Morin v Bonhams & Brooks Ltd

JurisdictionEngland & Wales
JudgeLord Justice Mance,Lord Justice Keene,The President
Judgment Date18 December 2003
Neutral Citation[2003] EWCA Civ 1802
Docket NumberCase No: A3/2003/0708
CourtCourt of Appeal (Civil Division)
Date18 December 2003

[2003] EWCA Civ 1802

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH

DIVISION (MR JONATHAN HIRST QC,

SITTING AS A DEPUTY JUDGE OF THECOMMERCIAL COURT

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before:

The President

Lord Justice Mance and

Lord Justice Keene

Case No: A3/2003/0708

Between
Thierry Morin
Appellant
and
(1) Bonhams & Brooks Limited
(2) Bonhams & Brooks S.a.m.
Respondents

Mr Stephen Houseman (instructed by Messrs Travers, Smith, Braithwaite) for the Appellant

Mr Matthew Parker (instructed by Jones Day Gouldens) for the Respondents

Lord Justice Mance
1

The appellant, Mr Morin, is French by nationality, but resides and carries on an antiques business in England. He has a penchant for old cars. On 21 st May 2001 at an auction held in Monaco, he bid FF 4,350,000 (c. £430,000) for a "mighty Ferrari 410 Superamerica", built in 1959. He incurred an additional FF 538,200 (including TVA @ 19.6%) by way of auction premium. The catalogue description stated in English:

"The car was first registered on 23 rd December 1960. Later that decade saw it at Maranello for an engine overhaul, no further work being necessary until 1989 when Denzel in Vienna carried out another overhaul. Use has always been sparing and total mileage covered from new by this ultra-rare, virtually one owner Ferrari is a mere 16,626 km."

And in French:

"Immatriculé le 23 décembre 1960, ce superbe coupé a reçu depuis deux révisions de moteur, la dernière effectuée par Denzel à Vienne en 1989, et n'a couvert aujourd'hui que 16,626 km."

A Nota Bene in the catalogue explains that

"The catalogue descriptions of lots in French are only a summary of the fuller descriptions in English. In case of dispute, the English versions will prevail."

2

The effective single owner was an Austrian, Mr Mayerhoffer, for whom the car was auctioned. According to his own letter dated 4 th September 2001, the catalogue description was gravely inaccurate:

"The mileage refers to the period after the complete engine overhaul, which was carried out in Maranello in 1969".

Why the engine overhaul affected the milometer or its reading is unexplained. After being transported to England, tested and inspected, the car was, according to the evidence, found to suffer from serious engine wear. Mr Morin says that it was the low mileage (or 'kilometerage') of the car that attracted him, and that he would probably not have bought the car at all if its mileage had been accurately described, and certainly not at such a high price.

3

The second respondent, Bonhams & Brooks SAM ("BBM") conducted the auction. BBM is a Monagasque company formed in 1992 as a subsidiary of the first respondent, Bonhams & Brooks Limited ("BBL"), "so as to allow the Bonhams Group to conduct auctions within Monaco". It has three directors (Robert Brooks, Simon Kidston and Robert MacLean) who also feature among BBL's 14 or so directors. Another subsidiary is Bonhams & Brooks Europe SA of Geneva ("BBE"), which has the same three directors as the Monaco company (together with a fourth, who may or may not also be a fourth director of the Monaco company).

4

The basic issue on Mr Morin's appeal is whether he should be permitted to pursue his grievance against BBM in England. There is a secondary issue whether he has a properly arguable claim against BBL which he should on that basis also be allowed to pursue. Mr Jonathan Hirst QC, sitting as a deputy judge of the Commercial Court, decided against Mr Morin on both these issues. He therefore refused an application which was before him by Mr Morin for permission to serve out of the jurisdiction on BBM, and he set aside the service of the proceedings upon BBL within the jurisdiction. This appeal is brought pursuant to his permission. BBM cross-appeals against the judge's conclusion that there is a properly arguable case against BBM, and on the ground that permission to serve out of the jurisdiction on BBM should anyway be refused for non-disclosure by Mr Morin in his original affidavit seeking permission.

5

The salient facts regarding the purchase are that Mr Morin heard of the forthcoming auction, telephoned BBL's office in London and requested a catalogue. He received one by post from BBL at his London home on about 6 th May 2001. He studied the catalogue, in which the car was one of 59 "historic" cars up for auction. On about 9 th May, he telephoned BBL for and was given the car's estimated auction price, $400–500,000. On 19 th May, he travelled to Monaco, and was able to see the car briefly on 19 th and 20 th May. He was not allowed to start the car's engine or drive it. On 20 th May he was given a short condition report which made no reference to mileage, and stated that

"The car was driven into place and no noticeable problems were encountered.

.….

Please note that this condition report is given in our opinion, representing our views only.

Any bid made is not reliant on any description given in the catalogue or elsewhere."

6

Admission to the auction at the Prince Rainier Car Museum on 21 st May was by catalogue and signature of a "bidder reservation form". During the auction, Mr Morin became involved in a bidding 'battle'. The price (including premium) which he eventually bid to obtain the car was the subject of an invoice sent to him in London by BBM and was paid by a remittance from a Bahamas trust, pursuant to instructions which he gave to the London branch of a bank. Mr Morin arranged the shipment of the car to England and its insurance from June 2001. Meanwhile, "Bonhams & Brooks" issued a press release under BBL's London address with the heading "Monaco Sensation from Bonhams & Brooks", stating inter alia:

"Perhaps the most remarkable result of the sale was the figure Bonhams & Brooks achieved for the 1959 Ferrari 410 SuperAmerica, owned by an 82-year old enthusiast who had bought it for himself as a Christmas present in December 1960. Still with only 16,000 kms covered from new, this striking, ultra-exclusive Ferrari set another world record at FF4,800,000 after a lengthy bidding battle between an American telephone bidder and a European buyer in the sale room."

7

After discovering the car's poor mechanical condition, Mr Morin complained to BBL. Mr Mayerhoffer was contacted about the complaint and he responded to Mr Kidston at BBL's London address by his letter dated 4 th September 2001. Letters addressed by Mr Morin's solicitors to Mr Brooks at Bonham & Brooks, at BBL's London address eventually yielded a faxed response from BBE's Swiss office on 11 th December 2001, to the effect that Mr Kidston would not be back in the office until the next day. On the next day there arrived from BBE's Swiss fax number a reply signed by Mr Kidston for BBM under BBM's typed name and address, dated "Monaco, 12 th December 2001". It may well be, as Mr Houseman submitted, that Mr Kidson was in Geneva when this was signed and sent. The letter asserted Mr Morin was "no doubt" attracted by the car's single ownership and extreme rarity as one of only 12 such cars made by Ferrari, and that he had "no doubt…carefully inspected the car before bidding on it". It said that

"The price which [Mr Morin] chose to pay for the car in open competitive bidding is entirely a matter for him";

and that

"The mileage shown in the catalogue was as stated by the vendor to us and appeared to us to be consistent with the car's condition and history".

8

In the catalogue the auction had been announced as "A Sale of Important Historic Motor Cars, Fine Automobile and Collectors' Watches" under the jurisdiction of a Monegasque huissier, "to be sold at auction by Bonhams & Brooks S.A.M. Monaco". In addition to the pages describing and portraying the cars and other items for sale, the catalogue contained a page headed "Important Information for Buyers and Sellers" and another headed and setting out a "Notice and Conditions of Sale". The former page referred to the requirement of bidder registration, and said that

"each bidder, by making a bid, automatically acknowledges that he or she has read, understood and accepted [the conditions of sale contained in the catalogue]."

The bidder registration form stated in small printed capitals at its foot:

"I confirm that I have read, fully understand and agree to be bound by the conditions of sale printed in the catalogue and the section 'general information'. I further confirm that I have myself inspected or had inspected by my representative all lots for which I will bid and that I will be making any bid on the basis of such inspection and not on the basis of any description, warranty or representation in the catalogue or elsewhere made by Bonhams & Brooks SAM or the seller of any lot or their respective agents or employees"

Mr Morin's evidence (through his solicitor, Mr Adshead) is that, on his arrival at the auction room on 21 st May, there was a large queue and little time, that he completed the details on and signed this form in a hurry, that he has no recall of the small print at its foot, and that he was not given a copy of the form. So, by the time when he applied for permission to serve out of the jurisdiction, he believed that he had not seen or signed any document giving notice of standard conditions.

9

The catalogue in fact contained conditions (in their English version) as follows:

"GENERAL CONDITIONS

These conditions apply to all Sales by Bonhams & Brooks in Monaco and shall apply mutatis mutandis to any sale by private treaty.

1. In these Conditions the following words and expressions shall have the following meanings:

1.1 "Bonhams & Brooks" means Bonhams & Brooks SAM.

1.2 "Catalogue" includes any...

To continue reading

Request your trial
17 cases
  • Middle Eastern Oil LLC v National Bank of Abu Dhabi
    • United Kingdom
    • Queen's Bench Division (Commercial Court)
    • 27 November 2008
    ...statute. In my judgment, looking at the matter in the round, and making the required “value judgment” (see Morin v Braham & Brooks [2004] 1 Lloyd's Rep. 702 at paragraph 16 per Mance LJ) it seems to me that the most significant element or elements of the events constituting the tort occurre......
  • Deutsche Bahn AG & Others v (1) MasterCard Incorporated
    • United Kingdom
    • Chancery Division
    • 9 March 2018
    ...Beheer BV v Kookmin Bank Co [2006] EWHC 1450 (Comm), and by Mance LJ (as he then was) at paragraph 18 of his judgment in Morin v Bonhams & Brookes Ltd [2003] EWCA Civ 1802, such cases are not helpful in the context of s.11(2)(c) of the 1995 Act. (ii) The countries in which the elements an......
  • Harry Roberts (A minor and a protected party, by his mother and litigation friend, Mrs Lauren Roberts) v Soldiers, Sailors, Airmen and Families Association
    • United Kingdom
    • Queen's Bench Division
    • 24 April 2020
    ...and therefore mine, it is agreed, is to make an evaluative judgement of all of the circumstances ( Fiona Trust paragraph 22, Morin v Bonhams and Brooks Ltd [2004] 1 Lloyds Rep 702, Dornoch Ltd v Mauritius Union Assurance Co [2006] 2 Lloyds Rep 475 at paragraph 47, and per Lord Clarke at p......
  • Dornoch Ltd v Mauritius Union Assurance Company Ltd
    • United Kingdom
    • Queen's Bench Division (Commercial Court)
    • 19 August 2005
    ...misrepresentation, I do not find them helpful in deciding the proper law of the tort using the principles set out in PILA. 87 [2004] 1 Lloyd's Rep 702 in particular at para 88 File 1/Tab 3/page 12 para 23 89 Montocchio para 47. 90 Poisson para 23. 91 [1984] AC 398 at 412D, per Lord Diploc......
  • Request a trial to view additional results
4 books & journal articles
  • THE EFFECTIVE REACH OF CHOICE OF LAW AGREEMENTS
    • Singapore
    • Singapore Academy of Law Journal No. 2008, December 2008
    • 1 December 2008
    ...(CA) (validity and effect of exemption clause to tort claim tested by proper law of the contract). 42 Morin v Bonhams & Brooks Ltd [2003] EWCA Civ 1802 at [23], [2004] 1 All ER Com 880; Trafigura Beheer BV v Kookmin Bank Co[2006] EWHC 1450 (Comm) especially at [112]—[113], [2006] 2 Lloyd’s ......
  • THE CONTRACTUAL BASIS OF THE ENFORCEMENT OF EXCLUSIVE AND NON-EXCLUSIVE CHOICE OF COURT AGREEMENTS
    • Singapore
    • Singapore Academy of Law Journal No. 2005, December 2005
    • 1 December 2005
    ...2 SLR 275. 6 See, eg, Morin v Bonhams & Brooks Ltd[2003] 2 All ER (Comm) 36 at [64]; affirmed in [2004] 1 All ER (Comm) 880; [2004] 1 Lloyd’s Rep 702 without reference to this point. 7 See, eg, A Bissett-Johnson, “The Efficacy of Choice of Jurisdiction Clauses in International Contracts in ......
  • CHAPTER 13 ROYALTY MANAGEMENT: ADMINISTRATIVE AND JUDICIAL UPDATE 2004-2006
    • United States
    • FNREL - Special Institute Federal and Indian Oil and Gas Royalty Valuation and Management (FNREL) 2007
    • Invalid date
    ...without prejudice, (March 17, 2003), case dismissed without prejudice subject to reinstatement after agency issues revised rule (Nov. 21, 2003), Civ. Nos. 00-761 & 00-887 (D.D.C. 2003). Likewise, rulemaking revising the 1988 Federal and Indian Gas Rule,3 led to a 1997 Federal Gas Rule4 refl......
  • MISDESCRIPTION AND MISREPRESENTATION LIABILITY ARISING OUT OF ART AUCTIONS IN NEW ZEALAND.
    • United Kingdom
    • Art Antiquity & Law Vol. 26 No. 1, April 2021
    • 1 April 2021
    ...Investment Ltd v. Christie, Manson & Woods Ltd [2012] EWHC 2198 at [134], [147], [152]-[153]. In Morin v. Bonham & Brooks Ltd [2003] EWCA Civ 1802, [2003] 2 All E.R. (Coram) 36, at [24], Mance L.J. opined; "[i]t is a usual implication in relation to any expression of opinion by a pr......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT