Roger Marsh v (1) Simon Marsh (2) Time Critical International Ltd (2010)
The evidence did not support a father's claim that he had been in partnership with his son in a courier business.
The claimant (R) claimed for a declaration against the first defendant (S), who was his son, and the second defendant company (T), that he and S together had established a courier business in partnership, and for shares in T to reflect the transfer of the partnership assets to it. It was common ground that there was a courier business which had grown successfully from nothing. After about six years of trading S organised the incorporation of T, without R's knowledge. S was allotted around two-thirds of the shares, with the remainder allotted to the operations manager. The business was gradually transferred to T. The dispute was whether the business had been carried on "by two or more persons in common" so as to meet the definition of partnership in the Partnership Act 1890 s.1(1). R's case was that from the outset it had been a partnership between him and S. He claimed that it was his idea, that he had the commercial experience to match his young son's ability to work hard, and that he found the clients and dealt with administration because S was dyslexic. S's case was that he never agreed to take R as a partner and never treated him as one; and that he himself had built up the business as a sole trader without R's assistance.
Wherever there was a conflict the evidence of S and his witnesses was to be preferred to that of R. His evidence was to a large extent fictitious. His case was based on a very few documents, which he had been able to obtain due to the business being based at his home for some years. As a result his description of events bore some resemblance to actual events. Yet there was in evidence a large body of documentation, none of which showed any reference to the existence of a partnership and all of which, either expressly or by clear implication, referred to the business as that of S as sole trader or words to that effect. None contained any reference to R, or to any interest in the business apart from that of S. There was a great deal of difference between a father helping his son to set up in business and a father setting up in business in partnership with his son. Such of R's interventions in the business as to which there was reliable evidence fell into the former category or certainly did not fall unequivocally into the latter. R had failed to establish that there was at any material time a partnership.
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