England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE CCRTF 96/0347 CMS2

IN THE COURT OF APPEAL (CIVIL DIVISION )

(MR RECORDER HARROP )

Royal Courts of Justice

Strand

London W2A 2LL

Monday, 6th April 1998

B e f o r e

LORD JUSTICE SIMON BROWN

SIR PATRICK RUSSELL

CHRISTOPHER NIGEL NICHOLSON Respondent

v.

PHILIP ANDREW WARRINGTON Appellant

(Computer Aided Transcription of the Stenograph Notes of

Smith Bernal Reporting Limited, 180 Fleet Street

London EC4A 2HD

Tel: 0171 404 1424

Official Shorthand Writers to the Court)

THE APPLICANT/DEFENDANT did not appear and was not represented.

MR RICHARD GREGORY (instructed by Messrs Gabb & Co, Hereford HR4 9BX) appeared on behalf of the Respondent.

J U D G M E N T

(As approved by the Court )

©Crown Copyright

LORD JUSTICE SIMON BROWN: Before the court today is listed an appeal by the defendant, Philip Andrew Warrington, against the order of Mr Recorder Harrop in the Bristol County Court on 25th October 1995 giving judgment for the respondent/plaintiff, Christopher Nigel Nicholson, for £44,506,51, together with interest of £6,675 and costs, and dismissing with costs the appellant's counterclaim for £3,276.88. The proceedings below took three days before the judge. Each party was represented, the appellant by counsel, the respondent by a solicitor. The appellant, however, brings the present appeal in person. The grounds of appeal were of his own composition and this court was expecting his attendance this morning to argue it. Instead we have received a facsimile letter which the appellant sent to the Civil Appeals Office as recently as 2.36pm yesterday, Sunday, 5th April. I shall read it in full:

"Dear Sirs, I write to inform your office, that I am unable to attend my appeal application review set to be heard 6th April 1998.

At the hearing was going to act on my behalf, however, because of work commitments I am not in a position to attend. Also my financial position does not allow me to instruct counsel to act for myself.

Would it be possible to advise of a new date that I am able to attend. I understand costs may be set against myself so would you please advise.

I can also confirm, I have given notice to the plaintiff's solicitors of my non attendance. Yours faithfully,"

The notification to the plaintiffs' solicitors was also provided only yesterday. Without wishing to express myself in over-emphatic terms, it seems to me the greatest impertinence to suppose that this court would think it right (having allocated today for the appeal) to adjourn the hearing in response to a communication of that character. It is not merely disgracefully late, but affords no better reason for the appellant's non-attendance today than his "work commitments", whatever they may be. We accordingly propose to dismiss the appeal. Lest, however, the appellant be minded at any date to seek to reinstate it, it is appropriate and may assist, if not him, at any rate any court hereafter seised of the matter, if we indicate something of the facts of the case and indicate why, to my mind at least, it looked a singularly unpromising appeal on the merits.

Each party gave detailed evidence to the trial judge for over a day and two shorter witnesses were called: a Mrs Jones for the plaintiff and a Mr Thomas for the defendants. There was a large bundle of documents numbering over 400 pages. The central issue in the case was with regard to an oral agreement made between the parties in June 1992. Each party gave a completely different account of that agreement. The case turned entirely upon which account the judge was to accept.

Before indicating the rival versions, let me first very briefly sketch in the background. The plaintiff traded as Hereford Motor Rewinding Company, and in the course of that business used to buy gearboxes from a company called Oppermans. The defendant worked for Oppermans as a sales manager, and thus it was that the parties came to know one another. In about late 1991 the defendant was short of funds and borrowed money from the plaintiff. How much money was in dispute: the plaintiff said he made three loans totalling in all £6,000; the defendant says there was a single loan of £900, which he had repaid. The defendant was, I may observe, an undisclosed bankrupt at the time, although he never told the plaintiff of that. His discharge came in early June 1992, just before the agreement was made. The agreement was the defendant's idea and involved the plaintiff purchasing bulk quantities of bearings from three different suppliers which were ultimately to be sold at a profit. In the event one company only, MB Bearings, ever purchased the goods. So much was common ground. It was also common ground that, although the plaintiff was making the bulk purchases, the defendant used the plaintiff's office and the plaintiff's telephone in order to place those orders on the plaintiff's behalf. The plaintiff's case was that under his agreement with the defendant he was immediately selling on all the bearings to the defendant at cost price plus a 25 per cent mark-up (save only in the case of one large order, where the mark-up was agreed at £1,000 instead). That profit was then to be set against the defendant's liability to make repayment of the earlier loans. The defendant would then sell the bearings on to customers of his own choice.

The defendant's rival case was that so far from him buying the goods from the plaintiff and then himself selling them on to the ultimate customers, he was to act as the plaintiff's agent with regard to the resales, for which he was to be paid 15 per cent commission on the prices obtained. There was no dispute as to the final figures: if the plaintiff's account of the agreement was accepted, then he was entitled to the sum in respect of which he obtained judgment; if the defendant was right, then he was entitled to judgment on his counterclaim for the sum indicated.

As the judge recognised and more than once remarked, there were certain inherent improbabilities in both rival cases, and ultimately he reached his decision in the plaintiff's favour rather by assessment of the witnesses in the light of the contemporary documents than by reference to the intrinsic likelihood. At the conclusion of the evidence the judge gave a very detailed judgment extending to 32 pages. Amongst the considerations which influenced his final assessment of the witnesses, and in particular decided him as to where the truth lay on the vital June 1992 agreement, were these:

1. Although as stated the defendant insisted that he had only ever borrowed £900 from the plaintiff, the plaintiff was able to produce one cheque stub for £1,000 which he said was the third tranche of the loan, and the defendant was reduced to describing that stub as totally fictitious.

2. The plaintiff's case was that he neither knew nor cared which company were ultimately buying the bearings. The defendant said, on the contrary, that the plaintiff knew from the outset that the sole purchasing company was MB Bearings. In a letter of 7th December 1992, however, the plaintiff wrote that failing payment by the defendant of the sums due "you should supply us with the names of the customers that you supplied the bearings to if they have not paid to enable us to go and collect either the money or the bearings."

3. On 8th October 1992 the plaintiff wrote to the defendant enclosing "copies of all the invoices relating to the bearings supplied by us to you ... each invoice is priced with 25 per cent added to the net figure as agreed at the outset of the proceedings." The defendant did not dispute receiving that letter. 4. On 13th October 1992 a meeting took place between the defendant and Mrs Jones. That at least is what she said. He denied it. She, I should observe, worked closely with the plaintiff in his business. The contemporary documents appear to support her version of that crucially important meeting. In the first place there is a document which purports to record the discussion and the matters agreed. This relates to an account statement of 16th October 1992 which was eventually sent to the defendant. It refers to "this balance agreed at meeting. Previous payment and invoices taken into consideration", and concludes: "We trust that the above is satisfactory and all the information is taken from our agreed joint figures."

Secondly, on the front of the invoice book appears what Mrs Jones said was her contemporary note, which in terms recorded:

"Agreed with Phil [that is the defendant] to alter totals on invoices. He will keep his copies and change them at his end and I will change our copies."

The defendant was reduced to saying that that note was a complete figment of Mrs Jones's imagination, in effect a fraud.

Fifthly, on 30th November 1992 a meeting took place between the plaintiff and the defendant. That is not in dispute, and indeed the defendant accepted that he may have agreed at that meeting to pay the plaintiff the sum demanded. Just a week later, on 7th December 1992, the plaintiff wrote the letter to which I have already briefly referred. In my judgment it was a very telling document indeed. I read parts only:

"Although you have been given full credit for bearings that you considered unsuitable, we still have a number of bearings on our premises that we are unable to obtain a credit for. Taking all this into consideration there still remains the sum of £44506.51 to be paid which you agreed as per the attached statement."

A little later:

"Over the past three months I have lost count of the number of promises and excuses received for the reasons for non payment. Also, a series of bounced cheques received in Mrs Warrington's name."

The letter concludes requiring full payment in either money or, as a last resort, the return of the bearings.

The defendant does not dispute receiving that letter. He wholly disregarded it.

The judge was entitled to regard those as telling features of the evidence in favour of the plaintiff's version. He did not overlook certain factors that went the other way, not least amongst them the fact that the plaintiff's witness statement omitted all mention of the 25 per cent mark-up. Most telling of all, however, was the judge's assessment of the protagonists as witnesses. Of the plaintiff he said this:

"... I found him quick to admit his own shortcomings, to admit his foolishness at times, and even his untruthfulness. He was also fair in admitting his failure to comply with the VAT requirements. On several occasions, including in the course of re-examination, there were moments when he could easily have sought to give an answer slightly more favourable to him to gild the lily and he manifestly resisted that temptation."

In the result he formed the impression that the plaintiff, whom he described as "very much a dealer entrepreneur", was "seeking to give direct and truthful replies".

As to the defendant, Mr Warrington, the judge described his as giving "an altogether rather slicker performance in the witness box." He described various features of his evidence which he thought unsatisfactory, and ultimately assessed him as "a person who was quite prepared in a calculated manner to sail close to the wind".

With regard to various matters he described his evidence as "both evasive and untruthful". His final assessment of the defendant was that "he was not at all times seeking to tell the court the truth."

Mrs Jones' evidence the judge recognises could have been "marginally coloured by loyalty to her employer". He nevertheless found her a truthful witness. So too did he find Mr Thomas, although his evidence was in fact of limited importance only: he had merely made an assumption that the agreement was essentially as the defendant has described it.

The basis of the appellant's appeal emerges clearly from the six pleaded grounds. I do not propose to deal with them individually. Suffice it to say that his essential grievance is that the judge ultimately accepted the plaintiff's version of events rather than his own. The judge of course had the benefit of seeing and hearing the rival witnesses over an extended hearing. The prospects of the appellant being able to make good an appeal based on the contention that the judge believed the wrong side were very slender indeed, even had the appellant had the courtesy to attend in support of his appeal. If the appellant is misguided enough to seek to reinstate this appeal he should be under no illusions: in my judgment it has no worthwhile prospect of success.

For the reasons given I would dismiss the appeal.

SIR PATRICK RUSSELL: I agree. In particular I would wish to endorse my Lord's observations as to the prospects of success should this appellant be foolish enough to reinstate or attempt to reinstate his appeal.

ORDER: Appeal dismissed with costs.