Bond v Dunster Properties Ltd & Ors

A serious delay in delivering judgment does not automatically invalidate findings of fact. The appellate court must apply the usual plainly-wrong standard with particular scrutiny. Where the trial judge’s recollection was materially at fault and the error may have resulted from the delay, a retrial should be ordered if the appellate court cannot otherwise be satisfied that the conclusion was correct.

Signing an agreement does not ordinarily bind the signatory without delivery or some communication of an intention to be bound. That intention may, however, be communicated objectively through subsequent conduct.

The claimant advanced money to his son and associated property companies for a property-development project. The parties disputed whether the money and project were governed by a written project partnership agreement. The trial judge found both that the claimant had signed the agreement and that his subsequent conduct objectively communicated an intention to be bound by it.

The claimant appealed from the Bristol Mercantile Court, principally challenging those findings after the judge had taken 22 months to deliver judgment. The central issues were whether that delay rendered the factual findings unsafe, whether signature alone created a binding agreement, and whether the finding of acceptance by conduct could stand.

1. Appeal dismissed unanimously. Arden LJ gave the leading judgment. Longmore LJ and the Master of the Rolls agreed that the 22-month delay, although lamentable and unacceptable, did not render the trial judge’s findings unsafe.

2. The ordinary test on an appeal against findings of fact remains whether the trial judge was plainly wrong. Serious delay does not automatically require findings to be set aside. It does, however, weaken the significance of the trial judge’s advantage and requires particular scrutiny. Where the appellate court identifies a material fault in the judge’s recollection which may have resulted from the delay, a retrial should follow if the court cannot otherwise be satisfied that the conclusion was correct. On the evidence, the judge’s minor errors did not reveal material misrecollection or undermine the decisive findings.

3. The right to a hearing within a reasonable time under article 6 of the European Convention on Human Rights includes delivery of judgment. Although no statutory rule fixes a period, three months is ordinarily the expected period. Any longer period must be exceptional and justified. As a matter of good practice and transparency, an unreasonable delay should be explained to the parties. Litigants are also entitled to an apology and, where one exists, an explanation.

4. Signature alone was insufficient to bind the claimant. A person who signs an agreement ordinarily becomes contractually bound only upon handing it to the other party or otherwise communicating an intention to be bound. The witnessing of the signature did not itself provide the necessary communication because the witness lacked authority to receive notice of acceptance.

5. The absence of delivery did not determine the appeal. The judge had independently found that the claimant’s outward conduct communicated a binding intention to proceed under the partnership agreement. That conclusion rested substantially on uncontroversial circumstances, including the project’s financial arrangements, fees, VAT treatment, the developer’s control of the works and the absence of a separate refurbishment contract. The conclusion was objectively justified and did not depend materially on witness demeanour.

6. The Master of the Rolls added that preliminary issues involving several days of oral evidence should be ordered only in very exceptional circumstances. Parties and judges should test whether such a hearing will genuinely shorten the litigation. Trial judges should also control hearings exceeding their estimates, while parties must comply timeously with disclosure obligations.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The 22-month delay did not make the findings unsafe, and the finding of a communicated intention to be bound by the partnership agreement was upheld: [2011] EWCA Civ 455.

2. High Court, Bristol Mercantile Court: HHJ Havelock-Allan QC determined preliminary issues by declaring that the claimant had signed the project partnership agreement and that the agreement governed the development and repayment arrangements. The judgment’s neutral citation was not stated.