Bentley v Jones Harris & Company

JurisdictionEngland & Wales
JudgeLORD JUSTICE LATHAM,MR JUSTICE BURTON,Mr Justice Burton,Lord Justice Latham
Judgment Date02 November 2001
Neutral Citation[2001] EWCA Civ 1724,[2001] EWCA Civ 1678
CourtCourt of Appeal (Civil Division)
Docket NumberA2/2001/0251,A2/2001/0251 {PRIVATE}
Date02 November 2001

[2001] EWCA Civ 1678

IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(Mr H K Goddard QC)

Royal Courts of Justice

Strand

London WC2

Before:

Lord Justice Lathammr and

Mr Justice Burton

A2/2001/0251 {PRIVATE}

Michael Bentley
Claimant/Applicant/Appellant
and
Jones Harris & Company
Defendants/Respondents

Mr S King (instructed by Messrs Eversheds, Manchester) appeared on behalf of the Applicant/Appellant Claimant.

Mr C Cory-Wright (instructed by Messrs Ward Hadaway, Newcastle upon Tyne) appeared on behalf of the Respondent Defendants.

LORD JUSTICE LATHAM
1

Mr King, on behalf of the appellant, who has only recently been instructed in this matter, seeks today -the day of the hearing of the appeal, which he does not ask to be adjourned to expand the grounds of appeal beyond the single ground which has been the subject of the grant of permission in order to pursue two separate and discrete issues from the issue raised in the ground at present before us.

2

Clearly, the application is made far too late for that matter to be able to be dealt with properly today. In any event, it seems to me that the issues were indeed discrete issues. They were issues dealt with, it seems to me, adequately by the judge in a way which does not satisfy me that it would be in the interests of justice to permit those grounds to be argued, with the consequential problems that would be raised in terms of the disposal of this appeal.

3

Accordingly, I would refuse the application.

MR JUSTICE BURTON
4

I agree.

5

I would simply draw attention to the Practice Direction to CPR Part 52, paragraph 4.18, which indicates that, in so far as this court does have jurisdiction to allow issues to be raised in respect of which permission has been earlier refused, there must be a notification of any intention to raise such an issue as soon as practicable after notification of the court order.

6

This appears to me to be a paradigm case, because it seems, as my Lord has said, entirely clear that these issues are discrete and that, if it was to begin to be possible to persuade us that they are not, proper notice ought to have been given to the court and to the respondents to enable them to fill in the gaps which plainly exist (perfectly understandably, because of his late instruction) in the knowledge and submissions of counsel for the applicant.

7

For that reason and for those given by my Lord, I would reject this application to expand the grounds of appeal.

Order: application dismissed.

[2001] EWCA Civ 1724

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(Mr H K Goddard QC)

Royal Courts of Justice

Strand

London WC2

Before:

Lord Justice Latham and

Mr Justice Burton

A2/2001/0251

Michael Bentley
Claimant/Applicant
and
Jones Harris & Company
Defendants/Respondents

Mr S King (instructed by Messrs Eversheds, Manchester) appeared on behalf of the Applicant Claimant.

Mr C Cory-Wright (instructed by Messrs Ward Hadaway, Newcastle upon Tyne) appeared on behalf of the Respondent Defendants.

LORD JUSTICE LATHAM
1

I will ask Mr Justice Burton to give the first judgment.

MR JUSTICE BURTON
2

The claimant (the appellant in this appeal), Michael Bentley, at all material times has been a car dealer. He sued the defendants (the respondents to this appeal), Jones Harris & Company, who had been his accountants for many years. The principal partner in issue in relation to the case brought before the court was a Mr Bryning.

3

There were three discrete issues brought before the court by the claimant in respect of which he claimed that his accountants, the defendants, had acted negligently. The learned deputy judge, at the close of the claimant's case, having been addressed by counsel for the defendants and by the claimant in person (because during the course of the hearing he dispensed with the services of his counsel), concluded that there was no case to answer on any of them.

4

Permission to appeal has been given by Lord Justice Chadwick to this court on only one aspect of one of them. There was an attempt by Mr King, who today, very recently instructed, has appeared on behalf of the appellant claimant, to seek to resuscitate arguments in respect of the other two issues, but, for the reasons given by my Lord, Lord Justice Latham, earlier in the hearing, this court refused permission for that course. So I shall deal only with the one outstanding matter by way of permission to appeal, as slightly expanded with the acquiescence of Mr Cory-Wright, counsel for the respondent defendants, before us today.

5

The claimant's case is that, at a meeting on 3rd October 1996 between him and Mr Bryning, the latter gave the following advice in general terms:

(i)He gave pessimistic advice as to the likely liability of the claimant on a VAT assessment which had been received in the June/July in the sum of £155,000.

(ii)He told the claimant that that VAT liability could increase to as much as £225,000.

(iii)He said that he should run down his business and sell off his assets in order to avoid the consequences of that liability.

6

The claimant's further case, which was necessary to establish that any loss flowed from the alleged negligence, is that, as a result of Mr Bryning's advice on 3rd October, he did just that, ceasing to operate his business from his premises at Vicarage Lane and disposing of them.

7

The only ground on which Lord Justice Chadwick gave permission, out of the lengthy document put before him by way of notice of appeal by the claimant, then acting in person, was as follows:

"Permission to appeal limited to the issues (i) whether, in reaching the conclusion that Mr Charles Bryning did not give the advice on 3 October 1996 of which the applicant complains, the judge was entitled to rely on Mr Bryning's attendance note and, if not, (ii) whether that conclusion can stand."

8

He gave the following reasons:

"It is arguable that the judge ought not to have relied on Mr Bryning's attendance note of the meeting on 3 October 1996 in the circumstances that the attendance note was not agreed to be an accurate record of what took place and neither Mr Bryning nor any other witness was called to support its contents.

The judge gave two reasons for rejecting the applicant's own account of the meeting of 3 October 1996. One reason was the attendance note; the second reason was that he did not accept the applicant's evidence. It is arguable that, if the first reason is flawed, the judge might not have reached the conclusion that he did on the second reason alone.

I am satisfied that there is no real prospect of success in relation to the other issues on which the judge held against the applicant. The judge was plainly entitled to hold that the applicant had not made out his case on his own evidence; and was not bound to allow the trial to proceed so as to give the applicant an opportunity of making his case through the cross-examination of the defendants' witnesses."

9

The learned single judge did not in terms give permission to appeal in respect of the issue upon which he had also separately found against the claimant: namely, what can loosely be called 'causation', i.e. that there was, in the learned judge's conclusion in any event, no loss proved by the claimant to have flowed from the alleged negligence. By a recent letter from freshly instructed solicitors, sent to the court on 26th October, notice was given of a desire to argue in addition whether the judge's finding as to causation can stand; and although, as I have indicated, we did not give permission to expand the grounds of appeal to include the matters relating to the two quite discrete issues in respect of which the judge found against the claimant, we have permitted argument by Mr King on this issue of causation in addition, not least because, without it, any success by him on the issue of negligence would have afforded him nothing because he would not have been able to establish any loss.

10

I turn first to the question of the attendance note of 3rd October 1996. The first and most important point to make clear in order to set this in context is that there were in fact a number of handwritten attendance notes of Mr Bryning of which this was only one, all of them apparently contemporaneous and many, if not all of them, recording events, statements and discussions with which the claimant took no issue. The events recorded with which he did take issue, of course, were those which have been very material in this trial.

11

The following significant matters must be recorded:

(1)The claimant was claiming, or claimed in the course of cross-examination, that all the attendance notes, or all the material attendance notes, were manufactured or fabricated, not just that of 3rd October.

(2)There was no challenge to the authenticity of the documents when they were included in the defendants' list of documents served at a time when the claimant was represented by solicitors. By Part 32.19 of the CPR it is provided that:

"(1) A party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 unless he serves notice that he wishes the document to be proved at trial.

(2) A notice to prove a document must be served

(a)by the latest date for serving witness statements; or

(b)within 7 days of disclosure of the document, whichever is the later."

12...

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