E J W Builders Limited & Anor v Audrey Marshall & Ors

An appellate court will not disturb factual findings after an oral trial unless they are plainly wrong: that is, outside the range within which reasonable disagreement is possible. Cogent contemporaneous documents which apparently contradict a conclusion should be addressed, but a trial judge is ordinarily presumed to have considered all the evidence. Documents do not have automatic primacy. The court must evaluate them with the oral evidence, the parties’ motivations and the inherent probabilities.

Discussions about profit-sharing, and one party’s genuine belief that a share will be received, do not establish a binding partnership or joint-venture agreement. The alleged agreement must be proved with sufficient certainty, including as to the parties and the basis on which profits are calculated.

E J W Builders Limited and its sole director alleged that they had entered an oral partnership, or alternatively a contractual joint venture, with the former owners of the Hilbury Court Hotel. They alleged a right to a share of redevelopment profits in addition to payment for building work.

At trial, HHJ Paul Matthews, sitting as a High Court judge, dismissed the claim in an ex tempore judgment: [2025] EWHC 2765 (Ch). He found that the only contract was a JCT building contract and that no profit-sharing agreement or partnership had been proved.

The claimants appealed solely on findings of fact. They contended that the judge had mishandled contemporaneous documents and wrongly rejected the alleged agreement. The central issue was whether those findings were plainly wrong.

1. Appeal dismissed. Lady Justice Falk gave the court’s reasons, with whom Lord Justice Miles and Lord Justice Warby agreed. The claimants had not overcome the stringent appellate threshold for challenging findings of fact after an oral trial.

2. The applicable question was whether the trial judge’s decision was plainly wrong: one which no reasonable judge could have reached, or which lay outside the bounds of reasonable disagreement. The appellate court had to respect the trial judge’s advantages in hearing the witnesses, assessing the whole body of evidence, and making a nuanced overall evaluation. The court applied Volpi v Volpi [2022] EWCA Civ 464 and the recent restatement in Kerish International Motors Agency v Opel Automobile GmbH [2026] EWCA Civ 865.

3. The documentary-evidence grounds did not alter that conclusion. Although apparently compelling contemporaneous documents adverse to a proposed conclusion should ordinarily be addressed and explained, a judge is generally presumed to have considered all the evidence. The absence of express discussion creates a risk of error, not an automatic basis for intervention. Nor do contemporaneous documents have primacy over all other evidence. Their weight must be assessed with the witness evidence, motivations and inherent probabilities.

4. The judge was entitled to find that the alleged February 2019 agreement was implausible and unproved. Its pleaded timing preceded the parties’ proper introduction. It would have given the claimants a salary and a substantial profit share while the respondents bore the project’s financial risk. The JCT contract, entered shortly after work began, made no provision for such an arrangement.

5. The documents showed that profit-sharing was discussed and supported Mr Wynne’s genuine belief that he would receive a share. They did not compel the finding of a concluded agreement. Material uncertainty remained as to the parties to any arrangement and the calculation of net profits and deductions. Those were fundamental matters, not details capable of simple implication.

6. As no contractual profit-sharing agreement was proved, the partnership ground necessarily failed. It was unnecessary to examine the separate indicia of partnership. The High Court’s dismissal of the claim therefore stood.

• Court of Appeal (Civil Division): Dismissed the claimants’ appeal and upheld the dismissal of their partnership and contractual joint-venture claim.
• High Court of Justice, Business and Property Courts in Bristol, Business List (ChD): HHJ Paul Matthews, sitting as a High Court judge, dismissed the claim after a two-day trial: [2025] EWHC 2765 (Ch).