England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE THORNTON QC
HQ10X02365

		Royal Courts of Justice Strand, London, WC2A 2LL
		27th March 2013

Sir Alan Ward:

Introduction

1. This judgment will make depressing reading. It concerns a dispute between two intelligent and not unsuccessful businessmen who, after years of successful collaboration, have fallen out with each other and this and other litigation has ensued with a vengeance. Being without or having run out of funds to pay for legal representation, they have become resolute litigators and they litigated in person. Some unlucky judge had to cope with the problems that inevitably arise in the management of a case like this. Here the short straw was drawn by His Honour Judge Anthony Thornton QC. He struggled manfully, patiently, politely, carefully and conscientiously. Many may not have done so. It is, therefore, hugely unfortunate that the appeal is launched essentially on the ground that the judge allowed himself to become distracted and so wrongly conducted the trial on the written information he had without allowing the defendants to call live evidence. The appeal is based upon that alleged procedural impropriety.
2. What I find so depressing is that the case highlights the difficulties increasingly encountered by the judiciary at all levels when dealing with litigants in person. Two problems in particular are revealed. The first is how to bring order to the chaos which litigants in person invariably – and wholly understandably – manage to create in putting forward their claims and defences. Judges should not have to micro-manage cases, coaxing and cajoling the parties to focus on the issues that need to be resolved. Judge Thornton did a brilliant job in that regard yet, as this case shows, that can be disproportionately time-consuming. It may be saving the Legal Services Commission which no longer offers legal aid for this kind of litigation but saving expenditure in one public department in this instance simply increases it in the courts. The expense of three judges of the Court of Appeal dealing with this kind of appeal is enormous. The consequences by way of delay of other appeals which need to be heard are unquantifiable. The appeal would certainly never have occurred if the litigants had been represented. With more and more self-represented litigants, this problem is not going to go away. We may have to accept that we live in austere times, but as I come to the end of eighteen years service in this court, I shall not refrain from expressing my conviction that justice will be ill served indeed by this emasculation of legal aid.
3. My second concern is that the case shows it is not possible to shift intransigent parties off the trial track onto the parallel track of mediation. Both tracks are intended to meet the modern day demands of civil justice. The raison d'être (or do I simply mean excuse?) of the Ministry of Justice for withdrawing legal aid from swathes of litigation is that mediation is a proper alternative which should be tried and exhausted before finally resorting to a trial of the issues. I heartily agree with the aspiration and there are many judgments of mine saying so. But the rationale remains a pious hope when parties are unwilling even to try mediation. Judge Thornton attempted valiantly and persistently, time after time, to persuade these parties to put themselves in the hands of a skilled mediator, but they refused. What, if anything, can be done about that? You may be able to drag the horse (a mule offers a better metaphor) to water, but you cannot force the wretched animal to drink if it stubbornly resists. I suppose you can make it run around the litigation course so vigorously that in a muck sweat it will find the mediation trough more friendly and desirable. But none of that provides the real answer. Perhaps, therefore, it is time to review the rule in Halsey v Milton Keynes General NMS Trust [2004] EWCA Civ 576, [2004] 1 WLR 3002, for which I am partly responsible, where at [9] in the judgment of the Court (Laws and Dyson LJJ and myself), Dyson LJ said:

"It seems to us that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court."

Was this observation obiter? Some have argued that it was. Was it wrong for us to have been persuaded by the silky eloquence of the éminence grise for the ECHR, Lord Lester of Herne Hill QC, to place reliance on Deweer v Belgium (1980) 2 EHRR 439? See some extra-judicial observations of Sir Anthony Clarke, The Future of Civil Mediations, (2008) 74 Arbitration 4 which suggests that we were wrong. Does CPR 26.4(2)(b) allow the court of its own initiative at any time, not just at the time of allocation, to direct a stay for mediation to be attempted, with the warning of the costs consequences, which Halsey did spell out and which should be rigorously applied, for unreasonably refusing to agree to ADR? Is a stay really "an unacceptable obstruction" to the parties right of access to the court if they have to wait a while before being allowed across the court's threshold? Perhaps some bold judge will accede to an invitation to rule on these questions so that the court can have another look at Halsey in the light of the past 10 years of developments in this field.

The background

4. After that introduction let me sketch the background to this appeal. The claimant, Mr Colin Wright, (the judge sometimes referred to him as "MW", rather than "CW") had worked for Rank Xerox and gained good experience of that market. In 1972 he formed the first defendant company, Michael Wright (Supplies) Ltd (MWS) in order to supply Xerox materials to the commercial and business operators. In about 1972, he employed Mr Nigel Turner as a delivery driver but in time promoted him and forged a firm friendly relationship with him. Thirty years later Mr Wright was ready to relax the reigns of control and to sell MWS to Mr Turner. At that time Mr Wright estimated that the company had an annual gross profit in excess of £1 million per annum. He, Mr Wright, owned the entire share capital and the value of the company was thought to be nearer £2 million than £1 million. However, Mr Turner did not have the resources for an immediate buy-out and the two men alighted on a method of selling the company in a way that enabled the purchase price to be paid to Mr Wright over a number of years out of the on-going profits expected to be earned by the company. Although Mr Wright was ceasing to own the company, he would continue to be actively involved in its management acting as a consultant. This would provide valuable continuity for the company, would enable Mr Turner to master the necessary management skills and would enable Mr Wright to maximise his prospect of being paid in full since he would continue to have an active role as consultant and manager of the business. The structure created to achieve that purpose involved the incorporation of a new company, the second defendant, Turner Wright Investments Ltd (TWI). TWI would purchase all the MWS shares from Mr Wright and then Mr Wright would own one half of the shares in the new company and Mr Turner the other half. Although there was some dispute about it, the judge appears to have accepted that the sale price was £1,775,000. He recited the terms of the share sale agreement to have provided as follows:

"Whereas:

(a) CW is the holder of £50,000 shares in MWS

(b) CW has agreed to sell the shares to TWI (TWI) for the price and in the manner hereinafter appearing.

(1) CW will sell and TWI will purchase the shares at a price being £35.50 per share (the total price hereinafter called "the share price").

(2) TWI will pay the share price by way of equal instalments (or such other payments as may be agreed between the parties of £ … [the original document referred to by the judge did not have any figure filled in after the £ sign].

…

(4) Payment of the total share price will be over such period as may be agreed between the parties being not more than 5 years from the date of this agreement.

(5) Payments of the total share price are to be made monthly on the 28th of each month and in the event of TWC failing for any reason to pay any of the said payments within 14 days of the said 28th of each month then CW will have the option to terminate this agreement by giving not less than 1 month's notice in writing to TWC.

(6) In the event of the agreement being terminated by CW then CW shall be entitled to return the shares from TWC and TWC will sign appropriate transfer forms."

5. Two different copies of the sale agreements in the appellant's bundle placed before us confirm the price being £35.50 per share but clause 2 provides that the share price be paid by way of equal monthly payments (or such other payments as may be agreed between the parties) of £21,750. If there were 60 payments this price would be £1,305,000. A further payment of £447,000 (or should it be £445,000?) was apparently to be paid in advance but there is no written mention of that sum. The second agreement is in identical terms save that an extra clause was added that "CW's shares to be passed to Nigel Turner on completion of payments". Both of these agreements have been signed but on different dates and before different witnesses. One sees signs of confusion being sown from the very beginning.
6. The intention seems to have been that the consideration for the share purchase would be paid entirely out of the profits earned by MWS which would then be used to pay dividends to TWI which in turn would pay sufficient of that dividend income as was needed to pay Mr Wright dividends on his shares and the additional amount would cover the outstanding instalments due from TWI to Mr Wright. It was accepted that each payment and the instalment periods would be adjusted by agreement to suit the dividends being received from MWS and that the entire consideration, including the initial payment of £447,000, would be paid by TWI out of the dividends it received from MWS.
7. Mr Wright resigned as a director of MWS and Mr Turner became the sole director of TWI. Mr Wright and Mr Turner entered into a shareholders' agreement under which Mr Turner undertook to ensure that TWI would pay Mr Wright the money that was due to him under the share sale agreement out of the dividend payments TWI received from MWS. To complicate matters, Mr Wright had outstanding director's loans from MWS of £227,654.50. Although no consultancy agreement was entered into, from September 2002 to July 2009 he worked almost full time as a consultant and only ceased to do so when his services were abruptly terminated by Mr Turner and MWS by a letter sent by MWS's solicitors on Mr Turner's instructions.
8. CW alleges that TWI had sold off MW's assets and its business as a going concern to a connected third party, in which NT had a stake and a value, indeed for nominal consideration, so as to frustrate CW's primary claims. He also claimed that he had not been fully paid for his shares and was therefore entitled to the return of the shares from TWI. CW therefore wished to use his regained control of MWS were it to be restored to him to sue the beneficiaries of this sale at an alleged undervalue. The primary defence of MWS was that CW had been paid in full for his shares and that he was not entitled to any fees for alleged consultancy work. There was no sale of the business at an undervalue and in any event (in view of the defence above) the matter was of no legitimate concern to CW.
9. As the judge said:

"17. Thus, from the outset, there emerged a somewhat tangled accounting picture which involved MW's ongoing director's loan account which he would have to repay, the payment to him of consultancy fees by MWS, the payment by MWS to TWI of dividends and the payment of dividends and instalments of the share sale consideration by TWI to MW. This accounting structure became even more tangled when, as occurred on several occasions, MW loaned MWS substantial sums to assist it in short-term cash flow difficulties and MWS repaid those loans and also made occasional payments, by way of loans, to MW. On one occasion, MW's then wife also made a substantial loan to MWS."

10. Some help was available to escape the tangled web. MWS's accountant for many years from the mid-nineties until 2007 was Mr Steven Pritchard of Menzies LLP. He also acted for TWI from its formation in 2002 until 2007. For the tax year ending 31st March 2004, he was replaced by a different firm but resumed acting the following year. He continued to act for TWI but stopped acting for MWS after the completion of the accounts to 31st March 2007. The accounts for MWS for the years up to 31st March 2005 were audited.
11. The judge observed:

"19. Mr Pritchard had to prepare annual accounts for both companies for 2002 onwards in conjunction with preparing their tax returns. He submitted a detailed witness statement which has been invaluable to an understanding of what would otherwise have been an impenetrable series of accounts. The accounts that he prepared have formed the basis of MW's claim for the alleged unpaid portion of this share sale consideration owed to him by TWI for the alleged unpaid consultancy fees owed to him by MWS and for the rival contentions that the entire consideration had been paid and no consultancy fees were ever due and none in consequence remained outstanding."

12. The importance of his evidence can be seen from his witness statement in which he said:

"Each year, once the draft accounts had been completed, I would have a meeting with [Mr Turner] and Mr Wright to talk them through the draft figures, question them about queries that had arisen, and to do what I could to help them understand the figures that they would be asked to approve. As part of this process each year, the movement in funds to and from Mr Wright were discussed. In some years, Mr Wright had been paid more than the available dividend and he was asked to repay [to MWS] the excess. Accordingly, identifying and agreeing these movements was always of importance in our meetings."

It is, therefore, obvious that he was a vital witness to resolving the several issues which the judge was able to identify.

The judge's conclusions

13. Without going into detail, the judge made these findings. On the first issue he needed to decide, the consideration for MWS, he concluded that the share price was £35.50 per share for 50,000 shares, a total price, therefore, of £1,775,000.
14. On issue 2, whether TWI had made full payment of that consideration to CW, he said at[17] that "There emerged a somewhat tangled accounting picture", an observation with which I would agree. Having analysed Mr Pritchard's evidence he concluded that at least £87,515 of the debt remained unpaid and, since it was demanded in writing by, at the latest, the service of this claim on TWI, the obligation to return all of MWS's shares held by TWI to CW had crystallised.
15. As for consultancy fees, he concluded that CW was clearly engaged to provide consultancy management services for MWS, that his attending at the premises was not gratuitous; that he had been paid for his services up to the end of the tax year 2003/2004, had received further payments in the tax years 2004/2005 and 2005/2006 but it was not possible to identify how much was paid for consultancy services. He did not receive any payments after 1st April 2006 and the judge awarded him £100,000 as clearly representing the lowest possible sum that he would have been awarded had there been detailed evidence of his attendance dates and hours and working schedule over the entire four year period.
16. In the light of those conclusions he held that CW was entitled to:

"(1) An order requiring NT and TWI jointly and severally to take all necessary steps to transfer to CW all of MWS's issued shares that are all currently registered in TWI's name;

(2) An order requiring NT and MWS jointly and severally to take all necessary steps to enable MWS to re-register all of its issued shares in the name of CW;

(3) A declaration that CW is and is entitled to be the registered shareholder of all the issued shares in MWS with effect from the date of this judgment;

(4) Judgment for MWS in the sum of £87,515;

(5) An order dismissing MWS and TWI's counterclaims against CW;

(6) The costs of the consolidated action to be the subject of detailed assessment if not agreed."

It is against that order made by Judge Anthony Thornton QC sitting in the High Court of Justice Queen's Bench Division on 10th February 2012 that this appeal is brought.

The allegation of procedural irregularity

17. The appellants were able to secure some representation for the appeal and we are grateful to Mr Clive Wolman for his assistance. He has various challenges to the factual findings made by the judge but if the procedural challenge is well-founded, then it would be wrong to condescend into the detail of the merits.
18. The proceedings began in the Guildford County Court when CW claimed some £78,000 from MWS and TWI for the repayment of loans. In February 2010 he issued a further claim in the Aldershot County Court for outstanding consultancy fees and monies unpaid under the share sale agreement. These proceedings were consolidated and transferred to the High Court to be heard by a Master of the High Court. They were assigned to the list of the unfortunate Judge Anthony Thornton QC. The trial was listed to start on 12th May 2011 and the judge was presented with two separate files which were intended to summarise the items that were in dispute. The judge understandably took time to endeavour to clarify precisely what was in dispute and there followed a discussion between him, Mr Colin Wright and Mr Turner and Ms Toni Palmer who had acted as a financial consultant to the second defendant. At p. 15 of the transcript of that hearing she referred to the schedule prepared by Mr Steven Prichard the accountant and she said:

"We are relying on Menzies' schedules that we have prepared that Mr Wright checked to say that actually there was the payment and that payment out to him for £6,000 was correct."

Mr Wright took issue with matters in that report. At p. 32 Mr Turner again stated that he was relying on the schedules that were produced by Menzies and in answer to the judge he confirmed that he stood by every single payment recorded in the schedule that showed that he was not liable "for one penny extra". The discussion continued but by the time of the luncheon adjournment the judge was inviting the parties to consider whether they could complete the hearing allowing one hour for each side that afternoon. Mr Turner preferred to have an adjournment to have more time to prepare the documents and to look at the documents submitted by the claimant. He indicated that he was in favour of mediation but the judge observed:

"Mr Wright, rather, is opposed to mediation. It is not something I can force on the parties."

(It is, however, only fair to Mr Wright to record another of the judge's comments about mediation, "Both of you are putting up insuperable obstacles to mediation.") The upshot was that the judge informed the parties that once they had set out their cases in writing he would "direct that you return for a procedural hearing which would enable me to determine whether I feel there should be a further hearing for evidence and if not I would then decide the case on the basis of the written documents." An order was drawn up to that effect and the parties were directed to serve schedules dealing with the disputed matters item by item. The judge's parting words were his urging the parties at least to attempt ADR.

19. Those schedules must have been filed and there followed an exchange of emails between the judge's clerk and the parties in which the parties were informed that the judge had indicated he would give judgment on 27th June although that date was put back and eventually the parties were told that a draft judgment would be sent to them on Monday 8th August, the judge inviting a list of corrections so that "the final judgment" could be handed down on Monday 15th August.
20. A draft judgment was duly circulated. At its beginning the judge wrote:

"I set out below the terms of the issues that I am minded to decide and the terms of the answers to those issues I am minded to give. However, the defendants are to consider whether they wish to apply for an oral hearing for any of these issues since they have not been the subject of any oral hearing and the defendants have not served any written submissions in relation to those issues."

In the body of the judgment he said at [7]:

"The parties produced a consolidated schedule and a bundle of cross-referenced documents and at the adjourned hearing at the request of the parties, I agreed to dispense with the trial and to determine the claims and counterclaims on the documents that had been lodged."

21. I regret that I cannot find in the transcript of the hearing on 12th May any agreement by the parties to dispense with the trial and to determine matters on the documents that had been lodged: indeed the order drawn that day adjourned the hearing to 7th June (and that date was subsequently adjourned by the judge) for consideration of whether the court "can give judgment without calling any further oral or written evidence or further hearing and, if not, to give directions for any further hearing."
22. When the case was called on 15th August Mr Wright indicated that he was content with the draft judgment but Mr Turner sought clarification and the judge replied on p. 3,

"Well, at the moment, it is not a judgment, it is only a draft. It is what I am minded to publicise, but I am mindful of the fact that several of the issues have not featured very prominently in the trial to date, and so you have the opportunity, if you want, of applying to me for permission to make further submissions, whether they be in writing or orally, on the issues raised."

Mr Turner responded at p. 5:

"Yes, Sir, I think we do need an oral hearing.

[Judge Thornton]: And would you want to adduce further evidence at this hearing?

Mr Turner: I think if we are to make an oral submission to you sir, we would ask that any further evidence we adduce to enable us to make that argument, we would ask to produce it.

[Judge Thornton]: So, you are wanting to re-open the trial?"

There followed a great deal of discussion about accountancy evidence and in particular about the evidence Mr Pritchard could give. Mr Turner was making it plain that he relied "heavily" on the document from Menzies within the file. There was discussion about the help that Mr Pritchard could give on all these disputed areas.

23. That hearing concluded with the case being adjourned generally and the judge ordering the parties to inform the court "what they wished the court to do with the action and, in particular, whether they wish a judgment on the issues and items in the schedule and, if so, which items, and as to whether they want an oral hearing or are content for the matters they wish to be resolved to be determined on the basis of the existing documents and submissions before the court. Costs were reserved. It is plain that there was at that stage no agreement forthcoming from Mr Turner to dispense with on oral hearing at which Mr Pritchard would give evidence.
24. It appears that Mr Wright queried the costs order the judge had made and so the judge directed on 16th September 2011 by email that a further directions hearing should be held whose purpose would be to give directions to enable the early conclusion of the matter. He also ordered that:

"Mr Turner should also provide all evidence now available and any witness statement (i.e. any further evidence in addition to that provided) to show that Mr Wright agreed to treat a payment made for consultancy services as being a payment towards the share sale agreement debt. It is, to say the least, surprising, that he should have agreed this and the only evidence to support this is said to be the minutes (not yet disclosed) of a meeting between him and the accountant. Clearly the direct evidence in a written statement of the accountant (with an explanation as to why this was agreed by Mr Wright) is the best evidence but any further evidence should be provided."

That further hearing was fixed for 30th September 2011.

25. On 30th September 2011 Miss Palmer who was then speaking for the defendants answered the judge's request for an explanation of the documents that had been presented to him. She referred to Mr Pritchard's statement and took the judge through parts of it. At p. 16 she told the judge:

"Well, that's why we've requested an oral hearing, because we'd like Mr Steven Pritchard to come in as a witness. That's why we requested it. We'd like him to come in and explain it properly."

26. Judge Thornton appears to have recognised the difficulties for he said at p.24:

"The only practical problem is that the parties still, I am afraid, seem to have a rather more tortured way of looking at documents than judges have and, despite the great mass of documentation, I find it virtually impossible to thread my way through it without explanation. Look at the difficulty I was having trying to work out what the position was with these consultancy payments."

The judge was beginning to appreciate the difficulty in sifting through the shifting sands of the dispute and so at p. 26 he said:

"But I do feel that in order for me to fully understand the parties' cases through this myriad of documents, that I do need a short hearing at which the parties, and in particular this accountant, if the defendants wish him to do so, to come and talk their way through it. I would envisage a hearing of half a day to allow for each side. Because at the moment I do not feel able to reach a conclusion only by going through the documents. So what I am minded to do is to order that this should be, again, adjourned, this time for the last time, for a day's hearing at which Mr Pritchard should be called to present himself for cross-examination by Mr Wright …"

One can readily understand why the judge needed help. However, Mr Wright objected and requested that Mr Pritchard was not involved, believing that the documents already presented to the court would indicate his situation. The judge then seemed to indicate he did not necessarily require a hearing. Mr Turner at p. 27 repeated his request that Mr Pritchard should attend. The judge gave a short judgment.

27. In that judgment he said at [3]:

"I have now directed that there will be one further opportunity for each side to submit a document by way of explanation. This is not an evidence document. It is a written submission which enables them to draw together in whatever way they think appropriate all the strands needed to explain their case as follows:

(1) Whether the parties have agreed (and the court has ordered) that all remaining payment disputes between the two companies and Mr Wright (and vice versa) are to be treated as having been set out in the collective schedule that has now been served and

(2) To explain as simply as possible why the mass of material now before the court in all the trial bundles, summary bundles, schedules and comments show item by item why that item is not due. Those submissions (which should not be supplemented by any further documents but which) must be served no later than Friday 21st October 2011. … The court will issue a direction that the material will be served as set out in this judgment and I will then endeavour to deliver judgment within a further 14 days."

28. That judgment was duly handed down on 10th February 2012. It is the judgment under appeal. He said at [6]:

"The parties produced a consolidated schedule and a bundle of cross-reference documents and at the adjourned hearing, at the request of the parties, I agreed to dispense with a trial and to determine the claims and counter-claims on the documents that had been lodged."

It is apparent from that judgment, which is the judgment on the merits of the various issues he needed to decide, that the judge relied heavily upon the detailed witness statement produced by Mr Pritchard which had been "invaluable to an understanding of what would otherwise have been an impenetrable series of accounts." It is pertinent to recite the concluding paragraph of that witness statement:

"In summary I am satisfied that the schedule exhibited at SP- p. 1 is an accurate account of the payments made to Mr Wright after taking into account the loans made by him to the company and that therefore he has been paid in full for his shares in Michael Wright (Supplies) Ltd."

That is not what the judge found. Without going into detail of the various items, it is plain that the judge did not accept the totality of Mr Pritchard's evidence and found, contrary to his explanations, that money was in fact still unpaid.

29. Therein lies the unfortunate unfairness of the way this case was conducted. Mr Turner made plain that he wanted to call Mr Pritchard. He did not agree to a trial on the documents only. The judge made findings against the evidence Mr Turner wished to call. It was invaluable evidence for the judge to consider and was obviously and clearly highly relevant. It should not have been excluded.
30. The result is that in my judgment this appeal has to be allowed however unfortunate I find that to be. It is tragic for the parties concerned because of the waste of costs thus far incurred. It is unfortunate for the judge who strove hard to manage the case to keep it within proportionate bounds. But a cardinal feature of our civil procedure is that a trial is conducted on oral evidence where matters are in dispute and the judge ought, therefore, to have acceded to the request to hear the witnesses that the defendant wished to call.

Conclusion

31. In the result the appeal must be allowed and the matter remitted for re-hearing. Judge Thornton will, I am sure, not take it amiss if I add that it would be preferable that the matter be heard by another judge. I repeat, as I began the judgment, that the parties would be most ill-advised not to seek mediation of not only this dispute but the Chancery action which is due to be heard in October. This litigation arises out of a breakdown of trust and friendship. That is always tinged with recrimination, bitterness, and a sense of betrayal. I very much doubt whether there is any money left in the pot to make it worth fighting over. Mediation is the obvious way in which to explore these matters and allow the parties to move on before they cripple themselves with more debt. If they wish to avail of this Court's mediation service, they only have to ask for it.

Mr Justice David Richards:

32. I agree. Although with far less experience than Sir Alan Ward and only at first instance, I would unreservedly endorse his comments on the difficulties posed for and by litigants in person in their conduct of all but the most straightforward cases. Their involvement on one or both sides in complex cases has in the Chancery Division, where I sit, grown from virtually nothing to being a commonplace in only a few years. Judges do all they can to help, but these cases impose great burdens on the time and resources of the court and the parties

Lord Justice Hughes:

33. I agree that the appeal must be allowed and the case remitted to the court below [where it ought, I think, to be heard by a different judge to avoid further complication].  Unfortunately the judge's efforts to do justice in this case, and to understand the rather unstructured arguments advanced on either side, led him to find himself reaching a conclusion of fact which was contrary to the evidence of a witness whom he had not heard and whom one party wished him to hear.  I also agree that the case is a good example of the way in which efforts to save money on legal representation can often end up costing everyone, and in particular the public, more rather than less.