Johnstone & Anor v Bramley & Anor

A renewed application for permission to appeal confined to factual findings will fail where the trial judge heard the competing accounts and gave a compelling, soundly reasoned basis for preferring one account. Documentary evidence and admissions may support adverse credibility findings where alleged payments are contradicted by account records and repeated assertions are shown to be false. The surrounding commercial circumstances may also support an inference that a disputed commission agreement existed where the payment made corresponded precisely with the alleged percentage of the contract price.

The defendants were liable to the claimants for £30,000 under the Salthouse Road Agreement and admitted paying £17,000. At trial, the defendants disputed liability for the remaining £13,000 and denied a separate agreement under which the first claimant was to receive a 2 per cent bonus on a building contract.

Judge Heppel QC gave judgment for the claimants for £30,000, interest and costs. The defendants renewed their application for permission to appeal, challenging the judge’s assessment of the alleged payments and the existence of the bonus agreement. The central issue was whether the factual findings disclosed any proper basis for an appeal.

1. Disposition. Lord Justice Simon Brown refused the defendants’ renewed application for permission to appeal and dismissed it. There was no order for costs.
2. Nature of the challenge. The application concerned only the trial judge’s findings of fact. The judge had heard the parties’ competing accounts and was entitled to prefer the claimants’ evidence where the judgment provided a sound basis for doing so.
3. Alleged payments. The defendants relied on six alleged payments said to discharge the £30,000 liability. Four payments totalling £17,000 were admitted. The alleged £10,000 and £3,000 cash payments were contradicted by the account documents, which showed transfers into other accounts held by the first defendant to reduce overdrafts. The first defendant admitted these matters before or at trial. His subsequent attempt to identify four substitute payments totalling £10,000 was equally unconvincing. The judge was therefore justified in treating the repeated payment assertions as invented payments rather than mistakes. A £700 payment was plainly attributable to a settlement following termination of employment.
4. Bonus agreement. The rejection of the denial of a second agreement was also justified. The commercial probabilities supported the claimants’ account, particularly because the £17,000 paid represented precisely 2 per cent of the approximately £850,000 Benson building contract.
5. The application was accordingly considered hopeless and was dismissed.

• Kingston upon Hull County Court: On 23 August 2001, Judge Heppel QC gave judgment for the claimants for £30,000, interest of £6,248.07 and costs.
• Court of Appeal (Civil Division): Lord Justice Simon Brown refused the renewed application for permission to appeal and dismissed it. The decision is reported at [2001] EWCA Civ 1854. There was no order for costs.