Wilson & Anor v Burnett [2007] EWCA Civ 1170

Case No A2/2007/0140[2007] EWCA Civ 1170
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PLYMOUTH DISTRICT REGISTRY
(HIS HONOUR JUDGE NELIGAN)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 24 th October 2007
Before
LORD JUSTICE MAYLORD JUSTICE CHADWICKLORD JUSTICE MOORE-BICK
Between
WILSON & ANRAppellantBURNETTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr G Jones (instructed by Messrs Evans Harvey) appeared for Appellant.THE RESPONDENT APPEARED IN PERSON. for in person
Judgment
[1]On 20 January 2005 at a bingo hall in Plymouth, a ticket or book purchased and held by Tania Burnett (the defendant) won not only a local prize of £153 but a huge national bingo prize of £101,211. Tania was there that night playing bingo with two friends with whom she worked, and they were Stacy Wilson and Abigail Stacey. They claimed in County Court proceedings tried at Exeter on 13 December 2006 that the three girls had made a binding oral agreement, enforceable in law, that they would share any winnings equally. So Stacy and Abigail each claimed £33,736 from Tania as their contractual share of the national prize.[2]HHJ Neligan heard evidence which he decided was in conflict on all material matters. He held, with reference to a Scottish case, that although a promise or agreement made in a purely social context would not in most cases be regarded as legally binding, it was essential to look at the particular facts to discover whether they revealed an intention to conclude a contract. That, of course, is elementary law.[3]It was accepted that there was a straightforward conflict of fact as to what had been agreed. But the judge was not satisfied that the claimants had established what he referred to as the real issue: that is, that in discussions leading up to the bingo session on 20 January 2005, an intention to create legal relations could be inferred. He said at paragraph 84 of his judgment:
“I accept the defendant’s evidence that there was chat or talk about sharing winnings which went no further than discussion or chat and did not cross and cannot be inferred to have crossed that line which exists between talk and ‘meaning business’, or an intention to create a legal relationship, that is to share the prize money”
. And he said a little later in paragraph 89: “I do not therefore accept the claimants’ evidence as proving on a balance of probabilities that a binding agreement existed whereby the defendant, or indeed any of them, was under any obligation to share the winnings”.[4]The three girls had worked together between November 2004 and January 2005 at Royal Mail Data Entry Course. There was a fourth girl called Charlee O’Brien who was under seventeen at the time, and so not eligible to go to bingo. Stacy Wilson’s written evidence was that they had arranged to have a girls’ night out at bingo on 20 January 2005 as a farewell evening for Abigail, who was about to go travelling for her gap year. They planned the evening in some detail, and Tania and Stacey suggested that they share winnings over £10. Abigail had not been to bingo before and she initially did not want to share, but she was persuaded to change her mind and “we all made a promise to share any winnings over £10”. According to her evidence, they reaffirmed this agreement when they had arrived at the bingo hall, were having a drink and were explaining the rules of bingo to Abigail. Abigail Stacey’s written evidence was to the same effect. It included:
“…it was decided that any winnings over the sum of £10 would be shared between us, to which I wholly agreed”
. This was confirmed after they had arrived in the hall.[5]Tania Burnett represented herself before the judge. Her defence, which was in the form of and treated as her witness statement, agreed that they had discussed going to bingo; but there was, according to her, no agreement to share anything, just discussion. The discussion, according to her, included Stacy Wilson saying she always shared and Tania herself saying that she never did. They did discuss sharing after they had reached the hall, but no agreements were reached. There were no discussions about sharing while they were waiting for the main session game to start. The effect of her evidence after she had won the local £153 prize and was waiting for the national result, and after it came, was that various people including Stacy and Abigail asked whether she would share, but that she said that she would not. There was no mention, according to her, of sharing the national prize.[6]The judge’s extended account of and discussion about the evidence included extended consideration of evidence other than that of the two claimants and the defendant. Highlights of this in brief summary are as follows. A) he found that the evidence of Charlee O’Brien did not support the claimants’ case. She gave an account of a discussion between Stacy and Tania, with Stacy saying that they would split the money between the two of them, Abigail not being included in this. Her oral evidence, to the effect that she had a clear impression that the three of them were to share, was not consistent with this. There was also a discrepancy between the claimants’ evidence that they were to share winnings over £10 and Charlee O’Brien’s understanding that it was agreed that they would be sharing however small the amount. Charlee O’Brien did not support the case for a binding agreement. There was also, as it happens, a discrepancy between the date given by Charlee O’Brien when this meeting took place -- 14 January, according to her, and the date given by Stacey Wilson which was two days before 20 January and in the same week as the occasion of the bingo session in question. B) The judge noted differences, not (on one view) perhaps of great consequence, in the evidence of the three girls about precisely what amounts they each paid for what tickets. C) The judge noted evidence from the claimants to the effect that while they were waiting for the national result with the possibility of a big win, the claimants kept saying to Tania “Are we going to share?”. The judge regarded this as a distinctly odd question if there was indeed a concluded agreement to this effect. He also noted Stacey’s evidence that Tania had said in response to repeated questions that she would give them each £20,000. D) The judge referred to Abigail’s evidence, who had confirmed, she said, during the waiting that she would share equally if the ticket won. All three of them agreed that Tania had lost her temper on repeated questioning whether she was going to share. E) The judge did not find support for the claimants’ case in the evidence of a Mrs Wendy Carpenter, who gave evidence that the girl holding the winning ticket had said that they had agreed to split the winnings three ways. But her statement had said that she knew they were going to split it three ways, so why should she need to ask if they were? Her evidence, considered the judge, did not support an antecedent binding agreement. F) The judge gave little weight to the uncross-examined evidence of Mrs Glanville who was unable to attend because of illness in the family. G) The judge found that the evidence of a caller, Mr Ashley, was nothing like that in a statement he had written on the day after the win, and he considered it could not support the claimant’s case. H) There was a discrepancy between Stacey and Abigail’s evidence that Tania had given them each £51, exactly one third of the £153, and Tania’s evidence that she gave £40 each. The judge preferred Tania’s evidence. His reasons for doing so are not, to my mind, entirely persuasive. J) He discounted evidence about a conversation in the car afterwards. I) He also discounted, for no very persuasive reason, evidence that Tania Burnett had put forward an invoice to the District Judge on an application to set aside default judgment, and an application for a freezing injunction which had, so it was established, a nonexistent business address. The invoice was in fact addressed to her mother, and Tania’s evidence was that she did not know anything much about it.[7]The essential ground of appeal supported by detailed argument is that the judge’s reasons and reasoning were inadequate. It is said that he failed adequately to consider the evidence of the appellants and the respondent about the making of the agreement. His treatment of the evidence of Charlee O’Brien and Nicholas Ashley is criticised. Criticism of Nicholas Ashley by the judge seems to me to have been entirely sustainable, if only by reference to cross-examination at page 282, in which Mr Ashley accepted that his written statement was materially wrong. The evidence at page 282 needs to be compared with that in paragraph 3 of his witness statement at page 155.[8]It is said that the judge failed to give the appellant’s witnesses the opportunity to respond to matters raised by the judge himself in his judgment. This, I suspect, to the extent that he did, arises in part at least from the fact that Tania Burnett was unrepresented. It is said that the finding in favour of Tania Burnett was against the weight of the evidence. It is said that neither Stacy Wilson nor Abigail Stacey knows why her claim was dismissed. Neither claimants’ oral evidence was adequately addressed, and Abigail Stacey’s question “Are you going to share?” was, it is suggested, taken out of context.[9]A fair reading of the evidence of Charlee O’Brien shows, it is submitted, that there was no sharp inconsistency between her statement and her evidence. The judge’s treatment of the evidence of Mrs Wendy Carpenter is criticised as being unreasoned, and that her oral evidence was not, in truth, at variance with her written statement. It is suggested that, properly seen, it tended to support the claimants’ case. It is said that the judge should have given weight to Mrs Glanville’s evidence despite her absence from court, and his preference for Tania Burnett’s evidence that she handed over £40 to each of the others, not £51, was, it is submitted, unreasoned and his reasoning process does not bear examination. It was, it is submitted, perverse not to give weight to the fact that Tania Burnett had put what is said to have been a forged invoice before the District Judge. Essentially, however, the contention is that the judge accepted Tania Burnett’s evidence but did not say why, and did not explain why he rejected the evidence of the two claimants. It was an unreasoned judgment, and it is said that the appeal should be allowed and a new trial ordered.[10]Reference is made to the very well known case in this court of English v Emery Reimbold & Strick Ltd [2002] 1 WLR at 2009, although we have not been told that any steps were taken such as that authority suggests to invite the judge to expand on his allegedly unreasoned judgment.[11]In summary, Mr Geraint Jones QC submits that the judgment does not pass muster as a forensic exercise of fact-finding in the essential dispute between these parties.[12]It is, I accept, not entirely clear whether the judge reached his conclusion in favour of Tania Burnett on the basis that he preferred her evidence and, so far as was necessary, rejected that of Stacy and Abigail; or whether he found that any agreement was not one which was intended to create legal relations; or whether his decision was a combination of both of these.[13]The case advanced by the claimants was that the agreement was made at their work some days earlier. The pleaded case was simply that there was an agreement that any winnings that any or all of them won over the sum of £10 would be shared equally between them. This did not, as expressed, require any of them to play any particular game; and this to my mind raises a problem, both as to the definition of any agreement and as to the existence of the requisite intention to create legal relations. Paragraph 17 of the judge’s judgment, in which he relates Tania’s evidence of how and in what order she and the others bought their session books, touches on the kind of problem which could arise. The same applies to Tania’s evidence, relating to the time when they were discussing the possibility of sharing, but that they were not going to play bingo for the national game. If that were correct, the definition of the content of any agreement would be difficult, and on the face of it would not include sharing winnings of the national game.[14]The judge did, however, at the end of his judgment, as I have indicated, both accept the evidence of Tania Burnett and hold that he was not satisfied that there was an intention to create legal relations. He reached those conclusions having considered a body of evidence about what happened in the bingo hall, which he analysed in terms which were generally unfavourable to the claimants. I do not myself think that the evidence from others of what happened and what was said at the bingo hall itself goes any real distance to establish or support what had been agreed on the earlier occasion. The occasion in the bingo hall was no doubt excited and confused. I agree that some of the judge’s analysis of the evidence of what happened at the bingo hall was capable of critical forensic analysis. I refer here, for instance, to his summary rejection of the contribution to credibility which might derive from the invoice which on one view was forged, although the extent to which the document was authentic was not fully explored, and his preference for the evidence that Tania paid £40 to each of her friends rather than £51 for the reasons which he gave. On the other hand, the judge did not find that £51 was paid, which would of course have supported the claimants’ case. His consideration of the evidence of Charlee O’Brien was reasonably persuasive, and his point that the question “Are you going to share?”, or words to that effect, was inconsistent with a firm prior agreement known to all three of them that they would share is, to my mind, a point of substance. I am not persuaded that paragraphs 25 to 29 of the judgment on this topic are an unbalanced summary of Abigail Stacey’s relevant evidence, nor that it is taken out of context. It is not correct that the judge ignored her evidence.[15]The issue in this case was, in the end, a narrow one: that is, whether there had or had not been a sufficiently certain binding agreement at the girls’ place of work on an earlier occasion. There were intrinsic problems with an agreement such as this, both of definition and on the question of whether a necessarily casual conversation could be elevated into an agreement binding and enforceable in law. The reality, I think, is that the claimants’ bare bones account of what they say was agreed at their place of work, taken alone, scarcely stands as an agreement binding and enforceable in law. Having considered the judge’s judgment as a whole, it was in my view a sufficiently adequate judgment, in which the judge made a critical finding of fact unfavourable to the claimants. This finding was open to him on the limited oral evidence, which was truly capable of bearing directly on the subject. I do not consider that the rest of the evidence bore directly on this critical finding, and I think that insofar as it was capable of supporting one side or the other, some of it went one way and some perhaps another. I am not persuaded that justice requires that there should be a new trial, and for these reasons I would dismiss the appeal.[16]I agree.[17]I also agree. The appeal is dismissed.

Order

Appeal dismissed.