Judge made "fundamental error" when she refused to hold Sainsbury's to £30m Bristol Rovers dealBy The Bristol Post | Posted: January 26, 2016
A judge made a "fundamental error" when she refused to hold supermarket giants, Sainsbury's, to the £30 million purchase of Bristol Rovers' Memorial Stadium.
The club says Sainsbury's welched on the deal which was to pave the way for Rovers' move to a state-of-the-art new ground on West of England University's Frenchay campus.
Rovers narrowly lost the argument in the High Court last year, but is now battling to reverse that result at the Court of Appeal.
Opening the case, barrister, David Mathias QC, said: "Bristol Rovers continues its fight to hold Sainsbury's to the sale of the Memorial Stadium"
He insisted that the supermarket chain was "under a continuing obligation" to go through with the deal when it unlawfully pulled out.
The QC said the club had "very nearly succeeded" in winning its case before High Court judge, Mrs Justice Proudman, last year.
It only lost on a fine point of contractual interpretation and Mr Mathias said it would not take much for the club to be "home and dry".
"We say the judge's conclusion was wrong; we ask this court to reverse it and allow the appeal, obliging Sainsbury's to complete the purchase of the Memorial Stadium", he added.The deal struck in 2011 was supposed to see Sainsbury's plough £30 million into buying the stadium, before leasing it back to the club for a peppercorn.
The plan was that the club would move to the new 21,700-seater ground when it was completed, opening the way for Sainsbury's to build a superstore on the site of the old stadium.
Planning permission was granted, but Sainsbury's pulled out when local councillors refused to allow deliveries to the store before 6am on weekdays.
Sainsbury's has always insisted that the restriction on delivery hours was unacceptable and that it was fully entitled to withdraw from the project.
But club lawyers argue that the supermarket chain got cold feet and seized upon the deliveries issue as an excuse for backing out of the deal.
They say the contract with Sainsbury's is still "on foot" and is asking the court to force the company into meeting its obligations.
In July last year, Mrs Justice Proudman said the "tortuous, laborious and in some respects bad" drafting of the contract lay at the heart of the dispute.
By the summer of 2013 "Sainsbury's desire to terminate the agreement if it lawfully could was plain", she added.
The judge accepted that the company could have done more to engage with local councillors and objectors and to keep the club informed.
But she refused to accept that Sainsbury's had failed to use "due diligence" in trying to persuade councillors to extend the delivery hours.
The attempt to convince them was made "at a politically inexpedient time" and "would have failed in any event", she ruled.
The failure to win an "acceptable" superstore planning consent meant that a "condition precedent" of the contract had not been met.
Sainsbury's, she concluded, was entitled to stand on the letter of the contract and to withdraw from the deal.
Challenging her decision today, Mr Mathias said the club's case all came down to knife-edge timing.
Sainsbury's, he said, was under an obligation to use its best endeavours to secure an acceptable planning permission.
Under the contract, that obligation had continued for 20 days after a termination notice was served.
The QC argued that Sainsbury's was never entitled to terminate the deal and gave up its attempt to "hone" the planning permission too quickly.
The hearing before Lords Justice Laws, McCombe and Floyd continues and is expected to last three days.
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