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 HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
SHEFFIELD DISTRICT REGISTRY
(His Honour Judge Bullimore
(sitting as a deputy High Court judge))

		Royal Courts of Justice Strand London WC2 Thursday 6th December, 2001

1. LORD JUSTICE BUXTON: This is a renewed application for permission to appeal from an order of His Honour Judge Bullimore in the Technology and Construction Court sitting in the Sheffield District Registry on 3rd October 2001. It arises out of proceedings that have already taken up a substantial amount of time and energy on the part, not only of those engaged in them, but also of the court. I can well understand Judge Bullimore's proper reluctance to see the dispute extended at a late stage in the way that the amendments sought to do. I do not set out here the matters in contention in the case. Those are fully set out in the various documents.
2. What has happened is that at a comparative late stage of the matter, and indeed shortly before trial, there became available to the proposed appellants a further statement of a Mr Angeloni, who had previously been an employee of the respondent company or of an aspect of it, Motor Sport Vision Ltd (known in these proceedings, as I understand it, as FPA). He had previously been a deponent, as I understand it, on behalf of that company.
3. Various points were raised before the judge as to whether Mr Angeloni's evidence was likely to be reliable, and also in regard to certain differences between the evidence he now wishes to give and that which had previously been put before the court. The judge, if may respectfully say so rightly, considered that he could not determine on a summons what were the rights and wrongs of the first part of that. He received explanations that he deemed to be satisfactory with regard to the alleged discrepancies. The judge therefore concluded that Mr Angeloni was capable of belief, though that of course is a long way from saying that his evidence will eventually be actually accepted and believed.
4. So far as the other requirements for the adduction of new evidence is concerned, the judge was particularly disturbed by the question of whether the matters to which Mr Angeloni deposes ought properly to have been investigated and discovered by the proposed appellants at an earlier stage.
5. The issue really came down to this. It is a strongly contested issue between the parties as to whether FPA correctly prepared racing cars for the use and driving of Mr Charles Hall, the first claimant. Mr Hall's case is that he was entitled to abandon the contract that he had with FPA because of inadequacies, indeed danger, in the cars that he was asked to drive. Until Mr Angeloni's evidence appeared on the scene, those inadequacies were alleged to be in regard to what I now understand to be known in the industry as "race day set-up". That, putting it in broad terms, is the tuning of the car on the actual day of the race and the provision for that purpose of properly trained, dedicated and qualified mechanics. The particulars given of that complaint (which are now to be found in the proposed paragraph 6B of the re-re-re-amended statement of case) are directed at the incidents that, in the contention of the claimants, are attributable to poor race day set-up. A number of the matters that Mr Angeloni says were not properly attended to by his former employers are equally directed to that issue. For instance, incompetent mechanics, as he claims, and also a failure to keep proper records of necessary settings of components.
6. Mr Angeloni also, in paragraph 15 of his proposed statement, added another matter; that is to say that FPA did not undertake prior to the race day what is described as "crack-testing" - that is to say to ensure that parts were not damaged - and also did not undertake what is described as "lifeing" of important parts; that is to say, ensuring that the parts were not used longer than they safely could be.
7. What I now understand the claimants wish to do is to add to their claim what is effectively a completely new set of complaints; that is to say that quite apart from the race day set-up, there were inherent faults in the procedures of the defendants which even if they did not or could not be shown actually to have produced an unsafe car, were sufficiently fundamental to give rise to grave concern as to whether the car would be safe, and were (as they would wish to contend) entirely inappropriate and improper procedures on the part of somebody engaged in the motor racing industry.
8. When the matter was before the learned judge below (and indeed when it was before me on paper) this crucial distinction was not apparent, or at least was not apparent from the written material that was before me, including the proposed amendments to the statement of claim and the grounds of appeal.
9. The judge considered that all of Mr Angeloni's complaints, including that in paragraph 15, were no more than an expansion on or further evidence of the original complaints in the statement of claim. He also considered that because of the expert knowledge of the claimant and the Part 20 defendant with regard to the motor racing industry, it would have been open to them to investigate those matters had they been minded to do so, and for that reason they should not be permitted to admit those questions at this late stage of the proceedings.
10. My view when I considered the matter on paper was that it was certainly well within the discretion of the trial judge, who is very familiar with this case, to reach that conclusion; and that it was not a case, for that reason, in which this court would intervene. I should make it quite clear that I am still very hesitant as to whether in any event this is a case that the Court of Appeal at the end of the day will consider it appropriate to differ from the trial judge. But the matter before me now, with the assistance of Mr Hunter's further submissions, has taken on a somewhat different aspect, which I have to recognise was not apparent to me on paper and was not recognised or accepted by the judge: even though Mr Hunter tells me (and I take it from him) that in addressing the judge, over what I am alarmed to see was a three-day hearing in this matter, he made these points fully to him.
11. The crucial points are now twofold. First, that the engineering preparation - that is to say, including crack-testing and lifeing - is a crucially different matter from race day set-up. Second, and even more importantly, that whilst persons such as the two Mr Halls, who are concerned on what might be called the driving side of the industry, will be, as the judge thought, aware of the requirements and need for race day set-up, they will have no knowledge of what is actually being done by the owners of the motor vehicles in connection with engineering and preparation because that occurs on the days before the race day. As Mr Hunter put it, first of all his clients were in no position in preparing this case to investigate engineering and preparation; and secondly in any event they would have assumed, as would everybody in the industry, that those matters were being properly attended to, because they are said to be absolutely axiomatic. Mr Hunter tells me that before the judge he made those points in some detail and they were not contradicted by his opponent.
12. With considerable hesitation, therefore, I give permission to appeal limited to this one point; that is to say, whether the judge should have permitted the proceedings to be amended so as to enable the claimants to assert, principally on the basis of paragraph 15 of Mr Angeloni's affidavit, defects with regard to engineering and preparation, particularly in terms of lifeing and crack-testing.
13. As I have said, the papers in respect of that issue are not in a satisfactory state. I direct that the following steps be taken within the next 14 days before the notice of appeal is filed in court.
14. First, there will be annexed to the grounds of appeal a revised version of the proposed paragraph 6 of the re-re-re-amended statement of case that will set out in clear terms the distinctive points now alleged between engineering and preparation on the one hand, and race day set-up on the other.
15. Second, there is no evidence at the moment before the court as to either the nature of the distinction between engineering and preparation and race day set-up on the one hand, or the inability of the Messrs Hall on the other to know and understand what was being done by the defendants in regard to engineering and preparation. There will be provided within 14 days such evidence as the claimants are advised dealing with those matters; and additionally dealing, in so far as it is thought necessary to supplement the statement of Mr David Hayle, with the importance of engineering and preparation.
16. Third, in addition to the skeleton arguments already prepared, there will be annexed to the grounds of appeal a skeleton argument setting out the implications of the allegations of defective engineering and preparation, in particular, in respect of the effect that they have on allegations of waiver or acceptance that play a part in this case. I am particularly concerned in that regard as to the implications for those claims of defects on the part of the defendants which were, as is accepted and indeed asserted, not known to the claimants.
17. Fourth, the grounds of appeal should be reconsidered to see if it is appropriate to seek permission from the full court for them to be amended, so as to bring them into line with the way in which the case is now put.
18. I also say in passing that no doubt these matters may be of interest to the court on any question of costs in due course.
19. In order to save unnecessary work on the part of the court officials, the only order that needs to be drawn in this case is that there shall be permission to appeal limited to the point contained in paragraph 15 of Mr Angeloni's affidavit. A note will have been taken, no doubt, by Mr Hunter of the other matters and also they will be recorded in this judgment that I shall in due course correct and make available.
ORDER: Application for permission to appeal granted, limited to the point contained in paragraph 15 of Mr Angeloni's affidavit. (Order not part of approved judgment) ____________________