England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM BIRMINGHAM COUNTY COURT
(Mr Recorder Mansfield QC)

		The Royal Courts of Justice The Strand London Wednesday 16 April 2002

Tuesday 16 April 2002

1. LORD JUSTICE KAY: This is an application for permission to appeal from a decision of Mr Recorder Guy Mansfield QC, given on 11 December 2001 and subsequently amended by an order of 29 January 2002 in the Birmingham County Court. The only matter in issue is the recorder's ruling on a preliminary issue.
2. The dispute concerns the outstanding payment of fees for work done by the claimant, Head Mann Associates Ltd, in connection with an application for a planning inquiry. The defendant, Mr Goode, is a farmer who had also formed a company, Shirley Estates Ltd, with which he intended to develop land. At the time in question, he had a project which he was anxious to push forward in relation to a motorway services area. He therefore sought professional advice and amongst those who came to be in the team to assist him in relation to his project was Head Mann Associates Ltd. In due course that firm did work for him. There is an issue between the parties, which has not been resolved, as to the quality of the work that it did and also the basis upon which it did its work.
3. The preliminary issue that fell to be decided, and was decided, by the recorder, was whether it was right (as asserted in the claim) that the defendant had contracted personally with the claimant for work to be done and services to be supplied; or whether, as he contended throughout, he entered into any contract and any obligation not in a personal capacity but in his capacity as director of the company, Shirley Estates Ltd. That was the issue to be resolved.
4. In order to resolve that issue the recorder heard quite lengthy oral evidence. He heard from Mr Head, who was the person principally involved on behalf of the claimant, and he also heard from another director of that company. He heard evidence from Mr Goode and evidence from witnesses called by Mr Goode. There is no doubt that there was a substantial factual difference between the evidence put forward on the two sides and it fell to the recorder to resolve that.
5. As I have endeavoured to make clear to Mr Goode during the course of his address to the court, this court's role in relation to such matters is a very limited one. Since this court cannot hear the evidence -- that is for the judge at first instance -- this court's role in limited in the first place to deciding whether the decisions arrived at by the recorder were ones to which a judge could reasonably come; and it would only be if the conclusions were so outside the range of possible responses to the available evidence that this court could even think in terms of intervening.
6. It is necessary, therefore, to look to see the way in which the judge approached the matter in his judgment. What he did was, firstly, to go through each of the witnesses, to explain his reactions to the evidence that they had given, and then to relate all that evidence to the various documents that had been produced during the course of the case, many of which had been put to witnesses on the other side in cross-examination. I have to say, having read his judgment, that I view it as a very careful, very well-reasoned judgment in which the recorder carefully assessed all the evidence available to him. I can see no prospect at all of the Court of Appeal being persuaded that it would be entitled to intervene and substitute in some way its own view of the facts for the findings of the judge in his judgment.
7. That makes the position of the applicant very difficult indeed. He has sought to take me to a number of documents to suggest that the documents make the position perfectly clear. None of the documents, however, in my judgment could be said in any way to invalidate the conclusions reached by the recorder, who had heard the witnesses and heard their explanations for the evidence and for what appeared in the various documents.
8. This was essentially a question of fact for the judge to decide. There was little legal argument that would follow on his conclusions of fact and, indeed, nothing in the grounds contests the legal conclusions reached as a result of his findings of fact. The grounds themselves complain of the reliance placed on various letters exchanged in the course of the dealings between the two parties. It suggests that the judge viewed some of them as binding when they were not. I do not accept that he found them to be binding. He found them to be a reflection of what was happening between the parties at the time, from which it was possible for him to reach conclusions as to the understanding of the claimant as to which party it was dealing with.
9. A further complaint is made in the grounds that the judge did not take into account that what was being contracted for was clearly something outside the remit of a farmer. It clearly was outside the remit of a farmer. That did not mean that in dealing with matters the defendant was necessarily dealing through a limited company. The judge considered those matters and I find no fault there.
10. There is a complaint made that the judge did not take into account that the other members of the team, apart from the claimant, had not complained. However, it is right -- and the defendant has confirmed it in the course of argument -- that they had all been paid and therefore they would have no issue to raise. In any event, what mattered was not what they understood the position to be, but whether the defendant had made it clear to the claimant that, in negotiating with it and asking it to do various things, he was doing so on behalf of the limited company (which was at the time a dormant limited company); or whether in fact he simply gave the impression, by not disclosing those matters, that he was dealing with the matter on a personal basis.
11. It is argued in the grounds that there was no account taken of the different work contracted for. I have looked at that point as best I can understand it. I am perfectly satisfied that the judge did have regard to all the proper matters and took everything into account in the judgment, which I have already described as a very careful one.
12. Finally it is said that the judge did not take into account how a managing director acts in running a company. That is a complaint that simply does not hold water at all. There is no doubt that the judge was perfectly aware what the problems were in relation to this matter. He took them all into account. The question was, having a dormant company which at the time had no assets, with which the claimant made clear it would not have contracted without funding being secured, was it right that the defendant had made clear that he was acting in the capacity of the managing director of that company at that time? That was the issue of fact, which was resolved against the defendant.
13. Having considered this matter with the utmost care, I have no doubt at all that there is no prospect of an appeal succeeding. To allow this matter to proceed to appeal would have only one consequence. It would do the applicant no favour to do that because inevitably he would lose at the end of the day, and it would increase the costs bill so far as he is concerned. But in any event my role is only to allow a matter to proceed if there is some realistic prospect that the appeal will succeed. There is none and therefore, as much as I am sad to disappoint Mr Goode, whose genuineness in this matter has never been in issue, I can do nothing but refuse this application.
ORDER: Application refused