Floyd & Ors v John Fairhurst & Co

This is an appeal against the order of HHJ Maddocks sitting as a deputy judge of the Chancery Division of the High Court of Justice, Manchester District Registry, on 14 July 2003. By his order, the judge gave judgment for the claimants on their claim in the sum of £10,549 and for the defendants on their counterclaim in the sum of £12, 943. The claimants appeal against that order.

The action arises out of negligent tax advice given by the respondents (“Fairhursts”), who were the appellants’ accountants and tax advisers. The third appellant (“the company”) was set up in 1980. The sole directors and shareholders were the first two appellants, Mr and Mrs Floyd. They were equal shareholders in the company. In 1991, Mr Floyd and the company each owned land at Irlam, near Manchester. The company’s business was the storage and repair of containers. Mr Floyd’s business consisted of the letting of industrial units. Part of the company’s land and the whole of Mr Floyd’s land was compulsorily purchased by Salford City Council (“Salford”) on 28 March 1991. The total compensation payable in respect of both sites was £900,000. Of this, the company received £341,692.50 and Mr Floyd £558,307.50. This gave Mr Floyd a gain of £391,400, resulting in a liability to capital gains tax on the land element of the compensation of £156,560. This sum became payable and was paid on 1 December 1991.

In 1990, Mr Floyd asked Fairhursts to advise him and the company on the capital gains tax implications of the prospective compulsory acquisition. Fairhursts gave advice to Mr Floyd in March and July 1990 and then again between October 1991 and January 1992. Fairhursts advised, correctly, that the company could defer part or all of the tax from the gains realised by it if part or all of the compensation was reinvested in new qualifying assets (land, buildings or goodwill) used for the purposes of a trade. However, Fairhursts failed to advise Mr Floyd that, if he reinvested his share of the compensation in land, he could obtain rollover relief under sections 111A and 111B of the Capital Gains Tax Act 1979, now sections 247 and 248 of the Taxation of Chargeable Gains Act 1992. It is doubtful whether Mr Floyd could have obtained the same sort of relief as the company since his land had been used for letting purposes and this did not count as the use of land in a trade. Nonetheless, he would have been eligible for rollover relief under the sections mentioned, and I shall refer to this form of relief as “CPO relief”.

The land held by Mr Floyd had originally been owned by him in partnership with a Mr Leech. The partnership was called Boundary Trading Company (“BTC”). In 1985, Mr Floyd acquired Mr Leech’s partnership share for cash. The company owned 1.06 acres of the land compulsorily purchased, and Mr Floyd (as successor to BTC) owned the remaining 0.9 acres.

In this action, Mr Floyd’s case was that he suffered loss equal to the tax paid less a small discount for the fact that the tax would be deferred, not avoided altogether. The appellants also claimed the costs they incurred as a result of an investigation by the Inland Revenue commenced in 1991 into the affairs of Mr Floyd, BTC and the company. This investigation was caused at least in part by the failure of the Floyds, the former partnership and the company to file tax accounts in time. The investigation resulted in a beneficial compromise between the Floyds and the Revenue. Negotiations were carried on by Fairhursts, and the judge was satisfied that the compromise was a good one from the point of view of Mr and Mrs Floyd. In the action, Fairhursts counterclaimed for the sum of £26,500, being the principal amount of fees owed to them, of which £12,143 related to work other than the Revenue investigation.

The principal use which Mr Floyd made of the compensation which he received from the compulsory acquisition of his land was to purchase a property known as Westage Farm. In due course this was sold in two parcels, each with the benefit of principal private residence relief (“PPR relief”). In this way a capital gain of £282,045 was achieved with a tax saving of £112,018. The judge made the following findings:-

In early 1993, the Floyds changed their tax advisers. They appointed Haslams to advise them. By the autumn of 1993 Haslams appreciated that CPO relief was available to the Floyds and that they could not claim it if they also claimed PPR relief on Westage Farm. However, by the time this happened, Mr Floyd had already bought Westage Farm and begun making improvements there. He did not have sufficient funds available to him to buy another property there and then to take advantage of the CPO relief. If he had been able to take advantage of CPO relief by acquiring an appropriate property (which could not be a property on which he sought to obtain PPR relief), he would have obtained a repayment of the sum of £156,560 and in addition the benefit of the capital gain and income stream on the new property. The period for making that investment was three years, subject to extension. Accordingly, he could have purchased the property at any time prior to March 1994, or indeed later if the Revenue had granted an extension.

There was a complication in that, on the sale of Mr Floyd’s land, £108,000 of the compensation had been attributed to the land and £426,615 had been attributed to loss of the ability to let the industrial units on it. The balance of £23,692.50 was attributed to loss on the forced sale of equipment. Following enquiries by Haslams, the Revenue on 26 November 1993 accepted that the compensation for loss of the ability to let could be attributed to the land but they then expressed an intention to restrict the gain. The judge thought that the approach of the Revenue was unsustainable. However, Haslams took that matter no further.

The respondents do not contest that they negligently failed to advise on the availability of CPO relief in March and July 1990 and between October 1991 and January 1992. On this appeal, as before the judge, the appellants accept that the capital appreciation on, and income stream from, property acquired for the purposes of taking advantage of CPO relief can be compensated for by an award of interest.

The principal issue at trial was whether Mr Floyd would have taken advantage of CPO relief. It was common ground that this was not a question of assessing the chance of Mr Floyd having taken advantage of CPO relief. The court had to be satisfied, on a balance of probabilities, that Mr Floyd would have taken advantage of CPO relief, if competently advised. The judge determined this issue against Mr Floyd for the following reasons:-

The judge went on to determine the damages that would have been payable to the Floyds if CPO relief had been available. He held that, because the tax was only deferred, he would have applied a discount of 25% to take account of the fact that there might have been a decision not to continue investing in property subject to CPO relief. This would have given rise to a need to pay the tax deferred.

The judge also held that the Floyds had to bring into account (before the discount of 25% was applied) the gain which they made by claiming PPR relief on the various parcels of Westage Farm. He held that this gain was relevant as the investment in Westage Farm was made before the time for claiming CPO relief had expired and when the time might still have been extended. Moreover, the decision to proceed with PPR relief and to continue with the barn extension (subsequently named The Farthings) had been made before the time for taking CPO relief had expired and after Mr Floyd had become aware of the CPO relief option. Furthermore, the gain on Westage Farm and The Farthings could not have been achieved without the release of the compensation money and accordingly it did not seem to the judge appropriate to trace the actual destination of the compensation money. There is no appeal on this last point.

The judge then dealt with Fairhursts’ fees in connection with the Revenue investigation. He took into account that Mr Floyd had kept poor records and was slow to respond to Revenue requirements. On that basis, he held that the responsibility for the investigation fell equally on Mr Floyd and Fairhursts, and that accordingly Fairhursts were only liable for one half of the interest and penalties payable by the appellants.

Before the judge the appellants also claimed for loss arising out of the payment by the company in 1989 of a bonus of £70,000 to Mr and Mrs Floyd. The appellants contend that the sum should have been paid by way of dividend which would have left the Floyds better off by some £15,416. However, the payment of a dividend would have resulted in an additional fiscal charge on the company of £12,775 so that, if both sums could be netted together, the net loss was £2,641. The judge held that there was no concluded decision to pay a dividend. Moreover, he held that the loss to the Floyds was the net sum of £2,641, although that sum could in turn be offset by other advantages such as the increase in the amount available for pension contributions by way of the use of the bonus. He held that the decision whether to pay a dividend or bonus was made by reference to all three claimants, the company being no more than the vehicle through which the Floyds traded and of which they were sole shareholders and directors.

Fairhursts argued before the judge that the judge should take into account the benefits which Mr Floyd derived from the settlement with the Revenue. In particular Mr Floyd failed to make full disclosure to the Revenue and, in response to an express enquiry from the Revenue on this point, he omitted to disclose that he was wholly liable for the tax assessable on the partnership by virtue of an agreement that he had reached with Mr Leech. Moreover, the Revenue treatment of storage charges made to the company was benevolent, so that Mr Floyd paid less income tax on that undeclared income than he would have done if he had declared the storage charges in his tax returns in the first place. However, the judge held that he was not prepared to disturb the assessments which had been made.

The judge then turned to the counterclaim by Fairhursts for their fees totalling £26,500. Fairhursts had themselves carried out an apportionment of the fees which related to the Inland Revenue investigation and to other work. They attributed the sum of £12,943 to that other work and the judge gave judgment in their favour in that sum.

On the question of costs, the judge ordered all three appellants to pay the respondents’ costs, and directed them to make an interim payment of £80,000 by 11 August 2003. Mr Bartley Jones QC, for the appellants, did not submit to the judge that the company should not be treated as liable jointly and severally with Mr Floyd. However, he submitted that Mrs Floyd should not be liable jointly and severally with her husband as her only claim against the respondents had been for £1,002 on the basis that in 1989 they had negligently failed to ensure that the company paid her a bonus and not a dividend. The defendants, for whom Miss Lonsdale appeared, resisted this submission as they did not know whether assets were held jointly or by Mr or Mrs Floyd. In addition, Mrs Floyd had stood to gain from any success by the company in the action. After hearing these submissions, the judge decided that Mrs Floyd should be jointly and severally liable for costs without giving reasons.

The issues which arise on this appeal are as follows:-

Was the judge entitled to find that Mr Floyd would not have utilised CPO relief in any event, even if he had been advised about it?

Was the discount of 25%, applied by the judge, to the tax which would have been saved if CPO relief had been taken, excessive?

Did the judge err in law in holding that the sum of £112,818 (the benefits obtained through use of PPR relief) should be set against the tax paid as a result of the failure to claim CPO relief (£156,560)?

Was the judge entitled to find that there was no concluded decision to declare the dividend of £70,000 in 1989?

Was the correct measure of loss for the failure to declare the dividend the sum of £2,641?

Should the judge have given judgment for Fairhursts’ fees in the sum of £12, 943?

Was the judge in error in making an order that Mrs Floyd should be jointly and severally liable with Mr Floyd and the company for the whole of the costs of the trial?

In addition, the respondents’ cross-appeal raises two further issues:-

Issue (a) The judge was wrong in not holding that the respondents could not, in any event, have timeously paid the tax which was found due from them as a result of the Revenue investigation, and accordingly, the judge erred in holding that the respondents were liable to the appellants for the loss caused to them by having to pay interest to the Revenue for the late payment of tax.

Issue (b)

I have already set out in full the judge’s holding on this issue. The judge found, essentially for three reasons which I have marked [A], [B] and [C] in the passage set out above, after the relevant finding, that Mr Floyd’s preference was for PPR relief. Mr Edward Bartley Jones QC, for the appellants, subjects each of the judge’s reasons to detailed, critical examination. He submits that the judge found that Mr Floyd was honest. Mr Floyd’s own evidence was that he would have taken advantage of the CPO relief if he had known it was available. That had to be the starting point, and effectively gives rise to a presumption which the respondents have to rebut. Mr Floyd had, after all, acted on other advice to mitigate tax. The judge makes the point that Mr Floyd is not a satisfactory witness, but the judge does not indicate that this has any particular impact on this issue.

Mr Bartley Jones then turns to the three further matters identified by the judge. The first is the question of the apportionment of the compensation monies between the company and Mr Floyd. Mr Bartley Jones submits that there is no evidence to support the judge’s inference that the apportionment shifted in favour of himself and against the company, which would have been inconsistent with a wish on Mr Floyd’s part to take advantage of CPO relief since only the company so far as he knew was entitled to such relief. The split between the company and Mr Floyd was in the event different from that envisaged in a letter dated 19 July 1990 from the respondents. The judge did not, however, conclude that the apportionment was improper or inappropriate.

Moreover, it was not significant, as the judge thought, that the company did not take advantage of rollover relief [A]. The company’s gain was more modest, and the Floyds wanted the company to use its cash to repay monies owed to them. Nor was it significant that Mr Floyd knew about CPO relief at the time when it was still possible for him to take advantage of it [B]. It was illogical for the judge to determine what Mr Floyd would have done in 1991 by reference to what Mr Floyd actually did in 1993. Mr Floyd acted irrevocably by buying Westage Farm, and his acts of improving Westage Farm and realising PPR relief were in reasonable mitigation of his loss [C]. It was too late for Mr Floyd to take advantage of CPO relief in the autumn of 1993. By then he was in the process of improving Westage Farm and he would have had to give up PPR relief on Westage Farm unless he had other funds. To qualify for CPO relief, a property could be any land except a dwelling-house on which the gain would be exempt.

Moreover, the Revenue would not consider whether to grant an extension until he had actually purchased a replacement property, and it would be unreasonable for the court to expect him to have sold Westage Farm, desist from claiming PPR relief and then invest in a new asset which qualified for CPO relief purposes, all before knowing whether in fact the Revenue would grant him an extension. This interpretation of revenue practice on extension was not accepted by the judge. It was also disputed by Miss Lonsdale in her submissions on this appeal. The Revenue’s stated practice was to look at each case on its merits (Revenue Interpretation, 5 November 1991). Here Mr Floyd would be able to say that he had not received appropriate advice until near the end of the three year period. The judge accepted that the Revenue might well have granted an extension (see the second extract from the judge’s judgment set out above at [B]).

Mr Bartley Jones also challenges the judge’s conclusion that Mr Floyd was more attracted by the PPR route, which would give him a large sum of money which he would be free to invest as he chose. In fact the judge held that only a discount of 25% was required to reflect the fact that tax would be deferred rather than avoided. The respondents should have advised him about both the merits and demerits of electing for CPO relief, though at the relevant time the highly aggressive scheme subsequently utilised at Westage Farm would not have been available.

The respondents, for whom Miss Marion Lonsdale appears, submit that the chain of causation was broken when Haslams discovered in 1993 that CPO relief was possible. Mr Floyd was made aware of the possibility of CPO relief in about October 1993. However, PPR relief was then claimed for Westage Farm. This election ruled out CPO relief. In its letter of 26 November 1993 the Revenue made it clear that it was prepared to consider a CPO relief claim. The respondents submit that the right course would have been for Haslams to ask for an extension of time for investing in a qualifying property from the Revenue. There would have been good grounds for an extension because of the confusion over the proper attribution of the proceeds of sale of Mr Floyd’s land. The Revenue practice is to allow up to a further three years. There is a bias in favour of granting an extension because the practice manual provides that a district inspector cannot refuse an extension. Instead of seeking an extension, Haslams put in train a claim for PPR relief on The Farthings. Mr Floyd was wrongly advised that he needed to invest all the compensation to obtain CPO relief, whereas relief would have started to accrue as soon as he invested the base cost of the property acquired, namely £143,215. He could have used monies other than those used to acquire Westage Farm or he could have sold Westage Farm (without claiming PPR relief) and then reinvested in other land within an extended period (if necessary) permitted by the Revenue

Miss Lonsdale relies on other factors as showing that the chain of the causation was broken. There was no evidence that any suitable substitute property was available into which Mr Floyd would have invested for the purpose of obtaining CPO relief, or even that he had looked into such properties. Moreover, his surveyor had asserted to Salford at the time of the compulsory purchase that Mr Floyd and the company were unable to find any appropriate properties for relocation. The market for industrial property was falling. In 1993, 1994 and 1996, the company made a substantial loss on its industrial property investment business conducted on the land remaining after the compulsory purchase. Mr Floyd did not always act on professional advice, for instance, he had been advised by Fairhursts to refer their advice to his solicitor, which he had not done. Miss Lonsdale submits that on the evidence Mr Floyd was keen to repay the mortgage on Quebec Cottage, which carried interest at a high rate. Furthermore, Mr Floyd’s tax liabilities were some £316,500. In order to raise sufficient funds to obtain CPO relief, he would have had to have given up Quebec Cottage, the life policies which he had purchased and Westage Farm. Indeed, he would have to have used all the compensation if he was going to discharge his other tax liabilities and take up CPO relief in full. As it was, by retaining his residences he obtained a large tax-free gain which was permanent and not subject to claw back as CPO relief would have been.

It will be recalled that the judge held that, if he had awarded damages for the loss of CPO relief, he would have discounted the damages by 25% as CPO relief would only have resulted in a deferral of the tax liability. Mr Floyd’s case was that he would have retained any substitute asset acquired for the purpose of obtaining CPO relief indefinitely and at least until retirement. Thus, on this issue too, Mr Bartley Jones in effect submits that Mr Floyd’s evidence gives rise to a presumption that the respondents had to rebut. Moreover, he submits that there was no evidence to rebut the appellants’ case. Thus, the judge’s discount of 25% was excessive. No discount, or at maximum a discount of 10% should be made.

Miss Lonsdale submits that the discount of 25% does not only reflect the perceived length of time the investment might be held. It also reflects the fact that Mr Floyd would have been required to make a long-term investment in a falling market.

Mr Bartley Jones submits that there is no principled basis for the set off against any damages of the gains made by Mr Floyd on Westage Farm and The Farthings. He further submits that no set off should be made because, if Mr Floyd had invested in property and obtained CPO relief, he would have got an income stream and capital appreciation. In order to obtain PPR relief he had had to give away the barn forming part of Westage Farm. The judge made no award of damages for this element of loss. Moreover, in applying the set off the judge was not comparing like with like and was double-counting because of the deduction of the gain made on Westage Farm. The only applicable principle was that Mr Floyd would have been under a duty to mitigate his loss, and that only required him to act reasonably and would not require him to embark on what could only be described as an aggressive scheme to obtain PPR relief.

Miss Lonsdale seeks to uphold the judge’s judgment on this issue. Moreover, she submits that the judge was right to require the gain made on The Farthings to be brought into account since the terms of the discretionary trust in question, of which Mr and Mrs Floyd were the trustees, empowered them to add their names as potential discretionary beneficiaries. They could have appointed the whole of the capital and the income to themselves. Mr Bartley Jones takes the point that the powers were fiduciary powers, but it appears that it was always the settlors’ intention that the proceeds of sale of The Farthings should be capable of being returned to them.

Alternatively Mr Bartley Jones submits that the rate of interest to compensate for the loss of the income stream and capital growth on the substitute property should be the judgment rate. If there was any set off, interest should be calculated so as to take account of the fact that receipt of part of the proceeds of sale at Westage Farm did not occur until the barn was sold on 16 September 1996.

Miss Lonsdale submits that the Floyds could not have obtained both gains. They had only limited funds to invest in property. Furthermore, on the question of income stream and capital appreciation, this was compensated for by interest.

Mr Floyd’s evidence at trial was that in July 1989 Fairhursts had advised Mr and Mrs Floyd to take dividends of £70,000 for the year ended 31 July 1989, and that he and Mrs Floyd agreed to this suggestion and gave instructions to Fairhursts to effect the necessary transactions. However, this was not done, as required by 31 July 1989. Mr Bartley Jones submits that there was no basis for the judge to reject Mr Floyd’s evidence especially as the person at Fairhursts who was responsible for receiving and implementing the instructions, Mr Cyril Butterworth, did not give evidence.

Miss Lonsdale seeks to uphold the judge’s judgment. Among other points, the judge’s conclusion was supported by the fact that the Floyds signed the company’s accounts for the year ended 31 July 1989 showing that bonuses, and not dividends, had been paid. The directors’ report stated that the directors’ recommendation was that no dividend should be paid for the year.

Mr Bartley Jones submits that the principal element in the damages recoverable for the failure to arrange payment of the 1989 dividend is the national insurance which Mr Floyd, Mrs Floyd and the company each became liable to pay as a result of the directors’ bonuses being paid, rather than a dividend, namely £1,387, £1,002 and £6,300. The judge, however, considered that the correct benefit was the saving of tax to Mr and Mrs Floyd if the dividend was paid (£15,416) less the tax which would have been borne by the company if the dividend had been paid (£12,775), leaving a balance of £2,641.

Mr Bartley Jones submits that this approach treats the company and the Floyds as a single economic unit contrary to the decision of this court in Adams v Cape Industries [1990] Ch.433, 532-544. It is unlikely that the value of the Floyds’ shareholdings in the company would have been reduced in value by the sum of £12,775. There was no claim for the additional income tax which the Floyds incurred.

Miss Lonsdale seeks to uphold the judge’s judgment. The three appellants would together have decided to pay a dividend: it was a joint course of action. Therefore, the only claim should be for the detriment they suffered net of any benefit to any other of them.

Mr Bartley Jones submits that there was no evidence as to the basis on which Fairhursts carried out their apportionment as between fees relating to the Revenue investigation and other fees. He submits that there was no witness of fact on these matters. Fairhursts did not raise bills at the time because they did not wish to incur a charge to VAT. They had moreover lost all their time sheets and computer records to support the sums claimed. There was no apportionment as between the company and Mr Floyd. The only fees which could be said to relate to matters other than the Revenue investigation were those shown in the accounts of the company and BTC, less certain amounts paid on account. These matters would have entitled Fairhursts to judgment in the sum of £2,450. In any event, the judge should not have awarded interest from 30 April 1993, or at as high a rate as 8%.

Miss Lonsdale submits that the judge was entitled to reach the conclusion he did. He had before him extensive trial bundles which showed the extent of the respondents’ work. Evidence was also given by Mr Cheetham and Mr Gale of Fairhursts. Mr Cheetham’s evidence was that time sheets had been available when the counterclaim was calculated, but had been lost sometime thereafter. Mr Floyd also gave evidence that he was due to pay for work not associated with the Revenue investigation, such as accounts work and VAT advice on Westage Farm.

Miss Lonsdale further submits the appellants never asked for disclosure of time sheets. They had never said that Fairhursts’ fees were unreasonable and the points now being made were not put to any of Fairhursts’ witnesses. There had been a meeting with the Revenue on 6 December 1993 at which Haslams had stated to the Revenue that fees of £25,500 were owing to Fairhursts.

On costs, Mr Bartley Jones submits that the judge should not have made an order against the company or against Mrs Floyd. This point is not open to him as against the company since he accepted below that an order could be made against the company. With respect to Mrs Floyd, he argued before the judge that her only claim in the action was for the sum of £1,002 in respect of the dividend.

Miss Lonsdale seeks to uphold the judge’s decision. The litigation was brought by the three appellants jointly. The company was known to have contributed £100,000 to the appellants’ costs. There was also evidence that Mr and Mrs Floyd had also funded the litigation with monies belonging to the discretionary trust set up to shelter the proceeds of sale of The Farthings.

Miss Lonsdale submits that the Floyds could not have paid the tax on time and that the onus was on them to prove that they could have done so. The judge in effect reversed the burden of proof by holding that Fairhursts were liable to pay one half of the interest on the outstanding tax which the appellants had to pay to the Inland Revenue (net of the interest which the appellants could have earned on the unpaid tax). The respondents’ accountancy expert, Mr David Butterworth, had given evidence that the appellants had not had sufficient funds to pay the tax on time. The Floyds produced no evidence of any available capital in the relevant years. At the time, Mr Floyd had borrowed heavily to buy his own share of the BTC land and Mr Leech’s partnership share. The company had also borrowed to fund its purchase of the land. From 1986 onwards, Mr and Mrs Floyd’s available capital was modest relative to the tax liabilities in issue. The company needed its cash for working capital. Mr Floyd relied on his bank balances as showing he could have paid the tax on time, but this was not satisfactory proof of his ability to pay his tax liabilities on time.

The judge rejected Miss Lonsdale’s submissions, holding that the case for saying that the appellants could not have funded their tax liabilities “was not made out to my satisfaction”. This amounted to a reversal of the burden of proof. It was for the claimants to show that they could have paid the tax on time.

Miss Lonsdale submits that the judge should have taken account of the tax advantages in the settlement with the Revenue which Mr and Mrs Floyd obtained. The tax which ought to have been paid on Mr Leech’s share of the partnership tax should be credited to the respondents. Moreover, the appellants saved tax by reason of the generous way in which the Revenue treated the income which Mr Floyd received in the form of storage charges but did not declare as taxable income. Mr Floyd saved tax of £12,807 in this way. The judge refused to disturb the assessment made by the Revenue. However, he disallowed the interest claim on the tax payable on the storage charges to meet the fact that Mr Floyd had the use of his money for three years longer as the storage charge income had been brought into charge to tax in a later period than would otherwise have been the case. After the interest was netted against notional interest that Mr Floyd could have earned on the money and divided by two, the saving was only £1,378.

Issues (i), (ii), (iv) and (vi) involve appeals against the judge’s findings of fact, but the latter are findings of different kinds. Issue (i) ultimately required the judge to form a view as to what Mr Floyd would have done in the hypothetical situation that he had received appropriate advice on CPO relief. Issue (ii) (to the extent that it raises issues of fact) is similar. Issue (iv), on the other hand, required the judge to determine whether the Floyds had made a particular decision, that is, a decision, not made in writing, to pay themselves remuneration in the form of a dividend. This requires an evaluation by the judge of what had actually happened. Issue (vi) required the judge to decide what services Fairhursts had provided which were not for the purposes of the Revenue investigation. The determination of this issue was necessarily likely to be greatly influenced by the contemporaneous documentation.

In those circumstances, I start with some general observations about this court’s approach to findings of fact by a trial judge.

CPR 52.10 and 52.11 provide:

The CPR does not, therefore, purport to set out the circumstances in which an appellate court can set aside findings of fact made by a trial judge. However, the CPR equips the appellate court with all the powers to enable it to do so, and to substitute its own findings, in an appropriate case.

The leading authority on the question when an appellate court can set aside findings of fact made in a lower court is Benmax v Austin Motor Co Ltd [1955] AC 370. The House of Lords drew a distinction between findings of specific fact and findings of fact which are really inferences from specific facts. (Specific facts of this kind are now often called “primary facts”.) The House of Lords held that, in the case of inferences from specific facts, the appellate tribunal will more readily form an independent opinion than in the case of findings of specific facts, particularly when the finding of the specific fact was based on the witness’s credibility. Lord Reid said (at page 376):

Lord Somervell pointed out that, even where the finding turned on a witness’s credibility, it was impossible to lay down an absolute rule because it might be clear from the judge’s judgment that he had failed to take into account some answer or document which plainly affected the accuracy of a witness or the judge’s general conclusion (page 377).

Benmax v Austin thus draws a sharp distinction between two types of finding, namely those of specific fact and those which are really inferences from specific facts. As the recent decisions of this court show, the situation is more complex than that. Findings of fact range over a spectrum, with findings of fact based exclusively on advantages which the trial judge alone had, at one end, and other findings of fact, including inferences of fact, at the other end.

In Assicurazioni Generali SPA v Arab Insurance Group [2003] 1 WLR 577, Clarke LJ held:-

Mr Bartley Jones seeks to drive a wedge between the judgment of Clarke LJ cited above and the passage which Clarke LJ cites from the judgment of Mance LJ in Todd’s case. He characterises the latter as evidence of a more “activist” approach to intervention by an appellate court in a trial judge’s findings of fact. The purpose for which the passage is cited by Clarke LJ is that it recognises that there is a subset of findings of fact where the appellate court is reluctant to interfere. Those are cases where the findings of fact are based on the reliability or credibility of oral evidence. Both judgments are in accord on that point.

Cases where an appellate court needs to exercise caution before interfering with a trial judge’s factual findings are not confined to those where the factual finding turned on the credibility or reliability of oral evidence. As Lord Hoffmann said in Biogen v Medeva plc [1997] RPC 1, 45:

Therefore, in determining whether a factual finding is of a type which an appellate court should only set aside with reluctance, it is relevant to ascertain whether the finding was based on the judge’s findings as to the credibility or reliability of a witness’s oral evidence and also whether the finding is in truth a complex evaluation of a number of factors which the judge would have made based on his perception of the case over the course of the trial and necessarily not fully expressed in his reasons for the finding in his judgment. I would add that in many cases the identification of factual findings of this subtle type is almost an instinctive process to the appellate court, and it finds its expression in the commonplace formula that the trial judge was, or was not, entitled to reach a particular conclusion.

The above discussion leads to the question of the standard of review to be applied to the trial judge’s factual findings. As Mance LJ points out in Todd’s case, the basic standard is the correctness standard. The appellate court is bound to reach a view as to whether the decision of the lower court is “wrong” (CPR 52.11(3)(a)). However, the correctness standard cannot apply simpliciter where the factual finding is based on the credibility or reliability of oral evidence or involves the more complex evaluation to which Lord Hoffmann refers in Biogen v Medeva plc. Furthermore, findings of that type are likely also to be on a spectrum ranging from findings based exclusively on the judge’s determination of a conflict of oral evidence at one end to findings involving an evaluation which the appellate court can sensibly review at the other end. Hoffmann LJ gave valuable guidance on this problem in Re Grayan Ltd [1995] Ch.241, 254-255:

In Bessant’s case, Robert Walker LJ summarised the matter in this way at paragraph 26:-

In some cases, therefore, the appropriate standard to be applied is that indicated by Clarke LJ in paragraph 16 of his judgment in the Assicurazioni case, namely did the judge’s finding go beyond the margin within which judges can legitimately differ? In the same case, Ward LJ borrowing a concept used by the European Court of Human Rights, referred to the trial judge’s “margin of appreciation”.

I now turn to the various factual findings of the judge challenged in this case. They are instructive as they show some of the variety of different findings of fact which an appellate court can be called on to consider. The question whether the Floyds made a decision before the end of the company’s financial year, to pay remuneration to themselves out of the company’s 1989 profits in the form of a dividend rather than bonuses, and communicated that decision to Fairhursts (issue (iv)), is at the end of the spectrum of factual findings where the trial judge must be accorded a “margin of appreciation” (per Ward LJ). This question turned largely on the oral evidence of Mr Floyd, whom the judge did not consider to be a satisfactory witness for the reasons he gave. It would not, therefore, be right for this court to interfere unless the appellant can show that the judge was plainly wrong. The same approach can in my view be taken to the question whether the judge should have found that the appellants were liable for the sum of £12,943 in respect of Fairhursts’ fees (issue (vi)). The judge had documentary evidence which supported his conclusion. To that extent this issue differs from that concerning the decision to pay a dividend. But we have not seen and were not invited to consider that documentation and the appellants made no challenge to the respondents’ submission that the documentation would have provided assurance to the judge in his conclusion. The contentious issue was whether the judge could make his factual finding on the basis of oral and other indirect evidence alone, and seen from that perspective, it seems to me that the standard of review for this finding must be similar to that applied to issue (iv).

The more complex situation is the factual finding in issue (i). To reach his conclusion on that hypothetical matter, the judge had to build up a model of Mr Floyd, identifying his individual characteristics: his strengths and weaknesses, knowledge, experience, proclivities, temperament and so on. The judge then had to ask what, hypothetically, a person, with all those characteristics, would have done if given advice that he could, by reinvesting the compensation he received appropriately, defer a tax bill of £156,560. This is a complicated question as it involves keeping in mind the particular characteristics of Mr Floyd, and all the other relevant considerations, such as other options open to him, the prospects for reinvestment, the extent of the advantage offered to a man in his financial position of deferring tax on this basis, any risk attached to this sort of investment of which he would have been aware and so on. In my judgment, there are a number of factors in this case which push this situation into that sphere where the appellate court should exercise reluctance to intervene. First, the evaluation had fundamentally to be based, in this case, on the judge’s evaluation of Mr Floyd’s oral evidence as there were no contemporaneous documents indicating what he would have done. Second, the standard is not that of a hypothetical person with no special characteristics, but that of a hypothetical person with Mr Floyd’s characteristics. Third, the choice between PPR relief and CPO relief was a finely balanced one. The choice Mr Floyd would have made would depend between them on the extent to which he personally would give their advantages and disadvantages priority. The subjective elements in this complex evaluation mean that the trial judge had an advantage by hearing the oral evidence in this case which this court does not have. Accordingly, in my judgment, we should be reluctant to intervene. Nonetheless, we have an obligation to intervene if we are satisfied that the judge is plainly wrong or if it is clear that the reasons he gave are materially deficient or if he failed to take account of a significant and relevant factor.

Issue (ii) is a mixed question of fact and law. The judge had to decide how likely it was that the liability to pay the tax deferred by taking CPO relief would crystallise. The judge had to ask himself, having heard the evidence, how likely it was that Mr Floyd would decide in the future to cease to be invested in property (other than his own dwelling house). Again, that determination would largely turn on the complex picture of Mr Floyd which the judge would have built up over the full course of the trial, and this court should thus exercise restraint in differing from him.

With that introduction, I turn to the individual issues which arise on this appeal.

The company owned 1.06 acres of the site compulsorily purchased, and Mr Floyd 0.9 acres. The compensation paid by Salford for the land was apportioned as to £127,200 to the company and as to £108,000 to Mr Floyd. However, the overall compensation package favoured Mr Floyd, and this was the result of a change in the arrangements made at a late stage in the negotiations. By letter dated 11 February 1991, Mr King of Dunlop Heywood, the surveyors acting on behalf of Mr Floyd and the company in the negotiations with Salford, informed Ridgway Greenall & Co, the appellants’ solicitors, that it had been agreed that the company would receive £512,000 and Mr Floyd £388,000. The ultimate apportionment, however, was £341,692.50 to the company and £558,307.50 to Mr Floyd. The appellants provided no explanation for this apportionment and in evidence Mr Floyd accepted that he had not told Mr King, the surveyor acting for him in the negotiations with Salford, that the company could shelter the gain on disposal.

In my judgment, the judge approached issue (i) in a logical and methodical way. He took the evidence of Mr Floyd as his starting point and then tested it by reference to various objective factors which could be expected to throw light on the reliability of his evidence. He took into account the merits and demerits of a decision to take CPO relief. There were three main factors which led the judge to his conclusion on this issue: Mr Floyd’s failure to follow up the initial advice and his allowing the compensation negotiations to place the larger gains with himself ([A]), the failure to change course in October 1993 and to seek an extension of time for claiming CPO relief ([B]), and his preference for flexibility ([C]). The judge, however, looked at the matter in the round because he says at the start of his conclusion: “Taking the evidence as a whole ...”. Although the judge does not refer to it, the evidence of Mr Smethurst, Fairhursts’ tax partner, was that when he gave advice to Mr Floyd prior to the acquisition of Westage Farm, his impression was that Mr Floyd was not interested in rollover relief, and had other plans for investing the compensation money.

Mr Bartley Jones challenges each of the main supports for the judge’s conclusion. On the first point, it is, in my judgment, obscure how the compensation came to be allocated as it was. The judge did not say more than that Mr Floyd allowed the compensation to be apportioned in a particular way. Given that Mr Floyd did not advise his surveyor, Mr King, that the company could obtain CPO relief, there must be some force in the judge’s point that for Mr Floyd to allow the compensation proceeds to be apportioned without raising this point, if it was of concern to him, is an indication that it was not really a concern to him. Moreover, there is no good explanation for Mr Floyd’s failure to consider changing course in October 1993. It was undoubtedly open to him to seek an extension of time. He would have to have sold Westage Farm, but he was going to do that in any event. The only difference would be that he could not claim PPR relief on the proceeds, and then seek to claim CPO relief by investing them in other property. In all the circumstances it was, in my judgment, open to the judge to conclude that Mr Floyd’s preference would have been for a tax-free gain yielding proceeds which he was free to invest as he saw fit. I do not consider that Mr Bartley Jones has been able to show that the judge’s conclusion was plainly wrong or that he omitted to take into account some significant and relevant matter.

There is a sub-issue as to whether Mr Floyd could, in fact, have found a suitable property in which to reinvest for the purposes of CPO relief. Mr Floyd’s evidence at trial was that he would only have considered a substitute property within a radius of 10 to 14 miles from Warrington. There was no evidence that any such property was available. The appellants’ original expert evidence did not deal with this question. Prior to the trial, the appellants had sought leave to adduce further expert evidence which they considered was directed to this issue, but leave was opposed by the respondents and refused by District Judge Beattie. The appellants appealed this ruling but at the end of a lengthy hearing before HHJ McGonigal they withdrew their appeal. The appellants took the view that the respondents would not take any point on the availability of substitute properties. Miss Lonsdale denies that she made any such concession. Having considered the transcript of the hearing before HHJ McGonigal in full, what appears to have taken place was this. The judge suggested that the trial judge could infer the availability of a substitute property from relevant property indices already in evidence (supplemented by evidence as to their compilation). Miss Lonsdale accepted that this was a possible outcome if the only issue was whether Mr Floyd could have bought a substitute property somewhere in the UK. However, Miss Lonsdale clearly laid down a marker that there was a complete gap in Mr Floyd’s evidence at that stage as to what he would actually have done if advised as to the possibility of CPO relief, and that the property indices in evidence would not fill that gap in the evidence if the issue turned out to be whether he would have purchased a property only within a particular area. HHJ McGonigal understandably did not envisage this possibility as there was no evidence at all on this point from Mr Floyd at this stage. In those circumstances, I am satisfied that the respondents were fully entitled to take the point at the trial that there was no evidence as to the availability of substitute properties. Accordingly, I reject Mr Bartley Jones’ submission that by reason of the stance taken by Miss Lonsdale at the hearing before HHJ McGonigal the appellants were prevented from adducing evidence on this issue. The question would then have arisen whether the availability of substitute property in the relevant area could be inferred from other evidence. As this issue does not, in my judgment, arise, I need not deal with it. However, there is considerable force in Mr Bartley Jones’ point that the judge proceeded to determine the damages payable in case he was wrong on issue (i), and that in so doing the judge by implication accepted that there were suitable substitute properties available for purchase.

In view of my judgment on issue (i), this point does not arise for decision. The judge applied the discount “having regard to all the factors, on the facts of this case”. It would have been helpful if the judge had spelt out those factors which he regarded as material, but no point has been taken on that. The size of the discount would be conditioned by such matters as to whether Mr Floyd would want to invest the money in another business which would not qualify for CPO relief. None of the points made by Mr Bartley Jones leads to the conclusion that the 25% discount was not one which the judge could reasonably decide on.

Again, this issue does not arise for decision but, as it has been argued, I will deal with it.

Mr Floyd can have no complaint that the judge failed to hold that he should make any award of damages to compensate for the loss of capital appreciation and income stream on the property that he could have purchased in order to take CPO relief. The appellants accepted at trial that these matters could be adequately compensated for by an award of interest.

In my judgment, the judge was correct to require the tax savings made both on Westgate Farm and The Farthings to be brought into account. Mr Floyd could not have made those tax savings if he had elected for CPO relief, and hence he would recover more than his loss if those tax savings were not brought into account. I am not persuaded that The Farthings should be left out of account because it was vested in a discretionary trust. Mr and Mrs Floyd disposed of it voluntarily, and moreover did so on the basis that the capital could be returned to them. They can be added as beneficiaries at any time. That might result in a breach of trust, but even that is not wholly clear. Nor is it clear that anyone could complain about it.

Mr Bartley Jones made submissions about interest, but in the circumstances it is not necessary for me to deal with them.

I have already expressed the view that an appellate court should be reluctant to interfere with a finding of this nature. Nothing that has been suggested shows that it is plainly wrong. On the contrary, it is supported by the Floyds’ approval of, and signature to, the 1989 accounts of the company. I would, therefore, dismiss the appeal on this issue.

This point does not now arise, but, as it involves an important point of law and has been fully argued, I will deal with it.

The judge netted the loss to the two shareholders against the gain to the company resulting from the payment of the directors’ remuneration of £70,000 as bonuses rather than as dividend. As the decision to pay this sum was taken by all three appellants (the Floyds being the sole directors of the company), and the Floyds stand to gain by the company’s gain, the judge’s conclusion accords with common sense and fairness.

Mr Bartley Jones’ submission is that the judge’s approach offends fundamental principles of company law. The company is a separate entity in law, and therefore the claim of the two individual appellants should not be affected by the gain the company happened to make. For my part, I do not consider that the judge’s approach is offensive to such basic principles.

It is now well established that a shareholder may not bring proceedings to recover loss which is merely reflective of loss suffered by his company. This is so even if he can establish that he has a cause of action separate from the company: see Johnson v Gore Wood [2002] 2 AC 1. An obvious example of reflective loss arises where a professional adviser gives negligent advice to a company and a shareholder, as a result of which both suffer loss. If the shareholder’s loss takes the form of dividends he would otherwise have expected to receive from the company, that is reflective loss which he cannot recover from the professional adviser. This principle applies where the shareholder is effectively the sole shareholder of the company: Humberclyde Finance Group Ltd v Hicks [2002] AER (D) 202. It may not apply in other cases.

The judge’s approach is really an application of the principle of reflective loss by analogy. Just as a shareholder cannot recover for loss he suffers which merely reflects loss which the company also suffers, so too he must give credit for a gain which the company achieved as a result of the negligence on which he sues.

One of the reasons for the principle of reflective loss is to ensure that the wrongdoer is not made liable twice for the same damage. The application of the principle of reflective loss by analogy in this case is likewise to ensure that the wrongdoer is not made liable for more than the loss he has actually caused. It is sufficient for the purposes of this case to proceed on the basis that the principle applies only where the shareholder is effectively the sole shareholder of the company in question, as the Floyds are here. But, if the principle extends more widely, other shareholders of the company would not be prejudiced as the company retains the gain it has made. For the same reason, creditors of the company are not prejudiced.

Again, the question of the amount for which the appellants were liable to Fairhursts for their fees was a question of fact for the judge. He did not have Fairhursts’ time sheets but he had other evidence as to the services supplied. In my judgment, his decision to accept the apportionment which Fairhursts had made before the time sheets were lost cannot be said to have been plainly wrong. Accordingly, I would dismiss the appeal on this point

Mr Bartley Jones has not given any reason for his submission that the date fixed by the judge for the accrual of interest was wrong or that the rate was excessive, and accordingly, I see no reason to interfere with the judge’s decision on these points.

To succeed on this aspect of the appeal, Mr Bartley Jones must show that, in the exercise of his discretion as to costs, the judge erred in principle in making Mrs Floyd jointly and severally liable with Mr Floyd and the company for the costs of the action. Mrs Floyd’s claim was, as Mr Bartley Jones points out, limited to the loss in consequence of the alleged failure of Fairhursts to cause the company to pay a dividend. The judge did not give reasons for his decision to make an order against Mrs Floyd. However, in her submissions on costs, Miss Lonsdale made the following points: that the respondents would not know until they sought to enforce any costs order whether or not Mr and Mrs Floyd held their assets in joint names, that Mrs Floyd was a director of the company “so it is all family money really” and that, “if this claim had succeeded, Mrs Floyd would have benefited through the company and through Mr Floyd.”

The final submission of Miss Lonsdale summarised above follows from evidence which Mr Floyd gave in the course of the trial. He told the judge that he and his wife owned all their assets jointly, including their bank accounts and their homes. In essence, therefore, the claimants’ case was that there was an identity between the financial interests of Mr and Mrs Floyd. In addition, there was evidence that Mr and Mrs Floyd, as trustees of the discretionary trust, had made a loan of £100,000 for the purpose of funding the legal costs of this litigation.

In my judgment, while Mrs Floyd’s claims did not overlap with those of Mr Floyd save in the minor respect mentioned above, she stood to benefit from success on all the issues in the action, as Miss Lonsdale submits. It cannot be said that her role in assisting in the provision of finance for the litigation was simply that of a disinterested observer. She had participated in funding the litigation as a person who stood to benefit substantially therefrom. In those circumstances, I consider that the judge was entitled to take the view that she should be jointly and severally liable with Mr Floyd and the company for the costs of the action.

It is a separate point whether, if no order had been made against Mrs Floyd, this would leave open the possibility that Mr Floyd might transfer assets to Mrs Floyd and avoid payment of the costs ordered to be paid to the respondents. In my view this factor would not of itself be enough to justify an order against Mrs Floyd. If the respondents were unable to recover their costs for this reason, there would be other remedies open to them, including section 423 of the Insolvency Act 1986 (transactions defrauding creditors). However, the real reason, as it seems to me, why the judge made an order against Mrs Floyd was the final submission Miss Lonsdale made. On Mr Floyd’s evidence, Mrs Floyd stood to benefit from 50% of any damages awarded in the action. In addition, she stood to benefit as a 50% shareholder in the company.

Accordingly, I would dismiss the appeal on this point.

In my judgment, the judge was entitled to reach the conclusion that it was not shown that the appellants could not have paid their tax on time. The onus was on the appellants to prove their loss, i.e. that, because they were not properly advised, they failed to submit their accounts to the Revenue and pay their tax on time, and so incurred interest and penalties. They discharged the evidential burden on them by producing an analysis of their funds in bank accounts which showed that the tax due on each date between 1 January 1985 and 1 January 1991 could have been paid out of the appellants’ bank balances on that date. The respondents sought to adjust figures for further liabilities, principally tax liabilities, but some of those liabilities do not appear to have been liabilities which were payable by virtue of the terms of the Revenue settlement. In my view, these were correctly left out of account (see cross-appeal issue (b)). The respondents also pointed out that the bank balances would have been needed for other purposes: the amounts, however, involved were not quantified, and the table did not deal with the loans and other facilities on which the appellants could draw. The company, for instance, had the benefit of a business development loan of £100,000. The respondents also referred to the fact that the appellants had obtained the sum of £100,000 for which there was no explanation. However, this did not result in any tax liability. There was no evidence that the £100,000 represented a liability. Moreover, there was no cash flow statement: bank balances were simply shown on given dates. Not all the respondents’ criticisms of the appellants’ table were put to the appellants’ expert witness who produced it. In all the circumstances, the judge was, in my judgment, entitled to decide that the respondents’ challenge failed and that the appellants had discharged the onus on them.

It is highly regrettable that Mr Floyd told an untruth to the Revenue about his liability for Mr Leech’s share of the partnership tax, but there is no principled basis for giving the respondents the benefit of his misdeed in this respect. The respondents were held liable to Mr Floyd for one-half of the interest and penalties he incurred to the Revenue because tax was paid late. The amount on which interest is calculated does not include any amount in respect of which Mr Floyd was not himself taxed. In my judgment, the proper impact of Mr Floyd not being liable in respect of Mr Leech’s share of partnership tax and having saved tax in respect of the storage charges was, so far as the respondents are concerned, to reduce the amount on which interest is calculated. The judge went further in relation to the storage charges by bringing into account the gain which Mr Floyd made through having the money he ought to have paid to the Revenue longer than he would have had if he had paid his tax on time. The line which the judge was drawing was a fine one, but in my judgment, his treatment of storage charges was not inconsistent. To have required the £12,807 to be brought into account, the judge would have to have held that a further sum was due, even though the Revenue had decided it was not due. In my judgment, it would have been unjust to Mr Floyd so to have held. But, as respects the timing of the tax liabilities, the judge could see that Mr Floyd (perhaps through the negotiating skill of his advisers) had obtained a benefit which he could fairly be required to be brought into account.

For the reasons given above, I would dismiss the appeal and the cross-appeal.

I agree.

I also agree.