Brewer v Mann
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rix |
| Judgment Date | 07 March 2012 |
| Neutral Citation | [2012] EWCA Civ 246 |
| Docket Number | Case No: A3/2010/2630 A2/2010/2647 A2/2010/2648 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 March 2012 |
[2012] EWCA Civ 246
Lord Justice Rix
Lord Justice Sullivan
and
Lord Justice Lewison
Case No: A3/2010/2630
A2/2010/2646
A2/2010/2647
A2/2010/2648
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE THORNTON QC, SITTING AS A HIGH COURT JUDGE
HQ08X04724
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Raoul Downey (instructed by Layzells Solicitors) for the Claimant / Respondent
Mr Oliver Ticciati (instructed by Wilmot & Co Solicitors LLP) for the First and Third Defendants / Appellants
Mr Paul Brant (instructed by DWF LLP) for the Second Defendant / Appellant
Hearing dates : Tuesday 11 th October 2011
Wednesday 12 th October 2011
Thursday 13 th October 2011
Index
|
| PARAGRAPHS |
| •Introduction | 1—7 |
| •The judgments | 8—17 |
| •Jurisprudence concerning alterations to judgments | 18—31 |
| •Permission to appeal | 32—33 |
| •The parties | 34—54 |
| •Towards Mrs Brewer's hire purchase | 55—76 |
| •The contractual documents | 77—85 |
| •SMRL's terms of business | 86—87 |
| •Fortis's terms of business | 88 |
| •During the hiring | 89—119 |
| •The pleaded issues | 120—124 |
| •The expert evidence | 125—158 |
| •The concession that Mr Mann and SMRL were not responsible for a collateral warranty about the car, as distinct from the engine | 159—163 |
| •Mr Mann's credibility | 164—205 |
| •The outcome of Mr Mann's and SMRL's appeals | 206—210 |
| •The date of the collateral warranty and the issue of Which party, Mr Mann and/or SMRL, gave it | 211—225 |
| •Joinder of SMRL | 226—255 |
| •The outcome of Mr Mann's and SMRL's appeals | 256—257 |
| •Fortis: the structure of its appeal | 258—266 |
| •Joinder of SMRL and the third party claim against it | 267 |
| •Bailment by description | 268—285 |
| •What does a description of the car as a"1930 Bentley Speed Six car" cover? In particular, does it extend to the car's engine? | 286 – 305 |
| •Was there a breach of the description "1930 Speed Six Car"? | 306 – 308 |
| •If there was a breach of the implied term alleged, what, if any, damages would Mrs Brewer be entitled to? | 309—328 |
| •Fortis's counterclaim | 329—335 |
| •The appeal as concerns Mrs Brewer's claim against Fortis, overall | 336—337 |
| •Conclusion | 338—341 |
Introduction
This is the judgment of the court. This appeal is about the sale and hire purchase of a vintage Bentley, at a price of £425,000. Large as that sum is, the damages at issue are comparatively small and have been dwarfed by the costs of the litigation. After a year of happy motoring the purchaser stopped paying the hire instalments, while she considered down-sizing her commitments. She then consulted Bonhams, the well-known auction house, with a view to selling the car, and received what she considered to be disturbing news about the nature of her purchase and its value. As it happens, there is no issue in this litigation about value: it is accepted that the car was (more than) worth its price. There are, however, substantial issues as to whether the car was properly described either by the Bentley dealer (by which I refer to both the man and his company) in his dealings with the purchaser, or in the hire purchase contract. The finance house terminated its contract with the purchaser for non-payment. The car was returned or repossessed by the finance house. The dealer made a swift offer to repurchase the car for the price for which he had sold it to the finance house, namely the £425,000 1. That offer was in the end accepted, but not, as it was originally intended, as facilitating a tripartite settlement of the whole dispute. (The car has since been resold by the dealer, after further work on it, for £675,000.) That repurchase has ensured, at any rate ultimately, that the financial remedies sought by the parties are comparatively small. The purchaser claimed £94,555 (the deposit and instalments paid by her under the hire purchase contract) from both the dealer and the finance house. The finance house counterclaimed £61,224 (a sum much reduced by reason of the resale of the car back to the dealer), mainly made up of the expenses of recovery, storage and such like. The judge awarded the claim of £94,555 against the dealer and the finance house, and dismissed the finance house's counterclaim.
In its advertising, which brought the car to the attention of the purchaser, the dealer described the car as a "1930 Bentley Speed Six". In an invoice to the finance house on the basis of which the purchaser paid a deposit of £40,000 (subsequently reduced to £35,000), the car was simply described as a "Bentley motor car". In the hire purchase contract between the finance house and the purchaser the car was described as a "1930 Bentley Speed Six car".
The purchaser's claim against the dealer was founded in collateral warranty. She asserted an oral warranty, that "the Bentley was a genuine 1930 Speed Six containing an authentic Speed Six engine", given at a meeting on 20 May 2007. The dealer did not dispute that he described the car as a 1930 Bentley Speed Six, but he submitted that this was a statement of opinion and not a contractual warranty (and that it was given on behalf of his company, not himself personally). He did, however, dispute that he had warranted that the car's engine was a "Speed Six engine" (authentic or otherwise). He accepted only that he had said that the engine had been prepared to Speed Six specification.
Among the many issues at trial were the questions: What was needed to entitle a seller to describe a car as a "1930 Bentley Speed Six"? Did such a car need to have in it an authentic Speed Six engine? What had the dealer said to the purchaser at the critical meeting on 20 May 2007?
The purchaser's claim against the finance house was founded on the hire purchase contract, which she submitted had been breached by the finance house since the car did not comply with its description. Her claim was in damages, not in rescission or repudiation. The finance house submitted that there was no "bailment by description" within the meaning of section 9 of the Supply of Goods (Implied Terms) Act 1973.
Both the dealer and the finance house in any event submitted that, on the evidence of the expert witnesses at trial, the car complied with any warranty that it was a "1930 Bentley Speed Six". In addition, the dealer said that the engine had been prepared to Speed Six specification (which is all that he accepted that he had said about it), even if it was not a Speed Six engine in its origins.
The judge decided all points argued (and some that had not been) in favour of the purchaser. He referred to the dealer in the most unflattering of terms, tantamount to findings of dishonesty (which had not been alleged). Unfortunately, it is submitted on behalf of the dealer that the judge lost his objectivity, or at any rate appeared to do so, and did not afford a fair trial.
The judgments
The trial took place over four days on 22–25 February 2010. After the conclusion of the evidence, the trial was adjourned for written submissions, which took place in two rounds and were completed by 17 March. There were no oral concluding submissions.
The judge, HHJ Anthony Thornton QC, delivered five judgments to the parties, to which I will refer as judgments 1, 2, 3, 4 and 5.
Judgment 1 was a draft, and was emailed to the parties on 9 August 2010, dated "[ ] September 2010". It contained 124 paragraphs. The parties were requested to submit corrections for the purposes of its handing down on a date to be arranged in late September. On 25 August 2010 the judge emailed the parties judgment 2, intended for handing down on, and dated, 5 October 2010. It was described as "Amended and Replacement DRAFT JUDGMENT": and its title-page contained the following:
"This draft judgment super[s]edes the draft judgment previously sent to the parties on 8 August 2010. That earlier judgment should be discarded. The changes between the two judgments do not affect or alter the decisions, findings or reasoning set out in that previous judgment."
Judgment 2 contained 203 paragraphs. The judge described it in his email as "the final version of the judgment which replaces the earlier draft". It was twice as long as judgment 1. The judge was subsequently to explain (in his judgment 5) that judgment 1 was sent out in error for judgment 2.
On 5 October the parties appeared before the judge for the handing down of judgment 2. The judge produced and handed down judgment 3, dated 5 October 2010. Its title-page described it as the "Approved Judgment" and it was given the neutral citation [2010] EWHC [2444] QB. It also contained 203 paragraphs, was in essentially the same form as judgment 2, but had been amended in ways which went beyond the correction of errors and editorial revisions. Consequential matters were debated before the judge. Among those matters were the dealer's and the finance house's applications for permission to appeal. Lengthy draft grounds of appeal had been submitted in advance of the hearing on behalf of the dealer and briefer grounds were put forward on the day of the hearing on behalf of the finance house. Those draft grounds were responding to judgment 2. They were already essentially in the form before this court. Among the grounds put forward on behalf of the dealer were those that must have made unpleasant reading for the judge, viz that he had failed to address important submissions, that...
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JH v Secretary of State for Work and Pensions and LH (CSM)
...rule is “best leave well alone”. Mr O’Kane has helpfully reminded me of the observations of the Court of Appeal in Brewer v Mann [2012] EWCA Civ 246 at paragraph “…However, we feel that we can provisionally state that where a judge has received no request from the parties to reconsider his ......
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JH CCS 227 2016
...rule is “best leave well alone”. Mr O’Kane has helpfully reminded me of the observations of the Court of Appeal in Brewer v Mann [2012] EWCA Civ 246 at paragraph [31]: “…However, we feel that we can provisionally state that where a judge has received no request from the parties to reconside......
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Keith Smeaton v Equifax Plc
...revisions despite the fact that he had recently been criticised by this court for adopting a similar course in another case: see Brewer v Mann [2012] EWCA Civ 246. It is right to note however that in the present case Equifax did not object to the judge revising Judgment 1 before it made its......
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ODS v Secretary of State for Work and Pensions (UC)
...face of it he did not rely on (or make) when coming to his decision or giving the full reasons for that decision: see Brewer v Mann [2012] EWCA Civ 246 (at paragraph 31). I bear in mind also that although the express power to amend reasons for a decision is provided for in section 9(4)(b) o......
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Litigation
...where neither party has requested him to do so, and the amendments made by the judge address points of appeal: Brewer v Mann [2012] EWCA Civ 246 at [18]–[31]. See also Wembley Laboratories Ltd v Joyce Ground Engineering Ltd (1989) 19 Con LR 143. here are also circumstances in which a defaul......