Noel Edward Fletcher and Trevor Davis and Public Forums Internet (PFI) Ltd
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE MANN |
| Judgment Date | 21 April 2005 |
| Neutral Citation | [2005] EWHC 632 (Ch) |
| Date | 21 April 2005 |
| Court | Chancery Division |
| Docket Number | Case No: TLC 127/03 |
[2005] EWHC 632 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Justice Mann
Case No: TLC 127/03
The Claimant appeared in person.
The First Defendant appeared in person.
The Second Defendant did not appear and was not represented.
Hearing dates: 26th, 27th, 28th and 31st January 2005;
st, 2nd, 3rd, 4th, 7th, 8th and 9th February 2005
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
MR. JUSTICE MANNMr Justice Mann:
Introduction
This is an action which flows from the fall-out from the breakdown of a business relationship between Mr Noel Fletcher, the claimant, and Mr Trevor Davis, the first defendant. In 1999, Mr Fletcher had an idea for a new way of presenting advertisements on the internet. He required capital from another person in order to develop that idea, and he was introduced to, and came to some form of arrangement with, Mr Davis. That resulted in the incorporation of the second defendant ("PFI") which was a company intended to develop the relevant software and carry forward at least some aspects of the joint venture. Mr Fletcher brought the ideas into the venture; Mr Davis provided the initial capital. In April 2001 a website was launched which was based on the new software, but that coincided with a falling-out between Mr Fletcher and Mr Davis. That dispute rapidly got out of hand, and within a few months the two gentlemen had in substance parted company, and the project ground to a halt. As a result of that, Mr Fletcher commenced this action, claiming monies from the company by way of agreed remuneration and consultancy fees, damages from the company in respect of his alleged wrongful removal as a director of the company, reimbursement for certain debts of the company that he says he discharged, damages from Mr Davis for breach of what he says was a shareholders' agreement reached in December 1999 and a declaration that any patent granted in respect of what he claims was his invention belonged to him jointly with two other co-inventors. The damages claimed against Mr Davis can be summarised as being the amount of profits which would have resulted from the venture had Mr Davis not performed certain acts which Mr Fletcher says wrongfully brought the project to an end. Mr Davis defends the action, disputing amongst other things the existence of the shareholders' agreement and that Mr Fletcher is not the appropriate claimant for any loss of profits. The company also denies the existence of the shareholders' agreement relied on by Mr Fletcher, and in addition counterclaimed for relief on the footing that Mr Fletcher threatens a breach of copyright in respect of the software written for the venture (until that claim was settled during the course of the trial).
The story of the formation of the venture between Mr Fletcher and Mr Davis, its pursuit and its breakdown is a detailed and sorry one. The value of any judgment against PFI is highly questionable, since on any sensible view of the facts the company is insolvent. The applications for the patents which form part of Mr Fletcher's claim have lapsed because relevant fees were not paid, and Mr Fletcher has in fact indicated that he no longer pursues that part of his claim. However, this action and the counterclaim have proceeded not least, it seems to me, because the question of costs has got in the way of any settlement. These proceedings were started on 10 April 2001. After about a year, Mr Fletcher dispensed with his legal advisers and has thereafter represented himself, though it is plain from some things that he has said that from time to time he has taken legal advice (including advice from leading counsel) on certain aspects of this case while acting in person. Mr Davis, until the end of December 2004, has been legally represented for most (but not quite all) of the period of this case, but as from the beginning of this year he too has been acting in person. In addition to one deferment of the trial date because of an accident to a member of Mr Fletcher's family, there have been two abortive attempts to start this trial. The first was in May 2003, when the trial started before Pumfrey J. After two days Pumfrey J adjourned the trial because of the recent production of a significant volume of documents. The trial resumed at the end of October 2003, but again on the second day it was adjourned because of the late production of yet more documents. Those two abortive trials must have caused large amounts of costs to be wasted. In addition, there has been a very significant number of interim applications, an administration petition and proceedings to restrain a third party (seen by Mr Davis, with some justification, as an ally of Mr Fletcher) from petitioning to wind up the company. In mid-action, Mr Davis changed solicitors, leading to the assertion of liens and general disruption to the continuation of the case. The overall effect of all this is the incurring of large amounts of costs and the creation of large amounts of documentation. It is fortunate in one sense that the trial bundles were assembled by the solicitors acting for Mr Davis in October 2003, because that means that there are at least some coherent bundles. It is, however, unfortunate in that it appears that insufficient thought was given to the documentation which would be necessary for the trial, with the result that I was presented with six volumes of witness statements and exhibits (most of which turned out to relate to earlier applications) and which contained large quantities of evidence that in the end the parties did not rely on at the trial; and 15 lever-arch files of chronological documents of which, it seems to me, the vast majority were of only peripheral relevance (if that). There were 7 further volumes of documents relating to other proceedings stemming from this affair, bank statements and statements of case. All this required a great amount of pre-reading.
At the trial Mr Fletcher and Mr Davis appeared in person, and Mr Davis represented PFI. It was quite apparent from the moment the trial started that the bitterness of the parties, and their mutual distaste, has not abated over the last three years, remains very severe, and cannot be repressed. Cross-examination of each party by the other was constantly obstructed by this feature, and obviously the two litigants in person were not seasoned cross-examiners (though Mr Davis's efforts were quite commendable in this respect) and the court had to take a greater role in examining (and restraining) witnesses than would otherwise be the case. At the end of the day the present factual position means that the claims, if established, are likely to be worthless, so the action is likely to be all about costs. All this makes this a most unfortunate piece of litigation, and the lack of assistance from any lawyers means that many areas of the case were not covered with the thoroughness that one would normally require and expect. The effect of this is that in some areas where I would have wanted to make clear findings (and in particular in relation to the details of the stages of the rise and fall of the relationship between Mr Davis and Mr Fletcher) I have felt unable to do so because the facts were not sufficiently expounded, developed and tested. Nevertheless, the result of the evidential stage of the hearing is that I am satisfied that in the core areas, where central findings are required, I heard sufficient evidence, and saw enough cross-examination, to be sufficiently well informed to be able to make findings in those areas. At the start of the action it seemed that there was going to be a problem over documentation, because the defendants' solicitors came off the record at the end of December 2004 (as a result of non-payment of their fees) and the trial bundles for whose preparation they had been made responsible (because Mr Fletcher was acting in person for most of this action) were not available. However, this potential problem was overcome when the solicitors procured delivery to me of a set of the bundles retained by Mr Davis's former junior counsel (marked up to some extent, but not in a way which was embarrassing or which caused any difficulty), and Mr Davis and Mr Fletcher had their own bundles from which they worked. It transpired from time to time that Mr Davis's bundles were not quite as complete as those of Mr Fletcher and me, but those difficulties were overcome when they arose and I was satisfied that all parties (and I myself) had the right documentation to enable the case to be conducted fairly.
The Facts
In this section of the judgment I shall set out the details of the history of this matter, narrating facts which in the main are either agreed or which are clearly established, and indicate some of the respective cases of the parties where their cases diverge in matters material to the action. In what follows, any statement of fact should be taken as being a finding by me unless the contrary appears. There were a large number of disputed facts in relation to almost every detail of this case; at times it seemed that the parties were hardly ever in agreement about anything. It is not necessary (and indeed it is not possible) for me to make findings in relation to very many areas of dispute, so the following narrative confines itself to those areas which are necessary to understand the case and to enable me to decide, or to determine the background to, the issues which arise.
Mr Fletcher has a background partly in marketing. He was a marketing manager (though sometimes styled director)...
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