Agents’ Mutual chief executive Ian Springett ran “crash, bang, wallop” into suing Gascoigne Halman as he knew the agent would be able to afford the court case, the Competition Tribunal Appeal heard yesterday (Wednesday).
The tribunal, which the day before was told that costs of the case are likely to be £6m, is examining competition issues around the ‘one other portal’ (OOP) rule on the Agents’ Mutual-owned portal OnTheMarket.
It was yesterday alleged that Mr Springett did not disclose other instances of members multi-listing on more than two portals in breach of the OOP policy.
Mr Springett wanted to protect the “major sum of money” he will receive if the five-year contracts with the agencies were successful, it was alleged.
Just a few days after Gascoigne Halman allegedly breached their contract with AM, Mr Springett applied for an urgent interim injunction, the Competition Appeal Tribunal heard.
But, it was claimed, he has never told the court that founding member Savills and Strutt & Parker had also breached their contracts.
Both of those agencies were in breach of the OOP as recently as two weeks ago, Paul Harris QC, representing Gascoigne Halman, said.
Mr Harris said Mr Springett had “exaggerated evidence to the court”.
Mr Harris accused him, saying: “You have given incomplete and misleading evidence when it suits your purpose.
“Following the alleged breach of contract by Gascoigne Halman, just a few days later, you issued for an urgent interim injunction.”
Mr Harris said that in it, Mr Springett stated that their actions would have a “speedy and catastrophic effect” on AM.
His application said that his company faced “risks that are very clear and very serious”.
But, Mr Harris asked Mr Springett: “You did not give the court the critical information, did you, [and] what you told them was not a full picture.”
He said that “at no point” did Mr Springett mention that he could have just hidden Gascoigne Halman’s listings from the website.
Mr Harris said this often-taken process by AM only came to light after it was brought to their attention by the press.
Mr Springett did not disclose that AM had hidden “a number of other” agents’ properties when they had faced similar breaches, it was alleged.
However Mr Springett said that none of the previous breaches were as large as Gascoigne Halman and that is why he pursued the litigation.
From the witness stand he claimed that Manchester-based Gascoigne Halman, who have 18 offices across South Cheshire “was the biggest breach of contract at that time”.
He said AM had taken action against them due to their “high public profile”.
Mr Harris called it false evidence.
He told the hearing that Strutt & Parker, who have 60 offices, and Savills who have more than 100, were much larger, more high profile and founder members of OTM.
Mr Harris said they had breached their contracts by listing properties on FT.com at the same time as OTM and Rightmove, “right in the thick of the injunction battle with Gascoigne Halman”.
Christie’s International Real Estate also listed properties on FT.com as well as Rightmove and OTM, breaching the OOP rule, the hearing was told.
Mr Harris claimed this had no effect on AM, let alone causing the company to enter a “death spiral”.
Mr Harris put it to Mr Springett: “You did not tell the court and did not tell Gascoigne Halman about the breach of the OOP. You were meant to give full and frank disclosure.”
Mr Springett said that FT.com did not pose such a threat as Zoopla or Rightmove so breaches of contract with that website were not treated as important in comparison.
He said the issues with Strutt & Parker and Savills had already been resolved before any litigation had to be taken.
Mr Harris then produced print-outs from web pages that showed multi-listed properties, one in Ascot, from both the agencies on FT.com, Rightmove and OTM, from just two weeks ago.
He produced another print-out of a Croft Residential property in Ripon and said: “That is another breach isn’t it?”, alleging that Mr Springett did not disclose any of those other breaches to the court.
“What you really wanted with the injunction was somebody likely to go through the court case and get a determination,” Mr Harris continued.
“That was the reason for taking on Gascoigne Halman in the litigation, [as] you knew they had been bought by Connells.
“You knew Connells had wanted to speak to you about Gascoigne Halman.
“You knew precisely well that having been bought by Connells they would be able to get through the court case and get the determination.
“It was the one reason you pushed at it.”
Mr Springett told the hearing that Gascoigne Halman had wanted to pursue the case. It had not wanted to talk about it and resolve it, unlike the others.
Mr Harris said that Gascoigne Halman had brought up the “mandatory mediation provision” set out in the contract at the first opportunity.
However, Mr Springett claimed that they never instigated it.
“Because you ran straight on into court in a matter of days once you knew about the breach when you went crash, bang, wallop into this litigation,” said Mr Harris.
“You did not take any steps for mediation.
“You sued without taking notice of the mandatory mediation provision.”
Mr Harris said that if the allegations put forward by Gascoigne Halman were proved, then the “contracts will be void and it will the end of the business” for Agents’ Mutual.
There is a great need for OOP to make Mr Springett’s ‘brainchild’ succeed, he said, addressing Mr Springett.
“You stand to make a lot of money if the venture succeeds.
“At the end of the five years, if the venture had been successful, you would get a major sum of money.”
Mr Springett agreed he would get a sum of the “accumulative profit”; whether or not it was ‘significant’ would depend on how successful the business was.
Mr Harris said: “If Gascoigne Halman succeed in what it sets out to in this competition defence, you will miss out on a significant amount.”
The hearing continues.
An account of earlier proceedings yesterday are in the report immediately below this one.