Agents’ Mutual and Gascoigne Halman have locked horns in court yet again, this morning arguing over whether the original high court contract dispute case can continue while permission is sought to appeal the Competition Appeals Tribunal (CAT) judgement.
The hearing was told that the case was of critical interest, with Property Industry Eye being cited.
The CAT ruled last week that Agents’ Mutual’s one other portal rule for the OntheMarket (OTM) portal was not anti-competitive and was set to decide on costs and progress of the wider high court case – looking at whether Gascoigne Halman was in breach of contract with OTM – during a case management hearing today.
When Gascoigne Halman signed up to Agents’ Mutual in January 2014, it was an independent, and listed on OTM and Rightmove. Following its acquisition by Connells in 2015 it also signed up to Zoopla, prompting a claim of breach of contract by Agents’ Mutual due to the one other portal rule last year and later referral to the CAT.
Today’s hearing started with the honourable Mr Justice Marcus Smith questioning as to whether Gascoigne Halman should be able to appeal the hearing now or “in tandem” with the high court judgement.
He said: “(The competition tribunal) ruling determines certain issues but isn’t actually determinative of any part of the dispute within the parties.
“It seems sensible any appeal of the tribunal’s decision ought to be in tandem with any judgement in the chancery position.
“I would be mindful to extend time to appeal the tribunal decision until the expiry of date of appealing the chancery division decision.”
Responding, QC Paul Harris said this wasn’t consistent with the agreement when the issue was transferred to the CAT as it was agreed that the initial case would be stayed while competition issues were determined.
The hearing was adjourned for 15 minutes, and he came back to say they will still be seeking permission to appeal within the normal time, adding that the stay should remain while the competition issue is resolved.
Alan Maclean, for Agents’ Mutual, described this as absurd, before both parties began arguments as to whether the stay should be lifted.
He said: “Why should my client, having already established the breach of contract, why should their claim have to wait while the party has lost when there is only a small chance the appeal would be successful in such a way as to mean the chancery division part not take place?
“It is not in the interest of justice to delay that part of the case.”
Responding, Mr Harris said: “There was a substantial logic to the stay order. The logic was that were the competition issues to proceed, there would be no need for the contract issues as the contract would be void.
“That logic remains in place as we stand here today. It may be in weeks and months that it dissipates if I am denied permission to appeal wherever I seek it. But not today as the logic remains the same.”
He said both parties agreed to the stay and a consent order, so their logic was you need complete determination of competition issues first.
Mr Maclean said: “The consent order doesn’t say what Mr Harris says. It is just saying the finding of facts has been split in two.
“Your honour will know by reading publications such as Property Industry EYE that these proceedings are of critical interest.
“It is important the issues get resolved – only part of that has happened.”
“It is unfair for my client that the rest of the issue isn’t satisfied.
“It is of importance to the industry generally. A claimant is entitled to the case being determined in reasonable time. The appeal doesn’t directly impact on the Chancery division.”
The hearing continues.