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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> BBF Consultancy Group (A Firm) v Barratt Homes Ltd [2001] EWCA Civ 1155 (12 July 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1155.html Cite as: [2001] EWCA Civ 1155

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(HHJ WILLIAM CRAWFORD QC sitting as a High Court Judge)

		Royal Courts of Justice Strand London WC2 Thursday 12th July 2001

Thursday 12th July 2001

1. LORD JUSTICE MUMMERY: I ask Mr Justice Wilson to give the first judgment.
2. MR JUSTICE WILSON: Barratt Homes Ltd (Barratt) appeals with the leave of the single Lord Justice against an order made by his Honour Judge William Crawford QC, sitting as a deputy judge of the Queen's Bench division, on 3rd March 2000. Before the judge was a claim by BBF Consulting Group (BBF), a firm of architects, against Barratt, the well-known building company, for sums allegedly owing under, or damages allegedly suffered by breach of, a contract allegedly entered into between the parties orally on 29th June 1998 for work to be done by BBF for Barratt. The hearing of the claim had been directed to be split, and the learned judge was conducting the first part of it. He heard substantial evidence over three days, beginning on 29th February 2000, and, on the afternoon of the fourth day, 3rd March, he gave judgment for BBF and directed that at the second hearing, which, in the light of this appeal, has not yet taken place, the sums owing by Barratt to BBF be assessed upon a quantum meruit basis.
3. The issue before the judge was whether on 29th June 1998 the parties had entered into any contract for the provision of architectural and allied services on the part of BBF to Barratt. Barratt's appeal is founded upon the assertion that the judge was wrong when, in interpreting the evidence, he found that such a contract had been entered into.
4. Woking Borough Council owned a site upon which a hospital had stood and proposed to sell it for residential development. Understandably it wished to sell the site with the benefit of outline planning permission. To that end the council instructed BBF, a firm of architects based in Morden with whom the council had close links, to prepare plans which would secure such permission from its planning department. In May 1998 planning permission was granted for the construction of 86 residential units upon the site. A sale of the site swiftly followed. On 19th June 1998 the council entered into a contract to sell the site to Syandani Ltd (Syandani) and on the same day Syandani entered into a contract to sell the site on to Barratt. Completion of these two sales ultimately took place in October 1998.
5. BBF was well aware that considerable further architectural and allied work would need to be done for whoever became the developer of the site. At first they understood that Syandani would develop it itself. Later there was a suggestion that Syandani would enter into a joint venture with Barratt to develop it. BBF, who had previous connections with Syandani, believed that they stood a good chance of appointment to do that work. They then learnt, however, that Syandani was to exit from the entire project immediately after purchase and that the development would be solely in the hands of Barratt. Mr Conner, of Syandani, reassured Mr Barnard, one of the partners of BBF, that BBF would be employed by Barratt to do the architectural work referable to the development. The judge found that Barratt had not said anything to Mr Conner which justified his giving Mr Barnard such reassurance. There is no doubt, however, that Barratt was prepared to consider the employment of BBF as architects to the development; and it agreed to host a meeting at its offices in Guildford on 29th June 1998. The meeting was attended by Mr Conner, who made the introduction between the other four participants, namely Mr Barnard and Mr Minett, an associate then employed by BBF, on the one hand, and Mr Boyle, managing director of one of the divisions of Barratt, and Mr Rippon, a self-employed consultant whom Barratt was employing to assist in the development of the site. Mr Conner had told Mr Barnard before the meeting that, although it might seem like an interview to select the architects' firm, in reality BBF was to be appointed. The judge found that, again, Mr Conner had no business to say so and that no decision had been taken prior to the meeting by Barratt to employ BBF.
6. What was done, said, meant, intended and understood at the meeting lies at the heart of the case. Mr Boyle was not in attendance throughout the meeting. What is clear is that Mr Barnard and Mr Minett made a presentation of their firm's work on analogous projects and that Mr Rippon and Mr Boyle were impressed with it. It is also clear that the latter indicated that, notwithstanding that the outline permission had been for only 86 units, they had calculated that they needed permission to build 93 units; and that indeed the detailed permission was urgent in that Barratt intended to start to build on 1st October 1998. The judge found, and unsurprisingly attached considerable significance to the fact, that at some stage in the meeting Mr Boyle said "I have heard enough. We will run with you". At the conclusion of his judgment, the judge cited Mr Boyle's comments as the first of his six reasons for concluding that at the meeting a contract was formed whereunder Barratt instructed BBF "to carry out work to further a detailed planning application". There was certainly no agreement by the end of that meeting on 29th June about the level of fees payable to BBF by Barratt for work on the project. It is agreed that at the meeting Barratt, which, as it happens, had in May 1998 obtained a quotation from a different firm of architectural consultants for work on the project, asked BBF to submit fee proposals and indicated that Barratt took the view that fees fixed by reference to RIBA guidelines were unacceptably high. The absence of agreement on fees explains the judge's conclusion that BBF's entitlement to remuneration was to be assessed on a quantum meruit.
7. It is also noteworthy that the judge's finding that the contract was for work to further a detailed planning application fell substantially short of BBF's claim as to the extent of the work for which it provided, namely that it extended to three stages of the RIBA plan of work beyond work for that planning application.
8. In the course of the next eight weeks a number of letters passed between BBF and Barratt which the judge reviewed, even though his conclusion was that they were not all that good a guide as to what had taken place at the meeting.
9. By letter dated 1st July 1998, Mr Barnard wrote to Mr Boyle as follows:

"Paul Minett and I were very pleased to meet with you and Roger Rippon on Monday 29th June 1998. You requested a Fee Proposal regarding the above project which I have pleasure in setting out as follows.

To undertaking all necessary work up to and including Stage D of the RIBA Plan of Work, i.e. Detailed Planning Application stage, our Fee, inclusive of all reasonable printing and travel etc, is £32,000 plus VAT."

10. The letter went on to state how that sum should be paid. Then it went on to quote a fee for:

" ... undertaking all necessary work associated with RIBA Plan of Work stages E, F and G ..."

11. The letter concluded:

"This Fee Proposal should not be taken as a precedent for any future work. The circumstances and requirements of projects are assessed on the individual merits with a view to offering our clients a competitive fee, commensurate with the quality of service required.

The above Fees are exclusive of VAT, payments to statutory and local authorities and courier charges when necessary or requested by the client. Our Appointment would be based on the RIBA Memorandum of Appointment in the absence of your own Form of Appointment.

Additional Fee Proposals for other services which we discussed at our meeting can be provided in due course including structural engineering and illustrations etc.

As indicated at our meeting, we are very keen to work with you on any other projects you may have within your area and we hope that our local government background and retained contacts with the local authorities within your geographical area may be of some benefit to your company on future projects. I note your request for our views on feasibility studies etc, and I can confirm that we do undertake feasibility work at risk in order to help our clients establish the viability of a project. I hope the above is satisfactory for your purposes and we look forward to hearing from you shortly."

12. By letter dated 6th July 1998 to Mr Barnard, Mr Rippon replied on behalf of Barratt:

"I have been passed your letter dated 1st July addressed to Gerry Boyle. Gerry is on holiday until 20th July and I have been asked to reply.

As far as your fee proposal is concerned for this project, I am sure Gerry will be very interested. I will leave him to reply to you in detail when he returns to the office, based on his knowledge of the Barratt's 'going rate' with other practices.

In the meantime, it would be very helpful if you would prepare a sketch proposal for the site, including just the land Barratt are actually acquiring, i.e. excluding the highway land across the frontage and taking account of the latest re-alignment of the junction with Chobham Road. Bearing in mind the amount of work your practice has already done on the scheme, I would hope that you might be able to do this within a fairly short time scale, and certainly by the time Gerry returns from holiday.

The mix of units that we are aiming to achieve is as follows ..."

13. Mr Rippon then gave some details as to the size of the units, both the social units and the open market units, that Barratt was proposing to build.
14. Mr Rippon concluded:

"We are aiming to achieve as close to 100 units in total on the site as possible. This will inevitably involve an element of five storey on the frontage to emphasise the architectural statement on this prominent and prestigious site.

The rest I leave to you. If you wish to discuss this brief with me, please do not hesitate to telephone me on my mobile number this week ... I am also away next week for one week.

Please could you send me a copy of whatever sketch plan you produce for my Reading office at the same time as sending it to Gerry in this office."

15. It seems that on 20th July Mr Boyle probably returned, as planned, from holiday but for a week thereafter there was a curious silence between the parties. The sketch proposal which Mr Rippon had requested that BBF should furnish to Barratt by that date was not furnished, indeed never furnished. Nor was Mr Boyle quick to respond to the proposals as to fees in the letter dated 1st July. The judge did find, however, that on 27th July Mr Barnard telephoned Mr Rippon and said that a meeting was necessary to decide what plans to make for car-parking, "the drawing work", adding the judge, "having reached that stage". It is convenient here to note that there appears to be the most lively argument as to what, if any, work was done by BBF under the purported contract following 29th June; but that issue has been, of course, assigned to the second stage, if any, of the trial and, apart from that reference, the judge seems to have steered well away from it. The judge found that in the telephone call Mr Rippon told Mr Barnard to send the drawings to Mr Boyle with a copy for himself, and said that Mr Boyle would be dealing with the fees and appointment "paperwork".
16. During the next week Mr Barnard made numerous attempts to contact Mr Boyle. But Mr Boyle was avoiding him. This was undoubtedly related to the fact that on 29th July Mr Boyle recommended to Barratt that the architectural consultants who had quoted for the work in May should be chosen to do it.
17. On 3rd August 1998 Mr Barnard sent a letter by fax to Mr Boyle as follows:

"I refer to my letter dated 1st July 1998, to which I do not yet appear to have received a reply. Although I have had a semi-confirmation of our Appointment situation in a letter from Roger Rippon and accordingly we have commenced our instructions, nonetheless we need the reassurance of a commission document particularly as the resource commitment is increasing weekly.

I have over the last eight days tried to make contact with you to discuss the situation and indeed to arrange a meeting with you regarding the new site layout proposal. I am aware you have been exceptionally busy, and hence my fax. Your attention to confirmation of our appointment would however be greatly appreciated and similarly if you could let me know when we could discuss the content of the proposed scheme as we are currently showing it."

18. On that same day, in answer to the fax, Mr Boyle telephoned Mr Barnard and informed him that Barratt had decided to instruct a different firm of architects rather than to try out architects with whom they had had no dealings. The call fetched the following response by Mr Barnard to Mr Boyle, by letter dated 4th August:

"As I am sure you gathered from our telephone conversation on 3rd August 1998 I was very disappointed and concerned to learn that you have now decided to continue the above scheme with another practice.

At our interview with you in late June you clearly indicated your satisfaction with our presentation and that it was your intention "to run with us". Furthermore your Mr Rippon's letter to us at the beginning of July enclosed the house types you wished us to use and requested that our layout drawings be forwarded to his Reading office. Clearly he was under the same impression as we were that we were your Architects for this project and were undertaking work on your behalf. During July a considerable amount of staff resource has been devoted to progressing the scheme to detailed planning stage. Indeed following further tree survey information from Woking I had staff working all last weekend. For over a week I have repeatedly tried to contact you as a result of a phone conversation with your Mr Rippon on 27th July 1998. He had directed me to you with regard to our Appointment documentation, and he was now advising that the layouts should go to you with a copy to him, as it was necessary to discuss with you client option issues which had arisen during the preceding 3 or 4 weeks.

It is often the case that Architects proceed in good faith ahead of receiving formal Appointment documentation in order to assist clients in achieving their timescales. That is precisely what we have done on your behalf. Having regard to the fact that we were close to the point of being able to make a detailed planning application could you please confirm that in the circumstances you will be prepared to reimburse our reasonable costs incurred together with the loss of profit occasioned by your company's change of mind."

19. Mr Rippon drafted a reply for Mr Boyle to send to BBF. In the event, Mr Rippon's draft was not used; and the judge attached importance to the fact that Mr Boyle chose not to use it. Mr Rippon's draft was as follows:

"When we met on 29th June, both Gerry and I quite clearly stated that no firm decision had then been taken on which architects to appoint for the scheme. You made an interesting presentation and Gerry indicated that he would consider using your services on this or some other occasion and invited you to quote for the work. At this meeting you also indicated you were prepared to produce feasibility sketches for this and any other projects at risk in the same way as most architects are prepared to do nowadays. You confirmed your fees by letter dated 1st July, in which you re-confirmed your willingness to undertake feasibility work at risk. I sent you a holding response on 6th July whilst Gerry was on holiday, inviting you to provide a sketch proposal based on the requirements set out in my letter using your knowledge of the site.

After Gerry returned from holiday the whole approach to this site was considered in detail at a board meeting. At this meeting it was decided to appoint another firm of architects who are particularly familiar with the requirements of this company as far as such schemes are concerned, and whose work programme enables them to produce application drawings very quickly.

When we spoke on 27th July, I gained the clear impression from you that little, if any, work had been done on the sketch proposals whilst you had been away and I suggested you speak to Gerry about your appointment. It is only unfortunate you were unable to make contact with him and in any event we certainly would not have expected you to press ahead with preparing drawings for ... planning application at that stage without us having the opportunity to comment on sketch proposals and your firm being properly commissioned.

In the circumstances it is unfortunate that you have seen fit to carry out so much work at your own risk. It was never intended by us that you should do so and I regret any inconvenience it may have caused you."

20. The letter which Mr Boyle did send to BBF, dated 7th August, was as follows:

"Further to your letter on 4th August. I fully understand your disappointment in not being able to continue with the above scheme given your long involvement with the proposals to develop the site.

I regret that you feel that Mr Rippon's letter enclosing house types was in some way confirming your appointment, and this unfortunate misunderstanding has led you to believe you were to proceed with this whilst Mr Rippon's view is that he was expecting to receive feasibility sketches, which you were prepared to produce "at risks" as is common in today's housing market.

I do not believe these were ever seen by him and as a result I have some difficulty with your assertion that you were close to the point of being able to make a detailed planning application. I firmly believe this has just been a genuine misunderstanding and believe that there will be other opportunities in the future. I regret that I cannot accept responsibility for either your costs or your loss of profit in respect of this site.

I hope you will accept this as an unfortunate misunderstanding and put it down to part of life's colourful tapestry."

21. Mr Barnard has produced two fee notes dated 26th August, totalling £36,000, which he says were sent by him to Mr Boyle under cover of a letter of the same date. Mr Boyle appears to have denied receipt of the letter and fee notes until their later re-submission, but the judge seems to have found that the fee notes were duly sent in August.
22. Not surprisingly, Mr Emerson, who, as he does today, appeared before the judge on behalf of Barratt, pressed hard the fact that on 29th June there was no agreement about the level of remuneration to be paid for any services rendered by BBF. But there is no doubt that the judge was correct in law to conclude that the absence of agreement about remuneration was not fatal to the formation of a contract: see section 15(1), Supply of Goods and Services Act 1982. Nevertheless I harbour concern that the absence of an agreement as to specific remuneration did not achieve sufficient prominence in the judge's consideration of whether it was likely that, absent such part of the agreement, Barratt would have proceeded to enter into a commitment. It already had one specific quotation for the same work from another firm upon its file and at the meeting it had, on any view, requested BBF to submit a fee proposal.
23. The judge's process of thought is illumined by a quotation which he drew from the judgment of Mr Justice Blackburn in Smith v Hughes [1871] LR 6 QB 597, at 607, being a case to which no reference had been made at any stage of the hearing. Mr Justice Blackburn said:

"If, whatever a man's real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party and that other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party's terms."

24. Smith v Hughes was, as Mr Emerson stresses, a case where the defendant, the purchaser of oats, was fully intending to contract to buy them, yet was under a misapprehension, not induced by the plaintiff seller, that they were old oats rather than new oats, and thus better feed for his racehorses. Mr Emerson contrasts the case where the defendant intends to enter into a contract but labours under a misapprehension as to its subject-matter with the present case, where, as the judge seems by the quotation to have accepted, Barratt never subjectively intended to enter into a contract at all. But our law of contract is founded upon the collection of an agreement objectively from the circumstances rather than upon a subjective enquiry into actual intention; and I respectfully agree with Mr Leeming QC, on behalf of BBF, that there is nothing wrong in a conclusion which, where the objective circumstances so permit, cites that principle in aid of the finding of the very existence of a contract.
25. What is significant about the citation is that, whereas the judge clearly found that Mr Barnard and Mr Minett intended and understood by the end of the meeting on 29th June that a contract had arisen, he went on to find that Mr Boyle (whom, during final submissions, the judge twice described as a very honest witness) and Mr Rippon had no such intention or understanding. The learned judge's judgment is founded upon the conclusion that, notwithstanding that those two men did not intend or understand that a contract was being, or had been, created at the meeting, they had so conducted themselves that a reasonable man would believe the contrary. On any view it is an unusual finding to make in respect of presumably competent businessmen and requires the exercise of considerable care: see Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council [1990] 1 WLR 1195, at 1202F per Lord Justice Bingham (as he then was).
26. At the conclusion of his judgment, the judge helpfully identified six factors which led him to the conclusion that, in the manner described by Mr Justice Blackburn, a contract had come into existence at the meeting on 29th June. First, and I think clearly foremost, the judge relied on Mr Boyle's announcement "I have heard enough; we will run with you." There is no doubt that, having heard a quantity of oral evidence, the judge was better placed than is this court to construe the meaning of those words. The central question posed by them is clearly: how far was Barratt proposing to run with BBF? Although the phrase is inherently ambiguous, I believe that most people would construe it, at least in isolation, as a commitment to a contractual relationship with BBF. But the words have to be considered in context, part of which was that BBF would be offering a quotation of fees. Another part of the context, suggested by Barratt, is that the request that Mr Rippon definitely made in his letter dated 6th July, namely that BBF should produce a sketch proposal for the site, was requested by him and Mr Boyle at the meeting, and thus that Barratt would "run" at least as far as that. The judge did not find that such a request had been made at the meeting but he did not reject the suggestion in any clear terms.
27. The judge's second point was based upon a study of a contemporaneous note of the meeting taken by Mr Minett, which indicated that Mr Rippon had gone into considerable detail about what Barratt required in terms of plans for the site; and Mr Minett had made a specific note about a detailed planning application. Indeed study of the note shows it to say "new detailed application in two-three weeks time." With respect to the judge, I do not think that Mr Rippon's detailed exposition of Barratt's requirements itself steers the conclusion towards immediate contractual relationship.
28. The judge's third point was based upon his finding that by the end of the meeting both Mr Barnard and Mr Minett clearly believed that they had instructions to commence work forthwith. Of course the question is what led them to that belief. The judge necessarily considered in this context that their belief might have arisen from the misrepresentations of Mr Conner that the contract was already effectively theirs; but the judge found that that was not the effective cause of their belief. Nevertheless this third point does not bring in any new feature of conduct or statement on behalf of Barratt which would have led them to that understanding.
29. The judge's fourth point was that it had been made clear to BBF that time was short. Mr Leeming has persuaded me that this is one of BBF's best points. Barratt wanted to start construction in three months' time. The period for obtaining a detailed permission, beyond the ambit of the outline permission, was extremely short; and BBF, the authors of the outline plans and already in a good relationship with the local council, would, for those reasons if for no others, have been attractive candidates for appointment. The time factor might have led Barratt, however surprisingly, to abbreviate normal procedures for the appointment of the architects to a big development.
30. The judge's fifth point was that at the end of the meeting BBF indicated their willingness to carry out other work for Barratt, at any rate on a preliminary basis, "at risk", thereby, as the judge said, making it clear that "this work" was not to be at risk. With respect, that point seems to me to beg the question as to what "this work", if any, was to be.
31. The judge's final point was that Mr Boyle's avoidance of Mr Barnard in late July and his reluctance to deploy the terms of Mr Rippon's draft letter dated 6th August indicate a sensation on Mr Boyle's part that by that time Barratt was in a weak position. The avoidance of an unpleasant telephone call and the choice of a gentler letter seem to me, in the scheme of the case, unimportant matters.
32. Speaking for myself, I have found this case gravely disquieting. A very experienced judge, much respected, heard lengthy evidence and reached a finding of fact. The handicap under which, in comparison with the judge, this court suffers in determining issues of fact will be written across all our minds. The judge has produced a list of six reasons which include a number of reasonable arguments in favour of the creation of a contract. My problem, however, is that, in the end, I cannot square his findings with the contents of the subsequent correspondence which, following analysis, he found of little assistance.
33. First, there is the letter from Mr Barnard dated 1st July. As the judge observed, it does not sound, at first blush, like a letter from somebody who has just been given a contract. The letter referred to the meeting and set out the fee proposal which had been requested. Written only 48 hours after the meeting, it included nothing indicative of any existing contractual relationship. Fairly the judge recorded that point; but in the event described it only as an unfortunate omission. His phrase has a curious piquancy. I have already quoted the pre-penultimate paragraph of the letter. The judge failed to recite the paragraph in full. He elided part of it as follows:

"The above fees are exclusive of VAT based on the RIBA Memorandum of Appointment in the absence of your own form of appointment."

34. Between the reference to "VAT" and the word "based", there are words in the letter which were omitted from the judge's quotation. In particular, there are words that "Our appointment would be" based on the Memorandum of Appointment. I have no doubt that the judge missed out those words accidentally and that he was well aware that the letter was suggesting that what would be based on the RIBA memorandum would be BBF's appointment. But the fact that, by accident, the judge omitted those words is testament to the lack of significance which he attached to them. I attach great significance to Mr Barnard's suggestion that his firm's appointment "would be" based on the memorandum. Notwithstanding Mr Leeming's efforts, I find it hard to construe the subjunctive tense as being other than a concession that BBF's appointment, whether formally documented or otherwise, have not yet occurred.
35. Next there is the letter from Mr Rippon dated 6th July. The significant part of the letter is the request that "in the meantime", namely until Mr Boyle responded to the fee quotations, "it would be very helpful if you would prepare a sketch proposal for the site..." Had there been a contract a week earlier for BBF to proceed to a detailed planning application, or beyond, I cannot understand how Mr Rippon could have proposed that it would be helpful for them to furnish a sketch proposal by 20th July; and if Mr Rippon was there guilty of casting a request in terms entirely inconsistent with the extent of an existing contract, I would expect a prompt expression of perplexity by Mr Barnard or, in that he was also on holiday at around that time, by the member of the firm with temporary carriage of this matter upon which, according to BBF, intensive work was already being done. Yet there was none. Indeed, even more curiously, the request for a sketch proposal to be furnished by 20th July was ignored; and no such sketch was ever sent until, possibly, after the dispute arose.
36. Next there is Mr Barnard's letter by fax dated 3rd August, being a date by which, in the light of Mr Boyle's avoidance of him, Mr Barnard may have sensed the imminence of dispute. There Mr Barnard described Mr Rippon's letter dated 6th July as "a semi-confirmation of our appointment". Whatever had been said at the meeting on 29th June, the letter of 6th July could never have merited that description. I think that the only realistic construction is that battle-lines were there being drawn.
37. Finally there is Mr Barnard's letter dated 4th August. There Mr Barnard pointed to Barratt's satisfaction with BBF's presentation and to the fact that Mr Boyle had expressed the intention "to run with them". If it is an assertion of the creation of a contractual relationship, it is thinly expressed. The letter ended with a request for Barratt to confirm that it would be prepared to reimburse BBF in respect of costs incurred. In my view that modestly worded letter, while of no great significance, negatives any inference to be drawn from the modestly worded letter that on 7th August Mr Boyle chose to send in reply.
38. In conclusion I find myself, after the most anxious thought, in a situation of great unease. I have profound respect for the judge and a full awareness of the advantages of his position. Nevertheless his finding that a contract arose at the meeting and his unusual finding as to the circumstances in which it arose, namely in the absence of the subjective intention of Barratt to enter into a contractual relationship, are wholly inconsistent with the correspondence which flowed from the meeting. I feel driven to propose that this court should allow Barratt's appeal.
39. LORD JUSTICE JONATHAN PARKER: I agree that this appeal should be allowed for the reasons my Lord has given.
40. LORD JUSTICE MUMMERY: I agree.
ORDER: Appeal allowed and the order of 3rd March 2000 set aside; the claim will be dismissed and judgment for the defendant; the respondent will pay the appellant's costs of the action both here and below; payment of money in court to the appellant's solicitors. (Order not part of approved judgment)