Dickinson (t/a John Dickinson Equipment Finance) v Rushmer (t/a F J Associates)

On an appeal from factual findings, the Court of Appeal must recognise the trial judge’s advantage in seeing and hearing witnesses. It may intervene where the finding is wrong, but the difficulty of the decision or inconsistencies in a witness’s evidence does not itself justify intervention.

An oral commercial agreement may be sufficiently certain even where its application to particular transactions is difficult. A provision allowing “just allowances” when taking an account does not permit a party to introduce substantial claims which alter the parameters fixed by the judgment. Late amendments may properly be refused where they undermine finality and cause prejudice that costs cannot adequately remedy.

The parties were brokers who orally agreed to collaborate in arranging finance transactions. After they completed 27 transactions, a dispute arose over whether all proceeds from joint transactions, including profits and uplifts, were to be shared equally.

The Central London County Court found for an account on that basis and entered judgment after the account was taken. It also refused to permit the appellant to introduce claims concerning a loss and a payment arising from a transaction which had previously been removed from his counterclaim. The appellant appealed against the factual finding and against the refusal to amend.

1. First appeal dismissed. The Court of Appeal was not persuaded that the trial judge’s finding as to the terms of the oral agreement was wrong. The judge had carefully assessed both parties’ credibility, the limited documentary evidence, the subsequent dealings, and the commercial consequences of their competing accounts. His finding that the parties agreed to share equally all commissions, fees, profits and other benefits from joint transactions was open to him.
2. The fact that applying an apparently simple agreement to different transaction structures could be difficult did not make the agreement uncertain or unenforceable. Commercial sense supported the equal-sharing construction, particularly because the appellant controlled the transaction structure while the respondent supplied customers. The agreement could be applied by reference to the proceeds generated by each transaction.
3. Second appeal dismissed. Rule 6 of Order 43 of the Rules of the Supreme Court 1965, and the substantially similar paragraph 4 of Practice Direction No 1, PD 40A under the Civil Procedure Rules 1998, did not authorise the appellant to introduce claims amounting to a significant alteration of the account’s parameters. Those parameters had been fixed by the earlier judgment and pleadings.
4. The appellant needed permission to re-amend his counterclaim. Refusal was a proper exercise of discretion because the claims could and should have been raised at the substantive hearing, the relevant counterclaim had been abandoned, and their late reintroduction would have materially prejudiced the respondent and undermined finality. The Court ordered that the appeals and application be dismissed, with the consequential costs and payment directions set out in the order.

• Court of Appeal (Civil Division): dismissed the appeal against the Central London County Court’s factual and accounting decisions and dismissed the appeal concerning refusal of permission to amend.
• Central London County Court: ordered an account on the basis of equal sharing, entered judgment for the respondent after the account, and refused permission to re-amend the counterclaim.