“The appeal court will allow an appeal where the decision of the lower court was— (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.”
“i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong. ii) The adverb “plainly” does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached. iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it. iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him. v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable. vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.”
“So, on a challenge to an evaluative decision of a first instance judge, the appeal court does not carry out a balancing task afresh but must ask whether the decision of the judge was wrong by reason of some identifiable flaw in the judge’s treatment of the question to be decided, ‘such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion.’”
“114. Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. The best known of these cases are: Biogen Inc v Medeva Plc [1977] R.P.C. 1 ; Piglowska v Piglowski [1999] 1 W.L.R. 1360 ; Datec Electronics Holdings Ltd v United Parcels Service Ltd[2007] UKHL 23 ; [2007] 1 W.L.R. 1325 ; Re B (A Child) (Care Proceedings: Threshold Criteria)[2013] UKSC 33 ; [2013] 1 W.L.R. 1911 and most recently and comprehensively McGraddie v McGraddie[2013] UKSC 58 ; [2013] 1 W.L.R. 2477 . These are all decisions either of the House of Lords or of the Supreme Court. The reasons for this approach are many. They include i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed. ii) The trial is not a dress rehearsal. It is the first and last night of the show. iii) Duplication of the trial judge’s role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case. iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping. v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence). vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done.”
“Mr Lyons acquired Hamilton Terrace (or at least part of it – the titles of two properties were merged at some stage) in July 2003. Works were done to transform what was originally five flats into a single residence. Mr Lyons had complete ownership of the property in its current state from at least 2010. It was registered in his sole name. He sold it on23 March 2022 for£26 million odd. He signed the transfer, and his signature was witnessed. The property was let at various stages, although not continuously, between10 April 2016 and31 August 2021 . The rent was around£25,000 a week. A number of tenancy agreements are in evidence, including one for a period of two years dated7 January 2020 . In 2019 Hamilton Terrace was used by Bentley to celebrate the centenary of its foundation, although no information is in evidence as to the terms on which it was made available. Mr Lyons and Mr Conway both give evidence about their dealings with Hamilton Terrace, but I do not need to go into it as the essential facts set out above are not challenged; indeed they come from Mr Lyons and/or Mr Conway. Mr Willson submits that the activities I have described amounted to carrying on business.”
“(a) Mr Lyons is, and appears always to have been, a property investor, He says he continued to invest in businesses in England and elsewhere even after emigrating (paragraph 17 of his witness statement of17 January 2025 ). Although his/Mr Conway’s evidence is that he did not usually invest in a personal capacity, he clearly did in this case. (b) The property was developed and refurbished. In his witness statement of17 January 2025 Mr Lyons describes the creation of the property out of two properties and the amalgamation of the titles and goes on to say that it was later converted from five flats into a single dwelling before being put on the market. (c) He accepts that the property was rented pending its sale. He also accepts that he signed “several of the tenancy agreements” (I understand Mr Conway signed others but with Mr Lyons’s authority) and received rental income (paragraph 2 of his witness statement of1 May 2025 ). (d) He accepts that the property was sold, and although I have no direct evidence of the fact, I presume that he, as the owner of the property, received the net proceeds of that sale, just as he received the rental income. In fact whether he made a profit is neither here nor there: business can result in a loss too. (e) I accept Mr Lyons’s and Mr Conway’s evidence that these activities were primarily managed by Mr Conway “with the staff of Matterhorn Property,” but plainly they were acting as Mr Lyons’s agents. The project was his, not that of Mr Conway or Matterhorn.”
“(i) The question is one of mixed fact and law, and the court must consider: (a) what the debtor did; (b) when he did it; and (c) whether what he did amounted to carrying on business – see Masters v Barclays Bank plc (supra) at [16(a)], and Durkan v Jones at [24]. This may invite the question as to what the debtor is or was doing if not carrying on business – see Durkan v Jones at [36]: ‘There is another way of looking at the matter, which is to ask what the debtor was doing if he was not carrying on business. He was not engaged in charitable work, nor was he engaged in a pastime or hobby.’ (ii) Carrying on business through a company or being a director or shareholder (even sole director or shareholder) of a company does not, in itself, amount to the carrying on of business as an individual and on one’s own account – see In re Brauch (A Debtor) (supra) at 328F-G, per Goff LJ. Likewise, simply providing a guarantee for the indebtedness of a company – see Masters v Barclays Bank plc (supra). (iii) However, it is open to the court to find that a director or shareholder, in addition to his involvement in the company, is also conducting a separate business of his own – see In re Brauch (A Debtor) (supra) at 328G-329F, per Goff LJ. In the latter case, the debtor was held to have conducted a separate business of his own involving the incorporation and use of some ninety companies to acquire land. The companies were held to form part of the machinery by which the debtor implemented his own business project. It was held that it was necessary to look at the totality of the evidence and see whether or not the right conclusion was that there was a business being carried on by the debtor independently of the business of the companies – see 330F, per Goff LJ. (iv) The number of occasions upon which a person has been involved in the promotion or establishment of businesses assists towards the conclusion that the person has an independent business of promoting companies – see Masters v Barclays Bank plc (supra) at [20]. (v) A one-off transaction might be sufficient to show that the debtor was carrying on a business. An example is provided by Gate Gourmet Luxembourg IV Sarl v Morby (supra), where the entry by the debtor into a share purchase agreement concerning the sale of his shareholding in a significant number of companies was held to be sufficient to amount to the carrying on of a business distinct from that of the companies themselves – see at [26], per Mr Registrar Briggs. Cf. Charlton v Funding Circle Trustee Ltd (supra) where a discussion between the debtor and potential investors with regard to the sale of his shares in company did not amount the carrying on of a separate business. The director in that case was held to have simply been exploring options for the rescue of the company. (vi) There is authority for the proposition that where a debtor has been shown to be carrying on business, then the relevant business will be considered to have continued until such time as all debts of the business had been discharged albeit that the actual conduct of the business itself might have ceased – see re A Debtor (No.784 of 1991). In this case, the debtor had sold a nursing home business carried on in her own name, and had moved to Tenerife, but leaving an unpaid tax debt. The existence of the latter debt meant that the debtor was to be regarded as continuing to carry on business and, for the purposes of s 265(2)(b) (ii), until such time as the debt was discharged. This principle was applied in Gate Gourmet Luxembourg IV Sarl v Morby (supra) with the result that the business (i.e. the sale of shares by the debtor in a number of companies pursuant to the share purchase agreement) was held to have continued throughout subsequent litigation involving a claim of breach of warranty, and given the existence of an outstanding tax debt – see at [27], per Mr Registrar Briggs. (vii) It does not matter that the business is only carried out on small scale. What matters is the nature and quality of what is being done, rather than its extent – see Durkan v Jones (supa) at [39], per Deputy ICC Judge Baister.”
“I think the profits of an isolated venture, such as that in which the respondents engaged, may be taxable under Schedule D, provided theventure is " in the nature of trade." I say " maybe," because, in my view, regard must be had to the character and circumstances of the particular venture. If the venture were one consisting simply in an isolated purchase of some article against an expected rise in price, and a subsequent sale, it might be impossible to say that the venture was " in the nature of trade " ; because the only trade in the nature of which it could participate would be the trade of a dealer in such articles, and a single transaction falls as far short of constituting a dealer's trade as the appearance of a single swallow does of making a summer. The trade of a dealer necessarily consists of a course of dealing, either actually engaged in, or at any rate contemplated and intended to continue. But this principle is difficult to apply to ventures of a more complex character such as that with which the present case is concerned. I think the test which must be used to determine whether a venture such as we are now considering is, or is not, " in the nature of trade " is whether the operation s involved in it are of the same kind, and carried on in the same way, as those which are characteristic of ordinary trading in the line of business in which the venture was made. If they are, I do not see why the venture should not be regarded as " in the nature of trade," merely because it was a single venture which took only three months to complete. The respondents began by getting together a capital stock sufficient (1) to buy a secondhand vessel, and (2) to convert her into a marketable drifter. They bought the vessel and caused it to be converted at their expense with that object in view, and they successfully put her on the market. From beginning to end these operations seem to me to be the same as those which characterise the trade of converting and reconditioning secondhand articles for sale.”