“…(1) Mr. Hurst could not complain that the five Janners partners did not bring into Malkin Janners their unbilled work in progress. (2) The defendants were guilty of repudiatory breach of the partnership deed by entering into the dissolution agreement and Mr. Hurst duly accepted such repudiation. (3) If the partnership had not been terminated prematurely, Mr. Simmons would not have become the successor partner liable to pay all the debts and liabilities of the partnership, because on the true construction of the partnership deed there had to be more than one partner for the successor partners to be so liable; Mr. Hurst therefore lost no indemnity by Mr. Simmons through the unlawful repudiation. (4) Mr. Hurst remained liable to pay his share of debts, liabilities and losses of Malkin Janners, including ongoing liabilities and losses yet to be realised and the rent and other outgoings relating to 15, King Street. (5) The ordering of accounts was not justified in the very special circumstances of the case.”
“Mr Leeming has not satisfied me that the judge’s exercise of discretion can be impugned. On the contrary, it seems to me that in the unusual circumstances of this case to refuse to order an account was entirely justified. It is of some significance that all the other Malkin Janners partners who did not join Malkins in some capacity were in the same position as Mr Hurst, but have raised no complaint about the terms in which Malkins received partnership assets. Mr Leeming accepted before us that the judge was correct to say that there was no evidence of Mr Hurst being deprived of any asset not offset by corresponding liabilities. Where there has been an account which has not been shown to be incorrect, the court should not put the parties to the considerable expense and trouble that would be the consequence of ordering accounts and inquiries unless it be seen that some real benefit would thereby be obtained for the party seeking the order.”
“The judge exercised his discretion by refusing to order the taking of a general partnership account, and in this respect also the Court of Appeal unanimously upheld his decision. As the judge pointed out, it would be very unusual for the court to order a complete audit of the firm’s accounts to be undertaken by an independent accountant. Where, as in the present case, detailed accounts had already been prepared by competent accountants, these would normally form the basis for any further accounts and inquiries. Any partner would have the right to surcharge and falsify the accounts, but the burden would be upon him to do so.”
“Against the background of all the matters set out in paragraphs 17 to 20 above, and taking into account the views expressed by the Claimant and by Miss Dixon of Penningtons and his duty to the Court, the Defendant exercised his independent professional judgment (as it was the duty of a well informed and competent barrister to do) and decided that the contents of the Claimant’s schedule and/or Penningtons’ schedule were unlikely to make a favourable impression on the mind of the judge. In particular, the Defendant considered that it was against the Claimant’s interests to press upon the judge unparticularised and/or unsustainable allegations, or allegations concerning sums which were of very minor financial significance.”
“Mr Hurst now accepts (as he must) that his case was hopeless. He argues that, if Mr Leeming had agreed to mediation which he sought, the mediator could have had the same frank exchange of views with him which I have had, and this would have enabled the case to be resolved without the costs involved in this action. This is a formidable argument, but, after anxious consideration, I am persuaded, that, quite exceptionally, Mr Leeming was justified in taking the view that mediation was not appropriate because it had no realistic prospect of success. My reasons, in a word, are that on the material before the court … it is plain that Mr Hurst has been so seriously disturbed by the tragic course of events resulting from the dissolution of the partnership that his judgment in respect of matters concerning the partnership and partnership action, and the conduct of that action on his behalf is seriously disturbed: he is a person obsessed with the injustice which he considers has been perpetrated on him and is incapable of a balanced evaluation of the facts. … Mr Hurst, though a solicitor, has appeared quite unable or unwilling to appreciate the full and clear explanation given refuting his claim. It needed no mediator to help him to evaluate the claim when furnished with the explanation by Mr Leeming.”
“Work-in-progress” and “Value of goodwill of Malkins’ name.”
“ It is …wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what in my opinion should be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.”