Appellate restraint and documentary “cogency”: discussions of profit share do not establish a redevelopment partnership without a concluded, certain agreement

1) Introduction

In EJW Builders Ltd & Anor v Marshall & Ors [2026] EWCA Civ 911, the Court of Appeal (Lady Justice Falk, with Lord Justice Warby and Lord Justice Miles agreeing) dismissed an appeal from [2025] EWHC 2765 (Ch), where the High Court (HHJ Matthews) had rejected a claim that a property redevelopment at the former Hilbury Court Hotel proceeded under (i) a partnership, or (ii) a contractual joint venture involving a profit share.

The claimants were a building company and its director (a natural person), who contended that an oral agreement was reached by early February 2019 entitling them to reimbursement of build costs, a weekly “salary”, and one-third of development profits. The respondents were the former hotel owners (later bankrupt), with their trustees in bankruptcy joined but not participating. The owners relied on a written JCT building contract dated 17 June 2019 at a contract price of £825,000, containing no profit share and no “salary”.

The appeal was explicitly fact-sensitive: no error of legal principle was alleged. The central question became whether the trial judge’s rejection of an oral partnership/joint venture (in the face of various contemporaneous documents) was “plainly wrong”.

2) Summary of the Judgment

  • The Court of Appeal reaffirmed the high threshold for overturning findings of fact: the appellant must show the decision was “plainly wrong” (outside the bounds of reasonable disagreement).
  • Contemporaneous documents said to support profit sharing were not sufficiently cogent to compel a finding of a concluded agreement, particularly where many documents originated from (or reflected the belief of) the claimant-side.
  • The evidence supported the trial judge’s conclusion that there were discussions about profit sharing, but no concluded, certain, legally binding agreement—and therefore no partnership and no contractual joint venture.
  • The only contract proven between the parties was the JCT building contract.

3) Analysis

3.1 Precedents Cited (and how they shaped the outcome)

A. The appellate standard for findings of fact

  • Volpi v Volpi [2022] EWCA Civ 464, [2022] 4 WLR 48:
    • Reinforced the “plainly wrong” test and, crucially, the presumption that a trial judge considered all evidence even if not mentioned (para 30).
    • Used as the baseline against which the appellants’ “documentary” criticisms were assessed.
  • FAGE UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, [2014] FSR 29:
    • Supported deference to the trial judge’s advantage in evaluating evidence; highlighted the “trial is not a dress rehearsal” principle (paras 27–28).
    • The Court of Appeal cautioned against “island-hopping”—over-focusing on selected documents detached from the whole evidential picture (para 48).
  • Walter Lilly & Co Ltd v Clin [2021] EWCA Civ 136, [2021] 1 WLR 2753:
    • Further authority for the restrictive approach to disturbing primary factual evaluations (para 27).
  • Kerish International Motors Agency v Opel Automobile GmbH [2026] EWCA Civ 865:
    • Popplewell LJ’s recent summary (quoted at length) provided the modern synthesis: deference grounded in oral evidence advantage, the “penumbra of imprecision” (from Piglowska), the trial judge’s immersion, and proportionality of appellate resources (para 28).
    • This framing decisively shaped how the court treated the appellants’ attempt to re-run factual evaluation.
  • Piglowska v Piglowski [1999] UKHL 27; [1999] 1 WLR 1360 and Biogen Inc v Medeva Plc [1997] R.P.C. 1:
    • Both underpinned the notion that expressed findings only imperfectly capture the trial judge’s full evaluative impression (paras 28, 33).
  • McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477:
    • Supported the “immersion” point: the trial judge has lived with the case (para 28).

B. Documentary evidence versus overall evaluation

  • Simetra Global Assets Ltd v Ikon Finance Ltd [2019] EWCA Civ 1413, [2019] 4 WLR 112:
    • Appellants relied on the requirement that judges address “apparently compelling” contrary evidence and explain its rejection (paras 29–30).
    • The Court of Appeal accepted the guidance but harmonised it with Volpi: failure to mention a document is not, without more, proof it was overlooked—especially in an ex tempore judgment (paras 30–32).
  • Sukhwinder Singh v Makhan Singh Bains & Anor [2026] EWCA Civ 408:
    • Used to reconcile Volpi and Simetra: omission may (but need not) justify concluding evidence was overlooked; context matters (para 31).

C. Inherent probabilities and evaluating all evidence

  • Armagas Ltd v Mundogas SA ("The Ocean Frost") [1985] 1 Lloyd's Rep. 1 and Central Bank of Ecuador v Conticorp SA (Bahamas) [2015] UKPC 11:
    • Cited to emphasise that judges may (and should) consider motivations, probabilities, and the whole evidential matrix; documents are important but not automatically paramount (para 34).

3.2 Legal Reasoning

A. Why the appeal failed on the facts

The Court of Appeal held the trial judge was entitled to find that the pleaded February 2019 oral profit-sharing deal was implausible and unproven, including because:

  • Timing and contact: the trial judge accepted evidence that the key individuals were not properly introduced until March 2019, undermining a February 2019 concluded agreement (para 42).
  • Commercial generosity and asymmetry: the alleged deal would have given the builder-side reimbursement of build costs plus a weekly payment plus one-third of profits, while taking no meaningful downside risk in financing or sale outcome; the judge was entitled to treat this as “extraordinarily generous” and unlikely absent clear proof (paras 41, 45).
  • Contemporaneous contract choice: the parties entered a JCT building contract in June 2019 at the builder’s insistence, containing no profit share; the court considered it legitimate to ask why the builder did not also insist on documenting an alleged profit share then (para 43).
  • Uncertainty and inconsistency: the alleged participants and split shifted across evidence (two-party split versus a three-way split including the owners’ son; uncertainty whether the company, the director, or both were entitled), and the methodology for calculating “profit” was unclear (paras 44, 57).
  • Conduct during the works: the builder’s effective cessation of work from around July 2020 was more consistent with an unpaid contractor than a partner/joint venturer with a major stake in the outcome (para 45).

B. Treatment of the key documents

The appellants argued certain documents compelled a finding of profit-share agreement. The Court of Appeal accepted these documents evidenced the builder-director’s belief that he would receive a profit share, but held they did not compel the conclusion that the owners agreed to a binding deal:

  • 8 February 2019 WhatsApp message (to a finance broker): admissible as contemporaneous, but essentially self-authored and ambiguous; it showed the sender’s stance, not the owners’ assent (paras 38, 50–51).
  • June 2019 emails drafted via a secretary: framed as instructions to solicitors to “draw up” an agreement; again reflected the claimant-side’s account and did not evidence concluded agreement by the owners (paras 50–51, 56).
  • 7 August 2019 solicitor email following a meeting: the strongest document because it referenced a meeting attended by an owner. The court agreed it indicated discussion of giving additional value to the builder and the owners’ son, but upheld the trial judge’s view that it did not show a pre-existing concluded agreement (paras 52–53). Notably, it described a suggested route of “personal gifts”, which is conceptually different from contractual profit entitlement.
  • January 2020 profit tracker prepared for lenders: the court accepted the trial judge’s view that it was not proof of the owners’ agreement, even if seen by the owners’ son; it was prepared based on information from the builder-side and did not establish assent (para 50).
  • 2020–2021 solicitor correspondence: consistent with an attempt to document a profit share, but also consistent with an absence of settled terms—particularly given requests for “something to evidence the split” and drafts, supporting a conclusion that matters remained under discussion (paras 54–57).

C. Partnership and the “single business” requirement

The partnership ground fell away because it depended on proving an underlying concluded profit-sharing arrangement. Without a binding agreement to carry on business in common with a view of profit (and without clarity on contributions, risk, and profit calculation), the trial judge’s finding that there was no “single business” and no partnership stood (paras 58–59).

3.3 Impact

  • Appeals on fact remain exceptionally difficult: the decision is a practical reaffirmation that an appellate court will not re-try the case by re-weighing documents unless the conclusion is outside reasonable bounds.
  • Documentary “noise” versus contractual “signal”: parties in development projects often generate emails and spreadsheets describing hoped-for profit splits. This case underscores that such materials may evidence belief or aspiration, not agreement, especially where they are one-sided or accompanied by requests to “draw up” the very agreement said already to exist.
  • Certainty matters in profit-share/joint venture claims: shifting parties, inconsistent splits, and unresolved mechanics for “net profit” calculation can be fatal to establishing a binding contract—quite apart from credibility and plausibility.
  • Construction contract as the anchor: where a formal building contract (here, JCT) is proven, courts will be slow to infer an unrecorded superstructure of partnership/joint venture rights absent clear, bilateral proof.

4) Complex Concepts Simplified

  • “Plainly wrong”: on appeal, it is not enough to show the appellate judges might have decided differently; the appellant must show the trial judge’s factual conclusion was one no reasonable judge could reach.
  • Contemporaneous documents: documents created at the time of events are often reliable, but they are not automatically decisive. The court still asks: who created them, for what purpose, and do they show mutual assent or only one side’s narrative?
  • “Penumbra of imprecision”: a trial judge’s written findings cannot capture every nuance of live evidence; appellate courts recognise this and therefore avoid over-interpreting gaps or brevity in a judgment.
  • Partnership / joint venture: both require more than cooperation on a project. The court looks for a concluded agreement to share profits (and typically some allocation of risk), clear identification of parties, and workable rules for determining the profit to be shared.
  • “Island-hopping”: the appellate risk of selecting a few documents and treating them as determinative, rather than viewing the whole evidential landscape as the trial judge did.

5) Conclusion

[2026] EWCA Civ 911 is a fact-driven but important reaffirmation of two connected principles. First, appellate courts will rarely disturb factual findings unless “plainly wrong”, especially where the trial judge assessed witnesses and delivered an ex tempore judgment. Second, even seemingly supportive contemporaneous documents will not establish a redevelopment partnership or profit-sharing joint venture unless they evidence a concluded, certain, bilateral agreement—not merely one party’s understanding, ongoing negotiations, or attempts to have terms later reduced to writing.