England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CARDIFF DISTRICT REGISTRY
MERCANTILE COURT
(His Honour Judge Chambers QC)

		Royal Courts of Justice Strand London WC2
		Monday, 8th October 2001

1. LORD JUSTICE RIX: This is an application by Mr and Mrs Yasseen for permission to appeal from the judgment of His Honour Judge Chambers QC, sitting at Cardiff, in their claim against HSBC Bank Plc ("the Bank").
2. This is a sad story because, as it seems to me, Mr and Mrs Yasseen, who used to have a dairy farm in Pembrokeshire and other assets, including a flat in Chelsea in London, have been brought to a position whereby their attempts to meet their obligations to the Bank have, colloquially speaking, wiped out their assets. This has occurred principally as a result of the failure of a venture for the purchase of a development site near Haverfordwest, on which it was thought to build half a dozen houses or so, and also as a result of the failure of their farm to be a viable profit-making enterprise. It is clear to me, both from their written and their oral submissions, that Mr and Mrs Yasseen are concerned with the whole conduct of the Bank in relation to their farm, as well as in relation to their housing development project, and the way in which the Bank dealt with the assets charged to them once things started to go wrong, and I understand their feelings.
3. Nevertheless, the claim with which I am concerned, in respect of which they seek permission to appeal and also permission to admit new evidence, which is collected in bundle B(III), is much narrower and concerns a claim against the Bank in contract and in tort arising out of the purchase in June 1988 of the development land to which I have referred. It is essentially along these grounds, at any rate as pleaded in their statement of claim. First, they say that in October 1987 the Bank, through its manager Mr Mathias, entered into a special relationship with them whereby the Bank took upon itself the responsibility of acting as their investment adviser. Secondly, they say that at a meeting on 9th March 1988 the Bank, through Mr Mathias, advised the Yasseens to enter into a land development transaction on the basis that the Bank would support all the development costs of that project. Reliance is also placed upon the facility letter of 26th August 1988 under which the Bank recorded the advance to the Yasseens of £94,000 to buy the land as "a temporary arrangement pending detailed discussions regarding development". That facility was on the terms that the loan was repayable on demand, and that subject to that the matter would be reviewed later in 1989.
4. On that basis the Yasseens pleaded an implied contract that the Bank would advance all development costs and, moreover, would act fairly and reasonably in relation to the Yasseens and their project, and that the Bank was ultimately in breach of contract and acted negligently when it failed to provide further loans to bring the development project to a successful conclusion. Oddly enough, it is not pleaded that the advice to buy the development land was itself negligent; rather, that the Bank's ultimate refusal to provide the development costs was what was negligent, or at any rate unfair and unreasonable.
5. In these circumstances the judge, in opening his judgment, said, I think correctly:

"2.The legal basis of the claim has been put in a number of ways that even now do not reflect what must be the heart of the claim. Nevertheless, I shall deal with the case as if that complaint, together with the others that are made, were before me."

6. He went on to say:

"3.The nub of the allegation is that the Bank undertook to make all such loans as might reasonably be required for the completion of a property development ..."

7. He said:

"6.The issue is whether the Bank took upon itself the role of advising Mr Yasseen to enter the property market as a developer with the intimation that it would underpin him financially in doing so."

8. He then made this important finding about the oral evidence given before him:

"The witnesses are Mr Yasseen and Mr William Mathias who was at the relevant time Senior Account Manager at City Branch Cardiff.

7.Both witnesses gave evidence before me. Both witnesses gave their evidence honestly. There was however a contrast between them. As I shall come to, Mr Yasseen persisted in giving evidence on a material aspect of the case that was quite clearly incorrect. By contract Mr Mathias was, by common consent, a witness of absolute candour and, by my finding, of considerable care. In addition he had the benefit of a series of meticulous contemporary notes that went to contradict Mr Yasseen's version of events."

9. In that passage and in other passages in his judgment the judge dealt with the two crucial witnesses, Mr Yasseen and Mr Mathias. There were other witnesses on behalf of the Yasseens, because both Mrs Yasseen and her son gave evidence, and there were also other witnesses on behalf of the Bank, but these were the two crucial witnesses. The judge found them both to be honest. However, the judge went on to point out that Mr Yasseen was simply wrong to insist that after March 1988 the Yasseens did not at first seek to buy in the London residential market, and he pointed out that Mr Mathias was both an exemplary witness and supported by the documents. He also said this:

"32.Given the fact that Mr Yasseen was clearly wrong on a material part of the history, the Bank's detailed contemporaneous notes and the impressive nature of Mr Mathias as a witness, I accept the Bank's account of what occurred at the two meetings in respectively December 1987 and March 1988."

10. In their written and oral submissions before me the Yasseens now seek to say that the judge was simply wrong on his facts; that the Bank's documents were fabricated and that Mr Mathias had fabricated his documents; that the judge's detailed findings on the evidence before the court are undermined or changed by the new documents in bundle B(III), which the Yasseens now seek to put before the court on appeal. As to that new bundle, some of the documents were already before the court. There is no reason why all the documents could not have been before the court. In general, the use that the Yasseens seek to make of these documents is to make minor points of fact as to what they say are inaccuracies in the Bank's records and internal diary entries, but I confess that they do not seem to me to be likely to have made a material difference to the result.
11. I have considered carefully all the particular points which in his written submissions Mr Yasseen has sought to make about these documents. In his oral submissions I asked Mr Yasseen to indicate to me what was the single most important document in bundle B(III) which would go to support his case on appeal and undermine the judge's conclusions. He pointed me to two documents at pp.557 and 558 and following. One relates to the conduct of the farm and not to the development project at all. Mr Yasseen advised me that it is to be dated to 1997. The other is a document of 14th August 1996 and is a report on the saleability of the properties at the development site. In effect, both documents are concerned with much later events, eight or nine years after the critical events in 1988 with which this claim is concerned, and relate, as I understand it, to the question of whether the Bank was taking sensible decisions or forcing the Yasseens to take sensible decisions in an attempt to extricate the Yasseens as best they could, and to extricate the Bank as best it could, from the difficult financial circumstances in which they were both involved.
12. I have to confess that those documents simply do not help me at all on the critical issue which was before the judge, which relates to what, if any, undertaking was made by the Bank, or what, if any, advice was given by the Bank to the Yasseens in the latter part of 1987 or the critical months of 1988. Therefore, I see no reason at all to grant permission to admit new evidence. I see no argument in favour of that.
13. The fact of the matter is that the contract relied upon is nowhere in writing and is inconsistent with the Bank's internal diaries of events, for instance its diary for 9th March itself. The documents support no case in tort. The judge, having heard all the witnesses at a trial of four days, was forced to prefer the defendant's crucial witness to the evidence of the claimants, which he did both on the basis of the witnesses that he heard and in the light of the documents that he had to consider. In the circumstances there is no ground for putting in the new documents, and in any event I see no realistic prospect of success for any appeal and no compelling reason to grant permission to appeal.
14. Having stated that, I will go on to say that I have considered in detail and with care the various submissions made, for instance in the Yasseens' detailed notice of appeal. In that document there are essentially three numbered grounds of appeal, with a long submission by way of commentary. The first two grounds are to the effect that the Bank provided fabricated records. That was not a case made at trial and it is not a case which I see any prospect at all for raising on appeal. The third ground of complaint is one which I well understand and sympathise with, but which does not assist me on the analysis of the judgment. It is a complaint about the damage done to the farm business and the losses caused to the Yasseens arising out of their inability to meet their obligations to the Bank, in particular in relation to the farm.
15. The submission is also made that the judge was prejudiced because when he had been counsel he had represented major banks, including the defendant Bank in this case. However, I see no possible ground on which any reasonable person could think that there was a danger of bias on the part of the judge on that basis. Secondly, it is said that the Bank was unfair in withdrawing its support and forcing the Yasseens to sell the farm and their flats when it all went to pay interest, but, as I have already indicated, I am afraid that, without establishing an obligation either in contract or in tort, very little of that is relevant to the claim.
16. I will spend just a moment in referring to the examples of discrepancies in the Bank documentation which have been particularly highlighted. Particular emphasis in the Yasseens' written submissions was given to the report by a Mr Davies of the Bank on the farm's viability in October 1987. I am afraid to say that I can see no relevance at all in that document to the claim in contract or tort in relation to the development land. At most, the various points made could go to the credit of the defendant's witnesses, but even on that basis it is not, I am afraid to say, persuasive in itself, and certainly goes absolutely nowhere at all to discredit the evidence of Mr Mathias or his diary notes.
17. As far as those diary notes are concerned, the particular points made by reference to them are, first, as to the entry of 9th March 1988 itself, where Mr Yasseen complains of some minor discrepancies in relation to the Yasseens' intentions as to their farm. All I can say is that those discrepancies alleged may or may not be accurate, but they were very far from being the centre of the case and I am not able upon that basis to say that the judge was wrong in his major findings of facts after a four-day trial.
18. The other diary entry to which particular attention was drawn was that of 27th June 1988. That went to the question of a possible investment in a property called Ivy Cottage, but there again I do not find the Yasseens' points persuasive. Their point is that there is no reference to various events taking place in relation to Ivy Cottage in May 1988, but then the entry for 27th June 1988 begins with the words "during the last month or so" and is intended to be a brief resume of previous events.
19. I have illustrated Mr and Mrs Yasseen's submissions by reference to those particular examples on which emphasis was placed to indicate that I find nothing persuasive there to suggest that the judge was wrong in his assessment of the witnesses, or wrong in his major findings of fact, or wrong to rely upon the Bank's documents as, on the essentials of the case, helpful documents.
20. For all those reasons, sad as it is for the Yasseens, I am obliged to dismiss this application on the grounds that there is no realistic prospect of success and no other compelling reason to grant permission to appeal. I recognise that that decision must be upsetting to Mr and Mrs Yasseen, but it is the decision that I am bound to come to.
Order: applications dismissed.