The determination of disputed facts should not be carried out in a piecemeal and compartmentalised manner. Rather, the effects and implication of the facts found must be considered in the round.
In Abbas v Hussain and others [2023] EWHC 2322 the High Court was asked to determine a commercial dispute, which the judge described as a “most unfortunate, toxic and long-running family feud”. The claim centred on the beneficial ownership of development land situated at the western half of premises forming part of Tilt Hammer Inn, Birmingham.
The claimant and the first defendant were brothers and long-standing business partners. They had jointly built up a property portfolio, but by 2015 their business relationship had irrevocably broken down. The brothers sought to end their business partnership and divide their assets.
The claimant alleged that in 2015 he and his brother reached an oral agreement that included terms relating to the division of Tilt Hammer. The agreed division of Tilt Hammer would result in him being transferred ownership of the disputed land. The claimant argued that, in reliance on the terms of the 2015 oral agreement, he had acted to his detriment by paying the first defendant the sum of £50,000. The claimant alleged that the 2015 oral agreement gave rise to a constructive trust whereby the first defendant held Tilt Hammer on trust for himself and the claimant.
The first defendant disputed the terms of the 2015 oral agreement. He contended that the claimant was to have an option to purchase a 50% beneficial interest in Tilt Hammer for the sum of £250,000. The option was to be exercised within a reasonable period of time.
At trial, the judge found the majority of the witnesses, including the claimant and first defendant, were unreliable witnesses. Much of the oral evidence given by the majority of the witnesses was found to be tainted with the indicators of unsatisfactory evidence as identified by the High Court in Painter v Hutchinson [2007] EWHC 758 (Ch). Further there was little in the way of contemporaneous and qualitative documents against which the court could assess the likelihood of the competing narratives.
In reaching its determination on the disputed facts, the High Court adopted the approach recommended by the Court of Appeal in Bank St Petersburg PJSC and another v Arkhangelsky [2020] EWCA Civ 408; namely, to consider the effects and implication of the facts found taken in the round. The court preferred the claimant’s case as to the terms of the 2015 oral agreement as it was coherent and consistent with the few contemporaneous documents available. The claim, however, was dismissed as the court found that the claimant had failed to pay the totality of the sum due under the terms of the 2015 oral agreement.
Elizabeth Dwomoh is a barrister at Lamb Chambers
