England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice
		20th January 2010

MR. JUSTICE JACK:

1. Joe Calzaghe retired from boxing on 5 February 2009. He had 48 professional fights and won them all. He was the World Boxing Organisation super-middleweight world champion for over 10 years. Frank Warren has been a manager of boxers and a promoter of boxing matches for many years. He is a dominant figure in the English boxing scene and the international scheme when British boxers are involved. He has had a long association with Mr. Calzaghe. He has carried on business by various means and, specifically, so far as relevant to these proceedings, through his company, Sports Network Ltd. 'SNL'.
2. On 19 April 2008 Mr. Calzaghe fought Bernard Hopkins, the Ring Magazine light-heavyweight world championship. He won. He had an agreement with SNL for the promotion of the fight by SNL. He was to get 80 per cent. of the net profits made by SNL and SNL was to keep 20 per cent. Some money was paid to him but a substantial amount remains unpaid. On t 8 November 2008 Mr. Calzaghe fought Roy Jones Junior, the one time NABCO and NBC light-heavyweight champion. Again Mr. Calzaghe won. SNL was not involved.
3. The terms relating to the promotion of the Hopkins fight were agreed between Mr. Calzaghe and Mr. Warren at a meeting on 15 January 2008, and were later recorded by an exchange of correspondence. Mr. Warren subsequently alleged that it was also then orally agreed that SNL would promote Mr. Calzaghe's next fight, or fights if more than one. Mr. Calzaghe's next and last fight was the Jones fight. Mr. Calzaghe denied that there was any such further agreement. This difference between the two men resulted in an action brought by SNL on 27 June 2008, that is five months before the Jones fight. It was brought against Mr. Calzaghe for damages for beach of the alleged oral agreement that SNL should promote the next fight. Mr. Calzaghe counterclaimed in the action for monies that he was owed in respect of the Hopkins fight. In a judgment delivered on 16 March 2009 following a trial over eight days Wyn Williams J dismissed SNL's claim and gave judgment for Mr. Calzaghe on his counterclaim for £1,813,055, with interest and costs. Permission to appeal was refused by the Court of Appeal.
4. Shortly after the judgment of Wyn Williams J, namely on 24 April 2009, SNL was placed in administration by Mr. Warren. Mr. Calzaghe has received nothing under the judgment save £260,000 previously paid into court by SNL as security for costs. In the course of his evidence before Wyn Williams J Mr. Warren had said that, if SNL, lost Mr. Calzaghe would get his money. Mr. Calzaghe says that that was a lie and Mr. Warren has deliberately run down the company and dispersed the proceeds of the Hopkins fight. Mr. Warren asserts that SNL's difficulties are not of his making and had it not been for a substantial loss-making fight involving other boxers what he said in the witness box would have come about.
5. The present proceedings were commenced by Mr. Calzaghe against Mr. Warren on 3 June 2009 as the outcome of a hearing before Wyn Williams J on that date. The essence of the claim is that Mr. Warren wrongfully caused SNL to dissipate the proceeds of the Hopkins fight due to Mr. Calzaghe. One allegation is that the monies were held by SNL on trust for Mr. Calzaghe and Mr. Warren interfered with that trust.
6. Prior to the trial of SNL's action Mr. Calzaghe had indicated by letter from his solicitors that he was considering joining Mr. Warren in that action, and a draft pleading had been provided. On 3 June Mr. Calzaghe applied to Wyn Williams J for permission to join Mr. Warren into that action. The action was of course stayed as against SNL by reason of the administration. The joinder was objected to on behalf of Mr. Warren. One ground of objection to the joinder was that it was sought to bring Mr. Warren into the proceedings to make him bound by the judgment against SNL. The outcome was an agreement recorded in the preamble to the order that was drawn up following the hearing on 3 June 2009, stating that Mr. Warren was not bound by the judgment. That order included directions intended to bring the action to trial in January 2010, that is, now.
7. Following the hearing on 3 June the claim form was issued on the same day and a letter was also written identifying the paragraphs in the existing pleading on which Mr. Calzaghe relied against Mr. Warren. Mr. Warren served his defence on 6 July. On 31 July Mr. Calzaghe served a reply which alleged that Mr. Warren was barred from disputing matters determined by the March judgment. He relied on estoppel and the principle of abuse of process of the court. On 21 October an application was issued on behalf of Mr. Calzaghe to strike out parts of the defence and for summary judgment on the grounds of estoppel and abuse of process.
8. Mr. Warren's solicitors had stated in correspondence that the means adopted in relation to Mr. Calzaghe's particulars of claim were unsatisfactory and that fresh particulars should be served setting out the claim in the ordinary way. On 18 November draft amended points of claim were served on behalf of Mr. Calzaghe, and on 20 November an application was issued for permission to amend. On 12 January, that is just over a week ago, a draft amended defence was served on behalf of Mr. Warren in response to the proposed amended particulars of claim.
9. The issues before me today arise on Mr. Calzaghe's two applications, one of 21 October 2009 to strike out and for summary judgment, and one of 20 November 2009 for permission to amend. There is no opposition to the latter which indeed arises from the suggestion of Mr. Warren's solicitors, save that there was a dispute as to the terms of the order as to costs. The former application relates to a defence, which is now redundant because of the amended particulars of claim. However, the day before the hearing there was served on behalf of Mr. Calzaghe a list of paragraphs in the proposed amended defence which it was sought to attack. It is agreed that I should deal with the application as if it were amended to that effect.
10. The former application is based on the assertion that the principles of issue estoppel, alternatively those relating to abuse of the court's process, bar Mr. Warren from contesting certain matters found by Wyn Williams J, or alleged to have been found by him. It is further alleged that Mr. Warren has no real prospect of succeeding on those matters. I can summarise the relevant matters as follows :

(a) SNL owes Mr. Calzaghe £1,813,055.

(b) Mr. Warren's evidence as to an oral agreement that SNL should promote a further fight or fights was dishonest in that he knew that there was no such agreement. In short, his evidence that there was such an agreement was a lie.

(c) SNL was not entitled to make a deduction from what was owed to Mr. Calzaghe of $1 million in respect of a ticket transaction with Planet Hollywood. This is really part of (a) because the sum of £1,813,055 is calculated without any such deduction.

11. The position adopted before me by Mr. Tom Smith on behalf of Mr. Warren as to the debt of £1,183,055 was, first, that Mr. Warren accepted that he was bound by the finding of Wyn Williams J that this sum was owed by SNL to Mr. Calzaghe. That must be on the basis that there was an estoppel binding Mr. Warren as to that issue. Secondly, Mr. Warren did not rely on the preamble to the order of 3^r June 2009 to bar Mr. Calzaghe from asserting that Mr. Warren was so barred. However, it was asserted on Mr. Warren's behalf that he was entitled otherwise to rely on the preamble to prevent any other assertion that he was bound by any finding in the judgment. So his non-reliance on the preamble in respect of the amount of SNL's debt is by way of a limited concession.
12. The questions arising in connection with the dishonesty of Mr. Warren in asserting that there was an oral agreement for a further fight or fights was the main issue before me. The third matter, namely (c), had resolved itself before the hearing. Mr. Warren accepts that SNL was not entitled to deduct the $1 million and that the debt therefore stands at £1,813,055. Mr. Calzaghe accepts that it is open to Mr. Warren to establish that SNL never received the $1 million, which may not be in dispute, and to argue that consequently he cannot be liable in respect of it.
13. That leaves as a matter which I have to determine whether or not Mr. Warren is entitled to assert that his evidence to Wyn Williams J as to the existence of an oral agreement for a further fight or fights was not dishonest. That is important because it is Mr. Calzaghe's case that the bringing of the claim by SNL was therefore itself dishonest and was part of Mr. Warren's dishonest conduct in depriving him of his share of the profits from the Hopkins fight.
14. Mr. Ian Mill QC put Mr Calzaghe's case on the matter in three ways. First, he said that Wyn Williams J had concluded that Mr. Warren's assertion of an agreement for a further fight or fights was dishonest and that this was a fundamental part of his decision and that there was an issue estoppel. Second, he said that, if the technicalities of issue estoppel were not met, it was an abuse of the court's process to raise an issue which Wyn Williams J had determined against Mr. Warren. Third, he said that in the light of Wyn Williams J's judgment Mr. Warren had no real prospect of succeeding in establishing that he was not dishonest in that respect and that Mr. Calzaghe was entitled to a judgment under CPR Part 24 on the issue. Mr. Smith submitted, on behalf of Mr. Warren in relation to issue estoppel, that the Judge had made no finding of dishonesty against Mr. Warren and that, in any event, the requirements of issue estoppel were not met.
15. In paragraph 155 of his judgment Wyn Williams J stated:

"It might seem surprising at first blush that the claimant would persist in asserting an oral agreement as alleged unless such an agreement did truly exist. That might be a proper starting point in some cases involving alleged oral agreement. In this case, however, there was a powerful motivating factor for the claimant to rely on an alleged oral agreement, even though the same did not exist. That is the fact, that in the absence of such an agreement the claimant owed the defendant a very substantial sum of money which remained unpaid after the fight between the defendant and Mr. Hopkins. In my judgment the claim in this case has been raised as a smokescreen by the claimant as an attempt to avoid payment by the claimant to the defendant of a very substantial sum of money."

It was submitted by Mr. Mill that he can rely on the passage, in particular the last sentence referring to a smokescreen, to establish that Mr. Warren's conduct in the SNL action was dishonest, not least in his own evidence, because he knew that that had never been an oral agreement as to the promotion of the fight. However, the paragraph is but one part of the Judge's conclusions and it is necessary to consider what came before the paragraph and to put it in its context.

16. The evidence at the trial consisted in particular of the oral evidence of Mr. Warren and Mr. Calzaghe, and also that of Mr. Calzaghe's father and Mr. Calzaghe's solicitor at the time, Mr. Gareth Williams. There was also an officer of SNL who gave evidence, Mr. Simon. As to documents, there was the correspondence recording the agreement for the Hopkins fight which made no reference to any further fight, and, importantly, there was Mr. Williams's attendance note of the meeting on 15 January 2008. Mr. Warren's evidence was that the parties were initially unable to reach an agreement in relation to the Hopkins fight, but that he and the two Calzaghes, father and son, withdrew to a private room without the solicitor, Mr. Williams, and that they there reached agreement in relation to the Hopkins fight on the basis that SNL would also be able to promote Mr. Calzaghe's next fight or fights. That meeting within a meeting was inconsistent with Mr. Williams's attendance note.
17. The judge's task in resolving who was telling the truth was not helped by the fact that most of the witnesses I have referred to had either told lies in evidence or behaved dishonestly in other ways. The judge found, in paragraph 145 of his judgment that Mr. Williams's attendance note was essentially accurate, and so SNL had failed to establish the oral agreement asserted by Mr. Warren. In paragraphs 146 to 154 the judge went through further matters which supported Mr. Calzaghe's case. The purpose of paragraph 155 was to deal with the issue why Mr. Warren should assert an oral agreement if there never was one. The paragraph provided the reason, namely that the claim was a smokescreen designed to protect the money which SNL would otherwise have had to pay Mr. Calzaghe some time before. The Judge rejected the evidence of Mr. Warren as to a separate meeting at which Mr. Calzaghe agreed that SNL should promote a further fight. That was something on which Mr. Warren was either telling the truth or was lying. It was not a situation in which there could be a mistake either by way of misunderstanding or in recollection. By holding that Mr. Williams's attendance note was essentially accurate the Judge rejected the evidence that there had been a separate meeting without Mr. Williams and that at that separate meeting an agreement had been reached which covered a further fight or fights. The judge did not expressly state that Mr. Warren had lied but it was implicit in his decision that Mr. Warren and his witness, Mr. Simon, had lied in their evidence that there had been such a meeting and agreement. I asked Mr. Smith whether he could say to the contrary but he simply referred me to paragraph 145 of the judgment where Wyn Williams J stated that SNL had failed to demonstrate that the attendance note had been falsified by Mr. Williams, and his conclusion that the note was essentially accurate. Although the judge did not state that it followed from that that the evidence of Mr. Warren was dishonest, there is no alternative. Paragraph 155 demonstrates that this was so. This was a trial about who was lying.
18. In the Carl Zeiss case [1967] 1 AC 853 Lord Guest stated, at p.935:

"The requirements of issue estoppel still remain (1) that the same question has been decided, (2) that the judicial decision which is said to create the estoppel was final, and (3) that the parties to the judicial decision, or their privies, were the same persons as the parties to the proceedings in which the estoppel is raised, or their privies."

19. I am satisfied that the issue, as to the honesty of Mr. Warren in causing SNL to advance its claim and in giving evidence that there was an agreement as to a further fight or fights was decided by Wyn Williams J. It is that which Mr. Warren seeks to dispute in the present claim. The decision of Wyn Williams J is certainly final. Mr. Smith did not submit that SNL and Mr. Warren were not privies for this purpose. SNL was Mr. Warren's vehicle for what was in reality his agreement with Mr. Calzaghe reached on 15 January 2008. He owned the company and the evidence shows that he had complete control over its affairs. It was his alter ego for the purpose, to use a phrase which is common in this context.
20. That, however, is not the end of the matter. It is stated at the opening of the chapter on issue estoppel in the fourth edition of Spencer Bower and Handley on Res Judicata, that:

"A decision will create an issue estoppel if it determined an issue in a cause of action as an essential step in its reasoning. Issue estoppel applies to fundamental issues determined in an earlier proceeding which formed the basis of the judgment."

This is developed in paragraph 8.23, where it is stated:

"An express decision will not necessarily create an issue estoppel. Only determinations which are necessary for the decision and fundamental to it will do so. Other determinations, however positive, do not."

Later it is said:

"The principle that a collateral finding cannot create an issue estoppel flows from requirement stated by Dixon J in Blair v. Curran, that the 'state of fact or law' must have been necessarily decided by the prior judgment, decree or order."

A substantial passage from the judgment of Dixon J is quoted in paragraph 8.02 of the book. One paragraph reads:

"Nothing but what is legally indispensible to the conclusion is thus finally precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is the title to the right. Where the conclusion is against the existence of a right or claim which in any point of law depends upon a number of ingredients or ultimate facts, the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. The judicial determination concludes not merely as to the point actually decided but as to a matter which it was necessary to decide and which was actually decided as the groundwork for the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous."

21. Mr. Smith submitted that all Wyn Williams J had decided capable of giving rise to an estoppel was that there was no oral agreement as alleged by Mr. Warren. Any finding of dishonesty in making the allegation, if there was such dishonesty, was collateral rather than fundamental to the decision.
22. Mr. Smith also submitted that the judge had simply applied the civil burden of proof whereas the issue on Mr. Warren's dishonesty should be judged by a higher standard. He referred me to the speech of Lord Nicholls in Re H [1996] AC 563 at 586. There Lord Nicholls stated that the civil standard was to be applied consistently in civil proceedings, and went on to say:

"When assessing the probabilities the court will have in mind as a factor to whatever extent is appropriate in the particular case that the more serious the allegation the less likely it is that the event occurred and hence the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability."

The situation in the present case was that the Judge had to decide which side was telling him the truth and which was lying. I do not think that reference by

Mr. Smith to the judgment of Lord Nicholls assists his submission as to estoppel.

23. I am inclined to the view that the finding generally implicit in the decision of Wyn Williams J, and explicit in paragraph 155, that Mr. Warren's evidence was dishonest and that he had no honest belief that there had been an agreement covering a further fight or fights was fundamental to his decision and is capable of finding an estoppel. But I accept that no case has been cited which is close to the present, and the application of the principles established in relation to issue estoppel to the present case is not free from difficulty. I will return to the important question whether Mr. Calzaghe is barred in his current claim from relying on the judgment of Wyn Williams J by reason of the agreement recorded in the preamble to the order of 3 June 2009 after I have considered abuse of process.
24. Subject to the effect of that agreement, I have, no doubt in the circumstances that it would be an abuse of the court's process for Mr. Warren to require Mr. Calzaghe to establish a second time that Mr. Warren's evidence was dishonest. There has been one trial to decide who was lying and there should not be another. If there were to be a trial as to whether Mr. Warren's evidence had been honest or dishonest that would necessarily reopen the whole issue as to whether there had been an oral agreement for a further fight or fights, and hence whether SNL was indebted to Mr. Calzaghe.
25. The court's jurisdiction to prevent abuse of its process was described by Lord Diplock in a case very different to the present, Hunter v. Chief Constable [1982] AC 529 at 536 as follows:

"My Lords, this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedure or rules, would nevertheless be manifestly unfair to a party to litigation before it or would otherwise bring the administration of justice into disrepute among right thinking people. The circumstances in which abuse of process can arise are very varied."

26. The test is largely one of unfairness: see also the Secretary of State for Trade & Industry v. Bairstow [2004] Ch. 17, Andrew Morritt, VC. Abuse of process was also considered by the House of Lords in Johnson v. Gore Wood & Co. [2002] 2 AC 1, where again the facts were substantially different. A case which is closer to the present is that of North West Water Ltd. v. Binney & Partners, where negligence had been found against consulting engineers in an

action brought by individual claimants as the result of an explosion. The water authority then brought proceedings against the engineers. The defence of the engineers denying negligence was struck out as an abuse of the court's process. In OJSC Oil Co. Yugraneft v. Abramovich [2008] EWHC 2613 (Comm) Christopher Clarke J held that on the facts an abuse of process was established. Having held in paragraph 424 that estoppel was not established, he stated in paragraph 425:

"That conclusion is not determinative, since it is open to the court to dismiss proceedings as an abuse of process even though the somewhat technical conditions for an estoppel are not met."

I accept that as an accurate statement of law.

27. In respect of abuse of process Mr. Smith submitted, first, that Wyn Williams J had not determined the issue Mr. Warren's dishonesty. As I have stated, I am satisfied that he did. Second, he submitted that, if there was not an estoppel, abuse of process could not be relied on. He referred to the decision of HHJ Mackie QC in Great Wealth Telecom Ltd. v. Syntel Communications Ltd. [2007] EWHC 95 Ch. and said that Mr. Warren had no previous opportunity to litigate the subject-matter of the present action. That is largely correct but it is not correct insofar as the present action relies on his dishonesty in the SNL action. Whether or not Mr. Warren's evidence in that action was honest or dishonest was the crucial issue in it.
28. Lastly, Mr. Smith submitted that Mr. Calzaghe was, in any event, barred from relying on the judgment of Wyn Williams J to found an abuse of process by reason of the agreement recorded in the preamble to the order of 3 June 2009. He thus submitted that both estoppel and abuse of process were barred to Mr. Calzaghe by the agreement.
29. The relevant part of the preamble to that order states as follows:

"And upon the Defendant, the Claimant and Mr. Warren having agreed and acknowledged that the judgment of the Court on 16 May 2009 in these proceedings is not binding on Mr. Warren"

This can be read in the sense that Mr. Warren was not a party to the judgment and so it cannot be enforced against him to recover £1,1813,055. It can be read in the sense that nothing in the judgment binds Mr. Warren. If it is read in the latter sense it means that Mr. Calzaghe thereby gave up any advantage which he might have achieved by reason of the judgment. Thus he would have to establish for a second time that SNL owed him £1,1813,055, which was an essential step in his action against Mr. Warren personally. That would be surprising. I have stated that Mr. Warren accepts that the judgment provides an issue estoppel in respect of the debt and that he does not rely on the agreement to prevent that estoppel, and that this is by way of concession only.

30. The circumstances in which the agreement came about are as follows. Mr. Calzaghe's advisers wanted to join Mr. Warren into the SNL action because of the pleadings that had already been prepared. Joinder was objected to on behalf of Mr. Warren on two grounds. The first was that the action against SNL was stayed by reason of the administration and, second, it was said that the real intention was to make Mr. Warren bound by the judgment. How joining him in the proceedings at that stage could have had any effect on his position in relation to the judgment is hard to see. But, as to this concern, I refer to paragraph 18 of Mr. Smith's written submissions for 3 June and to page4, line 35 to page 5, line 2 of the transcript of the hearing. Wyn Williams J responded that the judgment could not bind Mr. Warren whether he became a party now or whether there were fresh proceedings. He said no doubt people would take bits out of his judgment and seek to use them, but it was obvious that they could not bind Mr. Warren. The judge asked if there was any point in having two sets of proceedings and asked about the cost of issuing a claim form, £1,000. Mr. Smith submitted that new proceedings were preferable for three reasons, the first being to prevent any issue as to the nature and effect of the existing judgment against Mr. Warren. The judge stated, "Well, except there is not an issue". There was then a discussion about the form of the pleading, whether it should be by reference to the existing paragraphs. Mr. Smith stated that if a paragraph was relied on and the Judge had made a finding on it in his judgment of 16 March he was concerned that the finding might be relied on against Mr. Warren even though it was not binding on him. The Judge responded that he did not follow that, saying that if both sides agreed it was not binding it could not be relied on other than in the persuasive sense. There was then a discussion as to the court's power to join Mr. Warren into the stayed action. The Judge suggested that he might require Mr. Calzaghe to issue a claim form and he would order that the proceedings be consolidated. An undertaking was given on behalf of Mr. Calzaghe to issue a claim form. Mr. Smith submitted that consolidation was not necessary. The judge responded:

"Yes, but I think the position is that consolidation is necessary because if you are successful on 17 June in persuading the Court of Appeal to grant you permission that may cause, as Mr. Green has foreshadowed, an application to restore paragraphs, whatever it is, and it just seems to me much simpler if a mechanism is in place for that to happen. If you are not then they will not do it and everybody will forget about them.

MR. SMITH: My Lord, all I am going to say then in response to that is that some wording ought to be inserted into the draft order for the avoidance of doubt to make clear by reason of the consolidation it is not intended that the previous judgment should thereby become binding on Mr. Warren. Now, your Lordship will no doubt say to me that that is self-evident anyway but, in my submission, that is not the reason why wording to that effect should not be inserted in the draft order. As I said to your Lordship ---"

And his Lordship then intervened and said:

"Subject to what Mr. Green may wish to say, I am happy for a preamble to the order to record the parties' agreement that my judgment in the case of Sports Network Ltd. v. Calzaghe is not binding upon Mr. Warren. That is what everybody has said in this ----"

And then Mr. Smith came in:

"Exactly. I do not see my learned friend can have any objection to that because he I think accepts that the Judge ----

MR. JUSTICE WYN WILLIAMS: Exactly. So that is fine, there will be no doubt that because I will ask you to draft the order."

31. It is clear from these exchanges that the intention of Wyn Williams J and Mr. Smith was that the judgment should be of no effect as against Mr. Warren save what the judge called "persuasive effect". No suggestion was made to the contrary on behalf of Mr. Calzaghe. It seems to me that the judge did not have in mind the possibility of issue estoppel and abuse of process in relation to issues which he had decided. That also must be true of counsel for Mr. Calzaghe (who was not counsel appearing on this application). The outcome of this examination and what led to the agreement shows that what was intended was to prevent Mr. Warren from being bound by the judgment of 16 March in any respect. I hold therefore that this is how the order is to be construed.
32. Mr. Mill submitted that the order was not supported by consideration. The consideration was that the new action was consolidated with the SNL action so there was one set of proceedings, which is what Mr. Calzaghe's advisers wanted. That is slight consideration for giving up such an advantage, but the adequacy of consideration is not a concern of the law. Mr. Smith submitted that there was also consideration because Mr. Calzaghe was not bound by the judgment. However, the paragraph does not refer to Mr. Calzaghe. Mr. Mill submitted that the agreement could not bar Mr. Calzaghe applying on the ground of abuse of process. However, it cannot be an abuse of process to do what it has been agreed that a party may do.
33. This brings me to the final way in which Mr. Mill put his applications, namely under CPR Part 24. His submission was that in the light of the judgment of Wyn Williams J there is no real prospect of Mr. Warren achieving a different outcome as to his honesty. He referred me to the decision of HHJ Mackie QC in the Great Wealth case, where the judge took a similar course.
34. In my view the correct approach to this issue is not simply to say that another judge would, in reality, be certain to follow the conclusion of Wyn Williams J. Nor is it said that another judge might take another view. The correct approach must be to examine the evidence before Wyn Williams J and his reasoning based on it. It is not suggested that there is other evidence available to Mr. Warren, and it would be difficult to see how that could be. It is very relevant, though not conclusive, that the Court of Appeal refused Mr. Warren permission to appeal both on the papers and following an oral hearing.
35. This is not a case where the decision turned on the judge's impression of the demeanour of the witnesses. The judgment is the opposite of a judgment that states: "I have listened carefully to the evidence of X and Y, and I prefer the evidence of X". It is 35 pages and 182 paragraphs long, and of that 32 pages and 155 paragraphs relate to the oral agreement. The relevant matters are considered in depth and are closely reasoned. The judgment is wholly persuasive. I accept that, if there had not yet been any trial, the outcome could not be predicted, at least with certainty. But that is not the position. There has been a substantial and hard fought trial with experienced leading counsel on each side, and the judge has produced a comprehensive judgment which cannot be faulted. In these circumstances it is wholly unrealistic to think that, if there was a re-run of whether there was an oral agreement covering a further fight or fights, there might be a different outcome. That is what the issue of the dishonesty of Mr. Warren's evidence would involve. For, as I have said, in the circumstances that he alleges there was a separate meeting without Mr. Calzaghe's solicitor, Mr. Williams, present, at which such an agreement was reached, he is either lying about there being such a meeting and agreement, or there was such a meeting and agreement. There is no possibility of anything else.
36. Accordingly, on this one ground, the claimant, Mr. Calzaghe, succeeds. The agreement recorded in the order's preamble is no bar here.
37. Lastly, I must decide the wording of the order for the costs of the amendment and the particulars of claim, which are to be paid by the claimant. There appear to be three forms of words which are used in this situation: "the costs of and occasioned by .....", "the costs of and arising from ....." and "the costs of and caused by .....". I prefer the last, which seems to me to have the greater clarity.
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