David Thayaparan Mariampillai v Anbananden Sooben

An appellate court may identify errors in a trial judge’s reasoning without allowing an appeal. Intervention with primary fact-finding requires a material error which makes the decision wrong or unsafe. A solicitor may remain a partner despite having no equity share or entitlement to a share of profits, if that is the parties’ intention. An alleged change to profit entitlement is not necessarily a material change requiring notification to the SRA. A trial is not unfair merely because a judge asks clarifying questions or limits submissions, provided the judge remains impartial and does not descend into the arena.

The appeal concerned the nature of the partnership between two solicitors. HHJ Gerald decided after trial on 4 May 2023 that the parties had remained equal equity partners, although an arrangement entitled the claimant to receive 100% of his profit costs on account of his eventual 50% share.

The defendant appealed, arguing that the judge’s findings were undermined by errors concerning partnership status, SRA authorisation and the accounts. He also alleged procedural unfairness arising from the judge’s interventions in cross-examination, conduct towards counsel and restrictions on reply submissions. Permission to appeal was initially refused but granted on oral renewal.

1. Appeal dismissed. The judge had made errors, but they did not undermine the conclusion that there had been no September variation and that the parties remained equal equity partners.
2. An agreement giving one partner 100% of his profit costs, and no equity share or share of profits, does not necessarily terminate that person’s status as a partner. The legal effect depends on what the parties intended.
3. The SRA authorisation process was directed to qualification and fitness. If Mr Sooben remained a partner, the alleged 100% agreement was not relevant to authorisation, was not a material change requiring notification, and did not alter the meaning of “owners” in the authorisation. The judge’s contrary reasoning was erroneous.
4. The appellate court would not reweigh the accounts. Their evidential weight was for the trial judge. The judge’s principal reason for rejecting the alleged variation was that the asserted trigger for it did not exist: Mr Mariampillai had agreed to provide the start-up capital, so Mr Sooben’s alleged unwillingness to invest could not explain the variation. That reason was independently sufficient and was unaffected by the identified errors.
5. Applying the restraint described in Volpi v Volpi [2022] EWCA Civ 464 and Henderson v Fosworth Investments Ltd (SC(Sc)) [2014] 1 WLR 2600, the findings were neither plainly wrong nor unsafe.
6. The judge did not descend into the arena. His questions clarified matters which counsel was attempting to put to the witness and were initially open questions. The judge’s management of reply submissions did not make the trial unjust. The principles in Yuill v Yuill [1945] P 15 and Southwark LBC v Kofi-Adu [2006] EWCA Civ 281 were not infringed.

• High Court (Chancery Division): appeal from HHJ Gerald’s decision after trial on 4 May 2023. The appeal was dismissed.