Wilson & Anor v Burnett

In an alleged oral agreement arising from a social bingo outing, enforceability depends on whether the parties made a sufficiently certain agreement with an intention to create legal relations. The content of the alleged bargain must be identifiable, including the winnings and games covered; casual discussion may not suffice. On appeal, a first-instance judgment is read as a whole. A new trial is not required merely because parts of the evidential analysis are open to criticism if the judge made a critical finding on evidence open to him and gave adequate reasons. Later conduct may have limited probative value in establishing an earlier agreement where it is inconsistent with a firm prior bargain.

Three former co-workers claimed that they had orally agreed to share equally any bingo winnings exceeding £10. One of them, Tania Burnett, later held a winning ticket worth £101,211. Following a trial at Exeter County Court on 13 December 2006, HHJ Neligan rejected the claims, finding that the alleged binding agreement had not been proved and that the discussions had not demonstrated an intention to create legal relations.

The claimants appealed to the Court of Appeal, alleging inadequate reasoning, failure properly to assess the evidence and a conclusion against the weight of the evidence. The central issues were whether the alleged agreement was sufficiently certain and legally binding, and whether the first-instance judgment required a new trial.

The Court of Appeal unanimously dismissed the appeal.

1. Adequacy of reasons and appellate review. The judgment had to be read as a whole. Although some aspects of the judge’s treatment of subsidiary evidence, including the invoice and the amount of money paid to the claimants, could be criticised, the judge had made a critical finding against the claimants on evidence capable of supporting it. His reasons adequately disclosed how the central dispute had been resolved. The shortcomings identified did not justify ordering a new trial.
2. Certainty and intention to create legal relations. An agreement made in a social context is not automatically unenforceable. The court must examine the particular facts to determine whether an intention to create legal relations can be inferred. The alleged agreement also had to be sufficiently certain. The pleaded arrangement did not identify clearly which winnings or games were covered and did not require any participant to play a particular game. Those features created substantial difficulties both as to the content of the agreement and the alleged intention to be legally bound.
3. Assessment of the evidence. Evidence of what occurred in the bingo hall did not materially establish what had been agreed at work earlier. Repeated questions about whether the winnings would be shared were capable of being treated as inconsistent with a firm prior agreement already known to all three participants. The judge’s treatment of that evidence and of Charlee O’Brien’s evidence was reasonably persuasive, and he had not ignored the claimants’ evidence.
4. The court referred to English v Emery Reimbold & Strick Ltd [2002] 1 WLR, at 2009, concerning the possible invitation to a judge to expand allegedly inadequate reasons. No such step had been taken. The appeal was dismissed.

1. Court of Appeal (Civil Division): In Wilson & Anor v Burnett, [2007] EWCA Civ 1170, the appeal from the decision below was dismissed.
2. County Court, Exeter: Following the trial on 13 December 2006, HHJ Neligan rejected the claims for equal shares of the bingo winnings, finding that no binding agreement had been proved and that an intention to create legal relations had not been established.