Brewer v Mann
| Jurisdiction | England & Wales |
| Judge | HH Judge Anthony Thornton QC,MR. JUSTICE OTTON |
| Judgment Date | 02 October 2012 |
| Neutral Citation | [2012] EWHC 2633 (QB),[2010] EWHC 2444 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Claim No: HQ08X04724,Case No: HQ08X04724 |
| Date | 02 October 2012 |
[2010] EWHC 2444 (QB)
IN THE HIGH COURT OF JUSTICE
IN THE HIGH COURT OF JUSTICE
HH Judge Anthony Thornton QC Sitting as a judge of the High Court
Before: His Honour Judge Anthony Thornton QC
Sitting as a High Court Judge
Before: Mr. Justice Otton
Case No: HQ08X04724
No. 90/MJ/2474
Mr Hodge Malek QC for the trial and Mr Raoul Downey for the handing down and consequential matters hearing (instructed by Layzells, 255 Muswell Hill Broadway, London, N10 1DG) for the Claimant
Mr Oliver Ticciati (instructed by Wilmot & Co, Solicitors, LLP, 38 Castle Street, Cirencester, Glos, GL7 1QH) for the First and Third Defendants
Mr Paul Brant (instructed by DWF LLP, Solicitors, 129 Deansgate, Manchester, M3 3AA) for the Second Defendant
MR. M. ROSEN, instructed by Carter Faber, London EC4Y 9AY, appeared on behalf of the plaintiff.
MR. R. SLOWE, instructed by Dibb Clegg, London WC2A 1NE, appeared on behalf of the defendant.
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
| Section | Subject-matter | Paragraphs |
| A | Introduction | 1—18 |
|
| The car | 1 |
|
| Mrs Brewer | 2 |
|
| Mr Brewer | 3 |
|
| Mr Mann and SMRL | 4 |
|
| Mrs Brewe'r's case – contractual inducement | 5 – 6 |
|
| SMR'L's purchase of car | 7 |
|
| Mrs Brewe'r's case – breach of warranty | 8 |
|
| Mrs Brewe'r's case – contractual misdescriptions | 9—11 |
|
| Mrs Brewe'r's case—damages | 12 – 13 |
|
| Mr Man'n's case—liability | 14 |
|
| SMRL and Forti's's cases—liability | 15 |
|
| Defendants’ cases—damages | 16 |
|
| Dispute—summary | 17 |
|
| Contribution proceedings | 18 |
| B | Issues, Parties and Witnesses | 19—38 |
|
| Issues | 19 |
|
| Parties | 20 – 21 |
|
| Witnesses | 22 |
|
| Expert evidence – Mr Sibson | 23—28 |
|
| Expert evidence – Mr Fenn | 29—31 |
|
| Expert evidence—general summary | 32 |
|
| Expert evidence – chassis and engine | 33—36 |
|
| Expert evidence – description of the car | 37—38 |
| C | The Essential Factual Matrix | 39—105 |
| (1) | Speed Six Bentleys | 39—51 |
| (2) | Mr Man'n's history of involvement with vintage Bentleys | 52—57 |
| (3) | The car and its continuous history | 58 – 105 |
|
| Source materials | 58 |
|
| Continuous history | 59 |
|
| Physical and specification differences | 60 – 64 |
|
| Car as delivered in 1930 | 65 |
|
| Early history | 66 – 72 |
|
| Continuous history—summary | 73 |
|
| Chassis | 74 – 81 |
|
| Engine | 82 – 91 |
|
| The car when owned by Mr James | 92 – 94 |
|
| Continuous history – Mr Man'n's implied representation | 95 – 96 |
|
| Mr Man'n's test in 2009 | 97 – 99 |
|
| Mr Jame's's sale | 100 |
|
| Valuations of the car | 101 – 104 |
|
| The ca'r's lack of a continuous history | 105 |
| D | The Relevant Contracts and Terms | 106—171 |
| (1) | Background – Mr Mann and SMRL | 106 |
| (2) | Background—Mr Jame's's bailment and conditional sale of the car to Mr Mann | 107 – 108 |
| (3) | Background—Mrs Brewer starts her vintage Bentley search | 109 – 110 |
| (4) | The collateral contractual warranty | 111—134 |
|
| Prior to the meetings with Mr Mann | 111 – 113 |
|
| Misleading nature of the advertising material | 114 – 115 |
|
| Mr Brewe'r's meeting with Mr Mann | 116 |
|
| Mr and Mrs Brewe'r's meeting with Mr Mann | 117 – 119 |
| Discussion—general | 120 | |
|
| Mr Man'n's warranty | 121- 127 |
|
| Credibility | 128 |
|
| Mrs Brewe'r's case | 129 |
|
| Mr Man'n's case | 130 |
|
| Preliminary findings of fact allegedly going to credit – Mrs Brewer | 131 |
|
| Preliminary findings of fact allegedly going to credit – Mr Brewer | 132 |
|
| Preliminary findings of fact allegedly going to credit – Mr Mann | 133 |
|
| Credibility—conclusion | 134 |
|
| (5) To Speed Six specification | 135—138 |
|
| “To Speed Six specification” | 135 – 138 |
|
| (6) Enforceability of collateral contractual warranty | 139—145 |
|
| Collateral contractual warranty | 139 – 141 |
|
| Legal test for a contractual warranty | 142 – 144 |
|
| Conclusion – collateral contractual warranty | 145 |
|
| (7) Mr Mann as a contracting party | 146—156 |
|
| Mr Man'n's case | 146—148 |
|
| Mrs Brewe'r's case | 149 |
|
| Contracting party—discussion | 150 |
|
| Mr Man'n's personal liability | 151—153 |
|
| Mr Man'n's liability as an agent for an undisclosed principal | 154 |
|
| Disclosure of SMR'L's role as principal | 155 |
|
| Conclusion – who is liable for any breach of the collateral contractual warranty | 156 |
|
| (8) Mrs Brewe'r's reliance on the collateral contractual warranty | 157—158 |
|
| Reliance | 157—158 |
|
| (9) The deposit and sale contracts and the hire purchase agreement | 159 – 161 |
|
| Contracts | 159 |
| Deposit contract | 160—161 | |
|
| (10) Contractual descriptions | 162—171 |
|
| Contract description—introduction | 162 |
|
| The deposit contract between SMRL and Mrs Brewer | 163 |
|
| The contract of sale between SMRL and Fortis | 164—165 |
|
| The hire purchase agreement | 168 |
|
| The sale of the car and the passing of property in the car from Mr James to SMRL | 169 |
|
| Legal test for contract description | 170 |
|
| Conclusion – contract descriptions | 171 |
| E | Breach of warranty, breach of the deposit contract and non-compliance with description | 172—204 |
|
| (1) Breach of collateral contractual warranty | 172 |
|
| (2) Breach of deposit contract | 173—183 |
|
| Introduction | 173 |
|
| Mr Mann and SMR'L's case | 174 |
|
| Discussion | 175—182 |
|
| Breach of deposit contract—conclusion | 183 |
|
| (3) Breach of the hire purchase agreement | 184—188 |
|
| Introduction | 184 |
|
| Speed Sixes sold by description | 185—187 |
|
| Hire purchase agreement—conclusion | 188 |
|
| (4) Continuous history documentation | 189 |
|
| (5) Fortis agreement – whether or not a bailment by description | 190—199 |
|
| Forti's's liability – bailment by description | 190—195 |
|
| Clause 5.1 – prevention or exclusion of liability | 196—200 |
|
| (6) Overall conclusion—liability | 201—205 |
|
| General | 201—204 |
|
| Forti's's defences—conclusion | 205 |
| F | Mrs Brewe'r's entitlement to reject the car and rescind the Hire Purchase Agreement | 206—216 |
| Factual background | 206—209 | |
|
| Mrs Brewe'r's right to reject | 210—215 |
|
| Conclusion – right to reject | 216 |
| G | Mrs Brewe'r's claims for damages and Forti's's counterclaim for damages | 217—230 |
| (1) | Mrs Brewe'r's claim against Mr Mann and SMRL | 217—220 |
|
| Legal basis for Mrs Brewe'r's damages claims | 217—219 |
|
| Conclusion – Mrs Brewe'r's claims for damages | 220 |
| (2) | Forti's's counterclaim against Mrs Brewer | 221—224 |
|
| Forti's's counterclaim | 221—223 |
|
| Conclusion – Forti's's counterclaim | 224 |
| (3) | Mrs Brewe'r's claim against Fortis | 225 |
| (4) | Credit for the use of the car during the period of hire | 226—230 |
|
| Restitutionary claims | 226 – 229 |
|
| Conclusion – restitutionary counterclaims | 230 |
| H | Damages, Interest and Costs | 231—2 |
|
| (1) Damages | 231—235 |
|
| Damages – Breach of warranty – Mr Mann and SMRL | 231 |
|
| Indemnity – Breach of warranty and breach of deposit contract – Mr Mann and SMRL | 232 |
|
| Damages – Breach of deposit contract – Mr Mann and SMRL | 233 |
|
| Damages – Breach of the hire purchase agreement—Fortis | 234 |
|
| Conclusion—damages | 235 |
|
| (2) Forti's's counterclaim | 236 |
|
| (3) Interest | 237—238 |
|
| Interest – start date | 237 |
|
| Interest—rate | 238 |
|
| (4) Costs | 239—242 |
| Costs order | 239 | |
|
| Costs reduction application | 240—242 |
| I | Procedural Questions | 244—246 |
|
| Joinder SMRL | 244 |
|
| Joinder of SMRL to the third party proceedings | 245—246 |
| J | Overall Conclusion | 247—248 |
|
| Principal findings | 247 |
|
| Overall conclusion | 248 |
HH Judge Anthony Thornton QC:
A. Introduction
The car. This case is about a vintage Bentley car (“the car”). The principal issue is whether or not this car had been contractually warranted to be or described as, a “1930 Bentley Speed Six with a Speed Six engine” and as to whether any contractual warranty or description was correct. The car was delivered from the Bentley Cricklewood works in 1930. In the trade, a vintage Bentley is one that was manufactured in the heyday of Bentley car production, being the initial twelve golden years of the production of Bentleys by Bentley Motors between 1919 and 193For two years in that period, Bentley produced the only approximately 177 Speed Six cars that were ever produced. 69 of these Speed Sixes were produced in 1929 and 108 in 1930. Speed Sixes are regarded by many as the finest vintage model that Bentley has ever produced.
Mrs Brewer . Mrs Mercedes Brewer is an American citizen and she is both a practising US attorney and a practising English solicitor. She was admitted to the Bar in New Jersey in 1980 and has subsequently been admitted in both New York and Florida. She was admitted as a solicitor in England in December 2005. She married her British husband in November 2002 and they live in Rutland. Following her marriage, she has acquired from her husband an enthusiasm for...
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