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 COUNTY COURT AT WANDSWORTH
(HIS HONOUR MR RECORDER WIDDUP)

		Royal Courts of Justice Strand, London WC2 Thursday, 26th July 2001

Thursday, 26th July 2001

1. LORD JUSTICE KAY: This is an application for permission to appeal against a decision of Mr Recorder Widdup in the County Court at Wandsworth on 3rd April 2001. The decision was one which rejected the applicant's claim for damages for personal injuries arising out of an accident in the course of his employment with the defendant, Hygrade Foods Limited.
2. In 1996 the defendant employed Mr Gillett as a food packer at their factory in the south-east area of London. On 10th September 1996 Mr Gillett was walking down a metal staircase that linked the canteen to the factory floor when he slipped and fell. He suffered serious injuries and, as a result, brought this claim.
3. The issue of liability turned into an issue on a single fact. Undoubtedly, by the time an inspection took place, anti-slip material had been fitted to the stairs. The issue that the recorder in the end had to resolve was whether that anti-slip material had been in place before the accident or whether it was put there after the accident. If it was in place before then the claim was going to fail. If it had not been there then clearly the claim was likely to succeed. Thus, it was this issue above all else that the recorder had to address.
4. The matter became complicated because of the evidence relating to documentation. In 1999, through solicitors, the defendant disclosed documentation relating to the ordering and delivery of anti-slip floor covering from a Scottish company called SafeMate. It was dated May 1996, some time before the accident, and the defendant averred that this confirmed beyond any doubt that the covering was fitted prior to September 1996. The solicitors acting for the applicant took the step of checking with SafeMate the accuracy of the information that had been supplied. It turned out that this particular invoice and the material referred to in it could not be the material that had been used to put the anti-slip material on the stairs. Indeed, it must have been used on a landing.
5. In those circumstances, clearly what otherwise might have been seen as the killer blow turned out to be nothing of the sort. The solicitors therefore drew this to the attention of the solicitors acting for the defendant and that set about a search in the defendant's firm to see if documentation could be found to show that the other material which must have been used on the stairs had been ordered before that date.
6. SafeMate, for their part, said that they were 75 per cent sure from photographs that the material used was their material. However, they could find no documentation to show that they had supplied that material to the defendant.
7. The result of the defendant's search, as it was put forward to the applicant's solicitors and also later to the court, was that no documentation could be discovered within the defendant's records to show when that material had been bought.
8. At trial, Mr Carr, on behalf of the applicant, sought to establish what documentation there would have been. It turned out that ought to have been filed there (quite a large number of documents): original drawings, connected faxes, a purchase order, a packing slip, a delivery docket, an invoice. There should also have been computer records and bank records on top of that. He therefore submitted to the judge at the end of the case that it really was beyond credibility that all those could have in some way been innocently lost. The judge dealt with that argument and it is convenient, since a very large part of the argument before me is based upon it, to read what he said:

"Mr Carr has presented a very beguiling argument; he says that the defendants have concealed these documents. He says there can be no other explanation for the loss of various documents, from various files, in various locations in the company, namely in the stores, in Mr Halpin's office, and the engineering office, in the accounts department, or indeed on the accounts computer files.

Apparently the computer files have been searched, and there is not even a record of this transaction for the purchase of nosings from SafeMate being logged on. He does not suggest a conspiracy with SafeMate, who also have no documents relating to a sale of nosings to the defendant, but he says that Carol Sherwood, the representative of SafeMate, must be wrong in saying that there is a 75 per cent chance that the nosings are SafeMate's.

The effect of these submissions, if correct, is that this company and two of its senior executives, Mr Newman and Mr Greenacre, Mr Newman, the Chief Engineer, and Mr Greenacre, the Operations Director, have been willing to lie to this court, and have set about concealing documents, which would have led to the loss of this case if those documents had been revealed, showing that the nosings were only installed after September 1996.

The dishonesty would not simply be that of Mr Newman and Mr Greenacre, but no doubt of a number of other members of staff employed by the company, and of course of the company itself.

I am unable to find that this has been done by this company although I find it is extraordinary and surprising that these documents, and perhaps others, which have nothing whatsoever to do with this transaction, may have been lost by the company.

Those documents may have been lost either when various departments moved in 1999, or last year, or more probably in 1996. I say more probably in 1996 because the fact that the transaction for the purchase of the nosings was not logged into the computer suggests that the documents had gone astray at a far earlier stage than the time when the departments moved, but I make no findings of fact as to when these documents were lost, and I am unable to do so. All I do find is that there is no concealment by the company of documents, merely a surprising loss."

9. The learned recorder then went on and considered the rest of the evidence. He concluded, having carefully reviewed the evidence, that he accepted that the nosings were in place before the claimant's accident and, accordingly, he dismissed the claim. He gave a number of very detailed reasons why he reached that conclusion. Those reasons were cumulative and were, one has to say on reading them, persuasive and clear.
10. The argument that it is sought to be advanced now is that the judge reached his conclusion about the documentation without carefully considering and reviewing the evidence in that regard; that he went further than was necessary in attributing a dishonest intent to two of the specific witnesses if the claimant was right, and that, as a result, the whole of his approach to this case has to be viewed as being one that cannot stand.
11. Mr Carr acknowledges that persuading this court that a judge's findings on fact are not to be upheld is a difficult task. Clearly that is so; the more so when part of the allegation is that the defendant has acted fraudulently by concealing documentation. I do not see at the end of the day that there is any prospect that the court would be entitled to reach a conclusion that the recorder was not entitled to view the evidence in a way that led him to the conclusion that there had been no deliberate concealment and that the relevant documentation, for one reason or another, in circumstances which could not be established, had been lost. In considering that he had to consider, firstly, the evidence about the documentation itself, but, secondly, he had to go on and consider the rest of the evidence. If the rest of the evidence was persuasive, then that suggested that it would be unlikely that there would be any need for the defendant to start concealing evidence of the kind that is suggested.
12. For those reasons, it seems to me that the recorder was entitled to approach the matter in the way that he did. It is perhaps not surprising that he enters into no detailed consideration of the evidence relating to the documents because, at the end of the day, he was unable to reach any specific conclusion as to what had happened about that documentation. What he could be sure of, and it was a view, in my judgment, he was entitled to reach, was that there had been no deliberate attempt at concealment. That being so, he was thrust on the rest of the evidence and he reached his clear conclusions on the rest of the evidence.
13. One part of that matter was evidence from a Mr Halpin, he was one of those who would have been responsible, if not the person responsible, for having the safety flooring fitted. He had long since left the company and his evidence was that at the time when he left, the nosings were fitted by the company. Since he left before the accident, that evidence, if accepted by the judge, was crucial to the outcome of the case. The argument advanced today by Mr Carr is that if the judge came to the conclusion that the documentation had not been lost but that the search for it had been in the wrong area and that Mr Halpin, who said that the floor covering had come from the particular company in respect of whom the evidence had been obtained may have been wrong about that, then that, in turn, would damage the value of the evidence he was giving as to whether the nosings were in place or not.
14. I do not see that as an argument that stands any prospect of success before the full court. This was a clear freestanding piece of evidence. A person is entitled, who knows a factory well and who was regularly there, to say, "I saw it looking as it now appears in the photographs". That is nothing to do with documentation or anything else. It is a matter of simple recollection. The judge heard him give that evidence and the judge accepted that piece of evidence. It seems to me that there is no way that this court could interfere with that conclusion.
15. For those reasons, I am entirely unpersuaded that this appeal would stand the slightest chance of success. This was a straightforward finding of fact made by the recorder who clearly considered it carefully and gave detailed reasons, and I see nothing that would persuade the court that he was wrong in his conclusion. For those reasons I refuse permission.
Order: Application refused. Detailed assessment of the applicant's costs.