England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
LEEDS DISTRICT REGISTRY MERCANTILE COURT
(HIS HONOUR JUDGE McGONIGAL)

		Royal Courts of Justice Strand London WC2 Friday 30th March, 2001

Friday, 30th March 2001

1. LORD JUSTICE RIX: This is an application for permission to appeal out of time with an application for an extension of time by Mr Nicholson, a litigant in person, who is or was a farmer, and back in 1988 had extensive farming interests, mostly raising pigs. At a time when the price of pig meat was low and falling he was having difficulties in supporting the financial structure of his farming. He owed a great deal of money, some £700,000 to BOCM, the second defendant, who supplied him with pig feed, and only slightly less money, some £600,000 to the first defendant, HSBC Bank ("the Bank"). The Bank was a secured creditor but BOCM were unsecured. As the unsecured creditor, BOCM were particularly anxious about what was a declining situation. The Bank did not have as much information as BOCM and was less worried, as Mr Nicholson remained within, or only just outside, his overdraft limit.
2. There came a time however in February 1988 when there was a crisis. The outcome was that the Bank called in its overdraft and appointed a receiver. Mr Nicholson complained that the Bank was so fully secured or, indeed, as he would submit, oversecured, that what it did was done not in its own interests but essentially for the sake of BOCM, the unsecured creditor, and that it was really at BOCM's instigation that the overdraft was called in and a receiver appointed. Mr Nicholson is convinced that with some further support and/or by raising funds through the partial sale of his farming assets or herds, he could have made it through a difficult time.
3. His complaint at trial was in part that BOCM had shared with the Bank the financial information which had been developed in their discussions with him, arising out of a confidential report made in the previous August of 1987, and that it was a breach of confidence on the part of BOCM to disclose the information that they did disclose to the Bank about Mr Nicholson's affairs. The difficulty with that complaint is that on the findings of the judge, His Honour Judge McGonigal, either there was no confidence in the information supplied or, to the extent that there was, BOCM were entitled to disclose it to the Bank in their own interests, and that in any event within a few days of this information having been provided unilaterally to the Bank by BOCM, Mr Nicholson himself on 12 February 1988 gave carte blanche to his two main creditors, the Bank and BOCM, to discuss together without restriction his financial affairs in order, as he hoped, to achieve a successful solution to the crisis that was upon him. So there are those grave difficulties in any application for permission to appeal in respect of that question.
4. Essentially, however, the real complaint that Mr Nicholson had to make was that the Bank was acting in bad faith, in essence acting at the request and for the benefit of BOCM and not for its own interests. The judge found that there was no bad faith. He pointed out that there was evidence (which he went through in his judgment) that the Bank did not value Mr Nicholson's farm assets as highly as he did himself and that the real difficulty was that they had lost faith in Mr Nicholson and his ability to find a way through the crisis, indeed had lost faith in him even to the extent of doubting his honesty in preserving his pig herds intact for the benefit of the Bank. For the Bank had a charge over his agricultural assets.
5. There are grave difficulties in Mr Nicholson's complaint that the judge has erred in what is essentially a matter for findings of fact, and where the burden of proving bad faith lay upon Mr Nicholson and, as is well recognised, is a difficult burden to discharge.
6. Mr Nicholson submits as part of his application for permission to appeal that the judge wrongly refused to admit into evidence two expert reports which he wished to tender at trial. One was dealing with a way forward indeed with two or three suggested alternative ways forward; the other report sought to value the farm by reference to, as I understand it, what it would have cost to put together a similar enterprise. Mr Nicholson wished to rely upon both reports as proving the objective background to the Bank's decision whether to call in its overdraft or not and whether to appoint a receiver or not, not because, as I think he recognised, the issue at trial was what objectively the Bank should have done, since the Bank had its own rights and was entitled to consult its own interests, but because, Mr Nicholson submits, that evidence, of what the objective facts were, was so compelling that it was of the utmost importance to support his claim that the motivation of the Bank must have been in bad faith. It was evidence on which he sought to support his inference of that claim of bad fath, that the Bank was more interested in supporting its customer BOCM (or their parent, Unilever) than himself.
7. I set those matters out in order to indicate both Mr Nicholson's essential case and also, as I wish to underline, the difficulties in the way of his application, even as an application, and the difficulties which he would continue to face even if such an application were to be allowed. Nevertheless, when I consider the very great interests involved, a farming enterprise of one to two million pounds in value and the fact that what Mr Nicholson was dealing with was his livelihood, his life and also his home tied up in these matters, and given the importance of the points that Mr Nicholson was seeking to make at trial, despite my very serious reservations about the difficulties facing Mr Nicholson, I think that justice requires that instead of dealing with this application at this stage, I should adjourn it so that it can be dealt with in greater detail and upon notice to the two respondents.
8. I have emphasised to Mr Nicholson in the course of his submissions this morning the dangers of him taking that course because it certainly will involve the respondents is an expense which may yet rebound upon him. Nevertheless, having reminded him of the charge, I think that that is the course which justice should allow to happen. My decision, then, is to adjourn this application.
9. I will grant Mr Nicholson the extension of time for which he seeks, but I will otherwise adjourn this application to be heard on notice to the respondents by a Court consisting of two Lords Justice with an appeal to follow immediately were permission to appeal be granted. Half a day should be allowed.
(Application adjourned; extension of time granted).