Robin Colin Foster and Another v Action Aviation Ltd (a Company Incorporated Under The Laws of England and Wales)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hamblen |
| Judgment Date | 26 July 2013 |
| Neutral Citation | [2013] EWHC 2930 (QB) |
| Court | Queen's Bench Division |
| Docket Number | 2011/1288 Case No: 2001 Folio 1418 |
| Date | 26 July 2013 |
[2013] EWHC 2930 (QB)
Mr Justice Hamblen
2011/1288
Case No 2011 Folio 1288
Case No: 2001 Folio 1418
IN THE COMMERCIAL COURT
QUEEN'S BENCH DIVISION
The Royal Courts of Justice
Strand
London
England, WC2A 2LL
Mr M Reeve (instructed by Gates & Partners LLP) for the Claimants
Mr T Marland (instructed by Clark Ricketts LLP) for the Defendants
This is an application by the claimants to admit two further documents following the conclusion of the trial in this matter. The trial commenced on 30 April 2013 and concluded on 13 May 2013. At the conclusion of the trial, I indicated that judgment was likely to be delayed because I was due to go away on the Circuit until July. On 13 June 2013 the claimants' solicitors wrote to the court copied to the defendants' solicitors requesting permission to adduce the further evidence. The defendants insisted that a formal application be issued, which it was on 1 July 2013, and indicated that the application would be opposed, although they did not identify their reasons. I ordered that if the application was to be opposed, there should be an oral hearing and that has taken place today, 26 July 2013.
A central issue at the trial was whether the third defendant, Mr Harding, made a representation to Mr and Mrs Foster that the aircraft which Mr Foster subsequently bought had had no accidents. There was an issue not only as to whether this representation was made but also as to where any such conversation took place and who would have been present. The claimants' case and the evidence of Mr and Mrs Foster was that the conversation took place alongside the aircraft in Dubai on 11 April 2010 which was the day on which they had been due to go on a demonstration flight but due to technical difficulties, that flight had to be postponed. It was their evidence that they nevertheless went out to the aircraft to view it with Mr Harding and Mr Barclay and it was at that time the representation was made. This was denied by the defendants whose evidence was that no aircraft visit took place on that day.
Mr Harding, Mr Barclay and Mr Butler gave evidence that they met the Fosters in the FBO lounge at Dubai, explained that there could be no demo flight because of the technical issues which had arisen and that there was no aircraft viewing that afternoon. The only viewing was on 13 April 2010 when Mr Foster came out alone for the rescheduled demonstration flight. There is therefore a stark conflict of evidence on an important issue in the case.
During the course of the trial and after the claimants' case was closed, the defendants produced some documents from ExecuJet who provide handling services at Dubai relating to the visit of the aircraft. They adduced those documents in order to seek to support their case that Mr Butler was present when the aircraft arrived at Dubai on 11 April 2010 and the documents they produced did support that assertion. One of the documents also made reference to a possible aircraft viewing it said, "Pax transport for aircraft viewing". In evidence, the defendants' witnesses said that that may have referred to the fact that the transport had been booked for a viewing but they were adamant that no viewing in fact took place that day. In the light of those documents and what the defendants said was clear evidence that Mr Butler was present, the defendants' solicitors wrote to the claimants' solicitors saying as follows:
"In the circumstances, we would invite your clients to abandon in toto the allegations of the accident conversation on that day beside the aircraft, i.e. the allegation that the conversation occurred at all and the claim that is advanced in fraud and negligence. Should your clients fail to do so, we put you on notice that we will be inviting the court to consider the criminal consequences of Mr and Mrs Foster having perjured themselves so as to advance an unfound allegation of fraud against Mr Harding seeking over $2 million in damages as a result...
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