Barton v Morris [2023] UKSC 3

Andrew Twigger KC represented the successful appellant in the Supreme Court. The lead judgment by Lady Rose contains important clarifications to the law concerning implied terms and the circumstances in which the terms of a contract between the parties bar an unjust enrichment remedy.

Mr Barton agreed orally with Foxpace Ltd that he would introduce a purchaser for a property which Foxpace wished to sell. The agreement was that Mr Barton would be paid £1.2 million if the property sold for £6.5 million to the party he introduced. Although the party introduced by Mr Barton initially offered £6.5 million, for reasons unforeseen at the time of the agreement that party eventually bought for only £6 million.

The judge at first instance held that Mr Barton was not entitled to any payment. The Court of Appeal allowed Mr Barton’s appeal. The essence of the reasoning was that, since the agreement was silent as to what was to happen if the sale was for less than £6.5 million, the parties had not allocated the risk of that outcome and, therefore, Mr Barton was entitled to a remedy in unjust enrichment. There was also a suggestion that a term might have been implied with a similar effect.

The Supreme Court held (by a majority) that no term could be implied in fact because it would contradict the express terms of the agreement. Nor could any term be implied in law. The usual implication as to reasonable remuneration in the absence of any agreement was excluded because there was an agreement. Moreover, Mr Barton was not an estate agent who could claim a customary commission.

There was no “failure of basis” such as to give rise to an unjust enrichment claim and, in any event, the parties’ express stipulation of the circumstances which triggered payment necessarily excluded any obligation to pay in other circumstances.

The Supreme Court’s press summary is here and judgment here.