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||Neutral Citation Number:  EWCA Civ 455
||Case No: A3/2010/1741
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION)
BRISTOL DISTRICT REGISTRY
HHJ Havelock-Allan QC
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
THE MASTER OF THE ROLLS
LADY JUSTICE ARDEN
LORD JUSTICE LONGMORE
|| GRAHAME HENRY BOND
||- and -
||DUNSTER PROPERTIES LIMITED
DUNSTER HOLDINGS LIMITED
GRAHAME MILES JAMES BOND
Mr Richard Ascroft (instructed by Thrings LLP) for the Appellant
Ms Michelle Stevens-Hoare (instructed by Andrew Simpson, In House Solicitor for the First and Second Defendants) for the Respondents
Hearing date : 14 March 2011
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lady Justice Arden :
"Everyone is entitled to a hearing…within a reasonable time"
- The thrust of the appeal is against the judge's findings of fact. A major cause of complaint is that the judge did not hand down judgment until some 22 months after the conclusion of the hearing and that as one result his findings of fact are against the weight of the evidence. This extraordinary delay clearly called for an apology and, if any existed, an explanation of the mitigating circumstances. However, so far as we are aware, there was none. Litigation is stressful for the parties, sometimes because they are members of the same family and sometimes because the transactions are commercial in nature and their outcome has implications for other transactions that the parties or others need to carry out. Life has to go on before, during and after litigation. In some cases, a delay in producing a judgment may prevent the parties from reaping any benefit from the litigation at all. Unfortunately, this case involves both the elements of close family relations and of commercial transactions. Irrespective of the respective merits of the appeal, this court has no reservation in expressing its sympathies for the parties as a result of the length of time they had to wait for this judgment. We would include others involved in the litigation such as the witnesses and the professional advisers. Delays of this order are lamentable and unacceptable.
- The matter goes further than just the effect on the parties. An unreasonable delay of this kind reflects adversely on the reputation and credibility of the civil justice system as a whole, and reinforces the negative images which the public can have of the way judges and lawyers perform their roles. If there were regular delays of this order, the rule of law would be undermined. There can, of course, be very different reasons for delay, such as ill-health of the judge or a close relative. In rare cases it could be a reprehensible lack of diligence or even sometimes a belief that the parties might do better to settle their differences or to conduct their affairs without knowing the legal result. None of these reasons, except serious ill-health of the judge, would, however, justify a substantial delay beyond the usual period taken for delivering judgments. This may vary according to the tier of the court but is usually taken to be three months.
- The opening cross-heading of this judgment is a quotation from article 6 of the European Convention on Human Rights, which has been given protection under domestic law by the Human Rights Act 1998. A "hearing" includes the delivery of judgment. The right is not a new one or one which is alien to the common law. Clause 40 of Magna Carta provides: "To no one will we …delay… justice".
- There is no statutory rule which provides that a judgment must be delivered within a specified time. It has to be delivered within a reasonable time and what is a reasonable time may well vary according to the complexity of the legal issues, the volume and nature of the evidence and other matters. There can also be factors which make it necessary for the court to deliver judgment more speedily than would otherwise be the case, for example, where urgent steps need to be taken, or the case involves the welfare of a child, or where a party is in the final stages of a terminal illness. Judges do their best to assist in these situations even though the judgment may have to be written in their own time. To accelerate the judgment in one case may involve other judgments being put back or cases being reallocated to other judges, and there has to be some flexibility for a judge to make those types of judgments as a matter of case management. But the situations in which longer than usual is necessary for writing judgments must be out of the norm and they should be limited to special cases and the delay should be justified. There may be delays which occur for which the judiciary are not responsible, as, for example, where an unrepresented party is unable (perhaps through ill health) to comply with some requirement of the court without which the court cannot proceed to judgment.
- In addition, since the hearing of civil cases is to provide litigants with a means of settling their disputes, any delay beyond the reasonable period for judgments should also, as a matter of courtesy to litigants, be explained by letter or email to the parties who are waiting for the judgment. This should be done as a matter of good practice and transparency even if the parties do not press for the judgment. They may understandably be reluctant to approach the judge themselves.
- Cases of this nature are exceptional. In giving judgment in Gardiner Fire Ltd v Jones, a decision of this court in 1998, where there had been a delay of 22 months in the delivery of judgment, also, Lord Woolf MR stated that mechanisms had been put in place to alert judges with responsibility for supervising the delivery of judgments by other judges about delays so that they could take appropriate steps to prevent delays. The mechanisms did not assist the parties in this case and it will fall to the Master of the Rolls, as the Head of Civil Justice, to consider whether there are any new measures that are required.
Standard of review on appeal against findings of fact in a seriously delayed judgment
- The function, however, of the court on hearing this appeal is not to impose sanctions or to investigate the reasons why the delay occurred. The function of this court on this appeal, which is principally brought against the judge's findings of fact, is to consider whether any of those findings of fact should be set aside and a retrial ordered. Findings of fact are not automatically to be set aside because a judgment was seriously delayed. As in any appeal on fact, the court has to ask whether the judge was plainly wrong. This high test takes account of the fact that trial judges normally have a special advantage in fact-finding, derived from their having seen the witnesses give their evidence. However there is an additional test in the case of a seriously delayed judgment. If the reviewing court finds that the judge's recollection of the evidence is at fault on any material point, then (unless the error could not be due to the delay in the delivery of judgment) it will order a retrial if, having regard to the diminished importance in those circumstances of the special advantage of the trial judge in the interpretation of evidence, it cannot be satisfied that the judge came to the right conclusion. This is the keystone of the additional standard of review on appeal against findings of fact in this situation. To go further would be likely to be unfair to the winning party. That party might have been the winning party even if judgment had not been delayed.
- In Goose v Wilson Sandiford  TLR 85, Peter Gibson LJ explained the potential effect of delay on the formulation and finalisation of findings of fact in these terms:
"113. Because of the delay in giving judgment, it has been incumbent on us to look with especial care at any finding of fact which is now challenged. In ordinary circumstances where there is a conflict of evidence a judge who has seen and heard the witnesses has an advantage, denied to an appellate court, which is likely to prove decisive on an appeal unless it can be shown that he failed to use, or misused, this advantage. We do not lose sight of the fact that the judge had transcripts of the evidence, as well as very extensive written submissions from counsel. But the very fact of the huge delay in itself weakened the judge's advantage, and this consideration had to be taken into account when we reviewed the material which was before the judge. In a case as complex as this, it is not uncommon for a judge to form an initial impression of the likely result at the end of the evidence, but when he has come to study the evidence (both oral and written) and the submissions he has received with greater care, he will then go back to consider the effect the witnesses made on him when they gave evidence about the matters that are now troubling him. At a distance of 20 months, Harman J. denied himself the opportunity of making this further check in any meaningful way."
- Two points need to be added to this helpful passage. First, some judges adopt strategies to mitigate the risk of misrecollection. For example, some judges adopt the practice of writing up the facts required to be set out in a judgment in detail almost immediately after a hearing, and that is obviously a good practice to follow especially where the crucial events turn on oral and not contemporaneous written material. There is no evidence that the judge took that course in this case. However, the judge has made his notebooks available and his copies of the submissions which shows that he had detailed notes to work from.
- The second point that I would respectfully add is to agree with the thrust of two points about the judicial assessment of demeanour made by the Privy Council in Cobham v Frett  1 WLR 1775 at 1783:
"As to demeanour, two things can be said. First, in their Lordships' collective experience, a judge re-reading his notes of evidence after the elapse of a considerable period of time can expect, if the notes are of the requisite quality, his impressions of the witnesses to be revived by the re-reading. Second, every experienced judge, and Georges J was certainly that, is likely to make notes as a trial progresses recording the impressions being made on him by the witnesses. Notes of this character would not, without the judge's permission or special request being made to him, form part of the record on an appeal. They might be couched in language quite unsuitable for public record."
- The demeanour of a witness when giving oral evidence forms an essential, though not exclusive, part of the judicial task of assessing of that evidence. The judge's notebooks in this case record a few provisional notes on the oral evidence.
- The standard to be applied by this court on review of a judgment which has been seriously delayed was helpfully summarised by Lord Carswell giving the opinion of the Board in the Privy Council case of Boodhoo v A-G of Trinidad and Tobago  1 WLR 1689, 1694. He explained that Goose provides an example of where:
". . . delay may have so adversely affected the quality of the decision that it cannot be allowed to stand. It may be established that the judge's ability to deal properly with the issues has been compromised by the passage of time, for example if his recollection of important matters is no longer sufficiently clear or notes have been mislaid."
- In Goose, the action was brought by a defrauded investor against his professional advisers in negligence. The trial lasted some 27 days. The judgment was not delivered until some 20 months after the trial was completed. The judge had been ill during a part of that period. The judge had lost certain of the notes he had taken during the hearing. The judgment was not automatically set aside but this court ordered a retrial of issues as to whether representations were made at a meeting on 19 September 1984 and two subsequent meetings. This was a case in which in substance the judge's findings appeared to be against the weight of the evidence. Although in some circumstances that is not determinative of an appeal on fact, this court in Goose could not be satisfied that the judge's conclusion was explicable by reason of the special advantage which he had had through having been the trial judge.
Part of the judge's order under appeal
- This appeal is against part of the order dated 16 April 2010 of HHJ Havelock-Allan QC sitting in the Bristol Mercantile Court in so far as it declared that the claimant, Mr Bond Senior, had no later than 28 February 2003 signed a document known as Admiral Court Project Partnership Agreement ("AC PPA") for the development of Flat 18, Admiral Court, Chelsea Harbour, London in the form which the respondent, Mr Bond Junior, his son, had taken to a meeting with Mr Bond Senior's accountants, Bentley Jennison, and his solicitor on 27 February 2003. As a result, loans which Mr Bond Senior had made to Mr Bond Junior or his companies were repayable when Mr Bond Senior and Mr Bond Junior's company, Dunster Holdings Limited ("Holdings") were in a position to divide between them, pursuant to the AC PPA, the profit arising from the sale of Admiral Court, or sooner if the relevant borrowing company could afford to do so. The judge further held that the references in schedule 4 to the PPA to Dunster Properties Ltd ("Properties") was a mistake for Holdings and that the AC PPA should be rectified accordingly. If this appeal is successful it will be necessary to deal with the parties' submissions on the question whether the whole of the judge's order, or only part of it, has to be set aside.
Background to the proceedings
- The proceedings began with the issue on 1 June 2005 by Mr Bond Senior of a claim against Holdings for repayment of some ten unequal sums totalling some £520,000 paid to Holdings or Properties between December 2002 and July 2003. Mr Bond Junior gave post-dated cheques drawn on his personal account as security for these sums and he was joined as third defendant for judgment on his cheques or alternatively as guarantor of the loans made to the first and second respondents. Mr Bond Junior's defence was that these sums were made pursuant to an oral agreement between him and Mr Bond Senior to participate in a joint venture to acquire and develop 18 Admiral Court. The monies were to be repaid out of the proceeds of sale and the cheques were on Mr Bond Junior's case temporary security only.
- According to Mr Bond Junior's pleaded case, the principal terms of the parties' agreement for the development of Admiral Court were that:
"(1) GBJ [Mr Bond Junior] would procure DHL [Holdings] to enter into a written project partnership agreement with GBS [Mr Bond Senior] for the purchase and refurbishment of 18 Admiral Court ("the Admiral Court PPA")."
(2)Admiral Court would be purchased in the name of GBS rather than GBJ.
(3) GBS would lend a total of £500,000 to DHL or its nominees in addition to the sum of £70,000 paid into the account of DPL [Properties] in December 2002.
(4) GBJ would give post-dated cheques as initial security for the advances made, but would in due course provide alternative security in the form of legal charges over properties owned or controlled by GBJ.
(5) The money was to be repayable to GBS only on completion of the refurbishment and sale of the Admiral Court property, and the drawing up of partnership accounts."
(Judgment, paragraph 13)
- Mr Bond Junior and Holdings brought a counterclaim for the profit which they say was lost when Mr Bond Senior took possession of the property in August 2003 as explained below. We are not concerned with this or with the repayment of the loans, which it was common ground Mr Bond Senior made and some of which have been repaid. There were detailed findings about these matters in the judge's judgment to which I need not refer.
Trial and the delivery of judgment
- On 23 February 2007, the judge made an order for the trial of number of preliminary issues principally directed to determining the basis on which Mr Bond Senior and Mr Bond Junior had agreed to develop Admiral Court, and in particular whether Mr Bond Senior entered into the AC PPA. The ordering of preliminary issues is often found in the end to have delayed the resolution of an action and this case is no exception.
- The trial of the preliminary issues was originally listed to begin on 8 May 2007. However, on 14 April 2007 the defendants for the first time disclosed a "copy of a copy" of a form of the AC PPA dated 28 February 2003 which appeared to bear the signatures of Mr Bond Senior, witnessed by Mr Bond Junior's partner and employee, Mr Bond Junior and Mrs Stella Bond, who was a director and the secretary of Holdings. Mr Bond Junior claimed to have found a photocopy of a document in the shed belonging to Mr Bond Senior's estranged partner, Miss Glynn, in April 2007. He photocopied it at the local post office, but then, remarkably, proceeded to lose the "original copy". The underlying form of the document that was disclosed (referred to as the "the Easter PPA") was not exactly in the form of a document previously disclosed by the defendants or produced at the meeting with Mr Bond Senior's accountants on 27 February 2003. They had failed to disclose any other copy document from their records or any electronic records, that was the same. The Easter PPA also bore a logo in a form which did not appear to correspond to or match the forms of logo used in other documents emanating from Mr Bond Junior's company, including documents created after the date of the Easter PPA. The signature pages, in particular, matched the form of pages produced by Mr Bond Junior for signature by Mr Bond Senior and other parties for a different property development project relating to a property known as The Rookery.
- The trial was stood out on 26 April 2007, and relisted for 16 to 19 July 2007. There was insufficient time to conclude the hearing, and so the trial was adjourned to 22 October 2007 and then heard until 24 October 2008. There then had to be a further adjournment, which was principally caused by the late disclosure by Mr Bond Junior on 24 October 2007 of what appeared to be the original signature pages and blue back cover from a PPA (separated from any other pages of such a document) bearing the signatures of Mr Bond senior, and each of the defendants. These were suspected to be the original pages from the document which the Easter PPA was said to be "a copy of a copy".
- The parties then had to investigate the provenance and authenticity of the Easter PPA and the original signature pages first disclosed on the 24th of October 2007. Both sides relied on expert evidence. The case was finally concluded on 6 June 2008 after three further days of evidence and submissions.
- The judge handed down his judgment in writing 22 months later on 16 April 2010. In the opening paragraphs he stated that the delay in delivering judgment was due to no fault of the parties. When he refused permission to appeal on the ground of delay, the judge said:
"..insofar as delay in the production of the judgment is relied on as justifying an appeal, I do not consider that the criticisms made of the judgment illustrate that I had forgotten the evidence or argument to any material degree since I had full manuscript notes of the oral evidence, a transcript of the oral evidence, detailed written submissions from counsel (annotated by me in the course of their oral arguments), and a very clear recollection of the way in which the key witnesses (the claimant, the third defendant, Mr Le Roux and Miss Glynn) gave their evidence and the impression they made in the witness box. "
- The crucial issues in the judgment were issues of fact. To outward appearance, the judgment is a carefully structured, reasoned and workman-like judgment, setting out the narrative in a logical order. It does not on its face reveal any obvious gaps of recollection on the judge's part or disclose any trace of the judge having taken shortcuts as a result of a failure of recollection.
- Although Mr Bond Senior and Mr Bond Junior are father and son, their relationship has not been a tranquil one. There have been periods when they were not on good terms. They had been involved in property developments together previously that had led to disagreements. Mr Bond Senior was critical of his son. At one point, according to Miss Glynn, the partner of Mr Bond Senior, Mr Bond Junior was cut out of his father's will which contained a large fighting fund to deal with any disputes with him. At the start of 2003, however, they were seeking to repair their relationship. Their relationship had implications for the task of adjudication in this case, as the judge insightfully explained:
"27. I should make it clear that I found all the witnesses other than the two protagonists (GBS and GBJ), to be entirely straightforward and trying to be truthful to the best of their recollection. That does not mean that GBS and GBJ left me with the impression that they were being untruthful, and certainly not consciously or deliberately so. But they are much more complex characters and have had a fractured personal relationship as father and son for many years. This has made it difficult to assess their evidence and resolve the points of conflict. It is certainly not possible to approach their dealings as if they were dealings between businessmen at arm's length. There is a heavy emotional overlay, which, in my view, led GBJ to not say things or clarify points which, in the course of a normal commercial relationship, would have been said or clarified, out of a desire not to appear to his father to be provocative or difficult. This led to issues not being addressed, and to risks being taken, which would not have happened if the parties had not been trying to use their business dealings to restore a familial relationship.
28. For all GBJ's desire to build a bridge with his father, and to secure his father's approval, he mistrusted him and his motives. GBS equally distrusted his son. Indeed the whole dispute is bedevilled by a deep vein of mistrust between the two of them. GBS doubted his son's business acumen. He believed him to be profligate and came eventually to the view that his businesses would go bankrupt. GBJ thought that GBS was unpredictable and intent only on exercising control of him through holding the purse strings."
- Mr Bond Junior was a property developer. So far as material, he owned two companies: Properties and Holdings, the first and second respondents respectively to this appeal. Mr Bond Junior had in the past developed properties with private investors on the terms of a project partnership agreement. Mr Bond Junior had found Flat 18, Admiral Court in London's prestigious Chelsea Harbour in January 2003 and considered it a very good development opportunity. The property would need to be done up (either extensively, or less extensively with a view to an early sale). Mr Bond Senior wished to invest jointly with his son as he had funds to invest.
- The real dispute was over items (1) and (5) in the summary set out in paragraph 16 above. Mr Bond Junior said that Mr Bond Senior had signed a PPA, or alternatively had agreed orally to be bound by one at the Bentley Jennison meeting referred to below. Mr Bond Senior agreed that a PPA was discussed at the meeting but denied having signed one. He contended that he was prepared to proceed with the project on the basis that he could elect to treat the Admiral Court property as his principal private residence and claim relief (Principal Private Residence Relief or "PPR") from capital gains tax on any profit generated by re-sale. His case was that he then agreed to give Mr Bond Junior 50% of the profit on sale. The material events took place within a short space of time, namely February to August 2003.
- Before dealing with the events the judge set out his overall assessment of the witnesses in five substantial paragraphs, two of which I have already set out. In particular, he found that all the witnesses including Mr Bond Senior and Mr Bond Junior were truthful but he found that the evidence of both Mr Bond Senior and Mr Bond Junior lacked precision and that it was at times confused. The judge concluded that they
"dealt with each other over the loans and the Admiral Court project with an informality which makes it difficult to pinpoint precisely what was agreed between them and when." (Judgment, paragraph 30).
The Bentley Jennison meeting
- On 26 February 2003, there was a meeting ("the Bentley Jennison meeting") attended by Mr Bond Senior, Mr Bond Junior and Mr Bond Senior's accountant, Mr Adrian Hards, and solicitor, Mr Curwen, at the offices of Bentley Jennison, Mr Bond Senior's accountants. There was discussion about the signing by Mr Bond Junior of post-dated cheques and the giving of security but those matters are not relevant to this appeal. Copies of the AC PPA had already been circulated to Mr Bond Senior, Mr Hards and Mr Curwen. A copy was tabled at the meeting.
- The PPA would result in a partnership between Mr Bond Senior and Holdings and in the partnership and partners being the beneficial owners as tenants in common of 18 Admiral Court and Holdings having control of the development. The PPA had a number of advantages to Mr Bond Junior, including the deduction of losses and the reclaim of VAT. In addition, since the property would be a business asset it would attract CGT at the lower rate of 10% provided that it was owned for at least two years.
- Under the PPR route, GBS would make an election to treat the property as his principal residence and obtain relief from capital gains tax. He would contract separately with Holdings for the works. Mr Bond Senior would have to show that he had resided at the property for a period sufficient to support the election. The idea was that Mr Bond Senior would execute a memorandum of gift in favour of Mr Bond Junior giving him 50% of the profits on sale. The PPR route had obvious disadvantages for the respondents. However, Mr Hards and Mr Curwen thought that the PPA was not in Mr Bond Senior's interests. They understood that the meeting had agreed on the PPR route.
- There was an incident at the meeting when Mr Bond Junior explained that the Duster companies were likely to be very short of money in the summer and would need some £300,000. His evidence which the judge accepted was that his father reassured him by leaning over and grasping his shoulder and saying that he would help to resolve his cash flow problem. Mr Bond Junior said that Mr Bond Senior actually signed a copy of the PPA by the parties' parked cars after the meeting. Mr Curwen, to whom Mr Bond Junior gave a lift after the meeting, took the view that this did not happen: indeed he recalled that Mr Bond Junior told him that he was happy with the PPR route. The judge did not make a direct finding about what happened after the meeting but it appears that he must have rejected the suggestion that Mr Bond Senior had signed the AC PPA between parked cars in the street.
- On 28 February 2003, Mr Curwen sent Mr Bond Senior a draft memorandum of gift for execution by him in order to give half of the net profits from the development of 18 Admiral Court to Mr Bond Junior. Mr Bond Senior said that he had executed this document, but the judge held that if he did he did not give a copy to Mr Bond Junior or Mr Curwen. Mr Bond Junior's case was that when the draft was sent to him he rang Mr Curwen to tell him that it was totally unacceptable but Mr Curwen had no recollection of that conversation. The judge made no finding on that point.
The "curtains meeting"
- On the evening of 27 February 2003 a further meeting took place, referred to as the curtains meeting. This was an important meeting because by the end of the trial Mr Bond Junior's case was that the AC PPA had been signed at this meeting. The judge's findings about this meeting were as follows:
"46….GBJ and Sam Le Roux [Mr Bond Junior's partner] called at The Grey House to see GBS and his partner, Catherine Glynn. The meeting was primarily a social event. GBJ and Mr Le Roux had brought some curtains or curtain material which they thought might be suitable for The Grey House. GBJ and Miss Glynn went to another room to see how the curtains would look. Mr Le Roux's evidence is that while they were out of the room GBS asked if he would witness his signature on a document. Mr Le Roux did not look at the document closely but recognised it from its blue binding as being a contract or deed produced by DHL or DPL. It had already been signed by GBS and Mr Le Roux added his signature as witness, and completed the section underneath with his name, address and occupation. Miss Glynn says that when she returned to the room with GBJ, GBS asked her to take some copies of the document. Mr Le Roux took the document out of its binding to make copying easier. She then took the pages to the photocopier in the billiard room and made at least one copy. She was unable to reinstate the binding and tucked the copy or copies inside the original, which was loose between the covers. A few days later she saw GBS tuck a copy of the document into a book.
47. Catherine Glynn gave evidence that the document she had copied was the Admiral Court PPA. GBS denies that he signed any document at the curtains meeting. When it was put to him in cross-examination that he had asked Mr Le Roux to witness his signature and that Catherine Glynn had done the photocopying his answer was that "it didn't happen".
48. GBJ says that he was unaware until much later on, when Mr Le Roux told him, that any document had been signed or any signature witnessed in the course of that evening. However he had noticed in his father's sitting-room that there was a copy of a blue bound document lying on a table. He recognised from its cover that it was a copy of one of his PPAs. GBJ's evidence is that he discussed the Admiral Court project with his father during the curtains meeting and that the PPA was part of that discussion. He recalls his father referring to it and acknowledging that it was the basis of their joint-venture. From this he assumed that the PPA had been signed or would shortly be signed: but he was not given a copy of the signed version to take away with him.
49. GBJ says that he also took the opportunity of raising once again with his father the serious shortage of cash which the Dunster companies were experiencing. He told his father that DHL would need about £500,000 by the summer of 2003 and that, without further funding of that magnitude, the refurbishment of the Admiral Court property could not proceed. According to GBJ, GBS responded by agreeing to lend up to £500,000, for which he wanted security and interest at the rate of 10%. It was agreed that the money would be repaid when DHL's share of the profit in the Admiral Court project was realised. GBS denies that any such discussion took place."
- This description refers to tucking pages into a book. It is another unusual feature of this case that it was suggested that, rather than file documents, Mr Bond Senior sometimes concealed them in books on his shelves. The judge records that after this meeting steps were taken to ensure that the property, which was to be transferred into Mr Bond Junior's name, was transferred into the name of Mr Bond Senior with a view to his taking out a mortgage on the property. This step was equivocal. On the one hand, Mr Bond Senior claimed that this was consistent with the parties having agreed on the PPR route and Mr Bond Junior contending that this was still consistent with the PPA route. The judge did not resolve that point but went on:
"52. Whoever is right on that score, GBJ acted at all times in and after March 2003 as if the Admiral Court PPA applied. GBS' professional advisers (Mr Curwen and Mr Hards), to the limited extent they were further involved in giving advice about the Admiral Court project, acted as though the PPR route had been agreed. GBS was enigmatic. It is hard to detect from his conduct until at least the middle of June which of the two routes he was pursuing or, indeed, whether he was not trying to keep his options open."
- The reference to mid-June appears to be to the letter of 18 June referred to below. The judge stated that he would set out the events between March and August 2003 because, even if they did not shed a great deal of light on the terms on which the parties agreed to proceed with the Admiral Court project, they were important in establishing the basis on which Mr Bond Senior made the loans that became the subject of the claim.
- The purchase of 18 Admiral Court was completed in March 2003. Mr Jenner, a manager employed by Properties, produced a completion statement stating that the estimated refurbishment costs were £60,000. This was not enough to fund the full refurbishment which Mr Bond Junior planned. Mr Bond Junior's planned refurbishment was projected to cost £161,000 and this figure was reflected in the draft AC PPA which Mr Bond Senior had seen at the Bentley Jennison meeting and of which he was aware.
- Moreover two project updates were sent to Mr Bond Senior, dated "as of April 2003" and "as of August 2003". The judge found that Mr Bond Senior received both of these. It is the first of these which is important. It stated that the refurbishment costs would be £161,000.
- The judge held in error that Mr Bond Senior did not object to either of these updates (Judgment, paragraph 57). In fact, by letter dated 18 June 2003, Mr Bond Senior had objected to the estimate of the refurbishment costs stated in the April update, as the judge accepted in paragraph 58 of his judgment. On 8 July 2003, Mr Le Roux replied to this letter at Mr Bond Junior's request stating that they had difficulty tracing the estimate of £60,000.
- The project did not run its full course. The judge found that, having lent £520,000, Mr Bond Senior lost patience when Mr Bond Junior asked for a further advance in August 2003. He then seized the keys to 18 Admiral Court, took possession of it, completed the refurbishment and resold the property at a lower profit than Holdings and Mr Bond Junior say would have been achieved if Holdings had been allowed to complete the development.
- On 13 August 2003, there was a meeting with Mr David Birds, an insolvency practitioner, attended by both Mr Bond Senior and Mr Bond Junior. The discussion which took place at the meeting is not relevant but the judge's judgment stated that Mr Birds had made notes of his conversation with Mr Bond Senior when originally instructed which showed that The Rookery was a joint venture between Mr Bond Senior and Mr Bond Junior but that Admiral Court was by contrast a "50:50 intention". On the other hand, Mr Birds' notes at the meeting refer to a "profit share" at Admiral Court and Mr Bond Junior seizes on this as a reference to the AC PPA. In fact, it appears that there is an error here and that it was Mr Bond Junior who provided the quoted information in Mr Birds' notes in the time while they were waiting for Mr Bond Senior to arrive at the meeting.
- The judge considered in detail the chain of events surrounding each of the loans, the taking of possession by Mr Bond Senior and the sale of 18 Admiral Court, but those matters are not relevant for the purposes of this appeal though, on Mr Bond Junior's case, they need to be revisited if there is a retrial as the loans were intertwined with the parties' business relationship.
- Mr Bond Senior made a PPR election in respect of 18 Admiral Walk in June 2005.
Issues below: (1) did Mr Bond Senior sign a copy of the AC PPA? and (2) if not, did Mr Bond Senior nonetheless agree to participate with Mr Bond Junior in the acquisition and refurbishment of Admiral Court on the terms of the PPA? – The judge's conclusions
- The judge gave his reasons for answering each of these issues in the affirmative at paragraphs 92 to 121 of his judgment.
- The judge noted that Mr Bond Junior had changed his case on Mr Bond Senior's adherence to the AC PPA on four occasions. Before the proceedings began, his case was that Mr Bond Senior had not signed the AC PPA but that the parties had acted on the footing it was binding on them. His first case is illustrated by the letter of 8 September 2003 from Lewis Silkin, Mr Bond Junior's solicitors, to Mr Curwen which stated:
"With regards to the PPA we believe that a written PPA was prepared but was never finally signed off by Mr Bond Senior (apparently due to personal tax concerns). Nevertheless Mr Bond Senior said that he would honour the terms of the PPA".
- Then (as his second case) Mr Bond Junior contended that Mr Bond Senior had signed the agreement: on 3 June 2005, Lewis Silkin suggested that Mr Bond Senior had said that he had signed the AC PPA but he never delivered it to Mr Bond Junior. When Mr Bond Junior's replies to a part 18 request were served in February 2006, a third case was raised based on an allegation of confirmation of the AC PPA by Mr Bond Senior at the Bentley Jennison meeting, alternatively the signing of that agreement in the street outside, which the judge rejected. Mr Bond Junior claimed that Mr Bond Senior had confirmed that he would proceed on the basis of the AC PPA and that he may have signed the agreement after the Bentley Jennison meeting by their parked cars. Mr Bond Junior's fourth case was that at the curtains meeting Mr Bond Senior had acknowledged his agreement to the PPA and indicated that he had signed it.
- Those changes of case of course suggested that Mr Bond Junior's case was unreliable. Moreover, the fact that Mr Le Roux, Mr Bond Junior's partner with whom he lived, did not tell Mr Bond Junior that he had witnessed the AC PPA also strengthened the improbability of that version of events. This was such an extraordinary story that the judge wrote in his notes for day 3 of the trial that it was "wholly unbelievable that Le Roux did not tell Mr Bond Jr on 28 February he witnessed a signature on the PPA and that they did not discuss the AC PPA either at the office or casually at home."
- Added to that were the abnormal events preceding the production of the Easter PPA. This bore the signature of Mr Bond Senior, Mr Le Roux's name as a witness and the date (28 February 2003) in Mr Le Roux's handwriting. The Easter PPA did not come to light until April 2007. The judge set out how it had come into existence and how it came to be discovered:
"96…It was alleged to be a photocopy of the Admiral Court PPA on which Mr Le Roux had witnessed the signature of GBS at the curtains meeting. It was one of the photocopies which Miss Glynn had taken on the photocopier in the billiard room. It had first come to light sometime early in 2006 when Miss Glynn, suffering from depression after the end of her relationship with GBS, was sorting through papers taken with her to her new home. She had placed the copy to one side and only later told GBJ that she had found it. In spite of his requests that she should produce it, she could not remember where she had put it and did not feel well enough to look for it again. GBJ visited her at Easter 2007 and asked permission to have one last search. It was then that he found it in the shed. He immediately took it to the local post office for copying. He made several copies but inadvertently left the original photocopy on the copying machine. When he realised his mistake and went back to look for it, it had gone. So the copy disclosed was a copy of the photocopy found in the shed."
- Another "twist in the story" as the judge put it was that Miss Glynn said in her evidence that Mr Bond Senior had burnt the original of the AC PPA on a bonfire which he had had after a burglary on 11 March 2003. Mr Bond Senior denied this, and the judge did not accept Miss Glynn's evidence on this point.
- There were doubts about the authenticity of the Easter PPA. There were two particular respects noted by the judge in which the Easter PPA differed from the copy of the AC PPA which Mr Curwen had at the Bentley Jennison meeting. The judge carefully set out the differences between the documents. He dealt with the argument that there were slight differences in the formatting and arrangement of the documents and in the wording, and also changes to the composition of the Dunster group logo, which appeared on each page of both drafts other than the signature pages:
"100…Two characteristics of the document attracted the attention of GBS' legal team. The first was that the style, format and number of the signature pages attached to this version of the PPA was different from the signature pages attached to the copy of the PPA sent to Mr Curwen before the Bentley Jennison meeting. For shorthand I will call the latter version of the PPA "the Curwen PPA". The Curwen PPA had only two signature pages, one for DHL as "The Contractor"(where a director and the company secretary were to sign), and one for GBS (as "The Investor"). The Investor signature page was laid out for a witness to sign underneath and write his name, address and occupation. The Easter PPA had three signature pages. The Investor signature page was similar in wording to that of the Curwen PPA but the layout and typescript was different. The Contractor signature page was identical to that of the Curwen PPA save for the addition of the superfluous phrase "SIGNED as a deed by" at the top of the page. The third page attached to the Easter PPA was a signature page for DHL as "The Developer" (again with space for signature by a director and the company secretary) but with the following introductory wording not present on the other signature pages: "IN WITNESS whereof the parties hereto have duly executed this document as a deed that day and years first above written".
101. There is no version of the Curwen PPA with any signatures on it. The photocopy of the Easter PPA shows the signatures of GBJ and Mrs Bond on the Developer page, the signatures of GBS and Mr Le Roux on the Investor page (with Mr Le Roux's name and address filled in underneath his signature and his occupation given as "IT support"), and the signature of GBJ alone on the Contractor page. The absence of Mrs Bond's signature on the Contractor page is immaterial since the Developer and the Contractor were one and the same company and she had already signed as company secretary on the Developer page.
102. The explanation given by GBJ for the difference in the printed wording and layout of the signature pages attached to the two PPA documents is that they were produced on different days. The Curwen PPA was printed on 24 February 2003 and received by Mr Curwen and Mr Hards the following day. GBJ then revised the Schedules and had a second copy of the PPA printed and bound on 25 February. This copy was signed by him and by Mrs Bond before the Bentley Jennison meeting. He then took it with him to the meeting and gave it to his father for him to sign. His father took it with him when he left the meeting. The PPA was stored in the Dunster database as a series of separate components. There was the title page saved as a Word document in which the name of the participating parties would be altered from project to project. There were the standard terms which were also saved as a Word document and required no change save as to the "effective date" in the first paragraph. There were the Schedules (1-5) which identified the parties (Schedule 1) and the property (Schedule 2), contained the figures which reflected the project appraisal (Schedule 3), listed the profit share proportions of the participants (Schedule 4), and set out the contributions expected from Investors by way of equity and finance (Schedule 5). The Schedules were bespoke for each project and kept in the form of Excel spreadsheets. Finally, there were the signature pages, which were each kept as separate Word documents.
103. I find the evidence that versions of the PPA were produced on 24 and 25 February entirely plausible. It is supported by the dates of printing given in the footer on the Schedules attached to the Curwen PPA and the Easter PPA. It is also entirely plausible that the Developer signature page was omitted in error from the draft sent to Mr Curwen. However the production of two versions of the PPA on consecutive days does not obviously explain the difference in the wording and/or layout of the Investor and Contractor signature pages. One would have expected these to be the same for both versions, since they were produced so close together in point of time. The only reason why they would be different is if the person who printed them resorted to different signature page templates within the Dunster database in order to generate those pages on 24 and 25 February.
104. The second distinguishing characteristic was the appearance of the Dunster logo. The logo consisted of four small square boxes each containing a motif. The motif in the third box was an oak tree. Every page of the Curwen PPA was printed on notepaper bearing the logo in the middle of the top of the page. Only the main body of the Easter PPA was printed on paper bearing the logo. There was no logo at the top of the Schedules or the signature pages.
105. A detailed forensic analysis by GBS' solicitors (Thring Townsend) of the reproduction of the Dunster logo in documents disclosed in this action resulted in Mr. Ascroft, counsel for GBS, making the following submission. The logo appeared in the documentation in three styles. Style I was the style which appeared on DPL's headed notepaper and continuation paper in use from about 1996. According to Mr Le Roux this was pre-printed stationery, stocks of which ran out sometime in 2004. Style 2 was a style which appeared on DHL's headed notepaper. The oak tree in this version of the logo had the appearance of a mushroom cloud. It was computer generated and produced for DHL on equipment belonging to the architects' office on the floor below at 27 Gironde Road. The earliest document received by GBS bearing this version of the logo was in April 2003. Style 3 was the style of logo which appeared in the Easter PPA (except on the Schedules and signature pages). It was a computer generated image produced in Dunster's own offices by a process of scanning. It is the same or very similar to the new batch of printed stationery that was produced for DPL by a firm called Purnells in 2004. There is no example of it having been used in 2002 or 2003. The first document which GBS received with logo style 3 was in 2005.
106. When these differences in style of logo were put to GBJ, he had no explanation. Mr. Ascroft invited me to infer that the Easter PPA was a false document which had been concocted long after the events of February 2003 and probably sometime in 2005 or later."
- The extraordinary sequence of events in this case, however, continued to unfold. On the evening of the penultimate day of the trial (23 October 2007), Miss Glynn told Mr Bond Junior that she had found the signature pages (which usually appeared at the end of a PPA) with original signatures on them. The signature on the Investor page was that of Mr Bond Senior witnessed by Mr Le Roux. There was also a blue back cover from a PPA binding. The case was adjourned and, on the adjourned hearing in June 2008, Miss Glynn gave evidence that she had found the new evidence unexpectedly tucked into a copy of the Readers' Digest Touring Guide in a cupboard in her kitchen. She believed that she had missed it on previous searches because she had concentrated on finding the whole document.
- Handwriting experts were instructed but it was agreed that the signature on these pages was that of Mr Bond Senior. He never, however, went back into the witness box to give any explanation for these pages. In response to the discovery of the Easter PPA, he put in a witness statement, which included the following paragraphs:
"24) I have no recollection of either
a) signing the Admiral Court PPA given to me by my son or any Admiral Court PPA from which those copies could have been taken, or;
b) signing this document (or any other Admiral Court PPA) in front of Mr Le Roux
25) I do not know how this document, the Signed AC PPA, or any documents from which it may have been copied, came into existence.
43) The signature appearing on the Signed Admiral Court PPA is a fair copy of my signature but I do not believe that it is one made by me. It is however, possible that it is.
47) I am unable to explain by whom, when or in what circumstances this apparent signature of mine appears on the Signed AC PPA.
75)…I had, so far as I can recall, never signed a PPA for the Rookery site either…
79) As noted above I cannot exclude the possibility that the signature appearing on the signed PPA is a copy of my signature. If it is, I cannot explain how it came to be on or appears to be on this document.
80) [sic] I decided not to never in fact decided that a PPA should apply to Admiral Court and which is why I did not ever deliver a signed version to my son. "
- The experts also noted another strange feature, namely that there was a lack of impressions on some of the newly-found signature pages. This suggested that they might have come from different documents but the judge found that this evidence was inconclusive.
- Mr Bond Senior sought to suggest that the signature pages might have come from the Rookery PPA, which, in yet another twist in this tale, Mr Bond Senior now conceded he had signed between 14 May and 14 August 2003. He now accepted that he had at a late stage capitulated and signed that PPA. Unhappily, the Rookery PPA had been lost. The judge did not resolve the question of where the signature pages came from. He considered that the only possible explanation for the fact that the signature page found by Miss Glynn signed by Mr Bond Senior and Mr Le Roux had left no impression on the pages that would have been behind it was that those later pages came from the Rookery PPA. On this basis, the extraordinary conclusion was that the signature pages found by Miss Glynn came from different documents. The judge found that the signature page signed by Mr Bond Senior and Mr Le Roux matched the Easter PPA. He found that there was no evidence of Mr Le Roux having witnessed Mr Bond Senior's signature on any situation apart from the AC PPA. The document signed by Mr Le Roux at the curtains meeting could not have been the Rookery PPA because that was not signed until May 2003.
- The further issue was whether the Easter PPA was genuine. In yet another twist in the tale, doubts had arisen over the Easter PPA for a number of reasons but principally because it bore a form of the respondent companies' logo which was not in use in February 2003. The judge considered the evidence in detail and rejected the idea that the Easter PPA was concocted:
"114. Mr Ascroft still submitted that the Easter PPA was a false document. I disagree. The evidence of Mr Le Roux of how logos were produced in Dunster's offices does not persuade me that the fact that the logo in the Easter PPA had the appearance of style 3 means that the Easter PPA could only have been generated much later than 2003. I think it possible that a logo resembling style 3 could have been generated in Dunster's offices as early as February 2003. Moreover it must be remembered that the Easter PPA disclosed on 11 April 2007 was a photocopy of a photocopy. At least two separate types of photocopier were involved in its production and the copying process is likely to have had a distorting effect. More importantly, if Mr Ascroft is right, Mr Le Roux and Miss Glynn must have been lying when they gave their account of what happened about witnessing the signature of GBS at the curtains meeting and photocopying the signed PPA. Not only would they have been lying, they would have been party with GBJ to a deliberate attempt to deceive the court. I am unable to accept that that is the case. I found Mr Le Roux and Miss Glynn to be honest witnesses. Faced with the choice of believing their account of the curtains meeting and the account given by GBS, which was that the witnessing of his signature and the photocopying of the PPA never happened, I unhesitatingly prefer the evidence of Mr Le Roux and Miss Glynn. Furthermore I find it incongruous that, if Mr Le Roux, Miss Glynn and GBJ were intent on concocting a signed version of the Admiral Court PPA, they should have gone about it in the haphazard way that the piecemeal emergence of the component parts of the Easter PPA suggests."
- Then the judge came to this important conclusion about the curtains meeting:
"115. Accordingly I find that, at some time between the Bentley Jennison meeting on 27 February and the curtains meeting on 28 February, GBS signed the copy of the Admiral Court PPA which GBJ gave to him at the Bentley Jennison meeting. Sam Le Roux was then asked by GBS at the curtains meeting if he would witness his signature. Sam Le Roux did so and Catherine Glynn took copies of the completed document. It is enough that GBS signed the Admiral Court PPA for its terms to be binding. Whether or not it was the private intention of GBS to keep his options open or possibly try to "back both horses" by adopting the PPA whilst at the same time making a principal private residence election so as to claim relief from CGT, is immaterial. No case has been advanced on his behalf which would justify the conclusion that his signature on the Admiral Court PPA did not indicate that he intended to agree to enter into a partnership on the terms of the PPA, or that somehow he is entitled to withdraw from that agreement."
- The judge recognised that this meant Mr Bond Senior had gone against the professional advice of his solicitor and accountant, which would clearly suggest that this was not what happened. The judge's explanation was that Mr Bond Senior was enigmatic and noted that he had accepted in his evidence that he had also signed the memorandum of gift but not delivered it to his advisers or to the donee, Mr Bond Junior. In other words, there was a history of Mr Bond Senior signing documents and then keeping them hidden, sometimes using books as a storage system. The judge also noted that in giving evidence Mr Bond Senior had not emphatically denied, if he had denied at all, that he had told Mr Bond Junior after the Bentley Jennison meeting that he was content to proceed on the terms of the AC PPA. This point is not very significant in the overall welter of fact in this case save for one point: the judge had a note in his notebook that Mr Bond Senior had replied "yes" and recollected correctly that in closing submissions the tape had been replayed. The judge deduced from this that there was no occasion when Mr Bond Senior made it clear to Mr Bond Junior that "the PPA route was out of the question". In addition the judge noted that Mr Bond Senior had a poor grasp of the distinction between the PPA and the PPR route and gift of half the proceeds: he did not for instance appreciate that it was only the former route that would give Mr Bond Junior an immediate beneficial interest in the property and its proceeds of sale.
- The judge then proceeds to hold, with reasons, in a crucial paragraph why in his judgment Mr Bond Senior had given the impression to Mr Bond Junior that the ACPPA applied:
"118. The background evidence establishes very clearly why it was important to GBJ that the PPA route should be adopted, and in my judgment the evidence of what occurred after 28 February 2003 shows that GBS was content to give the impression to GBJ that the Admiral Court PPA applied. GBJ proceeded with the project as if the PPA applied. Project Update Reports were sent, a finder's fee and a management fee was charged, the costs of the refurbishment were calculated on the assumption that VAT would be reclaimed and GBS was told of the amount of his equity and finance contributions. GBS made no protest about any of this at the time. GBS made no attempt to put in place any other form of agreement with DHL for the refurbishment works, and he purported to exercise no control over the works until he excluded GBJ from the property in August 2003. He took some steps to establish 18 Admiral Court as his residence, but not all of those recommended by Mr Hards. For example, he permitted DHL to register the property in its name for Council tax between 2003 and 2004 so as to be able to benefit from an exemption while the works were being undertaken and the property was unoccupied. If there had been no evidence about the signing of the Admiral Court PPA, I would have concluded from the evidence as a whole that GBS had agreed to follow the terms of the PPA as the basis of the joint venture with his son, regardless of whether this was or was not compatible with making a principal private residence election for CGT."
- So there were two bases for the judge's conclusion that the AC PPA applied: (1) that Mr Bond Senior had in fact signed it at or before the curtains meeting; and (2) in any event, Mr Bond Senior had accepted by conduct that the development of Admiral Court was taking place under the AC PPA, not the PPR route. The judge went on to deal with further matters relating to the loans with which this appeal has not been concerned.
Submissions and discussion
- The appellant starts with the advantage that the facts found by the judge were in very many respects extraordinary and, on their face, such as to call for scepticism and scrutiny, particularly in the light of the gross delay between the end of the trial and delivery of judgment. The judge does not reflect much surprise about some of the rather extraordinary evidence in this case. It is, for instance, most unusual for a businessperson to store bits of important contractual documents inside a book. There was, moreover, not just one extraordinary event in this case, but a series of them.
- Mr Ascroft, for the appellant, starts with a solid point of law, namely that if Mr Bond Senior never communicated his signature to anyone and in particular the respondents, then the general rule is that his acceptance cannot be binding on him by virtue only of such signature. He submits, and I agree, that it was not enough for the purposes of communication of acceptance to show that Mr Le Roux witnessed his signature even though Mr Le Roux could in fact have told the respondents that Mr Bond Senior had signed the AC PPA since he was the partner of Mr Bond Junior and worked for one of the Dunster companies. However, he did not know the nature of the document he was asked to witness at the curtains meeting, and (so far as the evidence goes) had no authority to receive notice that Mr Bond Senior had executed the AC PPA. Miss Michelle Stevens-Hoare, for the respondents, submits that when the judge said in paragraph 115 of his judgment "It is enough that GBS signed", that was in the context of the point that Mr Bond Senior's private reservations about being bound would not prevent his being bound following his signature. I agree with Miss Stevens-Hoare on this point. Moreover, the appellant did not advance a case at trial that signature was equivocal and that it did not signify immediate acceptance. Furthermore, unless the judge's findings in paragraph 118 are successfully attacked, they constitute a solution to the problem of lack of communication of signature. Accordingly, it follows that this point of law does not present a simple route through this case for the appellant. He also has to succeed in his attack on paragraph 118 of the judge's judgment.
- In his attack on the findings in the judge's paragraph 118, Mr Ascroft emphasises that the judge did not find that Mr Bond Senior had at any stage said to Mr Bond Junior that he was willing to be bound by the AC PPA. His findings were all based on circumstantial evidence. He only had transcripts of the first and second stages in the hearing. Miss Stevens-Hoare suggested that the judge's findings in paragraph 118 did not exclude the possibility of Mr Bond Senior having given oral confirmation to Mr Bond Junior that he was bound by the AC PPA, but for my own part I do not think that can be read into the judge's findings.
- The judge's judgment was circulated as a confidential draft before it was handed down so that counsel could suggest corrections. Counsel suggested some 5 factual corrections. For instance, in his draft judgment the judge put the incident where Mr Bond Senior touched his son's shoulder after the Bentley Jennison meeting rather than during it. Likewise the judge attributed a complaint to Mr Bond Senior in 2003 about his money having being used to renovate accommodation for Mrs Bond (his divorced wife) at Halswell House, but there was no such accommodation then or thereafter at Halswell House. None of the corrections, however, involve any matter directly relevant to the question of whether he signed the AC PPA or affirmed it after the curtains meeting.
- The judge also made corrections, at the suggestion of counsel following circulation of his draft judgment, to part of his judgment dealing with the expert evidence about the impression that would normally given by execution of the signature page for the investor. But Mr Ascroft fairly accepts that the judge may not have had all the material pages in the experts' reports as some pages had been removed. Mr Ascroft does not say that this error was due to misrecollection on the judge's part. It is, moreover, commonly found that there are immaterial errors in a judgment circulated in draft. Obviously judges try to eliminate errors but in reality they cannot be eliminated altogether. I am satisfied that these 5 errors were either immaterial or were such as to cast no light on whether the judge's recollection was at fault on the issues appealed.
- As to the judge's finding in paragraph 115 of his judgment that Mr Bond Senior signed the AC PPA, Mr Ascroft submits that the judge should not have accepted that the Easter PPA was a genuine document. He draws attention to the differences in formatting and wording. He submits that the judge failed to give adequate attention to the use of a different logo. It should have been definitively found that this logo was not in existence in February 2003 since the respondents have been unable to provide any other electronic or hard copy dating from this period. It could not have been produced until later. The judge did not provide an explanation as to how style 3 was produced as early as February 2003. He should not have discounted the use of different logo on the grounds that the photocopying might have had a distorting effect. The judge was in error when he held that the logo used on the Easter PPA could have been produced at Holdings' offices as early as February 2003 because there was no evidence to support that.
- Mr Ascroft submits that in paragraph 114 of his judgment the judge precluded himself from holding that the Easter PPA was a concocted document because he had already found that the witnesses were honest witnesses. This was wrong since a judge should only have reached his assessment of their truthfulness after he had heard all the evidence. For my own part I consider that in the context of paragraph 114 the words "I found" are in error for "I find" as I do not consider that as a careful judge he would have committed the logical fallacy of finding that they were honest witnesses without taking the relevant evidence into account before he did so.
- On Mr Ascroft's submission, the judge should also have rejected Miss Glynn's evidence once he had rejected her evidence that the AC PPA had been burnt in a bonfire after the burglary in March 2003. Her evidence was in effect an expedient invention to explain why the signed AC PPA could not be produced at the start of the trial. On this point, Miss Stevens-Hoare observed that Miss Glynn had never said that she saw the AC PPA on the bonfire. In any event, credibility is primarily a matter for the trial judge and there is nothing to show that his recollection of Miss Glynn's evidence or that of other witnesses was factually incorrect in any material respect.
- Furthermore, on Mr Ascroft's submission, the judge failed to take into account that it was unlikely that Mr Bond Senior would bind himself to the AC PPA after the professional advice he had received. His advisers considered that the AC PPA was a one-sided document, giving control to Holdings and they unanimously advised that he should take the PPR route. In addition, the judge should have given more weight to the various changes in Mr Bond Junior's pleaded case about signature of the AC PPA, and the rejection of Mr Bond Junior's evidence that the AC PPA was signed in the street after the Bentley Jennison meeting on 27 February 2003 or that it was discussed on the way out to the cars. The judge also rejected his evidence about speaking to Mr Curwen about the gift memorandum. Mr Ascroft's submission is that these points taken together serve to undermine Mr Bond Junior's credibility.
- Moreover, submits Mr Ascroft, the statement in Mr Birds' notes that there was a 50/50 intention in respect of Admiral Court, was not something which Mr Bond Senior had told Mr Birds, but which Mr Bond Junior had told him while they were waiting for Mr Bond Senior to arrive at the meeting. The note is consistent with the PPR route and the gift to Mr Bond Junior of a 50% interest in the proceeds of sale. I have explained in paragraph 40 above that the notes contain other material helpful to the respondents, and in any event they are peripheral to the issues with which this appeal is concerned.
- Mr Ascroft also submits that the judge failed to give sufficient weight to the fact that Mr Le Roux had apparently witnessed the AC PPA at the curtains meeting but yet Mr Bond Junior was unaware of this until his sister told him in 2005. The judge was wrong on any basis to assume that Mr Bond Junior did not know that Mr Le Roux had witnessed Mr Bond Senior's signature until February 2006.
- Mr Ascroft launches another major attack on the judge's holding in paragraph 118 of his judgment that Mr Bond Senior was content to give the impression that the AC PPA applied.
- First, Mr Ascroft submits that the judge's conclusion that Mr Bond Senior had agreed to be bound by the AC PPA was inconsistent with the judge's earlier observation in paragraph 53 of his judgment that events between March and August 2003 "did not shed a great deal of light on the terms on which the parties agreed to proceed with the Admiral Court project". But in my judgment Mr Ascroft has misquoted what the judge is saying, which was that he was going to set those events out even if they did not shed much light on the terms on which the parties had agreed to carry out the Admiral Court development. Moreover, in the previous paragraph of his judgment, he made the point that although the conduct of Mr Bond Senior was enigmatic and he might have been trying to pursue both the PPA route and the PPR route, different considerations might apply to his conduct from mid-June 2003.
- Secondly, Mr Ascroft refers to the evidence of Miss Glynn that after signing the AC PPA Mr Bond Senior changed his mind and decided to go down the PPR route. He submits that the judge should have included this evidence in his judgment. However, a judge was not bound to set out in his judgment every piece of the evidence. The question for him was not what Mr Bond Senior intended, subjectively, to achieve but rather what was the objective interpretation of the outward manifestation of his intentions.
- Thirdly, Mr Ascroft submits that the judge was wrong to rely on the failure to protest when he received the project updates. The parties did not follow the payment schedules in the PPA: Mr Bond Senior was supposed to make weekly payments but these were not demanded of him. The only project update which we need to be concerned with is that dated April 2003, which was received in June. Contrary to the judge's finding in paragraph 118, when he received this Mr Bond Senior immediately wrote back to the project manager complaining that the refurbishment exceeded the estimated amount of £60,000. The judge was also wrong to say that the project updates were accompanied by spreadsheets: no spreadsheet was attached in the case of the April update as the judge held (Judgment, paragraph 56). In the circumstances of Mr Bond Senior's protest letter, this would not seem to be a material matter. There were no other disclosed documents referring to an AC PPA that were produced by Dunster to Mr Bond Senior. Mr Ascroft also submits that the judge was wrong to say that Mr Bond Senior "made no attempt to put in place any other form of agreement" with Holdings for the refurbishment because the memorandum of gift was sent by Mr Curwen after the Bentley Jennison meeting but this was not in any sense an agreement with Holdings for refurbishment and was sent before the curtains meeting took place, whereas paragraph 118 is dealing with events after 28 February 2003.
- Miss Stevens-Hoare's essential approach is that the judge's ability to find the facts was unimpaired by the period of delay. The factors raised by Mr Ascroft were factors to be weighed up by the judge but there were other factors as well going the other way. For example, Mr Bond Senior never made it plain to Mr Bond Junior that he was not prepared to go down the PPA route. Mr Bond Senior had conceded through his solicitors at an early stage in the proceedings that the terms of an informal partnership agreement were reached in February 2003. Moreover, there was no contract for the development such as would be expected if the parties had gone down the PPR route and Mr Bond Senior was the sole owner of the property, Moreover, save for a period of about one month, Mr Bond Senior was not registered as the owner of the property for Council tax purposes. In addition at a late stage in the proceedings Mr Bond Senior had had to accept that he had signed a PPA for The Rookery. That raised the possibility that he had done so also for Admiral Court, and that he would not have simply followed what his professional advisers were telling him on this transaction.
- As to paragraph 118 of the judgment, Miss Stevens-Hoare submits that the judge's finding that Mr Bond Senior had given the impression that he was bound by the AC PPA was based on a range of factors, not just the delivery of the two updates. She refers to the evidence to which the judge refers in paragraph 116 of his judgment. There were at least 8 other matters which showed that Mr Bond Senior gave the impression that he was bound by the AC PPA:
i) Mr Bond Senior paid all the money initially required under the AC PPA to Holding when asked to do so.
ii) Mr Bond Senior paid the finder's fee and management fee provided for by the AC PPA without question.
iii) Holdings paid all costs and expenses associated with the purchase in its own name as if it were a partner under a PPA and there was no evidence that Mr Bond Senior investigated these figures.
iv) The cost of the refurbishment work was calculated on the basis that VAT would not be paid and this was consistent only with a PPA and not the PPR route.
v) Mr Bond Senior did not register for council tax but let Holdings register, which was inconsistent with PPR route.
vi) Council tax was dealt with on the basis that Admiral Court was unoccupied and being developed. This conflicted with the PPR route, and Mr Hards' recommendations.
vii) Mr Bond Senior did not exercise control over the works until he took possession and excluded the respondents.
viii) There was no other agreement for the refurbishment works.
- In addition, Mr Bond Junior gave evidence that his father took a close interest in the refurbishment works being carried out by Holdings. The documentation for the PPR route had also not been progressed after the preparation of the memorandum of gift. When Mr Bond Senior objected to the April update, Mr Le Roux replied on behalf of Mr Bond Junior but Mr Bond Senior took his complaint no further and was content to allow Holdings to carry on with the refurbishment work.
- Miss Stevens-Hoare submits that the judge was entitled to come to the conclusion he did. The mere fact that Mr Bond Senior changed his mind and decided against the PPA route after the curtains meeting (according to Miss Glynn's evidence) would not prevent him giving the impression that he accepted he was bound by the AC PPA. The judge was entitled to accept the evidence of Miss Glynn and Mr Le Roux about the curtain meeting.
- I now draw the threads of the key points in the parties' submissions together so far as I have not yet dealt with them.
- So far as the signature by Mr Bond Senior of the AC PPA was concerned, the judge had to decide whether he believed the evidence of Mr Bond Senior or that of Mr Le Roux and Mr Bond Junior. His evaluation of both father and son as witnesses meant he had to be cautious about accepting the evidence of either of them. Significantly, however, Mr Bond Senior did not go back into the witness box to give evidence after the disclosure of the Easter PPA. He filed a witness statement, which included the passages set out above.
- That statement was not a categorical denial of signature of the PPA. Moreover, despite what is said in this witness statement, Mr Bond Senior was constrained to concede in the closing stages of the trial that he had signed the Rookery PPA. This undermined the unlikelihood that would otherwise have existed unalloyed that he would not have signed the AC PPA. Mr Ascroft suggested that there was a side agreement to the Rookery PPA which allowed Mr Bond Senior greater flexibility than the AC PPA and that the Rookery was a smaller project but I do not consider that the significance of signature can be so easily discounted.
- On the other side of the scale the judge had to take into account that Mr Bond Senior had had firm advice from his own solicitor and accountant not to enter into the AC PPA and to use the PPR route. He also had to take into account the fact he had rejected Mr Bond Junior's evidence that the AC PPA had been signed by Mr Bond Senior in the street after the Bentley Jennison meeting and on other points, but the crucial evidence on the signature issue was not that of Mr Bond Junior. He also had to take into account that the Easter PPA and the signature pages had emerged in unusual circumstances at a very late stage in the trial. The judge realised that it was odd that Mr Le Roux did not mention his witnessing of a document at Mr Bond Senior's request at the curtains meeting to his partner Mr Bond Junior at the time. Nonetheless, the compelling evidence, for which there was no other explanation than that it supported the judge's finding on signature, was that the signature pages did bear the signature of Mr Bond Senior and of Mr Le Roux. There was no evidence that Mr Le Roux witnessed any other document for Mr Bond Senior.
- The compelling evidence of Mr Bond Senior's signature witnessed by Mr Le Roux puts all the other points into the shade. There was in any event no need for the judge to mention all the points that were relevant to the signature issue in paragraph 115 because they were contained elsewhere in his judgment and it would be unrealistic to assume that he did not have them well in mind by the time he reached paragraph 115 of his judgment.
- Mr Ascroft powerfully makes the point that there is no independent evidence that the logo used on the Easter PPA was in existence in February 2003. But the judge heard all the evidence and concluded in paragraph 114 that it was possible that it could have been produced as early as February 2003. That is clearly a judgment made with the benefit of having heard the evidence. The judge does not set all that evidence out but Mr Ascroft has not taken us to anything in Mr Le Roux's evidence which shows that the judge's finding on this was against the weight of the evidence. The judge was in error in supposing that the logo used on the Easter PPA had been made at the offices of the first and second respondents. Mr Le Roux's evidence was that it was more likely to have been printed at his and Mr Bond Junior's home. But nothing turns on this error. Nor does anything turn on the judge's point about the distorting effect of photocopying. He was only making that point in a very general way, and as such what the judge said is no more than common experience. In reality it added little or nothing.
- In all the circumstances I am satisfied that the judge was entitled to reach the conclusion that he did on the signature issue. Mr Ascroft has not been able to alight on any matter directly referable to signature which was erroneous or suggestive of material misrecollection by the judge. Mr Ascroft fairly described the errors pointed out to the judge on circulation of his draft judgment as minor. They do not undermine confidence in the judge's findings on other points. The judge had full access to his notes and the documents in the case for the purpose of writing his judgment. Excluding the issue of delay and applying the normal standard of review, the appeal on this issue in my judgment fails.
- As to paragraph 118, the strong points in the appellant's favour are (1) that he protested about the estimated construction costs of £161,000 shown in the April update and the judge was wrong in paragraph 118 to say that he made no protest; (2) that he did register the Admiral Court in his name for council tax purposes; and (3) that he had his name placed on the electoral register for Admiral Court, used the Admiral Court address for his driving licence and arranged for his bank statements to be sent there. As to (1), as Miss Stevens-Hoare submits, the protest was never followed up and was "left hanging". The judge was clearly mindful of this protest because he deals with it at some length in paragraph 58 of his judgment. He concluded that Mr Bond Senior might possibly not have received the reply sent to him by Mr Le Roux, but there is nothing to suggest he followed that up. That error did not in my judgment diminish the judge's advantage as trial judge to make findings of fact. As to (2), Mr Bond Senior's name was quickly replaced by that of Holdings. As to (3), these acts were certainly consistent with the PPR route but were relatively minor acts. It appears also that, although he served it within two years of the acquisition of Admiral Court, he did not serve a PPR election until after the parties had fallen out with each other.
- As against those matters on which the appellant relies, there were many other circumstances which gave the impression that he was content to abide by the AC PPA, in particular his failure to insist that Holdings enter into a contract for the development with himself. These matters are enumerated in Miss Stevens-Hoare submissions as summarised above. While Mr Bond Senior is said to have taken an very active interest in what was happening at Admiral Walk, the evidence suggests that he was content to allow Holdings to be in charge of the refurbishment.
- Accordingly in my judgment there is no basis for setting aside the judge's finding in paragraph 118.
- I have stressed above that some of the events in this case were extraordinary. So they were, and that calls for greater scrutiny. But that does not mean that the judge could not find that the burden of proving them, which as he recognised lay on the respondents, was discharged. I accept Miss Stevens-Hoare's submission that in this case the delay in delivering judgment did not render the judge's conclusions on the issues under appeal unsafe so as to make it just to order for retrial.
Disposal of the appeal
- The nature of the grounds of appeal is such as to impose additional responsibility on an appellate court. However, having considered the submissions I have come to the clear conclusion that this appeal should be dismissed.
- I have two postscripts. First, we would pay tribute to both counsel. It was of great benefit to the court to have the same counsel as had appeared at trial as we were able to obtain answers to detailed questions about what had happened at the trial. Without in any way compromising the submissions that he needed to make on behalf of his client, Mr Ascroft began his submissions by expressing his personal regard for the judicial qualities of the judge. Miss Stevens-Hoare is also to be commended particularly for the fact that she prepared the case under the difficulty of lack of time (she was given a brief only shortly before the hearing), and had access to only some of her client's papers as the respondents had been unable to obtain their release from the lien of his previous solicitors. Both counsel acted in accordance with the highest professional standards. But I note that the judge wrote of this case:
"…this is an unhappy piece of litigation which ought not to have fought. It has been driven to a trial by intransigence on both sides."
- It is clearly in everyone's interests that the disputes between these parties should come to an end and that the parties should reach an agreement about outstanding matters if that is possible. The professional advisers to the parties should bear this in mind in their advice about the issues that are not resolved by this appeal.
- Lastly, the result in this case, if the Master of the Rolls and Lord Justice Longmore agree, does not in any way detract from the seriousness of what I said at the start of this judgment, namely that a delay of 22 months in the delivery of judgment was lamentable and unacceptable. That point must be made, and if necessary, repeated, loud and clear. It should not happen again.
Lord Justice Longmore:
- The critical issue in this distressing case is whether Mr Bond Senior "GBS" agreed with Mr Bond Junior "GBJ" that he (GBS) would lend money to his son and be bound by what is called the PPA agreement by which he would gain half the profit after the penthouse at 18 Admiral Court in Chelsea Harbour had been refurbished by DHL.
- Between December 2002 and July 2003 GBS paid £520,000 to GBJ in ten separate payments. Some were paid into the account of DPL, some were paid into the account of DHL and some were paid to Lewis Silkin, GBJ's solicitors. The plan was that this money would be used to acquire and re-develop the penthouse. Some of the monies may also have constituted more general loans to the GBJ's business. GBJ gave GBS six personal cheques, post-dated to dates from June to December 2003, totalling £520,000, by way of security but GBS did not present any cheques until he presented one in late December 2003, which was returned unpaid. He tried to present three more in early 2005 but payment was declined as they were out of date.
- On 27th February 2003 GBS and GBJ had a meeting in Bristol at Bentley Jennison, GBS's accountants and tax advisers. This was followed by a meeting at GBS's home on 28th February 2003. The question is whether GBS orally agreed to be bound by the terms of a PPA at some point during or between these two meetings and indeed whether he actually signed a document to that effect.
- In August 2003 GBS "lost patience when his son asked for further advances". He then seized the keys and, as the legal owner of Admiral Court, completed the refurbishment to his own design to the exclusion of DHL. In May 2005 GBS sold Admiral Court and retained the sale proceeds. GBS apparently "agrees to give GBJ 50% of the net profit from the sale", but GBJ says that the figure his father has in mind is a great deal less than DHL would have earned if the PPA had applied from start to finish.
- On 1st June 2005 GBS commenced his claim for the repayment of his advances, with the current balance being £300,000 after some repayments from GBJ, including agreed interest of 10% per annum. GBJ then counterclaimed for the loss of profit that he says would have been made if GBS had stuck to their agreement rather than seizing the keys and completing the project by himself. On 5th February 2007 a trial of preliminary issues – as to whether a Project Partnership Agreement was concluded and, if so, what its terms were – was ordered.
- A great deal of the judgment is taken up with the (to my mind) ultimately non-critical issue whether GBS did actually sign a copy of the PPA. If he did, it would, of course, be indicative that he had agreed to proceed down "the PPA route" rather than "the PPR route" by which he rather than the partners would be the beneficial owner of the penthouse and himself be responsible for the refurbishment. The benefit to GBS of proceeding down the PPR route would be that he rather than DHL (and through DHL, his son) would have control of the refurbishment but there were disadvantages too. Among these disadvantages were the fact that GBS would have to live in the penthouse while the refurbishment was going on if he was to avoid paying capital gains tax, that he would have to make himself primarily responsible for paying council tax and that he as an ordinary individual would have to pay VAT on the cost of refurbishment because he could not (as DHL could) treat it as a business expense.
- Since the project went ahead for six months until GBS became disenchanted and changed the locks, it is impossible to imagine that there was no decision or agreement on the question whether it was to be DHL or GBS who was to arrange and pay for the refurbishment; the only question is who it was to be? DHL pursuant to the PPA route or GBS pursuant to the PPR route.
- The judge decided that GBS had actually signed a PPA agreement in relation to Admiral Court in spite of the fact that until the 7th day of a hearing (itself split into two and separated by 3 months) the only version of the PPA was a photocopy of a photocopy, only disclosed less than a month before the date of 8th May 2007, the date on which the trial of the preliminary issues was due to begin. On that 7th day part of a further version was produced, said to be a "just discovered original" which undoubtedly contained the signature of GBS witnessed by Mr Le Roux. Confronted by this signature, GBS's evidence that he had never signed a PPA was obviously wrong. He gave no oral evidence as to how he had come to give that untrue evidence, but rather (following the discovery of the Easter PPA) put in another statement and instructed his counsel to "concede" that he had signed a PPA but that it must have been for another and later project known as the Rookery. Once the judge had concluded that GBS had signed a PPA for Admiral Court he regarded the preliminary issue as being decisively resolved in favour of GBJ and GBS.
- The judge also went on to conclude (para 119) that, even if there had been no evidence about the signing of the PPA, he would have concluded that:-
"GBS had agreed to follow the terms of the PPA as the basis of the joint venture with his son, regardless of whether this was or was not compatible with making a principal private residence election for CGT"
- In support of this conclusion the judge relied on the following facts and matters:-
i) Project Update Reports, as envisaged by the PPA, were sent by DML to GBS;
ii) a finder's fee and a management fee were charged by DHL, likewise as envisaged by the PPA;
iii) the costs of the refurbishment were calculated on the assumption that VAT would be reclaimed;
iv) GBS made no objection to any of this, although it is true (and it is not mentioned by the judge) that he did protest at the amount of the refurbishment costs being charged;
v) GBS made no attempt to make any other agreement in relation to the project nor did he purport to exercise any control over the works until he excluded GBJ from the property in August 2003;
vi) although GBS did register himself for Council Tax for a month (a fact not mentioned by the judge), DHL replaced him on the register and became notionally liable for Council Tax thereafter.
- These matters show, to my mind, that there was a considerable amount of evidence to support the judge's inference that the PPA route rather than any other route was agreed. This conclusion did not depend in any important sense on the judge's assessment of the witnesses and cannot, in my view, be affected by the very regrettable delay of 22 months between the date when the hearing was concluded and the date of judgment.
- For these reasons I agree with Arden LJ's judgment and her proposed disposal of the appeal. I have seen the Master of the Rolls' judgment in draft and whole-heartedly agree with it.
Master of the Rolls:
- I agree with the clear and full analysis of the issues raised on this appeal contained in the judgment of Arden LJ, and with what is said in the shorter judgment of Longmore LJ, who has summarised His Honour Judge Havelock-Allan QC's reasons for finding in favour of Holdings and Mr Bond Junior. I only add a few words because of the regrettable history of these proceedings, which seems to have been beset with problems. It may be that some lessons can be learnt.
- The first problem was that the parties agreed to the determination of preliminary issues. This appears to me to have been very unwise, given that the hearing was anticipated to last four days, and, it would seem, to involve oral evidence, much of it from parties or witnesses who could reasonably have been expected to give evidence at any subsequent hearing. By the time the preliminary issues hearing was intended to start, the proceedings would have already been on foot for nearly two years and the relevant events would have taken place nearly four years earlier.
- While they have their value, it is notorious that preliminary issues often turn out to be misconceived, in that, while they are intended to short-circuit the proceedings, they actually increase the time and cost of resolving the underlying dispute. It would, in my judgment, require a very exceptional case, almost inevitably one where a subsequent multi-week trial was anticipated, before a preliminary issue hearing, involving witnesses and expected to last four days, could be justified.
- In this case, the delay in giving judgment and the last of the adjournments could not have been anticipated, but, even if one notionally deducts two years for those misfortunes, the preliminary issue would have been determined nearly three years after the action was started and nearly five years after the relevant events occurred. In my view, parties and their legal advisers should carefully consider the potential benefits and risks before proposing a preliminary issues hearing, and, before a judge orders such a hearing, he or she should normally test the soundness of the proposed course.
- The second problem in this case was that the start of the preliminary issue hearing had to be adjourned for three months because insufficient time had been set aside, but it would also have been necessitated by late disclosure, and that there was a subsequent eight month adjournment because of late disclosure. In each case, it was Mr Bond Junior who was responsible for the disclosure in question.
- In this case, the Judge seems to have accepted that each late document disclosed late was genuine and that the lateness did not involve any culpability on the part of Mr Bond Junior, so it may well be that there was nothing else that could have been done. The more general point is that parties should take their disclosure obligations seriously and timeously, and should be expected to be appropriately sanctioned if they fail to comply with that obligation.
- The third problem was that the time estimate was over-optimistic. That is not an unknown problem, and sometimes no party is to blame for it. However, a ten day hearing following a four day estimate inevitably raises the inference that the estimate was unrealistic. The discovery of the second document, which led to the adjournment between in October 2007, may have been responsible for an extra day, but, apart from that, it seems to me difficult to understand how the estimate could have been so wrong.
- In my view, judges should be more ready than they have been actively to manage hearings which are starting to run on beyond their time estimates or in a way which is simply disproportionate to the issues at stake. I appreciate that this is much easier to say in an appellate court than it is to implement at trial, and that it may often be hard to impose time limits fairly, especially once a hearing has got under way. However, particularly where parties and their representatives can be given a fair warning, I consider that trial judges should try and control hearings when things seem to be getting out of hand – and that an appellate court should, if at all possible, support their decisions.
- The fourth problem in this case was that, not only was the hearing spread over three different periods of three or four days each, but it was spread over nearly eleven months. That can be a by-product of an under-estimate, especially when combined with late disclosure, but it is unsatisfactory from the point of view of the presentation of the respective parties' cases and from the perspective of the judge deciding the case. Where a hearing is adjourned part heard, the trial judge and the court should do their very best to ensure the gap until the hearing resumes is kept to a minimum. Legal representatives have a similar duty in this connection.
- The fifth problem in this case was the undue concentration on the question of whether Mr Bond Senior had signed the Easter PPA. That issue led to the need for an adjournment for over eight months, the obtaining of expert evidence and the recalling of at least one witness, and much analysis in closing speeches and in the judgment. Yet, as an issue, the point was plainly not determinative of the dispute between the parties. It is obvious that, if a person signs an agreement which records him as one of the two parties to it, he is not contractually bound by it until he hands it over to the other party, or communicates to the other party in some way that he is treating himself as bound by it. There is no question of the Easter PPA having been handed over to Mr Bond Junior, and his case therefore had to rest on his father's conduct, which was an independent point he ran anyway, and indeed the point on which he succeeded.
- The only value to Mr Bond Junior of establishing that his father had signed the Easter PPA was to cast doubt on his father's reliability as a witness in general, and, more specifically, to call into question his father's repudiation of the notion that he had ever contemplated being bound by the PPA. However, the Judge was in any event unimpressed with the reliability of Mr Bond Senior as a witness. Accordingly, while it was helpful to Mr Bond Junior to show that it was Mr Bond Senior's signature on the Easter PPA, it did not have the central importance which the Judge seems to have thought.
- The final, and most regrettable, problem in this case was the 22 month delay between the end of the hearing and the delivery of the judgment. In paragraphs 1 to 13 above, Arden LJ has expanded on the point that a serious delay in giving judgment, particularly where it is not explained or even apologised for, is a species of denial of justice. That has always been true, but since the introduction of the Civil Procedure Rules, with their emphasis on cooperation between the parties and the need to avoid delay, the duty of a judge to produce a judgment promptly has become greater than ever.
- An unjustifiable delay in giving judgment has a number of undesirable consequences. It leaves the parties in a state of uncertainty for a longer time than can be justified: whatever the issues at stake, such a delay is plainly wrong in principle and practice. Such a delay also inevitably undermines confidence in the reliability of the delayed judgment, which is bad in itself, and serves to undermine confidence in the judiciary generally. Further, it will often lead to an appellate court entertaining, and sometimes allowing, an appeal when it would otherwise not have done so, which in turn means increased cost delay and uncertainty. In this case, I rather doubt whether permission to appeal would have been granted if there had not been such a gross delay in handing down judgment.
- The judiciary has a duty to minimise such delays, both in number and in duration, and, where such a delay occurs, the litigants are entitled to expect an apology, and, if there is one, an explanation. In Goose v Wilson Sandiford  TLR 85, this court said that a delay, which was very similar in length to that in the present case, should not happen again. Unfortunately, it has done so, and, as Arden LJ has suggested, I propose to investigate whether more robust and effective procedures are needed in some quarters to minimise the risk of such a problem arising in the future.
- Having said that, it seems to me clear that, as a matter of good sense and authority, even a long delay such as has occurred in this case will not automatically invalidate or even undermine the judgment when it is eventually produced, although it must cause an appellate court to look very critically at the judgment. In the present case, I agree with Arden and Longmore LJJ that it is clear from the contents of the judgment, the grounds on which the Judge decided the issues, and the full and clear notes which he made, that the long delay in producing the judgment is not a good ground for allowing Mr Bond Senior's appeal, and that, once that ground is disposed of there is no other basis for challenging the Judge's conclusion.
- In essence, as fully explained by Arden LJ, and summarised by Longmore LJ, the Judge found that, as a result of various events, none of which were really in dispute between the parties, Mr Bond Senior had communicated to Mr Bond Junior a binding intention to be bound by the PPA. Given that this conclusion was essentially based on uncontroversial facts, was not contradicted by any other evidence, does not appear to have overlooked any vital piece of evidence or argument, did not depend to any significant extent on an assessment of witnesses, and was justifiable as a matter of law, it seems to me that no ground for allowing this appeal has been made out.
- Accordingly, echoing Arden LJ's commendation of the way in which the arguments were presented to us at what could have been (but was not) a long and difficult hearing, I too would dismiss this appeal.
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