Foxtons Ltd v Pelkey Bicknell and Another: CA 23 Apr 2008

The defendant appealed against a finding that she was liable to pay her estate agent, appointed as sole agent, on the sale of her property. The eventual purchasers had visited but rejected the property. The agency was later terminated, and the buyers were re-introduced by a subsequent agent. The claimants claimed entitlement because the sale was to ‘a purchaser introduced by’ them.
Held: The appeal succeeded. Lord Neuberger of Abbotsbury said: ”A purchaser introduced by us’ meant a person who becomes a purchaser as a result of our introduction’. This was consistent with the intent of the 1991 Regulations, and the claimants interpretation would leave the sellers open to a claim at whatever future point the buyer was persuaded.
Lord Neuberger examined the case law and said: ‘More generally the judgments in those cases establish the following propositions. First, the term identified in Article 57 of Bowstead is ‘very readily’ implied, especially in a residential consumer context, unless the provisions of the particular contract or the facts of the particular case negative it . . Secondly, the main reason for implying the term is to minimise the risk of a seller having to pay two commissions . . Thirdly, it is not entirely clear whether the test is ‘an effective cause’ or ‘the effective cause’ . . Fourthly, whether an agent was the effective cause is a question whose resolution turns very much on the facts of the particular case . . Fifthly, while two commissions are to be avoided, there will be cases where the terms of the relevant contracts and the facts compel such a result . . Sixthly, where the term is implied, the burden is on the agent seeking the commission to establish that he was the effective cause.’

Lord Neuberger of Abbotsbury
[2008] EWCA Civ 419, Times 01-May-2008, [2008] All ER (D) 328 (Apr), [2008] 2 EGLR 23
Estate Agents (Provision of Information) Regulations 1991
England and Wales
CitedMillar Son and Co v Radford CA 1903
For an estate agent to recover his commission, it was ‘necessary’ to show that the agent’s introduction was an ‘efficient’ (namely effective) cause in bringing about the transaction. . .
CitedThe County Homesearch Company (Thames and Chilterns) Ltd v Cowham CA 31-Jan-2008
The defendants contracted to pay estate agents to find them a house. They completed the purchase of a property mentioned to them three times by the agent, but now appealed from a finding that they were obliged to pay his commission. The judge found . .
CitedBurney v The London Mews Company Ltd CA 7-May-2003
The defendant sought to appeal judgment against him for his estate agent’s commission. They had been appointed sole agents. A second firm obtained the particulars for their own retained clients, but then copied the particulars onto their own . .
CitedStandard Life Assurance Company (Incorporated Under Laws of Scotland By Act of Parliament) v Egan Lawson Limited CA 21-Nov-2000
The defendant appealed against judgment in favour of his (buyer’s) estate agent for his commission in finding the property for it. A previous offer was rejected by the seller, but a subsequent agent of the buyer obtained the acceptance of a further . .
CitedLuxor (Eastbourne) v Cooper HL 1941
The vendor company had instructed agents to sell properties on its behalf and had agreed to pay commission on completion of the sale. The sale was agreed with a prospective purchaser introduced by the agents. Before the sale was completed, the . .
CitedBrian Cooper and Co v Fairview Estates (Investments) Ltd CA 13-Mar-1987
A substantial property developer sought a tenant for its office block and agreed with his selling agent to pay ‘a full scale letting fee . . should you introduce a tenant by whom you are unable to be retained and with whom we have not been in . .
CitedChasen Ryder and Co v Hedges CA 1993
The vendor first instructed the plaintiffs to sell his residential home. They introduced several people, but no offers were made. The vendor went to another firm of agents. An extended planning consent was obtained, and one of the original enquirers . .
CitedPeter Yates v Bullock 1992
Whether an introduction of a purchaser by an estate agent to the vendor was the ‘effective cause’ of the transaction which ultimately takes place must be resolved by an examination of the facts as a whole. . .
CitedWood (John D) and Co v Dantata; Beauchamp Estates v Dantata CA 1987
The purchaser liked inspecting houses and the vendor had appointed ten firms to act for him as estate agents. Each of the estate agents was approached by this purchaser and each of the estate agents took the would be purchaser over the property of . .

Cited by:
CitedCharania v Harbour Estates Ltd CA 27-Oct-2009
The defendant appealed against the award of the estate agent’s fees, acting under a sole agency agreement. The agreement had been terminated. A buyer who had seen the property first under the agency later returned and negotiated a purchase.
CitedGlentree Estates Ltd and Others v Favermead Ltd ChD 20-May-2010
The claimant estate agents claimed commission on property sales. The defendant said that the agreement to pay commission had been waived.
Held: The sale triggered the commission. However the later agreement did work to vary the original . .
CitedNicholas Prestige Homes v Neal CA 1-Dec-2010
The estate agent had sought their commission on the sale of property, but phrased it now as a claim for damages for the property owners having breached their sole agency contract by appointing other agents who had been the effective cause of the . .
CitedGlentree Estates Ltd v Holbeton Ltd CA 5-Jul-2011
Agent to establish effective cause of a sale
The claimant estate agent appealed against dismissal of its claim for commission on the sale of the defendant’s property.
Held: The appeal failed. Glentree failed to establish that it was either ‘the’ or ‘an’ effective cause of the sale. What . .

Lists of cited by and citing cases may be incomplete.

Contract, Agency

Updated: 01 November 2021; Ref: scu.267045