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EJW Builders Ltd & Anor v Marshall & Ors
Smart Summary
Factual and Procedural Background
This is an appeal from the dismissal of a claim that Company A and Appellant (the Appellants) had either a partnership or a contractual joint venture with the First Respondent and Second Respondent concerning redevelopment of a site previously run as The Hotel in The City. The High Court (Judge Matthews) dismissed the claim in an ex tempore judgment at the close of a two-day trial. The Appellants were represented by Attorney Powers; the First and Second Respondents by Attorney Brown and Attorney Kok (instructed by Company B). The Third and Fourth Respondents, who were joint trustees in bankruptcy of the First and Second Respondents, did not participate.
Key factual findings in the trial judgment (not disturbed on appeal) included that: Company A and Appellant first became involved as proposed builders for a developer (Individual F); planning permission was obtained in November 2018; the Appellants pleaded an oral partnership or profit-sharing arrangement said to have been agreed by 8 February 2019 (a date derived from a WhatsApp message); the First and Second Respondents relied on a JCT building contract dated 17 June 2019 for a contract price of £825,000 which the Judge found was entered into; work began in June 2019, largely ceased from July 2020, and the houses were sold between July 2021 and April 2022 yielding a net balance of about £438,000. The First and Second Respondents were made bankrupt in 2023.
Legal Issues Presented
- Whether, on the evidence, a partnership existed between the Appellants and the First and Second Respondents in relation to the redevelopment.
- Whether, on the evidence, there was a contractual joint venture or profit‑sharing agreement (allegedly agreed by 8 February 2019) between the parties.
- Whether the trial judge's factual findings and treatment of contemporaneous documentary evidence were plainly wrong such that the appeal court should interfere on the facts.
Arguments of the Parties
Appellant's Arguments
- The Appellants contended there was either a partnership or a contractual profit‑sharing agreement reached on or before 8 February 2019; documentary evidence relied on included a WhatsApp message of 8 February 2019, emails of June and August 2019, a "sales to profit tracker" of January 2020, and later emails in 2020–2021.
- The Appellants advanced five grounds of appeal asserting that the Judge made critical findings unsupported or contradicted by the evidence, misapprehended contemporaneous documents, and reached conclusions no reasonable tribunal could have reached.
Respondent's Arguments
- The First and Second Respondents denied any partnership or profit‑sharing agreement and relied on the JCT contract dated 17 June 2019 as the only binding contract between the parties.
- They contended the trial judge's adverse assessment of the Appellant's witness credibility and the judge's overall factual conclusions were open on the evidence.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Volpi v Volpi [2022] EWCA Civ 464, [2022] 4 WLR 48 |
The high appellate threshold for disturbing findings of fact: intervention only if findings are "plainly wrong". |
The court applied this standard and concluded the appeal did not surmount the formidable hurdle. |
| FAGE UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, [2014] FSR 29 |
Warning against "island-hopping" and duplicating the trial judge's role on appeal; emphasises trial judge's primary position. |
Invoked to support deference to the trial judge's overall evaluation and to caution against over-focusing on particular documents. |
| Walter Lilly & Co Ltd v Clin [2021] EWCA Civ 136, [2021] 1 WLR 2753 |
Authority cited for appellate restraint in overturning findings of fact. |
Used as part of the established authority reinforcing the "plainly wrong" test. |
| Kerish International Motors Agency v Opel Automobile GmbH [2026] EWCA Civ 865 |
Recent summary of principles governing appellate interference with factual findings (quoted at length). |
The court applied the Kerish summary to explain why it would not disturb the trial judge absent identifiable error. |
| Simetra Global Assets Ltd v Ikon Finance Ltd [2019] EWCA Civ 1413, [2019] 4 WLR 112 |
Guidance that judges should deal with apparently compelling contrary documentary evidence and explain why it is rejected. |
The court considered Simetra and assessed whether the trial judge had sufficiently addressed the contemporaneous documents; concluded the judge had taken them into account and his rejection was open to him. |
| Piglowska v Piglowski [1999] UKHL 27, [1999] 1 WLR 1360 |
Lord Hoffmann on the "penumbra of imprecision" surrounding expressed factual findings and the limitation of appellate review. |
Relied on to emphasise deference to the trial judge's holistic impression and nuance not fully expressed in written findings. |
| McGraddie v McGraddie [2013] UKSC 58, [2013] 1 WLR 2477 |
Importance of the trial judge's deeper familiarity with the whole case compared with an appellate court. |
Applied to support the court's conclusion that the trial judge's assessment of witness evidence was entitled to deference. |
| Biogen Inc v Medeva Plc [1997] R.P.C. 1 |
Lord Hoffmann on appellate caution and the incomplete nature of written factual findings. |
Quoted to underscore why appellate courts should be cautious in substituting their view for the trial judge's evaluation. |
| Armagas Ltd v Mundogas SA ("The Ocean Frost") [1985] 1 Lloyd's Rep. 1 |
Judicial remark that judges must consider documents, witness evidence, motivations and inherent probabilities together. |
Used to justify that contemporaneous documents are one part of an overall evaluative exercise. |
| Central Bank of Ecuador v Conticorp SA (Bahamas) [2015] UKPC 11 |
Endorsement of the approach that documents are part of an overall picture, not determinative alone. |
Cited in support of treating documentary evidence as important but not exclusively decisive. |
| Sukhwinder Singh v Makhan Singh Bains & Anor [2026] EWCA Civ 408 |
Commentary reconciling Volpi and Simetra: judge may not mention every item but failure to address compelling contrary evidence can be problematic. |
The court applied this guidance in assessing whether the trial judge had overlooked compelling documents; concluded he had not. |
Court's Reasoning and Analysis
The court treated the appeal as one solely against findings of fact and emphasised the high standard for appellate interference. It reviewed the trial judge's detailed credibility assessments, notably that the Appellant individual was an unsophisticated witness with poor recall whose evidence could not generally be relied upon except where corroborated. The trial judge accepted the evidence of the First Respondent (and Individual A) on key points.
The court analysed the contemporaneous documents relied on by the Appellants (WhatsApp message of 8 February 2019; June and August 2019 emails; the January 2020 "sales to profit tracker"; and various 2020–2021 emails). It concluded the trial judge had considered these documents, that most originated from the Appellants' side or reflected the Appellant individual's belief rather than established agreement by the First and Second Respondents, and that none were so cogent as to render the judge's conclusion plainly wrong.
The court accepted the Judge's findings that the JCT contract of 17 June 2019 was entered into, that discussions later in 2019–2021 showed negotiation about possible additional payments or gifts rather than a concluded profit‑sharing agreement, and that the alleged February 2019 agreement was implausible given the limited contact between the parties at that date, the absence of documentation, uncertainties as to parties and profit‑calculation, and the conduct of Company A (including its withdrawal from the site in mid‑2020).
Applying established appellate principles (Volpi, Kerish, Simetra, Piglowska and others), the court concluded the Judge's overall evaluation was within the range of reasonable outcomes and not amenable to interference.
Holding and Implications
DISMISSED
Holding: The Court of Appeal dismissed the appeal and held that the Appellants had not established that a partnership or contractual profit‑sharing agreement had been made; the trial judge was entitled to find that the only contract between the parties was the JCT contract and that asserted profit‑sharing discussions did not crystallise into an agreement.
Implications: The direct effect is that the Appellants' claim failed and remains dismissed; the court emphasised deference to trial findings and did not identify a new legal principle or set a novel precedent.
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