Field v Tibbs

A payment made by or on behalf of a borrower cannot be unilaterally appropriated by the lender to discharge another person’s debt. The lender must prove the borrower’s agreement to that appropriation. A trial judge resolving conflicting oral evidence must address the central credibility issue and material evidence undermining the preferred account. Peripheral documents cannot substitute for that analysis where they do not establish the necessary agreement. Where the reasoning does not justify the result, the appellate court may order a retrial despite additional cost and delay, because justice requires a proper determination by a judge who saw and heard the witnesses.

Alexander Field lent money to his nephew Ronald Tibbs and separately to Tibbs’s sister, Doreen. After payments totalling £80,000 were made, Field credited £15,000 to Doreen’s interest-free debt and claimed that only £65,000 reduced Tibbs’s loan. Tibbs disputed that allocation.

At Shoreditch County Court, His Honour Judge Graham accepted Field’s account and entered judgment for £29,745.16. Tibbs sought permission to appeal out of time. The central issue was whether the judge had properly assessed the conflicting evidence and whether the documentary material established the agreement required for the appropriation.

Disposition. Lord Justice Peter Gibson gave the leading judgment. Lord Justice May agreed. Permission to appeal out of time was granted, the appeal was allowed, the county court order was set aside and a new trial before another judge was ordered.

1. Field had to establish that he was entitled to appropriate £15,000 of money paid by or on behalf of Tibbs towards Doreen’s separate debt. A unilateral appropriation without Tibbs’s agreement would be invalid. The respondent’s contrary submission was conceded to be wrong.
2. The trial judge had not made a proper determination of the central issue. His summary of Field’s evidence went beyond the hearing notes, while omitting written and oral material suggesting that Field had acted unilaterally. The judge expressly declined to decide the case by witness impression or inherent probability, but relied on three peripheral documents which did not establish the necessary agreement. He did not explain why material difficulties in Field’s evidence did not affect his credibility.
3. Lord Justice May emphasised that, although it was possible in principle to prefer Field’s oral evidence despite those difficulties, the judge had to address the material capable of undermining it. A conclusion based only on weak peripheral indications could not stand without that analysis.
4. Under the Civil Procedure Rules, evidence not before the lower court would not be received without an order under r. 52 11 (2). The court had power under r. 52 10 (2)(a) and (c) to set aside the order and order a new trial. Although further cost and delay were relevant under Part 1, dealing with the case justly required a proper judicial determination by a judge who saw and heard the witnesses.

The formal order allowed the appeal with costs, left costs below to the discretion of the judge hearing the retrial, directed the parties to seek mediation, and ordered £29,000 held in court to be repaid to Tibbs.

1. Court of Appeal (Civil Division), 20 June 2000: In [2000] EWCA Civ 195, permission to appeal out of time was granted, the appeal was allowed, the county court order was set aside and a new trial was ordered.
2. Court of Appeal (Civil Division), 10 February 1999: Brooke and Clarke LJJ refused Tibbs permission to appeal the earlier determination concerning interest.
3. Shoreditch County Court, 28 October 1998: His Honour Judge Graham entered judgment for Field in the sum of £29,745.16 after trying the dispute over the allocation of payments.