David Leslie Bates v 1. Microstar Ltd and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ALDOUS |
| Judgment Date | 13 January 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0113-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 January 2000 |
| Docket Number | PTA 1999/8002/A3 |
[2000] EWCA Civ J0113-3
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
(MR LAWRENCE COLLINS QC sitting as a Deputy Judge of the High Court)
Royal Courts of Justice
Strand
London WC2
Lord Justice Aldous
PTA 1999/8002/A3
MR J MARTIN QC and MR N LEVISEUR (Instructed by Messrs Tibber Beauchamp & Ward, London, N12 0BT) appeared on behalf of the Applicant.
MR M CHAPPLE (Instructed by Messrs Dibb Lupton Alsop, London, EC2Y 4AE) appeared on behalf of the Respondent.
Thursday 13 January 2000
: On 17 February 1999 Mr Bates issued a writ of summons naming Microstar Limited and Thomas Combrinck as defendants. Mr Bates claimed damages for breach of contract and a declaration that he was beneficially entitled to 2.5 per cent of the issued share capital of the first defendant as at 28 March 1998. A defence was served on 6 April disputing the claim. By an application dated 20 July 1999 Mr Bates sought summary judgment under CPR part 24. That application came before Mr Lawrence Collins QC sitting as a deputy judge of the Chancery Division. In his judgment dated 9 December 1999 he granted summary judgment on most of Mr Bates' claim in a sum amounting to over £200,000 and also made the declaration sought. He refused permission to appeal.
The defendants applied to this court for permission to appeal. Their application was considered by Chadwick LJ on paper. He ordered an oral hearing and noted that it would be of assistance to have a note of the judge's reasons. That has not been possible. Therefore, I am no wiser as to why the judge came to the conclusion that he did.
The applicant's case is that this case was not appropriate for part disposal under the summary judgment procedure, CPR Part 24. Mr Martin QC drew to my attention Swain v Hillman, Court of Appeal 21 October 1999 (unreported), which set out the principles to be applied when considering a case under CPR 24. As this is an application for permission to appeal I need not repeat them here. It is sufficient to note that before granting summary judgment a judge has to conclude that there is no real prospect of success.
Mr Bates is a chartered accountant and tax adviser. Microstar was formed on 28 August 1997 in Jersey as a holding company for a telecommunications business which was going to be run by Mr Combrinck. It was common ground that Mr Bates and Mr Combrinck agreed between them that Mr Bates would provide a variety of services for Microstar, including the provision of advice as to how to minimise the tax on income and capital gains made by Microstar; the supervision of the preparation of the accounts of Microstar; the establishment of back up office support for Microstar; and the management of the projects undertaken by the business, including the preparation of costing forecasts. There was in the written evidence of the parties a dispute on some aspects of the duties that Mr Bates was to perform.
According to Mr Bates an agreement was made, partly orally and partly in writing, between him and Mr Combrinck, the written part being at the Mountbatten Hotel, London on 9 March 1998. The memorandum is set out on page 4 of the judge's judgment. It contains six headings. It is not in dispute that that document formed the basis for a proposed agreement.
So far as Mr Combrinck is concerned, he said in his evidence that he had no objections to the demands or requests made by Mr Bates at the Mountbatten Hotel because he anticipated that the parties would make a lot of money. He said that he agreed the terms but that no money could be paid until the company was in the best position to pay it. According to Mr Combrinck, Mr Bates would have to give up his private practice and devote himself full-time to the affairs of Mr Combrinck and the company. That was, according to Mr Combrinck, accepted. The document was signed on that basis and upon the basis that the full terms of the agreement should be drawn up in a formal form by Mr Bates which would then be ratified in Jersey.
Before me, it emerged that a...
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