England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRESTON COUNTY COURT
SITTING AT LEEDS
(Mr Recorder Elleray QC)

		Royal Courts of Justice Strand London WC2 Monday 21 October 2002

LORD JUSTICE CHADWICK:

1. This is an application for permission to appeal from an order made on 2 May 2002 by Mr Recorder Elleray QC, sitting as a deputy judge in Leeds County Court, in proceedings brought by Mr John Cook and his wife, Mrs Doreen Cook, against National Westminster Bank plc. The judge ordered the bank to pay £2,500 by way of damages in respect of dishonoured cheques, but otherwise rejected the claims which the Cooks were making against the bank.
2. The applicants, Mr and Mrs Cook, were the owners of a newsagency and off-licence business trading from 180-182 Leyland Road, Penwortham, near Preston. They had taken over that business in 1993 from the previous owners, Mr Cook and his son-in-law, Mr Nuttall. They had, throughout, banked at the Fishergate branch of the bank in Preston. During the course of their relationship with the bank their account was (until 1995) managed by a succession of branch managers and, thereafter, by the manager of the bank's Preston Business Centre. They sold the business in September 1997.
3. These proceedings were commenced in May 1998; but the claims were reformulated in particulars of claim dated September 2000. At that date the Cooks were represented by solicitors with, I think, the benefit of public funding. But it appears that that funding was withdrawn in February or March 2002, before the trial, so that at the trial Mr and Mrs Cook represented themselves. Mrs Cook seems to have been the principal spokesman on their behalf.
4. The trial extended over a period of five days at the beginning of April 2002. The judge handed down a full and detailed written judgment a week or so after the trial had concluded. The judgment extends to 190 paragraphs, over 102 pages. At paragraph 107 the judge summarises the complaints which the Cooks were making against the bank under ten numbered heads. As he explains, eight of the matters of complaint related to a period prior to July 1995 and the other two to a period after that date. The significance of July 1995 is that at about that time management of the account passed from Mr Ball, who was the manager of the Fishergate branch, to Mr Spencer, the business manager at the Preston Business Centre.
5. The judge heard evidence from Mr and Mrs Cook; and also from Mr Ball, Mr Spencer and other bank officials. He accepted the Cooks as honest witnesses, and acquitted them of any attempt to deceive the court by their evidence. But he took the view that he was bound to approach their evidence on issues of fact with caution; on the basis that what he described as a long struggle against the bank and their interest in the litigation had coloured their recollection. There were points of fact on which the judge thought that the Cooks' recollection was genuinely mistaken. The Cooks had made allegations of dishonesty against the bank's witnesses; including allegations that the bank's internal notes and records had been altered so as to show matters in a more favourable light from the bank's point of view. Those were serious allegations. The judge rejected them. His view was that the bank managers were honestly doing their best to recall the events in issue. The findings of fact in which the judge rejected the Cooks' recollection of events - and, in particular, Mr Cook's recollection - are set out in paragraphs 124, 132, 134 to 136, and 140 and 141 of his judgment.
6. Those are findings of fact made by a judge after hearing and seeing witnesses give their evidence at a trial. It is impossible to say that it was not open to the judge to make those findings of fact. There is no prospect that the Court of Appeal would disturb them. In so far as the appeal for which the Cooks seek permission relies on upsetting findings of fact made below, the appeal has no real prospect of success.
7. The particular point on which the Cooks now concentrate, however, is the judge's finding, in their favour, that the bank overcharged them on their overdrawn account. The point was raised in paragraph 29 of the amended particulars of claim served in September 2000:

"Furthermore, the Defendants purported to charge various excessive bank charges, interest payments and penalties which are itemised in the report by Mike Lucas of BD0 dated the 4th November 1998 a copy of which is appended in the First Schedule hereto. These charges were instigated to protect the Defendants without the authority of the Claimants and to the latters' detriment. In addition to charges visited upon the Second Partnership [between Mr and Mrs Cook] at the demise of the First Partnership [between Mr Cook and Mr Nuttall] ... the Claimants in the period between April 1994 and March 1996 were charged 0.91% rate of banking of turnover whereas the Defendants subsequently acknowledged that the appropriate charge should have been 0.30% of turnover. This was at a time when the Defendants knew that the Business and thus the Claimants' assets which secured them were most vulnerable."

8. It is now said that the judge ought to have held that overcharging - which, as appears from the paragraph I have just read, was not itself in issue - led to the failure of the business. If that was going to be asserted, then it could have been expected to appear in the report prepared by Mr Lucas, to which reference is made in the paragraph; or (at the least) in some subsequent report which was before the court for the purposes of the trial.
9. Mr Williams, who has made submissions on behalf of Mr and Mrs Cook in support of this application, has not been able to tell me that that issue was raised in any expert report. He accepts, I think, that one would look in vain in Mr Lucas's report to find an assertion that it was the overcharging of bank charges which led to the demise of the business. What is said is that that was a matter which would have emerged in the course of the experts' evidence, if they had given oral evidence.
10. Mrs Cook puts it this way in a witness statement which she has signed on 18 October 2002:

"A major part of our complaint in relation to the conduct of the trial was that we did not have our forensic accountancy experts with us and it is our contention that had they been present they would have made a significant difference to the view which the learned Judge took of our Claim.

On the second day of the trial, the learned Judge raised the question as to whether it was necessary for the experts to attend on either side. Neither my husband nor myself were at all happy with this because we felt we were already disadvantaged in the absence of legal representation but the Judge indicated to us that he would fulfil the function of our expert on our behalf. We felt compelled to agree to his suggestion and did so on the basis that he would fill in any gaps in the evidence with further questioning.

I telephoned and spoke to Mr Jenner formerly of BDO (our forensic accountants) yesterday [17 October 2002] about our appeal. He had been effectively a joint author of our forensic evidence with Mr Lucas although the latter was the lead name. He [Mr Jenner] confirmed to me that there was an agreement between himself and his opposite number that questions of causation of loss and the failure of the Partnership business were matters which they would deal with in their oral evidence at trial. Clearly there was no opportunity for this to happen. Notwithstanding our loss of Legal Aid, our experts would have had to have attended the trial because there was a witness summons against them. Mr Jenner in fact confirmed to me that he would have attended the trial in any event. Mr Jenner has left BDO and I understand that our solicitors herein have been in contact with Mr Lucas but he indicated that Mr Jenner was the person with the better working knowledge of the case. Mr Jenner gave me to believe that he would have been able to resolve the question of causation had he been present."

11. The judge referred in his judgment to the circumstances in which expert witnesses did not give oral evidence, at paragraph 120:

"I also read forensic accounting expert reports prepared by Mr Lucas for the Cooks (30.11.00 and 14.12.00) and by Mr Taylor for the Bank (01.03.01). The experts filed a statement of matters agreed and disagreed pursuant to a meeting between them on 02.04.01. The parties sensibly agreed, in the light of the relatively limited areas of disagreement between the experts, that it would not be proportionate for the experts to be called for cross-examination. That course was of particular convenience to the Cooks, since they no longer have legal aid available to them which would meet the costs of their expert attending Court. I shall have regard to the experts' reports in particular in connection with considering any questions of loss, including causation."

12. The judge did not, in the course of his judgment, refer to any contention in Mr Lucas's expert report that the failure of the business was attributable to the overcharging to which I have referred and which was pleaded. He found that there was overcharging; but that was not seriously in dispute. It was not pleaded that the overcharging led to the demise of the business. That may reflect the fact that Mr Lucas had not identified overcharging as a cause of failure in his report.
13. In the circumstances, it seems to me that there is no ground to criticise the judge for failing, first of all, to appreciate that the causative effect of the overcharging was in issue; or secondly, that Mr Lucas would have had something to say about it if he had been called to give evidence. There was no reason for the judge to appreciate that Mr Jenner would have given evidence about it. So far as appears from the judgment and Mrs Cook's subsequent witness statement of 18 October 2002, Mr Jenner had not been identified as the author of any expert report or as a person who would be giving evidence in support of the report made in the name of Mr Lucas.
14. What is submitted on the Cooks' behalf is that this application should stand over to enable investigations to be made as to what Mr Jenner would now say on the question of causation. As it is put by Mr Williams, all he is asking for is another 28 days or so to be able to satisfy himself and his clients that no miscarriage has occurred in the course of the trial.
15. The difficulty, as it seems to me, is this. If investigation did reveal that Mr Jenner would have been prepared to say something about the causative effect of the charging at 0.91% of turnover; there would need to be an application to admit new evidence at an appellate hearing. If that evidence were admitted, on the ground that the court thought that it was credible and potentially determinative, the outcome would be an order for a new trial. And that in circumstances in which there were expert reports, Mr Jenner was not the expert who had given a report, and the expert report of Mr Lucas (into which Mr Jenner may have had some input) did not deal with this point. It is said that Mr Jenner or Mr Lucas, on the one hand, and Mr Taylor, on the other hand, had agreed that causation was going to be a matter to be dealt with in their oral evidence. If that was something which they had agreed; then one would have expected to find some reference to that in the statement of disagreement which, very sensibly, they prepared following their meeting.
16. It is, in my view, impossible to avoid the conclusion that, if Mr Jenner is now prepared to say what Mrs Cook suggests he would say, that evidence could have been made available in the expert report. For some reason it was not then made available. In those circumstances - there being no reason advanced - there is no basis to invite an appellate court to order a new trial; so that a further trial can be fought on expert evidence which could have been, but was not, called at the first trial. It is not for experts who have made reports - and identified matters of agreement and disagreement - to say between themselves, "Never mind what is in the reports; we will give evidence about something quite different when the matter comes to trial." That is not a sensible or acceptable way in which to conduct litigation. It does not identify for the judge the real issues between the experts which he has to resolve.
17. This judge - proceeding on the basis of the reports that were before him and the statements of agreement and disagreement which the experts had put their names to - was entitled (as it seems to me) to take the view that the areas of disagreement were so limited that it would be a disproportionate expense to require the experts to attend to give oral evidence. If that had the effect that there was a burning issue which was not identified before him, then that arises because the expert reports did not identify the issue as they should have done. The obvious possibility, of course, is that causation never was an issue between the experts at the time; but that Mrs Cook seeks to raise it as a new issue after the trial. That is not a basis upon which permission to appeal can be given.
18. In those circumstances, I dismiss the application to adjourn this application for permission to appeal so as to enable further enquiries to be made of Mr Jenner or Mr Lucas; and I dismiss the application for permission to appeal on the ground that an appeal would have no real prospect of success.
19. The application for permission is out of time, but I am satisfied that there is an explanation for the delay. Had I been persuaded that an appeal had a real prospect of success, I would not have dismissed the application on the grounds of delay.
20. I may, perhaps, be allowed to indicate that, although the Cooks will undoubtedly be unhappy at this result, on what I have seen it would do them no favours to prolong this litigation.
Order: application for permission to appeal dismissed; public funding costs assessment if required.