CH-2025-000012 and CH-2025-000014 - [2025] EWHC 2697 (Ch)

At paragraph 75 of the Judgment, the Judge dealt with the Car Storage Issue the subject matter of Ground 4 as follows:

“I do not believe it is disputed that a number of Mr Gold’s cars were kept on Mr Daniel’s properties over a number of years. He says that he agreed with Mrs Gold in September 2019 that he could retrospectively charge for storage of those vehicles and then dispose of them a month later. The Golds submit that Mrs Gold was not acting as her husband’s agent, and in any event past consideration is no consideration. DFH/Mr Daniel submits that there was fresh consideration in the expenditure required to dispose of the vehicles. The difficulty with that is that there is no claim for any such expenditure, there is no evidence that there was any cost of disposal and I take judicial notice of the fact that cars generally have a scrappage value such that it is perfectly possible that they could have been collected at no cost, or indeed for a payment of scrap value, so any such expenditure is not self-proving. I reject this claim for those reasons.”

It is apparent therefrom that the Judge did not determine the issue as to whether any agreement as between Mr Daniel and Mrs Gold was ever concluded, or as to whether Mrs Gold had authority to act in Mr Gold’s behalf, issues in respect of which, so I was informed, the relevant witnesses were cross-examined at trial. The Judge decided the question by concluding that there was insufficient evidence to support there having been fresh consideration for the alleged agreement on the basis that there was no evidence as to the expenditure or detriment suffered or to be suffered by Mr Daniel or DFH in performing their obligations under the relevant agreement.

Mr Thakerar’s essential complaint is that the Judge incorrectly analysed how consideration might have operated in respect of the relevant agreement, and that she failed to have regard to:

It is submitted that even if Mr Daniel or DFH did not incur financial expenditure, he had arranged for the collection and disposal of the vehicles, after the agreement with Mrs Gold, acting on behalf of herself and Mr Gold, had been entered into. Consideration was therefore provided which was sufficient to support an agreement under which Mrs Gold agreed that storage charges would be paid for past storage.

I consider that Mr Thakerar is correct in the submissions of law that he makes as referred to in paragraph 51 above. However, I consider that his difficulty is that evidence as to whether any real benefit was conferred on Mr and/or Mrs Gold by the agreement allegedly concluded is just as lacking as is evidence of detriment suffered by Mr Daniel/DFH. On this basis, even if the Judge erred in failing to consider the question of consideration by reference to the benefit to Mr and/or Mrs Gold conferred by the alleged agreement, I consider that she would have come to the same conclusion because there is no cogent evidence that the benefit alleged to have been conferred did, in fact, benefit Mr and/or Mrs Gold in any real or tangible way.

Had I found in Mr Daniel’s/DFH’s favour contrary to my finding above on this consideration issue, this would not have resolved the Car Storage Issue as a whole because there has been no determination of the factual questions as to whether the agreement was ever concluded, and whether Mrs Gold had authority to act on behalf of Mr Gold. I have power pursuant to CPR 52.20(2)(b) to refer these questions back to the Judge, but this would not, I consider, be a satisfactory way to proceed given that the trial took place over a year ago.

The wording of CPR 52.20(2)(b) supports my having a discretion in the matter of reference back to the Judge. It would not, I consider, be right for me to determine these factual questions myself without having heard the witnesses in relation thereto. However, in considering how my discretion might be exercised, I do consider it appropriate to consider the prospects of the Judge concluding that the alleged agreement was concluded if the matter were to be referred back to her. So far as this is concerned, it is significant that the Judge held that Mr Daniel was not a witnesses whose evidence she would be inclined to accept unless supported by other evidence. Whilst the Judge was very critical of Mr Gold, that criticism did not extend to Mrs Gold as such. There is no documentary evidence to support the alleged oral agreement. In these circumstances, I regarded it as somewhat unlikely that, if the matter were referred back to the Judge, she would find that Mr Daniel/DFH had satisfied the burden on them proving the alleged agreement. In the circumstances, had it been necessary for me to do so, I would, in any event, have exercised my discretion against referring the matter back to the Judge.

For the above reasons, I dismiss Ground 4 of the appeal.