Close v Wilson
| Jurisdiction | England & Wales |
| Judge | Lord Justice Toulson,Lord Justice Wilson,Lady Justice Arden |
| Judgment Date | 14 January 2011 |
| Neutral Citation | [2011] EWCA Civ 5 |
| Docket Number | Case No: B2/2009/1921 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 January 2011 |
[2011] EWCA Civ 5
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BARNSLEY COUNTY COURT
HHJ Bullimore
Before: Lady Justice Arden
Lord Justice Wilson
and
Lord Justice Toulson
Case No: B2/2009/1921
8BY00806
Mr Matthew Slater and Mr Rory Brown (instructed by The Bar Pro Bono Unit) appeared for the Appellant
The Respondent appeared in person
Hearing date: 12 October 2010
Lord Justice Toulson:
This is an appeal against the dismissal by HH Judge Bullimore of a claim brought by the Claimant, Mr Gary Close, in the Barnsley County Court for repayment of £20,000 which he had paid to the Defendant, Mr Colin Wilson, for the purpose of betting.
At the trial, which was heard in Sheffield on 20 July 2009, both parties represented themselves.
Certain matters were undisputed. In July 2007 Mr Close paid £20,000 to Mr Wilson, comprising a sum of £10,000 followed soon afterwards by sums of £8,000 and £2,000, for betting purposes. No money was repaid to Mr Close. On 10 April 2008 Mr Close through solicitors made a written demand for repayment of £20,000 which was not forthcoming.
Proceedings were issued on 23 May 2008.
Mr Close's case set out in his Particulars of Claim was that in 2003 he had paid to Mr Wilson the sum of £1,000 for the purpose of Mr Wilson placing bets on horses to lose certain races, i.e. "laying" the horses. The terms were set out in a short written agreement signed by both parties and dated 4 February 2003. The selection of bets was a matter entirely for Mr Wilson, but the agreement stipulated that Mr Close's "capital investment" was "guaranteed to be paid back…no matter what happens when laying the horses". If the venture was profitable, the profit would be shared. In due course the £1,000 was duly repaid with profit.
It was Mr Close's case that the payment of £20,000 in July 2007 was on the same basis, except that Mr Wilson was to account to him monthly and Mr Close was to receive a set percentage return on the value of his investment.
Mr Wilson's defence was that the arrangement made in July 2007 was different from the arrangement made in 2003 and that there was no guarantee that the money would be repaid. That would depend on whether the betting was successful.
There was a dispute about what happened to the £20,000. According to Mr Wilson, the betting was unsuccessful and all the money was lost. Most of the betting was done through Betfair. According to Mr Close, analysis of documents disclosed by Mr Wilson showed that £15,000 had gone into Mr Wilson's Abbey National account and that large amounts had been used by him for his personal benefit, in paying credit card and other bills, cash withdrawals and other purposes. There was no trace of what had happened to the remaining £5,000. Mr Close accused Mr Wilson of dishonesty.
When the case came to trial there were two main factual questions. First, on what terms was the £20,000 advanced? Secondly, how was the £20,000 used?
On the second issue Mr Close had come prepared to take the judge through the documents in some detail.
A day had been allocated for the hearing, but the case was not reached until after lunch. Mr Close complains that the judge did not allow him the opportunity to take him properly through the documents to show what had happened to the money, but made it clear from an early stage that the claim was bad because it related to gambling.
His account has some support from the terms of the judgment.
The judge said:
"4. Now, at a fairly early stage I referred the claimant to two Acts of Parliament which were current then, but which have been repealed from September 2007 by the Gambling Act of 2005.
The first of these Acts of Parliament is the Gaming Act of 1845. Section 18 says:
"All contracts or agreements, whether by parole or in writing, by way of gaming or wagering shall be null and void."
So that seems fairly clear and straightforward, although there are a number of other lines dealing with matters which I do not think arise here.
Then there is the Gaming Act of 1892. In Section 1 it says:
"Any promise expressed or implied to pay any person any sum of money paid by him under or in respect of any contract or agreement rendered null and void by the Gaming Act of 1845…"
And then there is a little bit I will leave out:
"…shall be null and void."
The case today illustrates why Parliament, all those years ago, decided to make agreements or arrangements about betting or gaming null and void. In other words, that they could not be sued on. It was because inevitably, there are large differences of view about what has happened, what the original agreement was and so on and so forth, and Parliament took the view that the time of the court should not be taken up with trying to resolve those difficulties."
After referring to parts of the evidence he said
"13 …But at the end of the day what does all this come to? It is a squabble about betting and gaming. That is exactly what Parliament was addressing in those two Acts of the 1800's; such agreements, arrangements, are null and void. They do not amount to anything, so they cannot be sued on."
That is the ratio of the judgment.
The judge went on to say that he could find no evidence of fraud, but that it was impossible to trace through all the documents. He added that "It is not part of my job to do that and I think those Acts of Parliament indicate that."
On the appeal Mr Close was represented, through the good offices of the Bar Pro Bono Unit, by Mr Matthew Slater, assisted by Mr Rory Brown, to whom we are indebted for well-presented written and oral submissions. Mr Wilson represented himself.
Mr Wilson said that, contrary to Mr Close's suggestion, the judge at the trial considered the documents in some detail, and he submitted that the judge made what amounted to a clear factual finding that Mr Wilson applied the £20,000 properly in accordance with the parties' agreement. But the judge did not go that far. The furthest he went was to say that there was evidence of £15,000 out of the £20,000 going into Mr Wilson's Abbey National account, and of sums totalling a little under £13,500 being placed by Mr Wilson with Betfair. This did not account for the full £20,000 and, while the judge said that he saw no evidence of fraud, he did not make a positive finding about what happened to all the money. He did not regard that as necessary because of the view which he took about the effect of the Gaming Acts 1845 and 1892.
The appeal therefore has to be approached on the basis that the judge did not make any finding about the terms on which the £20,000 was advanced or what happened to all of it.
The issues on the appeal are therefore whether Mr Close would have valid claims: a) if the agreement included a promise, as he claims, for the return of the full £20,000; and/or b) if not...
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Not All Lost When Betting Agreement Is Unenforceable
...v Wilson [2011] EWCA Civ 5 Under an earlier arrangement, set out in a short written agreement, Close had paid £1,000 for the purposes of betting on the promise by Wilson that the £1,000 would in any event be repaid and that any profit would be shared. In due course the £1,000 was repaid wit......