Hundreds of thousands of pounds could be knocked off the amount that OnTheMarket member agent Gascoigne Halman might be able to claim in any future costs order, as its legal battle with the portal’s owner, Agent’s Mutual, continues.
While the possible recoverable costs have not been limited, the costs budget has, making recovery of costs over and above the budget that Gascoigne Halman has told the courts it expects to spend improbable.
A costs hearing before Mr Justice Roth, president of the Competition Appeal Tribunal, has resulted in a number of cuts to Gascoigne Halman’s cost budget.
The published ruling says that the final outcome of the case is critical for the future of OnTheMarket – as Agents’ Mutual has itself contended.
The document lays bare the huge costs being run up.
The competition issues are to be examined by the Competition Appeal Tribunal in a trial that will take place over 12 days, including nine days in court, in February.
The latest round in the dispute over Agents’ Mutual’s ‘one other portal’ rule was a hearing into the amounts that could be claimed by the winning party.
Should Agents’ Mutual lose the case, it faces being hit with Gascoigne Halman’s costs – and vice versa.
Connells brand Gascoigne Halman had submitted a costs total some £1m more than Agents’ Mutual.
After a challenge by Agents’ Mutual, the Judge slashed Gascoigne Halman’s figure, but raised the possibility that Agents’ Mutual may not have budgeted enough for the actual hearing.
According to the ruling, Agents’ Mutual, the claimant, has a costs budget of £1.8m, of which “close to £560,000” has now been spent.
Gascoigne Halman, the defendant, has a budget of just over £2.8m, of which just over £1.2m has been incurred.
In his judgment, Mr Justice Roth remarked: “I accept that these are complex proceedings in that they involve a specialist area of law and therefore involve higher costs.
“Both sides are using City of London solicitors and I do not regard that as disproportionate.
“I accept also that the issues are of great importance for both parties although, it seems to me, they are still more important for the Claimant than for Gascoigne Halman: the Claimant contends that its future in the online portal market may depend on the determination of the competition issues.”
The document giving the latest ruling says that in a parallel but separate case, Welsh agent Moginie James and Agents’ Mutual have agreed each other’s costs budgets.
Gascoigne Halman has agreed Agents’ Mutual’s costs budget. However, Agents’ Mutual challenged why Gascoigne Halman’s figures are higher than its own. The Judge looked at a breakdown of these.
Witness statements have been budgeted by Gascoigne Halman at £299,819.
The ruling says: “That is based on the assumption that Gascoigne Halman will have 6-7 witnesses and also the task of reviewing the Claimant’s four witness statements and the evidence of Moginie James in the related action. The Claimant’s budget under this head is £147,650 and it is perhaps relevant to note that its budget is £19,575 for witness statements in the Moginie James action.”
The Judge goes on to say that he regards Gascoigne Halman’s total of almost £300,000 as “unreasonable and disproportionate”. He says a more proportionate sum would be £200,000.
Both Gascoigne Halman and Agents’ Mutual will have an economic expert, for which Gascoigne Halman has allowed a total of £348,000 and Agents’ Mutual put in for £257,763.
Again, the Judge says that Gascoigne Halman’s total is “unreasonable and wholly disproportionate”, revising the sum of £240,000.
A further budgeted cost by Gascoigne Halman, to do with PTR (pre-trial review), is knocked back from £105,725 to £40,000 – in line with Agents’ Mutual’s budget of £40,390.
Gascoigne Halman has budgeted £98,175 for trial preparation, while Agents’ Mutual has budgeted £122,975.
The judge said that he would expect Agents’ Mutual’s costs to be higher as it carries the burden of preparing the trial bundles. He reduced Gascoigne Halman’s budget for trial preparation to £80,000.
The budgets for the actual trial also came under scrutiny: Gascoigne Halman’s estimate of £842,195 against Agents’ Mutual’s £483,420.
The Judge says he would approve a revised figure of £550,000 for Gascoigne Halman.
Altogether the Judge knocked £922,634 off Gascoigne Halman’s figures, leaving Agents’ Mutual less exposed.
EYE wishes to make it clear that neither party in the case has made any comment on the ongoing judgment issued by the Competition Appeal Tribunal.
A spokesperson for OTM, in a specific response to a request for comment, told EYE: “When it was brought to our attention that after its acquisition by Connells, Gascoigne Halman was listing its properties on both Zoopla/PrimeLocation and Rightmove as well as at OnTheMarket.com, we initiated appropriate legal action to address the situation.
“As a founder Gold member, Gascoigne Halman had signed up voluntarily to list its properties with us and a maximum of one other competing portal. Gascoigne Halman had specified Rightmove as its ‘other portal’.
“As a result of the legal action, Gascoigne Halman continues to comply with its contractual agreements to pay a monthly subscription fee and to list its properties at OnTheMarket.com and a maximum of one other portal, which continues to be Rightmove.
“In its legal defence, Gascoigne Halman has challenged the legitimacy of the ‘one other portal rule’. This ‘one other portal rule’ has been, and remains, an essential element of the strategy of Agents’ Mutual to enter, and compete effectively in, a market so heavily dominated by two players.
“We understand that the Competition and Markets Authority has received requests to investigate but has chosen not to do so.
“In the interests of our members, all of whom have voluntarily committed contractually to list at OnTheMarket.com and with a maximum of one other portal, we are committed to defending the legitimacy and legality of the voluntary ‘one other portal rule’.
“The Board and management team of Agents’ Mutual have at every stage of the company’s inception and development taken appropriate legal advice.
“We remain satisfied that the company has operated within the law and we are pursuing appropriate action to ensure that agents meet their contractual obligations.”
EYE was told yesterday by a respected lawyer totally unconnected with the case: “The recoverable costs have not been limited. The costs budget has. This is not an absolute fetter on ultimately recoverable costs but certainly makes recovery of costs over and above the budget improbable.
“GH had already spent £1.2m and were limited to just under another £1m, making total costs approved £2.2m as against their ask of £2.8m.
‘What they get at the end will be up to the costs judge at the time, but certainly having their budget trimmed is a bad day out for them.”
Staggering….this will be do or die for AM
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Isn’t this what their new owners are trying to do, Zoopla shareholders. There is a very interesting article by CMA on dominant business position restricting new business breaking into a market and that the new entrant make take reasonable actions to get a foothold. No-one is forced to join AM and there are other players providing web portals for those to use, so market access is nowhere near restricted. It also covers conduct of a dominant business trying to thwart the new entrant. Arguably Gascoigne Halman a founder Gold member who voluntarily joined AM wouldn’t be taking this position if they hadn’t been taken over by a competitor who is anti AM? The costs which are ludicrous, exposed that game of get it as high as possible and see if they throw the towel in and settle out of court. Full marks to the judge on his response.This could easily backfire on GH & Connells. The only sure winner is the legal profession.
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Give it a rest Woodentop. Same old yap. YAWN
Competition Appeal Tribunal are looking in to and handling. Says it all.
The stance doesnt just affect agents who signed up. But other platforms who didnt sign up to being restrained such as INEA and small portals that have got pulled into AMs embargo, who didnt ask to be.
Thank your beloved Mr Springett.
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“Give it a rest Woodentop. Same old yap. YAWN”
REALLY, Mr Mealham?
I was watching a fascinating prog only last night – Sir David Attenborough giving us chapter & verse on the largest dinosaur ever to roam the earth, called Titanosaur.
It has a neck some 40 feet in length.
You beat it hands down with that one sentence.
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Sticks and stones Pee Bee 🙂
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I’M NOT the one with the agenda, Sir.
I’M NOT the one desperately trying to make the waves.
YOU ARE.
You’re the one standing in the glass house with an armful of stones.
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Fair comment. but I do have views on the industry and OTM did write to some of our members.
I guess on this one I could be standing on the outside of the Springett greenhouse
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I’m not surprised by your comments as you are exposed as a TROLL.
What I find disturbing is your apparent self proclaimed expert in estate agency, when in fact you haven’t been an estate agent since the 1990’s, when you were the head of a cartel of local agents, you have no training or professional qualifications in the legal profession or estate agency. You are the CEO (American slang) for a web portal of your making which is interested in the US Multi-Listing model trying to operate in an industry that is primarily sole agency with 91 agencies, none of which are located in your part of the country?
You then tell us you sit on Government advisory meetings representing the estate agency industry. Pray tell in what capacity, what professional expertise you bring and who actually you represent. Your 91 agents showing on INEA isn’t by the wildest imaginations representing an industry of over 20,000. I have today written to the Housing Minister for an explanation, if in fact you do attend Government meetings. Or maybe, just maybe you are after all a fraud?
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Ive been in the industry for 30+ years. For the last 10 ive worked with many agents and related. I guess that allows me in.
Have a look here:
http://pstatic.powys.gov.uk/fileadmin/Docs/Estate_Agency/NTSEAT_guidance_on_property_sales_-_Sept_2015_en.pdf
At the end ONEA is mentioned in the contributors list.
The former INEA group wasnt a cartel. As it placed no restraints on agents joining. But you wouldnt know one from your elbow.
I started attending Gov estate agency meets 10 years ago via the OFT.
The removal of the 20 office cap re HMRC/Treasury AML was my suggestion to help keep costs down for smaller agencies pro rata to big agencies being unfair
I also had input into the ‘passive intermediate’ consultations that helped a certain big supermarket have to face estate agency rules if they stayed in.
I could continue. You may also wish to right to Grant Shapps the HM of a few years back.
What have you done to help agents Woodentop?
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Trevor,
Think you may have finally realized that your constant postings on here and other sites is doing you and your “group” very little favour.
The sad thing is not many i am guessing of your “members” read these pages as otherwise i doubt they would continue to back you.
You seem hellbent on bringing OTM down with half truths and misdirection.
Many of us have very strong feelings regarding your INEA – Up to now most of us have refrained from highlighting what we feel are issues and outdated processes it promotes.
I think its only fair if you continue to jepodise the industry, agents and service providers you too are highlighted why your offering may not be all its cracked up to be.
As my old form tutor use to say “Remember when you point with a finger, you have three pointing back at you”
Woodentop speaks a great deal of sense ….. shame others do not …..
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🙂 Smile you as well 🙂
Well had you have become one of our members ld have told you about ‘sole selling rights’
Its funny how in the forum a few days ago you highlight you don’t have the foggiest as to where you stand in one instance.
As such I work on truths not half truths.
As for old ways. Well some of the old principles in agency stand as solid today as they did 100 years ago.
As for knocking OTM – the story highlights competition issues.
We never made the one other rule. Yet OTM wrote to many of our members.
It’s time you, PeeBee and Woodentop use your real names and get your facts right.
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More half truths.
I knew where i stood but was trying to do the right thing by our clients.
Sometimes a sounding board like the Arena is useful.
As such, voided our contract by choice to assist them in a move – Unlike others Trevor its not all about the money its about being fair and offering a service.
The reason some do not post with names is our egos are not as large as some, we are also not here for self promotion.
Woodentop, PeeBee, Smile Please or any other name does not detract from points made.
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“It’s time you, PeeBee and Woodentop use your real names and get your facts right.”
Please, Mr Mealham, help me out here – and point me in the general direction of an instance of my ‘getting my facts wrong.’
PLEASE.
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“At the end ONEA is mentioned in the contributors list.”
(that would be INEA, Mr Mealham… more haste… less clumsy-wumsy…)
So are the HomeOwnersAlliance. That just blows your argument clean out of the atmosphere, never mind the water.
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CPS to prosecute ‘trolls’ who use fake online profiles
A six-week consultation on the proposed changes has now started.
‘Deeply upsetting’
“It is vital that prosecutors consider the bigger picture when looking at evidence and examine both the online and offline behaviour pattern of the defendant,” said director of public prosecutions Alison Saunders.
“Online abuse is cowardly and can be deeply upsetting to victims.”
*Could be time to use your real name and get you facts right Woodentop.
For reference as well as INEA in latter years I was also an agent from 1986 through to 2011/12
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Is the above some kind of no-very-loosely veiled threat to certain EYE contributors, Mr Mealham?
IF the answer is yes, then maybe – just maybe – it would have been more professional to ask our kind hosts to have a quiet word in the shell-likes of those you wish to worry, rather than plaster it all over their walls for all to see…
… but – you fly your kite however you want.
Just remember what those good old Public Information adverts said – and watch out for overhead cables.
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You would have been better to have recognised the long neck comment before going off on one. For some time I have had concerns over your status within the industry from your own posting and conflicting comments. It is interesting to note that on your own blog, if is full of other peoples articles which have been re-written. I do wonder it you typify that renowned back seat driver many a club has with back street lawyer attitude. I see the wheel coming off for you I quote your words …..
I attend many UK estate agency regulation consultations giving input to BIS, Trading Standards, NTSEAT HMRC AML, Treasury, CMA. Contributor to NTSEAT’s latest Property sales Guidance
Please enlighten us in what capacity as an expert you are allowed to put input into an industry of over 20,000 that you do not represent or put another way, how on earth did you manage to wangle your way in? Not forgetting you have no professional qualifications!!!!!!
1990 – 2005 (15 years)
For 15 years I was head of Mealham Estates. we grew to 2 offices and a staff of 8. Our offices were in Kent, one in the heart of the countryside and the other in a small coastal town. We were very strong in residential sales and later a partner joined who specialised in lettings and management. Whilst there I was elected chair of a group of 15 offices that were a multidisiplined group of independent agents. Together we would share listings, promotions and work together. Such methods took our turnover up 41%.
Now if that wasn’t a cartel, what is? and certainly not representative of sufficient experience for the you to tell agents all over the UK, you know best and sit on advisory panels.
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This is turning into the Trevor Mealham exposure!
All my post has done is show detail of something that you often omit that the CMA published. Not forgetting that they have also said they are not investigating AM over the one other portal rule, which you have ignored. This case is a private litigation.
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The CMA sent out a very clear letter back in April as to actions of agents making joint decissions.
OTM was mentioned in that letter
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The Judge is only capping what is claimable, not what can be actually be spent. Can AM really afford such a venture?
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I think the more fundamental question that should be asked is do the members wish AM to divert those funds away from promoting the platform! Seems to me that this is no longer a mutual!
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It is very sad indeed – If the anti brigade, who willingly signed up to OTM in full knowledge of the terms of the mutual they were joining, put half as much money and effort into OTM as they are putting into the coffers of the Ambulance chasers the industry would be in a far better place, both now and in the future.
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Has AM actually divulged where they are getting their funds from..are the members paying for this? Are the members happy their money is being spent in this way? Who is this case actual for now…the members or the board?
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I fear if OTM win or lose it is the start of the end of OTM.
I have looked at figures for last six months and OTM are adding only 10 net branches a month.
Good will is also dissipating from current members.
If OTM lose, its curtains as many agents will walk away as they will not want to be tainted by the court case or they may not be able to afford to continue.
If OTM win, what then? we are where we are at the moment, stagnating going nowhere.
It is very sad affair.
OTM should be applauded taking them to court but i can just see both sides losing this on reputation as well as finance.
I bet the previous owners of GH are disgusted with their brand being trawled through the courts, lets not forget this is connells doing. Might be worth remembering when you are next targeting other agents stock….
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Morning Smile Please. Indeed your right when you ask..”what will happen if OTM wins”.
Does thismean that any agent that had left OTM will need to re list with OTM again and 1 other portal and if so what will the portal last decade then look like.
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“It is very sad affair.”
Comment of the week?
Of the whole miserable episode, more like.
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7,000 agents didn’t think it was restrictive … 7,000 nails in GH coffin?
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And just look at those extortionate RM fee’s by the most dominant player and not forgetting all those on-line only agents who’s TV marketing campaign is promoting anti-high street. All providing ideal ammunition for AM and the need for OTM in-line with CMA philosophy. This case could lead to more than just one-other portal rule for others?
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What is really frustrating about this sorry situation is that ultimately the only real winners are RM and potentially Z!
NOT OTM or Connells – unless they have any ulterior motives?
Is it now time that all local, full service estate agents woke up to any data domination plans and alliances these two main portals have?
Perhaps, even time that OTM and Connells made up for their own self-preservation?
After all, OTM appears to be the only main portal that may not share data for additional profit at agents expense?
If only OTM could get their act together and actually rally the troops for this emergency?
‘Want of foresight, unwillingness to act when action would be simple and effective, lack of clear thinking, confusion of council until the emergency comes, until self-preservation strikes its jarring gong – these are the features which constitute the endless repetition of history’.
Winston Churchill.
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It wouldn’t surprise me if it was settled out of court, this often happens if the time to stand up and be counted gets closer. GH has certainly had its wings clipped on trying to win on the costs threat if they were hoping.
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Cannot see it be settled.
Both need a “Win”
OTM to stop other agents breaking a legal contract.
GH well Connells need a win as they have a conflict of interest backing OTM for next 3 years when they are with DPG.
Would also not surprise me if GH was getting financial backing from another portal which has a lot to lose / gain on the outcome.
GH have tried to smoke OTM out but their fire has been dampened …… for now …..
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Somewhere above, Mr Mealham posted, in response to ‘Smile Please’ –
“It’s time you, PeeBee and Woodentop use your real names and get your facts right.”
I have already asked Mr Mealham to show me where I have posted incorrect facts – I now await his response to that.
Not holding my breath, though. He’s not generally one of the quickest out of the blocks at responding to such posers…
In response to the first part of the comment, I will simply take the opportunity to cut’n’paste the following. Mr Mealham made the first comment in response to why posters should not be allowed to have anonymity:
“…by knowing who someone is means more can be understood about what they do, how long in the game and how they view things happening in the industry.”
to which my response was – and still is –
I disagree. Take these three scenarios:
I am a Junior Neg with an Independent Agent. I have an opinion.
I am a Regional Director with a Corporate Agent with 400 UK branches. I have an opinion.
I am a Global Director of a major professional body with over 100,000 Members. I have an opinion.
Which of these three individuals opinion would carry more weight in your opinion, Mr Mealham – and why?
Now that was posted to him on 10/4/15 – and to date I have received no response.
I don’t expect one this time either – but I’ll give him the opportunity nevertherless – me being the eternal optimist and all that…
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You will also note that he never seems to answer anyone’s questions. Sticks his head up out of the trenches, fires a shot off and then hides again when he’s not happy that people have the nerve to fire back if found wanting?
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Funnily enough and to be fair…ish… Mr Mealham did respond (in a fashion) late yesterday – but the post went the way that a few others did.
His claim of my not “getting my facts right” seems to revolve around a post from a couple of weeks ago where he says I changed the sex of one of his clients.
By that, he is referring to my post containing the following –
“We then helped he purchase her next home at £17k less than asking price.”
Oohhh – look out, Mr Pryor – you’ve got competition!
– which, if he looks carefully enough at his own post directly above it, the first sentence is a simple copy’n’paste of his words.
I added nothing; took nothing away.
Unlike Mr Mealham – who ‘grew a set’ for his client – not me!
Wonder if there’s any other examples he’d like to try his luck with?
I can’t wait.
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