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Re: Joyce v. Morrissey Decision - Peter Gibson L.J.
Peter Gibson L.J.:
From the criticisms which Mr Rosen Q.C. sought to make of the judgment of His Honour Judge Weeks Q.C. it became apparent that what may have motivated the appeal, brought as it is only by Mr Morrissey and not by Mr Marr, was the judge's assessment of Mr Morrissey. That understandably rankled with Mr Morrissey. The judge explained why he needed to give his assessment of the witnesses. He had pointed out that no express agreement had been pleaded but that it was possible in law for an agreement rebutting the presumption in section 24, Partnership Act 1890 to be inferred from the conduct of the partners, and this led him to say a little about the credibility of the four partners. As he said, a lot depended on their version of events at which they were present. He had seen Mr Joyce, Mr Rourke and Mr Marr cross-examined for about three-quarters of a day each and Mr Morrissey cross-examined for over a day. The judge therefore was in a good position to assess each of them as a witness. He*250 said of Mr Joyce and Mr Rourke that they had impressed him as straightforward and honest. He continued:
Mr Morrissey is a more complicated character. He did not find giving evidence an easy or happy experience. To me at least he appeared devious, truculent and unreliable where his own interests were at stake.
The judge was also critical of Mr Marr as seeming to the judge to be "willing to embroider his evidence to a point where he became less credible". He concluded that where Mr Morrissey's evidence differed from that of Mr Joyce and Mr Rourke, he preferred that of Mr Joyce and Mr Rourke.
Mr Rosen suggested that the judge's assessment of Mr Morrissey was unfair. That criticism appears to have been at least in part based on a misapprehension of the import of the judge's words. No dishonesty was imputed to Mr Morrissey by Mr Davis Q.C. for Mr Joyce nor do I read the judge's comments as amounting to a finding of dishonesty. We were taken by Mr Rosen to parts of the transcript of Mr Morrissey's cross-examination and we have had the opportunity to read further parts of the transcript, and it has to be said that even without observing Mr Morrissey's demeanour in the witness-box the objective reader would not be able to find him to have been a good witness. I would add that Mr Davis' cross-examination is notable both for its thoroughness, which Mr Morrissey no doubt found uncomfortable, and scrupulous fairness. Mr Rosen has not been able to persuade me that the judge was not entitled to form the view which he did. The judge had to choose between conflicting evidence and it was entirely proper for him to explain in the way that he did why he preferred Mr Joyce's and Mr Rourke's evidence to that of Mr Morrissey and Mr Marr.
Nor am I persuaded that this experienced judge, in going through item by item what had been pleaded item by item on behalf of Mr Morrissey as the facts and matters from which the alleged agreement as to unequal shares of the partnership profits was to be inferred, fell into the trap of "compartmentalisation" and failed to take an overall view when he found that no contrary agreement was proved. In my judgment he properly dealt with every point raised and was entitled to conclude as he did.
This is an appeal on the facts. But it has not been shown that the judge made an error on any finding of fact whatsoever. The two findings on which Mr Rosen concentrated his attack were the findings that Mr Joyce did not study the 1983/84 accounts when sent to him on July 4, 1986 and the finding that Mr Rourke did not say in the silent presence of Mr Joyce to Mr Savage in 1987 at the Woolhall Studios, "We get 10 per cent". It is wholly unsurprising that Mr Joyce, like Mr Rourke, did not study the accounts, sent as they were under cover of a bland*251 letter from Mr Bennet-Smith not drawing attention to the profit shares. The judge found that Mr Joyce and Mr Rourke were not financially sophisticated or aware and even Mr Morrissey and Mr Marr both accepted that they themselves would not have considered the accounts in any detail, if at all. When one reads the witness statements and transcripts of the evidence of Mr Savage on the one hand and Mr Joyce and Mr Rourke on the other on what was said or not said in the brief meeting between them at the Woolhall Studios, itis obvious that there was evidence which might have enabled the judge to prefer the evidence of Mr Savage. But we do not have the advantage, enjoyed by the judge, of seeing Mr Savage give his evidence and there are other factors which cast grave doubt on the accuracy of that evidence. They include the delay in making the allegation and the absence of any mention of the allegation in correspondence with Mr Joyce's solicitor where it might have been expected to have been mentioned. As Mr Savage himself said in his cross- examination, he had had to remind himself of the discussions at the Woolhall Studios when different law firms became involved in the case. In my judgment it is impossible to say that the judge erred in his finding against Mr Savage's version of what occurred.
For these as well as the reasons given by Waller L.J. and in acceptance of the contentions of Mr Davis and Mr Cullen in their meticulously prepared and helpful skeleton argument, I am in no doubt but that this appeal must be dismissed.
Appeal dismissed with costs to be taxed if not agreed; legal aid taxation of plaintiff's costs between November 1, 1997 and March 10, 1998; application for leave to appeal to the House of Lords refused.
(c) Sweet & Maxwell Limited
END OF DOCUMENT
Peter Gibson L.J.:
From the criticisms which Mr Rosen Q.C. sought to make of the judgment of His Honour Judge Weeks Q.C. it became apparent that what may have motivated the appeal, brought as it is only by Mr Morrissey and not by Mr Marr, was the judge's assessment of Mr Morrissey. That understandably rankled with Mr Morrissey. The judge explained why he needed to give his assessment of the witnesses. He had pointed out that no express agreement had been pleaded but that it was possible in law for an agreement rebutting the presumption in section 24, Partnership Act 1890 to be inferred from the conduct of the partners, and this led him to say a little about the credibility of the four partners. As he said, a lot depended on their version of events at which they were present. He had seen Mr Joyce, Mr Rourke and Mr Marr cross-examined for about three-quarters of a day each and Mr Morrissey cross-examined for over a day. The judge therefore was in a good position to assess each of them as a witness. He*250 said of Mr Joyce and Mr Rourke that they had impressed him as straightforward and honest. He continued:
Mr Morrissey is a more complicated character. He did not find giving evidence an easy or happy experience. To me at least he appeared devious, truculent and unreliable where his own interests were at stake.
The judge was also critical of Mr Marr as seeming to the judge to be "willing to embroider his evidence to a point where he became less credible". He concluded that where Mr Morrissey's evidence differed from that of Mr Joyce and Mr Rourke, he preferred that of Mr Joyce and Mr Rourke.
Mr Rosen suggested that the judge's assessment of Mr Morrissey was unfair. That criticism appears to have been at least in part based on a misapprehension of the import of the judge's words. No dishonesty was imputed to Mr Morrissey by Mr Davis Q.C. for Mr Joyce nor do I read the judge's comments as amounting to a finding of dishonesty. We were taken by Mr Rosen to parts of the transcript of Mr Morrissey's cross-examination and we have had the opportunity to read further parts of the transcript, and it has to be said that even without observing Mr Morrissey's demeanour in the witness-box the objective reader would not be able to find him to have been a good witness. I would add that Mr Davis' cross-examination is notable both for its thoroughness, which Mr Morrissey no doubt found uncomfortable, and scrupulous fairness. Mr Rosen has not been able to persuade me that the judge was not entitled to form the view which he did. The judge had to choose between conflicting evidence and it was entirely proper for him to explain in the way that he did why he preferred Mr Joyce's and Mr Rourke's evidence to that of Mr Morrissey and Mr Marr.
Nor am I persuaded that this experienced judge, in going through item by item what had been pleaded item by item on behalf of Mr Morrissey as the facts and matters from which the alleged agreement as to unequal shares of the partnership profits was to be inferred, fell into the trap of "compartmentalisation" and failed to take an overall view when he found that no contrary agreement was proved. In my judgment he properly dealt with every point raised and was entitled to conclude as he did.
This is an appeal on the facts. But it has not been shown that the judge made an error on any finding of fact whatsoever. The two findings on which Mr Rosen concentrated his attack were the findings that Mr Joyce did not study the 1983/84 accounts when sent to him on July 4, 1986 and the finding that Mr Rourke did not say in the silent presence of Mr Joyce to Mr Savage in 1987 at the Woolhall Studios, "We get 10 per cent". It is wholly unsurprising that Mr Joyce, like Mr Rourke, did not study the accounts, sent as they were under cover of a bland*251 letter from Mr Bennet-Smith not drawing attention to the profit shares. The judge found that Mr Joyce and Mr Rourke were not financially sophisticated or aware and even Mr Morrissey and Mr Marr both accepted that they themselves would not have considered the accounts in any detail, if at all. When one reads the witness statements and transcripts of the evidence of Mr Savage on the one hand and Mr Joyce and Mr Rourke on the other on what was said or not said in the brief meeting between them at the Woolhall Studios, itis obvious that there was evidence which might have enabled the judge to prefer the evidence of Mr Savage. But we do not have the advantage, enjoyed by the judge, of seeing Mr Savage give his evidence and there are other factors which cast grave doubt on the accuracy of that evidence. They include the delay in making the allegation and the absence of any mention of the allegation in correspondence with Mr Joyce's solicitor where it might have been expected to have been mentioned. As Mr Savage himself said in his cross- examination, he had had to remind himself of the discussions at the Woolhall Studios when different law firms became involved in the case. In my judgment it is impossible to say that the judge erred in his finding against Mr Savage's version of what occurred.
For these as well as the reasons given by Waller L.J. and in acceptance of the contentions of Mr Davis and Mr Cullen in their meticulously prepared and helpful skeleton argument, I am in no doubt but that this appeal must be dismissed.
Appeal dismissed with costs to be taxed if not agreed; legal aid taxation of plaintiff's costs between November 1, 1997 and March 10, 1998; application for leave to appeal to the House of Lords refused.
(c) Sweet & Maxwell Limited
END OF DOCUMENT
