Barnstaple Boat Company Ltd v Jones
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller,Lord Justice Moore-Bick,Lord Justice Moses |
| Judgment Date | 17 July 2007 |
| Neutral Citation | [2007] EWCA Civ 727 |
| Docket Number | Case No: B2/2006/2244 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 July 2007 |
[2007] EWCA Civ 727
Lord Justice Waller
Vice-President of the Court of Appeal, Civil Division
Lord Justice Moore-Bick and
Lord Justice Moses
Case No: B2/2006/2244
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Poole County Court
His Honour Judge Hughes QC
District Judge Freemen
5PH01526
Royal Courts of Justice
Strand, London, WC2A 2LL
Michael Norman (instructed by Messrs Dickinson Manser) for the Appellant
Geoffrey Weddell (instructed by Messrs Jacobs & Reeve) for the Respondent
Hearing date : 4 th July 2007
Judgement
Introduction
On 15 January 2007 Sir Henry Brooke granted permission to bring this second appeal. District Judge Freeman had given summary judgment in favour of the defendant (CJ) on the basis that he had a complete defence to each of three claims in deceit under the Limitation Act 1980. His Honour Judge Hughes QC allowed the appeal in relation to one of those claims but dismissed it as to two. The claimant (BB) sought permission to bring a second appeal and Sir Henry granted permission in the following terms:—
“In the ordinary way I would have considered a second appeal disproportionate, but as the defendant is a convicted fraudster who admits that he obtained the sum in question by fraud, I have not allowed matters of proportionality to affect my mind.
The issue here is whether the claimants could, with reasonable diligence, have ascertained before 31 st March 1999 that Mr Jones obtained this money by dishonestly representing that he wished to purchase a particular boat, alternatively whether it is sufficient simply for the claimants to have believed that they were defrauded of this money without any knowledge how the fraud was perpetrated.
Given that the judge preferred the latter approach, it seems to me that this does raise a point of principle or practice fit for a second appeal.”
An application was made immediately on behalf of CJ to set aside that permission on the basis that Sir Henry had misunderstood the position. CJ did not admit any of the frauds alleged and albeit he had been convicted of fraudulent trading on two occasions those convictions did not in anyway relate to the allegations made in this action.
That application should have come on promptly so that the question of whether permission should have been granted could have been considered before costs were incurred preparing for the appeal. Unfortunately that did not happen through an error in the Court of Appeal office and ultimately the appeal having been listed, the delay was such that it was obviously sensible that all matters should come on at the same time.
When the matter came on before us Mr Weddell for CJ very sensibly appreciated that the merits of the appeal would in any event form part of any consideration as to whether permission would be granted on any reconsideration and suggested that the sensible course was to hear the appeal de bene esse. That we did and reserved our judgments.
It is right to consider first the permission aspect. Sir Henry did in fact misunderstand the position in so far as he thought that CJ admitted the very frauds the subject of the claim.CJ was thus entitled to have reconsidered the question whether permission to bring a second appeal should be granted. It seems to me that two points dictate that permission should be granted and indeed demonstrate that if the true facts had been appreciated Sir Henry would still have granted permission. First Sir Henry's misapprehension only relates to his possible consideration of proportionality. He thought and I agree with him that the case itself raised a point of principle. The judge thought it was sufficient for BB to know that it had been “defrauded” without consideration of whether it knew the elements of the fraud it was alleging in its pleading i.e. the deceit it was alleging. That raises a point of principle on the proper construction of section 32(1) (a) of the Limitation Act 1980. Second Sir Henry's error is to suggest that CJ “admits he obtained the sum in question by fraud”. CJ does not admit that. However CJ was a convicted fraudster having been convicted twice of fraudulent trading. He had also been found to be fraudulent in an action brought by BB. He in addition settled another action brought by BB on terms favourable to BB and from which it was possible to infer some admission of impropriety.
It is difficult to think that having identified a point of principle permission to appeal would have been refused on the grounds of lack of proportionality on a true appreciation of CJ's position, and I would therefore not set aside the permission to appeal and can now turn to the appeal itself.
Background
BB brought three actions between February 2000 and July 2004 against CJ (joining others but that matters not). In those actions BB alleged dishonest conduct on the part of CJ in the course of a business relationship between BB and CJ's company Bowhelm Limited (Bowhelm). That relationship terminated acrimoniously in 1998 and Bowhelm immediately went into liquidation. In the first action relating to a Searay, BB alleged that CJ had in May 1998 fabricated an invoice in pretending to sell the boat when he had not. BB obtained judgment on 27 th September 2001. In the second action commenced on 10 th January 2002, it was alleged that a Maxum 1700 speed-boat had in May 1998 been found to be “missing” and that CJ dishonestly invented that there had been a sale. This action was tried on 12 August 2002 and was dismissed. The third was commenced on 3 rd July 2004. In this action it was alleged that CJ in or about March 1998 dishonestly pretended that a 21-foot motor cruiser had been stolen from his yard suggesting BB should claim on their insurance; it was alleged that the true position was that the boat had in fact been sold without informing BB and without paying money to BB. This action was settled for a substantial payment by CJ.
On 31 March 2005 BB commenced this fourth action claiming damages for “deceit, fraud and fraudulent misrepresentation on dates between December 1996 and August 1998 in relation to the acquisition of a Maxum 32 motor cruiser, six motor cycles and Fletcher Arrow Bolt.” Particulars of claim were ultimately served in January 2006 in which the allegations of fraud were spelt out in the following terms.
Claim One
“6. The Claimant made the said payment relyong upon representations made by the Defendant on behalf of BL that:—
6.1 There was a Maxum 32 motor cruiser for sale.
6.2 It was a fire damaged boat which was on its way to the Southampton Boat Show that year and that it was shown in a series of photographs which were then shown by the Defendant to the Claimant.
6.3 The payment of £13,500 would secure the purchase of the said boat.
7. The said transaction was evidenced by BL's invoice number 20323.
8. The said representations were false in that BL did not purchase on the Claimant's behalf the Maxum 32 and the purported transaction was a fiction.
9. The said false representations were made by the Defendant fraudulently in that he knew them to be false, he had no intention of purchasing the Maxum 32 on behalf of the Claimant and he knew the alleged purchase to be a fiction.”
Claim Two
“11. On 11 th December 1997 the Defendant told the Claimant that BL sold for the Maxum 32 on the Claimant's behalf for the price of £16,200 and offered to purchase on the Claimant's behalf for the price of £17,000 6 motorcycles, the details of which are given in the Part 1 of the Schedule.
12. The Claimant agreed to purchase the said motorcycles relying upon the representation by the Defendant that £16,200 was available from the sale of the Maxum 32, leaving a balance to pay of £800. The balance was set off by the Claimant against other monies owed by BL to the Claimant.
13. The purchase of the motorcycles was evidenced by BL's invoice number 20379.
14. The said representations made by the Defendant were false because the sale of the Maxum 32 was a fiction and there were no monies available from the sale to pay for the said motorcycles, and they were fraudulent because they were made by the Defendant knowing them to be false.”
Claim Three
“17. On or about 4 th January 1997 BL purchased on the claimant's behalf a Fletcher Arrowbolt 21 boat for £5,500. The purchase was evidenced by BL's invoice number 23535.
18. The Claimant purchased the said boat relying upon the representation made (orally) by the Defendant that it was in good working order.
… .
20. The said representation was false because the engine was not functional having been flooded by being submerged) before the purchase of it by BL on the Claimant's behalf.
21. The said representation was made by the Defendant fraudulently because he knew it not to be true and further because he deliberately decided not to bring to the Claimant's attention the fact that the engine on the boat had been damaged by flooding. As to knowledge the Claimant will rely on the matters pleaded in paragraph 26.3 below.
… .
26.3 The circumstances in which the Claimant discovered the fraud and the deliberate concealment were that Mr Tidmarsh of the Claimant met an engineer named Douglas Day who informed Mr Tidmarsh that he had inspected the boat on or around 15 th June 1999 but concluded that the engine was beyond economic repair. Mr Tidmarsh was told by Mr Day that he (Day) had been informed by the Defendant that the boat had been sunk.”
There were thus three claims first to a sum of £13,500 paid out on or about 4 th November 1997; second to a...
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Subject Index
...(1995)185 CLR 1 . . . . . . . 14Barnes vThe Queen (1997)96 A CrimR 593 . . 4, 6Barnstaple Boat Co. Ltd v Jones [2007] EWCA Civ727, [2008]1 All ER1124 . . . . . . . . . . . . . . . 150Blue Cross v Philip Morris 113 F Supp 2d 345(EDNY 2000). . . . . . . . . . . . . . . . . . . . . .117, 118Bo......
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