David Piper v Mark Hales
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Simon Brown |
| Judgment Date | 18 January 2013 |
| Neutral Citation | [2013] EWHC B1 Ch |
| Docket Number | Claim No HQ11X01479 |
| Court | Chancery Division |
| Date | 18 January 2013 |
[2013] EWHC B1 Ch
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
His Honour Judge Simon Brown QC
Claim No HQ11X01479
Alexander Wright (Counsel) instructed by Wilmot & Co Solicitors LLP for the Claimant
Iris Ferber (Counsel) instructed by RHF Solicitors for the Defendant.
This is a case about a replica classic car, the legendary Porsche 917 which was originally produced by Porsche in 1969. It is a very fast, powerful and rare racing car that gave Porsche wins at Le Mans in 1970 and 1971. It became iconic and universally recognised after it featured in the 1971 film, Le Mans, starring Steve McQueen.
The Claimant, now in his eighties, is a former Formula 1 racing driver who had been a works driver for Porsche and had raced 917's. He owns an original Porsche 917 valued at about £5m and was, until recently, the owner of a replica valued at £1.25m built using genuine Porsche parts. Although he gave up racing many years ago, he continues to run cars in historic events, such as the Goodwood Festival of Speed. He is an acknowledged authority on these cars and, indeed was injured when driving one in the film
The Defendant is also a distinguished former racing driver who now works as a motoring journalist, sports car tester and racing driving teacher. Since 2004, he has practised through Fenlands Limited, a limited liability company owned and controlled by him.
In or around early 2009, the Defendant conceived of an idea for an article comparing the Porsche 917 with the Ferrari 512S, another iconic vehicle from around the same period as the Porsche 917. He procured the Ferrari 512S from Nick Mason, a pop musician and personal friend of the Defendant's, who had lent the Defendant his Ferrari 512S on a number of previous occasions, for the purposes of testing on a track nearby to him at the Cadwell Park circuit, near Louth in Lincolnshire.
The Defendant approached the Claimant in early March 2009 to procure a Porsche 917. The parties agreed that the Claimant would let the replica 917 go to the Defendant along with its mechanic Stephen Webb at an agreed fee of £2,000 + VAT, as documented in an email dated 30 March 2009. On that same day, the Defendant confirmed his booking of the track, marshal, medic and fire crew, having confirmed the insurance arrangements on 25 March 2009 that Octane Media Limited, his publishers, would insure the cars involved and also have public liability insurance in place too.
Meanwhile, on 19 March 2009, Richard Attwood, another famous former racing driver and Porsche works driver with particular expertise and experience in driving the 917, drove the Claimant's replica around the track at Goodwood in order to demonstrate it. It is accepted that the demonstration was a success and there were no apparent faults with the car.
On 22 April 2009, the Claimant, the Claimant's mechanic Mr Webb, Mr Ward (a journalist from Auto Italia), the Defendant, Mr Knill-Jones (Mr Mason's mechanic) and Mr Mason together with the Ferrari and the Porsche went to the test track at Cadwell Park.
There is no dispute that (1) the Claimant checked with the Defendant that his car had been insured, albeit the policy was not available to be produced, and the Defendant understood this to cover damage caused by river error but not mechanical defect; (2) before he went off on his own, after a photo shoot, to test the car the Defendant was specifically instructed by the Claimant and Mr Webb, to ensure that the care was not over revved beyond 7,000 RPM by missing the synchromesh gears, otherwise the engine would break as notoriously happened in 1970 involving Jo Siffert and then Vic Elford when the Porsche team lost two 917's at Le Mans. The Defendant accepts that he gave this assurance as he was ‘not competing and was not under pressure to deliver a fastest lap.’
The Car was first driven by the Defendant on a photographic session, at which the Car was driven slowly round for the benefit of static photographs. Mr Webb rode in the passenger seat of the Car during this session. Nothing untoward was noticed with the car or its gearbox.
The Defendant then test-drove the Ferrari with a dog tooth gearbox first and then the Porsche with its synchromesh one. After a few laps, he returned to the pits and had a conversation with the mechanic about the car in which he raised issues about the height of the steering wheel and the brakes.
At that point the parties' accounts diverge:
(a) The Claimant's evidence and that of Mr Webb is that the Defendant performed a few laps and then asked to adjust the steering wheel, but made no complaint about the gears. Mr Webb accepts that the Defendant raised concerns about the shuddering brakes;
(b) The Defendant's evidence is that he experienced problems when changing gear, in particular in engaging third gear, and that he reported this to Mr Webb who acknowledged that there was a problem with the gearbox but advised the Defendant to “ carry on and just be careful”; Mr Knill-Jones, the mechanic for the Ferrari gave evidence that something was said about the gears but the noise was too great for him to say what was actually said.
The Defendant went out again for several more laps until the car over revved to at least 8,200 RPM coming out of Park Corner whereon the engine blew.
The matter was pursued by Octane through its insurers. After protracted correspondence, the insurers (RSA) accepted (by letter dated 14 July 2010) that the cause of the engine damage was “ driver error” but averred that the damage was not insured under the policy because of the exclusion of damage “ as a result of mechanical breakdown”: the proximate cause of the damage to the engine was caused by the over revving of the engine and so specifically excluded from cover under the terms of the policy issued
In the meantime, the Claimant had arranged for the Car to be repaired. The engine was sent to Germany to be repaired by Gustav Nitsche, a specialist and former chief mechanic for the Porsche factory where the 917 was built. The total sums paid to Mr Nitsche were €37,370, as evidenced by an invoice with its itemised breakdown.
In addition, the Claimant incurred further costs associated with the repair:
(a) The Claimant paid his mechanic £100 per day for work to the Car itself, and work associated with removing and re-installing the engine. The days worked are set out in the Schedule of Loss: in total 12 days were worked at a cost of £1,200. Costs associated with parts and consumables was £240;
(b) The Claimant alleges he has incurred costs of £2,080 in transporting the engine. In the case of the return journey, these costs took the form of allowing David Griffiths to set off a fee against sums otherwise owing to the Claimant.
Having unsuccessfully tried to claim through Octane's insurers, the Claimant sought redress from the Defendant. The Defendant disputed liability and a formal letter of claim was sent to him on 8 March 2011. Following his continued denials, proceedings were issued on 19 April 2011.
The Claimant's case in this action is that the Defendant is personally liable because he failed to ensure the engagement of the gear as he was specifically requested to do. He claims that the Defendant's failure to do so was negligent and in breach of bailment. He claims from the Defendant the repair and allied costs of £37,071.45 and general damages for loss of use in the sum of £10,890.41.
The Defendant says that the cause of the over-revving was because the Car had a defective gearbox. This meant that the Car jumped out of gear momentarily, despite reasonable care and skill exercised by him, causing the engine to over-rev. He asserts it had a defective turret and spider & slider mechanism that allowed this to happen despite reasonable care being taken by him to obey the Claimant's specific instructions. The Defendant disputes the repair claim and denies the loss of use claim in full. He also alleges that he is not personally liable as the invoices between the parties were corporate not personal.
ISSUES
Upon opening there were 7 issues to be determined.
Liability
(a) Who were the parties to the contract for the hire of the Car?
(b) What duties, if any, were owed by the Defendant to the Claimant in respect of the Car?
(c) What was the cause of the engine damage?
(d) In the premises did the Defendant fail to discharge such duties as he owed the Claimant?
Quantum
(e) What recoverable loss did the Claimant suffer in respect of the cost of repairs?
(f) What recoverable loss, if any, did the Claimant suffer in respect of loss of use?
(g) Did the Claimant fail to mitigate his losses?
I have carefully considered both Counsel's most helpful Opening and Closing written and oral submissions in the light of all the evidence and adopt them where they co-incide with my judgment.
(a) Parties: The issues here are whether Mr Piper contracted personally or for Bromcount (his company), and whether Mr Hales contracted personally or for Fenlands (his company).
Bromcount
The Defendant no longer maintains the plea that the Claimant has no title to sue because the owner of the Car was Bromcount, not him personally.
Fenlands
(a) The Defendant no longer maintains the plea that Fenlands rather than himself personally was the contracting party. The Defendant raises an unpleaded plea of estoppel in his closing submissions on the basis that the invoicing was corporate for VAT reasons. In my judgement this, as the Claimant submits, is simply unsustainable: it is trite law that for there to be an estoppel by representation, there must be an unequivocal representation, reliance, detriment and unconscionability. None of those features are present in this case. There was no representation (and certainly no...
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