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||Neutral Citation Number:  EWCA Civ 229
||Case Nos: A3/2015/4318 and A3/2016/1223
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Mr Stephen Morris QC (sitting as a Deputy High Court Judge)
 EWHC 3117 (Ch)
||Royal Courts of Justice
Strand, London, WC2A 2LL
||6 April 2017
B e f o r e :
LORD JUSTICE PATTEN
MRS JUSTICE PROUDMAN
SIR COLIN RIMER
|| EDWIN JEROME E. LEWIS
||- and -
||(1) RAMACHANDREN NARAYANASAMY (t/a DOTCOM SOLICITORS)
(2) YAMUNA SUPPIAH
Adam Solomon (instructed by Dotcom Solicitors) for the Appellants
Patrick Talbot QC (instructed by Acculegal Solicitors) for the Respondent
Hearing date: 21 February 2017
HTML VERSION OF JUDGMENT APPROVED
Crown Copyright ©
Sir Colin Rimer :
- The defendants/appellants are Ramachandren Narayanasamy and his wife, Yamuna Suppiah. The claimant/respondent is Edwin Lewis. The dispute is one between solicitors. The appellants were represented before us by Adam Solomon, the respondent by Patrick Talbot QC. Neither counsel appeared at the trial, which took place over four days in June 2015 before Mr Stephen Morris QC, sitting as a Deputy High Court Judge in the Chancery Division. The judge delivered his 272-paragraph judgment on 29 October 2015.
- Mr Lewis is a Malaysian national. He was called to the Bar first in England and then in Malaysia, after which he qualified as a solicitor. Between 1998 and 2006, he worked for law firms in Malaysia, latterly Sivananthan & Co. Mr Narayanasamy was also called to the Bar in England, after which he too qualified as a solicitor. In May 2004, he commenced practice in Tottenham, London, as the sole principal of Dotcom Solicitors ('the firm'). The judge mistakenly described Ms Suppiah as a partner in the firm. She is its office manager and has never been a partner.
- Mr Lewis and Mr Narayanasamy met whilst studying for the English Bar in 1996/97. In 2007, with Mr Narayanasamy's assistance, Mr Lewis obtained a permit to work in the firm and entry clearance to the UK. He then worked in the firm from 24 May 2007 until 22 January 2010 when, following a breakdown in the relationship, Mr Narayanasamy terminated his contract and he left. Mr Lewis's money claims against the firm and Ms Suppiah followed on 16 June 2011.
- The dispute at the trial turned on the terms and legal nature of Mr Lewis's contract with Mr Narayanasamy. Neither party maintained a consistent position and the varying stances that each adopted presented the judge with what must have been a difficult case. By the end of the trial, each party was asserting that Mr Lewis had been merely an employee of the firm, although they were disagreed as to the terms of his employment. Mr Narayanasamy also had an alternative case, namely that if Mr Lewis's case as to such terms was correct, their true relationship was not one of employment, but of partnership, in which event the partnership was tainted with illegality, a feature barring him from enforcing his claims. The judge substantially accepted Mr Lewis's case as to the terms of the parties' contract, held it was an employment contract and rejected Mr Narayanasamy's alternative case.
The parties' cases
- The judge said that whilst Mr Lewis had not been consistent as to the legal characterisation of his contract, he had been consistent as to its terms. They were: (i) he would be paid £24,000 a year, plus a 10% share of the firm's gross turnover; (ii) he would make a capital contribution of £30,000 to the firm, to be refunded on the termination of the contract; (iii) payment of the £30,000 was to be deferred, with part being paid out of the sale proceeds of a property he owned in Malaysia and the balance set off against his annual 10% entitlement. On 12 February 2009, he paid £16,000 of the £30,000 into a Malaysian bank account in the joint names of Mr Narayanasamy and Ms Suppiah and most of the balance was (he said) paid by the offsetting arrangement. He had at various times described his contract with Mr Narayanasamy as making him a 'partner', an 'equity partner' or a 'salaried partner', but his position at the trial was that he was an employee. His claims were for: (i) the balance of annual salary due when he left the firm; (ii) 10% of the firm's turnover for its years ended 31 March 2009 and 2010 (for the prior year, his share was £13,748, which had satisfied almost the whole of the balance of the £30,000 – the rest was met by £422 owed by him in respect of practising fees); and (iii) repayment of the £30,000.
- The defendants' case, which the judge said had not been expounded consistently, was that: (i) Mr Lewis was to be paid £24,000 a year; (ii) he was to become an equity partner on the satisfaction of two conditions: (a) his generating gross fees of £300,000; and (b) his making a capital contribution of £30,000; and (iii) if and when he so became an equity partner, he was to be entitled to 10% of the firm's net profits. It is agreed he never satisfied what was said to be condition (a), so that on the defendants' case he never became a partner but remained an employee.
- The defendants had an alternative case if their primary case failed. The judge said this had changed during the proceedings and had not always been clear, but that, by the end of the argument, it was as follows. Mr Lewis had obtained a work permit enabling him to work for the firm on the basis of a representation that he was to be an employee. He obtained entry clearance on the same basis. Both representations were said to be false, as he was to be a self-employed partner; and his false representations were said to constitute offences under section 26 of the Immigration Act 1971. He also obtained his work permit in breach of Home Office Guidance and obtained entry into the UK in breach of condition 3(d) of the permit. Alternatively, Mr Lewis failed to correct the position when, if originally he was employed, he later became self-employed. It was said that, as his claim was based on a contract tainted with illegality, it must fail: Mr Lewis had knowingly participated in the contract's illegal performance.
- Mr Narayanasamy also asserted that, when the contract was entered into, Mr Lewis had failed to disclose that he was under investigation by the Malaysian Anti-Corruption Commission ('MACC') in respect of allegations of bribery. His omission to do so was said to render the contract voidable and Mr Narayanasamy claimed to have avoided it.
The judge's order
- By his order of 1 December 2015: (i) the judge gave judgment against both defendants, jointly and severally, for £16,000, with interest (Mr Lewis's initial payment towards the £30,000 contribution); and (ii) he gave judgment against Mr Narayanasamy for (a) unpaid salary of £6,500, and (b) sums equal to 10% of the firm's gross turnover for the years ended 31 March 2008, 2009 and 2010 (for the last period, an apportioned amount), the sums in (a) and (b) totalling £73,385.82. The order provided that Mr Lewis was, however, only entitled to the net amount of that sum (with interest) after the deduction of PAYE tax from the gross amount; and it prescribed how the tax was to be agreed or, in default, determined. The judge ordered both defendants to pay Mr Lewis's costs, with an on account payment of £33,347.20. Vos LJ later stayed the payment of the sums in (ii)(a) and (b), but refused to stay the payment of those in (i) or the on account costs.
The judge's judgment
- The judge, at  to , explained Mr Lewis's case as to the terms and legal nature of the contract, why no illegality tainted it and why Mr Narayanasamy had no right to rescind it. His case was that he was at all times an employee of the firm, although he had to do his own tax return. The judge, at  to , then set out the defendants' case as to the terms and legal nature of the contract, their alternative illegality case and their non-disclosure case.
- The judge, at , listed six issues he identified as necessary for his decision. Between  and , he explained the relevant legal background covering: (i) immigration, work permits and entry clearance visas; (ii) criminal offences under the Immigration Act 1971; (iii) illegality and its effect upon contracts, including employment contracts; (iv) the distinction between contracts of employment and partnership; and (v) non-disclosure;
- The judge turned, at , to the evidence. He described the documentary evidence as mainly comprising contemporary correspondence, including emails, between Mr Lewis and Mr Narayanasamy, work permit and entry clearance documentation and correspondence, accounts and draft accounts and a transcript of a meeting on 22 January 2010 between Mr Lewis and Mr Narayanasamy. He heard oral evidence from four witnesses, who were cross-examined, including Mr Lewis and Mr Narayanasamy.
- The judge said of Mr Lewis as a witness:
'92. … He gave his evidence in a clear, confident and considered manner. However, at certain points, his evidence was evasive, inconsistent and even inaccurate. Most particularly, his initial evidence concerning the MACC investigation was less than full and in parts untruthful. Initially he denied that the allegation against him included an allegation of payment of a bribe, but then accepted it had been alleged that he had received a payment. He then denied that he had not mentioned the payment in his original evidence, but then when pressed accepted that he had not. He insisted that he had not been arrested by the investigators, but documentary evidence from 16 August 2011 indicated that he had provided security for the grant of bail. Further, his denial that it was he who was the subject of the contemporaneous newspaper article was not, in my judgment, credible. This unreliability may well have arisen from a sensitivity, pride and embarrassment on his part that he had been subject to such an investigation and that he had lost his job with Sivananthan; in my judgment, it does not, of itself, mean that his other evidence cannot be relied upon. As to the central issue of the terms of the arrangement he made with the Defendants, his evidence was broadly consistent, although at times his evidence about the details of what was agreed, and when, was not consistent; for example, as to when the "full remuneration package" and in particular the 10% gross term was agreed and as to when it was agreed that his 10% payment would be offset against the £30,000 capital contribution. Whilst on main issues, I believe he was trying to be truthful, these points lead me to being cautious about accepting his evidence on important points in issue without other supporting evidence.'
- That summary of Mr Lewis's qualities as a witness was not a glowing one. The judge's summary of Mr Narayanasamy's qualities as a witness was even less glowing:
'95. … He was also clear and confident. However at times his answers were evasive, over-insistent and even belligerent in a way which suggested that he was not listening to the questions being asked.
96. He changed his evidence as to what happened when [Mr Lewis] accompanied him to the Firm's office in August 2006, initially seeking to deny that one of the purposes of [Mr Lewis's] visit at that time was the possibility of his coming to work for the Firm. His evidence as to his knowledge of the contents of Nathan & Co's letter dated 14 October 2008 was not credible, given the content of the covering letter. In cross examination he claimed that the transcript of the meeting of 22 January 2010 was either not genuine or incomplete and that he had not seen it before. I do not accept that evidence. He had been served with the tape and the transcript in November 2012 and there is no evidence to suggest that the tape was not genuine nor that the transcript was not complete or inaccurate. His claim was not pressed further by his counsel. His evidence, important in the context of the suggested £300,000 pre-condition, about the earnings of the Firm over the relevant period was contradictory and shifting. His evidence about what it was – net turnover, net profit – that [Mr Lewis] was entitled to 10% of was not consistent. On a key issue in the case – the truth or otherwise of the contents of the work permit application form which he had completed – in his oral evidence he did not stand by his witness statement evidence to the effect that these statements were part of a pretence. (In closing the Defendants' counsel confirmed that he did not rely upon those aspects of his witness statement). He accepted that the statements in the form were true. However he then said that they were only [a] proposal to the Home Office (and not to [Mr Lewis]) and that the Home Office did not accept them. In my judgment, this evidence was deliberately evasive and obfuscating. Certain of his denials were not credible. At times he denied the plain meaning of the November 2006 emails and he denied that a major topic of the discussion in November 2006 was [Mr Lewis's] remuneration package. He denied that [Mr Lewis] and he had started discussing the prospect of working for the Firm before the visit in August 2006. Finally I note that in correspondence with the Malaysian Bar Council with the Solicitors Regulation Authority in October 2011 and in September 2012 he claimed not to have known about the MACC investigation until January 2010. These statements were untrue. It is plain that he must have known about it by September 2009 at the very latest.
97. Overall I did not find Mr Narayanasamy to be a reliable witness and I do not accept his evidence absent supporting evidence on any particular issue.'
- The judge, at , embarked upon an account of the relevant events, setting out the rival cases as to what happened and his findings in relation to them. The appeal against his order is based on 18 grounds (Mr Solomon abandoned ground 19), of which several are directed at challenging his findings of fact and at inviting this court to substitute for the judge's acceptance of Mr Lewis's case as to the terms of his employment findings that the terms were those asserted by Mr Narayanasamy. The grounds also assert that, if the judge was right to accept Mr Lewis's case as to the terms of his engagement, the true relationship was one of partnership rather than employment. In such event, the partnership contract was illegally performed and Mr Lewis's claims could not succeed.
- Given the nature of the grounds, I consider I can only deal with them if I first summarise the essence of the findings the judge made in the course of relating the story and identify certain of the disputed contentions he had to resolve. I shall then summarise the judge's findings on the critical issues.
The judge's findings on the facts
- At some point in 2006, the Law Society of England and Wales informed Mr Lewis that, to qualify as a solicitor here, he must take two papers of the Qualified Lawyers Transfer Test ('QLTT'). Prior to July 2006, he had discussions with Mr Narayanasamy about coming to England to join the firm. His original plan was to do the QLTT in early July 2006.
- On 6 July 2006, an article in a Malaysian newspaper reported that a partner in a law firm on the panel of a prominent motor insurance company had been arrested for allegedly accepting a bribe from another lawyer to procure the company to withdraw a complaint to the Anti-Corruption Agency. On 10 July, Mr Lewis resigned from Sivananthan. He said in his witness statement that he had acted for one of the biggest SE Asia motor insurance companies and specialised in handling fraudulent claims. He said a firm of lawyers in Malaysia had lodged a false allegation against him in a bid to derail an investigation against them. He lodged a police report against the firm and the MACC came in and wanted to look at certain files. They took the files away and he went with them and answered their questions. He denied in his oral evidence that the newspaper article referred to him but the judge regarded his evidence on this as weak, incredible and evasive and did not accept it.
- At the same time, Mr Lewis and his wife had been planning to come to England, in part to seek advice about fertility treatment. They had originally planned to come on 2 July but cancelled that plan because of the MACC investigation. Mr Lewis emailed Mr Narayanasamy on 14 August to say they would be coming on 25 or 26 August. He wrote that he had left Sivananthan, was keen on Mr Narayanasamy's 'offer' (to join the firm, one made some time before 14 August) and was planning to sit the QLTT on 27 September.
- Mr and Mrs Lewis arrived in the UK on 22 August. They came here not just for the purpose of seeking fertility advice but also with the prospect of Mr Lewis joining the firm. They stayed with Mr Narayanasamy. There was a dispute as to whether they discussed the MACC investigation during that visit. That went to the non-disclosure issue, one not raised by the appeal. The judge found that Mr Lewis did disclose the investigation to Mr Narayanasamy in August and he rejected Mr Narayanasamy's contrary evidence. Mr Lewis completed the QLTT on 27 September, after which he and his wife returned to Singapore.
- In the first half of November 2006, there was email correspondence between Mr Lewis and Mr Narayanasamy relating to plans for the firm. The judge summarised it at  to . It included a discussion of the possibility of two of Mr Lewis's friends also joining the firm. The judge, at , made these findings about these exchanges:
(i) Mr Lewis and Mr Narayanasamy discussed the remuneration package of the two friends and the possibility of the firm merging with another firm. They also discussed, or had earlier discussed, Mr Lewis's pay upon joining the firm: that was to include, at least, a monthly salary of £2,000.
(ii) They discussed the possibility of Mr Lewis joining the firm 'as a partner' and 'as an equity partner'. The judge found it unclear what they meant by 'equity partner' and whether profit sharing meant a share of gross earnings or net profits. They may have been at odds about this.
(iii) They discussed the idea of Mr Lewis making a capital contribution, although at the same time Mr Narayanasamy was prepared to take Mr Lewis on only as an employee.
(iv) By the time of the email of 6 November, Mr Narayanasamy had raised the concept of a 10% profit share for those wishing to become a partner. Mr Lewis had also raised the idea, in relation to the two friends, of a package based on a percentage of gross turnover.
(v) There was no evidence of any specific discussion that Mr Lewis was to be entitled to 10% of gross turnover, nor that his full remuneration package was finalised during this period.
(vi) Mr Lewis was keen to join the firm. Mr Narayanasamy was pressing him to do so sooner rather than later.
- The judge referred to further correspondence in December 2006 and January 2007 and to further evidence as to the terms of Mr Lewis's arrangement with the firm. Mr Lewis said in his witness statement that the terms were agreed in January 2007 and that 'I was to contribute £30,000 to become an equity partner so that I would receive £24,000 plus a profit share equivalent to 10% gross ... It was agreed that the contribution to the equity partnership will be refunded upon the dissolution of the partnership.' He said in cross-examination that those terms had been discussed from August/September 2006 and were finalised in January 2007. He denied he needed to generate £300,000 earnings to become an equity partner. He said Mr Narayanasamy wanted partners to invest £30,000, but there was an exception for him: he could pay in £20,000 when he sold his Malaysian property and the rest would be taken off his earnings for the following year. He would be paid £2,000 each month and then 10% of gross takings. Tax and NIC was to be paid by the firm.
- Mr Lewis said in his oral evidence that the arrangement was that he would come in as a partner on this remuneration package – that is, as a partner who in Malaysia would be termed a 'salaried partner'. He disputed he was coming in as an equity partner. He had referred to doing so in his particulars of claim but said he had there meant as a salaried partner. He would have a say in the running of the firm as a salaried partner, but the final decision would be by whoever owned the firm. He was going to run the litigation department and so, to that extent, would have a say on how the firm was run.
- Mr Narayanasamy's written evidence was that Mr Lewis would come in as a salaried partner. Once he had achieved the target of £300,000 income from his clients, he would change from being an employee to an equity partner, when the £30,000 capital contribution would become payable. His salary would then cease and his work permit would need to be changed as he would no longer be an employee. He said Mr Lewis was never included in the running of the firm, he knew his role was as a salaried partner and he knew the difference between a salaried partner and an equity partner. In his oral evidence, he departed from this evidence by saying the £30,000 was to be payable immediately. The judge found he gave evasive and inconsistent evidence in answer to questions to the effect that the firm had never generated £300,000 of turnover. Mr Narayanasamy was emphatic that Mr Lewis joined the firm as an employee and remained so: that was because he did not achieve the earnings target.
- The judge moved, at , to consider the work permit application made for Mr Lewis. On 2 February 2007, the firm submitted an application to Work Permits (UK). The completed form WP1, signed by Mr Narayanasamy, showed that the application was made by the firm, as employer, in respect of Mr Lewis as an employee. The answer to question 44 recorded that what had been, or was to be, offered to Mr Lewis was 'the partnership on full time employment' (whatever that may mean). The answer to question 55a said that Mr Lewis would be a 'partner' of the firm but in cross-examination Mr Narayanasamy said, in relation to this, that 'the form is for an employee, you could label him as a partner/employee.' In answer to question 55b, as to the qualifications and skills required for the post, Mr Narayanasamy stated that 'the candidate … must be either a salaried or equity partner of a well-established firm. He must also [be] able to manage and supervise other solicitors in his department and generally.' In answer to question 56b (as to whether Mr Lewis would hold shares or have a beneficial interest in the firm), Mr Narayanasamy said 'If the candidate is granted a work permit, he will be receiving 10% of the equity share of the firm'. In cross-examination, however, he denied the truth of that answer. He said he was a sole practitioner, he was going to employ Mr Lewis and, despite the answer to question 56b, it was not the intention to give him a share. The answer to question 66, about the intended level of Mr Lewis's responsibility, was (by reference to an annexed chart) that Mr Narayanasamy was at the top of the chain, as senior partner, and Mr Lewis was shown as a 'partner', with other fee earners being shown as employed and reporting to the two partners. That chart could not stand with Mr Narayanasamy's evidence in cross-examination.
- By a letter of 9 February 2007, Work Permits (UK) notified the firm that they could not approve the application. They said the quoted salary did not appear to be the normal wage for the proposed occupation, especially taking account of Mr Lewis's experience as a partner of Sivananthan and that 'he would hold the position of Solicitor/Partner' with the firm.
- By a letter of 2 March 2007, the firm sought a review of that decision. The essence of the further supporting information it provided was that Mr Lewis would receive a salary of £24,000 'together with 10% of the equity share in the firm' and that it was estimated he would be earning more than £50,000 in his first year. It was agreed that the £50,000 was calculated on the basis of £24,000 plus 10% of the firm's gross income. By a further letter of 29 March 2007, the firm wrote, in explanation of how 'the equity shares will be paid to Mr Lewis' and 'how the tax are paid on the above' that, for example:
'If the gross income for the month is £25,000 before VAT, Mr Lewis will be receiving £2,000 as wages plus £2,500 as 10% equity shares. Mr Lewis will be receiving £4,500 subject to his Income Tax and Employee National Insurance. These will be deducted from his pay cheque. The employer will be paying the Employer National Insurance on the £4500.00.'
- It was put to Mr Narayanasamy in cross-examination that he was there clarifying to Work Permits (UK) what Mr Lewis's actual salary was to be. His answers were that the firm was explaining to the agency what Mr Lewis would be paid but that 'This is not copied to the employee – this is a proposal for the work permit agency. It is not a proposal to the employee.' The sense of that seemed to be that these terms had not been agreed with Mr Lewis.
- Work Permits (UK), on 17 April 2007, issued a work permit to Mr Lewis for an 18-month period. It referred to the firm as the 'employer', to his occupation as a 'solicitor/partner' and to his 'salary remuneration' as £24,000. There was no reference to the 10% equity share (meaning, as Mr Narayanasamy had explained) 10% of gross turnover, but Mr Lewis said that he had agreed that with Mr Narayanasamy. By contrast, Mr Narayanasamy's evidence in his witness statement was that Mr Lewis would initially be entitled only to the £24,000 salary and would only become entitled to his 10% share of the 'net profit' if he first generated fees of £300,000. He explained that by 'net profit' he meant, as I follow it, gross turnover less disbursements relating to the particular cases, but not office expenses. I understand his evidence in his witness statement to have been that the statement in his work permit review application to the effect that Mr Lewis would also receive 10% of gross turnover was directed at obtaining the permit on the basis of a false pretence. His case there had been that all he had agreed with Mr Lewis was that he should initially receive only £24,000. The judge said, however, at , that Mr Narayanasamy 'seemed to accept that the 10% discussed in the context of the partnership (if the target was reached) was 10% of gross or at least net turnover (and not fully net profit).'
- The judge moved to entry clearance. Mr Lewis had to apply for that, as he did. To that end, Mr Narayanasamy had on 17 April 2007 posted him the work permit plus a partially completed Form VAF1 needed for the application. Mr Narayanasamy's contribution to the form was that Mr Lewis was coming to the UK to take up employment, that his job was to be as a 'Solicitor/Partner' and that his employer was to be the firm. On 2 May 2007, Mr Lewis raised with Mr Narayanasamy three queries about the form, which the judge said reflected his concern that the details given were accurate. Mr Lewis then modified the form and signed it. At his appointment with the British High Commission he was then told he would need, amongst other things, a contract of employment with the firm or a draft of such a contract.
- At Mr Lewis's request, Mr Narayanasamy sent him a draft contract, describing it as 'based on our verbal terms of agreement …'. He wrote that it was:
'… our standard employment contract that we generally use in this office. However, the terms are amended according to the nature of the employment and employee's needs. You may propose amendments, however the firm may not accept substantial amendments'.
The draft was addressed to Mr Lewis and was largely in standard form wording, running to 69 clauses over eight pages. It described Mr Lewis's job title as 'Solicitor/Partner', his salary as £24,000 a year, his 'Profit Sharing' as '10% per annum' and his working hours as 40 hours a week. The draft throughout referred to him as an employee, or as employed, and that the firm's relationship with him was one of employment. Clause 8 provided:
'On accepting the employment you will be entitled to participate in the Firm's profit sharing scheme on the terms from time to time in force. The Firm will be allocating 10% of profit sharing of the annual turnover'.
- Mr Lewis said in cross-examination that the terms in the draft reflected the terms agreed. Mr Narayanasamy had, however, said in his witness statement that the reference to the 10% was known by both him and Mr Lewis to be a fiction, adding that 'Upon earnings reaching £300,000, he would become "an equity partner with a 10% interest in the business".' The judge said, at :
'However, in cross examination, Mr Narayanasamy accepted that [Mr Lewis] was concerned to ensure that everything in the application form was correct. The contract was based on verbal terms – on him being paid £24,000. He accepted that it had been drafted by his firm and provided for salary plus 10%. He accepted that there was an incentive of 10%. These terms were offered to [Mr Lewis]. He accepted that the contract reflected his remuneration package and that he should only work with his firm, unless he transferred the work permit. He said that there was no doubt that the work permit was obtained legally – though "that does not mean you can enter the country".'
- That summary was based on the judge's note of the evidence, not on the transcript (which we have but the judge did not) but it is an essentially faithful summary of what the transcript records Mr Narayanasamy as saying in evidence. No contract in that form was signed, or at any rate not by both parties: Mr Narayanasamy said in cross-examination he was not sure whether or not he signed his part, which may be said to point away from any suggestion that he did not regard the draft contract as reflecting an agreed remuneration package.
- Mr Lewis's entry clearance was certified on 15 May 2007. He joined the firm on 24 May 2007, notified the SRA that he had joined the firm as a partner and paid for his practising certificate.
- The judge, at  to , discussed the significance of a Notification of Self-Employment signed by Mr Lewis and dated June 2007 (but probably not submitted to HMRC until March 2008) to the effect that he had started in business as a self-employed partner in the firm on 24 May 2007 and that Mr Narayanasamy was his partner. The judge explained Mr Lewis's somewhat obscure evidence about this document, about which he was not cross-examined. The judge reached no firm conclusions about its significance save (at ) that, 'to put the matter at its lowest', Mr Lewis's written evidence relating to it '… shows a sensitivity on [his part] to describing himself as "self-employed".'
- On 15 October 2008, the firm, by a form signed by Mr Narayanasamy for the firm as employer, applied to the UKBA for an extension of Mr Lewis's work permit. Mr Lewis's job title was stated to be 'solicitor/partner'. His guaranteed pay was described as '£36,000 net', which Mr Lewis said in cross-examination was 'roughly the same as the previous package'. The form was accompanied by a letter from the firm's accountants, Nathan & Co, which referred to Mr Lewis's 10% profit share as being changed from monthly to annually. Mr Narayanasamy sought, in cross-examination, to distance himself from his own letter and also from Nathan & Co's letter, saying as to the latter that he had not instructed the accountants to write as they did and that Mr Lewis must have done so. On 31 October 2008, UKBA granted the firm an immigration employment document enabling it to continue to employ Mr Lewis for a further five years. This was for the purpose of supporting Mr Lewis's application for leave to remain in the UK for a further period. On 15 December 2008, UKBA granted such leave until 15 November 2013. The application form, signed by Mr Lewis and Mr Narayanasamy, again described Mr Lewis as 'partner/solicitor' but Mr Narayanasamy accepted that he signed it as employer and he agreed in cross-examination that, as the judge said at , '[Mr Lewis's] employment was legal at the time and "yes, we treated him as an employee".' Leave to remain was granted on the basis that Mr Lewis was an employee of the firm, his occupation being that of 'Solicitor/Partner' and his salary being £36,000.
- In December 2008, Mr Lewis sold his Malaysian property. He said Mr Narayanasamy then gave him the details of his and his wife's Malaysian bank account and on 12 February 2009 RM80,000 (the equivalent of £16,000), being the net sale proceeds, was paid (via Mr Lewis's mother) into it. Mr Narayanasamy's evidence was that he had provided his bank details in May 2007. The judge, at , said he did not need to make a finding on this dispute but noted that 'Mr Narayanasamy's account is at odds with his case as to the £300,000 condition and in any event it is hard to understand why he would have given those details so far in advance.'
- On 22 January 2010, there was a meeting between Mr Lewis and Mr Narayanasamy, which the former covertly recorded and of which the judge had a transcript (he did not listen to the recording). The judge discussed this meeting at  to . He said the background was that 31 January 2010 was the final date for submission of the partnership tax return for the financial year 2008/2009. The key feature of the meeting was that the parties discussed their understanding of the terms of the arrangement between them, 'in particular whether the terms of the arrangement had been set solely to enable a work permit to be obtained, … the "10% of what" question, and the £30,000 contribution.' The judge quoted from part of the transcript, which the defendants relied upon for asserting that the 10% entitlement referred to in the work permit application was a pretence or fiction for the purpose of obtaining the permit. The judge, however, rejected their case that the transcript showed that Mr Lewis accepted that this aspect of the terms was a pretence or fiction. He summarised his findings as to the meeting as follows:
'208. The transcript shows, first, Mr Narayanasamy accepted that he had agreed 10% of something and that it was agreed before he arrived and that there had been an oral agreement on the phone. Secondly, when Mr Narayanasamy said that it was 10% of a net figure, [Mr Lewis] immediately reacted against this, saying he was trying to change the agreement retrospectively. That this was his immediate reaction in my judgment supports [Mr Lewis's] case. Thirdly, Mr Narayanasamy himself was unclear what he meant by a net figure – whether this was after deduction of costs or deduction of disbursements. Fourthly, the suggestion that the terms agreed were, effectively, a fiction devised just to obtain a work permit for [Mr Lewis] was rejected by [Mr Lewis] immediately. Fifthly, there was no mention in that conversation of the MACC investigation either as a reason for termination or at all, nor was there any mention of the £300,000 earnings condition.'
- On 30 March 2010, Mr Narayanasamy notified the SRA and the UKBA that 'my business partnership with Mr Lewis will be dissolved on 31 March 2010'. In his letter to the UKBA, he wrote that the firm would not be responsible for the further employment of Mr Lewis and that the firm was happy for the work permit to be transferred to another establishment.
The judge's findings on the central issues
(a) The terms of the parties' arrangement
- The judge embarked, at , upon a consideration of the terms of the arrangement between Mr Lewis and the firm. He rehearsed the parties' respective cases and recorded that it had become common ground that although initially the firm was to be responsible for paying Mr Lewis's tax and NIC, that arrangement was later changed so that Mr Lewis was paid gross and would be responsible for his tax and NIC. It was agreed that his basic salary was £24,000 and that the £16,000 payment was in part payment of the £30,000 capital contribution. The dispute was: (a) whether there was a £300,000 earnings condition; (b) whether the 10% share was of (i) gross turnover, (ii) net profit, or (iii) some other lesser amount; (c) whether there was to be a refund of the £30,000 upon termination; and (d) whether there was an agreement to offset the unpaid balance of the £30,000 against the 10% share.
- The judge considered, and rejected, Mr Narayanasamy's claim as to the £300,000 condition. It was agreed that this condition was never satisfied so that, on the defendants' case, Mr Lewis never became a partner. The judge said there was no documentary support for the condition: the only evidence for it was Mr Narayanasamy's own assertion. There was no mention of it in the 2006 email exchanges, in the information provided for the work permit or in the draft employment contract. At no point during the meeting of 22 January 2010 did Mr Narayanasamy assert that the condition had not been met; and the judge rejected Mr Narayanasamy's assertion that the transcript of the meeting was not a complete record. In addition, the firm had never generated earnings anywhere near £300,000, a matter on which Mr Narayanasamy gave evasive evidence. The suggested condition was therefore also an unrealistic one. In addition, the defendants' case on it was inconsistent with the £30,000 capital contribution. Mr Narayanasamy's evidence was unclear as to whether the £30,000 was payable immediately or only when the £300,000 target was reached. The agreed fact of the initial payment of £16,000 strongly supported Mr Lewis's case, which was to the former effect. The judge found that it was a term of the arrangement that Mr Lewis should pay £30,000 by way of a capital contribution regardless of the level of earnings he generated.
- The judge turned to the "10% of what" question, he being in no doubt that the parties discussed and agreed that Mr Lewis should be entitled to a 10% share of something. He found that they had agreed that it was 10% of gross turnover and gave his reasons at  to . First, such an arrangement was not wholly exceptional – it had been considered in the 2006 email correspondence in relation to the two possible additional partners. Second, it was referred to ('10% of profit sharing of the annual turnover') in the standard form language of the draft employment contract. Third, Mr Narayanasamy's evidence as to what he understood the term to be was inconsistent. Fourth, the judge rejected any suggestion that the agreement for 10% of gross turnover was a fiction devised only to ensure the obtaining of a work permit for Mr Lewis. Whilst Mr Narayanasamy had suggested that in his witness statement, he did not maintain that case. The judge said:
'233. … [Mr Narayanasamy] accepted (see paragraph 165 above) that what was presented to Work Permits (UK) and to the High Commission, in the correspondence and in the draft contract of employment represented the true picture. I do not consider that the qualification to his answer was an indication that the statements made as to the terms were not the true terms; rather the qualification was obfuscatory and out of a desire not to damage his case. The Defendants' counsel in closing did not seek to rely on his initial witness statement evidence concerning the suggested fiction (at paragraph 176 above). Further the fiction issue was raised by Mr Narayanasamy at the meeting on 22 January 2010, but, as I have found, not accepted by [Mr Lewis] at that meeting, nor in his evidence before me.'
- The judge said, finally, that whilst Form WP1 had referred to a '10% equity share', this was expanded upon and explained in the letters of 2 and 29 March 2007, where it was clear that what was being referred to was 10% of gross turnover.
- The judge turned to Mr Lewis's case that he was entitled to a refund of the capital contribution upon the termination of the arrangement. There was no documentary evidence supporting that, but Mr Lewis was not cross-examined on his assertion in his witness statement that it was agreed. Two other witnesses supported his account, although their evidence was admittedly based on what Mr Lewis had told them of the arrangement. The defendants also accepted during the trial that, failing any illegality finding, they would repay the £16,000. The judge accepted Mr Lewis's evidence on this matter.
- Turning finally to whether there was the offset arrangement that Mr Lewis asserted, the judge regarded the evidence in support of an express agreement to this effect as weak and the two supporting witnesses just mentioned had not referred to there having been such an agreement. Mr Lewis's evidence about it was also inconsistent. The judge found that there was no such agreement. He added that, as there was an agreement to refund the capital contribution, his finding as to there being no offset agreement might not of itself make any difference to the outcome.
(b) The judge's finding as to the legal classification of the terms so found
- Mr Lewis's case in closing was that at all times the arrangement was one of employment. The defendants' pleaded case and Mr Narayanasamy's evidence was to the same effect. In closing, however, the defendants' counsel argued that Mr Lewis was to be an equity partner and thus self-employed. The judge regarded the choice for him as between finding that Mr Lewis was an employee or a self-employed partner (what he called a 'true partner'). I shall set out the whole of his reasoning on this question.
'241. First, as to terminology, in the evidence, both documentary and from the witnesses, a wide array of terms has been used and without any pattern of consistency. The terms "partner", "equity partner", "salaried partner", "solicitor/partner", "partnership on full time employment", "equity share", "partner/employee" and even "equity employee", have all been used to describe the relationship between [Mr Lewis] and the Firm.
242. There is certainly material before me which might suggest that the parties contemplated that [Mr Lewis] was to be a true partner of the Firm. At the outset, the email of 6 November 2006 contemplates that [Mr Lewis] was going to be an equity partner running the firm. The Firm's Accounts have been drawn up on a partnership basis. [Mr Lewis] himself in his pleadings and witness statement refer to him being an "equity partner". Moreover I did not find credible [Mr Lewis's] suggestion that, in general, he did not understand the difference between a salaried (i.e. employee) partner and an equity partner in the sense of a true partner. On the other hand, there are also references in the material which suggest employment, including Mr Narayanasamy's own consistent evidence, both at the time and before this Court, that [Mr Lewis] was an employee (see in particular paragraph 151 above); his oral evidence that he said he used the term "partner" to mean competent solicitor and what he said in his email of 6 November 2006, and the form and contents of the draft employment contract.
243. Aspects of Form WP1 itself, in particular the reference to "equity" and "equity share" and the organogram appear to suggest true partnership. However in that form Mr Narayanasamy describes [Mr Lewis's] relationship as "partnership on full time employment" so that when he used the term "partner" or "partnership" in those forms he used them to mean something other than self employment but to mean employed partner. Elsewhere the use of the term "equity" or "equity share" by Mr Narayanasamy (see for example the letter of 29 March 2007) plainly does not necessarily mean a share of net profits as opposed to a share of something else (i.e. gross) and thus is not necessarily indicative of Mr Narayanasamy intending true partnership and self employment.
244. In my judgment, however, this issue does not fall ultimately to be determined by the words used or labels attached by the parties (see paragraph 85(2) above). That this is so is borne out by the confusing and inconsistent terminology used in this case. Rather I approach the issue by looking at the substantive terms of the arrangement and by considering the factors which are indicative of employment, on the one hand, and partnership on the other hand, set out in paragraphs 84 to 86 above.
245. First, as regards employment, under the arrangement [Mr Lewis] provided his own work and skill to the Firm and provided services on a full time and exclusive basis. Moreover, whilst it was intended that [Mr Lewis] would run a department within the firm, he remained under the control of Mr Narayanasamy and subject to supervision as to his work. [Mr Lewis] had no financial or management control in running the firm. His evidence that he would have a say in running the firm was expressly stated to be only to the extent of running the litigation department. Mr Narayanasamy's own evidence was that [Mr Lewis] was never included in the running of the Firm. I find as a fact that Mr Narayanasamy remained in control of the Firm and its management, as demonstrated not least by his ability summarily and with very little notice to terminate the relationship with [Mr Lewis] on 22 January 2010. Moreover, whilst [Mr Lewis] did make a capital contribution, this was refundable on termination, and there was no indication in the negotiations that [Mr Lewis] was to share in any losses of the Firm or in the assets of the Firm.
246. Secondly, as regards factors indicative of partnership, a share of gross turnover does not, of itself, indicate partnership: s. 2(2) of [the Partnership Act 1890]. That is the position here. A share, or bonus, based on gross turnover points towards not taking risk and not sharing losses and thus towards an employment relationship. Indeed, remuneration of an employee by way of a share of profits does not, of itself, indicate partnership: s. 2(3)(b) of the 1890 Act (paragraph 86 above). Thus, even if the terms had been 10% of net profits, (as alleged by the Defendants) that would not have been sufficient to make [Mr Lewis] a true partner.
247. Taking these factors into account, I conclude that [Mr Lewis] did not become a true partner with Mr Narayanasamy in the Firm, but rather that the arrangements entered into by around January 2007 and at the commencement of work in May 2007 constituted a contract of employment and that [Mr Lewis] was an employee.'
- The judge considered next whether the subsequent change (between June 2007 and March 2008) in the arrangements for the payment of tax and NIC changed the legal nature of Mr Lewis's relationship with the firm from one of employment to one of partnership, or at least to a relationship under which he was self-employed. In his view, this change did not operate to change Mr Lewis's status from one of employment to partnership. He said:
'250. … First, the fact that an employer and employee, individually or together, choose to classify the employee as self employed or the fact that an employee is paid gross does not prevent that person from being, on an objective basis, an employee: see for example, the facts in [Salvesen v. Simons  ICR 409; Hall v. Woolston Hall Leisure Ltd  ICR 651; and Enfield Technical Services Ltd v. Payne  ICR 1423] above. Secondly, the incidence of tax and national insurance is but one factor to take into account in determining the true nature of the relationship and failure to make deductions by the employer is not conclusive that the relationship is one of self-employment: see paragraph 85(5) above. As indicated in paragraph 187 above, [Mr Lewis] was certainly sensitive that this change of tax payment was damaging to his case, although the point was not explored in evidence. In any event that is not determinative of the issue of classification. Apart from this change relating to tax and NIC, there was no other change in the underlying terms or the essential nature of the arrangement between the parties and the factors indicating a relationship of employment identified in paragraph 245 above remained in place.'
(c) The judge's decision on the illegality issues
- The judge explained that, by the close of the arguments, only two illegality arguments were being advanced by Mr Narayanasamy. First, that in Form VAF1 and in breach of section 26(1)(c) of the Immigration Act 1971, Mr Lewis had made false representations to the British High Commission in Malaysia as to the underlying facts and/or a false characterisation as to status. Second (an argument raised for the first time in the closing submissions), that in order to obtain his entry clearance, Mr Lewis had used a work permit he knew or had reasonable cause to believe was false, contrary to section 26(1)(d). The underlying basis of both assertions was that Mr Lewis had made a relevant false statement, namely that he was, or was to be, an employee.
- The judge rejected these assertions. The statements made by Mr Lewis at the time that he was to be an employee were (in light of his findings) correct, as was the statement that he was to be paid 10% of gross turnover net of tax and NIC. But even if the judge was wrong in finding that the intended relationship was one of employment rather than partnership, there was still no basis for a finding of relevant illegality on Mr Lewis's part in classifying his proposed arrangement as one of employment. The judge explained that as follows:
'256. … The 1971 Act offences require knowledge of falsity and, in any event, Enfield holds that absent such knowledge, a false statement will not be sufficient to found a defence of illegality. As pointed out in Enfield, the distinction between employment and self-employment is not an easy one to draw; and this is such a case. [Mr Lewis] did accept that if he had known he was a true partner, then the statement that he was an employee was false. But in order to establish illegality, the Defendants would have had to show that [Mr Lewis] did clearly know that the relationship was, in law, one of true partnership. Whilst it may be that, in general, [Mr Lewis] did know the difference between a salaried partner and a true partner, that would not have meant that he knew clearly which side of the line this case fell.
257. In this regard, I accept that the evidence suggests that [Mr Lewis] himself had no intention nor reason to deceive the authorities in order to obtain his work permit and that he did exhibit concern to ensure the accuracy of his application for entry clearance: see paragraph 172 above. Even if I had concluded that, on the balance of factors, the relationship was one of true partnership, I would have found that [Mr Lewis] did not clearly know that it was.'
- Finally, the judge considered whether the change in arrangements for the payment of tax and NIC raised any illegality question. For reasons he explained in , he concluded that it did not: the defendants had not articulated any basis upon which it gave rise to an offence or other illegality sufficient to render the contract unenforceable.
- As earlier indicated, the defendants' appeal is in large part against the judge's findings of fact. The thrust of the first six of the 18 grounds of the appeal is that the judge was, for various reasons, wrong to accept Mr Lewis's evidence in relation to the disputed matters in preference to Mr Narayanasamy's. This court is being asked to hold that the judge should have accepted Mr Narayanasamy's evidence in preference to Mr Lewis's.
- To advance such a case on appeal is ambitious. The judge was faced with an unusually difficult fact-finding exercise by reason of the circumstances that, as he found (i) neither of the main protagonists, Mr Lewis and Mr Narayanasamy, was a wholly reliable witness, and I have referred to his critical assessments of their evidence; (ii) neither maintained a wholly consistent stance as to their respective cases; (iii) in relation to the 'partnership/employment' issue, each used such a variety of phrases to describe their intended relationship as to suggest a confusing lack of any clear understanding as to the sense in which they were using such language; and (iv) by way of an added dimension of difficulty, the judge was also faced with assertions by Mr Narayanasamy at some stages in the litigation that certain of the statements in documents he had created did not mean what they said but had been generated as a fiction or pretence, for the apparent purpose of misleading others, although the judge explained that the defendants' counsel had abandoned that stance by the close of the case.
- The case was not, therefore, an easy one and the judge was, in particular, presented with difficulties as to the credibility of Mr Lewis and Mr Narayanasamy. Difficult though his task was, it was, however, his duty to make the findings of fact necessary to enable him to decide the case and he explained those findings in a comprehensive, fully reasoned and manifestly careful judgment. His findings were made with the benefit of the advantage that he had, but which this court does not, of having seen and heard the witnesses give evidence. Despite this court's disadvantage in that respect, Mr Narayanasamy is now asking it to say that the judge was wrong not to prefer his evidence as to the terms of his contractual arrangement with Mr Lewis.
- It is trite that appeals against a trial judge's findings of fact present the appellant with a high hurdle. That is not to say that they can never succeed. They can succeed, although it will at least require the appellant to show that the judge misdirected himself as to the facts in a plain, obvious and material way. There has, however, been repeated discouragement at the highest judicial levels of any disposition on the part of an appellate court to overturn a trial judge's findings of fact, of which the following recent references are a selection.
- In Cook v. Thomas and Another  EWCA Civ 227, Lloyd LJ (in a judgment with which Sullivan and Laws LJJ agreed) said:
'48. … It has been said many times, Benmax v. Austin Motor Co  AC 370, Biogen Inc v. Medeva plc  RPC 1 and Assicurazioni Generali SA v. Arab Insurance Group  1 WLR 577 being only three of the examples of high authority, that an appellate court can hardly ever overturn primary findings of fact by a trial judge who has seen the witnesses give evidence in a case in which credibility is in issue.'
- In Langsam v. Beachcroft LLP  EWCA Civ 1230, Arden LJ (in a judgment with which Longmore and Patten LJJ agreed) said:
'72 … It is well established that, where a finding turns on the judge's assessment of the credibility of a witness, an appellate court will take into account that the judge had the advantage of seeing the witnesses give their oral evidence, which is not available to the appellate court. It is, therefore, rare for an appellate court to overturn a judge's finding as to a person's credibility. Likewise, where any finding involves an evaluation of facts, an appellate court must take into account that the judge has reached a multi-factorial judgment, which takes into account his assessment of many factors. The correctness of the evaluation is not undermined, for instance, by challenging the weight the judge has given to elements in the evaluation unless it is shown that the judge was clearly wrong and reached a conclusion which on the evidence he was not entitled to reach. In other cases, where the finding turns on matters on which the appellate court is in the same position as the judge, the appellate court must in general make up its own mind as to the correctness of the judge's finding (see Datec Electronic Holdings Ltd v. United Parcels Service Ltd  1 WLR 1325 at  per Lord Mance). …'
- In McGraddie v. McGraddie and another  UKSC 58;  1 WLR 2477, Lord Reed JSC, with whom the other Justices agreed, said:
'2. The principles stated in Thomas v. Thomas  AC 484, had, even then, long been settled law: the speech of Lord Shaw of Dunfermline in Clarke v. Edinburgh and District Tramways Co Ltd 1919 SC (HL) 35, 36-37, where he said that an appellate court should intervene only [if] it is satisfied that the judge was "plainly wrong", is almost equally familiar. Accordingly, as was said by Lord Greene MR in Yuill v. Yuill  P 15, 19, in a dictum which was cited with approval by Viscount Simon and Lord Du Parcq in Thomas v. Thomas at pp 486 and 493 respectively, and by Lord Hope of Craighead in Thomson v. Kvaerner Govan Ltd  SC (HL) 1, para 17:
"It can, of course, only be on the rarest of occasions, and in circumstances where the appellate court is convinced by the plainest of considerations, that it would be justified in finding that the trial judge had formed a wrong opinion."
3. The reasons justifying that approach are not limited to the fact, emphasised in Clarke's case and Thomas v. Thomas, that the trial judge is in a privileged position to assess the credibility of witnesses' evidence. Other relevant considerations were explained in the United States Supreme Court in Anderson v. City of Bessemer (1985) 470 US 564, 574-575:
"The rationale for deference to the original finder of fact is not limited to the superiority of the trial judge's position to make determinations of credibility. The trial judge's major role is the determination of fact, and with experience in fulfilling the role comes expertise. Duplication of the trial judge's efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources. In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one; requiring them to persuade three more judges at the appellate level is requiring too much. As the court has stated in a different context, the trial on the merits should be 'the main event' … rather than a 'tryout on the road' … For these reasons, review of factual findings under the clearly erroneous standard – with its deference to the trier of fact – is the rule, not the exception."
Similar observations were made by Lord Wilson JSC in In re B (a Child) (Care Proceedings Threshold Criteria)  1 WLR 1911, para 53.'
- In Fage UK Limited and Another v. Chobani UK Limited and Another  EWCA Civ 5, Lewison LJ said:
'114. Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. The best known of these cases are: Biogen Inc v. Medeva plc  RPC 1; Piglowska v. Piglowski  1 WLR 1360; Datec Electronics Holdings Ltd v. United Parcels Service Ltd  UKHL 23  1 WLR 1325; Re B (A Child) (Care Proceedings: Threshold Criteria)  UKSC 33  1 WLR 1911 and most recently and comprehensively McGraddie v. McGraddie  UKSC 58  1 WLR 2477. These are all decisions either of the House of Lords or of the Supreme Court. The reasons for this approach are many. They include …'
and Lewison LJ then listed six factors, including certain of the considerations identified in Lord Reed's quoted citations in McGraddie.
- In Curran v. Collins  EWCA Civ 404 Arden LJ, after citing the passage cited above from her judgment in Langsam, added:
'30. Thus any appellant who challenges the judge's findings on credibility has a particularly difficult task. …'.
- Finally, in Watson Farley and Williams (a firm) v. Ostrovizky  EWCA Civ 457, Burnett LJ, in a judgment with which Pitchford and Arden LJJ agreed, referred to the Supreme Court having restated in McGraddie the long and settled principle that an appellate court should not interfere with the trial judge's conclusions on primary facts unless satisfied that he was plainly wrong.
- Mr Solomon, in well-judged submissions in support of the appeal, was of course alive to what, from the appellants' viewpoint, is such discouraging guidance from this jurisprudence. In support, however, of the submission that the appeal on the facts is a viable one, he pointed out that (after express consideration of the aforesaid points made in Langsam, Fage, Curran and Watson Farley) the judge had nevertheless given the defendants unlimited permission to appeal, saying in his judgment of 1 December 2015 on the form of the order,  EWHC 3646 (Ch):
'50. I can see the force of these points and they may be highly pertinent on the hearing of any substantive appeal. However, I accept Mr Engelman's submission that a large part of the challenge on the facts here are challenges based on interpretation of documents rather than pure credibility. Whilst I have hesitated on this issue in the light of the judgments to which Miss Iyer has referred me to and whilst nothing in the grounds has led me to question the conclusions I have reached, I cannot say that another tribunal might not reach a different conclusion and that an appeal would have no prospect of success. …'
(I record that although the judge's judgment appeared to give both defendants permission to appeal, his order as drawn gave permission only to Mr Narayanasamy. Vos LJ, however, later also permitted Ms Suppiah to appeal).
- Save perhaps with regard to the sense of the '10%' references in the various documents, I admit to difficulty in identifying how any part of the judge's analysis of the facts turned on the interpretation of documents; and none of the grounds of appeal that challenge the judge's findings as to the terms of Mr Lewis's engagement asserts that he misinterpreted any document. Mr Solomon was the author of neither the grounds of appeal nor the appellants' skeleton argument, but he was bound by the limits of the former and he adopted the latter. He did not address the 18 grounds of appeal separately, but instead made general submissions as to why: (i) the judge was wrong to make the findings that he did as to the terms of the arrangement between the parties; (ii) if the judge was right in such findings, he was wrong to find that they amounted to a relationship of employment rather than partnership; and (iii) if the relationship was one of partnership, it was an illegal partnership such that it was not open to Mr Lewis to enforce its terms.
- Grounds 1 to 6 of the grounds of appeal go to issue (i) just described; grounds 7 to 12 go to issue (ii); and grounds 13, 15 and 17 go to issue (iii). Ground 14 goes to a related illegality issue. Grounds 16 and 18, which were not the subject of submissions by Mr Solomon, raise different points. I deal first with grounds 1 to 6.
- Ground 1 is that the judge failed to take account of Mr Lewis's evidence in his witness statement that he was to become an 'equity partner', whereas in his oral evidence he asserted that the contract was to be one of employment. That omission is said to have undermined the judge's preference for Mr Lewis's evidence over Mr Narayanasamy's. I understand it to be said that, but for such omission, the judge would, and should, have accepted Mr Narayanasamy's evidence in preference to Mr Lewis's.
- Ground 1 is factually wrong, because the judge did not commit the failure attributed to him. He noted, at , the inconsistent case that Mr Lewis had advanced, including his 'equity partner' assertions in his particulars of claim and witness statement. He noted again, at , Mr Lewis's witness statement evidence that he was 'to become an equity partner'. He recorded, at , that when it was put to Mr Lewis in cross-examination that the agreement was for him to become an equity partner, his reply was that he was to be 'a salaried partner'; and that when it was put to him that he had said in paragraph 2.4 of his particulars of claim that he was to 'contribute a sum of £30,000 towards the Firm to become an equity partner', he replied that what he meant was 'a salaried partner': namely, that paragraph 2.4 was to be read with paragraph 2.5 (which in fact throws no direct light on the point); and that 'my understanding was I was a salaried partner and that was the remuneration package.' In response to the point that he was confused between an equity partner and a salaried partner, he replied 'For me it is one and the same, because that is the remuneration package.'
- I doubt if the judge regarded this evidence as helpful. It displayed an imprecise grasp of the terminology being used, although the judge did find that Mr Lewis knew the difference between a salaried partner and a true partner. There is, however, no doubt that Mr Lewis made it clear in his oral evidence that he regarded himself as joining the firm as an employee.
- I do not understand how the fact of Mr Lewis's inconsistent case as to these matters, of which the judge was plainly aware, required the judge to prefer Mr Narayanasamy's evidence as to the terms of the engagement. Mr Narayanasamy was, the judge found, an even worse witness than Mr Lewis. For part of the case, he was even espousing the assertion that documents he had created contained statements that were a fiction and pretence, and thus apparently designed to mislead, although by the end of the trial his counsel had disclaimed that stance. The judge also said, at , that such was the quality of Mr Narayanasamy's evidence that he 'did not accept his evidence absent supporting evidence on any particular issue.' The judge had stopped short of being equally critical of Mr Lewis's evidence, saying, at , that '[w]hilst on main issues, I believe he was trying to be truthful, these points lead me to be cautious about accepting his evidence on important points in issue without other supporting evidence.'
- The proposition in ground 1 that the omission there – wrongly – attributed to the judge was such that but for it he should instead have preferred and accepted Mr Narayanasamy's evidence is an impossible one. At least one difficulty in the argument is that the latter's case and evidence depended crucially upon an alleged agreement as to the £300,000 condition, for which the judge found there was no evidence other than Mr Narayanasamy's own unreliable assertion; and his approach, explained at , ruled out the acceptance of that part of his evidence. The grounds of appeal do not suggest in what way the judge might or should have made a more selective adoption of Mr Narayanasamy's evidence. The judge was faced with a volume of assertions and evidence as to the terms of the arrangement between Mr Lewis and Mr Narayanasamy and had to make findings as to what the terms were. He gave cogent reasons for, in most respects, preferring and accepting Mr Lewis's evidence. He was entitled to do so. Nothing in ground 1 undermines his decision in that respect.
- Ground 2 is also misconceived. It is that the judge was wrong to prefer Mr Lewis's evidence to Mr Narayanasamy's in relation to their intended arrangement because, in considering Mr Lewis's credibility, he did not take account of Mr Lewis's unsatisfactory evidence about the MACC investigation. This ground is founded on the elementary error that because a witness's evidence about one aspect of the case is unsatisfactory, his evidence should be so regarded as regards all other aspects. The judge did not make that error. Having, at , criticised Mr Lewis' evidence about the MACC investigation, he went on to say that:
'… This unreliability may well have arisen from a sensitivity, pride and embarrassment on his part that he had been subject to such an investigation and that he had lost his job with Sivananthan; in my judgment, it does not, of itself, mean that his other evidence cannot be relied upon.'
The second part of that sentence reflected a correct approach. The judge then said that he believed Mr Lewis was trying to be truthful in his evidence on the main issues, but that he still proposed to be cautious about accepting that evidence on important points in the absence of supporting evidence. That too was a sound approach. The judge's findings as to the unreliable nature of Mr Lewis's evidence in relation to the MACC investigation did not require him to reject his evidence on other matters.
- Ground 3 is that the judge should, when considering Mr Lewis's credibility, have placed more emphasis on Mr Lewis's evidence in cross-examination – which he did not accept – that the remuneration package was agreed in its totality between 6 and 13 November 2006. It is correct that in the findings he made, at , about these early exchanges the judge found that there was no evidence of any specific discussion that Mr Lewis was to be entitled to 10% of gross turnover, or that the full remuneration package was finalised in this period. But there was other evidence before the judge supporting Mr Lewis's case as to the '10% of gross turnover' and other terms of his employment, in particular the letters of 2 and 29 March 2007 and the draft employment contract. In making his findings, the judge was entitled to, and did, take into account all the evidence relating to the terms of the engagement. Again, such unsatisfactory features as there were about Mr Lewis's evidence did not require the judge to prefer Mr Narayanasamy's even more unsatisfactory evidence.
- Ground 4 asserts that the judge's rejection of Mr Lewis's case about the offsetting arrangement should have compelled him to prefer Mr Narayanasamy's evidence about the terms of the engagement. I fail to see why. The judge rejected Mr Narayanasamy's evidence about the £300,000 earnings condition, which went to the heart of his case as to the terms of the engagement. Neither side's evidence was, therefore, accepted in its entirety, but the judge gave convincing reasons as to why, to the extent that he did, he should, and did, prefer Mr Lewis's evidence.
- Ground 5, described in the appellants' skeleton argument as the key issue dividing the parties, is that the judge erred in preferring Mr Lewis's evidence in relation to the terms of the agreement, in particular as regards the 10% of turnover entitlement. I shall take this ground together with ground 6, which develops the point as to the judge's claimed error by saying he failed to take into account (i) that there was nothing in writing from Mr Lewis about the 10% entitlement, (ii) the differing descriptions as to what the 10% entitlement meant, (iii) the absence of any 10% requirement in the work permit issued, (iv) the lack of commercial sense, or need, for the payment to Mr Lewis of 10% of turnover, and (v) the points earlier advanced as to Mr Lewis's relative lack of credibility.
- This aspect of the judge's findings as to the employment terms was the focus of particular criticism by Mr Solomon in his oral submissions. He referred us to certain of the early email exchanges, including Mr Narayanasamy's email to Mr Lewis of 6 November 2006 in which he said 'As I pointed out to you those who wish to joint [sic] as a partner need to contribute £30,000 for 10% of profit sharing.' Mr Solomon expressly did not question the judge's findings at  that at this early stage there was no evidence of any specific discussion that Mr Lewis would be entitled to 10% of gross turnover, indeed he placed reliance upon that.
- There was, however, further evidence as to the terms of the proposed engagement. The initial work permit application submitted by Mr Narayanasamy stated that if Mr Lewis was granted a permit, he would receive '10% of the equity share in the firm' and Mr Narayanasamy used the same phrase in his letter of 2 March 2007 in support of his application for a review of the initial refusal of the permit: 'You shall notice that the salary offered in this case is £24,000 together with 10% of the equity share in the firm.'
- There might, of course, be a fair question as to what Mr Narayanasamy meant by that imprecise language. It is, however, clear from his letter that '10% of the equity share in the firm' meant 10% of the firm's gross turnover, because he proceeded to explain that the firm's gross income for 2006 had been £101,492 and that 'based on the gross income of 2006, Mr Lewis will be entitle approximately another £10,000 on top of his salary [sic].' If, after that, there still remained any doubt about what Mr Narayanasamy meant by '10% of the equity share', he removed it in his letter of 29 March 2007, where he wrote:
'For example: If the gross income for the month is £25,000 before VAT. Mr Lewis will be receiving £2000 as wages plus £2500 as 10% of equity shares. Mr Lewis will be receiving £4500 subject to his Income Tax and Employee National Insurance. These will be deducted from his pay cheque. The firm will be paying the Employer National Insurance on the £4500.00.'
- It is then said, rightly, that the work permit that was issued made no reference to the 10% entitlement, although the supposed relevance of that omission escapes me: if (as is the inference) what Mr Narayanasamy had explained in the letters of 2 and 29 March was his deal with Mr Lewis, it is that to which Mr Lewis was entitled. The next document to emerge from Mr Narayanasamy was the draft employment contract, which affirmed Mr Lewis's entitlement to '10% of profit sharing of the annual turnover'. The judge interpreted that as meaning 10% of gross turnover (see ). Given what had gone before, he was entitled to do so: what else could have been the sense of the reference to 'annual turnover' in that phrase? To the extent that Mr Solomon argued that the judge should have found that the 10% reference meant something else, I would reject the argument. The judge was entitled to make the finding that he did.
- Mr Solomon urged that for Mr Narayanasamy to have agreed that Mr Lewis was to be entitled to 10% of the firm's gross turnover lacked commercial sense, which he illustrated by an analysis of the firm's turnover and net profit figures for each of the three years 2007/08, 2008/09, 2009/10. On the figures, in the first and third years Mr Lewis would be entitled to a materially larger share of the firm's net profit than Mr Narayanasamy; and in the middle year, Mr Narayanasamy's share would be only about 2% larger than Mr Lewis's.
- The point about the commerciality of the terms found by the judge is a fair one, as Mr Solomon showed. There is, however, no doubt that 10% of gross turnover is what Mr Narayanasamy was talking about in his March 2007 letters, the judge was entitled to interpret the language in the draft contract as meaning the same and Mr Lewis's evidence was that the draft contract reflected the agreed deal. I have noted that Mr Narayanasamy said in cross-examination that he was unsure whether or not he had signed his part of the contract (an observation which does not suggest any aversion to its terms), and by the end of the trial Mr Narayanasamy's case that certain of his documents contained statements that were a fiction and a pretence had been abandoned. In these circumstances, the point about the commerciality of the arrangements takes Mr Narayanasamy nowhere. He may have made a bad deal with Mr Lewis but it is not the court's function to repair bad deals. The judge was entitled on the basis of the (admittedly unsatisfactory) evidence to decide as he did in relation to the 10% point. There is no basis upon which this court can say he was wrong.
- Ground 7 is that the judge failed to take into account the need for a capital contribution by Mr Lewis. The judge did not so fail. The skeleton argument, and also Mr Solomon's oral submissions, explained, however, that the real significance of this point is that the requirement for, and making of, a capital contribution is said to have been more consistent with the parties' relationship being one of partnership rather than employment. That goes to Mr Narayanasamy's alternative case, also raised on the appeal and developed by Mr Solomon, as to the true legal nature of the terms of the arrangement found by the judge. So does ground 8. That asserts that, in determining the legal nature of the terms he had found, the judge failed to consider the certificate of self-employment that Mr Lewis signed on 22 June 2007. That omission was said to go both to the judge's assessment of Mr Lewis's credibility and as to the employment/partnership issue. Ground 9 makes the like points about the accounts of the firm that Mr Lewis is said to have signed as a partner. Ground 10 asserts that the judge was wrong to find that Mr Lewis did not have sufficient control of the firm for the arrangement to be one of partnership. Ground 11 asserts that the fact that Mr Lewis was paid gross from the outset indicated that the relationship was one of partnership rather than employment. Ground 12 is a sweeping up ground that asserts that the judge should have found that Mr Lewis's intention was to become an equity partner when he applied for entry clearance and therefore he did become such a partner. His evidence to the contrary effect is said to have been 'another reason why his evidence should not have been accepted.'
- I shall take grounds 7 to 12 together. As regards the self-employment notification signed on 22 June 2007, the judge noted that Mr Lewis was not cross-examined on it (all he was asked about it in cross-examination was to agree that the document said what it did and that he had signed it). As this document post-dated the commencement of Mr Lewis's arrangement with the firm, the judge regarded it as irrelevant to the determination of the nature of the relationship when it earlier commenced. I consider that was a legitimate position for him to adopt and would not criticise him for doing so. In his view the question raised by the notification was whether the apparent change in the arrangements that it evidenced required him to find that the relationship had moved from one of employment to one of true partnership. For reasons he gave at  to , he concluded that it did not. In my view, those reasons were sound. I would not regard the changes to which he referred as requiring him to find that they had resulted in a change in the nature of the relationship.
- The same can be said about the fact that the firm's accounts were prepared on a basis that may be said to suggest that Mr Lewis and Mr Narayanasamy were partners. The judge referred to the accounts at  to  and again at , the latter paragraph being in the part of his judgment where he gave his reasons for his decision that the relationship was one of employment: he there said there was certainly material before the court suggesting that Mr Lewis was to be a true partner, and he referred to the form of the accounts as part of it. But he went on to find that the words and labels the parties used to describe their relationship were not conclusive and he set out his preferred approach at , which I have earlier quoted.
- Again, in my view the judge was entitled to his view that the form of the accounts was not conclusive or decisive as to the nature of the relationship between Mr Lewis and Mr Narayanasamy. The bundles before us include the firm's accounts for the year ended 31 March 2006 (that is, for a period before Mr Lewis's arrival on the scene). They were prepared by Nathan & Co, and are headed 'Mr R. Narayanasamy and Partner'. They include what is described as the 'Partners' capital account', in respect of Mr Narayanasamy and Mr Nwokeji. I presume that Mr Nwokeji is the 'salaried partner' to whom Mr Narayanasamy so referred at the beginning of his cross-examination and who, he said, eventually resigned. Mr Narayanasamy would, I infer, dispute that the form of those accounts meant that Mr Nwokeji was a true partner. Subsequent accounts, in similar form, for the years ended 31 March 2008 and 2009 are also in the bundle. They are headed 'Mr R. Narayanasamy and Mr E. Lewis' and they too include a 'Partners' capital account'. The former set appears to have been signed by both individuals, the court's copy of the latter appears to be unsigned by either. Mr Lewis was not cross-examined about these accounts. Mr Narayanasamy, in his sixth witness statement, under the heading 'Office Accounts', said this:
'42. [Mr Lewis], being a salaried partner, had no interest in the firm's account. However, I was advised that even a salaried partner have to sign the annual return. Hence he was included.
43. I was the only signatory of the client, office and reserve accounts from the inception of the firm to date. If [Mr Lewis] believed himself to be an equity partner, he should have insisted to include himself as a signatory to those accounts but he did not. Further the Law Society and the Solicitors Regulation Authority know that I am the only signatory to the accounts. It was only me who dealt with the Annual Reporting to the Law Society and Solicitors Regulation Authority on a yearly basis. It was only me who employed staff at the office or terminated their contracts. I am [the] only one who purchased stationery and other supplies for the office. I pay all the bills.
44. [Mr Lewis] never interfered or included in the running of the firm. He clearly knew his role to be a salaried partner, similar to his role in his previous firm in Malaysia. Further, he also understood the role of an equity partner: that would have been evident to him when he conducted his own business from his home. …'
The last observation was a reference to the period when, following his resignation from Sivananthan, Mr Lewis worked on his own account in Malaysia. Mr Narayanasamy was not cross-examined on these paragraphs.
- Mr Narayanasamy did not, therefore, apparently regard the form in which Nathan & Co prepared the firm's accounts as pointing to the inference that Mr Lewis was a true partner. His grounds of appeal, however, now criticise the judge for declining to regard them as material pointing to the conclusion that, contrary to his own consistent case, Mr Lewis was such a partner. The criticism is misplaced. The judge did not overlook the accounts, he had regard to them but gave his reasons for his conclusion that the true relationship between the parties was nevertheless an employment relationship rather than a partnership one.
- The various other points made in grounds 7 to 12 challenge the soundness of the judge's assessment at  to  as to that classification of the working relationship between Mr Lewis and Mr Narayanasamy. This was a primary subject of Mr Solomon's submissions, who urged that (i) the requirement for Mr Lewis to make a capital contribution of £30,000, (ii) the receipt by him of a percentage share of gross turnover in addition to a salary of £24,000, and (iii) the role he undoubtedly did play in the running of the firm – he accepted that he would at least 'have a say as a salaried partner' albeit that 'the final decision would be [by] whoever owned the firm' – collectively required the conclusion that the nature of the arrangement was one of partnership rather than employment. Ground 12 rounds it all up by saying the judge should have held (a) that Mr Lewis intended to become an equity partner when he applied for entry clearance and (b) that was the true nature of the relationship.
- In my judgment, this assault on the judge's reasoning and conclusion as to the true relationship between the parties does not work. First, whilst the entitlement to the 10% share might at first blush be thought to suggest a partnership rather than an employment relationship, section 2(2) of the Partnership Act 1890 shows, as the judge recorded, that the 'sharing of gross returns does not of itself create a partnership'. That feature of the arrangement did not therefore require the judge to find that there was a partnership. Nor in my view did the fact that Mr Lewis was required to make the capital contribution of £30,000 as the price of becoming entitled to that right. In addition, the judge's finding at  – with which Mr Narayanasamy can hardly disagree, as it was in line with his unchallenged assertions in his witness statement – that Mr Lewis had 'no financial or management control in running the firm' was one that also tended to point away from the relationship being one of partnership rather than employment. The judge also brought into account in arriving at his conclusion the facts that the £30,000 capital contribution was refundable on the termination of the arrangement and that there was no indication in the negotiations that Mr Lewis was to share in any losses of the firm or in its assets.
- I consider that there is no basis upon which the judge's conclusion that the relationship was one of employment rather than partnership can be criticised. It might perhaps be said that the real question for him was whether or not the evidence as to the terms of the relationship between Mr Lewis and Mr Narayanasamy justified the conclusion that they were carrying on a business in common with a view of profit (see section 1 of the Partnership Act 1890 as to the meaning of a 'partnership'), with each having authority as the agent of the other to bind the firm (see section 5). Whether, however, a business relationship between two or more individuals requires an affirmative answer to that question ultimately depends upon their intentions: and the particular difficulty with which the judge was faced in this case was the unreliable evidence from both parties as to what they did intend. That is why the judge considered that the course he should adopt in ascertaining the nature of their relationship was instead to look at what he called 'the substantive terms of the arrangement and … the factors which are indicative of employment, on the one hand, and partnership on the other hand' (see his ).
- It does, however, appear to me that the judge's conclusion finds support in the fact that ultimately neither party was asserting that he was, or intended to be, a true partner of the other. That was Mr Lewis's position by the time of the trial and it was Mr Narayanasamy's position throughout: his case was that he only intended a partnership relationship to arise once Mr Lewis had satisfied the £300,000 condition. The judge of course found that that condition formed no part of the parties' agreement. He did not, however, find that Mr Narayanasamy was untruthful in asserting that there was such a condition or, therefore, that he did not maintain a genuine belief in its existence. If so, it is difficult to see how Mr Narayanasamy can be said to have had an intention to form a partnership with Mr Lewis; and the formation of a partnership would have required the intention of both parties to do so. This consideration is ignored in ground 12, which bravely asserts that the judge should have found that Mr Lewis's intention was to become an equity partner when he applied for entry clearance and that therefore he did become a partner. I have difficulty in understanding how Mr Narayanasamy, whose unswerving case throughout was that (the £300,000 condition not having been met) he never intended to become a partner, can criticise the judge for declining to find that he did so intend.
- I would therefore reject grounds 1 to 12. On the premise that, contrary to the judge's finding, the true relationship was one of partnership, grounds 13, 15 and 17 advance various arguments as to its alleged illegality. As I would reject the premise, it is unnecessary to consider these grounds. Ground 14 proceeds on the premise that, if there was not initially a partnership, Mr Lewis subsequently became self-employed, which it is asserted was also sufficient to result in a relevant offence. As I would uphold the judge's rejection of the self-employment assertion, this ground fails as well.
- Ground 16 asserts that the judge was wrong, at , to hold that paragraph 4(b) of the work permit was not a condition of its continued validity. The judge added that, if he was wrong on that and the change in the tax arrangements after the commencement of Mr Lewis's employment did breach the condition affecting the validity of the work permit, 'the Defendants have not articulated the basis upon which it is said to give rise to an offence or other illegality sufficient to render the contract unenforceable.' The appellants' skeleton argument does not do so either and Mr Solomon advanced no submissions in support of this ground. I would dismiss this ground too.
- Ground 18 challenges the judge's decision on a new point that the appellants advanced to him for the first time after he had given his reserved judgment, but before the order was drawn up. It was that the payment of the £30,000 was a condition precedent of Mr Lewis's right to his 10% share of the gross turnover and that, as he only paid £16,000 and (the judge found) there was no offsetting arrangement, he was not entitled to the claimed 10% share.
- The judge rejected this argument for reasons he gave at  to  of his judgment of 1 December 2015. First, the point had not been pleaded or raised at the trial. Second, 'what I found was that there was no express agreement to offset, but that [Mr Lewis] might have felt entitled to set off'. Third, he had not found that the payment of the £30,000 was a condition precedent of the entitlement to the 10% share or to the £24,000 salary, but was a distinct and separate obligation. He said the £30,000 was an amount due from Mr Lewis to the defendants, of which £16,000 had been paid, and that the defendants could in theory have claimed the balance, although there would have been no point in doing so as the money would anyway have been due for immediate repayment under the refund term. Fourth, he said:
'12. … on the defendants' logic, the payment of the £30,000 would be a condition of the payment of the £24,000 salary as well as the 10 per cent but, as I read matters, the defendants do not contend that ]Mr Lewis] was not entitled to such salary and I note finally [Mr Lewis's] point that the defendants accepted [the] £16,000 by way of part payment of the capital contribution without in any way indicating that [Mr Lewis] was still not entitled to either salary or the 10 per cent of gross. So accordingly, the position remains as found in the main judgment that in principle [Mr Lewis] is entitled to 10 per cent of gross turnover.'
- The appellants' skeleton argument does not develop the case as to why the judge was wrong on this point and Mr Solomon made no submissions on ground 18. I cannot see why the judge was wrong in holding as he did on this point and would also dismiss ground 18.
- I would dismiss the appeal.
Mrs Justice Proudman :
- I agree.
Lord Justice Patten :
- I also agree.
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