Dany Lions Ltd v Bristol Cars
| Jurisdiction | England & Wales |
| Judge | Judge Seymour |
| Judgment Date | 25 July 2013 |
| Neutral Citation | [2013] EWHC 2997 (QB) |
| Date | 25 July 2013 |
| Court | Queen's Bench Division |
| Docket Number | Case No: IHQ/13/0406 |
[2013] EWHC 2997 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Strand
London
WC2A 2LL
His Honour Judge Seymour QC
Case No: IHQ/13/0406
Mr Jonathan Chew (instructed by IBB) appeared on behalf of the Claimant
Mr Peter Head (instructed by Pitmans) appeared on behalf of the Defendant
Approved Judgment
This action arises out of the decision of the Claimant, Dany Lions Limited, to purchase a Bristol 405 motorcar with the registration number NOR11. As I understand it, that motorcar was produced in about 1955 and is one of a very small number of such cars ever produced. The suggestion in the material before me is that perhaps only 43 were ever produced and it is unclear how many of those 43, in addition to the vehicle which has given rise to this action, still survive.
The vehicle in question was acquired by the Claimant from the administrators of a company which had, during its effective operational life, been called Bristol Cars Limited. I am not sure that it was the same company as the company which produced the motorcar with the registration number NOR11 in the first instance, but that, perhaps, does not matter terribly much. A phoenix company came into existence following the original Bristol Cars Limited — by which I mean the one from the administrators of which the Claimant acquired the car — ceasing to exist, and the new Bristol Cars Limited is the Defendant in this action.
The case for the Claimant is that it entered into a contract, to be found in email exchanges between the parties, under which Bristol Cars Limited agreed to undertake fairly radical works to the car with the registration NOR11 at a price not exceeding £153,000. Part of the works included adapting the vehicle so as to accommodate an automatic gear box. As matters turned out, the Defendant did not do any work to the vehicle, and consequently this action was commenced on behalf of the Claimant seeking damages by reason of the alleged breach of contract of the Defendant in relation to undertaking the work.
There are two applications before me. Each of these is an application for summary judgment. The elements in respect of which summary judgment are sought relate to aspects of the Claimant's claim against the Defendant, but it is not one of those applications for summary judgment which is seeking, as it were, judgment in respect of the entirety of the claim.
The first application before me for summary judgment was issued on 9 th May 2013 and sought this relief: (1) an order declaring that on its proper construction it was a term of the works contract referred to in paragraph 19 of the Particulars of Claim that the price for the work should not exceed £153,000 inclusive of VAT, pursuant to Part 24 of the Civil Procedure Rules, because the Defendant has no real prospect of successfully defending this issue and there is no other compelling reason why this issue should be disposed of at a trial. Alternatively, second: ordering that paragraphs 13(1) and (5) of the defence be struck out pursuant to Part 23.4 of the Civil Procedure Rules: because these paragraphs disclose no reasonable grounds for defending the issue that the price for the works would not exceed £153,000 inclusive of value added tax.
The second application before me was issued, I think, on 20 th June of this year and by that application notice the relief sought is set out as follows: first, an order that the Claimant be granted summary judgment under Part 24 of the Civil Procedure Rules in relation to the following issues raised in the defence, because the Claimant believes that on the evidence, the Defendant has no real prospect of succeeding on these issues and there is no other compelling reason why these issues should be disposed of at trial, 1.1: the issue at paragraphs 15(3) and 31.(1) of the defence, that the works contract was void: common mistake. The mistake being the party's erroneous belief of the possibility of performing the works, and 1.2: the issue at paragraph 31(2) of the defence, that the works contract was frustrated and the party's rights and obligations thereunder were discharged, because of an extraneous change of circumstances, which was not the fault of either party. The change of circumstances being an appreciation on the part of the Defendant following the making of the works contract of the impossibility of converting the car to automatic transmission whilst retaining its full functionality. Alternatively, secondly: striking out paragraphs 15(3); 31(1) and (2) of the defence, pursuant to part 3.4 of the Civil Procedure Rules, because these paragraphs disclosed no reasonable grounds for defending the claim.
It is, not, I think, necessary for present purposes to refer specifically to any part of the Particulars of Claim. The thrust of the Claimant's claim I have already sufficiently indicated. It is, however, appropriate to refer to the paragraphs in the defence which are identified in the application notices to which I have already referred. Paragraph 13 of the defence was a pleading as to what was alleged at paragraph 17 of the Particulars of Claim and sub paragraph (1) is in these terms:
"It is denied that the email dated 5 th July 2011 constituted a contractual offer. It constituted an acceptance of the offer contained in the email dated 30 th June 2011, referred to above, purportedly giving rise to a contract between the parties on the terms and conditions referred to therein." (Quote unchecked)
Then at sub-paragraph (5):
"It is denied that the said terms provided that the price for the works would not exceed £153,000, including value added tax. It is not possible accurately to predict the cost of restoration works to vintage vehicles of the kind involved in relation to the car. The said sum was an estimate, which was subject to alteration depending on what came to light while the works were being carried out. The fact that it was an estimate is evidenced by the email dated 30 th June 2011 referred to above, which provides for the payment of an unspecified balance of invoice price on completion. The Claimant's email dated 5 th July 2011, referred to above, was an acceptance of the Defendant's terms and conditions and was incapable of adding to or varying them." (Quote unchecked)
Paragraph 15 of the defence was a plea to the allegations in paragraph 19 of the Particulars of Claim and sub-paragraph 3 provided:
"The said purported agreement was entered into on the basis of a fundamental shared mistake between the parties, that it was possible to convert the car's transmission to automatic whilst retaining the car's full functionality. It would not in fact have been possible to do so. The car has a high-revving engine, which is not suitable to conversion to automatic transmission. The works were therefore impossible to perform and the agreement was void for common mistake. The matters set out in the rest of this defence are without prejudice to the said contention." (Quote unchecked)
Then paragraph 31: a plea to paragraph 43 of the Particulars of Claim, which was denied, it was said, for the following reasons, of which sub-paragraph (1) was:
"The works contract was void for common mistake" — paragraph 15(3) above is repeated —"the parties therefore, had no rights and obligations under the works contract as at 4 th May 2012. Sub-paragraph 2: alternatively, the impossibility of converting the car to automatic transmission whilst retaining its full functionality was an extraneous change of circumstance which was not before either party. When the said impossibility arose, the works contract was frustrated and the party's rights and obligations thereunder were discharged. The matters referred to in the rest of this defence are without prejudice to the said contention."(Quote unchecked)
I have already indicated that it was common ground before me that the contract between the parties, if indeed a contract had been concluded, was to be found in an exchange of emails. The relevant emails, I think, begin with that which is identified in the defence: the email of 30 th June 2011 sent by the Defendant to the Claimant. It was actually addressed to Mr Andrew Owens of the Claimant. The heading was "Bristol 405 drophead coupe automatic" and what the email said was this:
"At last I have pleasure in confirming our engineering proposals and terms and conditions concerning the conversion of your Bristol 405 Saloon into a Bristol 405 drophead coupe with an automatic gearbox.
"As you know the finished car will be the only one of its kind in the world and will have the benefit of several important upgrades during the course of its remanufacture.
"During this process the following will take place: the body and chassis to be stripped to bare metal; all damaged areas to be removed and replaced with new metal; the upper body to be removed and structural A, B and C pillars constructed in wood to be removed and custom made steel replacements fitted; the car to be converted to a two-door convertible body as in a 405 drophead coupe; interior to be stripped and fully restored and replaced, including soundproofing, carpets, chairs, all leather work and dashboard; manufacture all new hood irons and latching mechanisms; make a hood cover in longlife fabric; we build the engine and accessories and upgrade the specification with enhanced power and torque to fit the automatic gearbox; fit a modern alternator to replace the dynamo; fit an electric fan; adapt the automatic gearbox to suit the Bristol engine...
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