Younger v Lansdowne Tutors Ltd

Mr Adrian Davies comes before me today to renew -- as is his client’s right -- an application for permission to appeal which was refused on sight of the papers by Sir Paul Kennedy. The case is not possible to summarise in short form, and I can do no better than Mr Davies has done, which is refer to the decision at first instance of Simon J against which it is now sought to appeal. It is reported at [2006] EWHC 1647 (QB) and it sets out the somewhat complicated history which brought the judge to the determination of three crucial sets of issues. The first was whether the Finder’s Fee Agreement upon which everything hinged had been agreed in final form between the parties at all. The second was whether for various legal reasons, if the agreement had been finalised, Lansdowne -- the defendants -- were even so entitled to refuse to pay. The third was, if they were not so entitled, what loss if any had been suffered by the claimant and present applicant, Mr Younger.

The judge determined that on the evidence then before him he was not satisfied that the agreement had ever been finally entered into in written form between the parties. He went on to determine as a separate question whether, if it had been entered into, there was any recoverable loss beyond nominal damages available to Mr Younger for the breach. He decided that there was none. He lastly determined the intermediate question whether there would have been any reason, if he had found otherwise than he had on the first question, for Lansdowne to refuse to pay, and decided, wholly in Mr Younger’s favour, that there would not have been.

The finding on the first issue -- which was of course capable of being and in the event was determinative of the litigation -- is one that is damaging to Mr Younger, because while he is not held by the judgment to be guilty of fraud or malpractice, the basis of the decision was the casting of a shadow on his reliability by various elements of the case -- particularly the documentation -- as it then stood before him. I am going to take this shortly but I hope it will be of assistance to Mr Younger.

Since the trial and judgment Mr Younger has tracked down, in circumstances which demonstrate on the face of them that their evidence could not have been secured by diligence any sooner, two crucial witnesses to his case, namely Mr and Mrs McDougall, each of whom, in witness statements now before me, is able to testify from an apparently wholly disinterested standpoint to the execution of the Finder’s Fee Agreement which Mr Templeton -- of the defendants -- for his part denied was ever entered into, although he admits that it was taken to the brink of execution.

I cannot try this issue out, for it is not my job to do so, but it is, I think, legitimate for me to say that taking this evidence as it stands before me, Mr Davies is fully entitled to submit that the judge, had he had it before him, might very well not have come to the adverse conclusion he did about Mr Younger’s reliability in relation to the execution of the Finder’s Fee Agreement. I propose anyway to proceed on this application on the footing that if this were all that was for consideration before me, I would accept that there was a realistic prospect of an appeal succeeding.

The problem Mr Davies in my judgment faces is that it is, however, not the only material that would be before the full court. What the full court would also be looking at is the judge’s adverse finding on the quite separate question whether, assuming everything else in Mr Younger’s favour, there was any proven loss. He held there was not. The basis, again, is spelt out in his judgment and is more complex than will bear any attempt by me to summarise it. What it turned on in the end was the preference formed by the judge for the expert evidence called by the defendants over that called by the claimants.

Mr Younger is now in a position to call expert evidence freshly obtained by him at the end of 2006 which, if admitted and accepted, would go behind the evidence of both experts called at trial and provide a fresh foundation for the damages claimed. Arithmetically it would get over the difficulty found by the judge to the effect that, netted off, there was no recoverable loss. What Mr Davies submits about this part of the case is that, first of all, it is strictly obiter since the case went off on the judge’s finding that the agreement had never been executed. I am afraid that I do not accept this analysis. Far from being strictly obiter it is in my judgment strictly not obiter. It is an alternative ratio decidendi of the case.

If that is so -- as I hold it is -- then Mr Davies says nevertheless that there is a realistic prospect that this court, in reopening the question of the Finder’s Fee Agreement and its execution, would be prepared to reopen the entirety of the case, including, he accepts, the issues that were found in his favour but also, he asserts, the issue that was found against him of a zero quantum of loss.

It appears to me, for the reason that I have already given, that there is no realistic prospect that the court would do this. It might very well accept that there were grounds for reopening the Finder’s Fee Agreement issue and the question of execution but I can see no reason why the court should be prepared to take away from the defendants their judgment on the alternative ground that even assuming the entry into the Finder’s Fee Agreement, there was no recoverable loss on the evidence then before the judge. It would not be consistent with legal principle, in my view, to allow the potential undoing of the decision on the first issue to undo the separate finding of the court on the second, so as to allow the whole question of loss or no loss to be re-litigated, and on evidence which ex hypothesi was not before the trial judge but is only available and only admissible because the Finder’s Fee Agreement issue has separately been unravelled.

The result is that I cannot properly grant permission to appeal, since there is no way in which the court would consider letting the damages question be re-litigated.

I want, however, to say two things which I hope will be some comfort to Mr Younger. One is that with these new witness statements in his hand I think he can hold his head up. I say no more than that, but I do not think that the judgment should be regarded by anybody as now casting a shadow upon his honesty. The other is this: if I were to give permission to appeal, Mr Davies realistically accepts that both the costs in the court below and the costs of the appeal, were he to succeed in getting a new trial, would become costs in the new trial. The burden of costs is already crippling, and to treble it as such an order would do would be a colossal burden of risk to place upon Mr Younger.

One of the functions of the application for permission to appeal in this court is to prevent the court from having to devote its resources to appeals that have no realistic prospect of success. But another and perhaps more important one is to relieve potential appellants of the unacceptable costs risk that they will face if they are allowed to go ahead with a doomed appeal. Here the costs risk is exaggerated by the logic of the case in the way that I have described and that Mr Davies accepts. No litigant would thank this court for letting him or her go headlong into a contested appeal, the only result of which could be either that he loses it or that it goes on to a fresh trial with all the costs again at stake, if there is in reality -- as there is in my judgment -- no realistic prospect of the appeal succeeding.

The order that I propose to make, which is that permission to appeal be refused, is therefore, as I hope Mr Younger will understand and accept, one which protects him from a risk which in my judgment would be unacceptable to any ordinary person gauging the use of their assets, but in addition has the result that it does not necessarily keep in place the adverse decision on Mr Younger’s reliability, given the fresh evidence that he has been able to advance to this court. I hope he feels in the circumstances that he has gained something from coming to court today; but I am afraid that it is not a case that can properly be allowed to go on to a full appeal.