David v Goliath battle in the High Court as entrepreneur from the Fens takes on the might of Sainsbury's in £5m breach of contract dispute

PUBLISHED: 16:46 18 October 2019

Businessman Bruce Smith�s Fenland based company is taking on Sainsbury�s in a �5m High Court battle in the wake of what was known locally as �supermarket-gate�. Picture: Archant/PA/PA Images

Businessman Bruce Smith�s Fenland based company is taking on Sainsbury�s in a �5m High Court battle in the wake of what was known locally as �supermarket-gate�. Picture: Archant/PA/PA Images

Archant/PA/PA Images

It has over 600 supermarkets but its failure to build one at Whittlesey has landed Sainsbury's in the High Court in a 'David v Goliath' £5 million battle with a 72-year-old entrepreneur from the Fens.

Editor John Elworthy chaired a public meeting in Whittlesey six years ago this month at which Whittlesey residents expressed their concerns, and support, for Sainsbury's coming to the town. Picture; ARCHANTEditor John Elworthy chaired a public meeting in Whittlesey six years ago this month at which Whittlesey residents expressed their concerns, and support, for Sainsbury's coming to the town. Picture; ARCHANT

It has over 600 supermarkets but its failure to build one at Whittlesey has landed Sainsbury's in the High Court in a 'David v Goliath' £5 million battle with a 72-year-old entrepreneur from the Fens.

Through his Whitacre Management development company Bruce Smith of March is preparing for a nine day High Court hearing in the wake of what was dubbed locally as #supermarketgate.

The hearing is listed to commence on October 28 and Mr Smith has spent two years getting his company's case together ready to take on the supermarket chain which has a net worth in excess of £1.3 billion.

Mr Smith's lawyers will claim that Sainsbury's "failed to use all reasonable endeavours" to deliver the promised store on the outskirts of Whittlesey, despite securing planning consent from Fenland District Council within the stipulated time frame.

Whittlesey 'supermarket-gate'. How it was dubbed during the protracted battle to deliver a Sainsbury's supermarket in Whittlesey. A High Court hearing is due to end today with 4-6 weeks for the judgement.Whittlesey 'supermarket-gate'. How it was dubbed during the protracted battle to deliver a Sainsbury's supermarket in Whittlesey. A High Court hearing is due to end today with 4-6 weeks for the judgement.

After a long protracted battle - that included a judicial review when a rival scheme championed by Tesco was in the frame- Sainsbury's twice emerged victorious.

In 2015 it finally won consent but then immediately re-applied with various changes including access and a request to use the store as a home delivery base through the night.

Many felt these were superficial objections intent on stalling their commitment - but Fenland District Council pulled out all the steps to deal with these late amendments.

They were approved just hours before a separate contract involving Whitacre Management and land owners was due to expire.

Editor John Elworthy who chaired a public meeting in Whittlesey six years ago this month at which Whittlesey residents expressed their concerns, and support, for Sainsbury's coming to the town. Picture; ARCHANTEditor John Elworthy who chaired a public meeting in Whittlesey six years ago this month at which Whittlesey residents expressed their concerns, and support, for Sainsbury's coming to the town. Picture; ARCHANT

But in January 2016, and faced with a significant shift in retail spending habits, Sainsbury's called it a day/

Chris Templeman, head of property acquisitions, revealed the Whittlesey store was no longer viable.

Mr Templeman said: "We have been carrying out a viability study and we have now gone through that piece of work.

"I can inform you we will not be progressing with plans for a new supermarket at Whittlesey."

Editor John Elworthy  chaired a public meeting in Whittlesey six years ago this month at which Whittlesey residents expressed their concerns, and support, for Sainsbury's coming to the town. Picture; ARCHANTEditor John Elworthy chaired a public meeting in Whittlesey six years ago this month at which Whittlesey residents expressed their concerns, and support, for Sainsbury's coming to the town. Picture; ARCHANT

Mr Mills said he wanted to inform Whittlesey people "at the earliest opportunity of this difficult decision".

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Mr Templeman said the context for them were the changes taking place in the grocery market that he described as "fundamental shifts".

He said there would be greater focus with their on line offering but there was no prospect of a store being built in the town.

FLASHBACK from five years ago. The site of the country park near Whittlesey in connection with the Sainsbury's development. L-R farmer and chairman of the Friends of Whittlesey Country Park, Martin Whitwell, editor of the Cambs Times, John Elworthy, account executive of PPS Group, Jodi Smith and developer Bruce Smith.FLASHBACK from five years ago. The site of the country park near Whittlesey in connection with the Sainsbury's development. L-R farmer and chairman of the Friends of Whittlesey Country Park, Martin Whitwell, editor of the Cambs Times, John Elworthy, account executive of PPS Group, Jodi Smith and developer Bruce Smith.

The company had looked at many factors including long term housing growth in the town but the conclusion remained "it is still unviable in the long term."

Mr Mills described it as a "really tough decision". He praised people locally for their support for Sainsbury's.

"Clearly this support was important to us and this has made the decision even more difficult," he said.

A later statement issued by the store said: "We have not taken this decision lightly and are very disappointed we are not able to open a new store in Whittlesey

"Since the proposals were first announced, shopping patterns have changed considerably and following a review, the scheme is no longer viable for us.

"We have been extremely grateful for the strong level of local support for the scheme and recognise that this news will be very disappointing to many people.

"In the meantime we will continue to focus support on our existing stores that are extremely popular with our customers."

However such sentiment will be brushed aside as the High Court decides if Sainsbury's were contractually obliged to complete the deal.

Mr Smith's legal advisers believe they will be able to show that his company did indeed line all the ducks in a row and that Sainsbury's were obliged to stump up what they had agreed.

The £5 million claim against Sainsbury's - if successful - could also involve payment of costs. And these could be substantial.

Mr Smith has declined to be interviewed ahead of the pending trial but the reasons for him pursuing the case - and not perhaps trying for an out of court settlement - can be gleaned from a statement he made three years ago.

"This has never been about me and the vagaries of commercial life," he said. "It has been about letting people down who supported me for many years and trusted me to deliver both the supermarket and a country park.

"I had to pursue the case for that reason - I could not walk away."

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