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 NEWCASTLE UPON TYNE COUNTY COURT
(HIS HONOUR JUDGE BOWERS)

		Royal Courts of Justice Strand London, WC2 Friday, 25 October 2002

1. LORD JUSTICE BROOKE: I will invite Mr Justice Bodey to give the first judgment.
2. LORD JUSTICE BODEY: Mr Colin Orford appeals, with the leave of Potter LJ dated 22 April 2002, against a decision of His Honour Judge Bowers in the Newcastle County Court dated 5 June 2001, dismissing the claimant's action based on an alleged misrepresentation. Mr Orford also makes application for this court to admit certain fresh evidence, and thereafter to order a retrial of a claim in defamation which was dismissed on its merits by the judge on the same day.
3. The first defendant in the action, Rasmi Electronics Limited ("the company"), was the claimant's employer at the material time. The second defendant, Dr Surendra, was the company's managing director and founder. From December 1998 until June 1999 the company employed the claimant as an electronic development manager. The company carries on business as the manufacturer of electronic and lighting equipment. It has about 120 employees.
4. This employment has led directly, or indirectly, to three sets of proceedings. The first arises from the fact that, following the determination of his employment in June 1999, the claimant applied to an Employment Tribunal alleging unfair dismissal. One of the issues was whether or not the company had dismissed the claimant for incompetence. The Tribunal rejected that assertion and held that the primary reason for the claimant's dismissal was that he had not agreed to work the requisite hours reasonably expected of him by the company. Since this reason was not sufficient to take the case out of the one-year qualifying period for bringing such proceedings, the claim for unfair dismissal failed. Mr Orford was, however, awarded damages for items of wages unlawfully deducted and received a total of £835.
5. The Tribunal declined to investigate or make any findings of fact about an accident allegedly sustained by the claimant on the factory's premises on 14 June 1999 to which I will revert.
6. In a second set of proceedings the claimant sued both the company and Dr Surendra in the Newcastle County Court for misrepresentation and for defamation. The alleged misrepresentation was to that when the company had employed the claimant in December 1998 it had misrepresented his job specification as being that he was to develop products for the company; whereas the claimant alleges that all he was required to do comprised the illegal copying of other companies' products in breach of their intellectual property rights. The company and Dr Surendra vigorously denied that allegation.
7. The allegation of defamation arose in this way. On 14 June 1999, after many months of difficulties in his job (partly arising, he says, out of the alleged requirement for him to do illegal copying and partly because of alleged inadequate funding) the claimant attended the factory for the first time in several days. He had been off work "sick" several days beforehand, although, on his own case, he described it as a "diplomatic illness"; in other words, he had not really been ill. Before going, he had cleared his desk of his personal possessions.
8. On 14 June 1999 it is the claimant's case that he suffered a tripping accident on the company's premises suffering minor injuries. Following this incident the Health and Safety Executive required the company to file a report. When the company did so, signed by Dr Surendra, such report to the Health and Safety Executive dated 28 June 1999 contained an allegation that the claimant had invented the accident so as to falsely claim damages against the company for alleged personal injuries. The report contained the following:

"We assume he wanted to claim money from Rasmi Electronics by staging an accident. He did not trip over the bar, indeed he prised open the top of the paint cans and splashed himself and the surrounding area in paint and then claimed 'an accident'."

9. It was this document which the claimant asserted constituted libel against him. He further pleaded that the company, through Dr Surendra, had aggravated the libel justifying his receiving aggravated damages by repeating a similar allegation to his, the claimant's, brother.
10. The third set of proceedings comprised a county court action by the claimant against the company for damages for personal injuries arising out of the alleged tripping incident alleged on 14 June 1999. Those proceedings are in the process of preparation and have not yet come on for trial.
11. Reverting to the county court proceedings as to misrepresentation and defamation, the case came on before His Honour Judge Bowers on 4 and 5 June 2001 in the Newcastle County Court. We have a transcript of the pre-hearing discussions and of the judgment. Both the claimant and Dr Surendra acted in person.
12. The first and considerable difficulty confronting the judge was that discovery and exchange of witness statements had not taken place. It looks as if the claimant had tried harder than the defendants, although either party could have posted their documents to the other.
13. Exchange therefore took place on the opening morning of the trial. Numerous documents passed each way. The judge then indicated to the claimant that in his view the misrepresentation claim was bound to fail since the claimant had affirmed the contract (a) by remaining employed for six months and then (b) by going to the Industrial Tribunal for compensation. The judge said that that would constitute a defence to a claim for misrepresentation. The claimant says that he was allowed only about half an hour (Dr Surendra says about two hours) to read and consider the documentation which he was given by Dr Surendra that morning, and to prepare his response to the possibility of the judge giving summary judgment being given against him on the part of the claim relating to the alleged misrepresentation.
14. On his return to court, the claimant protested that he had had no notice of the possibility of summary judgment on part of his claim, saying:

"If I had known this point was going to be taken this morning, I would have brought something into back me up."

15. When the judge pointed out that the damages for misrepresentation as pleaded by the claimant were clearly too remote, the claimant stated, accurately, that there had been an order on 1 March 2001 directing that the trial in June 2001 should, as regards the misrepresentation matter, be on a "liability only" basis, with damages to be assessed later. The claimant told the judge that he was not ready and prepared at that moment in time to argue as to the validity (or not) of his damages as quantified.
16. The learned judge, nevertheless, felt it right to exercise his powers of case management to give summary judgment on the misrepresentation claim in favour of the defendants as having no reasonable prospect of success.
17. Turning to the defamation action, that was tried out in full by Judge Bowers on 4 and 5 June 2001 with witnesses called and cross-examined. Since the defendant company and Dr Surendra had pleaded qualified privilege as regards their comments in their report to the Health and Safety Executive, the claimant had to show that the report had been written with malice. In this he failed and the claim for defamation was dismissed. The judge was satisfied on the evidence he heard that Dr Surendra had genuinely and reasonably believed that the alleged accident on 14 June 1999 had been staged by the claimant.
18. When the judge was about to embark on the part of his judgment determining whether or not the accident had in fact happened, the claimant intervened saying he did not need a determination in that respect.
19. The claimant subsequently applied to this court for permission to appeal against the summary judgment as regards the misrepresentation claim, but he did not apply for permission in respect of the dismissal of his defamation claim.
20. That application for permission to appeal came before Potter LJ on 22 April 2002. The learned Lord Justice granted permission to appeal on the point (ie as regards the summary judgment). That is the first of the two aspects of this matter before the court today.
21. Dealing first with the misrepresentation aspect, one cannot but have sympathy for the learned judge, laudably wishing as he did to exercise robust case management under the overriding objective in the Civil Procedure Rules, but lacking the assistance of solicitors or counsel on either side. He plainly took the firm view, and one can readily understand why, that Mr Orford was not able to seek damages, relying on any misrepresentation made to him, since he had affirmed the contract by continuing to take advantages of it (until he was dismissed) and by relying on it as a contract in the Industrial Tribunal. The learned judge said about this issue:

"It seemed to me -- and I have already given reasons -- but it seemed to me briefly that if there was a question of misrepresentation or fraud, then the claimant knew that in January [1999], affirmed his employment and continued with the contract until June [1999] and the court would not lend itself to a remedy where a contract in those circumstances had been so affirmed. Secondly, after he was dismissed, the claimant, by going to the Industrial Tribunal alleging unfair dismissal, reaffirmed the contract of employment, rather than going back to the misrepresentation. If this contract was, as is being alleged, illegal, then it seems to me that this court would not become involved in such a tainted arrangement in any event, as it would be contrary to public policy.

Finally and more importantly, Mr Orford had to concede there is really no evidence produced by [him] in his statements of either loss or damage as a result of what he alleges was the misrepresentation; and such claims as were made for bank charges and for the loss of the policy are, in my judgment, far too remote and were not caused by the alleged misrepresentation in any event and so for those reasons, briefly, I dismissed that aspect of the case."

22. With respect to the learned judge, he was, in my judgment, on weak ground on illegality since, on the claimant's case, he (the claimant) was actually protesting about the alleged copying of other companies' products. He was also on weak ground regarding the absence of damage point, in view of the district judge's order (referred to above). He was on much stronger ground on the issue of affirmation.
23. The question arises today as to whether in the circumstances the judge had power to give summary judgment on the misrepresentation aspect at the commencement of the hearing. In this respect, the claimant has referred us to two rules in the Civil Procedure Rules. The first is Rule 3.3, headed up "Courts power to make order of its own initiative". Under Rule 3.3(3):

"Where the court proposes -

(a) to make an order of its own initiative; and

(b) to hold a hearing to decide whether to make the order

It must give each party likely to be affected by the order at least 3 days' notice of the hearing."

Mr Orford says that he did not get three days' notice of the order which the court made of its own initiative.

24. He then referred us to rule 24.4(3) which reads:

"Where a summary judgment hearing is fixed, the respondent (or the parties where the hearing is fixed of the court's own initiative) must be given at least 14 days' notice of --

(a) The date fixed for the hearing; and.

(b) The issues which it is proposed that the court will decide at the hearing."

It is submitted by the claimant that the learned judge failed to give 14 days' notice of his intention to give summary judgment.

25. I do not agree with those submissions by Mr Orford. In so saying I am fortified by the judgment of Mr Justice Wright in Evans v James reported at Criminal Appeal Transcript 20 July 2000, where he said:

"There was, apparently, no application on behalf of the Claimant for summary judgment under that rule; the parties had attended prepared to conduct a trial; but the learned judge, having read the witness statements and the documents, had come to the conclusion at the outset that there was no real defence to the claim, and he called upon counsel to address him on that basis. There is no question but that he had jurisdiction to take that course, but the appellant contends that in arriving at the conclusion that he did, the learned judge misdirected himself as to the law."

26. It seems to me that the rules which I have quoted are to cover a situation where a hearing has been specifically set up for the court to act on its own initiative by making a particular order, or by considering whether to give summary judgment. The rules to which I have referred do not cover the main hearing of an action where, in my judgment, the judge must have power to control the scope of the hearing. He has that power indeed by virtue of the overriding objective (see Civil Procedure Rules, rule 1.4).
27. However, the claimant had little time to consider a considerable number of documents and to prepare his position in law as regards the possibility of summary judgment against him on his misrepresentation claim. He might have been ready to argue it at the end of the case (ie the following day) but he was required to deal with it on the first morning. Judgment was given against him. He protested about that.
28. It does seem to me that, even though a given number of days' notice was not required, as a litigant in person he was entitled to have sufficient notice of the learned judge's intention to deal with the matter in the way that he did to enable him to prepare his arguments against his claim suffering a summary failure. There does seem to me, with respect to the learned judge, to have been an irregularity which fatally undermines the course of action which (with the best of intentions) he took, and which constrains this court to hold that the order for summary judgment cannot stand.
29. There must, therefore, be a trial on the question of Mr Orford's claim for misrepresentation in the county court. That is not to suggest that the claim necessarily has merit; simply that in my judgment it should not have been dealt with in the way that it was without giving Mr Orford a reasonable time to prepare his case.
30. For my part, I would be very anxious to see the court take a hold of this case from now on. I would direct that there be a directions hearing on the earliest possible occasion at Newcastle, in any event by 25 January 2003, which is three months hence, before (with all respect to His Honour Judge Bowers) a new circuit judge who can be seen to come into the case with an entirely fresh mind. I would suggest a time estimate of two hours for such directions hearing.
31. It should be clearly understood that the directions hearing should be addressing whether Mr Orford's claim for misrepresentation should be dismissed without a full hearing, either (a) on the basis that the contract was affirmed by him; and/or (b) that no damages flow from any such misrepresentation as may be established.
32. I would direct that each party should file a concise skeleton argument to a maximum of five pages, annexing any authorities upon which they which to rely on this preliminary issue about misrepresentation.
33. The claimant should show how any misrepresentation sounded in damages and should include a definitive schedule of such damages. If the parties remain in person, they should carefully consider for themselves, and supply to the judge, a full report of the case of Peyman v Lanjani [1985] 1 CH 457.
34. I now turn to the second matter before us. This is an application by the claimant for the introduction of fresh evidence relating to his defamation claim and for a re-trial of that claim. This application arises in a rather curious way.
35. On 30 May 2002, after the hearing Potter LJ, the claimant attended with his solicitor, a Mr Lambert, by arrangement at the company's factory premises to inspect the locus of the alleged tripping accident on 14 June 1999.
36. One of the documents which had been placed in evidence by the company at the trial in June 2001 was a plan of the company's factory premises showing the claimant's office as being situated in the middle of the building on the first floor. Various arrows had been marked in hand on the plan by or on behalf of the company, or Dr Surendra, the purpose of which was to demonstrate that, for the claimant to have been using the particular corridor where he allegedly tripped, he would have had to have been taking a rather surprising route.
37. For the reasons already discussed, the claimant had very little time to challenge that plan at the hearing before Judge Bowers in June 2001; but he tried to put across that he did not accept that his office was situated where indicated on the plan. He said his office was, and had only ever been, at the rear of the premises on the first floor. From there he said it would have been perfectly reasonable for him to have been using the corridor where the alleged accident occurred.
38. In his judgment, the judge referred to this by saying that the claimant's office was "at the back of the building upstairs, in fact he had two offices on the first floor" -- which was the case of the company and Dr Surendra.
39. During the visit on 30 May 2002, Mr Lambert asked Mr Smith, the company's factory manager, to show them to the claimant's office. Thereupon, according to the affidavits of Mr Lambert and of the claimant, Mr Smith showed the party to an office at the rear of the building on the first floor. That was exactly where the claimant says his office had always been. He and his solicitor looked into the room shown on the plan as being the claimant's office and say they clearly saw an 'open plan' room, without any office carved out of it.
40. The claimant's case in this respect is that this amply demonstrates that the company was putting forward a false case at the trial in June 2001 as to the true whereabouts of his office (so as to suggest that he was unlikely to have been in the part of the factory premises where he says the accident took place). He asks, rhetorically, "How can the company and Dr Surendra have had an honest belief that the accident did not take place at all, if they fabricated evidence as to the whereabouts of my office in order to bolster their case?"
41. Judge Bowers does not seem to have attached any great weight to the question of whether it was likely that the claimant would have been using the particular corridor in question. He does refer to the issue of where the claimant's office was situated (as already mentioned) but he did not rule directly upon it. He actually said:

"There may not be very much in it at all."

42. Although the learned judge went on to say that the company could not be criticised for suggesting that there was no good reason why the claimant should have been where he says he was, he did not think that this 'reflected upon the company's bona fides'. He also said that he could accept that the claimant could use either of the two routes in question as a matter of practice, although he expressed himself surprised that the corridor should be used by the claimant if it was blocked up with odds and ends, as the claimant told the Health and Safety Executive.
43. In fact, the judge put most reliance on witnesses whom he heard that day, namely Mr Taylor (the Safety Manager), Mr Smith (the Factory Manager), Mr Wears (the Health and Safety Manager) and his assistant, Helen Armstrong. Mr Taylor had turned up on the scene shortly after the alleged trip. He told the judge in evidence that there was absolutely nothing jutting out into the walkway and that he had not heard any accident.
44. Mr Smith arrived some time afterwards. He, too, gave evidence to the judge that he could see nothing protruding in the corridor to trip over. He said there was paint everywhere, seven bricks high and some five feet across the corridor. Mr Smith said that one tin was a new one and that he was surprised the lid had come off so easily.
45. Mr Wears and Miss Armstrong told the learned judge that they had tried to reconstruct the accident but unsuccessfully. Mr Wears felt that there was every reason to believe that this was not a real accident; one reason being that the paint was spread so high and so far from the wall, looking as though it had been spread from left to right and from right to left.
46. These witnesses were cross-examined by the claimant. However, the judge was satisfied that Dr Surendra had relied upon them and upon their views of the alleged accident when he signed the crucial report to the Health and Safety Executive. He held that the company and Dr Surendra genuinely and reasonably believed that the claimant had not suffered an accident but was trying to obtain money from the company howsoever he could.
47. Dr Surendra submits today that it was the judge who saw and heard these witnesses, who he (Dr Surendra) says were decent people, and it was for the judge to decide whether he believed them or not. He maintains that this application for a retrial is part of a long vendetta by the claimant against the company and himself and that the claimant will not give up. He asks us to reject the application.
48. The first question is whether or not we should admit the fresh evidence comprising the claimant's, and his solicitor's, affidavits dealing with the events of 30 May 2002 which I have summarised. In order to admit the evidence it has to be such that it could not, with reasonable diligence, have been produced at the trial. It must be such that, if given, it would probably have an important influence on the result of the case, although not necessarily decisive; and it must be such as is presumably to be believed, although it may not be incontrovertible.
49. In my judgment, the affidavit evidence which we have seen satisfies those tests. Does it, however, justify remitting to the county court the defamation action, with all the inherent delays and anxieties for the parties on both sides; or should the court say now "enough is enough"?
50. I have come close to saying that "enough is enough", but in the end I have been persuaded the other way by two features of the matter. First, I have been influenced by the plan which was relied on at the hearing by the company and Dr Surendra which is at the heart of the claimant's applications for a re-trial of the defamation aspect.
51. That plan was not given to the defendant until the very first morning of this hearing. We can see that it was in existence as long ago as January 2000, because there is reference to "maps of route" (which would precisely cover this document) in a Bill of Costs served on the claimant by the defendant's former solicitors as relatively recently as 1 February 2002. However, it is not to be found in the defendants' List of Documents dated 1 February 2001, even though it had been in existence by then for about a year.
52. The combined effect of these factors is that the claimant was wholly taken by surprise by this (as he would say) critical document on the first morning of the hearing; leaving him no time to consider his position in an orderly way and either (a) seek to call some witness who could speak as to where his office truly was, or (b) seek a "view" or (c) seek a requirement that photographs be produced of the various rooms in the factory. Furthermore, on its face, the plan shows that the office is inked in in handwriting, as distinct from the rest of the plan being in print.
53. The second feature which has influenced me on the question of re-trial is that the claimant was also presented with some expert evidence on the very morning of the hearing, namely being a Loss Adjuster's Report dated 7 February 2000. That report referred to the "curious paint spread" and suggested that it looked as though paint had been "thrown left to right and right to left". There had been no order that I have been able to find which gave permission for the use of any expert evidence in this matter. There was, inevitably, no opportunity for the claimant to seek to meet this expert evidence in whatsoever way he may have been advised.
54. In all the circumstances, I have just been persuaded (albeit with some reluctance because of the burden to the parties and to the system) That the issue of whether there was fabrication of the positioning of the office on the plan could affect the outcome of the case. If it were to be established that the positioning on the plan had been fabricated, then it might lead to a submission, which might or might not succeed, that the defendant and Dr Surendra did not have an honest belief that this accident had been staged. Accordingly, I would allow the application for the admission for fresh evidence and would direct that there be a re-trial of the defamation aspect of the matter in the county court. I would add to the direction which I proposed earlier, a paragraph to say that the learned circuit judge who hears the directions application concerning the misrepresentation aspect of the case should also be invited to give directions for the proper management of the evidence as regards the defamation aspect at the same time.
55. LORD JUSTICE BROOKE: I take the second matter first. This court is always extremely reluctant to put litigants to the expense of a re-trial. The cost and delay of court proceedings is always a worry. An order for a re-trial will require the issues to be tried at a date even further away from the events with which the litigation is concerned.
56. In my judgment, however, the defendants are wholly to blame for the situation in which they find themselves. They instructed solicitors at all material times in this action until less than one month before the trial. On 16 December 2000 District Judge Wilson, in the Newcastle on Tyne District Registry, gave clear case management directions, including standard disclosure by list on Friday 2 February 2001. It is not entirely clear from the court papers what requests the claimant made for inspection before the time appointed by the District Judge, but it is clear that he later made a request for the supply of copies of documents from the defendant's list, first on 24 March and then on 28 April 2001. He received no response until Dr Surendra turned up at the trial with documents.
57. What was much more serious was that among the documents Dr Surendra produced at the trial was a plan. The rules are completely clear. CPR 33.6 provides that in relation to evidence such as a plan (which is not contained in a witness statement, affidavit or expert's report to be given orally at trial) prior notice must be given under rule 33.1(3), which provides:

"Unless the court orders otherwise the evidence shall not be receivable at a trial unless the party intending to put it in evidence has given notice to the other parties in accordance with this rule."

58. The reason for that rule is quite obvious. If the other side is dissatisfied with the plan, it may wish to obtain orders from the court for the opportunity to make its own plan. CPR 25.1(c)(ii) provides for orders for inspection of property. Rule 25.1(d) provides that the court may make an order authorising a the person to enter land for the purpose of having an order effected.
59. Because of the way the defendants conducted this litigation by producing this plan, which had apparently been in their possession for many months, on the morning of the hearing, they entirely deprived Mr Orford of that opportunity. That in my judgment was a serious procedural unfairness which caused Mr Orford prejudice. He had absolutely no idea, on his evidence, that a plan was going to be produced showing his office situated in the wrong position. The force of this complaint seems to have been supported by the new evidence he now wishes to produce.
60. Although one has sympathy with defendants who are put to the expense of a re-trial, in this case they seem to have been unwilling to comply with the rules of court and orders made by the court, either by themselves or by their solicitors when they were acting for them. This inaction revived all the vices of the old procedural regime which was replaced in April 1999.
61. The district judge had no hope of giving effective case management directions in order to ensure that problems did not arise at trial if he did not know that the defendants were withholding the material plan and did not disclose it to the other side. For those reasons, with as much reluctance as Mr Justice Bodey, I agree that there should be a new trial of the defamation action.
62. So far as the first matter is concerned, this is a case in which the court is giving an ex tempore judgment after hearing submissions from litigants in person. Nothing could be said on this occasion to be taken as authoritative in the absence of proper legal argument by lawyers on both sides. Given that caveat, I have grave doubts about the appropriateness of the procedure adopted by the judge at the beginning of the trial. He was not concerned about a power to strike out under CPR Part 3, but a power to enter summary judgment against the claimant on a particular issue in order to avoid the necessity of a trial. He was embarking on this exercise without prior notice to the parties and in circumstances in which the parties had not had notice of each other's witness statements. The defendants had flagrantly disobeyed the order of a court for the exchange of witness statements. While their solicitors were acting for them, they applied successfully for an extension of time for exchange of witness statements until 8 May 2001. Mr Orford made it quite clear by correspondence that he was ready to exchange on 7 May.
63. It appears that on 8 May Dr Surendra and his company parted company with his solicitors for the purposes of this litigation. On 8 May a formal notice relating to the change of representation was signed, although Mr Orford was not informed about this until about two weeks later. On 8 May 2001 the date ordered by the court for exchange of witness statements came and went. Dr Surendra attended at trial and produced his witness statement at trial for the first time. He complains that Mr Orford produced his witness statement at trial for the first time, but Mr Orford, understandably, says that he was at all times ready and willing to exchange in accordance with the order of the court. He saw no reason why he should disclose his witness statement first when Dr Surendra was not willing to comply with the order of the court.
64. This situation was quite different from the situation which confronted a three-judge division of the court which heard full argument on 20 July 2000 in the case of Evans v James. That case has not been reported and does not, so far as I can see, receive any mention in either Civil Procedure or the Civil Court Practice.
65. On that occasion Judge Moseley QC, at the Bridgend County Court, was about to start a three day trial. All the witnesses had attended the county court for trial. He then decided to embark, of his own motion, on a question as to whether the claim should be allowed and the defence struck out on the ground that there was no real defence to the claim. All the relevant witness statements had been exchanged, all the documentation had been exchanged. CPR 24 had been complied with in the sense that prior notice of the evidence on each side had been exchanged and was before the court well before the hearing. It was in those circumstances, without reciting what arguments, if any, the court received, that Wright J said:

"There is no question but that [the judge] had jurisdiction to take that course."

66. It may well be that Wright J was considering the jurisdiction of the trial judge under the Civil Procedure Rules rather than any special procedure under CPR 24. An important feature of Evans v James, is that the President of the Family Division, who has great experience in civil procedure, was sitting with Wright J and Thorpe LJ on that occasion. She recited the circumstances in which the judge took the course he did. She finished her short judgment, after referring to the failure of case management at the interlocutory stage, with these words:

"I do not suggest that a case that ought to be concluded in half a day should continue in order to call witnesses but the situation which arose before Judge Moseley whereby witnesses are waiting to be called and the case is summarily dismissed must not be allowed to happen again. There is now a greater burden upon the Bar, solicitors and judges and district judges to exercise proper case management. Apart from anything else, it is a disproportionate use of appellate time for this court to have to spend a day to review a county court decision to dispose summarily of a relatively small claim."

67. In the context of the present appeal, there was no question of the entire claim coming to an end and the witnesses' attendance in court being completely fruitless because the defamation case was going to proceed. Once again, that emphasises the need for preliminary applications, such as applications for summary judgment, to be dealt with in an orderly way in a case management conference before the trial and not to be heard at the trial itself, delaying the taking of evidence.
68. I do not wish to express any view, in the absence of full argument on the subject, as to whether the trial judge had the power to do what he did that day. But, for the reasons given by Mr Justice Bodey, with which I agree, it was unfortunate that he decided to act in that way. It seems to me that we have no option but to send the matter back to the county court for the merits of the misrepresentation claim to be reviewed in an orderly manner.
69. I agree with the directions Mr Justice Bodey has suggested. It must be made quite clear that the claimant must now set out his damages case as part of his pleaded case prior to the 2-hour hearing envisaged by Mr Justice Bodey. Skeleton arguments must be exchanged at least a week before the hearing. If there are any matters of importance in relation to directions for that hearing before a circuit judge which this court has overlooked, they must be at liberty to apply to a district judge to supplement them. I agree with Mr Justice Bodey that it is desirable that a circuit judge at the Newcastle County Court should hear the application relating to liability on the misrepresentation claim. On that occasion the judge should also give directions for the re-trial of the defamation claim in an orderly manner.

Order: As to misrepresentation claim, a directions hearing to be held in Newcastle at the earliest opportunity, but by 25 January 2003 before a new circuit judge with a time estimate of 2 hours. Each party to file a concise skeleton argument of no more than five pages annexing any relevant authorities. If the parties remain in person they should consider and supply to the judge a report of the case of Peyman v Lanjani, as indicated. The circuit judge who hears the application should also be invited to give directions for the proper management of the evidence as regards the defamation aspect. Application to admit fresh evidence allowed. Re-trial to be held in the County Court.

(Order does not form part of the approved judgment)