get your facts straight Part 2: Rick & Bruce's betrayal (the Dummies themselves)

D

dove from above

Guest
Let's start with the fact that the 40/40/10/10 split was as much Johnny's decision as it was Morrissey's, they BOTH felt that that was fair. No one ever says that Johnny was a greedy bastard, and by all accounts he is not, people who know him and work with him always say that he's very fair when it comes to financial matters.

In the run up to the trial, Mike and Andy led the public to believe that they had no idea that they weren't getting an equal share, making it sound like Morrissey and Johnny had ripped them off. However, both Mike and Andy have said, since the case was settled, that they were told when they were in the Smiths that they weren't getting the same money as Johnny and Morrissey, and they did not object at the time. Clearly in retrospect they weren't happy with it, but they accepted it. They were also sent accounts while they were in the Smiths that clearly showed the splits, but apparently never bothered to look at them. This does not fit with the way all of this was reported in the press, as if they thought they were getting the same and there was some big cover-up on Moz and Johnny's behalf. They knew they weren't getting an equal share, and they did not object until after the Smiths split up. They were not lied to and deceived by Moz and Marr.

Now whether or not they should have received the same money is another matter. There are many valid reasons why they wouldn't, for instance, Johnny and Moz pretty much managed the band, normally a manager receives 20% of the band's income. Also, Johnny and Morrissey produced or co-produced the albums. They (well primarily Moz) did all the press (there was a lot). They did a hell of a lot more work than the other two, in addition to the obvious fact that they wrote all the songs. They made all the decisions, they worked their asses off, they had to deal with all the shit and hassle. I loved what Andy and Mike added musically and image-wise, but at the end of the day, they made no bigger contribution and did no more work than session players would have.

But obviously my own opinion doesn't matter, what matters is that if they weren't happy with it, the time to address it was when it was originally brought up, and while the Smiths were still going. If they felt so strongly they were worth more than that, they could have threatened to leave. If Johnny and Moz thought they weren't worth more, they could have let them go and got new people in. Mike and Andy accepted it and kept quiet because they wanted to be in the Smiths more than they wanted more money; they didn't want to jeopardise their positions in the band. Then when the band split up and they had nothing to lose, they decided to try to go back and get more money, and that's devious and sneaky and unfair. Also, if they had insisted on an equal split at the time, then Moz and Johnny could have asked to be paid for managing the band, and producing - both things that the band would have had to pay someone a lot of money to do. Now the only way they could get money for that would be to sue Andy and Mike.

What Mike and Andy did was unfair; whether or not they think they got a raw deal in the first place, it's a dirty trick to agree to something and then sue when it's all come to an end.

Now on to Part 3.
 
W

wupermacki

Guest
All this bullsh*t,

And all I want is The Smiths to play together again.

Excellent points, by the way, about Mike and Andy. Though, I highly doubt that Andy and Mike had nothing more to contribute to the production of the music than anyone else would have, I have to say, when I put my biased views aside, I think it's pretty obvious that Andy and Mike knew the situation while they were with The Smiths, and didn't like it, and once the ship went down, they said, "Screw it, let's get what we can."

Of course, there's more to it than that. But, heck, if you agree to a contract, then you agree to a contract. As sh*tty as it may be, unless you are a minor or under the influence, once you sign something, it's your resposibility to abide by it.

I say that a record company invests in The Smiths. Give Andy and Mike the money they seek (thereby dropping the courtcase and letting Morrisey/Marr recieve their orignal amounts of money), this way, everyone is happy, The Smiths are back together, and ALL Morrisey fans are happy once again.
 
D

dove from above

Guest
Sorry I should have made it clear that unfortunately there was never a written contract, if there had been, things might well have gone differently in court.
 
M

Mindy

Guest
a smiths reunion tour would be undeniably cool, but im not so sure id like to see them get back together in earnest and record new material. things change, you know? besides, sensible people realise that such a reunion will probably never happen.
 
D

dove from above

Guest
get your facts straight Part 3: Summing Up

When I first heard about the case, I felt bad for Mike and Andy, and my initial reaction from the misinformation in the press was that they'd been ripped off as it sounded like they'd been tricked. But when I looked into it and understood the facts involved, I realised that that was not the case at all, and I really believe that what they did was wrong.

The one thing that keeps me from being utterly disgusted with what they've done, is that Mike at least still seems to have a soft spot for Moz, he does seem to genuinely like him, so I don't think he did it for revenge. When the money starts to run out, and you look and see your former band mates are very wealthy, it must be easy to become bitter, and to try to convince yourself that you should have more than you do. ("Hey, I was in the Smiths, I shouldn't be living like this. Look at how much Johnny and Morrissey have, that should be me living in the big house with the nice car...", etc.) And it was probably embarrassing because people would have expected ex-Smiths to be loaded, and they weren't. Mike isn't exactly the brain of Britain (and that's being quite kind), and while that's no excuse for what he's done, I think that has to be taken into account when criticising his bad decisions. When everyone around you is telling you that you're right and that you've been ripped off, and there is a huge amount of money at stake, it's probably pretty difficult to be objective about things.

But understanding it doesn't change the fact that they were wrong to do what they did, and he shouldn't have won, it was an absolute travesty of justice. You just can't do business like that, agreeing to something and then trying to get a better deal after the fact.

If I was in Morrissey's position, and brave enough (and wealthy enough of course), I would fight to the bitter end too. I don't think I could sleep at night if I gave in.

I say good luck to him.
 
L

LoafingOaf

Guest
Re: get your facts straight Part 3: Summing Up

> But understanding it doesn't change the fact that they were wrong to do
> what they did, and he shouldn't have won, it was an absolute travesty of
> justice. You just can't do business like that, agreeing to something and
> then trying to get a better deal after the fact.

Dude, I have no idea who's right or wrong in all this shit, but I don't think your postings lived up to their billing. This all just your opinion.
 
D

dove from above

Guest
Well Mr. Oaf, I'm sorry you were disappointed, but there was actually very little opinion in what I said until you get to Part 3. Part 1 is entirely factual, the majority of Part 2 is factual, Part 3 is just my opinion.

FACT:
> Let's start with the fact that the 40/40/10/10 split was as much Johnny's
> decision as it was Morrissey's, they BOTH felt that that was fair. No one
> ever says that Johnny was a greedy bastard, and by all accounts he is not,
> people who know him and work with him always say that he's very fair when
> it comes to financial matters.
FACT:
> In the run up to the trial, Mike and Andy led the public to believe that
> they had no idea that they weren't getting an equal share, making it sound
> like Morrissey and Johnny had ripped them off. However, both Mike and Andy
> have said, since the case was settled, that they were told when they
> were in the Smiths that they weren't getting the same money as Johnny and
> Morrissey, and they did not object at the time. Clearly in retrospect
> they weren't happy with it, but they accepted it. They were also sent
> accounts while they were in the Smiths that clearly showed the splits, but
> apparently never bothered to look at them. This does not fit with the way
> all of this was reported in the press, as if they thought they were
> getting the same and there was some big cover-up on Moz and Johnny's
> behalf. They knew they weren't getting an equal share , and they did not
> object until after the Smiths split up. They were not lied to and deceived
> by Moz and Marr.
FACT:
> Johnny and Moz pretty much managed the band, normally a manager receives
> 20% of the band's income. Also, Johnny and Morrissey produced or
> co-produced the albums. They (well primarily Moz) did all the press (there
> was a lot ). They did a hell of a lot more work than the other two, in
> addition to the obvious fact that they wrote all the songs. They made all
> the decisions, they worked their asses off, they had to deal with all the
> shit and hassle.
OPINION:
>I loved what Andy and Mike added musically and image-wise, but at the end of
>the day, they made no bigger contribution than session players would have
FACT: and did no more work than session players would have. (with the exception
> of photo shoots)
OPINION:
> But obviously my own opinion doesn't matter, what matters is that if they
> weren't happy with it, the time to address it was when it was originally
> brought up, and while the Smiths were still going . If they felt so
> strongly they were worth more than that, they could have threatened to
> leave. If Johnny and Moz thought they weren't worth more, they could have
> let them go and got new people in. Mike and Andy accepted it and kept
> quiet because they wanted to be in the Smiths more than they wanted more
> money; they didn't want to jeopardise their positions in the band . Then
> when the band split up and they had nothing to lose, they decided to try
> to go back and get more money, and that's devious and sneaky and unfair.
FACT:
> Also, if they had insisted on an equal split at the time, then Moz and
> Johnny could have asked to be paid for managing the band, and producing -
> both things that the band would have had to pay someone a lot of money to
> do. Now the only way they could get money for that would be to sue Andy
> and Mike.
OPINION:
> What Mike and Andy did was unfair; whether or not they think they got a
> raw deal in the first place, it's a dirty trick to agree to something and
> then sue when it's all come to an end.

> Now on to Part 3.
 
D

dove from above

Guest
Oops, this was supposed to be in reply to LoafingOaf's comment above
 
H

Hectors Gun

Guest
> if you agree to a contract, then you agree to a contract.

THERE WAS NO CONTRACT!!!!

That is why there were problems!!!!!!

Morrissey wouldn't give them a contract when they asked for it.
 
D

dove from above

Guest
true/true/false

They never asked for a contract. If they had signed a contract it would have been for 10%, not 25%, because that's all Johnny and Morrissey were prepared to give them, and there would have been no court case. If they'd insisted on 25%, they would have been out of the group. (Johnny told them this.) They accepted, because 10% sounded better to them than not being in the Smiths. When they Smiths split up and they had nothing to lose, they decided to try to get more.

I'll say it again: There was no deception on the part of Morrissey and Marr regarding inequal splits. Andy Rourke and Mike Joyce knew they weren't getting 25%, and they did not object while the Smiths were together.
 
P

popopop

Guest
Re: Oops, this was supposed to be in reply to LoafingOaf's comment above

,pmklm;klm;lkm;
 
L

LoafingOaf

Guest
getting the facts straight - Joyce v. Moz

> Well Mr. Oaf, I'm sorry you were disappointed, but there was actually very
> little opinion in what I said until you get to Part 3. Part 1 is entirely
> factual, the majority of Part 2 is factual, Part 3 is just my opinion.

No, sorry dude, all you give was your opinion, and vague references to facts
heavily spun to fit your opinion.

Now I'm a little curious about this case, and since I have access
to WestLaw I'll do a search. I'll post what I find........
 
L

LoafingOaf

Guest
Section 24 of Partnership Act 1890

SWEET & MAXWELL UNITED KINGDOM LAW IN FORCE
PARTNERSHIP ACT 1890 CHAPTER 39
RELATIONS OF PARTNERS TO ONE ANOTHER
UK Statutes Crown Copyright. Reproduced by permission of the
Controller of Her Majesty's Stationery Office.

In-force date: June 1, 1991 (see Analysis Tab for Commencement Information)

s 24 Rules as to interests and duties of partners subject to special agreement.

The interests of partners in the partnership property and their rights and duties in relation to the partnership shall be determined, subject to any agreement express or implied between the partners, by the following rules:--

(1) All the partners are entitled to share equally in the capital and profits of the business, and must contribute equally towards the losses whether of capital or otherwise sustained by the firm.

(2) The firm must indemnify every partner in respect of payments made and personal liabilities incurred by him--

(a) In the ordinary and proper conduct of the business of the firm; or,

(b) In or about anything necessarily done for the preservation of the business or property of the firm.

(3) A partner making, for the purpose of the partnership, any actual payment or advance beyond the amount of capital which he has agreed to subscribe, is entitled to interest at the rate of five per cent. per annum from the date of the payment or advance.

(4) A partner is not entitled, before the ascertainment of profits, to interest on the capital subscribed by him.

(5) Every partner may take part in the management of the partnership business.

(6) No partner shall be entitled to remuneration for acting in the partnership business.

(7) No person may be introduced as a partner without the consent of all existing partners.

(8) Any difference arising as to ordinary matters connected with the partnership business may be decided by a majority of the partners, but no change may be made in the nature of the partnership business without the consent of all existing partners.

(9) The partnership books are to be kept at the place of business of the partnership (or the principal place, if there is more than one), and every partner may, when he thinks fit, have access to and inspect and copy any of them.

Notes:

Act extended by Limited Partnerships Act 1907 (c. 24), s. 7This Act is not necessarily in the form in which it has effect in Northern Ireland

GENERAL MATERIALS

Royal Assent date - Long Title - Notes

UK-LIF ST 1890 c 39 s 24

UK ST 1890 c 39 s 24
END OF DOCUMENT
 
L

LoafingOaf

Guest
Joyce v. Morrissey and Others

*233 Joyce v. Morrissey and Others

Court of Appeal

CA

Peter Gibson, Thorpe and Waller L. JJ.

October 21, 22, November 6, 1998

Partnership -- pop group -- whether any agreement rebutting presumption that partners entitled to equal shares in the profits of the group -- judgment for the plaintiff -- appeal dismissed.

HEADNOTE

The plaintiff, the first and second defendants and R had all been members of a successful pop group which was formed in 1982 and disbanded in 1987. The plaintiff was the drummer, the first defendant was the singer, the second defendant the guitarist and R the bass player. The plaintiff brought proceedings claiming a declaration that he had been a partner in the group entitled to a one-quarter share of all net profits arising out of the activities of the group other than songwriting or publishing and seeking an account on that basis. A trial of preliminary issues was ordered. By the time the preliminary issues were tried it was not disputed that the plaintiff had been a partner, that the partnership had been dissolved and that the affairs of the partnership should be wound up. The only issue remaining was whether the plaintiff was an equal partner entitled to one-quarter of the profits or whether, as the defendants contended, it was a term of the partnership that profits would be shared in the proportions 40 per cent (the first defendant), 40 per cent (the second defendant), 10 per cent (the plaintiff) and 10 per cent (R). The defendants contended that an agreement to that effect was to be inferred from the conduct of the parties including certain discussions alternatively that by reason of the same matters the plaintiff was barred by estoppel by convention from contending to the contrary. The judge held that the plaintiff was an equal partner. The first defendant appealed.

On the appeal the first defendant contended that the judge had unfairly*234 formed a general adverse view of him, that the judge had rejected the various matters relied on because of that adverse view and that the judge had failed to look at the matter overall. In support of this contention the first defendant complained in particular of the judge's description of him as "devious". The first defendant argued that the logical approach was to start with the general background, namely the fact that the first and second defendants had made the greater contribution to the group, and then to consider the two strongest points in his favour, namely accounts sent to the plaintiff in July 1986 which allegedly showed a 40/40/10/10 split, and a conversation between the plaintiff, R and S in May 1987 when the plaintiff had allegedly acquiesced in a statement by R to S that he and the plaintiff received 10 per cent. In the course of argument the first defendant suggested that, even if the partnership had commenced on the basis of equality, there had been a variation to the effect that there would be an unequal distribution without specifying the proportions. The first defendant accepted that if he could not succeed in establishing an agreement the estoppel argument did not add anything.

Held, dismissing the appeal:

1. By virtue of section 24 of the Partnership Act 1890, subject to any express or implied agreement to the contrary, all the partners in a partnership were entitled to share equally in the capital andprofits of the business.

2. The approach contended for by the first defendant on the appeal might have been logical if he could have sustained the case originally made on his pleadings that, because of the extra work and responsibilities undertaken by the first and second defendants, from the outset the partners had accepted and acted on the basis that the split would be 40/40/10, 10, but that case could not be sustained.

3. The fact that one or more partners made a greater contribution than others in no way displaced the presumption of equality contained in section 24.

4. The evidence was overwhelming that, in any event up to July 1985, there had been no agreement between the members of the group rebutting the presumption of equality. The most that could be said was that to begin with there had been an understanding of equality and that later the first defendant wanted to change the equal sharing to a 40/40/10/10 split but that the plaintiff and R were not happy to agree to that change.

5. Unless there was some express agreement or partnership deed between the partners allowing for it, it was not open to one partner to change the shares of the partners unilaterally. Once it was established, as it was in the present case, that the partnership had commenced on*235 the basis of equality, for the first defendant to show that there had been a variation from equality he had to show that the plaintiff had contractually agreed to that variation. For a contractual agreement the terms had to be certain and there had to be consideration. If there was a variation such consideration would normally be provided by an agreement not to terminate the partnership if the new terms were agreed, but it had to be possible to spell out an agreement of that kind before a variation could be established.

6. The suggestion that there had been a variation providing for unequal but unspecified shares was unsustainable. Its very uncertainty would be against it being a binding agreement, but in any event the clearest evidence of such an agreement would be required and there was no such evidence.

7. The judge had been entitled to find that the plaintiff had not studied or understood the accounts sent to him in July 1986. In any event it was impossible to construe the sending of the accounts by the accountant as an offer that the first and second defendants were only prepared to continue on a 40/40/10/10 basis or to construe the plaintiff's silence as an acceptance of that offer.

8. As for the conversation in May 1987, the judge had been entitled to find that R had not said the words attributed to him and that, if he had, the plaintiff had not heard them. In any event it was not a conversation that could have produced a variation since it was not an offer or acceptance. The conversation could have been confirmation that some agreement had already been reached, but no previous agreement had been established.

9. The first defendant's criticims of the judgment were not made out. The judge had looked at the matter overall as well as examining the individual matters relied on. The judge's description of the first defendant as "devious" had related to his demeanour in the witness box and the judge had been entitled to form an adverse view of the first defendant's evidence. It was not correct to suggest that the adverse view the judge had formed had dictated his findings.

10. The judge had been right to conclude that the basis on which the group had commenced their partnership both in fact and as presumed by law was never varied.

Case referred to

Smith New Court Securities Ltd v. Scrimgeour Vickers (Asset Management) Ltd [1997] A.C. 254

Legislation referred to

Partnership Act 1890, ss.24 and 25

*236 Representation

Nigel Davis Q.C. and Edmund Cullen, instructed by Rowlands (Manchester), for the plaintiff (respondent).

Murray Rosen Q.C. and Tim Penny, instructed by Angel & Co., for the defendants (appellants).
 
L

LoafingOaf

Guest
Joyce v. Morrissey Decision - Waller, L.J.

DECISION

Waller L.J.:

Introduction

"The Smiths" were a very successful pop group formed towards the end of 1982. The group was a partnership comprising four members: the plaintiff (Mr Joyce), the first defendant (Mr Morrissey), the second defendant (Mr Marr), and Andy Rourke (Mr Rourke). Mr Rourke was initially a party to the litigation but settled his claim very shortly after the writ was issued. The group disbanded in 1987.

Mr Joyce was the drummer for the group. In March 1989 he issued proceedings claiming a declaration that he was a partner in The Smiths, entitled to one- quarter share of all net profits arising out of the activities (other than songwriting or publishing) of The Smiths. He sought an account on that basis. By order of Deputy Master Price made on July 8, 1993 it was directed that Mr Joyce's entitlement to the relief set out in paragraphs 1-4 of the prayer to his statement of claim be tried as preliminary issues. The trial of those preliminary issues took place between December 2-11, 1996 before His Honour Judge Weeks Q.C. sitting as a judge of the Chancery Division. By the time the issues came to be tried it was not in dispute that Mr Joyce was a partner; it was accepted that the partnership was dissolved as from May 31, 1987 and it was further accepted that the affairs of the partnership should be wound up. The only contentious issue was whether Mr Joyce was an equal partner entitled to one-quarter of the profits arising out of the activities (other than songwriting or publishing) of The Smiths.

It was that issue which the judge, after a seven-day trial, decided in favour of Mr Joyce. At the trial Mr Morrissey and Mr Marr were separately represented. It is only Mr Morrissey who has pursued an appeal against the judge's decision being now represented by Mr Murray Rosen Q.C. and Mr Tim Penny.

It was common ground both before the judge and before us that the*237 starting point was section 24 of the Partnership Act 1890 which provides as follows:

The interests of partners in the partnership property and their rights and duties in relation to the partnership shall be determined, subject to any agreement express or implied between the partners, by the following rules: (a) all the partners are entitled to share equally in the capital and profits of the business, and must contribute equally towards the losses whether of capital or otherwise sustained by the firm ...

It was Mr Joyce's case that apart from the agreement that he should not be entitled to share in the profits resulting from songwriting and publishing there was no other agreement which disentitled him from sharing equally in the capital and profits of the business.

It was the defendants' case that it was a term of the partnership that profits would be shared in the proportions Mr Morrissey 40 per cent, Mr Marr 40 per cent, Mr Joyce 10 per cent and Mr Rourke 10 per cent. They did not assert or seek to establish an express agreement to that effect but alleged that the same was to be inferred from conduct, relying on various matters including certain alleged discussions between the parties. They in the alternative alleged that the same conduct and/or discussions gave rise to an estoppel by convention by which it was alleged that Mr Joyce was estopped from asserting a partnership otherthan one which shared the profits 40 per cent, 40 per cent, 10 per cent and 10 per cent.

The facts relied on by the defendants to support the agreement and the estoppel were in substance the same and the judge held that the estoppel argument added nothing because if, on the facts, there was no agreement, then there could be no common shared assumption on which to found an estoppel. That part of the judgment is not appealed against, and although Mr Rosen referred in his submissions to estoppel, he ultimately accepted that if he did not succeed in establishing an agreement he could not succeed on estoppel. That was a concession in my view he was bound to make.

In his skeleton argument Mr Rosen summarised conveniently in paragraph 9 the matters relied upon by Mr Morrissey and Mr Marr in order to rebut the presumption in section 24 of the 1890 Act.

First, they relied upon a wide range of matters showing that Mr Morrissey and Mr Marr alone controlled the management and organisation of the band and had a far greater contribution and commitment thereto.

Second, Mr Marr alleged that during a recording session at Pluto Studio in or around October 1983, he threatened to leave the band because Mr Morrissey was insisting on a 40/40/10/10 split. Mr Marr*238 alleged that Mr Joyce persuaded him to stay and in the process accepted the stated division.

Third, Mr Marr alleged that on the evening of The Smiths appearance on Top of the Pops on January 26, 1984, he watched television at Mr Joyce's flat and Mr Joyce asked for an increase in his 10 per cent. Mr Marr said that he spoke to Mr Morrissey, and that the idea was rejected.

Fourth, Mr Morrissey claimed that in or around early 1986 Mr Marr telephoned him to say that Mr Joyce and Mr Rourke were angry that they were only receiving 10 per cent, that Mr Marr had informed them that the 10 per cent share would not be increased.

Fifth, Mr Morrissey claimed that in or around spring of 186 during a car journey from Manchester to London, Mr Joyce asked Mr Morrissey how he could earn a 25 per cent share and offered to act as a manager for the band, but this suggestion was rejected.

Sixth, Mr Morrissey claimed that shortly thereafter he and Mr Marr informed Mr Joyce that if he was not happy with his share he should leave the band, but Mr Joyce decided to remain.

Seventh, Mr Morrissey and Mr Marr relied upon the receipt by Mr Joyce and Mr Rourke of sums equivalent to 10 per cent of the profits from the activities of the band.

Eighth, Mr Marr and Mr Morrissey relied upon the receipt by Mr Joyce of a set of 1983/84 accounts on or around July 4, 1986 and the fact that Mr Joyce did not mention the fact that the accounts showed the profits of the band being split 40/40/10/10.

Ninth, Mr Marr and Mr Morrissey each relied upon a conversation between an accountant, Mr Patrick Savage of O. J. Kilkenny & Co., recently appointed by Mr Marr and Mr Morrissey to act for The Smiths, which Mr Savage said he had with Mr Joyce and Mr Rourke, in the kitchen of the Woolhall Studio in or around May 1987. Mr Savage said that he asked on that occasion Messrs Rourke and Joyce as to their understanding of the percentage split, in response to which Mr Rourke said in the presence of Mr Joyce, "We get 10 per cent". Mr Savage said that Mr Joyce made no comment or protest when Mr Rourke so stated.

It will be seen that the matters relied on involved almost exclusively questions of fact for the judge. In relation to the background facts, the management and organisation of the band, the judge accepted the position as described by Mr Morrissey and Mr Marr but found that they did not give rise to any inference rebutting the presumption in section 24. Mr Rosen accepts that those facts do not give rise to any inference that the presumption is rebutted, but he criticises the judge for failing to take the background matters into account in considering*239 the probabilities as to whether the four members of the band agreed a split of profits on an unequal basis.

Mr Rosen further criticises the judge for taking each of the above matters separately instead of looking at the matter overall. In taking the matters separately the judge found that there was no reference to specific percentages at the Pluto Studo in October 1983 albeit there may have been some conversation during which Mr Marr threatened to leave the band. It should be said in relation to this Pluto Studio incident: (1) that Mr Marr had not even in a re- amended defence originally made any reference to discussions at the Pluto Studio; (2) that in Mr Marr's witness statement some reference was made to Mr Marr threatening to leave the band whilst recording at the Pluto Studio in October 1983 and to him "understanding" that as part of the persuasion to get Mr Marr to stay, Mr Joyce and Mr Rourke accepted that they were junior members of the group; (3) that Mr Morrissey has never pleaded or relied on any incident or conversation at the Pluto Studio in October 1983 having any relevance to anything, even following Mr Marr's evidence, to which I refer next; (4) after Mr Morrissey had completed his evidence at the trial, Mr Marr commenced his and in answer to questions from Mr Morrissey's counsel suggested for the first time that what had happened in October 1983 was that Mr Morrissey had threatened not to continue with the band unless Mr Joyce and Mr Rourke agreed that the split should be 40/40/10/10, and that although Mr Marr did not think that very fair and wished to leave, Mr Joyce and Mr Rourke agreed the split so that the band could continue. If that is what had happened that would have been the clearest express agreement, but, (5) (and this may be the reason why Mr Morrissey has never sought to rely on anything said at the Pluto Studio) Mr Marr accepted in cross-examination by Mr Joyce's counsel that in truth he could not remember whether he mentioned percentages and further accepted that the indications were that Mr Bowen (to whose letters I shall turn in a moment) and Arthur Young (to whose draft accounts I will turn in a moment) were never told of any agreed split and indeed were informed to the contrary.

In relation to January 26, 1984 incident, the judge preferred the evidence of Mr Joyce that Mr Marr was not at his flat on that evening. In relation to the claims by Mr Morrissey in relation to conversations in early 1986 and spring of 1986, if they took place at all they would have to have taken place in 1985, but the judge rejected Mr Morrissey's evidence. Indeed in cross-examination Mr Morrissey was driven to accept that although in his own mind he wanted a split of 40/40/10/10:

(1) the position of the group must still have been "up in the air" at the*240 time of the meeting with the solicitor Edward Bowen on January 25, 1984, and that there was certainly no agreement formal or oral reflecting anything other than equality at that time;

(2) the position was the same at the meeting held with Arthur Young in the spring of 1984. All four members of the band were there at that meeting. Mr Joyce and Mr Rourke were suggesting equality and neither Mr Morrissey nor Mr Marr suggested there was already an agreement for a 40/40/10/10 split, and indeed nothing was said by either to suggest that that should be the split.

As regards the allegation that Mr Joyce and Mr Rourke throughout received sums equivalent to 10 per cent of the profits from the activities of the band, the judge found that this was factually incorrect. He held that in one year the drawings of Mr Rourke and Mr Joyce amounted to one-quarter of those of Mr Marr, but that no clear pattern emerged. Mr Rosen has not sought to challenge that matter on appeal.

The truth is that the evidence was overwhelming that, in any event, up to July 1985 there was no agreement rebutting the presumption of equality contained in section 24 of the Partnership Act. That that is correct can be most easily established by reference to the two letters from Mr Bowen and the letter and accounts of Arthur Young. Mr Bowen was a solicitor consulted by Mr Morrissey and Mr Marr on January 25, 1984 and he wrote two letters, one dated February 6, 1984 to Mr Scott Piering and another dated February 10, 1984 to Mrs Dwyer, Mr Morrissey's mother, both of which letters Mr Morrissey accepted he saw at the time and discussed with Mr Marr. In the letter of February 6 Mr Bowen suggested the setting up of two companies, one relating to publishing income and the other relating to recording income and said in relation to the latter:
with regard to the recording company, Messrs Morrissey and Marr will be its shareholders and directors. The other two band members will become employees of the company. It is proposed that they all draw a salary out of the company at a rate which will have to be agreed, but in principle they will be equally entitled to the net profits of the business.

In the letter of February 10, 1984 to Mrs Dwyer he said amongst other things:

Towards the end of last year when it became clear that The Smiths were going to be successful, I discussed with Geoff Travis my concerns about the constitution of the band. He in turn discussed this with Morrissey and Johnny Marr both in England and whilst they were in New York. I was concerned that no agreement appeared to have been reached between the band and Joe Moss either financially or legally. [Joe Moss was the then manager.] I was also concerned that there was no agreement between the individual members of the band. I took the view that as a matter of law the members of The*241 Smiths were all equal partners although I was of course aware that this kind of arrangement was not acceptable to Morrissey or Johnny Marr.

In the spring of 1984, all four members of the band were at a meeting with Arthur Young, accountants instructed on behalf of the band. Mr Morrissey accepted in evidence that the split was discussed, and he accepted that neither he nor Mr Marr told the accountants that the split should be 40/40/10/10. In the result the accountants produced draft accounts under cover of a letter dated May 8, 1985 which drafts clearly indicated equality as between the partners.

On the appeal Mr Rosen really concentrated on the receipt by Mr Joyce, in July 1986, of the 1983/84 accounts and the alleged conversation between Mr Savage, Mr Rourke and Mr Joyce in May 1987. The judge accepted Mr Joyce's evidence in relation to the accounts that he did not look at the figures and further found that in any even Mr Joyce would not have understood them without some explanation. In relation to the Mr Savage/Mr Rourke/Mr Joyce alleged conversation the judge found simply that Mr Rourke did not say the words attributed to him. Those findings are attacked by Mr Rosen.

It will be noted that Mr Rosen's main attack has had to be on findings of fact by the judge. He appreciated the difficulties he faced in an appellate court, and drew our attention to various authorities including Smith New Court Ltd v. Scrimgeour Vickers [1997] A.C. 254 and in particular the speech of Lord Steyn at 276 where he approved the approach of the Court of Appeal in that case to reversing a finding of fact by the trial judge. Hefurther drew our attention to the article by Sir Thomas Bingham (as he then was) published in (1985) C.L.P. 1, "The Judge as Juror: the Judicial Determination of Factual Issues". Mr Rosen's criticisms of the judge were in summary

(i) that he appeared to have formed unfairly a general adverse view of Mr Morrissey saying, "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."

(ii) that he then went through the individual matters rejecting Mr Morrissey's evidence simply because of the adverse impression he had formed, and

(iii) that he failed to come back and look at the matter overall.

CONT.............
 
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Joyce v. Morrissey Decision - Waller, L.J. CONT.....

CONT

Mr Rosen's Approach

Mr Rosen sought to persuade us that the logical approach to the appeal was to emphasise the background matters, i.e. the greater contribution*242 of Mr Morrissey and Mr Marr, and then consider what he submitted were the two strongest points in his clients favour.

(1) Accounts sent to Mr Joyce in July 1986

He submitted:

(a) that in July 1986 there were sent to Mr Joyce by Ross Bennet-Smith partnership accounts, for the period from the commencement of the partnership up to April 5, 1984, showing, as Mr Rosen would submit, clearly a division in the proportions 40/40/10/10;

(b) that Mr Joyce did not protest at what the accounts showed;

(c) that the evidence of Mr Joyce that he did not read those accounts and understand that they showed a 40/40/10/10 split was incredible;

(d) that in any event the question whether Mr Joyce accepted the split at that time must be looked at objectively; and thus

(e) Mr Joyce's silence must be taken as an acceptance that profits should be distributed from the outset on a 40/40/10/10 basis.

(2) Conversation Joyce/Rourke/Savage at Woolhall Studios, May 1987

He submitted that there was simply no basis for the judge to reject, as he did, the evidence of Mr Savage that in a conversation in May 1997 Mr Joyce had acquiesced in Mr Rourke's comment that "we [i.e. Rourke and Mr Joyce] receive 10 per cent".

His submission then was that a finding of acceptance of the split 40/40/10/10 by reference to the above two points would colour the approach to other facts and conversations relied upon from the earlier periods, and lead to the conclusion that there was to be inferred an agreement that the group would conduct their business on the basis of the unequal split 40/40/10/10.

I would start by saying that in my view this approach is quite illogical in the circumstances of this case. It might have been logical if Mr Morrissey could in any way have sustained the case that he was originally making in his pleadings but which he could not sustain at the trial and which his counsel could not begin to sustain on the appeal. That case, putting it shortly, was that because of the extra work and responsibilities undertaken by Mr Morrissey and Mr Marr, right from the outset the partners accepted and acted on the basis that the split should be 40/40/10/10; thus it was alleged that that was the basis on which it was obvious to each they were receiving a split in the*243 profits and that was the basis on which accounts were consistently prepared. That that case could not be sustained is already apparent from what I have already said. But I should add the following. First it is clear as a matter of partnership law that the fact that one or more partners makes a greater contribution than others in no way displaces the presumption of equality: see Lindley & Banks (17th ed.), para. 19-22:

Whether, therefore, partners have contributed money equally or unequally, whether or not they are on a par as regards skill, connection or character, whether they have or have not laboured equally for the benefit of the firm, their shares will be considered equal, unless some agreement to the contrary can be shown to have been entered into.

Second on any view there was no discussion at the commencement of the group's activities and it was Mr Marr's evidence that to start with equality was the understanding and that it was only in late 1983 that Mr Morrissey suggested otherwise to him. Third albeit Mr Marr attempted to give evidence of a variation being agreed at the Pluto Studios in October 1983, the judge was fully justified in rejecting that evidence, and Mr Morrissey actually accepted that matters were still in the air and that no variation had been agreed as confirmed by Mr Bowen's letters and Arthur Young's draft accounts. Fourth critically the distribution to the partners never was consistently on a basis of a 40/40/10/10 split. It was, as the judge found, and as has not been challenged, on an ad hoc basis.

Accordingly it was and is simply unsustainable that the partners were conducting their activities from the commencement of the partnership, and in any of the years 1983, 1984, 1985 and 1986 on a basis that the split should be 40/40/10/10. The maximum that could be said is that Mr Morrissey wanted to change the equal sharing to a 40/40/10/10 split, but Mr Joyce and Mr Rourke were not happy to agree that change. Mr Morrissey undoubtedly felt that because of the more major contribution he and Mr Marr were making he ought to be able to dictate the terms on which the partnership continued. But the difficulty for Mr Morrissey is that there are various fundamentals which he may not have appreciated. First unless there is some express agreement or partnership deed between the partners allowing for it, it is not open to one partner by issuing an ultimatum that he is only continuing on the basis of a change in the distribution to achieve that change, if the other partners are equally making it clear that they do not accept that ultimatum. Furthermore, without express power in a partnership agreement it is not open to a majority of partners to simply expel another (see section 25 of the Act). Of course it is open to a partner to actually make clear he will cease being a member unless there is a change, and in that situation it is equally open to the other partners either to agree or accept the termination of the partnership. I make*244 these points because once it is established as it was in this case that the partnership was from its commencement on the basis of equality, for Mr Morrissey to establish that there was a variation from equality, he must show that Mr Joyce accepted in a contractual sense that that was the basis on which the group were to continue, and for there to be a contractual acceptance the terms must be certain, and there must be consideration. If there is to be a variation of this type of partnership where there is no express partnership deed providing powers to make variations, the consideration will normally be provided by the agreement not to terminate the partnership if the new terms are agreed, but it must be possible to spell out an agreement of that kind before a variation can be established.

At a late stage of his submissions Mr Rosen suggested that even if the partnership commenced on the basis of equality, there was at least some variation agreed which went no further than saying "we now agree that distribution should be on unequal terms" without specifying the unequal proportions. That argument in my view is unsustainable. Its very uncertainty would be against it being a binding agreement, but in any event one would require the clearest evidence that what was agreed was that in consideration for the partners agreeing not to terminate the partnership, it was agreed to continue on the basis of unequal shares and by implication (I suppose) "reasonable" shares. Mr Rosen was quite unable to demonstrate any occasion when such a variation could be said to have taken place other than possibly the conversation at the Pluto Studio in October 1983 of which Mr Marr gave evidence. But the history thereafter demonstrated that in truth there was simply no agreement from Mr Joyce or Mr Rourke that they accepted that they should be unequal, and a fortiori that they were prepared to agree to be unequal without being clear what proportions they were to receive. Once again Mr Bowen's letters and Arthur Young's draft accounts are strong evidence against any such variation.

Once it is accepted, as in my judgment it must be, that up until after the production of the draft accounts by Arthur Young in 1985, the terms of the partnership involved equality, there is nothing to produce a variation on which Mr Morrissey can rely until the production by Ross Bennet-Smith of the accounts for the period 1983/84, and the sending of those accounts to Mr Joyce and Mr Rourke in July 1986. What Mr Rosen accordingly would have to establish is that by the accountants sending the accounts to Mr Joyce an offer was being made by Mr Morrissey and Mr Marr in terms that they were now making clear that the only basis on which they were prepared to continue the partnership was on the basis that Mr Joyce and Mr Rourke agreed that as from the beginning of the partnership the distribution should be unequal and on a 40/40/10/10 split. He would further have to establish that Mr*245 Joyce accepted that the only basis on which the partnership continued was on that basis.

The judge found as a fact that Mr Joyce "did not study or understand the accounts he did receive ... and was given no help or explanation from the firm". Mr Rosen challenges that finding saying that it incredible, but in cross-examination Mr Morrissey accepted that his attitude to accounts would be that he would not take much notice of them and would need guidance to understand them. The finding was clearly one open to the judge. But I would go further. It is quite impossible to construe the sending of accounts by the partners' accountant as an offer that Mr Morrissey and Mr Marr were only prepared to continue on a 40/40/10/10 basis, and quite impossible to construe Mr Joyce's silence as an acceptance of that offer. There would at least have had to be a letter or some other communication bringing clearly to Mr Joyce's attention that that was the position. It is in any event of interest that no- one at the time took the view that there had been a variation produced by the sending of the accounts and Mr Joyce's silence. When Mr Savage came on the scene in 1987 his notes of a meeting (it should be said with Mr Morrissey and Mr Marr alone) in March 1987 record "must organise an agreement" in relation to which Mr Morrissey in evidence accepted that even as at that time "things were still up in the air".

I now turn to the conversation which is alleged to have taken place in May 1987 at Woolhall Studios near Bath. Mr Savage provided a witness statement to the solicitors for Mr Marr which referred to a meeting at the Woolhall Studios as the first occasion when he met all members of the group. He said in that statement that having taken instructions in March from Mr Morrissey and Mr Marr only, and being anxious about the fact that there was no written agreement recording the arrangement, he thought he would like to discuss the splits with Mr Joyce and Mr Rourke. He said that at Woolhall he first met Mr Morrissey and Mr Marr, and then asked them if they would find the other two. He said that the other two were in the kitchen, and he asked them what was their understanding of the way in which recording and touring income was split. According to Mr Savage, Mr Rourke said "we get 10 per cent" and Mr Joyce did not disagree. The conversation was then pleaded by Mr Morrissey as a fact from which it should be inferred that it was a term of the partnership that profits should be split 40/40/10/10.

The judge found that Mr Rourke did not say the words attributed to him and found in any event that Mr Joyce did not hear the words said to have been uttered by Mr Rourke.

It seems to me that the judge was entitled to reach the conclusion he did on the facts particularly in the light of the fact that this*246 conversation had clearly not assumed any importance for Mr Savage until he prepared his witness statement. If a conversation as described had taken place in which both Mr Rourke and Mr Joyce had recognised that their entitlement had been agreed as 10 per cent, then as Mr Savage was up to that moment concerned that no actual agreement was in place one would expect it to be recorded there and then; in addition when Mr Savage wrote to Mr Joyce's solicitors in February 1989, in support of the understanding that he had that income should be distributed on a 40/40/10/10 basis he relied simply on the fact that accounts prepared by Ross Bennet-Smith and his firm had shown that split, and had not been disputed by Mr Joyce and Mr Rourke; he made no reference to what at the trial was being relied on as a critical conversation at Woolhall.

Again however in relation to this conversation I would go further. By March 1987 as already indicated nothing relied on by Mr Morrissey could be said to have amounted to an agreed variation. Putting Mr Savage's account of this conversation at its highest, it was not a conversation which was asserted as producing a variation, nor could it have been. It again came nowhere near to being an offer being made on behalf of Mr Morrissey and Mr Marr that they would only continue if Mr Joyce and Mr Rourke accepted their terms, and Mr Joyce's silence could in no way be construed as an acceptance. The conversation could be some confirmation that some agreement had already been reached. But for the reasons already given no previous agreement had been established.

Mr Morrissey I have no doubt will feel aggrieved because he will feel that he and Mr Marr made the major contribution, and took risks as signatories to contracts and defendants to proceedings that Mr Rourke and Mr Joyce did not. He would say that it is unfair that that should not be reflected in the split of the profits. He also feels aggrieved that the judge described Mr Morrissey as devious which it would seem may have been interpreted as meaning that he did not deal in a straightforward manner with Mr Joyce and Mr Rourke. It has given great offence because of the unpleasant connotations that the word devious can have. I think it is important to stress it is perhaps easier for those who have the law of partnership in mind to appreciate that there is a presumption of equality and no presumption of inequality created by a greater contribution being made by one or two partners. It is understandable if a non-lawyer starts from a different position. It may also have been unpalatable to contemplate that partners, even factually dominant partners, who wish to vary the terms from equality to some different proportion must face up to making absolutely clear that the only basis on which they will continue is on a different and unequal basis thus putting at risk the joint venture itself, but that is what has to be done if a variation is to be achieved. All, in my view, the*247 judge intended to convey in his use of the word devious was that Mr Morrissey had not faced up to Mr Joyce and Mr Rourke withan ultimatum, and sought to bring about inequality by indirect means, and conceivably as is quite apparent from reading Mr Morrissey's evidence he was reflecting the fact that Mr Morrissey had serious problems dealing with some of the obvious difficulties in his case when they were put to him by Mr Davis Q.C. for Mr Joyce. Certainly it was not suggested by Mr Davis, and was expressly made clear in this court, that there was no assertion that Mr Morrissey was in any way dishonest, and if that is how the judge's comment has in any way been misunderstood the record is now set straight.

Conclusion

In my view Mr Rosen's criticisms of the judge are not made out. The judge both looked at the matter overall and examined the individual matters as he was bound to do. He did not reject the totality of Mr Morrissey's evidence and it is unfair to suggest that the adverse view that he formed of Mr Morrissey in the witness box dictated his findings on the individual matters. The judge was right to conclude that the basis on which The Smiths commenced their partnership both as a fact and as presumed by law was never varied, and I would dismiss the appeal.
 
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Re: Joyce v. Morrissey Decision - Thorpe, L.J.

Thorpe L.J.:

I agree that this appeal should be dismissed for the reasons given by my Lord, Waller L.J.

There is one submission advanced on behalf of the appellant that attracts a response from a family lawyer. Although not highlighted in the skeleton argument Mr Rosen in his oral submissions eloquently expressed his client's sense of injustice at what in effect he labelled a gratuitious and unwarranted character assassination of his client by the trial judge. Since this was a straightforward money dispute between former partners the complaint, if substantiated, would deserve strong support and due remedy in an appellate court. So it is necessary to look, carefully at precisely what the judge did say and then to consider whether it is open to the interpretation which Mr Morrissey puts upon it bearing in mind that his understanding as a layman is fully supported by Mr Rosen as an experienced advocate. The passage itself is brief and is introduced by this paragraph:

Before I consider the facts relied on, I should say a little about the credibility of the four partners because a lot depends on their version of events at which they were present.

*248 They having held that the plaintiff and Mr Rourke were honest, without distinguishing between them in any way, he turned to the appellant, saying:

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.

I do not think that it is being unduly pedantic to emphasise that:

(a) Everything said to Mr Morrissey is said in relation to "the credibility of the four partners".

(b) The appearance which he gave to the judge was during the course of "given evidence".

A distinction is to be drawn between an assessment of credibility, an assessment of demeanour and an assessment of personality. In my opinion the judge in the passages under review was stating his assessment of Mr Morrissey's credibility. In arriving at a low assessment he relied in part upon an assessment of his demeanour. This was a seven-day trial and during a trial of that duration a judge has abundant opportunity to assess the demeanour of a party not only in the witness box but at all other times when the party is in the presence of the judge. I read the three adjectives selected by the judge as restricted to his demeanour whilst testifying. To label a witness unreliable is one of the more merciful ways to rejecting his testimony. However, to describe a witness as unreliable where his own interests were at stake is to judge him partisan to his own cause. But that is a failing shared by many if not most and does not elevate the criticism much higher on the scale. The label of truculence Mr Rosen accepted was not unwarranted given a number of uncooperative exchanges between Mr Morrissey and his cross-examiner. So if the judge went further than he needed to go or than he was entitled to go it was in saying that Mr Morrissey had given him the impression of being devious. This has been understood by the appellant to be a general and moralistic judgment not only of his conduct of the litigation but also of his conduct throughout the duration of the partnership.

I have already sought to explain my firm opinion that that was not the judge's meaning. I am quite clear that the judge was expressing no more than an impression of the value of Mr Morrissey's oral evidence. Ordinarily speaking it is an adjective reserved for a witness who has deliberately sought to mislead the court either by untruthful statements or by suppression of the truth. As Mr Davis Q.C. made plain Mr Morrissey was not such a witness. Mr Davis told us that in many instances Mr Morrissey was candid to his own disadvantage. What the transcripts reveal to me is that Mr Morrissey was a litigant who fell into the common trap of understanding the adversarial process as either*249 obliging him or alternatively presenting him with the opportuntiy to fight a war of words with his cross-examiner. As many famous trials have demonstrated, however intelligent and gifted the litigant, the ground upon which the contest takes place is so uneven that he is inevitably worsted. By misinterpreting his role Mr Morrissey clearly forfeited the judge's sympathy and I suspect that the judge intended to convey no more than that Mr Morrissey's first priority had been to fence with Mr Davis rather than to concentrate on giving answers that were clear, relevant and helpful to the judge in carrying out his difficult task. It is unfortunate that the adjective selected does not clearly convey that meaning and clearly conveys other meanings. It also has the disadvantage of providing the press with an easy headline.

There can be no doubt that any judge is entitled to assess and pass judgment on demeanour insofar as it bears on the primary issue of credibility and insofar as it assists the judge to resolve disputed areas of fact. The circumstances in which a judge is entitled to make a personality assessment in civil litigation must in my opinion be much more limited. In contra-distinction to the family judge whose function is quasi-inquisitorial the task of the judge in civil proceedings is to find the facts from such material as the parties choose to put before him and to apply the law to those facts in order to determine the outcome. In family litigation adults who invite the judge in the exercise of his discretion to vest in them the responsibility to care for or protect a child thereby oblige the judge to endeavour an assessment of the applicant's personality. I make that distinction only to ensure that the opinion expressed above as to the restriction on a judicial assessment of personality should not be understood as having any application in family proceedings.
 
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