Agents’ Mutual and Gascoigne Halman have locked horns in court yet again, this morning arguing over whether the original and remaining High Court contract dispute case on the non-competition issues can be resumed in parallel with a process where Gascoigne Halman might seek to appeal the Competition Appeal Tribunal (CAT) judgment.

The hearing was told that the case was of critical interest, with Property Industry Eye being cited.

The CAT ruled last week that Agents’ Mutual’s one other portal rule for the OntheMarket (OTM) portal was not anti-competitive and was set to decide on costs and progress of the wider high court case – looking at whether Gascoigne Halman was in breach of contract with OTM – during a case management hearing today.

When Gascoigne Halman signed up to Agents’ Mutual in January 2014, it was an independent. Within its contractual commitment as a founder Gold member, it agreed to list on the portal of Agents’ Mutual when it went live and on a maximum of one other portal (the ‘one other portal’ rule’). Gascoigne Halman duly listed its properties at OnTheMarket.com from launch in January 2015 and specified Rightmove as its other portal.

Today’s hearing started with the Honourable Mr Justice Marcus Smith questioning whether Gascoigne Halman would be best advised in the event of a possible appeal against the CAT judgment to pursue such an appeal application now or ‘in tandem’ or as ‘a combined appeal’ after the non competition issue proceedings in the Chancery Division of the High Court

He said: “(The competition tribunal) ruling determines certain issues but isn’t actually determinative of any part of the dispute within the parties.

“It seems sensible any appeal of the tribunal’s decision ought to be in tandem with any judgement in the Chancery Division.

“I would be minded to extend time to appeal the tribunal decision until the expiry of date of appealing the Chancery Division decision.”

Responding, QC Paul Harris said this was not consistent with the agreement when, by an order of Sir Kenneth Parker dated 5 July 2016, the competition issues were transferred to the CAT”.

The hearing was adjourned for 15 minutes, and he came back to say that his client, Gascoigne Halman,  will still be seeking permission to appeal within the normal time, adding that the stay should remain while the competition issue is resolved.

Alan Maclean, for Agents’ Mutual, described this as absurd, before both parties began arguments as to whether the stay should be lifted.

He said: “Why should my client, having already established the breach of contract, why should their claim have to wait while the other party has lost, when there is only a small chance the appeal would be successful, in such a way as to mean the Chancery Division part did not take place?

“It is not in the interest of justice to delay that part of the case.”

Responding, Mr Harris said: “There was a substantial logic to the stay order. The logic was that were the competition issues to succeed, there would be no need for the contract issues as the contract would be void.

“That logic remains in place as we stand here today. It may be in weeks and months that it dissipates if I am denied permission to appeal wherever I seek it. But not today as the logic remains the same.”

He said both parties agreed to the stay and a consent order, so their logic was you need complete determination of competition issues first.

Mr Maclean said: “The consent order doesn’t say what Mr Harris says. It is just saying the finding of facts has been split in two.

“Your honour will know by reading publications such as Property Industry Eye that these proceedings are of critical interest.

“It is important the issues get resolved – only part of that has happened.

“It is unfair for my client that the rest of the issue isn’t satisfied.

“It is of importance to the industry generally. A claimant is entitled to the case being determined in reasonable time. The appeal doesn’t directly impact on the Chancery Division.”

The hearing continues.