New Judgment – EJW Builders Ltd v Marshall [2026] EWCA Civ 911

The Court of Appeal (Warby, Falk and Miles LJJ) has dismissed an appeal of fact concerning an alleged oral partnership agreement. The remarks in the judgment on the interaction between documentary and witness evidence are of wider significance and will be of interest to commercial and fraud litigators in preparing for and arguing cases at trial.

The First and Second Respondents owned a hotel in Trowbridge, the Hilbury Court Hotel. They hired the Appellants to carry out building works on the property with a view to redeveloping it into townhouses with a view to selling the townhouses at profit.

The Appellants claimed that the First and Second Respondents had entered into an oral partnership or profit sharing agreement with them, such that the Appellants were entitled to a share of the profits from the redevelopment. The First and Second Respondents denied any such agreement was entered into, maintaining that the redevelopment was undertaken pursuant to a JCT building contract (of a standard industry type).

At a two-day trial in in Bristol in 2025, HHJ Paul Matthews sitting as a Judge of the High Court dismissed the Appellants’ claim in a reasoned judgment. The Appellants appealed against that decision, arguing in essence that the Judge had failed to attribute sufficient weight to the documentary evidence. The Court of Appeal dismissed the appeal. Falk LJ’s leading judgment usefully collects the principles applicable to appeals of pure fact ([27]-[33]).

The Appellants relied on the well-known proposition that the best approach for trial judges in commercial cases is to primarily give weight to documentary evidence over oral evidence, most famously stated in Leggatt J’s judgment in Gestmin v Credit Suisse [2013] EWHC 3560 (Comm) at [22]. Addressing that submission, Falk LJ said at [34] that though

“contemporaneous documentary evidence will very frequently be given significant weight, for well-rehearsed reasons which include the fallibility of memory and the point that evidence created before a dispute materialises may be of particular forensic value… a judge must take all the evidence into account and make findings based not only on documentary evidence but also the witness evidence, (where relevant) the motivations of the parties, and the inherent probabilities … I accept that documents may well assume a critical significance, for example in determining whether a witness is lying… but even in that case they are only part of an overall picture”.

Accordingly, the Gestmin principle is not an inflexible rule pursuant to which documents invariably enjoy primacy over witness testimony. Rather, the weight to be attributed to different types of evidence will vary depending on the facts of the particular case.

Separately, the First and Second Respondents obtained a substantial pro bono costs order in favour of the Access to Justice Foundation, with a payment on account of £80,000, in addition to the £117,000 pro bono costs order made at trial.

Rory Brown KC leading Rabin Kok, both of South Square, appeared for the First and Second Respondents acting pro bono, instructed by David Waldron, Rob Bolgar-Smith and Annabel Pahl at Morgan Lewis & Bockius UK LLP also acting pro bono.

Rory and Rabin also extend their thanks to William Farrant and India Bennett of Norton Rose Fulbright LLP, who represent the Access to Justice Foundation (which did not participate in the proceedings).

Read the full judgment here