England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR HAROLD BURNETT QC
SITTING AS A DEPUTY JUDGE OF THAT DIVISION)

		Royal Courts of Justice Strand London WC2
		22nd November 1999

THE VICE-CHANCELLOR: This is an appeal against an order made on 23rd June 1998 by Mr Harold Burnett QC sitting as a deputy judge in the Queen's Bench Division. The facts of the case are somewhat unusual. The appellant before us is a firm of solicitors, Bradleys. The claimant, the respondent before us, is Mr de Beauville, although there is some evidence that he sometimes goes under other names. The first defendants in the trial below were another firm of solicitors, Swycher & Co.

The case arises out of a complaint made by Mr de Beauville that belongings of his were being removed from this country by a Mr and Mrs Bouda. Mr de Beauville instructed Swycher & Co to act for him in trying to prevent this misappropriation of his property. The solicitors, Swycher & Co, proceeded to put in train the necessary steps for the grant of an injunction against Mr and Mrs Bouda to restrain the removal of the goods from this country. Alliott J, on 1st March 1991, granted the injunction that had been sought. The injunction had annexed to it a Schedule of the goods which, according to Mr de Beauville, had been taken by Mr and Mrs Bouda. The Schedule runs to about a page and a half. It includes the values attributed to some of the items.

Some of the values attributed are substantial. There is, for example, a reference to objects of jade, ivory etc, to which a value of £15,000 to £20,000 is attributed. There is a reference to 17th and 18th century silverware, to which a value of £8,000 is attributed. Three canteens of silver cutlery are given a value of £4,000. Particular reference has been made by counsel to a large collection of 60 to 80 pieces of Lalique crystal. There are also a number of pieces of other crystal and St Louis glass. Altogether there would appear to be (if this Schedule is correct) a number of valuable items among those taken by Mr and Mrs Bouda.

The injunction did the trick. The goods that had been taken were intercepted at Dover. In order to arrange for this to be done, Swycher & Co and Mr de Beauville instructed a local firm of solicitors, Bradleys, the appellants before us, to act for them in executing the injunction. Bradleys did so, and on a Friday Mr and Mrs Bouda's van containing the goods was intercepted in Dover. There was nowhere to unload the vehicle containing the goods other than the offices of Bradleys in Dover. Mr de Beauville arrived in Dover to see what was happening to his goods which had been saved from involuntary export. He made some lists of what had been taken. The goods at this stage were still in the offices of Bradleys. But the partners of Bradleys, Mr Wilkes and Mr Wilkinson, who were dealing with the matter, did not want these articles to remain in their offices over Monday because of the disruption that their presence in the office would cause to the normal conduct of their solicitors' business. So they made arrangements with a warehouse firm, Comfret's, to take the articles into the warehouse until other arrangements could be made. The articles were taken into the Comfret's warehouse.

Subsequently the claimant, Mr de Beauville, was to say that a number of the articles had suffered serious damage while in the Comfret's warehouse and a number had simply vanished while in the warehouse. It was alleged that the entrusting of such valuable articles to the Comfret's warehouse was quite inappropriate: it was not the right sort of warehouse to house such valuable items. It was contended that the damage to some of the articles and the loss of others was attributable to the fact that inadequate steps had been taken to look after these articles properly and with the care that their value and character deserved.

These allegations led to the commencement of the proceedings that came for trial before the deputy judge, Mr Harold Burnett QC. The issues before the court were, first, whether there had been a breach by Bradleys of their obligation to look after the articles that had been unloaded into their offices and make suitable arrangements for their safekeeping until more satisfactory permanent arrangements could be made. It was argued on behalf of the solicitors that the articles had appeared to them to be really no more than ordinary household goods, and that the Comfret's warehouse, however inadequate it may have been for valuable objects d'art, was entirely suitable for everyday articles. On behalf of Mr de Beauville it was said that Comfret's warehouse was unsatisfactory and unsuitable for objects of value of the sort that Mr de Beauville said his collection consisted of. It was accepted by the solicitors that Comfret's warehouse would not have been suitable if the recovered goods were of that description.

The deputy judge found in favour of Mr de Beauville on that issue. It appeared that the partners of Bradleys who had dealt with the execution of the injunction had not read the Schedule to the Order in order to inform themselves of the nature of the articles which were being unloaded into their offices. There is now, as I will explain, an issue as to what actually was the nature of the articles that were unloaded into Bradleys' offices. But the Schedule to the Order purported to describe the articles in terms of value, and the deputy judge held that the solicitors should have referred to the Schedule in order to decide what sort of steps should be taken to look after these articles until more satisfactory permanent arrangements could be made. The solicitors did not, however, read the Schedule and so did not realise that there might be some question as to whether the Comfret's warehouse was adequate for such articles. They thought they were dealing with ordinary household goods and allowed the recovered goods to go to Comfret's warehouse. So the deputy judge found in favour of Mr de Beauville on liability.

There was then an issue as to quantum of damages. There was an issue as to what items had actually disappeared, as Mr de Beauville claimed. There was an issue as to what damage had been suffered by items that were still available. The deputy judge did not find in favour of Mr de Beauville on every single issue -there were some respects in which he was not satisfied that articles in respect of which a claim was being made had been among the articles taken into Bradleys' offices - but, broadly speaking, he accepted Mr de Beauville's evidence as to the articles that had been unloaded into Bradleys' offices and as to the damage to some and the loss of others that had taken place. He found in favour of Mr de Beauville, awarding damages of £98,000-odd plus interest.

Against that judgment Bradleys have appealed. They have appealed on the issue of liability, contending that the deputy judge imposed on them much too high a standard of care in the circumstances whereby they had suddenly, and somewhat involuntarily, become the bailees of a large number of articles. They had been instructed to execute the injunction which had been granted by Alliott J. That they had done. They had perforce had to have the contents of the Boudas' van unloaded into their offices. They were not a depository, they were not warehousemen, they were solicitors. So it was necessary for them at once to find some other place to accommodate these articles; and, in the circumstances, there had been no other real alternative but to use the Comfret's warehouse. In requiring them to take further steps than those to look after the articles, the deputy judge had imposed on them a standard which was unreasonable and higher than the law should demand. That is the issue raised on the appeal as to liability.

But, in addition, Bradleys have applied for permission to adduce additional evidence on the hearing of the appeal. The additional evidence comes primarily from an individual, a Mr Whitehouse, an associate of Mr de Beauville's, who had given evidence below as to the existence of some of the articles and the condition of others. It is to be inferred that Mr Whitehouse and Mr de Beauville must have fallen out. Mr Whitehouse contacted Bradleys after the judge had given judgment and made it known to them that he was willing to give evidence to the effect that the claim which Mr de Beauville had made on Bradleys was a fraud; that a number of the articles which Mr de Beauville claimed had been among those taken by the Boudas, unloaded into Bradleys' office and subsequently lost from the Comfret's warehouse had never in fact been lost at all but had been placed with him, Mr Whitehouse, for safe custody. He provided a list of the articles that he said fell into that category. These articles have been photographed. A solicitor of the firm acting for Bradleys has sworn a witness statement deposing to the fact that these photographs were taken and exhibiting the photographs. Whether the articles photographed are in fact articles in respect of which Mr de Beauville made claims for damages against Bradleys remains to be determined on some other occasion, but it seems plain that the description of the articles photographed - the articles that Mr Whitehouse claims were left with him by Mr de Beauville - matches the description of some of the items in the lists prepared by Mr Beauville for the purposes of his claim against Bradleys.

So Bradleys want the trial issues reopened in the light of this fresh evidence. What actually was the contents of the van that was unloaded into their offices? What was the nature of the articles? Did the articles unloaded include all of those in respect of which Mr de Beauville claimed and recovered damages? Or were they and the court the victims of a fraud practised on them by Mr de Beauville?

The rules as to the admission of fresh evidence on appeal are laid down in the well-known authority of Ladd v Marshall. The requirements include that the evidence must not have been available at the trial. That requirement is plainly satisfied in the case of this fresh evidence. Mr Whitehouse did not give any indication that he might have such evidence to give, so naturally he was not cross-examined on these matters by counsel appearing for Bradleys at the trial. A second requirement is that the evidence must be credible. That does not mean that the appellate court, in deciding whether or not to admit the evidence, must decide whether it is true. But the court must decide whether there is a real possibility that the evidence may be found to be credible. If there is anything to suggest that the new evidence is almost bound to be rejected, it should not be admitted on the appeal.

There is no-one appearing before us this morning for Mr de Beauville. He had been represented by solicitors, Messrs Mackrell Turner Garrett, for the purposes of this appeal, but they came off the record last week. Mr de Beauville was informed that this had happened by a letter of 17th December from Thomson Snell & Passmore, Bradleys' solicitors, but Mr de Beauville has not appeared in person here today. However, we do have the advantage of a skeleton argument which had been prepared on his behalf while he was still using the services of Mackrell Turner Garrett. The skeleton argument was prepared by counsel (Mr Richard King) on his behalf. We have read it. It sets out reasons why, in Mr King's submission, the new evidence should not be admitted. Mr King in the skeleton points to certain inconsistencies between Mr Whitehouse' evidence at the trial and the evidence which is now sought to be introduced and he submits that in these circumstances the evidence lacks the cogency requisite for new evidence to be admitted on a trial. He draws attention also to another Ladd v Marshall requirement, namely, that the evidence must be such as to be likely to have an important influence on the result of the case, although it need not be decisive.

He takes two points, therefore. First, that the evidences does not have the sufficient quality of influential importance and, second, that Mr Whitehouse' credibility is not such as to make this new evidence believable. I would agree that there are arguments to that effect that could be raised. But it seems to us that, if Mr Whitehouse's new evidence is correct, then a substantial part of the judgment in favour of Mr de Beauville is fatally undermined; and, if the new evidence is accepted, it will cast considerable doubt on other evidence given by Mr de Beauville in support of his case at trial.

Whenever conspirators fall out and one, repenting the conspiracy, want to give evidence about it, it is possible to raise questions as to the credibility of the penitent conspirator. In my view, issues as to the credibility of Mr Whitehouse in a case such as this must be assessed by a judge who can hear his evidence and that of Mr de Beauville, with cross-examination of each, and can then decide whether Mr Whitehouse is to be believed or not. I do not that think this is a case in which we, sitting as an appellate court and simply reading the written material, can form a view one way or another as to whether Mr Whitehouse will be believed when his evidence is heard and tested by cross-examination. For my part, however, I think it has sufficient likelihood of acceptance to justify being accepted as additional evidence on appeal.

If it is accepted as additional evidence on appeal, it seems to me that there is no alternative but for the case to be sent back for a rehearing before another judge. It would not be practicable for the Court of Appeal itself to hear this evidence and try to assess the credibility of Mr Whitehouse. The credibility of a witness in a case such as this has to be assessed by balancing the probability of his evidence being right with the probability of the opposing witnesses being right. The opposing witness in this case is Mr de Beauville. They will both have to be heard at length on all the evidence relevant to the issues at the trial. As I have said, that can be done only by a rehearing.

If there is to be a rehearing, I think it must be a complete rehearing. It is unfortunate for the appellate court ever to have to order a rehearing of a case. It results in a great increase in the costs of litigation and is, therefore, not something which should be done unless justice requires it. In my judgment, in the circumstances of this case, given the new evidence that Mr Whitehouse now proposes to give, justice does require, first, that the evidence be admitted and, secondly, that there be a rehearing of the trial. I would make an order to that effect.

LORD JUSTICE SWINTON THOMAS: I agree.

LORD JUSTICE ROBERT WALKER: I also agree.

ORDER: Application to admit new evidence allowed. Appeal allowed to the extent of a retrial. Costs in the discretion of the judge who hears the retrial; but, if there is not a retrial and the case is disposed of otherwise, the appellants to have their costs of the appeal and of the first trial.

(Order not part of approved judgment)