Hobson v Magee (t/a Team Magee) [2012] EWCA Civ 116

Case No B2/2011/1404[2012] EWCA Civ 116
IN THE COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM Manchester County Court
(HH Judge Armitage QC)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21 February 2012
Before
LORD JUSTICE LONGMORELORD JUSTICE DAVISSIR DAVID KEENE
Between
Dennis HobsonAppellantPatrick Magee T/A Team MageeRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr J. Crystal (instructed by Glinert Davis LLP) for AppellantMr M. Budworth (instructed by Goodman Harvey LLP) for RespondentHearing Hearing date : 24 th January 2012
JudgmentLord Justice Davis :Introduction
[1]The amount in dispute in these proceedings, commenced on 3rd November 2008, was the sum of €30,000. The claim has a commercial context: a failed joint venture between the claimant and one or other of the defendants involving the arrangement of boxing matches. Given the relatively modest sum at stake and the commercial context one would have expected the matter to be compromised on a pragmatic basis. It was not. Instead, the case was very hard fought. After a 3 day trial in the Manchester County Court in September 2010 before HH Judge Armitage QC, a reserved judgment was eventually delivered in favour of the claimant. The amount of his recovery, after conversion into sterling, was just over £24,000, with interest and costs. The costs will have dwarfed the amount of the claim.[2]In granting limited leave to appeal, Gross LJ in terms stated that the parties would be well advised to consider their positions as to whether the sums at stake warranted the further pursuit of the litigation. But no resolution even then was reached. The inference is that the protagonists – Mr Magee and Mr Hobson – have conceived a strong personal animosity, the one against the other, which they apparently are sufficiently well resourced to indulge by protracted litigation. Each has accused the other of various kinds of chicanery and much of the hearing below – and indeed of the appeal hearing – was devoted to an attack on credit. My own impression is that a search for the high moral ground here, even with the aid of a telescope, is futile.[3]It also has to be said that, unfortunately, an overall final resolution of the dispute was not assisted by the judgment under appeal. After the closing arguments were presented on 28th September 2010 (the evidence had been given on 15th and 16th September 2010) judgment was reserved. In the event, a written judgment was not produced until 12th April 2011: that is, some 6½ months after the hearing concluded. The pressures on all judges one well understands: even so, this court has not been made aware of any reason why the judgment – in what was not an overly complex case – took so long to be produced.[4]In the event one of the original grounds of appeal advanced was delay beyond the reasonable period for delivering a judgment. Although Gross LJ refused permission on that ground as an independent ground, complaint is nevertheless made by Mr Crystal on behalf of Mr Hobson – and indeed to some extent by Mr Budworth on the part of Mr Magee – that the judge overlooked material issues and evidence and failed to deal with all the issues in the proceedings: it is suggested that this, at least in part, was due to the protracted delay in giving the judgment. The case at all events illustrates how unexplained delay in producing a judgment can give rise to dissatisfaction and can even contribute to, if not entirely cause, the bringing of an appeal[5]Further, with all respect to the judge, the form in which the written judgment was eventually produced was most inconvenient and unsatisfactory. This was a case which cried out for a judgment containing a clear chronological factual summary of the material documents and material events, with the written and oral evidence summarised and marshalled so as to relate to the issues raised; and with the reasoned conclusions then expressed by reference to the factual findings.[6]This, and notwithstanding that the delivered judgment was a reserved judgment, did not happen. Instead the judge in effect gave a sequential resume of the evidence given (with occasional comments or findings interspersed). Thus he reviewed Mr Magee’s evidence in chief and his evidence in cross-examination. Two witnesses giving evidence by video-link from the United States of America had to be interposed whilst Mr Magee was in the course of his evidence. The judge then in his judgment reviewed their oral evidence and, having done so, then returned to a review of Mr Magee’s remaining evidence. The judge then set out at length his review of Mr Hobson’s evidence-in chief, in cross-examination and in re-examination. After then explaining, in his judgment, his reasons for ruling that a late produced written Agreement should be admitted (an entirely unobjectionable ruling) he then, over 25 paragraphs, reviewed the closing arguments of Mr Crystal for Mr Hobson in the order in which those submissions were made; and then did the same, over 29 paragraphs, with regard to Mr Budworth’s closing submissions. By this stage the judge was at paragraph 117 of his judgment (page 30 out of 37). He then in 17 paragraphs, over the next 4 pages, set out his central findings and conclusions. The impression given is that – rather in the way of some summings-up at a criminal trial – the judge had for much of his judgment simply been following or dictating from his notebook. This has not assisted.[7]This court was further hindered by the way in which the appeal bundles were prepared, with no proper index and no chronological, or issue based, presentation of the documents. Some potentially important documents, referred to at trial, in fact only appeared before us appended to a supplemental skeleton argument of Mr Crystal. Initially, moreover, neither of counsel’s written arguments was cross-referenced to the appeal bundles nor was any chronology provided. This only happened very shortly before the hearing, after a request from this court. In consequence, this court has had to spend far more time pre-reading than it should have, in order to try and understand the issues.[8]It is not pleasant to have to preface a judgment with remarks of this kind. But in my view when avoidable difficulties of this sort are created they need to be highlighted in order to try to avoid repetition in future cases.

Background facts

[9]I turn then to set out in my own words what appear to be the material background facts.[10]Both the appellant (Mr Hobson) and the respondent (Mr Magee) are involved in the world of boxing. At the time of the events in question Mr Hobson was a licensed promoter but Mr Magee was not. Mr Magee thus was not entitled, under the relevant regulations, to hold himself out as a sole promoter of professional boxing matches.[11]Mr Magee is resident in Belfast. Mr Hobson is resident in Jersey. It was not disputed that Mr Hobson had a connection with various English limited liability companies (albeit not an officer or registered shareholder) which at stages incorporated the name “Fight Academy” into the company name, sometimes after name changes. The judge referred to, among others, Fight Academy Limited (the First Defendant, which later changed its name to FA Professional Services Limited and which went into insolvent liquidation at the end of 2008); Fight Academy UK Limited; and Fight Academy (SA) Limited.[12]In 2007 Mr Magee wanted to be involved in arranging two boxing matches on the same bill for an event in Dublin. One involved a fight between Brian Magee (whom he managed) and Tony Oakey. The other was a proposed European Super Bantamweight Title fight between Bernard Dunne and Kiko Martinez. Bernard Dunne was managed by Brian Peters.[13]At this time not only was Mr Hobson (unlike Mr Magee) a licensed promoter he also had, to put it broadly, access to the possibility of having the fights (or main fight) screened by Setanta TV. This was by reference to a written Agreement dated 2nd May 2007 previously made between Fight Academy Limited (FAL) - which was signed on its behalf by a director, Mr Poxon, not Mr Hobson personally- and Setanta. This Agreement specifically related to a fight involving Ricky Hatton but it also referred to the prospect of screening six further (as yet unspecified) boxing promotions.[14]Mr Magee and Mr Hobson entered into discussions. It was decided to progress the possibility. In consequence, Mr Magee approached Mr Martinez’s manager: and the upshot was that a written option Agreement – clearly not drafted by lawyers - was concluded on 9th May 2007. The named parties were(1) Mr Martinez and(2) “Dennis Hobson/Fight Academy/Team Magee”. Dennis Hobson/Fight Academy/Team Magee were defined as “the Promoter”. Mr Magee personally signed the Agreement on behalf of the Promoter. He said in evidence that he did so with the knowledge and approval of Mr Hobson. I should add that Mr Magee apparently himself had an associate called Mr Rooney: but nothing turned on that for the purpose of the proceedings. It is also said that a further option Agreement was later concluded with Mr Martinez on 14th July 2007: although a copy of that Agreement does not seem to be in the appeal bundles.[15]Having potentially procured Mr Martinez’s services for a fight with Mr Dunne, Mr Magee then entered into negotiations with Mr Peters (on behalf of Mr Dunne). This resulted in a written Agreement of 2nd July 2007. The parties are named as(1) Brian Peters and(2) “Dennis Hobson/Team Magee (Hobson/Magee)”. The Agreement provided that there would be a fight between Mr Dunne and Mr Martinez on 25th August 2007 at Point Depot, Dublin. It was agreed that profits and losses be shared 50/50 – that is, 50% to Mr Peters and 50% to “Hobson/Magee”. It was not really disputed at trial that as between “Hobson/Magee” any profits and losses were to be shared equally; nor did Mr Hobson dispute that he knew of these terms agreed with Mr Peters. But his case was that he was not intended to be, and was not, personally a party: rather, FAL was. At all events, that Agreement of 2nd July 2007 was not signed by Mr Hobson: it was signed by Mr Magee as “Hobson/Magee for Francisco Kiko Martinez”. At around this time, a joint Euro account was opened in the names of Mr Peters and Mr Magee at a branch of Allied Irish Bank in Eire. It was recited that “each of the two partners” would lodge €200,000 as working capital. In the event, neither did.[16]The fight between Mr Dunne and Mr Martinez duly took place in Dublin on 25th August 2007. Mr Martinez won. The fight between Brian Magee and Tony Oakey was on the supporting bill. It was not really disputed that virtually all the considerable expenses incurred were defrayed either by Mr Peters or by Mr Magee. Mr Hobson (or FAL), however, performed the valuable function of securing the Setanta TV coverage of the fight, as well as Mr Hobson being able to lend his name as (licensed) promoter. In that regard a European Boxing Union Fight Agreement had previously been made on 16th July 2007. On the copy of the Agreement produced at trial the stated purse was €75,000 (in reality it was said that it was €350,000). The Promoter for the purposes of that Agreement was designated as “Brian Peters/Dennis Hobson/Team Magee”. The Agreement was signed on behalf of the Promoter by each of Mr Peters, Mr Hobson and Mr Magee.[17]After the fight was over, Mr Peters submitted an account (the reality being that expenses had not been paid via the joint account as initially intended). That account indicated that, after expenses, a significant loss had been made. Mr Magee sent this account on to Mr Hobson at “Fight Academy”, at an address in Sheffield, indicating disappointment. It appears that both Mr Magee and Mr Hobson were suspicious of Mr Peters’ accounting. At all events, in the summary profit and loss account prepared by Mr Peters, it was recorded that Mr Magee had paid €121,350 by way of expenses. The overall loss was put at €98,697 for which “Hobson/Magee” would be potentially liable for one half. Prospective income recorded as outstanding included a €30,000 fee due from Setanta for the TV rights.[18]Consideration was given to suing Mr Peters. It was decided that was not worthwhile (a stance conspicuously different from that adopted in the present proceedings) and a “drop-hands” was negotiated with Mr Peters. Mr Magee put it this way in his witness statement:
“28. Sometime after that meeting I telephoned Mr Hobson and explained the situation. I was still out of pocket by £84,090 plus €6,050, less €29,940 which I was holding for ticket sales and accommodation expenses. This payment is referred to as €26,755 on the statement of account prepared by Mr Peters and is exhibited at exhibit PM-9 but that figure did not include additional expenses. There was also the matter of the €30,000 Setanta TV fee outstanding which was included in promotion income. In addition, the account produced by Peters (exhibit PM-8) was showing a loss of €98,697 which if correct, meant that Hobson/Magee would have to pay 50% of this. Initially I was prepared to challenge Mr Peters’ figures in court as there appeared to be no other remedy, but on advice taken, I was informed that if I went to court in the Republic of Ireland proceedings would be lengthy and expensive. I discussed this with Mr Hobson and considering that I was the one out of pocket and neither of us had any appetite for going to court we decided that the best solution was to reach agreement with Mr Peters that the promotion resulted in a no loss situation for Hobson/Magee. This I managed to do after some time and in December 2007, I paid Mr Peters €53,890 (which is made up of the €29,940 above plus the €30,000 Setanta fee outstanding less the €6,050 above owed to me). Mr Peters in turn paid me the £84,090 owed to me. As evidence of these transactions I enclose my bank statements numbered 25 and 30 marked as exhibit PM-10. The net result of all of these bank transactions is that the €30,000 due from Setanta is due to me. Mr Hobson received this money (via the account of Fight Academy Limited I believe) from Setanta in January 2008 but did not pay me as agreed.”
It is this which in due course formed the basis of the allegation that Mr Hobson agreed that Mr Magee (alone) should receive the €30,000 when received from Setanta – to offset against his personal expenditure incurred for the joint venture and to ensure that he did not come out with a loss. Certainly Mr Peters himself has subsequently never claimed any entitlement to any part of that sum.[19]In due course – well after the fight – Setanta paid the €30,000. The agreement for this was evidenced in a Rights Acquisition Agreement between “Fight Academy”, Team Magee and Brian Peters Promotions on the one hand and Setanta on the other hand. In the copy produced at trial, it is signed by Mr Magee and Mr Peters but not Mr Hobson. However by letter of 4th December 2007 from Mr Magee to Mr Hobson at Fight Academy in Sheffield, Mr Magee sent the Setanta contract “which has now been signed by Brian Peters and Team Magee” and requested him to “add your signature and apply to Setanta for payment on our behalf”. He also requested that the €30,000 be “paid into the partnership account” (viz. in the names of Peters and Magee).[20]The schedule to this Rights Acquisition Agreement referred to “Fights (sic) Academy”, Team Magee and Brian Peters Promotions. By clause 9 it was provided. “Setanta shall pay Fight Academy the Licence Fee in full within thirty (30) days receipt of an invoice for the same and following signature of this Agreement by all parties. Fight Academy undertakes to distribute the Licence Fee to Team MaGee and Brian Peters Promotions and hereby indemnifies Setanta for any claims for the Licence Fee from Team MaGee and/or Brian Peters Promotions. ” It may be noted that (in contrast with the Setanta Agreement of 2nd May 2007) there is no reference to FAL as such.[21]Setanta did pay the €30,000. It did so on 18th January 2008. It paid the money to FAL. It was established at trial (Mr Magee’s lawyers having obtained disclosure from the liquidator of FAL) that FAL transferred the money on receipt to another account in its name and thence, with other money, to a company called PW Promotions Limited, a company of which the director was Philip Wright, an associate of Mr Hobson. The trial judge inferred that the money was paid to PW Promotions Limited on behalf of Mr Hobson and thus to the benefit of Mr Hobson. Certainly no part of the money was ever paid to Mr Magee or into the joint account.[22]Reverting to the aftermath of the fight in Dublin of 25th August 2007, it seems that Mr Hobson entered into direct discussions with Mr Martinez’s manager about the prospect of further fights. An Agreement for four possible fights, including one with Wayne McCullough on 1st December 2007 in Belfast or London, was made on 4th October 2007. It was on note-paper headed with a Fight Academy logo. At the bottom was typed the Sheffield address and in small print the company registration number 5875984 (that of FAL). The Agreement named as parties Kiko Martinez, Alberto Gonzalez (Mr Martinez’s manager) and “Dennis Hobson of Fight Academy”. The copy as produced to court is signed by Mr Martinez and Mr Gonzalez. In that copy, there is no signature against the typed name of Dennis Hobson. There is no reference to Team Magee.[23]Mr Hobson had also set about procuring Mr McCullough’s agreement to fight on 1st December 2007. This was evidenced by a letter dated 4th October 2007 from Mr McCullough’s US legal agents to “Fight Academy” in Sheffield marked “Attn: Dennis Hobson”. It referred, among other things, to pleasure at agreement having been reached “with your company” and set out the agreed terms. The letter was countersigned as agreed and accepted on 11th October 2007 by Mr Hobson over the typed name “Dennis Hobson”.[24]It will be noted that Team Magee also is not mentioned in that letter agreement. Mr Magee took the view, when he found out, that the intention had been that he was being cut out. Be that as it may, he clearly was quite soon after made aware of it by Mr Hobson: and the evidence clearly indicates that he and Mr Hobson (or FAL, as Mr Hobson would say) then agreed to proceed to cooperate in the fight arranged between Mr Martinez and Mr McCullough on 1st December 2007, to be held in Belfast.[25]In the event, Setanta declined to screen that fight. Mr Magee seeks to cast blame for that on Mr Hobson, which may be unfair and in any case is not important. What undoubtedly did happen was that Mr Hobson (and/or FAL) no longer wished to be involved in that fight; but Mr Magee did. It was agreed that he could. One problem, however was that he had no license as a promoter. Mr Hobson then agreed to lend his name, as it were, for that purpose. But not unnaturally he wanted an indemnity against any losses and a formal (and clearly legally prepared) Deed of Indemnity was signed on 15th November 2007. That plainly and explicitly distinguished between Mr Hobson on the one hand and FAL on the other hand. Each of them was a party (jointly defined as “the Promoter”), as was Mr Magee. By clause 1, it was agreed that Mr Magee should be solely responsible for all liabilities and expenses of the forthcoming fight and should be solely entitled to the income. By clause 3.1 Mr Magee undertook that he would keep the Promoter indemnified against all claims (including any damages or compensation paid by the Promoter to compromise or settle any claim arising out of any breach of that Agreement or out of any relevant claim by a third party).[26]In the event, the fight between Mr McCullough and Mr Martinez never took place. Mr Martinez failed to make the weight. In consequence Mr McCullough’s managers sought to claim the purse as forfeit. They were also critical of Mr Magee’s behaviour at the time. They entered into negotiations with Fight Academy. Mr Hobson thought that there might be a complaint to the British Boxing Board of Control (BBBC) about him (as named Promoter). There were negotiations, in which Mr Magee was not involved, and a compromise in the sum of $20,000 was eventually agreed with Mr McCullough. This was recorded in a letter of 22nd February 2008 signed by Mr Poxon on behalf of FAL. One of the terms was that Mr McCullough would participate in a further contest in Paris for a purse of $20,000. Mr Magee was not party to such letter Agreement. However, he has not since seriously disputed that Mr McCullough was entitled to some recompense for the aborted fight. However he claimed that a $20,000 compromise was excessive payment for the abandoned Belfast fight and should have been no more than $10,000; and that the compromise sum must in part of least have been in respect of the forthcoming Paris fight.[27]In due course it emerged in the proceedings that the $20,000 agreed to be paid to Mr McCullough (and paid on 4th March 2008) was not paid either by FAL or by Mr Hobson. It was paid by a company called Hobson Metals (UK) Limited: a company in respect of which Mr Hobson had previously publicly said, at certain Crown Court proceedings in Sheffield, that he no longer had a connection. In cross-examination, Mr Hobson had the greatest difficulty in coming up with an explanation as to why this company had made the payment.[28]In the meantime, and notwithstanding the fiasco of 1st December 2007, Mr Magee had himself explored the possibility of further involvement with Mr Martinez in future fights. An Agreement dated 21st December 2007 was made between Mr Gonzalez, as manager of Mr Martinez, and Mr Magee acting for Team Magee, potentially to extend to six further contests. Neither Fight Academy nor Mr Hobson are mentioned in that Agreement. It was Mr Magee’s ultimate position that, having regard to what had happened with regard to the projected fight on 1st December 2007, the joint venture between him and “Dennis Hobson/Fight Academy” had come to an end.[29]At all events, in January 2008 there was further contact between Mr Magee and Fight Academy concerning Mr Martinez. There clearly had been a disagreement about what was going on; but in the event on 28th January 2008 Mr Magee emailed Mr Hobson saying that he was “pleased we have agreed a way forward” and indicating that the two would jointly manage and promote Mr Martinez in a forthcoming fight with Rendall Munroe on 7th March 2008, as promoted by Frank Maloney. He referred to Mr Hobson’s solicitors being instructed to “prepare a partnership agreement for signing by both of us”. On the same day, Mr Hobson (but not Mr Magee) signed a short letter agreement, on Fight Academy note-paper, among other things saying that “we are on a 50/50 partnership on Martinez’s next 4 fights” and that “Pat Magee agrees to a meeting in London to sort out the finer details and subject to a satisfactory conclusion we will withdraw our claim to stop Martinez’s defence against Rendall Munroe”. On 29th February 2008, Mr Magee emailed further to Mr Hobson saying that €50,000 had been agreed to be paid by Mr Maloney and that the “surplus” of €15,000 (after deduction of sums due to Mr Martinez and a contingency sum) would be lodged with the BBBC “pending the resolution of our negotiations”.[30]There is no dispute that Mr Magee did pay the sum of €15,000 to the BBBC, in escrow as it were. Negotiations between the parties broke down and the BBBC therafter declined to take jurisdiction over their various complaints. On the 13th June 2008 the BBBC wrote to Mr Magee confirming they would not determine the complaints and stating that the sum of €15,000 had been returned to him.[31]In due course, by letter dated 8th August 2008 from Mr Hobson to Mr Magee on Fight Academy headed note-paper (although the company details at the foot of the page now related to Fight Academy (SA) Limited) claims were made for various expenses and outgoings totalling €10,980; additional expenses (including the $20,000 payment to Mr McCullough as converted into Euros) of €14,720; and a further sum of €1,302 (a claim not since pursued). A total of some €27,000 was thus claimed. The letter was stated to be a follow-up of claims previously outlined in a letter dated 29th February 2008.[32]In the event, no resolution proved possible, and the matter proceeded to litigation.

The pleadings

[33]It is necessary to refer, albeit relatively briefly, to the way in which the pleaded cases came to be developed.[34]The initial claim form claimed the €30,000 as unpaid monies “pursuant to an oral agreement between the claimant and the defendant”. The defendant was named in the proceedings as FAL. The particulars of claim (verified by Mr Magee’s then solicitor) amongst other things referred to the defendant not contributing to “his” share of the costs; and claimed the €30,000 paid to FAL by Setanta. An initial letter of defence was prepared on behalf of FAL (not through lawyers). That defence, though not altogether clear, was not so much as to dispute the prime facie entitlement of Mr Magee but to say that it was overtopped by FAL’s own disbursements.[35]Then Mr Magee amended his particulars of claim to add Mr Hobson as the second defendant and to allege that the oral promotion agreement was between Mr Magee and Mr Hobson. It was further alleged that there was an oral agreement between Mr Magee, Mr Hobson and Mr Peters that the licence fee received from Setanta would be paid in its entirety to Mr Magee. An unsigned copy letter purporting to be from Mr Peters dated 1st October 2008 was appended as alleged evidence of the oral agreement. The defence of Mr Hobson asserted that the promotion agreement was between Mr Magee and FAL. It further denied the existence of any oral agreement that the Setanta money be paid to Mr Magee. It was further said in paragraph 14 of the defence that “the first defendant” (i.e. FAL) was entitled to set off its costs incurred in relation to Mr Martinez as outlined in the letter of 8th August 2008; and in paragraph 15 of the defence that “the first defendant” (i.e. FAL) was entitled under the Deed of Indemnity to recover from Mr Magee the $20,000 for its settlement of the claim with Mr McCullough. In paragraph 16 it is pleaded: “If, which is denied, the second defendant is liable to the claimant then he will seek to set-off the sums appearing in paragraphs 14 and 15 above in limitation or extinction thereof”.[36]That defence was then further amended in due course to say that Mr Magee “asserts a 50/50 interest with the first defendant” in the agreement dated 4th October 2007: but had failed to pay over any part of the €15,000 lodged with the BBBC or 50% of the profits of further fights of Mr Martinez promoted by Mr Magee; and those further sums were also sought to be set-off by Mr Hobson. In reply, amongst other things it was asserted that (after the fight of 25th August 2007) further promotions of Kiko Martinez were not pursuant to any joint venture agreement; and it was denied that the Agreement of 4th October 2007 had been a joint venture asset.[37]By re-amended particulars of claim, an elaborate alternative claim in restitution (based to a considerable extent on what was asserted in paragraph 28 of Mr Magee’s witness statement) was put forward to justify the claim for payment of €30,000. The claim in restitution was denied in the re-amended defence, although the facts and matters pleaded were “neither admitted nor denied”.[38]It may be noted that the totality of the sums sought to be set-off in fact exceeded €30,000. There was, however, no counterclaim for that excess. Nor was there any counterclaim seeking an account of profits and expenses.

The judgment

[39]I have already commented on the structure of the judgment.[40]When he came to his conclusions, the judge analysed the evidence with regard to whether the agreement for the Dublin event was with FAL or with Mr Hobson personally. The judge commented, with no degree of exaggeration, that neither Mr Magee nor Mr Hobson “came away from cross-examination entirely unscathed”. He found, giving examples, that Mr Hobson’s attitude towards the distinction between personal and corporate obligations was “extremely loose…choosing one or the other as seemed advantageous”. He in terms found that it was inherently likely that Mr Hobson held himself out and was in fact acting for himself in his initial dealings with Mr Magee concerning the Dublin event (paragraph 126). He observed that Mr Magee had no incentive to misrepresent the agreement, or thereby the parties, at that stage. What Mr Magee had done in the early stages, he found, was done with Mr Hobson’s agreement. On the “central question” whether Mr Hobson was acting for himself or FAL, the judge found Mr Magee to be the more reliable witness and was supported by inherent probability and immediately contemporaneous documents. He thus found that Mr Hobson contracted as principal.[41]The judge went on to find as a fact, accepting Mr Magee’s evidence, that part of the compromise with Mr Peters resulted in Mr Magee acquiring the right to the Setanta monies; but that Mr Hobson, through PW Promotions Limited, had had the benefit of them. He found that the facts supporting the claim in restitution (as pleaded in the re-amended particulars of claim) were proved; that Mr Hobson agreed the compromise with Mr Peters; and as to whether Mr Hobson had agreed that all the Setanta monies (not just 50%) be paid to Mr Magee he noted that the correspondence had not asserted the contrary. He in terms found the claim proved against Mr Hobson “both in contract and restitution”. As to the set-offs, so far as the payment to Mr McCullough was concerned the judge shortly found that the money had been paid “by a non-party” (as he put it). On the other claimed set-offs the judge simply said this (at paragraph 134):
“Similarly any set-off in relation to later promotions is not available to Mr Hobson personally”
.

The grounds of appeal

[42]The grounds for which leave was granted were these: i) The judge was plainly wrong to conclude that Mr Hobson contracted as principal. ii) The judge was plainly wrong to conclude that any set-offs were not available to Mr Hobson. iii) The judge was plainly wrong to conclude that Mr Hobson had the benefit of monies payable to FAL. iv) The judge failed to deal with the basis for the claimed oral agreement relating to the Setanta money, and there was no basis for him to find such an agreement and to find against Mr Hobson in consequence. v) The judge failed correctly to evaluate the issues for determination and in consequence failed properly to evaluate the facts. vi) The judge failed to attach proper weight to conclusions adverse to the credit of Mr Magee.[43]Some of these complaints doubtless derive in part from the form in which the judgment was expressed or, as the case may be, not expressed. Nevertheless, overall the grounds are to a great extent an attack on the judge’s findings of fact and assessment of the evidence. In this regard the judge had an advantage not available to the court in assessing the oral evidence of the witnesses: and it is well established that in such a situation the appellate court will be slow to intervene. It is not necessary to cite at length authority for this purpose. Counsel have referred us to cases such as Watt v Thomas [1947] I All ER 582; Floyd v Fairhurst & Co [2004] EWCA Civ 604; and Bond v Dunster Properties Limited [2011] EWCA Civ 455. The applicable principles are not in dispute.[44]Mr Crystal suggested that the delay in producing the judgment may have caused the judge to forget matters and the impression witnesses made. But the delay is not of that order; and in any event the whole structure of the judgment indicates that the judge must have made quite a detailed note of the evidence. Even so, Mr Budworth put in a Respondent’s Notice, setting out at some length the facts which he says the judge must have, or should have, found proved: Mr Budworth appreciating, I think, that the judge had dealt cursorily, or in some respects not at all, with potentially significant issues.[45]I turn then to the grounds advanced.

Ground 1

[46]The principal issue at trial was whether Mr Hobson had contracted as principal or on behalf of FAL. That was the first ground of appeal advanced and was the subject of detailed discussion in Mr Crystal’s written arguments: bolstered by a lengthy debate on matters going to credit. But in the event at the opening of the appeal before us Mr Crystal back-tracked on that. Whilst not positively abandoning the ground, he acknowledged the difficulties in his way having regard to the judge’s findings. I think that Mr Crystal was acutely aware, in adopting this approach, of the difficulties inherent in advancing a defence that the contracting party was FAL and at the same time also advancing an alternative defence that, if Mr Hobson was in truth the contracting party, the set-off for expenditure was a set-off available to him personally. The first argument (and as the pleaded defence avers) realistically involves having to say that expenses were paid by or on behalf of the first defendant (FAL).[47]Be that as it may, I can take this ground quite shortly.[48]The judge – who by no means uncritically assessed Mr Magee’s evidence – had ample material to conclude that Mr Hobson had contracted personally. The judge evaluated the principal evidence: he (rightly) took into account inherent probability and contemporaneous documents. There was ample basis for him to conclude that Mr Hobson was “loose” in distinguishing between personal and corporate obligations. He was entitled to conclude that the fact that the initial claim was pleaded against FAL was not of particular significance – especially when at that stage it was thought that the money had gone to, and been retained by, FAL. Further, as he observed, Mr Magee had no reason in the initial negotiations to misrepresent the position. The initial contracts do not indicate that FAL was, or was mutually intended to be, a party. It is true that Mr Hobson did not sign them; but– as the judge found – he left that to Mr Magee. Further it is of note that, in signing the EBU Agreement of 16th July 2007, Mr Hobson unquestionably signed on his own behalf. Mr Crystal said that was because Mr Hobson (not FAL) had the promoter’s licence: but that simply tends to reinforce the argument that he was, and would be perceived to be, contracting as principal. Again, it was Mr Hobson (not FAL) who personally signed the agreement with Mr Martinez on 4th October 2007, describing himself as “of Fight Academy”. The Setanta Agreement of 2nd May 2007 (in which Mr Magee had no involvement) unquestionably and in terms had related to FAL and was signed by Mr Poxon as director on its behalf; but the one sent to Mr Hobson by Mr Magee for signature in December 2007 referred to “Fight(s) Academy”, without any reference to FAL. It is perhaps unsurprising that the judge thought that all this may have been a deliberate “fudge” on the part of Mr Hobson. It may be that such expenditure as was being incurred other than by Mr Magee was paid by FAL and not by Mr Hobson. But that is not conclusive: it is what is (objectively) agreed between the parties themselves that counts.[49]The judge gave sufficient reasons for concluding that Mr Hobson contracted as principal. His findings of fact should not be disturbed. I would reject this ground of appeal.

Ground 2

[50]The availability of the set-offs, at all events, was the principal focus of Mr Crystal’s arguments. In my view, however, for the most part they meet immediate difficulties.[51]It is quite clear that Mr Hobson is resentful of the notion that Mr Magee can personally recover the €30,000 yet have no liability for what “Fight Academy” (putting it neutrally for present purposes) has itself incurred in expenses with regard to Mr Martinez. I can understand that. Take the example of the payment to Mr McCullough. As I see it, there can be no dispute – indeed in cross-examination Mr Magee more or less accepted it – that Mr McCullough was entitled to some recompense for the aborted fight of 1st December 2007 (abandoned when Mr Martinez failed to meet the weight). Assuming for the sake of argument that $20,000 was a reasonable compromise of Mr McCullough’s claim for recompense, I can see no answer to Mr Magee being liable to reimburse FAL or Mr Hobson under Clause 3 of the Deed of Indemnity if either of them made that payment to Mr McCullough.[52]But that did not happen. Neither made the payment: and Clause 3 only provides for an indemnity of “the Promoter”, as defined. On ample evidence, it was found that the company called Hobson Metals (UK) Limited paid the money. It was neither pleaded nor proved that that company did so on behalf of FAL, let alone on behalf of Mr Hobson. Indeed, Mr Hobson had reasons to distance himself from that company; and although it is difficult not to think that that company made the payment at least at his behest, he in terms confirmed in cross-examination that he did not himself owe Hobson Metals (UK) Limited this sum. Nor was there any accounting record produced of a loan account of that company debiting Mr Hobson in such sum.[53]Mr Crystal referred vaguely to “mutuality of dealings” and “equitable set-off”. There is no doubt that equitable set-off is a flexible remedy. But there are limits: and where it is not claimed that Hobson Metals (UK) Limited made the payment on behalf of Mr Hobson I simply do not see any legal basis for now enabling Mr Hobson to set off that payment on his own behalf. Hobson Metals (UK) Limited had not itself been joined as a party to pursue such a claim.[54]If Mr Hobson has a grievance that Mr Magee has avoided a liability for which he had under the Deed of Indemnity accepted responsibility and has thereby, as it were, unjustly enriched himself, then the answer lies in Mr Hobson’s indiscriminate use of limited liability companies to his own perceived advantage as and when it suits him. Consequences in law flow from that. Indeed, as was put to Mr Crystal in argument, it can be said that Mr Hobson (if not FAL) have enriched themselves to the detriment of Hobson Metals (UK) Limited. It also is somewhat striking – and, it may be, characteristic – that while the original agreement with Mr McCullough of 11th October 2007 was signed by Mr Hobson personally on behalf of “Fight Academy” it was carefully ensured that the compromise agreement of 22nd February 2008 with Mr McCullough – which involved a payment out of quite a significant sum - was signed by Mr Poxon expressly on behalf of “Fight Academy Limited”.[55]The same reasoning applies to the sums claimed by the letter of 8th August 2008 and as sought to be set-off by Mr Hobson. Mr Hobson produced no evidence that he personally had borne such expenditure. On the contrary, the evidence – and pleaded defence – was to the effect that it had been incurred by FAL. Again, nowhere was it said that FAL had paid such expenses on behalf of Mr Hobson or that Mr Hobson accepts any liability to repay FAL. Whilst the judge’s reasoning is terse in the extreme in paragraph 134 of this judgment, I think that must be what he intended to convey: and it was a justified conclusion.[56]That leaves the set-off claimed by Mr Hobson in respect of the Rendall Munroe fight of 7th March 2008 (specifically, 50% of the €15,000 lodged with the BBBC). There is also the claim for 50% of further fights involving Mr Martinez thereafter arranged by Mr Magee: in particular a further fight with Mr Munroe on 20th February 2009. It was said, by reference to documentation, that Mr Magee – notwithstanding his protestations to the contrary – had recovered €30,000 from Mr Maloney (the promoter) in respect of that latter fight: and was liable to account for half of that, which (so it was said) was available to Mr Hobson as a further set-off.[57]It has to be said that the judge does not deal with these aspects. It is true that if this had been claimed on account of expenditure as part of a set-off there was no evidence of expenses having been incurred by Mr Hobson personally with regard to either of these fights. But it was not so claimed. Rather it was a claim to set off payments said to be due to Mr Hobson personally (on the premise, contrary to his primary case, of the findings of the judge as to his contracting as principal) on account of profits made.[58]It would be lamentable in a case of this kind if these issues had to be sent back to the County Court for further consideration. However, I do not think that necessary. In my view, and accepting the points advanced in the Respondent’s Notice on this, the evidence is sufficiently clear to show that there was no requirement on the part of Mr Magee to account for any of these sums. My reasons are as follows.[59]It is reasonably clear that Mr Magee, having been left to arrange the fight of 1st December 2007 on his own (apart from Mr Hobson lending his name as promoter against the protection of the Deed of Indemnity) and take all profits and losses himself, regarded the joint venture as at an end: hence he signed with Mr Martinez, on behalf of Team Magee, on 21st December 2007. He explained in his 3rd witness statement that this was nothing to do with Mr Hobson. It is also clear, nevertheless, that the parties were not ad idem; but that in January 2008 the parties were proposing to resurrect the joint venture with regard to the forthcoming fight in March 2008 between Mr Martinez and Mr Munroe: as the documents of 28th January 2008 show. But it is further reasonably clear that, notwithstanding that, any outline proposal or agreement did not in the event mature into a binding agreement. Contrary to what was contemplated, no partnership agreement was produced or signed; and the parties were by the end of February 2008 sufficiently at loggerheads for Mr Magee to agree to lodge the balance of the payment from Mr Maloney – the €15,000 – into the escrow account held at BBBC. The judge (significantly) had himself held in his judgment that the overall position had been in a “state of flux” (paragraph 117) and that the parties fell out after the Belfast event of 1st December 2007 went “sour” (in the judge’s word): each then set about recruiting the same boxers, became reconciled, then fell out again (paragraph 126). As Mr Budworth also submitted to us, Mr Magee by March 2008 had no need of Mr Hobson, since Mr Maloney was a licensed promoter and, moreover, no Setanta TV screening was available.[60]Further, Mr Hobson’s pleaded case on this was that Mr Magee had asserted a 50% interest in the Agreement of 4th October 2007 concluded by Mr Hobson with Mr Martinez. But that was directly challenged by Mr Magee in his pleaded reply and in his evidence. When asked for particulars of the allegation, as reflected in paragraph 15 of Mr Hobson’s witness statement, the rather lame reply on behalf of Mr Hobson was that it was to be “inferred” that Mr Magee had agreed to that Agreement of 4th October 2007 with Mr Martinez. That is not sustained on the evidence; and it also is not readily consistent with Mr Magee agreeing his own deal with Mr Martinez on 21st December 2007. It also sits ill with an assertion by Mr Hobson’s solicitors in a letter of 21st January 2008 to Mr Maloney (copied to Mr Magee) that pursuant to the Agreement of 4th October 2007 “our client has exclusive promotional rights to the next four fights featuring Mr Martinez…”[61]In my view the evidence taken overall, shows that the joint venture had collapsed by the time of the Munroe fight. Mr Magee pressed ahead with it, in conjunction with Mr Maloney. Mr Hobson had no entitlement to a 50% share of the profits accruing to Mr Magee from that fight. Certainly the contemporaneous documents record no agreement that Mr Hobson was, come what may, to have a half-share of the €15,000 lodged with the BBBC.[62]For similar reasons, Mr Hobson can claim no share of any profit arising from the second Munroe fight (although Mr Magee, notwithstanding the receipt of the €30,000, has claimed he made no net profit anyway). It did not fall within the joint venture.[63]In my view, therefore, ground 2 fails.

Ground 3

[64]This is devoid of substance. No convincing explanation was given by Mr Hobson as to why the €30,000 from Setanta was paid out of FAL to PW Promotions Limited. Mr Wright was not called to give an explanation, if he could. The judge was entitled to conclude that the payment enured to Mr Hobson’s benefit. It may also be noted that payment to FAL and then on to PW Promotions Limited was contrary to what Mr Crystal himself repeatedly asserted was the underlying arrangement – viz. that the Setanta money should be put into “the pot”. On any view, it was not.

Ground 4

[65]Mr Crystal devoted a significant part of his submissions on this appeal to his argument that the judge failed to deal properly with the claim that there was an oral agreement that the €30,000 were payable to Mr Magee; and in any event had no basis for finding that there was such an agreement.[66]There is no doubt that such an agreement was pleaded. Further, it is so asserted in paragraph 28 of Mr Magee’s witness statement (set out above): and reference to such an agreement with regard to the payment to Mr Magee of the all Setanta monies is further repeated elsewhere in the witness statement: for example in paragraphs 37, 38 and 39 and 46. Further, the matter was explored in oral evidence and Mr Magee held to his statement that there was such an agreement.[67]I agree that paragraph 28 is somewhat vague: indeed it is not wholly clear how the €30,000 was additionally to be paid to Mr Magee given the repayment by Mr Peters of the £80,900. Nor (as the judge himself noted) was it entirely clear why Mr Magee should first pay to Mr Peters the €30,000 (on account of the prospective payment by Setanta), together with the €29,940, without first netting the sums off against what was due to be repaid by Mr Peters. But overall it is just about clear enough that Mr Magee was asserting that it was indeed agreed that the €30,000 was to be paid to him to ensure that he broke even: which was the overall arrangement.[68]It is true that at trial Mr Budworth seems ultimately to have advanced this claim primarily on the basis of restitution (as he told us, having some concerns that the alleged oral agreement may not have been sufficiently particularised so as to appeal to the judge). I am, speaking for myself, a little puzzled as to that way of putting the claim. But it does not signify, because the alleged oral agreement remained a live issue. The judge appreciated this and addressed that issue at paragraph 133 of his judgment. He found as a fact that Mr Hobson agreed the compromise with Mr Peters which left the Setanta monies as an asset. He went on to say in paragraph 133:
“The only matter to further address is whether Mr Hobson agreed that that asset was wholly the claimant’s by contrast with a 50/50 division between them. On this point I am satisfied that the correspondence does not assert to the contrary, nor indeed did Mr Hobson in evidence; it and he merely promote (sic) a set-off in relation to a later promotion (the Belfast event) and other promotional monies.”
[69]I agree that is rather elliptic. But the judge then went on in terms to express his conclusion that he found for Mr Magee “in both contract and restitution”. That is a specific finding.[70]In my view there was sufficient evidence to entitle the judge to make such a finding as to the existence of such an agreement. Indeed, as the judge had pointed out, the contrary had not really been asserted on behalf of FAL or Mr Hobson in correspondence: the emphasis was all on the alleged set-offs (as the first form of the defence of FAL also indicated). Further, in cross-examination Mr Hobson at one stage seemed to accept, when pressed on this, that the €30,000 was not his; rather his position was that he could set-off against it the expenses he was listing.[71]Mr Crystal focused on the letter of Mr Magee to Mr Hobson dated 4th December 2007 requesting that the Setanta money, when received, be paid into the partnership account in the name of Mr Magee and Mr Peters. I do not think that letter necessarily connotes that Mr Magee had accepted that Mr Hobson was to share in such money. As to the letter of 18th January 2008, on which Mr Crystal relied, sent by Mr Magee to Mr Hobson after Mr Magee became aware that Setanta had sent the €30,000 to FAL, that says in part: “In accordance with the settlement reached with Brian Peters this money was due to the partnership. Brian Peters has now repaid our loan of £85,000 less the €30,000 so the €30,000 is now due to Team Magee”.[72]Mr Crystal emphasises the words “due to the partnership” and what he says is the incorrect statement that Mr Peters had repaid the loan “less the €30,000”. I agree that the letter is, at the least, ambiguous. But as I see it, the point is intended to be covered by paragraph 28 of the subsequent witness statement. In any event what is clear from that letter was that Mr Magee was explicitly asserting that the €30,000 was now due to Team Magee: and that, subject perhaps to the alleged set offs, was not explicitly controverted in any letter at the time. That was the point the judge was stressing.[73]In my view, therefore, this ground fails.

Grounds 5 and 6

[74]The remaining grounds are really sweep-up grounds and can, given what I have said above, have no additional force. I can, as I have said, agree that the judge did not properly identify the central issue with regard to the Rendall Munroe fights: but the overall conclusion remained one open to the judge.[75]I would, however, make some observations on Mr Crystal’s maintained assault on the credibility of Mr Magee (a matter on which so much time had been spent in the court below) and which in effect constitutes his sixth ground.[76]It is important to repeat that the judge had by no means uncritically assessed Mr Magee’s evidence, nor did he accept it in its entirety. He noted, for example, that Mr Magee was “damaged” by his account of the discrepancies on the EBU contract and budget/account documents. The judge, however, rightly took into account contemporary documents and inherent probabilities. Given that the judge’s approach was a proper one, in my view there can be no substance in the maintenance before the appellate court of an attack on the judge’s overall evaluation and on his conclusion that on the central question Mr Magee was the more reliable witness.[77]Nevertheless Mr Crystal, in renewing his attack before this court on Mr Magee’s credibility in oral argument and in his written argument, highlighted a number of points which, he said, told against the veracity of Mr Magee. For instance, he repeated the point that the EBU contract relating to Mr Dunne’s fight only put the purse at €75,000 when it was €350,000 (the smaller figure would mean smaller taxes or fees payable to the relevant boxing union, and perhaps to others). This, I agree, is not impressive and the judge indeed found that Mr Magee had been “damaged” by this. But, as the judge noted, this was two-edged: because Mr Hobson (who had himself also signed that contract) had received accounting information from Mr Magee showing €350,000 as payable to Mr Dunne. Mr Crystal then said that the letter of 1st October 2008 purportedly from Mr Peters, and appended to the amended particulars of claim as evidencing the asserted oral agreement, did no such thing; and indeed, Mr Crystal went so far as to say that it was a “forgery”. But the appended letter never purported to be signed by Mr Peters: it contained no signature at all on its face. In his witness statement Mr Magee openly stated that it had not been signed by Mr Peters. His position was that Mr Peters had said that he would sign it but then he did not. (Neither party called Mr Peters). It may be very unimpressive to have put it forward in support of the amended particulars of claim: but it does not make the letter a forgery as such, and the judge made no such finding. Mr Crystal made a number of other points: for example, that Mr Magee had had no entitlement to hold himself out as a promoter; that he had wrongly claimed to have received no money in respect of the second fight between Mr Martinez and Mr Munroe; and other matters. None of these points can on appeal displace the judge’s overall assessment and conclusions. As to the further complaint that Mr Magee had himself made some payments via a company called Coastways Limited, this was never made an issue as such at trial: and in any event (in contrast with Mr Hobson’s position with regard to FAL and Hobson Metals UK Limited) the evidence was that Mr Magee was 100% owner and controller of Coastways Limited.

Conclusion

[78]As I have indicated above, I accept that the judgment under appeal has certain unsatisfactory features. Nevertheless, and notwithstanding Mr Crystal’s efforts, I am not persuaded that the judge’s overall conclusions were conclusions not properly open to him on the evidence. It is therefore not necessary to say anything further about the claim in restitution, which in any event did not much feature in the grounds of appeal. For my part, I would dismiss this appeal.

Sir David Keene :

[79]I agree.

Lord Justice Longmore :

[80]I also agree.