FCL (London) Ltd v Mrs Lisa Voice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws |
| Judgment Date | 22 October 2013 |
| Neutral Citation | [2013] EWCA Civ 1510 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A2/2013/0080 |
| Date | 22 October 2013 |
[2013] EWCA Civ 1510
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Laws
A2/2013/0080
Mr D Macpherson (instructed by Direct Access) appeared on behalf of the Appellant
Mr D Matthias QC (instructed by Davenport Lyons) appeared on behalf of the Respondent
This is an adjourned application for permission to appeal against the judgment of His Honour Judge Richard Seymour QC sitting as a judge of the High Court on 21 December 2012, when he dismissed a claim by FCL (London) Limited against Mrs Lisa Voice for fees said to be due under an oral contract. FCL (London) is to all intents and purposes Mr Shehzad Farrukh. As necessary I will refer to the appellant as Mr Farrukh.
Permission to appeal was refused by Longmore LJ on consideration of the papers on 24 April 2013. On 28 August 2013 I adjourned the applicant's renewed application for the respondent to be present by counsel, and Mr Matthias QC has appeared today and has provided a skeleton argument.
Rather more than seven years before his death on 26 May 1993 Mr Cecil Rosen gave to his daughter, the respondent, a large sum of money referred to in the proceedings as "the Swiss funds". The Swiss funds were held offshore. At the time of the events with which this case is concerned, they amounted to between £6,500,000 and £6,750,000. At length the respondent made voluntary disclosure to Her Majesty's Revenue and Customs about the Swiss funds. She was faced with a very considerable potential tax liability.
She consulted the applicant, Mr Farrukh, who is a chartered accountant. She had other advisers. She and he entered into an oral contract at the beginning of July 2007. At paragraph 8 of the amended particulars of claim, which was admitted by the respondent save as to the precise date, the applicant pleaded as follows:
"By an oral agreement made on or about 3 July 2007 … the defendant engaged the claimant to provide tax advice services with regard to the disclosure made by the defendant to HMRC and to assist her and her other advisers in reducing so far as possible her total liability for taxes, penalties and interest payable by her consequent on the disclosure."
The "disclosure" had earlier been defined.
There was no dispute but that the applicant carried out some work and received certain sums of money. The dispute in the case, as the judge indicated in paragraph 20, was:
"What terms as to remuneration had originally been agreed and whether what was originally agreed been varied, and if so, to what effect."
In the month before the contract was entered into, a document referred to as "the draft note" was prepared by a Mr Carmel, senior partner of an accountancy firm called Wilson Wright, and sent to the respondent, Mr Silverman, a business associate and adviser of the respondent, and others. It included a section headed "tax liabilities" which is set out by the judge at paragraph 15. This figures in the summary given by the judge of the essential issue in the case at paragraph 23 follows:
"What Mr Farrukh was entitled to, if anything, pursuant to the agreement made in July 2007, thus depended critically upon whether what had been agreed was that his fee would be based on the difference between the figures contained in the tax liabilities section of the draft note and what was actually accepted by HMRC, in which event Mr Farrukh was entitled at least to 10 per cent of £6 million by reason of HMRC not to seek capital transfer tax on the transfer of the Swiss funds, or on the difference between whatever was the outcome of the ultimate considered assessment of liabilities made by Wilson Wright and what was actually accepted by HMRC, in which event the claimant's case failed entirely."
The issue was put even more crisply, albeit in general terms, by Longmore LJ refusing permission to appeal:
"The claimant said that the defendant agreed to pay 10 per cent of the difference between the defendant's liabilities for capital taxes as estimated by Wilson Wright and the amount of such capital taxes as finally assessed by HMRC. The defendant said that she agreed to pay 10 per cent of the difference between her liability for tax in general and the actual amount paid. The judge heard the witnesses in relation to that oral agreement and preferred the defendant's version to the claimant's."
The applicant asserted that the contract had been twice varied. At paragraph 28 of his judgment, the judge said this:
"It is, I think, fairly obvious that if what was agreed at the meeting in July 2007 was that for which Mrs Voice contended, it was improbable in the extreme that either of the first or second alleged variation agreements had been made, because, far from being, as Mr Farrukh contended, advantageous to Mrs Voice by referring her obligations to him, they were seriously disadvantageous. Thus what had in fact been agreed at the meeting in July 2007 was probably critical to the resolution of all of the ways in which Mr Farrukh's case was put."
That last sentence chimes, I think, with the fact that Mr Macpherson's submissions this morning have focussed on what the judge made of the original agreement rather than any subsequent variation or alleged variation.
The grounds of appeal from start to finish raise matters of fact. It seems to me useful to set out this passage at the end of the judge's judgment:
"104. In stark contrast to the impressions made upon me by Mrs Voice and Mr Silverman, the view which I have formed of Mr Farrukh coincided with the submissions made about him by Mr Matthias in closing. I adopt these observations with which I entirely concur from the written closing submissions of Mr Matthias:
"'7. He was in short evasive and mendacious in his evidence and throughout his evidence.
"'8. Mr Farrukh is a man who lies without compunction, who makes up as he goes along any version of events that he considers will best suit his purposes at the time. Nothing he says or writes can be taken as true unless it is supported by independent corroboration.'"
Then the judge proceeds to give some chapter and verse supporting those conclusions.
In Mr Macpherson's supplementary skeleton argument of 27 August 2013 the grounds of appeal are arranged under four heads: first ground 1 and 3(a); then ground 3(b); then grounds 4 and 5; and lastly ground 2.
Ground 3(b) is a short point. Mr Matthias took it first in his skeleton and I will do the same. At paragraph 98 of the judgment the judge said:
"The suggestion that Mrs Voice might have agreed to pay Mr Farrukh 10 per cent of savings to which he had made no contribution was most implausible."
Mr Matthias contends that the issue whether the July 2007 agreement provided that the applicant should be paid without having been an effective cause of any saving was a matter of construction, not primary fact; see paragraph 21 of his...
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