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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Johnstone & Anor v Bramley & Anor [2001] EWCA Civ 1854 (22 November 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1854.html Cite as: [2001] EWCA Civ 1854

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM KINGSTON UPON HULL COUNTY COURT
(HIS HONOUR JUDGE HEPPEL QC)

		Royal Courts of Justice Strand London WC2 Thursday, 22nd November 2001

Thursday, 22nd October 2001

1. LORD JUSTICE SIMON BROWN: This is the defendant's renewed application for permission to appeal against the order of Judge Heppel QC, at the Kingston Upon Hull County Court on 23rd August 2001 giving judgment for the claimants for £30,000, plus £6,248.07 interest and costs.
2. The position can be very briefly outlined. The first appellant, Mr Bramley, used to be married to the first respondent's sister so that they were brothers-in-law. More to the point they used to be in business together although clearly Mr Bramley was in charge. There was no dispute but that under an agreement dated 15th January 1999 ("the Salthouse Road Agreement") the appellants became liable to pay the respondents £30,000. There was further no dispute but that the appellants paid the respondents (no less than) £17,000.
3. Two critical matters, however, were in dispute at the trial. First, as to whether the appellants had paid the respondents an additional £13,000 over and above the £17,000; second, as to whether there was a second agreement between the parties under which the appellants were liable to pay the first respondent, Mr Johnstone, by way of bonus, 2 per cent of a particularly lucrative building contract under which the appellants were building a luxury home for a Mr and Mrs Benson, National Lottery winners to the tune of some £20m.
4. The Benson building contract appears to have been for some £850,000. Two per cent of £850,000, one may note, is £17,000. It was the respondents' case that the £17,000 admittedly paid was paid under that second agreement, and that nothing whatever had been paid under the Salthouse Road Agreement.
5. Having listened to the parties telling their rival stories for a day the judge found in favour of the respondents. Against those findings the appellants now seek permission to appeal. In refusing permission to appeal when first I considered this application on the documents in the light of written skeleton arguments submitted by counsel on behalf of the applicants, I said this:

"This application is quite hopeless. It goes solely to the judge's findings of fact. One side or the other was lying. The judge heard both. Counsel recognises, as inevitably he must, that the judge 'was of course entitled to prefer the evidence of one party to the other' but says 'this should have followed after an analysis that provided a sound basis' for doing so. To my mind the judgment below is compelling and the analysis it contains provides an entirely sound basis for the conclusion arrived at. To take just two of the central reasons underlying this judgment: first, Mr Bramley was demonstrated to have made 'gross and repeated' false averments as to substantial sums allegedly paid. Secondly, the circumstances of the Benson contract strongly suggested that Mr Johnstone would be paid, as he said was agreed, a commission."

6. The terms of that refusal notwithstanding, Mr Bramley, appearing today in person, has returned to the fray. Having considered the matter afresh I am even clearer in my opinion that this is a hopeless application. Paragraph 4 of the Defence sets out six specific sums totalling £30,000 which Mr Bramley then claimed to have paid Mr Johnstone in full discharge of the applicant's liability under the Salthouse Road Agreement. Four of those sums total £17,000, and were the sums admittedly paid. The other two sums, respectively £10,000 and £3,000 alleged to have been paid in cash, were disputed. In both cases Mr Bramley said he had drawn cheques for cash upon his Brittania Building Society Account and handed, in the second case, £3,000 in cash out of the £3,500 cash drawn over to Mr Johnstone. It became plain on the documents that no such thing had happened. In each case the sums had simply been transferred by cheque into certain other accounts held by Mr Bramley in order to reduce his overdrafts on those other accounts.
7. So much came to be admitted by Mr Bramley. With regard to the £10,000 that was admitted by Mr Bramley before trial; with regard to the £3,000 it was admitted at trial. To plug the £10,000 gap in his evidence that had now appeared Mr Bramley instead asserted that four other payments had been made which in turn totalled the missing £10,000. His evidence as to these four payments, however, was no more convincing than with regard to the earlier alleged payments. For example a £700 payment made by two cheques each for £350 was plainly attributable not to the Salthouse Road Agreement, but rather to a settlement agreement which had been reached following the termination of Mr Johnstone's employment.
8. In short, there appears to have been ample justification for the judge to describe these errors as "too gross and repeated" to be mere mistakes; and instead to find:

"What Mr Bramley has done is to go through his building society account and he has invented payments to the claimants to match withdrawals from that account."

9. Against that background it is hardly surprising that the judge also rejected Mr Bramley's evidence that there was no second agreement. In any event there was ample evidence from which the judge could conclude that the probabilities suggested the likelihood of there having been a second agreement, not least that the £17,000 in fact paid represented precisely 2 per cent of the £850,000 contract price for which the Bensons' house was being built.
10. This application, I repeat, is quite hopeless, and to my mind it ought never to have been restored or renewed. It is dismissed.
(Application refused; no order for costs).