the claimant by C in August 2002 and returned to the defendant. If there was no binding agreement the claimant relied on an estoppel. The defendant, who had found another property to use, argued that the negotiations simply had not resulted in a binding agreement. HELD: (1) there was no binding oral agreement in July 2002. There was a handshake, but it was not done to seal a bargain. It was inherently unlikely that the defendant would have made a binding agreement on that date. The alleged agreement was not supported by what happened afterwards. There was no confirmation of such an agreement in writing and the parties actually acted inconsistently with such an agreement. Various important matters were not agreed at all at that date. (2) The draft contract sent by the defendant to C in August was not an offer capable of acceptance. It was described as a draft and invited further comments for consideration. Any offer was to be put forward in a letter already signed on behalf of the defendant. The draft was not complete. C returned the document with alterations. Where the parties had been debating wording, the defendant could not be taken to be content with alternative wording unless it said so. The alterations were material and prevented there being any acceptance. (3) There was no estoppel. There was no shared assumption and nothing was done by the claimant to make it unfair for the defendant to resile. There was merely the normal pre-contract state of affairs and a party, relying on a hope that terms would be agreed, had no redress when a contract was not entered into, unless there was some misrepresentation, which there was not.