England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM STAINES COUNTY COURT
(HIS HONOUR JUDGE BISHOP)

		Royal Courts of Justice Strand London WC2
		Friday, 29th June 2001

1. LORD JUSTICE DYSON: This is an application by Twickenham Ford for permission to appeal the decision of His Honour Judge Bishop sitting at Staines County Court who, on 10th January 2001, dismissed an appeal from the decision of District Judge Freeman at the same court on 31st October 2000.
2. The proceedings arise out of the sale of a Ford Transit van by the appellant who was the defendant in the proceedings below to the respondent who was the claimant in those proceedings. The claimant's case was that he had agreed to buy the Ford and to sell his own van to the defendant in part exchange, a value of about £3000 being placed on the part exchanged van. He paid a deposit of £3,121.29. The defendant alleged that there was no term of the contract that the claimant's existing van was sold to the defendant in part exchange. The claimant's case was that this entitled him to rescind the contract and claim repayment of the deposit. The central issue in the case therefore was whether it was a term of the contract that the defendant would accept the claimant's existing van in part exchange for a sum of about £3,000.
3. Since there was no reference to such a term in the contract documentation, the issue turned entirely on oral evidence. The contract of sale was negotiated by Mr John Holmes on behalf of the claimant. He was the claimant's brother and employee; on behalf of the defendant it was negotiated by Mr Bond. Mr John Holmes gave evidence before the district judge but Mr Bond did not.
4. In his judgment the district judge said this:

"He [that is the claimant] spoke to Mr Bond who was the Defendant's salesman. Unfortunately I have not heard from Mr Bond who no longer works for the Defendant - His evidence might have been crucial in influencing my decision.

Mr Holmes discussed the requirement with Mr Bond and says that he discussed the question of taking the existing van, which he did not have with him, in part exchange. He saw similar vans to the one that he wanted to trade in on the forecourt for about £6,000. He realised that the Defendant needed a profit margin and had expenses and was not disappointed when Mr Bond said that a very rough price for his van would be £3,000. He was to bring his van in for a formal figure to be given when the new van was ready, which would be in about 8 weeks.

Mr Paul Smith the Defendant's general manager denies that this arrangement was made. He was not present during the conversation but says that any arrangement about part exchange and any confirmation of figures had to be done through him. As I say it is a pity I did not hear from Mr Bond but on what I did hear, I have no reason to disbelieve Mr Holmes."

5. The district judge continued:

"I accept that there was an agreement which was not put into the written order and that Mr Bond agreed on behalf of the Defendant that the claimant's van would be taken in part exchange at a price which had admittedly not been agreed in view of the fact that it had not been seen and would be subject to about 8 weeks commercial use prior to sale, but would not be far different from £3,000."

6. Accordingly, the district judge gave judgment in favour of the claimant in the sum of £3,121.29.
7. The notice of appeal sent to the court on 7th November 2000 stated that the defendant/appellant had now been able to trace Mr Bond and that a statement would follow. In a comprehensive judgment, His Honour Judge Bishop held that the the judgment should not be set aside under CPR 27.11 (1) which provides:

"A party

(a) who was neither present nor represented at the hearing of the claim, and

(b) who has not been given written notice to the court under the rule 27.9(1) may apply for an order that a judgment under this part shall be set aside and the claim re-heard."

8. The judge decided, in my judgment, quite correctly, that the absence of a witness was not sufficient to engage that provision. Secondly, he decided that insofar as there was an appeal before him, the correct rule to apply was 27.12(1) which provided:

"A party may appeal against an order under this part only on the grounds that

(a) there was serious irregularity affecting the proceedings or

(b) the Court made a mistake of law."

9. Unfortunately, the judge was in error in applying that provision since it had been repealed with effect from 2nd October 2000 by the Civil Procedure (Amendment number 4) Rules. What he should have done was to consider simply whether there was a real prospect of success on an appeal. In fact he went on to do that by saying at page 9 of his judgment that the evidence of Mr Bond was unlikely to have been preferred to that of Mr Holmes. I doubt whether it was reasonably open to him to reach that conclusion on the material before him and certainly for the reasons that he gave. But in my judgment the success of an appeal by the defendant depended entirely on procuring the evidence of Mr Bond, and that evidence being accepted. That, in turn, depended on whether the defendant had a reasonable explanation for not adducing that evidence in the first place.
10. It is clear from page 7 of the judgment that the judge did not regard the defendant as having put forward a reasonable explanation for failing to have the evidence of Mr Bond at the hearing before the district judge. The judge was rightly suspicious of the fact that it was said that Mr Smith had happened by pure chance to meet someone who was able to put him into contact with Mr Bond within a matter of days of the decision of the district judge. The judge reached the conclusion that the reason why the appellant decided not to seek to obtain the evidence of Mr Bond before the hearing before the district judge was that they had decided that they were likely to be able to succeed without Mr Bond's evidence and by relying on the documents alone. As the judge pointed out, they had many months' notice of the hearing date before the district judge. The judge was, in my view, entitled to reach the conclusion that there was no reasonable explanation for the failure to obtain the evidence of Mr Bond before the district judge. For that reason any appeal would have been most unlikely to succeed.
11. There is a further point that this is in any event a second appeal. Accordingly, permission to appeal could only be given if the appellant were able to identify an important point of practice or principle or there was some other compelling reason for giving permission to appeal. No such point of practice or principle has been identified by the appellant, nor in my judgment is there any other compelling reason to give permission to appeal.
12. For all these reasons I dismiss this application for permission to appeal. I should say that although this hearing was listed for an oral hearing, I have not had the benefit of any oral argument on behalf of the appellant. The Court was notified by Mr Neil Smith, who I take to be the proprietor of Twickenham Ford, Neil Smith Motors Limited. He has notified the Court that he had intended that Mr Paul Smith, who is apparently one of the company's representatives, should make representations to the Court this morning. Owing to the illness of a senior manager, it seems that Mr Neil Smith decided that Mr Paul Smith should be transferred to one of the company's other branches so that he would not be able to attend today. I did not regard that as a sufficient reason for adjourning this application, particularly in view of the fact that, in my judgment, the papers simply do not disclose any possible basis upon which permission to appeal could have been given.
(Application for permission to appeal refused)