Burden of proof not the answer

Stephens and another v Cannon and another CA TLR 2 May

The claimants entered into an agreement to sell land and buildings for £600,000 to the defendants on condition that the defendants first obtain planning permission to build a dwelling on the land, second construct it, third sell it and fourth account to the claimants for half the excess of the sale over £1 m, less a deduction for the costs of sale. The buyers obtained planning permission but had not built or sold. The sellers obtained judgment for damages to be assessed. Both parties relied on expert evidence as to the value of the hypothetical property, the claimants’ expert estimating the value at £1.9m, the defendants’ expert at £1.5m. The master was unable to decide between the two figures and therefore resorted to saying that the claimants had failed to discharge the burden of proof on them to satisfy him that their figure was correct and therefore he took the defendants’ figure.