Deir v Al Athel & Ors

In civil litigation, a trial judge may decide whether a claimant performed qualifying active duties where that issue emerges from the pleadings, requests for information, evidence and cross-examination. It need not have been the claimant’s primary case or explored at length. A procedural-fairness complaint will fail where the issue was properly in the arena and the judge addressed the parties’ objections. The Court of Appeal will not interfere with factual findings, including findings about the scope of an agreement and involvement in particular companies, where those findings were open to the trial judge.

Following a ten-day trial, Foskett J found that the claimant had an oral agreement with the first defendant for directorship fees of £20,000 per company per year and awarded approximately £379,000 inclusive of interest. The defendants challenged the findings, principally arguing that active involvement or active management had not been pleaded, litigated or fairly addressed. They also challenged the award of fees concerning two golf-club companies. The Court of Appeal heard a rolled-up application for permission to appeal, considering whether the trial process was procedurally unfair and whether the relevant factual findings were open to the judge.

1. Application refused. Permission to appeal was refused on all grounds.
2. The first three grounds disclosed no error of law or serious procedural irregularity. The issue of active involvement was properly in the arena. It appeared in the defence, the claimant’s reply, a request for further information and the amended defence. The claimant’s witness evidence also referred to active involvement, and the issue was touched on in cross-examination. The fact that the issue had not been explored extensively, or advanced as the defendants’ primary case, did not make it unfair for the judge to consider it.
3. The judge was entitled to assess the evidence and determine the scope of the oral agreement. His postscript formed part of the judgment and adequately addressed the objections raised after circulation of the draft judgment. The Court of Appeal found the judge’s rejection of those objections well-founded.
4. The challenge concerning Lydd Golf Club and Driving Range and Lydd Golf Club Limited was also rejected. The judge had expressly addressed whether the companies fell within the airport-related employment arrangements. He attached weight to the fact that the claimant became a director only after a substantial period of involvement in the airport. Those were factual findings open to him. The appellate court was not in a position to interfere and the judge had neither forgotten nor confused the test he had applied.
5. A fourth ground had been abandoned. The formal order was: application refused.

• Court of Appeal (Civil Division): The rolled-up application for permission to appeal was refused on all grounds: [2012] EWCA Civ 73.
• High Court of Justice, Queen’s Bench Division: Foskett J gave judgment after a ten-day trial in favour of the claimant for approximately £379,000 inclusive of interest. The order was sealed on 18 May 2011.