England and Wales Court of Appeal (Civil Division) Decisions

BAILII Citation Number: [1996] EWCA Civ 1358

Case No. QBENF 94/0907/C

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

KING'S LYNN DISTRICT REGISTRY

(MR. ROBERT OWEN QC)

 

Royal Courts of Justice

Strand

London WC2

 

Date: Wednesday, 3rd April 1996

 

B e f o r e:

 

LORD JUSTICE BUTLER-SLOSS

LORD JUSTICE ROCH

LORD JUSTICE HOBHOUSE

 

- - - - - -

 

(1) MICHAEL ROBERT DOWNS

(2) JANE RENA DOWNS

Plaintiffs/Appellants

 

- v -

 

(1) KEVIN PAUL CHAPPELL

(2) STEPHENSON SMART (a firm)

Defendants/Respondents

 

- - - - - -

(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

- - - - - -

 

MR ROBERT DENMAN (Instructed by Messrs Dawbarns, King's Lynn, Norfolk, PE30 1RD) appeared on behalf of the Appellants

MR. MICHAEL HARRINGTON (Instructed by Messrs Hawkins, 19 Tuesday Market Place, King's Lynn, Norfolk, PE30 1JW) appeared on behalf of the 1st Respondent

MR. MURRAY SHANKS (Instructed by Messrs Mills & Reeve, 3-7 Redwell Street, Norwich, Norfolk) appeared on behalf of the 2nd Respondent

- - - - - -

J U D G M E N T ( As approved by the Court)

HOBHOUSE LJ:

In this action the Plaintiffs Mr and Mrs Downs sue the Defendants for damages. Against the First Defendant Kevin Chapp­ell they claim damages in the tort of deceit. Against the Second Defendants Stephenson Smart, who are a firm of accountants, they claim damages in the tort of negligence. At the trial before Robert Owen QC sitting as a Deputy Judge of the Queen's Bench Division, the Judge found in favour of the Plaintiffs on liabil­ity against each of the Defendants but held that the Plaintiffs had failed to prove that they had suffered any loss as a result of the Defendants' torts. He therefore gave judg­ment for the Defendants. The Plaintiffs have appealed to this Court. And the sole remaining issue between the Plaintiffs and the Defendants is one of causation. The Defendants accept the Judge's findings on liability.

In the Spring of 1988 Mr Downs was fifty-six years old and his wife a little older. They had a newsagents shop in Yeovil which they had begun to find very demanding, principally because of the long hours it was necessary for them to work. They decided to sell and look for an alternative business to see them through to their retirement. They successfully negotiated a sale of their newsagent shop at a price that would yield net proceeds of about £68,000. They followed up a number of possibly suitable small retail businesses which were for sale. In Daltons Weekly they saw an advertisement for a bookshop in Kings Lynn. They sent off for the particulars. On 23rd April 1988 they received particulars from the agents which read:

"K P Chappell

Bookseller

3/5 St James Street, Kings Lynn, Norfolk

An established bookshop, situated in this delightful west Norfolk market town, specialising in the sale of new books, prints and maps also holding a lucrative agency for ord­nance survey sheets. The business has been in the present hands for the past five years, and we are advised that the turn-over in the last financial year was nearly £81,000 (ex VAT), producing a gross profit of just under £22,000. With the business is the owners private accommodation comprising hall, lounge, kitchen/diner, two double-bedrooms and bath­room, all having the advantage of gas-fired central heat­ing.

A very lucrative business producing a good income together with a comfortable home and a first class freehold investment personally inspected and highly recommended."

The premises were described in more detail. As regards the business, it further stated:

"Trading Hours: Monday to Saturday 9am to 6pm

Trading Figures: Certified accounts for the year ended 30th September 1986 show a turnover of £80,788 (ex VAT), giving a gross profit of £21,924. These accounts may be reconstituted to show a true net profit of around £15,000. Interim figures supplied by the vendor ended 30th September 1987, show an increase in the turnover to £94,098.

Staff: currently two part-time assistants are employed, although we feel a husband and wife partnership could adequately cope with the business and save this expense."

The price was said to be £120,000 for the freehold property, to include goodwill, trade fixtures and fittings; the stock in trade to be purchased separately at valuation (approx £20,000).

The Judge found:

"In the course of his evidence Mr Downs said, and I accept, that at that stage they were interested in a number of other businesses, that the figures recited above did not compare favourably with other businesses, and that in consequence they did not take the matter further." (p.2)

About ten days later, in early May, the Downs were sent by the agents a second version of these particulars in which the figures had been changed. The relevant passage now read:

"We are advised that the turnover in their last financial year was £109,698 (ex VAT), producing a gross profit of just under £33,500."

"The certified accounts for the year ended 30th September 1986 shows a turnover of £80,788 (ex VAT), giving a gross profit of £21,924. These accounts may be reconstituted to show a true net profit of around £15,000. Interim figures supplied by the vendor for the year ended 30th September 1987 show an increase in the turnover to £109,698, giving a gross profit £33,376 (30.4%). The reconstituted net profit would be approx £22,000."

As the Judge found, these new figures were a much more attractive proposition for Mr and Mrs Downs and on 16th May they made the journey to Kings Lynn where they visited the shop and met the owner Mr Chappell. The outcome of the meeting was that the Downs offered, subject to contract, to buy the business and premises for £120,000 plus stock at valuation and Mr Chappell (subject to contract) accepted that offer. The Plaintiffs however asked Mr Chappell about the turn-over and profit figures of the business, particularly those stated in the second version of the particulars. They asked to see the accounts. All that Mr Chappell was in a position to give them was a copy of the one page 'Trading and Profit and Loss Account for the Year ended 30th September 1986' and a very basic rough schedule setting out some figures for the year ended 30th September 1987. The figures in the schedule included figures which corresponded to those given in the second version of the particulars but in no way provided any verification of them. The Plaintiffs asked for independent verification of the figures. They were not prepared to proceed without this and indeed the Building Society from whom they were seeking a mortgage would require verification as well.

Mr Chappell therefore requested his accountants, the Second Defendants to send to the Plaintiffs a letter of verification. In fact there was already such a letter in existence because an earlier prospective purchaser, Mr Booty, had asked for one in February. So Mr Chappell knew what he was asking his accountants to provide. On 24th May the Second Defendants sent the letter to the Plaintiffs. It read:

"Dear Mr and Mrs Downs,

K P Chappell - Bookseller

We refer to your request to our above-named client for some information with regard to his trading and profit and loss account figures for the year ended 30th September 1987. Without carrying out an audit we have ascertained that the takings for the year are approximately £110,000. It is normal to expect our client to achieve a gross profit percentage in the region of 31% which would result in a profit of £34,000. A rough resumay [sic] of the purchases for the year would seem to substantiate this fact.

Our client's overheads for the year are approximately £15,000 - that includes bank interest of just under £3,000 which would not be appropriate to you because of your separate finance arrangements. This figure for overheads also includes a charge for depreciation of approximately £250.

As can be seen from these figures our client is left with approximate net profit for the period of £19,000.

We hope this information proves sufficient for your requirements but should you require any further information do not hesitate to contact Mr Dodds of this office.

Yours faithfully,"

This letter was sent with the knowledge and authority of Mr Chappell. Mr Chappell knew that the figures in it were false. The turnover had not been approximately £110,000; the normal gross profit percentage was not in the region of 31%; the profit was not £34,000. The explanations given by the Defendants at the trial were rejected by the Judge. He was not prepared to treat Mr Chap­pell as a truthful witness. The Judge likewise did not accept Mr Dodds's attempt to justify the letter. The Second Defen­d­ants were recklessly negligent. They had not ascertained that the takings for the year were approximately £110,000, or any sum. They had no basis for the statement that it was normal to expect Mr Chappell to achieve a gross profit percentage in the region of 31%. The Second Defendants should have said, as was the truth: "We are unable to verify the figures which Mr Chappell has given you". If they were unhappy about doing that, they should simply have declined Mr Chappell's request that they send the "Booty" letter to the Plaintiffs. In fact, the Second Defendants did not complete any accounts for Mr Chappell's business for the year ended 30th September 1987 until September 1989, some 16 months later.

The figures given by Mr Chappell to the Plaintiffs and, purportedly, verified by the Second Defendants satisfied the Plaintiffs. The figures showed a business with a very healthy, and growing, turnover with a substantial gross profit margin which would cover their financing costs and leave them with enough to live on. The Plaintiffs decided to go ahead. They told Mr Chappell that the information was exactly what was required and that it had been passed on to their mortgage broker. They completed on the sale of their Yeovil business. They obtained and accepted an offer of a £60,000 mortgage on the Kings Lynn shop from a Building Society and on 15th July exchanged contracts with Mr Chappell. Completion took place on 21st July. They purchased the stock at a valuation of £24,507.

I will have to return to what happened to the business subsequently. But, for present purposes, it suffices to say that it turned out that the business was not a viable one for the Plaintiffs. It could not generate the turnover and profits necessary to cover the Plaintiffs' financing costs and provide them with enough to live off. Despite the injection of additional capital there was not enough money to run it. There was an inevitable decline and they have now lost the greater part of their investment.

The Judge found that the Plaintiffs relied upon the figures which they were given by Mr Chappell and the Second Defendants in the letter of 24th May in deciding to buy. The Judge expressly accepted Mr Downs's evidence that "they would not have contracted without verification of the figures for 1987". However the Judge continued (p.12):

"But it does not follow from the fact that the Plaintiffs them­selves required verification of the figures that they would not have contracted had the true figures for the year in question been provided. The Defendants contend that know­ledge of the true figures would not have made any dif­ference to the Plaintiffs, that they would have gone ahead with the purchase and at the same price. It is therefore necessary to consider whether, on the balance of probabilities, the Plaintiffs would have withdrawn had they been provided with the true figures."

The Judge then considered the figures and concluded (pp.14-5):

"I have no doubt that Mr and Mrs Downs firmly believed they would not have contracted to purchase the business had they been informed of the true figures for 1986/7. That belief is readily understandable given the financial distress that they have suffered. But having considered the arguments summarised above and carefully weighed the evidence upon which they depend, I have come reluctantly but firmly to the conclusion that the Plaintiffs have not discharged the burden upon them of demonstrating that on the balance of probabilities they would not have completed the sale had the true figures for 1986/7 been disclosed to them."

This finding was, in the Judge's judgment, fatal to the Plaintiff's case against both Defendants and he held that they had failed to prove causation.

However he went on to make findings on the issue of damages (p.20 e.s.). He quoted from the judgments of Bingham LJ in County Personnel v Pulver [1987] 1 WLR 916 and Staughton LJ in Hayes v Dodd [1990] 2 AER 815. He considered the argument of counsel for the Plaintiffs that the Plaintiffs had committed themselves to the purchase of a business which they could not afford in the sense that it could not generate sufficient income to finance the necessary borrowing and provide them with a living and that accordingly their loss should be assessed by reference to the annual shortfall in income, ie the difference between the income that was generated and the income that would have been generated had the representations been true. The Judge was prepared "in the unusual circumstances of this case" to adopt that approach but he concluded (pp.24-5):

"In my judgment the critical figure is not gross but net profit. The net profit represented by the Defendants was very close to the true net profit for 1986/7. Had the true net profit figure been sustained, the Plaintiffs would not have been financially embarrassed by their borrowing; and the business would have provided them with the living that they expected. Thus I am not satisfied that there was a shortfall of the nature contended for by [counsel]. The subsequent decline in net profit, which has undoubtedly caused great hardship for Mr and Mrs Downs, is attributable to the recession and to number of other factors specific to the business, such as the reduction in demand from local academic institutions, the reduction in demand for ordnance survey maps, and, 18 months after the purchase, the opening of a rival bookshop. It also seems clear that for their first year's trading Mr and Mrs Downs' inexperience in stocking such a shop played its part.

It follows that in my judgment the Plaintiffs have failed to establish a loss attributable to the alleged tortious acts or omissions on the parts of the Defendants whether assessed by the diminution in value or by reference to the alternative approach urged by their counsel. Thus their claim would have failed even if I had been satisfied that disclosure of the true figures for 1986/7 would have resulted in their withdrawal from the purchase."

 

The Judge's Approach:

The Judge made a comparison. He took the figures in the 24th May letter and compared them with what he considered would have been truthful figures derived from the accounts produced by the Second Defendants 16 months later. He then asked the question what would have happened if the Plaintiffs had been given the 'truthful' figures and treated the answer to that question as decisive of the Plaintiffs' ability to claim against either Defendant. He then went on to adopt a similar approach in assessing damages. In my judgment the Judge was in error in the approach that he adopted.

I will take the tort of deceit first. For a plaintiff to succeed in the tort of deceit it is necessary for him to prove that -

(1) the representation was fraudulent;

(2) it was material; and

(3) it induced the plaintiff to act (to his detriment).

A representation is material when its tendency, or its natural and probable result, is to induce the representee to act on the faith of it in the kind of way in which he is proved to have in fact acted. The test is objective. In the present case it is clear that the test of materiality was satisfied and the contrary has not been suggested.

As regards inducement, this is a question of fact. The Judge has found that the representations made did induce the Plaintiffs to enter into the relevant transaction, that is to say, the contract with Mr Chappell to purchase his business and shop. The Plaintiffs were induced to act to their detriment. The word 'reliance' used by the Judge has a similar meaning but is not the correct criterion.

The Plaintiffs have proved what they need to prove by way of the commission of the tort of deceit and causation. They have proved that they were induced to enter into the contract with Mr Chappell by his fraudulent representations. The Judge was wrong to ask how they would have acted if they had been told the truth. They were never told the truth. They were told lies in order to induce them to enter into the contract The lies were material and successful; they induced the Plaintiffs to act to their detriment and contract with Mr Chappell. The Judge should have concluded that the Plaintiffs had proved their case on causation and that the only remaining question was what loss the Plaintiffs had suffered as a result of entering into the contract with Mr Chappell to buy his business and shop.

The position is similar in relation to the Second Defendants. As already pointed out the Judge asked himself the wrong question. At the time the Second Defendants wrote the May letter and indeed for sometime afterwards no one knew what the true figures were. (Indeed, it is very doubtful whether even the figures produced by the Second Defendants in the Autumn of 1989 could properly be described as 'true' figures.) The only answer that the Second Defendants could have properly given was that they did not know. It was wrong both factually and legally for the Judge to create the hypothesis that the Second Defendants could and would have given the Plaintiffs accurate figures so as to give them an accurate basis upon which to decide whether to make a contract with Mr Chappell. Here again, what the Judge should have done is to ask simply whether the Plaintiffs entered into the contract in reliance upon the Second Defendant's letter. He answered that question in the affirmative. The causative relationship between the Second Defendants' tort and the entry into the contract was established. That leaves the question what loss did the Plaintiffs suffer as a result of entering into the contract.

 

Damages:

The factual starting point for the assessment of damages is that the Plaintiffs purchased Mr Chappell's shop and business. If Mr Chappell had not been fraudulent and the Second Defendants had not been negligent, the Plaintiffs would not have entered into the transaction. This is therefore, factually, a 'no-transaction' case. The Plaintiffs' damages have to be assessed by reference to what they have lost as a result of entering into the transaction. As I will explain later, this statement of the causative principle to be applied is subject to a qualifi­cation. But it provides the only valid starting point and to take any other starting point is unsound. The causal relevance of the Defendants' torts was that they caused the Plaintiffs to enter into the transaction. It follows that the recoverable damages must have been caused by that consequence.

No question of remoteness of damage arises. It was the intention of the Defendants that the letter of 24th May should have the result that the Plaintiffs buy the shop and business. They also knew that the Plaintiffs were borrowing a substantial sum to finance the purchase and that, if the business did not generate sufficient turnover and profit to finance the borrowing and enable the Plaintiffs to live, it would not be viable for them. All parties must also have been aware that property values can go down as well as up and that if the Plaintiffs should have to sell they might have to do so at a loss.

It is of course for the Plaintiffs to prove their loss and that it was caused by the Defendants' torts. The Plaintiffs' case as pleaded was a simple one. They pleaded their outlay of £144,500 and said that against that sum they would "give credit for such sums as they receive upon the sale of the business, the property and the stock in trade alternatively credit for the value of such items at the date of trial". The Plaintiffs accept­ed that at the date of trial the market value of the shop was £60,000; no value was attributed to the business and no point was taken on the value of the stock. The Plaintiffs' primary case was therefore that they were entitled to recover £60,000 being the difference between £120,000 and £60,000. In the alternative, the Plaintiffs said that if they were to be held responsible for a failure to mitigate through not having accepted an offer of £76,000 for the shop in March 1990, their recoverable damages would be £44,000. Between the time of the trial and the hearing of this appeal, Plaintiffs have sold the shop at a price substantially lower than £60,000. They applied to this Court to adduce additional evidence to cover the financial consequences of that sale and to justify a claim for damages higher than the £60,000 figure. We have not acceded to this application; the additional evidence does not add anything legally material.

At the trial the Plaintiffs also put forward another alternative case based upon an alleged annual loss of £5,000 profit. They compared the profitability of the business in fact with that represented. The figure which would result from this claim would depend upon the number of years taken into account. This was the case which the Judge was rejecting in the passage I have quoted from his judgment at pages 25-6.

The Defendants' case was that £120,000, the price paid by the Plaintiffs, corresponded to the actual value of what they acquired. The Judge found that the value of the freehold property, the shop and the flat over it, was in July 1988 between £90,000 and £95,000: he took £92,500 as being the value. The fixtures and fittings of the shop were valued at £7,500. That left a price of £20,000 as being attributable to the goodwill of the business. The evidence was that it was an accepted rule of thumb that the goodwill of a bookshop was normally calculated by applying a multiplier of between 2 and 3 to the annual net trading profit. On this basis the sum of £20,000 corresponded to an annual net trading profit of between £7,000 and £10,000. It is accepted that it would have been fair in July 1988 to use a figure of £10,000 pa. The Defendants therefore say that the Plaintiffs got what they paid for and have suffered no loss. This approach looks at the figures simply on a capital account basis comparing the price paid with the capital value of what was acquired.

Alternatively, the Defendants submitted that if a court was to consider the outcome of the Plaintiffs' acquisition of the shop and the business, the Plaintiffs' lack of success was attributable to changing market conditions and to their own lack of experience in running a bookshop. As appears from the quotations that I have already made, the Judge substantially accepted this submission.

The Defendants also rely upon the fact that by the end of October 1989 the Plaintiffs realised that they had been misled and that the figures for the business were not as had been represented to them. They decided to try to sell the shop. Initially they were advised to ask £140,000 but received no offers. They took further advice and after the new year of 1990 made further attempts to sell being prepared to accept £80,000. In March 1990 they did not accept two offers of £76,000. They accepted an offer of £81,000 but the buyer then failed to proceed. The Defendants submit that the Plaintiffs' damages cannot exceed the loss which they would have suffered if they had sold in the Spring of 1990. Down to that date the business had been showing a profit (albeit less than expected) therefore there was no loss on the income account. The depreciation in the value of the property was attributable to the downturn in the property market and was not related to the performance of the business.

In this Court we have been assisted by the argument of counsel and a closer analysis of the figures that were in evidence at the trial. In particular, this has enabled a better assessment to be made of the trading results of the business both before and after its acquisition by the Plaintiffs. I append to this Judgment a Schedule which sets out the figures for the three years to September 1986 and the four years July 1989 to July 1992. The Schedule also includes figures for the year ended September 1987 and the 10-month period ended July 1988 as subsequently prepared by the Second Defendants. The figures for the year ended September 1987 cannot be treated as accurate; the gross profit of 34.46% cannot have been achieved. The stock figures used were not substantiated. Mr Downs challenged the 1987 figures as soon as he saw them in October 1989. Since Mr Chappell did not give credible evidence, the true position for 1987 has remained unascertained. Leaving out of account the period ending September 1987, the level of profitability of the business is remarkably steady. Under the management of Mr Chappell the gross profit percentage was around 27%. Under the management of the Plaintiffs the gross profit percentage was around 28% except for the year ended July 1991 when it fell to just over 26%. The 26.31% figure for the 10-month period ended July 1988 was also consistent for the general picture. There is no evidence that the Plaintiffs were insufficiently experienced to be able to trade profitably.

As regards turnover, the picture presented is that Mr Chappell was in the three years to September 1986 building up his stock and his turnover. By contrast, the Plaintiffs were from 1990 purchasing each year £9,000 worth of stock less than the preceding year. They said that they could not afford more. Their turnover declined similarly.

Mr Downs gave evidence about the relevance of turnover and profitability.

"We felt [in 1988] that we could actually afford to purchase and could generate enough net profit to sustain a reasonable standard of living and at the same time to have spare capital to reinvest into the business without resorting to medium term savings."

"Neither my wife nor I were interested in the purchase of property except as part of an acceptable apparently profitable business. This was one of the underlying factors that persuaded us to purchase the business as opposed to other businesses that we had looked at including a bookshop in Cirencester. We were even prepared to live in the flat above the bookshop for a period of time until we had got to know the area and were able to move to a house with a garden. We were subsequently going to rent out the flat above the bookshop. We had no long term desire to live at the property. The property itself had no investment or other intrinsic value at all."

"The financial position that we now [March 1993] find our­selves us in has been caused by over-borrowing on the strength of false information provided by the Defendants. In consequence we have had little or no working capital to remedy the decline in trade which I now believe does not reflect my wife's or my own lack of entrepreneurial skills. We had after all been successful in previous business ventures. We continued to retain most of Mr Chappell's previous customers including the institutional customers like the Norfolk College of Arts and Technology. We have expanded the map business and accordingly changed our name to the Kings Lynn Map and Book Centre in order to further advertise this aspect of our business. ... We find that any decrease in sales is possibly due to a reduction in casual sales as opposed to the rival bookshop being opened. As can be seen from my wife's statement we had both had considerable experience in running businesses of a kind previously described. I firmly reject any suggestion that the shortfall in turnover and profitability we had experienced in the first year of trading after our purchase from Mr Chappell was due to inexperience on our part. The shortfall continued in subsequent years as can be seen. To some extent the difference between these years and our first year may be the result of the downturn in retailing. However that downturn would not account for the difference between the first years results and the results as represented to us when we purchased."

"The net profits of £21,000 over the period of four years from the much reduced turnover have been totally inadequate to exist and it has been necessary to supplement drawings by introducing further sums of capital and by a Lloyds Bank loan. Our capital has been raised by means of the sale of securities, the use of my wife's trust income and, ultimately, the premature recourse to the use of pension funds."

 

In summary, the Plaintiffs' evidence was that the turnover and gross profit potential of the business was not in truth sufficient to make it a viable business for the Plaintiffs having regard to the borrowing commitment they had to undertake and their need to generate enough income to live off. Even with market trends as they were, if they had been able to start from a turnover figure of £110,000 and a gross profit figure of around £30,000 the picture would have been markedly different. The figures given in the Schedule for the mortgage interest paid by the Plaintiffs represent the two-thirds which they attributed to the business; they attributed one-third of the mortgage interest to the flat. In my judgment, the findings of the Judge on the question of damages were too much influenced by the findings which he had earlier made on causation. The figures show, in corroboration of the evidence of the Plaintiffs, that the business was not able to generate sufficient profits to be viable and that this was attributable to the level of turnover.

By the end of 1989, after about one and a half year's trad­ing and the confirmation by the Second Defendants in October 1989 that the figures which they had given to the Plaintiffs in May 1988 were not a true statement of the turnover of the business, the Plaintiffs knew that they had an unviable business. Accordingly, as a matter of factual causation, the consequence of the Plaintiffs having purchased the business and premises from Mr Chappell was that they found themselves eighteen months later with an unviable business and shop premises with a reduced value and limited marketability. At this time the property was, on the evidence, worth about £76,000. (The Plaintiffs have not sought to make any deductions from this figure as at this date.) The loss was therefore prima facie £44,000 (£120,000 minus £76,000) on capital account. At this time the Plaintiffs were still trading at a profit and could not claim any loss on income account; the net trading profit before financing on the first year's trading was £15,749 and the next six months showed at least £7,000. After allowing for financing charges, there still was not any actual income account loss. The Defendants did not submit that there should be any set-off against the Plaintiffs' capital account loss.

It is not in dispute that it was possible for the Plaintiffs to sell out in the first quarter of 1990. If necessary they would have had to abandon the business. Indeed, one or more of those expressing an interest in buying the shop and the flat in the early part of 1990 were not doing so for the purpose of running a bookshop. Since the business was unlikely to be capable of covering the cost of servicing its capital, it is not suggested that its goodwill had then a significant market value. It follows that any losses which the Plaintiffs suffered after the Spring of 1990 were not caused by the Defendants' torts but by the Plaintiffs' decision not to sell out at that date for a figure of about £75,000. The only basis upon which the Plaintiffs might have been able to recover any later loss would have been that they had been reasonably but unsuccessfully attempting to mitigate their loss further and had unhappily increased their loss. (See McGregor Damages 15th Edn, §§323-4.) On the facts of this case the Plaintiffs are unable to make such a claim and have not sought to do so. They have argued that they did not act unreasonably in rejecting the offers of £76,000 in March 1990. Even accepting that they acted reasonab­ly, the fact remains that it was their choice, freely made, and they cannot hold the Defendants responsible if the choice has turned out to have been commercially unwise. They were no longer acting under the influ­ence of the Defendants' representations. The causative effect of the Defendants' faults was ex­hausted; the Plaintiffs' right to claim damages from them in respect of those faults had likewise crystallised. It is a matter of causation.

The correct finding of fact is that the Plaintiffs suffered a loss of £44,000 as a result of entering into the contract with Mr Chappell.

 

The Law :

The courts have found troublesome the questions raised on the assessment of damages for the giving of negligent or fraudulent advice or information. There are a large number of reported decisions. The role of these authorities, and of their citation in other cases, is limited. Causation is a question of fact. The related questions of mitigation of loss, remoteness and contributory negligence are based upon legal principles and the citation of authority may be necessary to derive those principles and clarify their application. Similarly, the citation of auth­or­ity may be appropriate accurately to identify the wrong in respect of which the claimant is entitled to recover damages. A breach of warranty does not have the same consequences as a failure to advise or warn. But when one is concerned, as here, with what is purely a question of causation, the citation of authority may be of little assistance.

In the present case, the feature which is said to give rise to difficulty is the fact that the loss of value suffered by the Plaintiffs between 1988 and 1990 primarily reflected the fall in the market value of commercial and residential properties. Whilst such fluctuations are not unforeseeable and there were other factors which contributed, the Defendants argue that whatever property the Plaintiffs had bought they quite probably would have suffered a similar loss. Since the Plaintiffs are unable to say that they suffered any significant loss on the basis of comparing the contract price with the value in July 1988 of what they then bought, the character of their claim is really a claim for consequential loss. They have suffered a consequential loss through having bought a property which they would not otherwise have bought and which they, on discovering the deception, could only dispose of at a loss.

The starting point for any consideration of the law of damages is the statement of Lord Blackburn in Livingstone v Rawyards Coal 5 App Cas 25 at 39 that the measure of damage is -

"that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation."

This principle has been applied to the torts of deceit and negligent misrepresentation in cases which bear a marked simil­arity to the present case.

In Doyle v Olby [1969] 2 QB 158, Mr Doyle saw an advertisement of an ironmonger's business for sale at £4,500 for the lease of the shop, the business and the goodwill, the stock to be taken at a valuation. He made enquiries and the vendor produced accounts for the preceding three years which showed satisfactory turnover and annual profits. Mr Doyle agreed to buy and went into occupation. Having undertaken liabilities of some £7,000 he soon found that the turnover had been misrepresented and that the vendor's brother was, contrary to what had been represented, retaining a part of the business and was trading in competition with him. After three years' disastrous efforts to trade Mr Doyle sold the business but was left with liabilities of some £4,000. The Court of Appeal held that he should recover these losses. Lord Denning MR said at p.167:

"In contract, the defendant has made a promise and broken it. The object of damages is to put the plaintiff in as good a position, as far as money can do it, as if the promise had been performed. In fraud, the defendant has been guilty of deliberate wrong by inducing the plaintiff to act to his detriment. The object of damages is to compensate the plaintiff for all the loss he has suffered, so far, again, as money can do it. In contract, the damages are limited to what may reasonably be supposed to have been in the contemplation of the parties. In fraud, they are not so limited. The defendant is bound to make reparation for all the actual damages directly flowing from the fraudulent inducement. The person who has been defrauded is entitled to say:

'I would not have entered into this bargain at all but for your representation. Owing to your fraud, I have not only lost all the money I paid you, but, what is more, I have been put to a large amount of extra expense as well and suffered this or that extra damages.'

All such damages can be recovered: and it does not lie in the mouth of the fraudulent person to say that they could not reasonably have been foreseen. For instance, in this very case Mr Doyle has not only lost the money which he paid for the business, which he would never have done if there had been no fraud: he put all that money in and lost it; but also he has been put to expense and loss in trying to run a business which has turned out to be a disaster for him. He is entitled to damages for all his loss, subject, of course to giving credit for any benefit that he has received. There is nothing to be taken off in mitigation: for there is nothing more that he could have done to reduce his loss. He did all that he could reasonably be expected to do."

In the same case Winn LJ said at p.168:

"It appears to me that in a case where there has been a breach of warranty of authority, and still more clearly where there has been a tortious wrong consisting of a fraudulent inducement, the proper starting-point for any court called upon to consider what damages are recoverable by the defrauded person is to compare his position before the representation was made to him with his position after it, brought about by that representation, always bearing in mind that no element in the consequential position can be regarded as attributable loss and damage if it be too remote a consequence. ... The damage that he seeks to recover must have flowed directly from the fraud perpetrated upon him."

Esso Petroleum v Marden [1976] 1 QB 801 was a case of negligence. The negligent party (Esso) misrepresented the throughput of a filling station in order to induce Mr Marden to take a lease of the filling station. Mr Marden did his best but he lost his capital and incurred a large bank overdraft as a result of his trading losses. Lord Denning MR, with whom Shaw LJ agreed, said at p.820:

"He is only to be compensated for having been induced to enter into a contract which turned out to be disastrous for him. Whether it be called breach of warranty or negligent misrepresentation, its effect was not to warrant the throughput but only to induce him to enter the contract. So the damages in either case are to be measured by the loss he suffered. Just as in Doyle v Olby he can say:

'... I would not have entered into this contract at all but for your representation. Owing to it, I have lost all the capital I put into it. I also incurred a large overdraft. I have spent four years of my life in wasted endeavour without reward: and it will take sometime to re-establish myself.'

For all such loss he is entitled to recover damages."

These cases show that where a plaintiff has been induced to enter into a transaction by a misrepresentation, whether fraudulent or negligent, he is entitled to recover as damages the amount of the (consequential) loss which he has suffered by reason of entering into the transaction. The principle is the same. Where the representation relates to the profitability and, by necessary inference, the viability of the business, the plaintiff can recover both his income and his capital losses in the business.

Hayes v Dodd [1990] 2 AER 815 (CA) was a similar case but the plaintiffs' complaint was that their solicitors had failed to give them proper advice before they bought new premises for their motor repair business. The solicitors negligently failed to advise them that they had no legal right to use the only adequate means of access. As a result the plaintiffs bought premises which were wholly unsuitable for their business and incurred substantial losses and had to close down. It was held by the judge and by the Court of Appeal that the plaintiff was entitled to recover damages on the basis of the capital expenditure thrown away in the purchase of the business and the expenses incurred. The Court of Appeal refused to adopt the "diminution in value" measure of damages used in surveyor's negligence cases.

Staughton LJ at page 818 adopted the principle stated by Lord Blackburn and continued:

"One must therefore ascertain the actual situation of the plaintiffs and compare it with their situation if the breach of contract had not occurred. What then was the breach of contract? It was not the breach of any warranty that there was a right of way: the defendant solicitors gave no such warranty. This is an important point: see Perry v Sidney Phillips [1982] 1 WLR 1297. The breach was of the solicitors' promise to use reasonable skill and care in advising their clients. If they had done that, they would have told the plaintiffs that there was no right of way; and it is clear that, on the receipt of such advice, the plaintiffs would have decided not to enter into the transaction at all. They would have bought no property, spent no money and borrowed none from the bank. That at first sight is the situation which one should compare with the actual financial state of the plaintiffs. I will call this the 'no-transaction method'."

He contrasted this with what he called the "successful transaction method" being the test adopted in Perry's case where the plaintiff would still have entered into the transaction if he had been properly advised, albeit at a lower price. The other members of the Court expressly agreed with Staughton LJ's adoption of the 'no-transaction method'.

Other authorities illustrate the difference between the 'no-transaction' sale of business cases and cases where the court has treated the transaction as 'successful' and has assessed damages by comparing the value of the asset acquired and the sum paid - the 'diminution in value' approach. Into the latter category come the surveyor's negligence cases. Watts v Morrow [1991] 1 WLR 1421 is an example. The plaintiff had bought a house on the faith of the defendant's report that there were only limited defects requiring repair. In fact the defects were much more extensive. The question was whether the plaintiff could recover the cost of doing these additional repairs or simply the diminution in value of the property in its actual state by comparison with the price paid. The Court of Appeal considered that the question was governed by Phillips v Ward [1956] 1 WLR 471 and Perry v Sidney Phillips [1982] 1 WLR 1297 and that the cost of carrying out the repairs could not be recovered. To award the plaintiff the cost of repairs would be to award him more than he had in fact lost by entering into the transaction.

East v Maurer [1991] 1 WLR 461 was a fraud case. Doyle v Olby was applied. In order to induce the plaintiff to buy the defendant's hairdressing salon the defendant fraudulently represented that he would not any longer be working at another salon in the area. The representation was untrue and as a result the plaintiff was unable to run a successful business at the premises which he had bought. He did not succeed in selling them until some three years later. The Court of Appeal held that the damages for deceit were to be assessed on the basis that the plaintiff should be compensated for all the losses he had suf­fered including the loss on the resale and his loss of profits.

In general, it is irrelevant to enquire what the representee would have done if some different representation had been made to him or what other transactions he might have entered into if he had not entered onto the transaction in question. Such matters are irrelevant speculations. (eg United Motor Finance v Addison [1937] 1 AER 425 at 429.)

In 1986, the law was reviewed by Bingham LJ in County Personnel v Pulver [1987] 1 WLR 916. He identified a number of different strands in the law regarding solicitors' and surveyors' negligence and the importance of what he called the "diminution in value" approach. But he also stressed at pp.325-6 that the law should not be applied "mechanistically". No single approach was to be applied "inflexibly". He recognised that the date at which damages fell to be assessed might vary from case to case. This confirms that questions of damages are primarily questions of fact to be decide on the facts of each case. In that case the Court of Appeal declined to apply the diminution of value approach; it was inappropriate and would have led to injustice.

Where a party has been misled, it must always be relevant to consider his position when he discovered the truth. Until that time the misrepresentation will be continuing to affect him and he cannot be expected to mitigate his loss. This is recognised in some of the older share purchase cases, eg, Twycross v Grant 2 CPD 469.

This factor was relevant in Naughton v O'Callaghan [1990] 3 AER 191 (Waller J). In 1981 the plaintiffs had bought a thorough­bred yearling colt called 'Fondu' for 26,000 guineas. In fact a mistake had been made and its pedigree was not as represented. Its true pedigree made it suitable only for dirt track racing in the United States, not for racing in this country. This mistake was not discovered until about two years later by which time the colt had been raced unsuccessfully in the UK and its value had as a result fallen to £1,500; substantial training fees had also been wasted. The defendants did not dispute that there had been a negligent misrepresentation. The issue was damages. The defendants said that the actual value of the colt at the time of its purchase was 23,500 guineas and that the plaintiff's damages should be limited to the difference, 2,500 guineas: the 'diminution in value' test. Waller J held that:

"Where an article purchased as the result of a misrepresentation could have been sold immediately after the sale for the price paid but by the time the misrepresentation was discovered its value had fallen by reason of a defect in it which had by then become apparent the appropriate measure of damages could be the difference between the purchase price and its value at the time the misrepresentation was discovered and not the difference between the purchase price and its actual value at the time of purchase provided that the article purchased was altogether different from that which had been expected."

The effect of his decision was that he assessed the plaintiffs' losses, including consequential losses, as at the date of their discovery of the misrepresentation. He followed and applied Doyle v Olby and the general principles referred to by Lord Wilberforce in Johnson v Agnew [1980] AC 367 at 400-1. In reach­ing his conclusion he stressed the nature of the transaction, the purchase of a colt to train and race. He also pointed out that the fall in the value of the colt was attributable to its failure to race successfully, not to any general fall in the market value of colts. This was relied upon by the Defendants before us as a ground of distinction from the present case.

Banque Bruxelles v Eagle Star [1995] QB 375, was a case which turned upon the collapse of the property market. It was a negligence case. The plaintiffs were mortgagees. The defendants were valuers. The defendants negligently over-valued properties and the plaintiffs then accepted mortgages of the properties. Later the property market collapsed and the various borrowers defaulted and on sale the plaintiffs obtained substantially less than the sums they had advanced. The relevant question was whether the plaintiffs could include in their damages the difference in the value of the properties between the time of entering into the mortgages and the sale of the properties. The Court of Appeal held that -

"where a mortgage lender would not, but for the negligent valuation, have entered into the transaction with the borrower he could recover the net loss he had sustained as a result of having done so; that a fall in the market was foreseeable, and since, in such a case, the lender would not have entered into the transaction but for the valuer's negligence and could not escape from it unless and until the borrower defaulted, that negligence was the effective cause of his loss, and a fall in the market was not to be treated as a new intervening cause breaking the link between the valuer's negligence and the damage sustained; accordingly on the assumed facts the mortgagees were entitled to recover damages in respect of the loss they had sustained which was attributable to market fall."

Having extensively reviewed the authorities both English and Commonwealth, the Court summarised its conclusions at pp.418 e.s. It is apposite to quote from these conclusions but adopting a different order:

"In a no-transaction purchase case, it seems clear on English authority that effect will be given to the resti­tutionary principle by awarding the buyer all that he has paid out less what (acting reasonably to cut his losses including selling the property) he has recovered. In no case before [the present case] has any head of foreseeable damage been excluded from the calculation."

"In no-transaction mortgage lending cases it has been the practice since Baxter v Gapp [1939] 2 AER 752 to award the lender the net loss sustained as a result of entering into the transaction, which may be expressed as the difference between what the lender advanced and what the lender would have advanced if properly advised (which is always nil). Thus related expenses of sale and realisation less sums recovered. ... Should a rise in the market have contributed to [a full recovery] then, as in the successful transaction case, that contribution will not be ignored so as to treat the lender as sustaining a financial loss which in fact he has not sustained. If in such a case a fall in the property market between the date of the transaction and the date of realisation contributes to the lender's overall loss sustained as a result of entering into the transaction, it would seem to us, on a straight forward application of the restitutionary principle, that the lender should be entitled to recover that element of his loss against the negligent party."

"Where a buyer is claiming damages for negligence in a successful transaction case the diminution in value rule ordinarily provides an adequate measure of the buyers loss. As the cases show, to award, for example, the full cost of repairs will usually lead to over-compensation. This assessment will ordinarily be made as at the date of breach, for there is no other appropriate date. The same rule will usually be applied where the buyer decides to keep the property with knowledge of its defective condition or over-valuation even if, with that knowledge, he would not have bought in the first place. In such a case no account is taken of later fluctuations in the market, for he remains the owner of the property as a result of his own independent decision and not of the negligence of the valuer or surveyor."

These citations confirm that the approach I have adopted is correct. Causation and the assessment of damages is a matter of fact. In a misrepresentation case, where the plaintiff would not have entered into the transaction, he is entitled to recover all the losses he has suffered, both capital and income, down to the date that he discovers that he had been misled and he has an opportunity to avoid further loss. The diminution in value test will normally be inappropriate. Where what is bought is a business the losses made in the business are prima facie recoverable as is the reduction in the value of the business and its premises. Foreseeable market fluctuations are not too remote and should be taken into account either way in the relevant account. These cases do not however discuss whether there is any question of causation beyond the no-transaction test. In my judgment it may still be necessary to consider whether it can fairly and properly be said that all the losses flowing from the entry into the transaction in question were caused by the tort of the defendant. I now turn to this qualification.

 

The Qualification :

In my judgment, having determined what the Plaintiffs have lost as a result of entering into the transaction - their contract with Mr Chappell - it is still appropriate to ask the question whether that loss can properly be treated as having been caused by the Defendants' torts, notwithstanding that the torts caused the Plaintiffs to enter into the transaction. If one does not ask this additional question there is a risk that the Plaintiffs will be over-compensated or enjoy a windfall gain by avoiding a loss which they would probably have suffered even if no tort had been committed. This would offend the principle upon which damages are awarded: Livingstone v Rawyards and Dodd v Canterbury [1980] 1 WLR 433 per Megaw LJ at 451.

In this context the Defendants submitted that all owners of property suffered a loss of value when the market fell. They asked the hypothetical question - what would the Plaintiffs have done with their money if they had not bought the shop? If they are compensated for the fall in value of the shop, are they not being compensated for a loss which they would have suffered even if the Defendants had not been at fault, and therefore being over-compensated?

I consider that the appropriate way to give effect to these legitimate concerns is to compare the loss consequent upon enter­ing into the transaction with what would have been the position had the represented, or supposed, state of affairs actually existed. Assume that there had been no tort because the represented, or supposed, facts were true: If on this hypothesis the claimant would have been no better off than in fact he was, this will suggest that the proposed award will lead to an over-compensation. This check does not have the purpose of substituting some different (and erroneously contractual) criterion for the assessment of damages. Its purpose is to test the acceptability of the factual conclusion that the assessed consequential loss was truly consequential upon the fault for which the other party is liable and to recognise the fundamental principle of indemnity. Also, in carrying out the check, it is always necessary to remember that one effect of the tort may have been to expose the loser to a risk which he should not be required to bear, for example, because he was only exposed to that risk through the other person's wrong or was misled about facts relevant to that risk or was handicapped in the proper assessment of the risk or in taking steps to avoid or limit the risk.

In the present case, the represented position was that the business had an annual turnover of £110,000, a gross profit percentage of 31% and accor­d­ingly an annual gross profit of £34,000. If this had been correct, there would have been no difficulty in covering the financing charges and there would have been no need to write off the £20,000 attributable to goodwill, nor to discount in any way the bookshop fittings. Similarly, to compare £20,000 annual gross profits with the represented figure leaves a shortfall of about £14,000 per annum. Over a period of 18 months, this gives a shortfall of £21,000. The figure thus arrived at is in excess of £40,000 down to January 1990. But, if the position had been as represented, the Plaintiffs would not have needed to sell and could have carried on the business even with some erosion of their turnover and profits. They would have started from a higher baseline. They would not have had the same problem of covering their financing charges. It is possible to do a number of projections. They all show a similar picture confirming the fact that the Plaintiffs will not have been over-compensated by an assessment made on a no-transaction basis. £44,000 will not represent any windfall to them. It does not put them in a better position than that they were led to believe.

Therefore accepting the qualification that it is necessary to check that the damages assessed are not more than an indemnity for losses in fact suffered, the Plaintiffs are still found to have suffered a loss which they would not have suffered if the Defendants had committed no tort.

 

Conclusion :

It follows that the Plaintiffs' appeal against both Defendants should be allowed. No distinction is to be made as between the Plaintiffs and either of the Defendants. The Plaintiffs have proved that the torts of both of the Defendants have caused them loss and that their loss is substantial. The Plaintiffs' loss must be assessed as at March 1990 when they had an informed opportunity to sell at £76,000. Their recoverable damages are accordingly £44,000. Judgment should be entered for the Plaintiffs against each of the Defendants for that sum of damages. We should hear counsel on interest if this has not been agreed.

 

The Contribution Proceedings :

Each of the Defendants claimed contribution from the other under the Civil Liability (Contribution) Act 1978 in respect of any liability either might be under to the Plaintiffs. The Judge did not find that either of the Defendants was liable in damages to the Plaintiffs. However, at the conclusion of his judgment he expressed the view that if there had been such liability, he would have apportioned their responsibility for the Plaintiffs' loss equally.

The assessment of the contribution is covered by s.2 of the Act which provides that -

"the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage in question".

The Second Defendants submit that the Judge failed to assess the contributions correctly because he gave inadequate weight to the fact that Mr Chappell had been fraudulent whereas they had only been negligent. They accept that they must bear some proportion of the responsibility, but not as much as 50%. Mr Chappell had supplied figures to the Second Defendants which he knew to be false. It was Mr Chappell who benefitted and succeeded in selling his business. A principal is under an obligation to indemnify his agent for liabilities he incurs in the performance of the agency. ( Sheffield Corporation v Barclay [1905] AC 392) Mr Chappell expressly requested the Second Defendants to send the 24th May letter.

I do not consider that this Court should interfere with the assessment of the Judge. Mr Chappell was fraudulent. He was very seriously at fault. However it was not the statements he had made which induced the Plaintiffs to buy. On the evidence, and as found by the Judge, it was what was said in the letter of 24th May which induced the Plaintiffs to contract. The Plaintiffs required the confirmation of the Second Defendants. The letter written by the Second Defendants purported to give them that confirmation. The letter was written recklessly. It contained statements which the Second Defendants must have known they had no basis for. The Second Defendants are liable to the Plaintiffs because of their own reckless negligence. Indeed, on a strict view, their lack of care was a breach of their duty to Mr Chappell as well.

The extent of a person's responsibility involves both the degree of his fault and the degree to which it contributed to the damage in question. It is just and equitable to take into account both the seriousness of the respective parties' faults and their causative relevance. A more serious fault having less causative impact on the plaintiff's damage may represent an equivalent responsibility to a less serious fault which had a greater causative impact. The present case is such a case. The Judge was entitled to decline to distinguish between the responsibility of the two Defendants for the damage to the Plaintiffs.

The Second Defendants' appeal against the Judge's apportion­ment should be dismissed.

 

 

ROCH LJ: I agree.

 

 

BUTLER-SLOSS LJ: I also agree.

 

 

Order: Plaintiff's appeal allowed: judgment in favour of the plaintiff for £70,000 (including interest); 2nd defendant's appeal on apportionment dismissed; both defendants do pay the plaintiff's costs of here and below; plaintiff's legal aid taxation; 1st defendant's legal aid taxation; costs against the 1st defendant in favour of the plaintiff of appeal not to be enforced without the leave of the court; 2nd defendant do pay the 1st defendant's costs of this appeal; £70,000: equal contribution (1st Defendant and 2nd Defendant i.e. 50/50 liability); 2nd defendant's costs against 1st defendant in the contribution action in the court below be set off against the 1st defendant's liability of this court.

 

Downs v Chappell and Stephenson Smart

 

SCHEDULE TO THE JUDGMENT OF HOBHOUSE LJ

 

Summary of Profit and Loss Accounts

			CHAPPELL				DOWNS
	Period 28/9/83 to 30/9/84 £	Year ended   30/9/85 £	Year ended   30/9/86 £	Year ended unverified 30/9/87 £	10mth period ended 20/7/88 £	Year ended   28/7/89 £	Year ended   31/7/90 £	Year ended   31/7/91 £	Year ended   31/7/92 £
Turnover   Opening Stock Purchases Closing stock   Cost of Sales   Gross profit Gross profit %	40,285   0 39,191 9,730   29,461   10,824 26.87%	63,537   9,730 50,947 14,572   46,105   17,432 27.44%	80,788   14,572 62,742 18,450   58,864   21.924 27.14%	86,973   18,450 55,611 18,800   55,261   31,712 36.46%	70,190   18,800 57,428 24,507   51,721   18,469 26.31%	73,845   24,507 57,895 29,475   52,927   20,918 28.33%	67,769   29,475 48,094 28,833   48,736   19,033 28.09%	62,092   28.833 39,406 22,334   45,905   16,187 26.07%	50,035   22,334 31,162 17,727   35,769   14,266 28.51%
Other costs	5,644	5,838	10,934	10,400	7,665	5,169	4,950	5,223	4,502
Net profit before financing	5,180	11,594	10,990	21,312	10,804	15,749	14,083	10,964	9,764
Depreciation Bank deposit interest Bank charges Bank interest / mortgage interest	178 (37) 463 1,397	195 0 291 1,745	214 0 381 2,010	252 0 775 2,239	413 0 520 2,494	1,213 0 0 5,747	1,032 0 0 6,710	850 0 0 7,169	600 0 1,544 4,740
Net profit after financing	3,179	9,363	8,385	18,046	7,377	8,789	6,341	2,945	2,880