Case No: A3/2011/0526(Z)
Neutral Citation Number: [2011] EWCA Civ 1555
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(CHANCERY DIVISION)
(HIS HONOUR JUDGE RAYNOR QC)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 21 September 2011

Before:

MR JUSTICE LEWISON

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Between:

	HORLER	
Appellant	
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RUBIN & ORS 

Respondent	
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(DAR Transcript of 
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Mr Robert Hantusch (instructed by Berrymans Lace Mawer) appeared on behalf of the Appellant.

Mr Timothy Becker (instructed directly by the Respondent) appeared on behalf of the Respondent.

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Judgment
As Approved by the Court
Crown copyright©

Mr Justice Lewison:

1.	Mr Hantusch renews an application for permission to appeal on behalf of the defendants against a judgment of HHJ Raynor QC sitting as a judge of the High Court.  Patten LJ gave permission to appeal on one ground, labelled the Carl Zeiss point, but refused permission to appeal on other grounds.  

2.	The essential issue at trial was whether Mr Rubin had acted unconscionably in dealing with certain assets which, according to the judge’s findings, belonged to a partnership rather than to the individual partner, whose trustee in bankruptcy Mr Rubin was.  

3.	The first of the additional grounds of appeal for which Patten LJ refused permission was that a Mr Hogg, who had been appointed as Mr Horler’s proxy at certain meetings, had voted in favour of the application of proceeds in the way Mr Rubin applied them.  The judge said that Mr Horler had not given Mr Hogg instructions to vote in favour of the resolutions and in effect, as I read it, had decided that Mr Hogg did not have authority to act in the way that he did.  Mr Hantusch points to Rule 8.1(5) of the Insolvency Rules which requires the proxy to vote either as directed or in accordance with his own discretion.  In my judgment there is a real prospect of persuading this Court that HHJ Raynor was too restrictive in his view of what amounted to authority for the purposes of the vote.  I will therefore give permission to appeal on that ground.

4.	The next ground relates to a report prepared by Mr Henry Lam, an accountant.  That report came to the conclusion that there was in fact no partnership and Mr Rubin relied on that report.  The judge held that it was not reasonable for Mr Rubin to rely upon that report for four reasons which are set out in paragraph 162(4) of his judgment: first, it was not the report of a lawyer on what was a mixed question of law and fact; second, Mr Lam over-emphasised the formality that was required to be proved and, based on his appreciation of the necessary documents that would be required to substantiate a formal partnership, he reached what the judge described as a “blatantly flawed” conclusion.  Mr Hantusch submits that if the report is fairly read Mr Lam’s conclusion was not based upon the lack of formal documents or at least not solely on that lack. It was based upon an appreciation that Mr Horler had neither exposed himself to losses nor had contributed financially to the activities of the so-called partnership.  

5.	The key point, Mr Hantusch says, when one reads the Lam report more fully, is that there is no evidence of a sharing of risks or profit.  In addition the question is not whether Mr Lam was right or wrong in his overall conclusion. The question is whether it was reasonable for Mr Rubin to rely upon that report.  Contrary to my initial impression when I read the papers, Mr Hantusch has persuaded me that this ground has a real prospect of success and I grant permission to appeal on that ground also.

6.	The third point criticises the judge for not having taken account of what are described as significant facts.  Mr Hantusch accepts that this is a purely factual point.  The judge evaluated the facts in a long and careful judgment and I am not persuaded that there is any real prospect that this Court will interfere with his appreciation of what are alleged to be these significant facts.  I refuse permission to appeal on that ground.

7.	The last ground relates to the judge’s refusal to allow further allowances to Mr Rubin to be made on the taking of an account.  The judge referred to the fact in paragraph 153(11) of his judgment that Mr Rubin had already received just over £200,000 by way of remuneration.  He continued:

“…the obtaining of further Jamestown proceeds thereafter cannot have involved Mr Rubin in any significant cost.  Mr Rubin has asserted that ‘everything we did to raise money and pay dividends for the Millar bankruptcy would have been duplicated had I been instructed to wind up the partnership’ … but the fact is that he was not so instructed and he has not demonstrated to me that it is just that he should receive any further sum out of non-estate assets than that sanctioned by the Claimant in September 2000.”

8.	This is not therefore a case in which the judge has refused to make any allowances; it is a case in which the judge has considered that the remuneration thus far allowed was enough and that no further significant costs were incurred, and that Mr Rubin had not demonstrated that it was just that he should receive any further sum out of non-estate assets.  

9.	This is a plain case of a multi-factorial value judgment.  I do not consider that there are compelling reasons why this Court should interfere.  I do not therefore consider that this ground of appeal has a real prospect of success and I refuse permission to appeal on that ground.  

10.	The upshot is, therefore, that I grant permission to appeal on the question of the authority of Mr Hogg as proxy and on the correct evaluation of Mr Lam’s report, but otherwise I refuse permission.

Order:  Allowed in part.