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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Brewer v Mann & Ors (Rev 1) [2010] EWHC 2444 (QB) (14 October 2010)
URL: http://www.bailii.org/ew/cases/EWHC/QB/2010/2444.html
Cite as: [2010] EWHC 2444 (QB)
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QUEEN'S BENCH DIVISION
HH Judge Anthony Thornton QC Sitting as a judge of the High Court
Strand, London, WC2A 2LL |
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B e f o r e :
Sitting as a High Court Judge
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| Mrs Mercedes Travis Brewer |
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and |
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| (1) Mr Stanley Mann (2) Fortis Lease UK Limited (3) Stanley Mann Racing Limited |
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Mr Oliver Ticciati (instructed by Wilmot & Co, Solicitors, LLP, 38 Castle Street, Cirencester, Glos, GL7 1QH) for the First and Third Defendants
Mr Paul Brant (instructed by DWF LLP, Solicitors, 129 Deansgate, Manchester, M3 3AA) for the Second Defendant
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Crown Copyright ©
- The car. This case is about a vintage Bentley car ("the car"). The principal issue is whether or not this car had been contractually warranted to be or described as, a "1930 Bentley Speed Six with a Speed Six engine" and as to whether any contractual warranty or description was correct. The car was delivered from the Bentley Cricklewood works in 1930. In the trade, a vintage Bentley is one that was manufactured in the heyday of Bentley car production, being the initial twelve golden years of the production of Bentleys by Bentley Motors between 1919 and 1931. For two years in that period, Bentley produced the only approximately 177 Speed Six cars that were ever produced. 69 of these Speed Sixes were produced in 1929 and 108 in 1930. Speed Sixes are regarded by many as the finest vintage model that Bentley has ever produced.
- Mrs Brewer. Mrs Mercedes Brewer is an American citizen and she is both a practising US attorney and a practising English solicitor. She was admitted to the Bar in New Jersey in 1980 and has subsequently been admitted in both New York and Florida. She was admitted as a solicitor in England in December 2005. She married her British husband in November 2002 and they live in Rutland. Following her marriage, she has acquired from her husband an enthusiasm for vintage racing Bentleys in general and Speed Sixes in particular and, as a result, she decided in 2005 that she wished to acquire a Speed Six for herself if and when one came onto the market.
- Mr Brewer. Mr Fredric Brewer, Mrs Brewer's husband, was a contemporary car dealer in the 1960s and early 1970s and is now a business consultant. He has been a vintage and historic Bentley car enthusiast for many years and has owned a number of vintage cars including a 1926 3-litre Bentley. He also raced several classic cars in the 1960s. He is particularly knowledgeable about Speed Sixes.
- Mr Mann and SMRL. Mr Stanley Mann is a Bentley vintage car dealer and he is both an enthusiast for these cars and very knowledgeable about them. He has, since 1975, maintained, restored, rebuilt and reconstructed many of the vintage Bentleys that he acquired prior to selling them to the public. He has undertaken this work for many years in his own workshop located at his premises in Radlett, Hertfordshire. Mr Mann undertakes his business through his own wholly-owned company, Stanley Mann Racing Limited ("SMRL"). However, he did not reveal the existence of SMRL in his advertising materials about the car nor in the two pre-contract meetings that he had, initially with Mr Brewer and then with both Mr and Mrs Brewer. It is for this reason that one of the claims brought by Mrs Brewer, a claim for breach of warranty, is brought against him in his personal capacity. This claim is also brought against Mr Mann as the agent of SMRL, an undisclosed principal, as well as being brought against SMRL as the principal of the agent who made the warranty on its behalf.
- Mrs Brewer's case - contractual inducement. On 8 May 2007, Mr Brewer saw an advertisement that Mr Mann had placed in Classic and Sports Car. This described the car as a "1930 Bentley Speed Six". Mr Brewer discussed this advertisement with his wife and he then contacted Mr Mann and went to inspect the car. That visit and the advertisement, together with Mr Mann's additional advertisement of the car on his website that both Mr and Mrs Brewer saw before Mr Brewer undertook his initial inspection visit, led to Mrs Brewer inspecting the car with her husband and negotiating with Mr Mann to buy the car, to her agreeing to buy the car and to her buying it on hire purchase terms from the second defendant, a finance company, Fortis Lease UK Limited ("Fortis").
- Mrs Brewer contends that she was induced to buy the car by Mr Mann when he warranted in this critical pre-contract meeting that the car had a 1930 Speed Six engine. Since Mr Mann had not disclosed the existence of SMRL before or at that meeting, she also contends that he was acting in a personal capacity or as the agent of an undisclosed principal in giving this warranty. In reliance on that warranty, Mrs Brewer contends that she agreed to buy the car for £425,000 by means of three contracts. These were a deposit contract in which Mrs Brewer would pay a deposit towards the purchase price directly to SMRL of £40,000 (of which £5,000 was refunded by SMRL), a sale contract in which SMRL would sell the car to Fortis for £430,000 less the deposit which would be paid direct by Mrs Brewer and a hire purchase agreement in which Fortis would immediately bail the car to Mrs Brewer and she would pay Fortis the balance of the purchase price on hire purchase terms. These three connected contracts were entered into in sequence in rapid succession and Mr Mann's contractual description of the car was included in each of them[1].
- SMRL's purchase of the car. It is now known that neither SMRL nor Mr Mann owned the car on 30 May 2007 when SMRL sold it to Fortis[2] or on 5 June 2007 when Mrs Brewer paid SMRL the deposit or on 6 June 2007 when Fortis paid SMRL £390,000. Mr Mann had agreed to buy the car from its then owner, a Mr James, for £325,000 in December 2006 on a sale or return basis. It is not clear whether this arrangement was contractual, Mr Mann gave no evidence about it but it had all the appearance of being an informal non-contractual arrangement. I make no concluded finding since Mr Mann did not deal with this point and the arrangement was, in any event one that did not amount to a sale of, or a passing of property in, the car. Thus, the car was still owned by Mr James when it was seen by Mrs Brewer. At that time, Mr Mann was in possession of the car as a bailee since Mr James had apparently left it informally with him to enable him to sell it. The sale contract that Mr James entered into with SMRL followed the sale of the car to Fortis and was concluded when Mr Mann forwarded £325,000 and SMRL's purchase invoice to Mr James on 8 June 2007.
- Mrs Brewer's case – breach of warranty. Mrs Brewer discovered in August 2008, fourteen months after taking delivery of the car, that its engine was actually one that had started life as a 1927 Standard 6½-litre engine in a 1927 6½-litre Bentley and which had been taken out of that car at some unknown date and subsequently reconstructed as an engine which Mr Mann claims he described to Mrs Brewer as being "to Speed Six specification". Mrs Brewer contends that this reconstruction was carried out by Mr Mann whilst he was reconstructing or, to use Mr Mann's word, rebuilding the car between 1978 and 1980 but Mr Mann contends that the reconstruction was undertaken previously by another, possibly someone instructed to undertake this reconstruction by the then South African owner of the engine in South Africa, at some stage prior to Mr Mann's acquisition of the engine in 1978. Mr Mann also contends that, he described the engine to Mrs Brewer during their negotiations as being "to Speed Six specification" and did not describe as a "Speed Six car". Moreover, he provided this description to her in an informal and non-contractual manner.
- Mrs Brewer's case – contractual misdescriptions. Mrs Brewer contends that the description of the car as a "1930 Bentley Speed Six" was contained in each of the three contracts giving rise to the sale and subsequent hire of the car, being SMRL's sale to Fortis and its separate contract with her for the payment of the deposit and Fortis's hire purchase agreement with her and that this was a contractual description of the car contained in each contract. She also contends that that description meant, in the context of the three relevant contracts, that the car had within it a Speed Six engine and Speed Six chassis. This contractual description was, therefore, coupled with an implied term in each contract that the car should conform to that description. This description had originated from Mr Mann and had consequently become a term of his warranty and of each of these three contracts which had been induced by Mrs Brewer's reliance on that earlier contractual warranty. These three contracts were closely inter-related, they were inter-dependent, they all contained or were based on Mr Mann's contractual description of the car and they were all intended to be entered into simultaneously or in quick succession. Furthermore, the subject-matter of both the contractual warranty and the three resulting contracts was the same car, which had been described by Mr Mann as a Bentley Speed Six which was a model whose unique history and racing characteristics were known to both Mr Mann and Mrs Brewer.
- It therefore followed that this contractual description had the same meaning in all three contracts and was one which incorporated, or was to be construed with, the terms of Mr Mann's preceding contractual warranty. The meaning of that description was that the car was a "1930 Speed Six car with a 1930 Speed Six engine and chassis".
- Mrs Brewer also contends that the car did not conform to that description. Her case is that the car, when sold to Fortis and then bailed to her, no longer contained either a 1930 Speed Six engine or a 1930 Speed Six chassis and had no continuous documentary history for the period between 1930 and 1981 that directly linked the car in its current condition to the car that was first delivered in 1930. On the basis of her case, an accurate full description of the car would have been along these lines:
- Mrs Brewer's case – damages. In July 2008, Mrs Brewer decided that she should sell the car since she could no longer afford to maintain all her financial commitments. At that time, she had allowed her payment schedule to fall into arrears. She therefore instructed a friend, Mr Sholto Gilbertson, who worked for the vintage car auctioneers Bonham's as one of its vintage car assistants, to value the car with a view to it being offered back to Fortis for auction. It was only when she received Mr Gilbertson's valuation report dated 4 August 2008 that she discovered that the engine was not a Speed Six engine but was, instead, a Standard 6½-litre engine converted or reconstructed to what Mr Mann alleged was to Speed Six specification. She then notified Fortis that she wished to negotiate with Mr Mann her claim against him since she contended that he had supplied her with a different car from the one that he had warranted to be, and described as, a 1930 Speed Six Bentley with a 1930 Speed Six engine. She invited Fortis to suspend her payment obligations whilst this negotiation took place. However, Fortis immediately notified her by a letter dated 7 August 2008 that it was terminating the hire purchase agreement as a result of her existing outstanding hire purchase payments.
- After the car was retaken by Fortis on 3 September 2008, it was repurchased by SMRL from Fortis on 27 July 2009 for £425,000 to minimise the loss. This was the price that SMRL had been paid for the car by Fortis and Mrs Brewer two years earlier. Mrs Brewer now claims from Mr Mann, as damages for breach of warranty, and from SMRL as damages for breach of warranty and contract and from Fortis as damages for breach of contract, her unrecovered outlay, being the instalments that she had paid Fortis and the deposit that she had paid SMRL Her combined claim is for £94,555. She also claims an indemnity from both Mr Mann and SMRL for any further liability that she might have to Fortis.
- Mr Mann's case – liability. Mr Mann denies liability. He contends that he has no personal liability to Mrs Brewer because he acted throughout as SMRL's agent and not in his own capacity. Moreover, he gave no warranty to Mrs Brewer and, in any event, he described the engine correctly as being "to Speed Six specification".
- SMRL's and Fortis's cases - liability. SMRL adopts Mr Mann's defence and also, with Fortis, contends that the description of the car as a "Bentley Motor Car" or as a "1930 Speed Six Bentley Car" was accurate.
- Defendants' cases – damages. Each defendant puts forward various defences to Mrs Brewer's claim for damages if, contrary to their respective primary cases, they acted in breach of warranty or contract in relation to the car. Further, Fortis counterclaims the outstanding hire purchase payments that were unpaid at the date the car was retaken and contractual damages to compensate it for the profit and financing charges that it would have earned on future payments but which it never received because the car was retaken. This counterclaim is for a sum of approximately £456,000.
- Dispute – summary. It follows that the dispute is, in essence, three-fold:
- Contribution proceedings. Contribution proceedings by Fortis against SMRL were only started during the trial following my granting Mrs Brewer permission to joint SMRL as a third defendant.
- Issues. These claims give rise to a large number of issues. Essentially, these are:
- Parties. There were, originally, three parties to this claim: Mrs Brewer, Mr Mann and Fortis. On the second day of the trial, I granted Mrs Brewer permission to add SMRL as a third defendant. Mrs Brewer now pleads exactly the same claims against that company as she had pleaded against Mr Mann and she alleges that if Mr Mann provided the contractual warranty that she contends that he made, but only as the agent of SMRL and not in his personal capacity, that warranty gave rise to an action against Mr Mann as the agent for SMRL as a principal whose existence had not been disclosed to Mrs Brewer prior to the warranty being given. There is, on this basis, simultaneously an action against SMRL as the principal on whose behalf the warranty had been given and against Mr Mann as the agent of an undisclosed principal.
- Following that joinder order, Fortis applied for permission to join SMRL as a third party and to claim an indemnity or damages from SMRL. I must decide whether or not to confirm the grant of permission that I gave during the trial as part of this judgment. My reasons for granting Mrs Brewer permission to join the third defendant and my decision and reasons in relation to Fortis's procedural applications are set out in section I below[3].
- Witnesses. The trial took place over four days. There were five witnesses: Mr and Mrs Brewer, Mr Mann and two experts, Mr Dennis Sibson who was called on behalf of Mrs Brewer and Mr Brian Fenn who was called on behalf of both Mr Mann and SMRL. Fortis adduced the evidence from two witnesses, one in a statement that had been made by one of their Broker Managers, Mr Mark Sampson and one from a valuation report that had been prepared by Mr Max Girardo, the Managing Director of RM Auctions Ltd. Neither of these witnesses was called for cross-examination or gave oral evidence at the trial.
- Expert Evidence – Mr Sibson. Mrs Brewer was given permission by the court to call expert evidence from an automotive engineer specialising in the Bentley Marque and Mr Sibson was in consequence instructed on her behalf by her solicitor in disclosed instructions dated 23 March 2009. These instructions required Mr Sibson to assist the court in determining what the proper description of the car should be. He prepared a first report dated 4 April 2009 which was based on a detailed inspection of the car on 29 March 2009, a second supplemental report dated 2 October 2009 and a further report dated 23 February 2010 which he was ordered by me to prepare as his answers to a list of technical questions that the parties had agreed both experts should answer.
- Mr Sibson acknowledged that he understood his duties to the court as an expert witness. He is now aged sixty four and is qualified to act as an expert in the engineering of Bentley cars by a five-year Motor Vehicle Technician apprenticeship, which he started when he was fourteen, and by over forty years' working experience with vintage cars. He also acquired in his youth various relevant City & Guilds qualifications. He was challenged in cross-examination to the effect that he lacked sufficient experience or expertise in vintage Bentleys to be able to give reliable expert evidence about Speed Six and Standard Bentley 6½-litre engines and as to his independence and objectivity given that he frequently worked for the father of a good friend of Mrs Brewer. That friend, Mr Sholto Gilbertson, had provided Mrs Brewer with an inspection and valuation report in his capacity as a Bonham's vintage car assistant and valuer which was the immediate forerunner of her initiating these proceedings. Mr Sibson explained that he had worked for Mr Gilbertson-Hart, Mr Gilbertson's father who traded in vintage cars, for about two days a week for over twenty five years and that his work for Mr Gilbertson-Hart had largely consisted of inspection report writing and the testing, maintenance and repair of the engines of his vintage cars. In the course of this and his other work, he regularly inspected and worked on vintage Bentleys including both Speed Six and Standard Bentley engines.
- I am satisfied that although Mr Sibson had not given expert evidence previously, he had fully acquainted himself with his duties as a court expert and that he faithfully sought to comply with them. He has had a great wealth of practical qualifying experience to act as an expert for Mrs Brewer in this case and he displayed no sign of partiality or potential conflict when giving evidence. I therefore reject counsel's criticisms of Mr Sibson.
- Mr Sibson's evidence was subjected to scathing criticism by Mr Ticciati in his closing submissions. These submissions, in summary, were that his evidence was unduly partial and partisan because he was closely involved with Mr and Mrs Brewer and was clearly unable to be objective when expressing his opinion. Moreover, he was unqualified to express opinions as to the proper description of the car and the engine. However, his lack of objectivity allegedly arose because he undertook work on about two days per week for a dealer in vintage Bentleys with whom Mr and Mrs Mann were friendly and whose son, Mr Gilbertson, had provided the valuation report in August 2008 that had led to Mrs Brewer discovering that the car's engine was not a Speed Six engine. These facts do not provide any evidence or perception of bias and Mr Sibson demonstrated in his written and oral evidence that he was suitably qualified to express opinions about the engine, chassis and other parts of the car, as to whether the engine was capable of performing to the BDC Speed Six specification and as to how the car should be described.
- I accept that Mr Sibson's oral evidence was not as polished as many expert witnesses who have given evidence before. The same applied to Mr Fenn. This was not surprising since neither had ever given expert evidence in court before. Particular criticism was levelled at his evidence about the gearbox. He was unable to express a firm conclusion as to the type of reconditioned gearbox that Mr Mann had installed into the car in 1978 but none of his evidence was inconsistent or was shown to be ill-informed. Moreover, it was not in issue as to whether the reconditioned gearbox was other than of a type that had usually been installed into Speed Sixes. His evidence on this matter was not such as to impugn his credibility on relevant issues on which he expressed an opinion.
- Overall, although some of the other criticisms of his ability to give evidence and as to its relevance were well made, as were those made of Mr Fenn's evidence, I am satisfied that they were not applicable to, nor capable of undermining his credibility, particularly in relation to the chassis and the capability of the car's engine to perform to the Speed Six specification.
- Expert Evidence – Mr Fenn. Mr Mann was given permission by an order sealed on 24 July 2009 to call expert evidence from an historic and classic car engineering expert. Mr Fenn was in consequence instructed. He had already prepared a witness statement dated 11 May 2009 which had already been served so that no formal instructions were sent to Mr Fenn. He also provided a valuation of the car that he had originally provided to Mr Mann which was dated 24 May 2007, a further confirmatory valuation, a short examination report dated 30 September 2008 and answers to eight questions that he had been asked by Mrs Brewer's solicitor about his valuation. Finally, he provided a report dated 17 August 2009 containing short answers to the same agreed questions that Mr Sibson later answered.
- Mr Fenn is now aged seventy seven. His expertise relates to Bentley vintage cars and has been acquired as a result of a life-long passion for the Bentley Marque. He passed his driving test in about 1950, aged seventeen, in a 3-litre Bentley and he has owned vintage Bentleys ever since. He has been a director of the Bentley Drivers Club ("BDC") for over thirty years and has been the BDC's Vintage Valuer since 1966 and, in that capacity, provides informal valuation advice to BDC members about vintage Bentleys. He has also been chairman of the BDC's Eligibility Committee since 1979. His knowledge of Bentley vintage cars has been acquired from this enthusiastic involvement with them for sixty years. Save for a five-year apprenticeship as an electrical and mechanical engineer, he has no professional qualification and there was no evidence that he has actively involved himself in maintaining, repairing, rebuilding or reconstructing Bentleys.
- Mr Fenn, therefore, has and demonstrated an expert and possibly unrivalled knowledge of the history of Bentley vintage cars and of how they have been raced, looked after and described by the BDC and as to how they have been repaired, maintained, rebuilt and reconstructed over time.
- Expert evidence – general summary. The experts gave evidence relevant to the issues that arose in this case on two topics:
- Expert evidence – car and chassis. Given their respective lengthy working experiences with all vintage Bentley types including Speed Sixes, both experts were highly qualified to give evidence and both assisted the court considerably in relation to their evidence of technical opinion. I accepted Mr Sibson's evidence in its entirety since it was thoughtful, authoritative and based on his detailed inspection of the car's engine. I also accepted Mr Fenn's historical evidence, his evidence as to the value of the car and his summary of the physical changes that had been made to the 1927 engine.
- The experts disagreed on two significant issues, those relating to the extent to which the car's chassis had been altered and as to whether the engine had been proved to satisfy the BDC 1930 Speed Six specification. On both issues I accepted Mr Sibson's evidence and rejected Mr Fenn's contrary evidence.
- Mr Sibson had inspected and measured the chassis very carefully and had concluded that the only surviving section from the original 1930 chassis was part of the small front section. He also concluded that the engine could not be described as satisfying the 1930 Speed Six specification since its performance had never been properly tested or verified and its outward appearance, particularly its new pistons, suggested that it had never been capable of generating the power that would have been needed to satisfy the performance requirements of that specification.
- Mr Fenn's evidence was that the relatively insignificant changes to the chassis had left the chassis in its original state and as being appropriately described as the original 1930 Speed Six chassis. He also considered that the car's current engine clearly satisfied the 1930 Speed Six specification. I did not accept these opinions because they were based on his impressions and not on detailed inspections, measurements or a full testing of all parts of the engine and chassis nor on authenticated test results proving that the performing engine satisfied the 1930 Speed Six specification[4].
- Expert evidence – description of the car. Overall, Mr Sibson contended that the car could not be described as a Speed Six and the engine could not be described as either a Speed Six engine or as one which was to Speed Six specification. Mr Fenn contended that the car could be described as a Speed Six car but only if that description included reference to the additional fact that it had a 1927 Standard 6½-litre engine which had been modified to Speed Six specification. I accepted Mr Sibson's opinion and rejected Mr Fenn's opinion on these matters. Mr Sibson had carefully examined the engine and had concluded that it could not fully satisfy the performance requirements of the BDC specification, which it would have had to have been able to do if it was to comply with that specification. Mr Fenn was unable satisfactorily to answer Mr Sibson's well-made explanations for his opinion[5].
- The experts had been instructed to express their opinion as to how the car and the engine should be described. Mr Fenn's evidence was somewhat rigidly based on how the BDC would describe the car. This evidence was clearly relevant to the question of how the car might be described within the BDC but was of only marginal relevance on the question of whether the contractual descriptions of the car satisfied the applicable statutory and contractual provisions relating to the need for the car to comply with those descriptions. This wider question must be based on the intentions of the contracting parties, all relevant facts and a correct application of those facts to the relevant statutory and contractual provisions. Mr Sibson did not confine himself to the BDC method of describing Bentleys in general and Speed Sixes in particular. Indeed, Mr Fenn came close to accepting the gist of Mr Sibson's reasoning when admitting in cross-examination that the car's description should have included a reference to its reconstructed 1927 Standard engine. However, these matters of description, being the ultimate issues that I had to decide and being mixed questions of law and fact, were not matters on which the two experts could give admissible expert opinion evidence about notwithstanding the procedural orders that had been made for the adducing of expert evidence[6].
- Bentleys were first manufactured in 1919 when Walter Owen Bentley, or W.O. as he is usually known as ("W.O."), founded his own motor car company, Bentley Motors. W.O. was then thirty one years old and he had acquired a passion for speed and had developed his remarkable abilities as a motor engineer early in life. He left school at sixteen in 1905 and in the years up to 1912 worked as an apprentice railway engineer and as an engineer in charge of a railway engine cab maintenance workshop. He then joined his elder brother to form a company trading in French cars carrying the DFP engine. In that period, he designed new aluminium alloy pistons and a tuned camshaft for the DFP engine, thereby enabling the DFP to take several records at Brooklands in 1913 and 1914. On the outbreak of the Great War, he joined the Royal Naval Air Service as an engineer and played a major role in improving the design of the Clerget engines for the Sopwith Camel and Sopwith Snipe aircraft, thereby earning himself an MBE and a sizable financial reward from the Commission for Awards to Inventors. Whilst serving during the war, he met two other motor engineers of note, F. T. Burgess and Harry Varley. After the war, he established Bentley Motors in Cricklewood and, in the twelve years that he ran Bentley Motors, he persuaded Burgess and Varley to join him as engineers and motor designers and an old school friend, Richard Witchell, to become the Bentley racing manager. Another great engineer, Harry Weslake, joined them later. W.O. also recruited during his tenure two remarkable mechanics, Wally Hassan and Nobby Clarke. W.O's intention was to create a new range of high-performance cars which would be used by the rich and famous whilst simultaneously being raced as world-beating racing cars.
- W.O. was the chief designer of vintage Bentley racing engines. The team that he assembled produced just over 3,000 Bentley cars in the Cricklewood works in the ten years from 1922 until 1931 and, in the golden period between 1928 and 1931, Bentleys were unbeatable. It is said that W.O.'s motto was "To build a good car, a fast car, the best in the world." Unfortunately, W.O. started with his company being heavily underfunded and it would appear that he had little appetite or inclination for the business side of this company. In the early years, this did not matter because he rapidly attracted the custom of the rich and the attention of a group of hard-living socialites who became known as "the Bentley Boys" due to their love of racing and driving W.O.'s cars at great speed and who congregated around Captain Woolf "Babe" Barnato ("Barnato").
- W.O. and his design team started with a 3-litre engine and then moved to a 4½-litre engine. The design of the car, particularly the engine, was constantly changing and evolving. From the outset, Bentley Motors sold all their models as both racing and touring cars save that those intended for racing were given more meticulous attention in the engine workshop by the designers, engineers and mechanics. These early models started to be successful in competitions in 1923 when, in their first Le Mans, a 3-litre Bentley finished a creditable fourth. In 1924, another 3-litre Bentley won Le Mans and there were other notable touring car racing successes in that period. However, by 1926, W.O. had become despondent from a series of 3-litre failures and the parlous financial state of his business and was on the point of closing the business altogether. Temporary respite was, however, at hand since Barnato had just inherited a huge fortune from his family's diamond business. Barnato was a fearless and formidable racing driver and a lover of both speed and extravagant living. He was the ultimate playboy. He persuaded W.O. to let him buy heavily into the business and he became its chairman. For the next five years he financed the business from his own resources until, in 1931, his finances were almost exhausted and W.O. sold out to Rolls-Royce and remained with them for a further five years in relative obscurity[7].
- Following the arrival of Barnato's finance, Bentley Motors produced world beating racing models and the focal point of the business was its racing team. W.O. and his principal engineers and mechanics and the racing manager concentrated on racing. Between 1928 and 1932, Barnato was their lead racing driver. Bentley won Le Mans in 1927 when a 4½-litre car limped in to win and in 1928 when Barnato won his first Le Mans drive in a 6½-litre car.
- Initially, following Barnato's involvement in Bentley Motors, the company concentrated on developing the 6½-litre car which had been introduced in 1926. Until 1929, when Barnato again won Le Mans with a 6½-litre car, the racing team cars were, essentially, built using a production chassis with racing shop modifications. This led W.O., with Barnato's prompting, to produce the first Speed Six in 1929. This model rapidly became his best car. His intention had been to produce an unbeatable racing engine. The Speed Six started life as a standard six (i.e. 6½-litre) car which was stripped down and rebuilt to a higher specification. After the first few Speed Sixes were produced in this way, the Speed Six engine was specially designed and manufactured, with the designs being developed from the specification and experience gained from the initial Speed Sixes. The Speed Six cars into which these engines were put was a different model from the 6½-litre car. The Speed Six had a unique quality that was derived from its engine which had been designed, engineered and produced by the best engineers and high performance motor mechanics then working. Each engine was given the racing team's personal attention and many of the Speed Sixes were returned to the racing shop after a race for further modifications and attention from the team. Unfortunately, in 1931, Barnato's fortune had nearly gone and W.O. was forced to sell the business to Rolls-Royce and the golden W.O. years were ended. Only 177[8] Speed Sixes were built, 69 in 1929 and 108 in 1930. However, between 1929 and 1931, W.O.'s favourite car achieved five first places in major races, of which three were at Le Mans, and four second places. Bentley won at Le Mans in four successive years between 1928 and 1931, two of these victories being driven by Barnato.
- The most celebrated Speed Six was always known as Old Number One. This was built in 1929 and was only the second Speed Six to be built. It had a six cylinder 6+ litre engine with a non-detachable head and a four-seater Van den Plas body. In its first year, it won the Double Twelve race at Brooklands, then at Le Mans at an average speed of 73.62 mph and then again at Brooklands as well as picking up two further second places. In 1930 it again won at Le Mans at an increased average speed of 78.88 mph.
- There is a detailed account of the working history of Old Number One in the judgment of Otton J in Hubbard v Middlebridge Scimitar Limited[9]. The car was bought in 1990 for £10 million and the buyer then resiled from the deal because he suspected the authenticity of the car. The seller succeeded in an action for specific performance notwithstanding the continuous alterations and rebuilding that had taken place during its short but eventful racing life between 1929 and 1933. The car was Barnato's favourite and he drove it to the victories at Le Mans in 1929 and 1930. Between each race, the car was returned to the Bentley racing workshop for repairs to damaged and worn parts, modifications and further engineering to incorporate new Speed Six parts with an improved specification. It was also rebuilt in 1929 and 1931 and substantially repaired in 1932 following a disastrous crash when driven by Dunfee, one of Barnarto's closest friends. These changes, up to 1931, were all carried out by Bentley engineers and mechanics in the Cricklewood racing workshop. The decision in favour of the seller was because the car had been sold as "Old Number One" and Otton J found that the metamorphoses that the car had undergone still left it as the car that was raced as Old Number One and because all its changes were fully documented so as to give the car a continuous history. Without that continuous history, the buyer would have succeeded in resisting specific performance or in rejecting this car and rescinding the contract since the authenticity and verification of the car as "Old Number One" would not have been possible.
- Many of the Speed Sixes that were produced were immediately bought by wealthy individuals and used for private purposes. Although their design and specification were similar to the Speed Sixes that were raced, most of those in private hands were never raced.
- Speed Sixes consisted of a chassis frame which was designed by W.O.'s Cricklewood team and manufactured on the Clyde and which then had incorporated into it in the Cricklewood workshop a steering column and suspension and other related parts. The Speed Six engine was then added. Finally, the bodywork and livery were then added, usually to the buyer's personally selected features and manufactured and fitted by one of the many coachbuilders that were used by Bentley buyers. The bodywork had a relatively short life span of no more than fifteen years. The individually made engine was manufactured at the Cricklewood works. Each chassis and engine were given unique numbers and each car was registered with the licensing authority so that each Speed Six left the Cricklewood works with a unique paired chassis and engine number and an original licence number linked to the chassis number which most surviving Speed Sixes that remain in the United Kingdom still retain.
- W.O.'s vintage Bentleys are all collectors' items but the pride of place for any enthusiast of these Bentleys from the 1920s Cricklewood era inevitably goes to the Speed Sixes. So far as is known, none of the surviving Speed Sixes remain in the condition that they were in when they left the Cricklewood works given the racing and hard driving that many were subjected to and the relatively short life of the bodywork. Many would also have also been adapted in the early years of their life to incorporate the ever-changing and improved specification of Speed Six parts. After 1931, most of the surviving Speed Sixes were abandoned, mothballed or cannibalised such that, by 1939, a Speed Six had no calculable trade value.
- Since 1945, however, interest in vintage Bentleys has increased enormously and all vintage Bentleys are now both extremely valuable and regarded as good investments. Speed Sixes, particularly those with a continuous history, are the most valuable cars from the Vintage Bentley range. Most of the vintage Bentleys, including the Speed Sixes, that have been located or have come onto the market, have been restored, rebuilt or reconstructed, occasionally using a rebuilt original engine from other Speed Sixes and more frequently using Speed Six parts from other Speed Sixes or the nearest equivalent replacement parts. The terminology used for vintage Bentleys including Speed Sixes varies but conventionally the term "restored" usually refers to the restoration of original parts and "rebuilt" to the taking apart and putting back together again of a car predominantly using original parts from the original car.
- There is no generally accepted term that describes the use of a substantial part, particularly the engine, which has been transformed from its original place in one model to resemble and be placed in another model. In this case, the car now has its original Speed Six chassis number but its engine and all other parts have been replaced. They all resemble original Speed Six parts. The engine is a reconstructed Standard 6½-litre engine, the chassis has been almost entirely rebuilt and all parts have come from undocumented sources. Thus, none of the individual parts including the engine and chassis have any substantial connection with the original car. The result is a car which resembles a Speed Six with a reconstructed Standard 6½-litre engine to what is said by Mr Mann to be to Speed Six specification.
- I have adopted the word "reconstructed" to describe this substantial process of change since it is a fundamentally different process to that of "rebuilding" a Speed Six car. In the evidence, with regard to the 1927 6½-litre engine in the car, other words, such as "reconstitued", "adapted", "transformed" or "converted" were also used.
- On leaving school, Mr Mann worked in, and later ran, his father's butcher's shop. He needed further outlets and he then trained as a photographer and also bought his first vintage Bentley. He soon realised the potential for acquiring vintage Bentleys and restoring, rebuilding or reconstructing them in Le Mans style and then selling them to vintage Bentley enthusiasts. He had acquired the necessary mechanical skills working in the workshop premises that he had set up at the back of his father's butcher's shop in Edgware, Middlesex. Mr Mann, additionally, became involved in racing vintage Bentleys and he prepared cars for this purpose for himself and for other enthusiasts.
- When Mr Mann started his vintage Bentley business, he carried out whatever restoration, rebuilding or reconstruction was required by the owner or intended owner of the car he was working on. In the early 1970s, Bentley enthusiasts bought restored vintage Bentleys to enable them to be driven safely on the road and for their contemporary looks and their sound when being driven. Bentley enthusiasts were not much concerned with the extent to which the various parts of the car's engine or chassis were the same as those in the car when it left the Cricklewood works in 1929 or 1930. Furthermore, they were not concerned with whether the chassis and engine numbers matched the equivalent numbers when the car had first been delivered. It was common for purchasers to instruct and to accept the use of entire engines, gear boxes and axles that had been taken from another vintage Bentley and for the wholesale use of replacement replica manufactured parts which had been made of better materials with finer tolerances than their original counterparts
- By 1976, Mr Mann had decided that he wanted to go racing with a Speed Six. He had a good working relationship with Mr Tony Townshend who was also a restorer of vintage cars. Mr Mann could not afford an original Bentley Le Mans car, not surprisingly since he considered that an original Le Mans racer would have cost at least £3m at that time. Mr Mann was interested in acquiring an original Speed Six which he could restore, rebuild or reconstruct to his own specification. Mr Townshend said he had such a car which was in considerable disrepair and needed fully restoring. That led to Mr Mann visiting Mr Townshend where he found, hanging on a peg in the workshop, a chassis in very poor condition. Resting nearby were two axles and a steering column which Mr Townshend told Mr Mann had come from the same car. There was nothing else. Clearly, the bodywork would have rusted away and disintegrated many years previously but there was no engine or other parts of the chassis such as the radiator, wheels, hubs, fuel tank and suspension. Mr Mann stated in his witness statement that many of these parts were also with the chassis but he accepted in his oral evidence that he only acquired the axles and steering column in addition to the severely corroded chassis.
- Over the next four years, Mr Mann restored the chassis using the expert restoration services of Mr Julian Ghosh who was based in Sutton Coalfield and to whom he paid £1,900. The invoice, which dates from 1978, stated that that payment was for "repair work on Bentley Speed Six chassis SB2770 so as to be suitable for vintage racing". Mr Mann provided the car with a proper modern hydraulic braking system, an understandable use of post-vintage parts given that he was to race the car. He remade a radiator, that he must have acquired from elsewhere, to the slightly lower line of the Le Mans Style body and he also stated that he had acquired a Bentley type C gear box and then restored it. Mr Fenn's evidence was that all Speed Sixes had a type C gearbox and both he and Mr Mann stated that that was the type of gearbox that was in the car. Mr. Sibson was unable to satisfy himself that the gearbox was a type C rather than a type D because he did not have a clear view of it when he inspected the car and there was a lack of appropriate authenticating documentary records. Thus, Mr Sibson was unable to reach a final conclusion as to whether the gearbox was a type C gearbox although he accepted that the evidence available to him pointed to it being a type C. I conclude that the restored gearbox fitted by Mr Mann was a type C gearbox.
- Mr Mann acquired, as he put it in his witness statement, an engine "to Speed Six specification in about 1979 from a Mr U. J. Smith who lived in Sweden" which he stated that he installed into the car without further ado. He added all the other parts associated with the chassis, but his evidence did not identify what those parts were or where he got had them from since his evidence was that he has long since mislaid any documents relating to the reconstruction of the car save for thirteen invoices relating to the acquisition of new parts and to some boring work. He could not satisfactorily explain why these invoices had not been supplied to Mrs Brewer with the car as part of its continuous history nor why they had not been disclosed with his original list of documents nor what had prompted their belated disclosure. Although he insisted that these documents showed work to the reconstructed engine which he had obtained from Mr Smith, he could not explain why so many new parts, on thirteen separate occasions over a two-year period, had been acquired purely to recondition an already reconstructed engine which, on his evidence, had not been used since it had been reconstructed. All he could remember was that, for the reconstruction process of the car as a whole, he used such original parts as he could get hold of but otherwise he had used modern replacement parts which were similar to the original Speed Six parts[10].
- This reconstruction work on the chassis and the engine was finally completed in late 1980 and, soon afterwards, his workshop was visited by Mr Ian James who was a vintage Bentley owner and enthusiast. Mr James was so attracted to the car that he insisted on buying it as a running chassis, being the chassis and the attached engine, and he specified the type of replica bodywork and interior finish that he wanted. Mr Mann agreed to sell the car to Mr James having arranged for Mr James's specified replica Van den Plas-style bodywork and interior fittings to be installed. That is how the car came to have added to it its current Van den Plas-style replica bodywork finished in correct racing green with correct-style racing headlamps and a correct-style long-range fuel tank.
- Source materials. The fragmented records available for many vintage Bentleys have given rise to a fascinating new branch of mechanical archaeology in which these records are combed to produce books of factual information about all vintage Bentleys that were produced at Cricklewood and also Bentleys that were produced in the Rolls Royce works near Derby in the years between 1931 and 1939. These sources of recorded information about vintage Bentleys are, principally, the works records, which are still available, from the Cricklewood works and also from the Van den Plas coachworks which is the coachworks that supplied more bodywork and livery for the 6½-litre and Speed Six cars than any other coachworks. The sales records of Jack Barclay Ltd, who sold many of the vintage Bentleys that were produced when they first came onto the market, are also still available. These records are supplemented by the extensive records of the BDC which was formed in 1936 and is open to all Bentley owners. Finally, the DVLA licensing records and the service records, log books and related documentation of many vintage Bentleys have also been used as source materials where these are available. All these sources have been used to produce three invaluable books or inventories which list every vintage Bentley that was produced with details of its original chassis, engine and vehicle registration numbers and as much additional detail as is available about the subsequent individual ownership history and available details of any restoration, rebuilding or reconstruction that has taken place. Much technical detail about Speed Sixes is also recorded in a further book sponsored by the BDC[11].
- Continuous history. It is clear that everyone involved with Speed Sixes now regard it as essential, for such a car to be properly described as a Speed Six, to be accompanied by a continuous history, being a full, unbroken and authentic set of documents which identify in a reliable manner who has owned the car, the uses that it has been put to and a description of its service history and any restoration, rebuilding or reconstruction work that the car has experienced throughout its life since originally leaving the Cricklewood works. The evidence suggested that this view arose, or was at least confirmed, as a custom of the Speed Six trade by Otton J's judgment in 1990 in Hubbard v Middlebridge Scimitar Limited[12]. This "Old Number One" judgment is certainly widely known to, and relied on by, enthusiasts, owners, dealers, auctioneers and valuers involved with Speed Sixes.
- Physical and specification differences. The trial was not concerned directly with the physical differences between Speed Six and Standard 6½-litre engines. However, some of the differences emerged in the evidence. The principal changes from the car's engine's original state as a Standard 6½-litre engine that occurred to reconstruct it as at Speed Six-type engine were the installation, in place of the original parts, of a revised radiator; an electric pump or a double ended electric pump to draw petrol to the carburettors instead of an Autovac dependant on vacuum pressure from the inlet manifold; a different Speed Six camshaft; twin S.U. vertical-type carburettors on a single port inlet manifold instead of Smith 5-jet carburettors; a single port block instead of a multi port block; up-rated Speed Six connecting rods and high-compression pistons.
- The intended purpose of all these changes was to enable the engine to resemble the 1930 Speed Six engine physically and to increase its power and reliability and the speed of the car so that it performed as a 1930 Speed Six engine and could survive the additional stresses of high speed long-distance racing and satisfy the 1930 Speed Six engine specification.
- It was not, however, established whether the Cricklewood works published a formal specification for the Speed Six engine. The way that the works operated would suggest that no such formal specification was ever produced since the various engines being produced there were constantly being adapted and the designers and mechanics worked from experience and not from a rule book. However, a specification has since been compiled retrospectively for the Speed Six and Standard 6½-litre engine types by the BDC. This specification was accepted at the trial as being the relevant specification against which the car's engine should be compared and, by inference, was the specification that Mr Mann claimed in evidence to have referred to in his discussions with Mrs Brewer as the "Speed Six specification". The Speed Six specification comes in two versions, being the 1929 and the 1930 versions, and the parties accepted that the 1930 version was the appropriate one to use for the car.
- The relevant differences between these two retrospectively compiled specifications are as follows:
- The BDC Speed Six specification cannot be considered to be a definitive specification of a 1930 Speed Six since, as was explained by Mr Sibson, the Speed Six specification, if such had ever existed, would have been originally linked to Speed Six engine performance in the different and heavier duty conditions pertaining to 1930 compared to the less onerous conditions now prevailing in such respects as the current friendlier fuel composition, superior road standards and more rigorous manufacturing tolerances. Thus, a car which on testing appears to satisfy the Speed Six specification will not necessarily have satisfied the same specification in 1930 given the much heavier duty required of a working engine at that time.
- Car as delivered in 1930. The first registered owner of the car was a Miss Unwin about whom nothing is now known. It is recorded that she took delivery of the car in February 1930, that her coachbuilder was Freestone & Webb and that the car had a saloon body built on the Weymann principle.
- Early history. It is recorded that the car was acquired by Major Charles Stevenson in 1936 and by Charles K. Mortimer in 1937. It would seem that Mr Mortimer bought the car from Major Stevenson for £90 and sold it for £27 10s a year later in April 1938. The log book or books relating to the car prior to 1981 have not survived and the log book for the period between 1981and 2005 was not handed on to Mrs Brewer by Mr Mann and its contents were not adduced in evidence. However, it is clear from other evidence that the kind of detail that these books contained was such that the most recent log book would only have provided the name of the owner since 1981 and the date of the car's registration with the DVLC, which is information that is known from other sources.
- Only two additional pieces of information about the car prior to 1975 survive. The first is derived from a copy of Bonham's sale particulars of a car auctioned at Quail Lodge Resort in California in August 2008. The car was described as a:
- The particulars also explained that the car had shown up in St Louis in 1965 but stated that it is not known how that happened or to whom it was sold. However, the car was found there in 1979 by its American owner who was selling the car, Mr Paul Sydlowski. He had owned this car for over 26 years before putting it up for sale at Quail Lodge in 2008. Quite by chance, at some time between 1981 and 1986, this car was being driven by Mr Sydlowski to a rally in Venice and, whilst parked, was joined in the adjacent parking spot by Mr James who was driving the car to the same rally. Mr James many years later, when writing to Mr Mann to tell him how much pleasure the car had given him, mentioned this chance encounter since he had discovered during it that Mr Sydlowski's car had the car's original engine in it.
- Mr Brewer came across these particulars when searching the internet and nothing more is known about how and why Miss Unwin's Speed Six engine came to be used by Mr Mead in 1936 to create what the particulars erroneously dated as a 1927 Speed Six since Speed Sixes were only first produced in 1929. The engine may well have been taken from the car either just before or just after it was recorded as having been acquired by Major Stevenson. It should be recorded, however, that there is no record in the Bentley and Rolls Royce records of an engine change for the car in the 1930s. There was also no evidence as to whether it can be presumed that the absence of a reference to an engine change in these records in the years up to the Second World War means that there was no engine change in that period. I find that the August 2008 sale particulars are reliable in stating that the car's Speed Six engine had been removed from the car in the period 1930 - 1936 and had been installed by Mr Mead, based in Taplow, Buckinghamshire, into another Speed Six in 1936 and was still in existence in that other car as recently as August 2008.
- The second piece of information about the car in its early years is that one of its pre-war owners, Mr Mortimer, acquired the car in 1937, presumably without its original engine. He evidently owned a collection of four Speed Sixes in the period 1937 – 1939 and, in an article in the Autocar in October 1944 about these four cars, there is a photograph of the car taken in about 1938 with the same registration number as the car now has, but with a Grafton coupé body instead of Miss Unwin's Freestone & Webb Weymann body.
- The car's various numbers are as follows:
- By the end of the trial, as much of the history of the car's engine, chassis, bodywork and DVLA number had been ascertained as it is now possible to ascertain but there are still significant gaps in knowledge about the car's continuous history up to 1981.
- Continuous history - summary. The uses and whereabouts of the car are virtually unknown from 1930 until July 1976. Thus, there is no information as to its history at all after 1938, unless the reference to the car in the 1944 Autocar article can be taken to indicate that it was still in good condition at that time. Thus, it is a complete mystery what happened to the car so as to be without its engine and its bodywork and with only a very corroded and incomplete chassis when Mr Mann came across the remains of the chassis in 1976. It was not proved that the axles and steering column found by Mr Mann close to the corroded chassis in 1976 had come from the same car as the chassis had come from. Thus, in 1976, all that can be shown to have survived of Miss Unwin's original car was part of a very badly corroded chassis.
- Chassis. I have already described how the remnants of the original Speed Six chassis came into Mr Mann's possession. He stated that he was unable to remember whether he had been given any details of the chassis by Mr Townshend and his evidence was that he was not provided with any documents by Mr Townshend that gave any clue as to the history of the car since 1930 or even since 1937 when it is now known to have been acquired by Mr Mortimer.
- In about 1978 Mr Mann arranged for the chassis to be heavily restored as I have already described. There was some dispute at the trial as to the nature and extent of this restoration work. Mr Sibson carefully examined the chassis and measured it. He concluded that the middle section was a newly fabricated section inserted to replace the original section and which had been welded to the original metal front section. He also concluded that the rear section, although of old metal, appeared to have been recently placed into the chassis and to have been taken from a Standard chassis. In other words, Mr Ghosh must have replaced the existing rear section of the Speed Six chassis with the rear section of an old Standard chassis.
- Mr Sibson reached this conclusion because:
- Finally, it was clear, and Mr Mann accepted, that the overall length of the reconstituted chassis had been reduced from its length in the original Speed Six so as to make its length more compatible with, but not identical to, a Speed Six Le Mans racing length.
- Mr Fenn disputed that there was any appreciable difference in thickness between the front and rear sections or that the chassis's overall length had been shortened since it was not currently at the precise Le Mans racing length but was a little bit longer than this. He did accept that parts of the side rails of the chassis had been replaced, probably with slightly thicker steel, to give it more strength. He did not identify precisely which parts he was referring to. However, his evidence was not convincing since it did not address the signs of cuts and welds whose presence had no other obvious explanation than that provided by Mr Sibson and he did not produce alternative measurements or identify precisely which parts of the chassis he accepted had been changed so as to put Mr Sibson's measurements or observations in doubt.
- Most of the front part of the chassis was clearly the front part of the original chassis of the car when delivered in 1930. This was clear from its appearance, the thickness of the metal and the presence of the original chassis number that was still in place on the chassis carried by chassis dumb irons.
- I conclude that the chassis that had been obtained in a badly corroded and incomplete state by Mr Mann in 1976 was reconstituted in 1977 so that, like King Lear's kingdom, it was divided into three sections. The part of the front section that had not been replaced had come from the original chassis from which the other two sections had been lost or removed due to their previously damaged and corroded state. The middle section was made up of new metal to the appropriate Speed Six specification. The rear section had originated from a Standard Bentley or similar chassis and had been added to this chassis in 1977. The chassis had been shortened in length but, in its reconstituted state, it satisfied neither the 1930 Speed Six specification nor the shorter Speed Six Le Mans racing length.
- Thus, part of the front section of the chassis and its attached chassis number is the only surviving part of the 1930 Speed Six car that had originally been delivered to Miss Unwin in February 1930.
- Engine. The engine in the car had as its engine no WK2671. This engine had started life as a Standard 6½-litre engine in a Bentley 6½-litre model with chassis number FW2614 which had been delivered from the Cricklewood works in January 1927 to G. T. Applethwaite. The next that is heard of this engine is when it was bought by Mr Mann from Mr Smith, who described himself as a Swedish collector and restorer of vintage Bentleys. In an email to Mr Brewer sent in response to a question about this engine that Mr Brewer had emailed him on 27 January 2010, Mr Smith explained that he was a Bentley fanatic who had owned 27 Bentleys of which he had rebuilt 21, most of which were complete rebuilds. Mr Smith had dealt with Mr Mann on occasions over the years and, in March 1978, he had sold Mr Mann the WK2671 engine for £2,000. His invoice for that sum was disclosed in these proceedings by Mr Mann but it had not previously been given to Mrs Brewer. It is dated 3 March 1978 and refers to the engine that he was selling in this way: "As to Bentley 6½ litre engine no. WK2671". It would seem, from a second email from Mr Smith to Mr Brewer, that Mr Smith had acquired this engine as a 6½-litre engine from Mr Waldie Greyvensteyn, a South African living in South Africa, at some unspecified time in the past and had never used it, indeed had never taken possession of it since, having bought it, he left it boxed up in South Africa until he had arranged for it to be sent directly from South Africa to Mr Mann in England. According to Mr Smith's second email, this engine had been, as Mr Smith put it:
- What is not known is how that engine got to South Africa and the circumstances in which it had last been used. Mr Mann's evidence was that the engine had been upgraded before he acquired it. If Mr Mann's evidence is correct, the obvious inference is that the engine, which was stated to have been last used in 1949, had been upgraded in South Africa and that this was probably undertaken prior to November 1976 whilst the engine was in Mr Greyvensteyn's ownership. Mr Mann's evidence and these inferences do not, however, fit the facts that were established at the trial.
- Mr Brewer undertook research in back numbers of the BDC's Advertiser and came across this offer for sale, apparently placed by W. Greyvensteyn, in the November 1976 issue:
- In the period between March 1978 and December 1980, Mr Mann undertook extensive work to the engine as evidenced by the thirteen invoices for the purchase of parts and for re-boring work that date from that period. As already stated, these documents were not shown to Mrs Brewer when she was negotiating to buy the car and Mr Mann provided no satisfactory explanation as to why he had neither provided them to Mrs Brewer as part of the car's continuous history nor disclosed them originally nor as to how and why he was able to disclose them not long before the trial. The rebuilding, to use Mr Mann's word, of the car, save for the bodywork and internal fittings, was completed by December 1980 when he sold it to Mr James. Before parting with the car, Mr Mann first arranged for the addition of the new reproduction bodywork that was tailored to Mr James' requirements and he also re-registered and licensed the car with the DVLC with the registration number originally provided to the car that had its chassis number when first delivered. There was no direct evidence of the policy of the DVLC with regard to re-registration of vintage cars with an original number but it would seem that to ensure that an apparently moribund previously issued registration number was not reissued to a different car, it had always adopted the policy of only reissuing such a number to a car which had within it the original chassis number irrespective of what other changes had occurred to the car. It was not known when and in what circumstances the car had been previously de-registered with the DVLC.
- On the basis of this evidence, I conclude that the engine was a Standard engine when it arrived in Mr Mann's workshop and that he himself undertook the reconstruction work on the engine sometime between March 1978 and December 1980 so that it had the appearance of a Speed Six engine. Had the reconstruction work been undertaken in South Africa, Mr Greyvensteyn would not have referred to the engine as a standard touring 6½-litre engine in drafting the sale offer for the BDC's Advertiser and Mr Smith would not have invoiced Mr Mann for the resale of the engine two years later by referring to it as a Standard 6½-litre engine. Both would have referred to it as a Standard 6½-litre engine that had been upgraded, converted or reconstructed as a Speed Six engine.
- In making this finding, I take account of the fact that Mr Mann undertook extensive work to the engine as is evidenced by the thirteen separate invoices for parts that he acquired, and for boring work that he arranged, over an approximately three-year period starting in March 1988. This work would appear to have been largely unnecessary had the engine already been reconstructed when he bought it. I also take account of his failure to provide these invoices to Mrs Brewer when selling her the car and in not providing her with a detailed explanation of what work had been undertaken to the engine but instead, on his case, merely informing her elliptically that the engine was "to Speed Six specification". This economy with the truth is not consistent with his having openly and transparently acquired from a third party a reconstructed 1927 Standard 6½-litre engine that was, to all intents and purposes, to be considered as a Speed Six engine
- My finding that Mr Mann reconstructed the Standard 6½-litre engine is also reinforced by Mr Mann's evidence that he already had a ready source of Speed Six engine parts in his possession in the period when he acquired Mr Smith's engine which could have provided any necessary Speed Six engine parts to aid the reconstruction of the Standard engine. He had acquired a Speed Six engine from Mr Smith about two years earlier than his acquisition of the Standard 6½-litre engine from the same source and he had clearly originally intended to use that other engine in the car that he was reconstructing. Indeed, he had originally applied to the DVLC to re-license the car with that other engine in it, as was revealed in documents obtained by Mr Brewer from the DVLA. Mr Mann gave an unsatisfactory explanation as to why he did not, ultimately, use that other engine in the car and as to what had subsequently happened to it and he disclosed no documents about that other engine so as to identify its previous or subsequent history.
- I am therefore reinforced in my conclusion that Mr Mann reconstructed the Standard 6½-litre engine using parts taken from the Speed Six engine already in his possession and parts acquired from other sources including those evidenced by the disclosed invoices. However, Mr Ticciati made detailed submissions as to why I should find that the engine was reconstructed before it was acquired by Mr Mann from Mr Smith and delivered directly to him from South Africa in its reconstructed state. In short, Mr Ticciati's submissions were that Mr Greyvensteyn properly described the engine as a Standard engine, despite it having been reconstructed, because the original Standard block, which is identical to the Speed Six block, remained untouched in the engine so that the description used was therefore appropriate for either the original Standard or the reconstructed engines. Moreover, he contended, Mr Mann had no obligation to provide documentary or oral information to Mrs Brewer about the provenance of the engine and his disclosure of the 1978 – 1980 repair invoices, albeit late in the day, shows that his other evidence about this engine was credible, particularly as he had no motive to lie about the engine.
- However, I do not accept Mr Mann's evidence or these submissions about its credibility. This is principally because the evidence clearly shows that the engine was sold as a Standard 6½-litre engine by both Mr Greyvensteyn in South Africa to Mr Smith in Sweden and by Mr Smith (sight unseen) to Mr Mann. This is a very different kind of engine to a Speed Six engine for collectors and dealers in Speed Sixes. It is, I am satisfied, inconceivable that collectors or owners of Speed Sixes would hold out as a Standard engine which was last used in 1949 nearly 30 years previously an engine which had been reconstructed to resemble a Speed Six engine. If Mr Mann had genuinely thought that he was buying a Standard 6½-litre engine in March 1978 but, when it arrived boxed up and was opened to reveal itself as a reconstructed engine to Speed Six specification, he would have been both astonished and delighted. In such circumstances, he would have readily disclosed from the outset, in his advertising material and in what he told Mr and Mrs Brewer, that the engine was a Standard engine that had been reconstructed in this way when it was in South Africa in the period prior to 1978. This was a vital piece of information, whether or not it was capable of being authenticated by documentary means. It identified the provenance of the engine and was an essential piece of information that any potential buyer of a car held out as a Speed Six needed to know and was entitled to know. Yet, this evidence only emerged as a result of the forensic investigation of the BDC's Advertiser undertaken by Mr Brewer.
- My conclusion that Mr Mann reconstructed the engine and that he was wrong in stating that he had not reconstruct it is highly relevant in assessing the truthfulness and reliability of his evidence as to what he stated to Mrs Brewer about the engine since, as I have concluded, it was he who had reconstructed the engine nearly thirty years earlier. Despite the passage of time, it is inconceivable that he had forgotten that he had undertaken that work when he spoke to Mrs Brewer about the engine in 2007. My findings about that meeting, that are adverse to Mr Mann, are set out below[13].
- The car when owned by Mr James. The car, at the point in time when it was delivered to Mr James, was the 1930 Speed Six car delivered to Miss Unwin in February 1930 which had subsequently been completely reconstructed with a reconstructed 1927 6½-litre engine, a reconstructed and shortened chassis which had retained less than one third of its original metalwork, different component parts associated with the chassis and reconstructed replica bodywork and livery. In short, only the small front section of the chassis and the original chassis number plate had survived.
- The car remained in Mr James's possession for twenty five years until he handed it back to Mr Mann with instructions to sell it on his behalf. In that time, he had looked after the car very well and had only clocked up about 16,000 miles, mainly driving to and from Continental vintage car rallies. In his letter dated 20 December 2006 to Mr Mann, which he wrote as a reference for a prospective buyer when leaving the car with Mr Mann to sell on his behalf, he stated:
- Mr James provided some documents that showed that he had looked after the car by extensively servicing and maintaining it on eight occasions between December 1984 and May 2006. It is clear that Mr Mann had never tested the car or its engine in any recorded way prior to selling it to Mr James or once he re-took delivery of it in December 2006 so as to confirm that it was performing according to the BDC's historically derived 1930 Speed Six specification and he never obtained or produced test results and a test certificate to confirm that the reconstructed engine was capable of satisfying, and had been tested to prove satisfactory performance of, the entirety of both the static and dynamic parts of that specification.
- Continuous history. Mr Mann did not show or provide to Mr or Mrs Brewer any documents relating to the car's continuous history prior to SMRL selling it to Fortis. When the hire purchase agreement had been concluded, Fortis authorised Mr Mann to release the car to Mrs Brewer and Mr and Mrs Brewer went to SMRL's premises and took delivery of the car. The only documents that Mr Mann provided them with were the receipts that Mr James had earlier provided him with that related to the servicing history of the car in the twenty six year period between 1981 and 2006. Mr Mann told the Brewers that those were the only documents he then possessed. This was an inaccurate statement since he was implying that there were a variety of other documents that provided a continuous history of the car that had existed but which were not in his possession. However, as is now known, there were very few other documents in existence and the car did not have a continuous history since the only other historical documents that had ever existed were the log books and a number of invoices relating to the reconstruction work that he had carried out in the period 1977 – 1980 which Mr Mann subsequently produced by way of late discovery in these proceedings and which must have been in his possession when Mrs Brewer took possession of the car.
- Mr Mann's implied representation to the Brewers that the car had a continuous history as a 1930 Speed Six car was obviously false. He had conveyed this to them by what he told them when he handed over the limited documentation that he gave them taken in conjunction with what he had told them about the car previously. Mr and Mrs Brewer accepted the car in the absence of any other documents and of any other continuous historical details since they trusted Mr Mann and the assurances that he had given them during their negotiations to buy the car that it was a 1930 Speed Six with a Speed Six engine with a continuous history.
- Mr Mann's test in 2009. Mr Mann stated in evidence that he had tested the car not long before the trial and in so doing had proved that the car satisfied the entire Speed Six specification. However, he did not undertake this testing in the presence of Mr Sibson, he did not give Mr Sibson adequate notice of his intention to prove the car and he did not produce any test results, an inspection report, the testing protocol that he had used or any independent verification of the tests he had performed in the form of a test certificate to establish his claim that the car satisfied the Speed Six specification.
- Moreover, the only test that he stated that he had carried out, a compression test, on the basis of his evidence had shown that the engine satisfied a pressure of 140 psi which is significantly lower than the pressure of 225 psi that Mr Sibson considered was to be expected from a Speed Six engine. Furthermore, Mr Sibson explained that this test was inadequate to prove that the car satisfactorily complied with the Speed Six specification. In his view, a rolling road dynamometer test was also needed since the compression test would not have provided any conclusive evidence of the engine's attainable BHP. Mr Fenn dismissed that view without giving any satisfactory technical explanation as to why the rolling road dynamometer test was both unnecessary and irrelevant and was one that should not be carried out at all. Even if Mr Mann and Mr Fenn did not regard this further test as being necessary, it should have been carried out in any event since Mrs Brewer's expert considered, on reasonable grounds, that it was necessary and no satisfactory explanation was offered as to why it had not been carried out[14].
- I therefore conclude that the car was not satisfactorily tested in 2009 and that such test results as were claimed to have been undertaken apparently showed that the engine under load displayed significant non-compliance with the BDC's 1930 Speed Six specification. I accept Mr Sibson's view that neither the car as a whole nor the car's engine met the 1930 Speed Six specification even though this conclusion was based solely upon a detailed visual examination of the engine and chassis and the reported result of the compression test that Mr Mann claimed to have carried out. Mr Sibson had not been provided with access to the car of a kind needed to test it fully. Mr Sibson reached the reasonable conclusion that, in a number of important respects, neither the car as a whole nor the engine met that specification.
- Mr James's sale. When Mr James decided that he wanted to sell the car, he left it with Mr Mann. The arrangement was that Mr Mann would buy it from him for £325,000 once Mr Mann had found a buyer for it. The arrangement with Mr James was, therefore, that he left it with Mr Mann on a sale or return basis. Mr Mann, through SMRL, ultimately bought the car from Mr James on 8 June 2007 for that agreed price, having first sold it on 30 May 2007 to Fortis for £430,000. In his witness statement, Mr Mann somewhat misleadingly states that he bought the car from Mr James in 2006 but he accepted in his oral evidence that he had an agreement to buy it from Mr James dependent on a forward sale being achieved and, somewhat dismissively, added that he regarded himself as having bought the car on taking delivery of it as a bailee from Mr James because "I would have bought the car anyway".
- Valuation of the car. I have not have to make any finding as to the car's value or as to the value that it would have had if it conformed to its description as a 1930 Speed Six Bentley Car with a 1930 Speed Six engine and chassis and a full continuous documentary history. Valuation issues were not raised at the trial. However, it is clear from the various valuations that were in evidence that the car was worth significantly less than it would have been worth had it conformed to its description. On the assumption that the car was being valued in its actual condition with a reconstructed engine and chassis and that that condition was known to the valuer, it was clearly worth between £325,000 and £550,000 in the period 2007 - 2008. The first sum was the price that Mr Mann paid Mr James for the car in June 2008 and the second was the value placed on the car by Mr Fenn in May 2007. Mrs Brewer and Fortis paid £430,000 for the car in June 2007, a mid-point value. This was also the figure at which Mr Mann rebought the car from Fortis in July 2009. He subsequently resold it, after he had done much further work to it, for £675,000 some months later. It was also valued at between £420,000 and £470,000 by a valuer instructed by Mr Mann in December 2008. These figures were fixed by those who were fully aware of the identity of the car's engine as being one with a converted or reconstructed Standard 6½-litre engine.
- Had the engine been a 1930 Speed Six engine which was still in its original condition, the car would have been worth anything from £750,000 to several million pounds sterling. The first figure was a speculative figure provided by Mr Fenn in evidence and the much higher figures arise from Mr Mann's written evidence that such a car would have been valued at between £2m and £3m in 1975 and from the sale price of the most prestigious Speed Six of all, "Old Number One", of £10m in 1990. Moreover, as shown by the SHM Smith Hodgkinson appraisal[15], a Speed Six with an exceptional racing provenance had fetched $5.1 in July 2004 and another Speed Six had fetched $1.8 in August 2006. Both of these Speed Sixes appear to have had a Speed Six engine and to have been authenticated by an appropriate documentary history. It is obvious from these snatches of evidence that there must be a significant difference in price between the two types of car given the unique and historically significant nature of Speed Six engines produced by W.O. at the Cricklewood works in 1929 and 1930 and their scarcity and rarity value.
- It is therefore clear that the value of a Speed Six car is highly dependent on whatever unique characteristics it has acquired, on its continuous history and as to how it has been used, looked after, rebuilt or reconstructed over the years as well as on who is bidding for the car and on the highly volatile vintage car market at the time of the sale. It is also clear that whatever the value of a 1930 Speed Six might be at any one time, it will be appreciably higher than the corresponding value of a reconstructed Speed Six with a reconstructed 1927 Standard 6½-litre engine a reconstructed 1930 chassis with no relevant continuous history and with no verified and authenticated ability to satisfy any relevant 1930 Speed Six specification.
- Mr Mann sought to persuade the court in his oral evidence that there was no significant difference in value between a car with a Standard 6½-litre engine with an unproved ability to satisfy a Speed Six specification and one containing one of the few surviving W.O. Speed Six engines that had been rebuilt and which was still in good condition. This evidence is both self-evidently wrong and highly damaging to Mr Mann's general credibility and reliability.
- The car's lack of a continuous history. When Mr Mann sold Mrs Brewer the car he handed over to her documents relating to the servicing of the car in the period when it was in Mr James' possession after 1981. He handed over no documents relating to his acquisition of the chassis, the engine and the work he carried out on the car between 1978 and 1980 nor any documents relating to the previous history of the 1927 engine or to the previous owners of the car or its pre-history in the years before 1976. Mr Fenn accepted in cross-examination that the car had no continuous history. I find that the car lacked a continuous history for the entire period between 1930 and 1981 and any authenticated and authenticating documents proving its history in that period. No such documents were provided to Mrs Brewer.
- Mr Mann has, for many years, run his vintage Bentley sales and renovation work through his one-man company, SMRL. However, he did not champion or refer to this company in his advertising material and he did not mention SMRL in any of the advertisements that he put out about the car. One of these advertisements was put out in Classic & Sports Car, a fuller advertisement was put out on his website and a slightly different version was set out in the write-up about the car that he gave Mr Brewer at their initial meeting. Moreover, Mr Mann's email address was made up of his name without there being any indication in it of the company's existence. A further indication that Mr Mann's business was a personal one was that Mr Mann requested Mr Fenn to provide him with an informal valuation of the car to reassure Mrs Brewer and Fortis that the asking price was satisfactory. Mr Fenn provided this in a letter dated 24 May 2007 which he addressed to Mr Mann personally and not to SMRL. Mr Mann showed Mrs Brewer a copy of this letter before she agreed to buy the car and a copy was provided to Fortis. Mr Mann's invoices and letter head were, however, in the name Stanley Mann Racing with the company's name appearing in small letters at the foot of the page but Mrs Brewer did not see any of these documents until she was about to sign the hire purchase agreement and pay the deposit on the car.
- Mr James left the car with Mr Mann in December 2006. He did not sell the car to Mr Mann at that stage. Instead they agreed the price at £325,000 and they also agreed that the car would be left with Mr Mann on a sale or return basis and that the sale would only proceed if and when Mr Mann sold it on. There was, therefore, a conditional arrangement, or possibly even a contract, in place which required Mr Mann to market the car and involved the bailment of the car to him whilst it was being marketed. It followed that either party could terminate this arrangement and the bailment prior to any sub-sale being completed on giving the other party reasonable notice. Apart from the price, this conditional arrangement appeared to contain no other express or implied terms. This arrangement had been entered into because Mr James wanted to sell the car and he knew and respected Mr Mann since he had bought the car from him in its current condition many years previously and had been very satisfied with it. He was obviously confident that Mr Mann would achieve a sale which would enable him to receive his agreed asking price. Once the car had been left with Mr Mann, he undertook some service work on it in February 2007 and then started to market it.
- There is nothing in writing to show whether Mr James contracted with Mr Mann or SMRL when bailing the car. Mr James's handwritten reference letter was addressed to "Stanley" and it made no mention of SMRL. The only document disclosed by Mr Mann related to the subsequent sale contract. This was SMRL's sale invoice addressed to Mr James and dated 8 June 2007, one day after Mrs Brewer had taken delivery of the car. Since there is no documentary evidence to suggest that the original sale or return conditional arrangement and consequent bailment of the car were agreed by Mr James with SMRL and no evidence to suggest that Mr James was aware of the existence of SMRL at that stage, I conclude that the price at which Mr James would sell the car and the understanding that Mr Mann would arrange for the re-sale of the car and that it would be bailed with him in the meantime were agreed by Mr James with Mr Mann personally.
- Following her marriage to Mr Brewer in November 2002, Mrs Brewer developed a considerable interest in vintage racing Bentley cars, no doubt originally because she wanted to share one of her husband's principal interests. By the spring of 2007, she had decided to buy a vintage Bentley for pleasure and as an investment and that her acquisition should be either an 8-litre or a Speed Six. She took advice on this from her husband who ha been a Bentley enthusiast for many years, had owned and raced several vintage Bentleys in the past and who owns various books about vintage Bentleys. Mrs Brewer acquired some of her husband's knowledge to assist her in her to develop her relatively newly found enthusiasm for vintage Bentleys.
- Her first foray into vintage Bentley ownership was to travel with her husband to Germany to view a vintage 8-litre Bentley that they had learnt was on offer but she decided not to buy this particular car because she found out, when inspecting it, that it had some unusual modifications. This car appeared, however, to have a continuous history, meaning that there was documentary verification of the successive owners of the car and of all significant changes to its chassis, engine and registration number from the time when it had first been delivered to its first owner from the Bentley works in Cricklewood to the present day. Her discussions with this German dealer taught her that vintage Bentleys were highly sought after and that it was essential, if a particular vintage Bentley was being considered, to check whether it had a continuous history since without this, a vintage Bentley car could not be proved to be an authentic vintage Bentley and would be unlikely to hold its value over the years.
- Prior to the meetings with Mr Mann. Soon after returning from Germany, on 8 May 2007, Mr Brewer noticed Mr Mann's advertisement in the June 2007 edition of Classic & Sports Car advertising the car for sale. Mr Brewer had known of Mr Mann and of his reputation as a leading vintage Bentley expert, dealer and restorer and he had met him at various events. He phoned him, was informed that the asking price was £425,000 and said that he would come and see the car. Mr Mann referred him to further details about the car that could be found on his website which Mr Brewer visited and printed down. Mr Mann also gave Mr Brewer a printed sheet containing similar details about the car when they met.
- I will set out these three pieces of sales literature in full. I have highlighted the relevant critical passages in each which are, in the light of my findings, both significantly misleading and substantially inaccurate. The letter in brackets after each highlighted passage refers to my commentary below[16].
- The sales literature reads as follows:
- Misleading nature of the advertising material. The misleading nature of this advertising material can be summarised under four main headings:
- In summary, these representations inaccurately and misleadingly conveyed the meaning to an informed reader such as Mrs Brewer, particularly when being advised by her well-informed husband, that the car retained its original Speed Six engine and chassis which had been rebuilt but which still survived as a Speed Six engine with a proved capability of satisfying all aspects of the Speed Six specification. These representations were reinforced and confirmed by the absence of any reference in any of the documents to the fact that the engine was a Standard 1927 6½-litre engine and that the chassis had been significantly reconstructed so as to resemble a Speed Six chassis that satisfied the Speed Six chassis specification.
- Mr Brewer's meeting with Mr Mann. Soon after the initial telephone conversation, Mr Brewer went to see the car on a Sunday morning, which is a time when Mr Mann opens his premises for viewing cars being offered for sale. Mr Brewer said in evidence that he asked Mr Mann whether the engine was a Speed Six engine and that Mr Mann told him that it was. Mr Brewer then explained that his wife would be buying the car so that she would have to come and see it. Mr Mann formed the view, based on what he said and asked, that Mr Brewer was knowledgeable about Bentleys and about Speed Sixes in particular. However, he denied that he had stated that the engine was a Speed Six engine. He recalled that they agreed a price of £430,000, subject to a £5,000 discount and that Mr Brewer wanted to borrow the money so that he put Mr Brewer in touch with Mr Hardiman who was a representative that he knew at Stoke Park Finance Ltd who had arranged finance for previous buyers of his vintage cars. Mr Brewer's evidence, which I accept, was that the part of the discussion about financing the deal occurred at the meeting on 20 May 2007.
- Mr and Mrs Brewers' meeting with Mr Mann. Mr and Mrs Brewer then visited Mr Mann's premises on 20 May 2007 to view the car. Mrs Brewer said she did most of the talking on their side. She said that she told Mr Mann that she was only interested in a genuine Speed Six car which would hold up as an investment in the collector's market. She asked whether the car was a Speed Six and whether the engine was a Speed Six engine given that it was not a matching car, by which she meant a car whose chassis and engine numbers were the same as when the car was first delivered from the Cricklewood works. Mr Mann answered both questions in the affirmative and explained that Bentley often changed engines if a customer came back with a problem. This led Mrs Brewer to believe that the engine change that had occurred had been made soon after the car had first been delivered and that the Cricklewood works had changed one Speed Six engine for another. She also stated that she asked Mr Mann about the restoration work that he had done and informed him directly that she was only interested in buying the car if it had a Speed Six engine in it. She clearly recalled that Mr Mann assured her that the engine was a Speed Six engine. She did not recall Mr Mann explaining to her that the result of the work that he had done was such that the engine was to Speed Six specification but she was sure that if this was said, it was said in the context of the work that Mr Mann had done was work undertaken on an original Speed Six engine in a way that ensured that the engine remained one that satisfied the Speed Six specification. Finally, she remembered that Mr Mann had stated, on being asked by her, that about 100 Speed Sixes had been built originally but that only about 40 of these were left. This was important to Mrs Brewer, she stated, because she wanted the car to hold its value. Mr Brewer confirmed his wife's account of the conversation between her and Mr Mann which he had listened to but had not participated in.
- Mr Mann appeared to have little recollection of the conversation as recounted by Mrs Brewer. He stated that he remembered stating that the car was a Speed Six and that the engine was not original to the car, that one of the Brewers had asked whether the engine change meant that the car was no longer a Speed Six and that he had answered that it was a Speed Six car but that, like all cars of that age, it had gone through changes during its life and that the engine had been prepared to Speed Six specification. Mr Mann stated that he had referred to the engine's specification and to the general practice of Bentley frequently changing a Speed Six engine with anther Speed Six engine in 1929 – 1930 because this was relevant to the extent to which, if at all, the engine change affected the car's value. If that was his purpose, I find that he did not state that purpose to Mrs Brewer. Furthermore, I am satisfied that although Mrs Brewer was concerned to know whether the car was correctly valued, that was not her only concern and, indeed, there was little or no discussion about the car's value at the meeting.
- It was agreed at the end of the meeting that Mrs Brewer would buy the car for £425,000 subject to financing being arranged through Mr Neil Hardiman, the Stoke Park Finance Ltd's representative that Mr Mann had introduced them to.
- Discussion - general. This meeting gives rise to three critical issues:
- Mr Mann's statement. Much time was taken up in cross-examining Mrs Brewer and, at less great length, Mr Brewer to the effect that their evidence on this crucial issue was untrue or mistaken and Mr Mann was subjected to similar albeit much shorter cross-examination. I was satisfied, taking all the evidence as a whole, that Mrs Brewer's account of the discussion was correct and I therefore accept it.
- It follows that Mr Mann did not refer to the engine as being "to Speed Six specification". If he did use this phrase or refer to the engine's ability to satisfy the Speed Six specification, that reference would have been understood as being a statement that the car's replacement engine had been a Speed Six engine that had been installed by the Cricklewood works within months of the original owner taking delivery of the car in 1930 which Mr Mann had subsequently restored "to Speed Six Specification" whilst rebuilding the car. In other words, Mrs Brewer would have been left with the clear impression that the result of Mr Mann's restoration work in about 1979 was to leave the replacement Speed Six engine that had been in the car since 1930 in a condition in which it still met the original Bentley Speed Six specification.
- In reaching this conclusion, I have carefully considered the background and the factual matrix to this essentially business contract, albeit that it was in law a consumer contract entered into by a professional legally qualified buyer and a professional seller. On Mrs Brewer's side, the crucial feature of Speed Six engines is not that physically or in performance terms they meet a particular specification but that the engine was originally delivered as a Speed Six engine by the Cricklewood works, whether on first delivery or as a replacement engine to cure problems with the originally delivered engine. Any changes to the engine thereafter needed to be documented and needed to be such that the original engine had not been altered to such an extent or replaced so that it could no longer be fairly or correctly described as a Speed Six original engine that had been subsequently repaired and maintained.
- However, there is a crucial reason why I do not accept Mr Mann's account of this meeting. As both Mr and Mrs Brewer confirmed, they were well steeped in vintage Bentley history. They knew about the unique and historically significant features of Speed Six engines, being engines designed and produced by the remarkable team assembled under W.O. and which had been world-beaters at Le Mans and elsewhere in the golden years between 1929 and 1932. The Brewers were a couple who "wanted W.O.'s finest" as the car was recommended as being in Mr Mann's website advertisement, a phrase which, in context, referred particularly to the car's engine and chassis. The Brewers particularly wanted to buy one of the very few surviving Speed Six engines. Mrs Brewer was therefore bound to question the provenance of the engine and would not have been content to be told that the engine was a Standard 6½-litre engine which had been adapted to look like, and which allegedly performed like, a Speed Six engine.
- On Mr Mann's side, I also take into account the misleading nature of his advertisements about the car and that he never referred to the fact that the replacement engine was not a Speed Six engine that had been added to the car in 1930 but was a 1927 Standard 6½-litre engine that had been reconstructed to look and perform like a Speed Six engine as part of the rebuilding or reconstruction work that he had undertaken in about 1979. Moreover, he never provided Mrs Brewer with any document which showed what work he had done, what type of replacement engine had been provided and when this replacement had occurred. This is in marked contrast to many of the other advertisements offering vintage Bentleys, including Speed Sixes, for sale that were in evidence. These other advertisements described in some detail the past history and rebuilding and reconstruction work of the vehicle being advertised.
- Thus, a potential buyer who was examining the car and talking about it to Mr Mann would assume that they were talking about a car containing an original Speed Six engine since that was the type of car that Mr Mann was objectively describing. In order to dispel the obvious conclusion that the car's engine was a Speed Six engine, Mr Mann would have had to have made it very clear that the engine was not a Speed Six engine but was instead a Standard 6½-litre reconstructed engine, notwithstanding that the car was a Speed Six car, and he would also have had to have explained in some detail why that was so, what he meant by the description "to Speed Six specification" and why he was able to describe it in that way.
- In fact, Mr Mann provided no such explanation to Mrs Brewer. On his account of the conversation, he did no more than to state that the car was "a Speed Six car" and that the engine was "to Speed Six specification". If he used these phrases, his language was fraught with ambiguity and the statement about the engine was unduly terse and its meaning unclear. Since Mr Mann claims to have stated that the Bentley works frequently changed engines for customers after a vintage Bentley's initial purchase and since Mr Mann described the car in his website advertisement as being "W.O.'s finest", the listener such as Mrs Brewer would have understood from those statements that the engine had been changed from one Speed Six engine to another by W.O.'s team in the Cricklewood works in 1930. That listener would have also understood the reference to a Speed Six specification as being a reference to the much later restoration work to the replacement Speed Six engine that Mr Mann had led the listener to understand as having been undertaken in the period immediately before the car was bought by Mr James in 1981.
- Credibility. On this crucial issue of what was said and the context and consequence of what was said at the meeting on 20 May 2007, I must assess and reach a conclusion as to the credibility and reliability of the evidence of Mr and Mrs Brewer and Mr Mann. This involves my taking account of what they stated in their written and oral evidence and testing that against their statement and actions generally, their motives as revealed by the evidence, the consistency of their evidence with their other statements and actions and their general creditworthiness. Their demeanour when giving evidence must also be considered but all three witnesses gave their evidence with confidence and, therefore, demeanour was not itself much of a guide to the credibility or reliability of any of them.
- Mrs Brewer's case. It was submitted that Mrs Brewer clearly and reliably demonstrated that her principal motive for acquiring the car was that it was, or appeared to be, a Speed Six car with a Speed Six engine. She was also concerned to buy a car that was not over-valued, would provide her with a sound and reliable investment which would grow in value and was a car which she thought was beautiful and one she would want to be seen in. She, particularly as a result of the advice she had received from her knowledgeable husband, was well informed about Speed Sixes and was clearly interested in the provenance of the engine. Thus, it was inherently likely that she would have made direct enquiries about the engine, particularly if she had been informed that the engine was only to Speed Six specification. The engine was the crucial feature of a Speed Six that she was interested in and she and her husband were obviously very keen on the car since it had been described by Mr Mann's website as being "W.O.'s finest". As a practising solicitor, she would have been particularly concerned to give accurate, honest and reliable evidence to the court. Mr Brewer's evidence, particularly where it dealt with his initial meeting with Mr Mann when Mrs Brewer was not present, was accurate and reliable and his evidence generally corroborated Mrs Brewer's evidence. Furthermore, for a significant number of relevant reasons, Mr Mann's evidence was evasive, untrue, unreliable and lacking in credibility. Overall, therefore, Mrs Brewer's evidence of the meeting and of the warranty and her reliance on it was to be preferred.
- Mr Mann's case. It was submitted that, in sharp contrast to Mrs Brewer, Mr Mann was an obviously honest witness. He was described by Mr Fenn as the "quintessentially honest trader" who had built up a reputation for fair dealing and who was not one to risk damaging that reputation that had been built up over more than thirty years trading in vintage Bentleys. Mrs Brewer's evidence in court was self-serving and could be seen to be untrue given her lack of knowledge or experience about any aspect of the technical side of Speed Sixes and Speed Six engines. It was clearly schooled for the purposes of this case. Mr Brewer was an inherently dishonest person, as evidenced by his history, and he had tailored his evidence to chime with Mrs Brewer's dishonest evidence. Mr Mann had very good reasons for stating that the engine was to Speed Six specification, he provided those reasons to the court and his evidence was consistent, patently honest and obviously reliable.
- Preliminary findings of facts allegedly going to credit – Mrs Brewer. Several matters were relied on as suggesting that Mrs Brewer's evidence was both unreliable and untrue in relation to the meeting on 20 May 2007. In particular:
- Preliminary findings of facts allegedly going to credit – Mr Brewer. Several matters were relied on as suggesting that Mr Brewer's evidence was both unreliable and untrue in relation to the meeting on 20 May 2007. In particular:
- Preliminary findings of facts allegedly going to credit – Mr Mann. Several matters were relied on or became apparent at the trial as suggesting that Mr Mann's evidence was unreliable and untrue in relation to the meeting on 20 May 2007. In particular:
- Credibility – conclusion. The matters set out above are all relevant to the assessment of the credibility of the three participants in relation to what Mr Mann stated at the 20 May 2007 meeting. My overall conclusion is that both Mrs Brewer and Mr Mann had obvious and clear reasons why they would wish to preserve their respective professional and personal reputations and that Mr and Mrs Brewer and Mr Mann's evidence should be approached with caution. Adopting those starting points, I concluded that there were no obvious reasons for regarding the evidence of Mr and Mrs Brewer as being unreliable, particularly since the factual matrix to the meeting on 20 May 2007 clearly pointed to the probability that Mrs Brewer's evidence was correct. Thus, there was no reason for regarding Mr Brewer's supporting evidence as being unreliable. However, and most significantly, Mr Mann's evidence was inherently unreliable given all the unsatisfactory aspects of his evidence that are summarised above. Taking all these matters into account, I was unhesitatingly able to reach the conclusions that I have set out above[34]. Thus, I find that Mrs Brewer's evidence of what was said by Mr Mann at that meeting was correct and Mr Mann's evidence of what he said was incorrect.
- "To Speed Six specification". I am satisfied that the statement "to Speed Six specification" was never used by Mr Mann in the context in which he claims to have used it. There was no evidence that this statement had ever been used by anyone else about a Standard engine that had been converted into or reconstructed as a Speed Six engine and it has all the appearance of having been used by Mr Mann as an afterthought.
- Moreover, the statement has no clear or precise meaning and Mr Mann has never provided a clear or satisfactory explanation as to what this phrase means. This is because there is no surviving official or formal Speed Six engine specification. The only Speed Six specification that was in evidence was the reconstituted specification produced by the BDC in the 1950s that is available to members in BDC literature. That specification is, in part, a descriptive or static specification of various parts of a Speed Six engine and, in part, a performance or dynamic specification concerned with such matters as brake horsepower, compression ratios and other indications of the engine's dynamic performance capabilities. Since a performance specification involves proof of performance, Mr Mann would have had to have tested the car and obtained an appropriate test certificate for him to be able to state that the car satisfied the performance parts of the Speed Six specification. It would not have been clear, therefore, what part of which specification was being referred to since the only readily available specification was not one drafted and used by the Cricklewood works but was, instead, one that had been reconstructed as a "Speed Six specification" by the BDC in the 1950s.
- Moreover, on the assumption that the statement was referring to the BDC Speed Six specification, it would not have been clear whether the reference was to both the static and dynamic parts of that specification or only to the dynamic part. In the absence of any explanation as to the intended meaning, the reference to a Speed Six specification, if it was made, could only have been in its context to the entire BDC Speed Six specification including the dynamic parts of it. It would therefore follow that the person who was making this statement had proved the car's capability of satisfying that performance specification by testing the engine and recording the results under working conditions and could produce appropriate test results or had seen or had available test results which showed the engine's capabilities. The only testing that Mr Mann had carried out was not recorded and his statements about that testing showed to Mr Sibson that they showed less than full compliance with the specification and also clearly showed non-compliance in a particular and material respect. Moreover, Mr Sibson also considered, having visually inspected the engine, that its appearance was not consistent with an engine generating the power required fully to comply with the specification. I conclude that the engine, certainly by the time the car was acquired by Mrs Brewer, did not comply with the BDC Speed Six specification[35].
- Thus, the statement that the engine was "to Speed Six specification" could have meant one of two things and either of these meanings was misleading. Firstly, the statement could have meant that both the static and dynamic parts of the specification had been satisfied. If so, it would follow that the engine was being held out to be a Speed Six engine and was not merely "to Speed Six specification" since only an original Speed Six engine could satisfy both parts of the specification. Secondly, the statement could have meant that the engine met the dynamic or performance part of the specification in which case the statement was untrue since Mr Mann had never formally tested the engine under working or load conditions, he possessed no test certificate for that reconstructed engine which showed that the specified performance requirements had been met under working conditions and the available evidence at the trial showed that the BDC performance specification was not met. Thus, if Mr Mann referred to the engine as being "to Speed Six specification", he was either confirming that the engine was a Speed Six engine or he was making an inaccurate statement about the engine's capabilities. In either sense, this phrase was both inaccurate, a misrepresentation and a breach of warranty if it amounted to a warranty.
- Contractual warranty. Mr Ticciati accepted that the statement that the engine was a Speed Six engine was a contractual warranty if, but only if, it was a statement of fact and not opinion and if it could be shown that Mrs Brewer had acted and relied on that statement to induce her to enter into the hire purchase agreement with Fortis to enable her to buy the car.
- There can be no doubt that the statement that "the engine is a Speed Six engine" is a statement of fact. The answer to the question: "is this a Speed Six engine"? does not require Mr Mann to form an opinion. Instead, he has to refer to the facts about the engine that he has seen, experienced and acquired, particularly when he undertook the necessary reconstruction work to transform the engine into one which he alleges satisfied the Speed Six specification. The answer he gave to Mrs Brewer's question was, in other words, one that was governed by objective facts and by objects which he had seen, felt and worked on.
- As to reliance, Mrs Brewer stated categorically that she was only prepared to enter into the hire purchase agreement because she had been assured by Mr Mann that the engine was a Speed Six engine and, for the reasons that I have already set out, I accept this evidence.
- Legal test for a contractual warranty. Mr Malek QC cited two authorities that provide clear guidance in relation to the question of whether a statement made in pre-contract negotiations by a seller was intended to be, and was enforceable as, a contractual warranty. The first was Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd[36] where Denning LJ stated:
- The second was Inntrepreneur Pub Co v East Crown Ltd[37] where Lightman J. summarised the relevant principles for representations amounting to collateral warranties as follows:
- It is clear that the requirements for the existence of a collateral warranty that are set out in these two authorities applied to Mr Mann's statement that the engine was a Speed Six engine. This is because Mr Mann could clearly be seen, when his words were considered in context, to have intended the statement to be relied on by Mrs Brewer and she did indeed rely on it when she decided to buy the car. The statement was a clear representation of fact, it was not followed by any further negotiations and it led rapidly to the conclusion of both the sale and hire purchase contracts a few days later.
- Conclusion – collateral contractual warranty. I therefore conclude:
- Contracting party – Mr Mann's case. The next question that must be considered is whether Mr Mann gave this contractual warranty on his own behalf or on behalf of SMRL as the agent of a disclosed or an undisclosed principal. Mr Ticciati contended that this question can only be answered once it is established when the warranty took effect. He contends that this was when the hire purchase agreement was entered into and since, by then, it was clear to Mrs Brewer that it was SMRL who was selling the car to Fortis, it must also have become evident by then, even if it was not evident earlier, that SMRL was providing the contractual warranty and is, therefore, the only potentially liable party.
- Mr Ticciati also contended that the entire contractual relationship or relationships with Mrs Brewer, including any contractual warranty, was with SMRL and that Mrs Brewer must have known that SMRL and not Mr Mann was the intended and actual contracting party. Mr Mann had always made it clear that he was acting throughout as that company's agent. This was communicated by his use of the company's trading name Stanley Mann Racing in the website advertisements and on the invoices. Mrs Brewer, particularly since she was a practising solicitor, would have known that Stanley Mann Racing must have been the trading name of a company and not an individual. Moreover, she paid the deposit to SMRL, was refunded £5,000 of that payment by SMRL and addressed her letter before action only to SMRL.
- Finally, Mr Ticciati contended that the collateral contract containing the warranty could only have taken effect when the hire purchase agreement was concluded. That contract was made after the 6 June 2007 which was after Mrs Brewer knew that SMRL was the contracting party for the provision of any warranty. .
- Mrs Brewer's case. Mr Malek QC contended that Mr Mann was personally liable for the warranty and was also liable as the agent of an undisclosed principal for its breach. Moreover, SMRL was additionally liable since it now asserts that it accepts liability for such liability as is proved to have arisen from any breach of the contractual warranty provided by Mr Mann. Mrs Brewer first became aware of SMRL's involvement in the sale of the car when she received from Mr Hardiman a copy of SMRL's draft invoice dated 30 May 2007 that Mr Mann had sent Fortis and had copied to him. Until then, Mrs Brewer contended that she had no idea that SMRL and not Mr Mann was selling the car since the materials advertising it for sale did not refer to SMRL and Mr Mann had never mentioned its name to either her husband or to her. Thus, Mr Mann must have been acting in his personal capacity when making the contractually enforceable warranty to Mrs Brewer.
- Contracting party – discussion. The case advanced on behalf of Mr Mann must be considered under each of the three ways that it is contended that Mr Mann is personally liable for any breach of the contractual warranty he made on 20 May 2007 to Mrs Brewer. These are that Mr Mann was acting in a personal capacity when providing the contractual warranty, was acting as agent for SMRL whose existence was undisclosed and was acting as an agent whose principal became known to Mrs Brewer prior to the contractual warranty taking effect but she did not repudiate the warranty made on its behalf thereafter.
- Mr Mann's personal liability. The evidence suggests that Mr Mann, when undertaking his prestige car sale and reconstruction and renovation business, did so with the appearance of it being his own personal business. Thus, he accepted when giving evidence that he and SMRL are interchangeable. A further example of his actually or apparently doing business in his own name was provided by Mr Fenn. He had known Mr Mann for many years and was unaware that he had a company. So much so that he addressed both valuations he provided of the car to Mr Mann personally. He also stated that he would not have provided the valuation if he had known it was for a company or for use in obtaining finance from a finance company. It also appeared that SMRL's name was only used by Mr Mann on his invoices and official letters written about the business and then only in small letters at the foot of the page. His use of SMRL's trading name Stanley Mann Racing also suggested that the business was a personal one. In the context of this business and the manner in which Mr Mann ran and operated it, I reject the submission made on behalf of Mr Mann that Mrs Brewer, as a solicitor, must have known that that trading name must have been that of a limited company and not an individual. Many specialised businesses are still run by individuals.
- A further reason why Mr Mann is personally liable to Mrs Brewer is that SMRL did not buy the car from Mr James until after SMRL had sold it to Fortis and, until that sale, the car was in Mr Mann's possession since it had been bailed to him and not to SMRL. Mr James had arranged with Mr Mann personally to procure a sub-sale of the car and in those circumstances any warranty that Mr Mann gave Mrs Brewer had been given by him to a prospective buyer of the car at a time when it was in his possession and he was personally seeking to arrange for its sub-sale.
- For these reasons, Mr Mann must have given Mrs Brewer the warranty in his personal capacity. This warranty was one often called a collateral warranty since the consideration that gave it effect was that, in reliance on that warranty, the receiving party, in this case Mrs Brewer, was induced to enter into the deposit contract and then the associated hire purchase agreement. There is no reason in law why the party providing a contractual collateral warranty cannot be liable for breach of that warranty if he is not a party to the resulting contract or contract. Thus, even if the collateral warranty only took effect when the deposit contract, the sale contract or the hire purchase agreement were entered into[38], Mr Mann was and remained liable under the warranty. On this basis, it mattered not whether or not Mrs Brewer knew that the deposit or sale contracts were being made by SMRL since, if Mr Mann had given the warranty in a personal capacity, he remained liable for its breach even if it had always been known by, or become known to, Mrs Brewer that the contracts she was induced to enter into would not be with him.
- Mr Mann's liability as an agent for an undisclosed principal. I am satisfied that Mrs Brewer was not aware, at the time of Mr Mann's warranty that SMRL was the intended contracting party nor that Mr Mann was providing the warranty on its behalf. It is trite law that, in those circumstances, Mr Mann, as SMRL's agent, would be personally liable for any contractual liability incurred by him on its behalf during the period when the agency relationship remained undisclosed. Furthermore, if SMRL accepted and adopted the warranty as one that was made on its behalf, it does not follow that Mr Mann could not additionally remain liable since he would then have provided the warranty as both SMRL's agent and on his own behalf. On the facts of this case, it is clear that Mr Mann was, and was objectively to be taken to have been, providing the warranty on his own behalf. Thus, it would appear that both he remained liable for any breach of the warranty even though SMRL has now adopted the warranty or had always authorised him to make such a warranty on its behalf.
- Disclosure of SMRL's role as principal. Assuming Mr Mann was providing the warranty as the agent of SMRL, there are several reasons why Mr Mann was and remained personally liable on the undisclosed principal basis:
- Conclusion – who is liable for any breach of the collateral contractual warranty. Mr Mann is personally liable to Mrs Brewer and, in addition, is liable to her as the agent of SMRL who was his undisclosed principal. Furthermore, SMRL is separately and severally liable for any breach of warranty. SMRL's additional liability for any such breach was established at the trial since its counsel, Mr Ticciati, accepted on its behalf that it would be liable to Mrs Brewer if and to the extent that any breach of warranty was established.
- Mrs Brewer's reliance on the warranty. Mrs Brewer stated in her evidence that she decided to buy the car largely because it was a Speed Six with a Speed Six engine and that she relied on what Mr Mann had stated to her at the meeting on 20 May 2007 in concluding that the car was both a Speed Six and had a Speed Six engine.
- I fully accept Mrs Brewer's evidence. In doing so, I reject Mr Ticciati's submissions that it was clear that Mrs Brewer had not relied on the warranty that the engine was a 1930 Speed Six engine. Mrs Brewer clearly wanted to buy the car because it contained, and was being held out as containing, such an engine and I also accept her evidence that she would not have bought the car had she known that the engine was a reconstructed 1927 Standard 6½-litre engine. I accept that Mrs Brewer was also concerned to ensure that the car was not over-valued but I accept her evidence that she would not have bought the car had she known of the provenance of the engine even if the car was being sold at its correct value. Mrs Brewer demonstrated her reliance on Mr Mann's statement that the car was a Speed Six with a Speed Six engine by informing Mr Hardiman that Mr Mann's invoice and the agreement should both describe the car as a 1930 Speed Six which she understood meant a Speed Six with a Speed Six engine. She wanted W.O.'s finest and she clearly relied on Mr Mann's warranty in buying what Mr Mann had erroneously led her to understand was W.O.'s finest.
- Contracts. The sale of the car was in fact undertaken by four separate but inter-related contracts. These were:
- Deposit contract. It was contended on behalf of SMRL and Mr Mann that there was no deposit contract and that the deposit had been demanded from Mrs Brewer by SMRL as the agent of Fortis and paid directly to SMRL on its behalf as part of the purchase price for the car that it was paying SMRL. However, the precise chronology was as follows:
- On the basis of that chronology, it is clear that Mrs Brewer paid the deposit to SMRL under a separate contract that was initially made on 30 May 2007 and then varied on 6 June 2007. Its varied terms were that she was to provide £35,000 of the purchase price of £425,000 directly to SMRL and that SMRL was only to be contractually required to provide £390,000 of the purchase price. It is possible to argue that this sum was paid by Mrs Brewer as agent for Fortis but, if such an agency arose, it was separate from and additional to the direct deposit contract entered into between Mrs Brewer and SMRL to pay the deposit directly to SMRL.
- Contractual Description. The question that arises is whether there was a contractual description of the car in each of these contracts and, if so, what the terms and meaning of that description were.
- The deposit contract between SMRL and Mrs Brewer. The goods that were the subject of the deposit contract between SMRL and Mrs Brewer were described as a "Bentley Motor Car" with the following details:
- Mr Hardiman, on Mrs Brewer's behalf, had asked Mr Mann to issue the invoice for the deposit with the description of the car as being a "1930 Bentley Speed Six Car". However, the invoice that Mr Mann issued described the car as a "Bentley Motor Car", thereby reference to "1930" and "Speed Six" and adding the word "Motor". Mr Mann initially explained that he issued the invoice in this way because that is always how he described things in his invoices. However, his sales invoice relating to the sale of the car following his repurchase of it from Fortis that was dated 5 November 2009 referred to the car as a "Bentley Speed Six". His explanation for the use of that wording was that the customer had asked for it on that occasion. Neither explanation is credible. However, both explanations taken together identify Mr Mann's intentions when drafting Mrs Brewer's invoice. These can be seen to be that he intended to contract with Mrs Brewer to be on the basis that the description "Bentley Motor Car" had the same meaning as the description "1930 Bentley Speed Six Car" asked for by Mr Hardiman. This wording had been given to him by Mrs Brewer and she had taken that wording from Mr Mann's advertising material and from the contractual warranty that Mr Mann had previously provided to her, namely that the car's engine was a Speed Six engine.
- The description in the invoice issued to Mrs Brewer under the deposit contract was clearly intended to be subject to the contractual warranty made by Mr Mann. This warranty had the meaning and effect that the Bentley Motor Car in question was a Speed Six with a Speed Six engine. Therefore, the description contained in this deposit contract must be subject to, read together with and have the same meaning as that contractual warranty.
- Thus, the description, in context, was intended to mean, and did mean, a "1930 Bentley Speed Six with a Speed Six engine".
- The contract of sale between SMRL and Fortis. This described the car as a "Bentley Motor Car". This description was provided by Mr Mann and he and Mrs Brewer clearly intended this description to have the same meaning as the description in the related deposit contract entered into by SMRL with Mrs Brewer, given their close connection.
- The hire purchase agreement. This was filled in by Mr Hardiman using the description of the car as a "1930 Bentley Speed Six Car" that had originated from Mr Mann's advertising material and contractual warranty and which he had been provided with by Mrs Brewer. The agreement was signed by Mrs Brewer on 6 June 2007, sent off by Mr Hardiman to Fortis and signed by Fortis on or before 3 July 2007[43]. All parties clearly intended that the same car was being described in all three related contracts.
- The sale of the car and the passing of property in the car from Mr James to SMRL. The description of the car was a "Bentley Motor Car" with the same registration, chassis and engine numbers as had been set out in the documentation of the other contracts. This contract was entered into on 8 June 2007 when Mr Mann sent Mr James SMRL's invoice for the car which stated that the purchase price was £325,000.
- Contractual description. The classic test for determining whether a description of goods being sold is a contractual description creating an obligation on the seller to ensure that the goods comply with that description is set out in the speech of Lord Wright in Grant v Australian Knitting Mills Ltd [44]:
- Conclusion – contractual description. The description "Bentley Motor Car" in the deposit contract between SMRL and Mrs Brewer and "1930 Bentley Speed Six Car" in the hire purchase agreement between Fortis and Mrs Brewer are contractual descriptions which have the meaning: a "1930 Bentley Speed Six with a Speed Six engine". Since this judgment is not concerned with any breach by SMRL of the sale contract with Fortis, this finding does not extend to that contract.
- As recorded already[45], it was accepted by SMRL that it would be liable to Mrs Brewer if, as I have found, Mr Mann made an enforceable collateral warranty to the effect that the car had a 1930 Speed Six engine. That concession must necessarily extend to Mr Mann's liability since I have found that he is also personally contractually liable for any breach of this warranty.
- Introduction. The deposit contract described the car as a "Bentley motor car" which I have already determined was intended by the parties, or should be construed in its factual matrix, as meaning a "1930 Bentley Speed Six with a Speed Six engine". Clearly, if the words "Bentley motor car" mean in context "1930 Bentley Speed Six with a Speed Six engine, that term was broken. However, I will consider whether the term was still broken if the contractual wording bore the more limited meaning of "1930 Bentley Speed Six".
- Mr Mann and SMRL's case. Mr Mann, supported by Mr Fenn's evidence about the BDC's system of classifying vintage Bentleys, insisted that a "Speed Six" Bentley means, and means nothing more than, that the car in question incorporates into its chassis that part of the chassis containing the original number that had been fixed into or onto that part of a Speed Six chassis that had left the Cricklewood works in 1929 or 1930. On that basis, there was no breach of contract in describing the car as a Bentley Speed Six.
- Discussion. The only reason why Mr Mann persisted in describing the car as a 1930 Speed Six was because he, supported by Mr Fenn, insisted that once a chassis had been incorporated into the car with a Speed Six chassis number, any car thereafter that incorporated the same chassis number was to be regarded as a Speed Six car. Mr Fenn's support for Mr Mann's position was significantly eroded when he accepted in cross-examination that this car's description should have been a "Speed Six with a 1927 Standard engine modified to Speed Six specification". This approach to describing the car was said to have been confirmed by the fact that the DVLA had been prepared to re-register the car with its 1930 Speed Six registration number and the BDC and other European vintage car clubs would classify the car as a Speed Six car.
- The difficulty with that approach is that it means that the car, although reconstructed with an engine which started life as a Standard 6½-litre engine and with a chassis which now contains little more than the original chassis number from the original car and with no continuous history, could still be correctly described as 'a Speed Six car'.
- It is, of course, for the BDC, other vintage car clubs and the DVLA to decide how they will categorise a vintage car for their own particular purposes. Those descriptions or categorisations are not, however, definitive in relation to the meaning of a car's contractual description, particularly where the contract is subject to the Sale of Goods (Implied Terms) Act. Thus, although Mr Fenn's repeated insistence that the car was a Speed Six might be correct if the description of the car is being considered purely from the standpoint of the BDC, it is wholly incorrect for the purposes of a contractual description or for a bailment by description since the necessary contractual description must describe the car factually and accurately in a way that encapsulates the car that the seller is purporting to sell and the buyer has agreed to buy. As a result, a Speed Six's contractual description will usually need to be very different from and much more detailed than the generic description promoted by Mr Mann and Mr Fenn in reliance on the BDC method of categorising vintage Bentleys.
- The BDC's limited definition of a Speed Six, or of any other vintage Bentley type, that was championed by Mr Fenn does not include any reference to the car's continuous history. This means, in the context of the vintage Bentley trade, an authentic documentary record of the car throughout its history since 1930. These documents should identify the registered owner of the car and its use throughout that history and should also identify and authenticate the parts introduced into the car since it left the Cricklewood works. I would add that the car's continuous history also entails the production of a certified or authenticated test certificate or test results which proves that the car satisfies any stated and accepted applicable specification following any significant change to either its engine or chassis.
- The BDC's limited definition without reference to continuous history clearly provides a satisfactory method of classifying a car as being a particular vintage Bentley type for BDC's purposes. These purposes are to define who may be a member of the BDC and which car may enter any particular race, competition or rally that it sponsors. The method of classification used by the BDC was not formally established in evidence but I am satisfied that the broad and somewhat rudimentary system of classification used by Mr Fenn with its reference to chassis number without any reference to continuous documentary history is used within the BDC and is workable for its limited purposes of defining who may be a member of the BDC and what car may enter one of its sponsored races or competitions.
- However, the BDC's method of describing a Speed Six car is not a sufficient method of describing the Speed Six car type for contractual purposes of for the purposes of a sale or bailment by description. This is because the Speed Six car type has a limited membership of no more than 181 cars but all, or the vast majority of those cars have now been substantially changed and are no longer capable of being accurately described for contractual purposes, without qualification and elaboration, as a 1930 Speed Six car.
- All cars that started life as a Speed Six car are unique and are approximately eighty years old. Each surviving Speed Six has changed significantly over the years, some beyond recognition, from the car that left the Cricklewood works on first delivery. The Speed Six characteristics or qualities that any one potential buyer or Speed Six enthusiast are looking for in any one of these unique cars include some of the following intangible features of the car: its performance during its active racing lifetime; its being the product of the design, engineering and mechanical skills of W.O. and his unique team of assistants in the vital production years between 1929 and 1930; its having been produced in the Cricklewood workshop; its current performing capability; its present standard of upkeep and appearance; its current value as an historic and unique vintage car and its future potential for keeping or increasing its current value as a collector's item in a changing and unpredictable market.
- Thus, it is a necessary, but not a sufficient, characteristic of a car that is described as a 1930 Speed Six that its original chassis number is to be found on part of its original chassis within the car.
- Breach of the deposit contract – conclusion. If the deposit contract description of the car meant in context that the car was a 1930 Speed Six with a Speed Six engine, SMRL was in breach of the deposit contract. It was still in breach of the deposit contract if the description meant that the car was a 1930 Speed Six Bentley since the words "Speed Six" without qualification meant that the car has a Speed Six engine. Although the invoice referred to the car in even more limited terms as a Bentley motor car, by necessary implication that terminology was referring in this deposit contract to a 1930 Speed Six with a Speed Six engine.
- Introduction. One of the principal difficulties in this case has been to identify how, for the purposes of section 9 of the Supply of Goods (Implied Terms) Act 1973 the car should have been described. This section provides, in the same way as is implied into a sale of goods contract, that where goods under a hire-purchase agreement are bailed by description, there is an implied term that the goods will correspond with that description. The car was bailed by description, being described by the phrase "1930 Bentley Speed Six Car". It was also correspondingly subject to a contractual description in the deposit contract.
- Speed Sixes sold by description. The purpose of the statutory requirement that goods sold or bailed by to a consumer must confirm to their description is to enable the consumer to know fully and precisely what is being bought, bailed or hired. A contracting party or hirer is at risk of selling goods in breach of the express term providing a description or the implied term requiring goods to conform to their description if that description is a general one which embraces a wide variety of different features not all of which are always present in goods of that description. This is because that generic description might reasonably extend to features that are not present in a particular item but which are nonetheless features required by the buyer and which the buyer had reasonably understood to be present in the goods in question.
- Thus, to take this case, the general description "1930 Speed Six" was one which was capable of covering any car with an authentic Speed Six chassis whatever the provenance of the engine. In this case, the description was intended by the seller to describe a car which started life with a Speed Six but which had subsequently been provided with a replacement engine which had not started its life as a Speed Six engine. However, Mrs Brewer communicated to Mr Mann prior to the sale of the car that she wanted a car whose engine was a 1930 Speed Six engine that was directly associated with the Speed Six golden age and with W.O.'s racing, speed, engineering and mechanical skills. Mrs Brewer's evidence, which I have accepted, was that she made it clear to Mr Mann that she wanted a 1930 Speed Six engine for investment, historical and emotional reasons. It was therefore an integral part of the description that she relied on in entering into the deposit contract and hire purchase agreement that the car's engine was a Speed Six engine, albeit a replacement Speed Six engine, that had been installed into the car in 1930 by the Cricklewood works subsequent to its first delivery earlier that year and which had thereafter retained the essential features of that original engine despite a rebuilding of the car in 1979 – 1980 with the necessitous use of some new parts.
- Given, Mrs Brewer's wishes that she had communicated to both Mr Mann and through him to SMRL, the warranty and the contract description that were provided by Mr Mann could only have been complied with if the engine was an original Speed Six. For SMRL or Fortis to avoid liability, the relevant contractual description would have had to have referred expressly to the replacement engine-type actually in the car and would also have had to have described the physical changes that had occurred to that engine and its current performance capabilities by reference to a defined specification and the tests that had been carried out to prove those capabilities.
- Conclusion – sale by description. Thus, the description for the purposes of the express and implied terms in the deposit contract and the hire purchase agreement is to be considered to be and to mean: a "1930 Bentley Speed Six with a Speed Six engine". By necessary implication, that description in the context of these contracts was also stating that the car's chassis was 'a 1930 Speed Six chassis' and that the car had a continuous history. I have already found that that phrase had the same meaning as, or incorporated, the phrase warranted by Mr Mann, namely that the car's engine was a "Speed Six engine". There was a breach of the various implied terms that the car conformed to this description in that no part of the extended description was complied with. Since this judgment is not concerned with any breach by SMRL of the sale contract with Fortis, this finding does not extend to that contract.
- This case demonstrates why the continuous history documentation of a Speed Six is so important. In this case, the car was subject, as is now known, to two significant features that made it essential for the description to be much more detailed than that the car was a Speed Six car. These features were that the engine was not a Speed Six engine and the only surviving part of the original car was a small section of the chassis. However, there was a lack of a continuous history for the years between 1930 and 1981 even though, during that period, the car had been completely reconstructed. Thus, there was no way that the car could be authenticated as a Speed Six or, indeed as a vintage Bentley. In consequence, it was particularly important that the contractual description accurately described all the significant changes that had occurred during the car's lifetime and that the seller found some way in which to authenticate those changes or stated in the description that they were not capable of being supported by a continuous history. The need for full documentary evidence of the relevant history of a Speed Six and of this car that had started as a Speed Six and had subsequently been significantly reconstructed is highlighted by the terms of the valuation appraisal obtained by Fortis[46]. Mr Fenn accepted in cross-examination that the car did not have a continuous history.
- Fortis's liability – bailment by description. It was contended on behalf of Fortis by its counsel Mr Brant that the bailment of the car to Mrs Brewer was not a bailment by description at all so that any non-conformity with the words "1930 Speed Six Bentley Car" was not actionable. This was because Mrs Brewer had provided this description to Fortis who had never had possession of the car. Counsel contended that these facts evidenced the underlying reality of the transaction which was that Mrs Brewer did not rely on this description to enter into the hire purchase agreement.
- It is factually incorrect to assert that Mrs Brewer provided the description of the car to Fortis. In fact, the description was derived from Mr Mann's advertising material and contractual warranty and, in reliance on those statements and warranties, was provided by Mrs Brewer to Mr Hardiman who inserted it into the draft hire purchase agreement which he asked Mrs Brewer to sign before forwarding the draft to Fortis for its signature. Mrs Brewer had therefore relied on that description to enter into the hire purchase agreement which had been based on Mr Mann's description of the car.
- Moreover, Fortis agreed the terms of the proposed agreement before signing it and, in doing so, relied on Mr Fenn's informal valuation provided to Mr Mann dated 24 May 2007 that Mr Mann had forwarded to Fortis. This valuation described the car as a "1930 Bentley Speed Six" and valued it at £550,000. Of particular significance is the fact that Fortis also relied on an appraisal of the car that it commissioned which described the car as a 1930 Bentley Speed Six .
- Fortis commissioned this desktop appraisal advice from SHM Smith Hodgkinson whose report, which was sent to Fortis and was not seen by either Mrs Brewer or Mr Mann, was dated 31 May 2007. This appraisal was based on details provided to Fortis by Mr Mann and Mrs Brewer and it involved a research of the likely value of similar vehicles based upon the information provided. Included in the information received by Fortis was the information that that the car was described a "1930 Bentley Speed Six" and that Mr Mann had offered the car for sale on the website as being a "Speed Six Bentley [which] was restored by Stanley Mann in our old workshop in 1980". A value was not provided by the appraiser because the report advised that a full inspection would have to be carried out before a valuation could be provided. However, Fortis then agreed and entered into the proposed hire purchase agreement without commissioning a further inspection or valuation because it considered that the information about the car disclosed by the appraisal showed that the value of the car would provide adequate security for the loan of £430,000 less the deposit that Mrs Brewer was seeking.
- The appraisal, although not based on an inspection, was clearly based on the assumption that the car had a 1930 Speed Six engine, a continuous history and other significant Speed Six parts since it contained these statements:
- Mr Brant also contended that it was not credible that Mrs Brewer had relied on the description "Bentley Speed Six car" when deciding to enter into the hire purchase agreement. However, as Mr Brant accepted, it is rare for a hire purchase agreement not to be subject to a contractual description of the subject-matter of the agreement. This is because it is necessary to describe goods that are being hired or leased. Thus, since hire purchase agreements usually include a contractual description of the goods being bailed or hired which will often have been provided by or on behalf of the hirer prior to the underlying sale to the finance company, it is clearly not fatal to the creation of a contractual description in a bailment contract that the description was provided by or on behalf of Mrs Brewer as bailee, even if she had provided the description. In any case, as I have already found, Fortis approved the description since it relied on the appraisal of the car that it had commissioned in deciding whether or not to finance the purchase of the car which referred to the car as a 1930 Speed Six and to its characteristics which are only consistent with the car having a Speed Six engine. I therefore reject Mr Brant's submission.
- Clause 5.1 – prevention or exclusion of liability. Fortis contended that the term of the agreement that gives rise to the contractual description relied on by Mrs Brewer does not take effect as a contractual description as a result of clause 5.1 of the agreement. This reads as follows:
- Mr Brant contended that this provision had the effect that the contractual description of the car as a "1930 Bentley Speed Six Car" was a "condition, warranty, stipulation or representation whatsoever of any kind" that had been given by the Owner, its servants or agents in relation to the goods. Thus, Fortis had not given that condition, warranty, stipulation or representation and could not be liable for the misdescription it contained.
- However, contrary to Mr Brant's submission, clause 5.1 of the hire purchase agreement does not exclude the hire being by description. This is because the description in this case is not provided by Fortis as a contractual condition, warranty, stipulation or representation. The description is provided as an express term of the contract which Fortis approved. Thus, clause 5.1 does not extend to this provision and is not applicable to this term.
- The only way that clause 5.1 could be applicable would be as a means of excluding Fortis's liability arising from its breach of the implied term requiring the car being bailed to conform with the express contractual description of the car. However, if clause 5.1 is relied on in this way so as to exclude liability for a breach of this particular implied term, that exclusion would itself be excluded by section 6(2) of the Unfair Contracts Terms Act 1977. That section, in consumer contracts such as this hire purchase agreement, prohibits the exclusion or restriction of liability that has arisen from implied terms such as the term requiring the car to conform to its description.
- Thus, clause 5.1 does not prevent the contractual description taking effect nor does it exclude liability arising from a breach of an implied term requiring the car to conform to that contractual description.
- Mr Mann and SMRL's liability - conclusion. There can be no doubt, therefore, that Mr Mann in relation to the warranty he gave to Mrs Brewer, that SMRL, in relation to both the warranty it gave or that was given on its behalf to Mrs Brewer, that SMRL in relation to the deposit contract and Fortis, in relation to its hire purchase and bailment obligations owed to Mrs Brewer were all in breach of their respective contracts. The engine was not a Speed Six engine and the original 1930 Speed Six car was so altered that the only surviving piece of the car was less than one third of the original chassis plus the original chassis number and the car had no continuous history. Thus, the car was no longer capable of being accurately described as a "1930 Bentley Speed Six Car".
- The reasons why the car could no longer be described in this way may be summarised as follows:
- The only accurate description that the car could have been provided with would have been one that explained in detail all four of these changed aspects of the car. Alternatively, these aspects would have had to have been listed in a schedule and the description would have had to have referred to the contents of that schedule.
- Mr Mann was in breach of his contractual warranty provided to Mrs Brewer that the car was a Speed Six and that the engine was a Speed Six engine both personally and as the agent of an undisclosed principal; SMRL was in breach of its contracts with both Mrs Brewer and Fortis that the car was a 1930 Speed Six and Fortis was in breach of its bailment by description contained within the hire purchase agreement that the car was a 1930 Speed Six.
- Hire purchase agreement bailment by description - Conclusion. Mrs Brewer relied on a description within the hire purchase agreement to enter into that agreement. She had not provided that description, it had been provided to Fortis by the seller of the car to Fortis when Mr Mann's description of the car was adopted by Mr Hardiman when he filled out Fortis's contractual form for signature by Mrs Brewer prior to its being forwarded to Fortis who had then approved and signed it. In those circumstances, this was a bailment by description. Thus, Mrs Brewer may rely on any breach of section 9 of the Supply of Goods (Implied Terms) Act 1973 that occurred in consequence of that description being erroneous. That liability is not excluded by Section 5.1 of the hire purchase agreement.
- Factual background. Mrs Brewer has potentially three remedies against Fortis arising from its breach of the implied term that the car should comply with its description. These are the right to reject the car, the right to rescind the hire purchase agreement and the right to damages.
- These remedies must be considered against the relevant contractual background. This is that Mrs Brewer had taken possession of the car on 7 June 2007. On 12 February 2008, at a time when she was not in arrears, she asked Mr Hardiman to obtain a settlement figure from Fortis and he ascertained that this was £385,843.23. She had subsequently fallen into arrears with her hire purchase payments without Fortis having threatened to retake the car or otherwise sought recovery of her arrears. On 28 July 2008, Fortis wrote to Mrs Brewer a letter headed as a Final Notice which warned her that she was in default in not paying off her arrears and that Fortis would start the recovery process of the car if she did not clear off the arrears within seven days. At that time she was two months in arrears and these stood at £7,802.00. A further payment of £3,901 would fall due on 6 August 2008. Mrs Brewer had the resources to pay off these arrears as is shown by her net personal wealth statement that she had provided to Fortis on 3 June 2007 which placed her net personal wealth at that time at £4.7m. However, she was concerned to reduce the overall level of her financial commitments following the collapse of the world's financial markets in late 2007 and the consequent recession. She therefore considered it prudent to have the car valued so as to see what sum it would fetch at auction if it was placed on the market with a view to offering the car back to Fortis for auction. On 2 August 2007, she arranged for the car to be valued by her friend Mr Gilbertson at Bonham's. That valuation revealed to her for the first time that the car did not have a 1930 Speed Six engine. She received this valuation on about 5 August 2008 and it revealed to her for the first time that the car did not have a 1930 Speed Six engine.
- Mrs Brewer immediately took legal advice and then notified Fortis of her discovery and that she wished to make a claim against Mr Mann based on what she considered to be his breach of warranty in describing the car as having a Speed Six engine. Since she had been advised that she should not make any further payments to Fortis until her claim had been accepted, so as not to prejudice her claim against Fortis for breach of the implied term that the car did not conform to its description, she therefore asked Fortis for temporary forbearance whilst she negotiated her claim with Mr Mann. At the same time, Mrs Brewer wrote to SMRL requesting it, amongst other things: "with the consent of the Lender to take the Bentley back".
- Fortis did not respond to Mrs Brewer's request. Instead, by return in a notice dated 7 August 2008, it gave her notice terminating the agreement and requiring her to return the car to Fortis, basing this notification on her arrears that had, by then, grown to £11,703.00 which the notice contended gave rise to a breach of clause 8.2.1.1 of the agreement. Following communications between Mrs Brewer and her solicitors with Fortis and its solicitors in which Fortis indicated that it stood by its termination of the agreement, Mrs Brewer served a notice dated 14 August 2008 formally rescinding the agreement for breach of the implied term of the agreement that it should conform to its description. Mrs Brewer's solicitors gave Fortis notice in a letter dated 14 August 2008 that Mrs Brewer was rescinding the agreement on account of Fortis's breach of contract in bailing the car to her in breach of the implied term that it should comply with its description. Mrs Brewer returned the car to Fortis on 3 September 2008 after Fortis had notified her that it had arranged for its retrieval on that date. SMRL bought the car back from Fortis for £425,000 on 27 July 2009.
- Mrs Brewer's right to reject. It was contended on behalf of Fortis that Mrs Brewer had lost the right to rescind the agreement and reject the car since clause 2 of the agreement provided that she had accepted the car on its being delivered to herself. There are, however, two answers to that submission.
- The first answer to Fortis's contention that Mrs Brewer has lost the right to reject is provided by section 13(1)(b) of the Unfair Contract Terms Act 1977 which renders void any contractual provision that excludes or restricts the bailee's contractual rights such as her right to reject the car. Mrs Brewer's right to reject has been restricted by clause 2 since that clause has the effect of her being presumed to have accepted the car even when, as in this case, she had not in fact accepted it. Instead of accepting the car, which would have involved her in inspecting the car or having it inspected to satisfy herself that she was accepting the car in its proffered state, she relied on Mr Mann's contractual warranty and his written and verbal misrepresentations that the car contained a Speed Six engine that in performance satisfied the Speed Six specification. Thus, Mrs Brewer's right to reject has not been lost notwithstanding the contractual provision that she was to be presumed to have accepted the car when it was delivered to her.
- The second answer to Fortis's contention is that the right to reject cannot be lost until the hirer, in this case Mrs Brewer, has had a reasonable opportunity to ascertain the existence of the breach and has then, by word or conduct, affirmed the contract. In this case, given Mr Mann's contractual warranty that the engine was a Speed Six engine and the misrepresentations about the car and about its continuous history, it was reasonable that Mrs Brewer did not otherwise investigate the provenance of the engine and the repairs that had been undertaken to the car to satisfy herself that the car corresponded to its description. The first reasonable opportunity she had to discover that there was a misdescription of the car occurred when she received Bonham's valuation report dated 5 August 2008 which drew attention to the fact that the engine was not a Speed Six engine and was instead a 1927 Standard 6½-litre engine. Thus, Mrs Brewer had not lost the right to reject the car or to rescind the agreement when Fortis purported to determine the agreement and retake possession of the car.
- Fortis also contended that Mrs Brewer did not have the right to reject the car because she had purported to exercise that right on the grounds of misdescription when she was in fact attempting to get out of the hire purchase agreement on financial grounds since she was in arrears with her payments and was unable to afford to carry on with the hire purchase of the car.
- I reject this submission on the facts of this case. Although Mrs Brewer had fallen behind with her payments, she had the funds available to pay the arrears and was intending to pay them. At that point, she discovered that there had been a serious misdescription of the car with a consequent breach of contract by Fortis. Instead of paying off the arrears, Mrs Brewer, on legal advice, notified Fortis of its breach of the implied term that the car should conform to its description and asked Fortis to suspend its entitlement to payment for a short period whilst she attempted to negotiate a settlement with Mr Mann and SMRL. Fortis impliedly rejected that request by immediately terminating the agreement. Fortis's clear and obvious reason for serving notice of termination was as a response to Mrs Brewer's notification of its breach of contract and in an attempt to forestall the likely claim against it that had just been notified of by Mrs Brewer. At the date on which Fortis gave notice of termination, Mrs Brewer was unable, on the basis of the legal advice she had received, to pay off the arrears since that act would have amounted to a waiver of her right to reject the car, to rescind the agreement and to claim damages from Fortis or SMRL on the grounds of misdescription. Thus, Mrs Brewer had not repudiated the agreement on account of non-payment and Fortis terminated the agreement for tactical reasons in an attempt to avoid a claim arising from its alleged breach of contract arising from the apparent non-conformity of the car to its contractual description.
- Moreover, the submission that Mrs Brewer had lost the right to reject is irrelevant to her current claim. This is because she is claiming damages from Fortis and is not claiming the right to reject the car nor to rescind the agreement. This is because Fortis retook the car and Mr Mann and SMRL then agreed with Fortis that SMRL would repurchase it from Fortis and have now done so. In consequence, Mrs Brewer is confining her claim to one for damages for breach of warranty and of the implied term that the car should conform to its contractual description. These damages are her outstanding and unrecovered loss resulting from the misdescription following the repurchase of the car by SMRL.
- Conclusion – right to reject. Mrs Brewer had not accepted the car and if clause 2 of the agreement has the effect of her having to be presumed to have accepted it, that presumption has no effect as a result of section 13 of UCTA. She remained entitled to reject the car at the time it was retaken and she sought to reject it on the grounds of its non conformity with its contractual description. This was not a tactical move on her part that was intended to allow her to avoid her financial difficulties. Instead, Fortis's purported termination on the grounds of Mrs Brewer's arrears was itself a tactical move which had been taken in an attempt to forestall Mrs Brewer's notified claim against it based on that misdescription. Overall, however, although Mrs Brewer still retained the right to reject the car, her claim is not dependent on that right but is one that is confined to a claim for damages.
- Mrs Brewer claims damages arising from the breach of Mr Mann's contractual warranty from both Mr Mann and from SMRL and, in the case of SMRL, she also claims in the alternative damages for breach of the implied term that the car should conform to its description. Each of these claims is for the recovery of her lost deposit, for the instalments already paid and for an indemnity against any outstanding liability that she might have to Fortis. These losses are ones that flow naturally from the breach of both the warranty and the implied condition and are clearly foreseeable. They therefore all fall and within the first limb of the recoverability rules provided for by Hadley v Baxendale[48]. Mrs Brewer may claim these damages since they represent her direct loss flowing naturally from the breach of both the warranty and the implied condition of her sale contract with SMRL. This loss is one that arises directly from her having entered into the hire purchase agreement and the contract of sale with SMRL since, but for the breach, she would not have entered into either contract and would not have expended anything on the car.
- Mrs Brewer's claim is for so-called reliance damages, being the losses incurred by an innocent party who has entered into a contract which has proved to be futile because, in reliance on an erroneous contractual warranty, that contract was substantially different from the contract that had been warranted. Mr Mann's warranty that the engine was a Speed Six engine and his description of the car as a 1930 Speed Six car related to a car which was significantly different car to the car that was delivered to Mrs Brewer.
- Mrs Brewer's claim is similar to the claim which was held to be recoverable in Yeoman Credit Ltd v Odgers[49] with these words:
- Conclusion – Mrs Brewer's claims for damages. Mrs Brewer is entitled to both heads of damages as claimed by her and is also entitled to an indemnity from both Mr Mann and SMRL against any outstanding liability she might have to Fortis.
- Fortis claims the outstanding arrears that had accrued before it purported to terminate the agreement and also damages to compensate it for the non-recovery of the hire that would have been recovered had the agreement not been terminated. The claim for arrears is a contractual claim for sums that had accrued due under the contract. The claim for future losses is claimed in this way:
- Clauses 8.2 and 9.4 of the agreement read as follows:
- Mrs Brewer's response, which I accept and apply, successfully refutes Fortis's counterclaim on the following five cumulative grounds:
- Conclusion – Fortis's counterclaim. Fortis has no entitlement to counterclaim the arrears of hire outstanding at the date it purported to terminate the agreement nor to damages for future loss of hire recovery.
- Mrs Brewer is entitled to repayment by Fortis of all hire payments that she has previously paid since she was entitled to rescind the contract and such payments are recoverable as reliance damages in accordance with the principle identified in Yeoman Credit Ltd[52].
- The final issue that I must decide is whether Mrs Brewer has to give credit for the use of the car in the period between her taking delivery of it and the date of the purported termination of the hire purchase agreement by Fortis. All three defendants claim that she should provide a credit for her use and enjoyment of the car as an off-set against the damages she would otherwise recover from each of them. These are restitutionary claims that are based on her enjoyment and use of the car in that period. They are not based on any diminution in the value of the car in the period that she possessed it or on any damage or wear and tear to the car that occurred in that period.
- Before considering these claims, it is first necessary to consider again the basis of Mrs Brewer's claim against each defendant against which these claims are sought to be off-set. Her claims are for damages for breach of warranty in circumstances in which she was entitled to rescind the two contracts and to reject the car. There is no basis for setting up a restitutionary claim for compensation for her use and enjoyment of the car as an off-set to her claims for damages.
- There might have been a basis for a claim for wear and tear, damage to the car during its use or for a share in any tangible benefit obtained from its use but no such claim has been pleaded or proved. Furthermore, given the limited use made of the car by Mrs Brewer whilst it was in her possession and its inherent value as a reconstructed vintage Speed Six, it did not lose any value in that period. Any payment for use and enjoyment that should be made by Mrs Brewer is provided for by the payment provisions of the agreement but those have been repaid to Mrs Brewer due to Fortis's and SMRL's respective breaches. Moreover, Mrs Brewer is entitled to full recovery of her outlay under the hire purchase and sale contracts from Mr Mann as damages for breach of warranty and from Fortis and SMRL for breach of the obligation to supply a car that conformed to its description.
- Further, in awarding Mrs Brewer interest, I have determined that the interest payable on the damages she has recovered shall not start to run from the date she took possession of the car and made the various payments that she made or from the date that she rescinded the agreement but should instead run from the date that Fortis terminated the agreement. I have postponed the date from which interest should be paid because, in the period in question, Mrs Brewer had the use and enjoyment of the car.
- Conclusion – restitutionary counterclaims. It follows that no restitutionary claim arises and Mrs Brewer need not provide any off-set for her use and enjoyment of the car or on any other basis.
- Damages – Breach of warranty - Mr Mann and SMRL. Mrs Brewer's claim is for £35,000, being the deposit, and £59,555, being the instalments that she has paid out. It was contended on behalf of Mr Mann and SMRL that each of them should only be liable for nominal damages because, if she recovers her damages from Fortis, she has no further loss to recover from either of them. The short answer to that is that Mrs Brewer has not yet recovered these damages from Fortis and, indeed, will not do so unless and until these are paid by them. If, prior to Mrs Brewer being paid by Mr Mann or SMRL these damages, Fortis has paid her them, she will be unable to execute judgment against either of them and neither of them will have any further liability to pay this sum.
- Mrs Brewer is also entitled to an indemnity from each of these defendants to the effect that each of them are liable to indemnify her against any outstanding liability she may have to Fortis arising out of the hire purchase agreement.
- Damages – Breach of deposit contract – Mr Mann and SMRL. The same consequence and conclusion arises as with the warranty claim.
- Damages – Breach of the hire purchase agreement – Fortis. Mrs Brewer's claim is the same against Fortis as it is against the other two defendants. It was contended on behalf of Fortis that judgment should be for £59,555 because it had not paid the deposit. However, the hire purchase agreement defines the price as being £430,000 so as to include the deposit and, in any event, the loss naturally flowing from Fortis's breach of contract includes the unreturned deposit.
- Conclusion Mr Mann, Fortis and SMRL are jointly and severally liable in the sum of £94,555.
- Fortis's counterclaim. Fortis's substantial but unquantified counterclaim is dismissed.
- Interest – Start date. Mrs Brewer claims interest from the respective dates that she made the various payments that total £94,555. In principle, she is entitled to claim interest on that basis. However, she had the use and enjoyment of the car from 7 June 2007 until 7 August 2008 when Fortis served notice of termination. I have found that the defendants are not entitled to a reduction in their damages on account of that use and enjoyment, largely due to a failure to plead the appropriate basis of claim. In my discretion, therefore, I will not award any interest for that period since it is not appropriate for Mrs Brewer to recover interest and not pay for the use and enjoyment of the car over the same period. Thus, interest on all parts of her recovery will run from 7 August 2008.
- Interest – rate. Ordinarily, interest would be calculated at 1% or 2% above base rate. This established convention for the appropriate rate, which is in the discretion of the court, has applied for many years without question since base rate has been at rates in excess of 4%. However, in the current unique times, base rate is at 0.5% and, since December 2008, it has been at 3% or less. However, Mrs Brewer has been out of her money and has lost the use of it in that period. She has not provided evidence that she was having to pay borrowing interest on those sums, no doubt because she was not incurring any such interest liabilities. Moreover, the Judgment rate payable once a judgment has been entered on unpaid judgment debts remains at 8%. In those circumstances, I have decided that Mrs Brewer should receive interest at 3% from 7 August 2008.
- Costs order. Mrs Brewer claims her costs of the entire action from each defendant. In principle, she is entitled to all her costs, assessed on the standard basis, from Mr Mann and Fortis and all her costs, assessed on the standard basis, from SRML from the date of joinder, being 22 February 2010. Each defendant should be severally liable for the costs in this way since the issues were so inter-twined, it is not fair or appropriate that the defendants should bear a proportion of the costs. Since SRML was only joined on 22 February 2010 however, it should not be liable for any costs prior to that date. How the defendants apportion costs between themselves is for them, no defendant asked me to make such an apportionment amongst themselves.
- Costs reduction application. Fortis sought a percentage reduction in the costs to be paid. The reason for this was because Mrs Brewer was invited to join SMRL at an early stage of the proceedings and declined to do so. However, the basis of this invitation was that SMRL should be substituted for Mr Mann. In any event, the only reason why it is suggested that Mrs Brewer should be deprived of some of her costs is that, without the joinder of SMRL, meaningful discussions to settle could not take place. No explanation is given as to why that was so and, if Fortis felt hampered in settling the action, it could have joined SMRL itself to claim damages, an indemnity or a contribution in the way it now seeks from SMRL. There is no reason to reduce costs on this basis.
- All three defendants sought a 15% costs reduction for reasons advanced by Mr Mann and SMRL. These were:
- It follows that there should be no percentage reduction.
- Joinder of SMR L. SMRL must pay Mrs Brewer's assessed costs from 22 February 2010. That order takes sufficient account of the fact that SMRL was joined at a late stage in the proceedings.
- Joinder of SMRL. During the trial, I ruled that SMRL could and should be joined as a third defendant. This was because:
- Joinder of SMRL to the third party proceedings. For the same reasons as have resulted in SMRL being joined as a party, it is fair and reasonable that Fortis should be entitled to join SMRL as a third party and to plead a third party contribution or indemnity claim against it.
- SMRL and Fortis have reached agreement that the third party proceedings should be stayed until after the conclusion of any appeal proceedings or any failure to reach agreement as to how the contribution proceedings should be determined in the light of this judgment. I have therefore stayed the third party proceedings and have not made any binding findings about the liability of SMRL to indemnify Fortis or contribute to its loss.
- Principal findings. The principal findings are as follows:
- Overall conclusion. In the result, Mrs Brewer's claims succeed against each defendant, Fortis's counterclaim fails and Mrs Brewer is entitled to damages, interest and costs against each defendant and an indemnity from the first and third defendants.
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Section |
Subject-matter |
Paragraphs |
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A |
Introduction |
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The car |
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Mrs Brewer |
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Mr Brewer |
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Mr Mann and SMRL |
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Mrs Brewer's case - contractual inducement |
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SMRL's purchase of car |
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Mrs Brewer's case - breach of warranty |
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Mrs Brewer's case - contractual misdescriptions |
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Mrs Brewer's case - damages |
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Mr Mann's case - liability |
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SMRL and Fortis's cases - liability |
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Defendants? cases - damages |
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Dispute - summary |
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Contribution proceedings |
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B |
Issues, Parties and Witnesses |
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Issues |
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Parties |
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Witnesses |
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Expert evidence - Mr Sibson |
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Expert evidence - Mr Fenn |
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Expert evidence - general summary |
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Expert evidence - chassis and engine |
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Expert evidence - description of the car |
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C |
The Essential Factual Matrix |
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(1) |
Speed Six Bentleys |
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(2) |
Mr Mann's history of involvement with vintage Bentleys |
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(3) |
The car and its continuous history |
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Source materials |
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Continuous history |
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Physical and specification differences |
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Car as delivered in 1930 |
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Early history |
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Continuous history - summary |
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Chassis |
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Engine |
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The car when owned by Mr James |
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Continuous history - Mr Mann's implied representation |
95 - 96 |
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Mr Mann's test in 2009 |
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Mr James's sale |
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Valuations of the car |
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The car's lack of a continuous history |
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D |
The Relevant Contracts and Terms |
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(1) |
Background - Mr Mann and SMRL |
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(2) |
Background - Mr James's bailment and conditional sale of the car to Mr Mann |
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(3) |
Background - Mrs Brewer starts her vintage Bentley search |
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(4) |
The collateral contractual warranty |
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Prior to the meetings with Mr Mann |
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Misleading nature of the advertising material |
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Mr Brewer's meeting with Mr Mann |
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Mr and Mrs Brewer's meeting with Mr Mann |
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Discussion - general |
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Mr Mann's warranty |
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Credibility |
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Mrs Brewer's case |
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Mr Mann's case |
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Preliminary findings of fact allegedly going to credit ? Mrs Brewer |
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Preliminary findings of fact allegedly going to credit ? Mr Brewer |
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Preliminary findings of fact allegedly going to credit ? Mr Mann |
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Credibility - conclusion |
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(5) To Speed Six specification |
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?To Speed Six specification? |
135 - 138 |
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(6) Enforceability of collateral contractual warranty |
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Collateral contractual warranty |
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Legal test for a contractual warranty |
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Conclusion - collateral contractual warranty |
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(7) Mr Mann as a contracting party |
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Mr Mann's case |
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Mrs Brewer's case |
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Contracting party - discussion |
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Mr Mann's personal liability |
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Mr Mann's liability as an agent for an undisclosed principal |
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Disclosure of SMRL's role as principal |
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Conclusion - who is liable for any breach of the collateral contractual warranty |
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(8) Mrs Brewer's reliance on the collateral contractual warranty |
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Reliance |
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(9) The deposit and sale contracts and the hire purchase agreement |
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Contracts |
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Deposit contract |
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(10) Contractual descriptions |
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Contract description - introduction |
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The deposit contract between SMRL and Mrs Brewer |
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The contract of sale between SMRL and Fortis |
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The hire purchase agreement |
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The sale of the car and the passing of property in the car from Mr James to SMRL |
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Legal test for contract description |
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Conclusion - contract descriptions |
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E |
Breach of warranty, breach of the deposit contract and non-compliance with description |
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(1) Breach of collateral contractual warranty |
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(2) Breach of deposit contract |
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Introduction |
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Mr Mann and SMRL's case |
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Discussion |
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Breach of deposit contract - conclusion |
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(3) Breach of the hire purchase agreement |
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Introduction |
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Speed Sixes sold by description |
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Hire purchase agreement - conclusion |
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(4) Continuous history documentation |
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(5) Fortis agreement - whether or not a bailment by description |
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Fortis's liability - bailment by description |
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Clause 5.1 - prevention or exclusion of liability |
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(6) Overall conclusion - liability |
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General |
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Fortis's defences - conclusion |
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F |
Mrs Brewer's entitlement to reject the car and rescind the Hire Purchase Agreement |
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Factual background |
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Mrs Brewer's right to reject |
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Conclusion - right to reject |
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G |
Mrs Brewer's claims for damages and Fortis's counterclaim for damages |
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(1) |
Mrs Brewer's claim against Mr Mann and SMRL |
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Legal basis for Mrs Brewer's damages claims |
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Conclusion - Mrs Brewer's claims for damages |
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(2) |
Fortis's counterclaim against Mrs Brewer |
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Fortis's counterclaim |
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Conclusion - Fortis's counterclaim |
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(3) |
Mrs Brewer's claim against Fortis |
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(4) |
Credit for the use of the car during the period of hire |
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Restitutionary claims |
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Conclusion - restitutionary counterclaims |
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H |
Damages, Interest and Costs |
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(1) Damages |
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Damages - Breach of warranty - Mr Mann and SMRL |
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Indemnity - Breach of warranty and breach of deposit contract - Mr Mann and SMRL |
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Damages - Breach of deposit contract - Mr Mann and SMRL |
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Damages - Breach of the hire purchase agreement - Fortis |
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Conclusion - damages |
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(2) Fortis's counterclaim |
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(3) Interest |
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Interest - start date |
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Interest - rate |
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(4) Costs |
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Costs order |
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Costs reduction application |
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I |
Procedural Questions |
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Joinder SMRL |
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Joinder of SMRL to the third party proceedings |
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J |
Overall Conclusion |
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Principal findings |
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Overall conclusion |
HH Judge Anthony Thornton QC:
A. Introduction
'A reconstructed 1930 Speed Six Bentley with a 1927 Standard 6½-litre engine reconstructed to Speed Six specification and a reconstructed 1930 Speed Six chassis, the car being without a continuous documentary history'.
Thus, Mr Mann was in breach of warranty in describing the engine as being "a Speed Six engine" and SMRL and Fortis were in breach of their respective obligations to provide a "1930 Bentley Speed Six Car" (the hire purchase agreement) or a "Bentley Motor Car" (the deposit and sale contracts).
(1) How did Mr Mann describe the car's engine to Mrs Brewer, was that description accurate, did it have contractual effect and did Mrs Brewer rely on it in a way that induced the three contracts giving rise to the sale of the car?
(2) Should the car have been described as a "Bentley Motor Car" or a "1930 Speed Six Bentley Car"?
(3) What damages can Mrs Brewer recover for any proved breach of warranty or contract?
B. Issues, Parties and Witnesses
(1) The essential factual matrix;
(2) The relevant contracts and their relevant terms;
(3) Breaches of contract;
(4) Mrs Brewer's entitlement to reject the car and rescind the Hire Purchase Agreement ;
(5) Mrs Brewer's claims for damages and Fortis's counterclaim for damages; and
(6) Outstanding procedural issues.
(1) How the car and its engine should be described; and
(2) The extent to which the car's engine and chassis could be seen to comply with the BDC specification.
The two experts gave largely complimentary evidence on the issue as to how the car should be described, Mr Fenn from a historical and BDC perspective and Mr Sibson from a visual and mechanical perspective. On the issue of the extent to which the car could be seen to comply with the Speed Six specification, both could contribute from their respective inspections of the car's engine and Mr Sibson could add to that visual inspection his detailed knowledge of engine performance based on his expertise as a mechanic working on vintage cars including Speed Sixes over a fifty-year continuous working experience.
C. The essential factual matrix
(1) Speed Six Bentleys
(2) Mr Mann's history of involvement with vintage Bentleys
(3) The car and its history
| Specification | Speed Six (1930) | Standard 6½ |
| Engine | ||
| Compression ratio | 5.1 to 1 | 4.4 to 1 |
| Brake Horse Power ("BHP") | 180 | 147 |
| Chassis | ||
| Wheelbase | 11'8½ and 12'8½* | 12'1¼ and 12'7¼ |
| Overall length | 15'7" and 16'7" | 16'1"and 16'7" |
* Le Mans car wheelbase equals 11'0"
"1927 Bentley Speed Six two-seater and Dickey. Coachwork by Markham. Chassis no. DH2206. Engine no. NH2732"
That engine and engine number were the engine and number that were in the car when it was delivered to Miss Unwin in 1930. The particulars described in detail how this particular car came to be reconstructed with Miss Unwin's car's engine in this passage:
"… this stunning two-seater Speed Six … was created in 1936 by combining the chassis of a 1927 standard 12ft. wheelbase Weymann fabric saloon by Gurney Nutting, shortened to a very non-standard 10ft wheelbase, with the engine from a 1930 Speed Six saloon originally delivered to a Miss Unwin to create one man's dream of the ultimate high-speed tourer. That individual was motor dealer Reg Mead of Taplow, Buckinghamshire, who specialised in buying and selling high-quality second-hand sports cars."
Registration Number: PG6345
Chassis Number: SB2770
Original Engine Number: NH2732
Current Engine Number: WK2671
The car's registration number was de-registered at some stage prior to 1981 and was re-registered in that year after Mr Mann had satisfied the DVLC that it had the same chassis number as the car that had originally been registered with that number.
"The chassis rear … is thinner than the rest of the chassis and thinner than a chassis for a Speed Six. On a Speed Six, the chassis was of a thicker material, 3/16" (.188 thou, 4.762mm). A standard 6½ litre Bentley being 5/32" (.156" thou, 3.96mm). … The welds to the rear … have no explanation other than the rear section having [previously] been removed ... at some time from a thinner metal which may well be from a standard model. … The rear section of the chassis does not appear to be part of the original chassis as indicated by its thinner metal and the welds."
"… upgraded to Sp. 6 spec, which of course was done to a large number of cars, some by Bentley motors, some by H.M. Bentley and so forth".
The email did not state when or by whom this upgrading work had been carried out.
"TOURING 6½-litre engine, no. WR2671(sic), complete, minus water-pump, generator, self-starter, carbs.. dist. and magneto. Left engine bearer slightly damaged, can be repaired. Last used in 1949 …".
It was accepted by all parties that the engine number quoted in the offer was a misprint for WK2671 and that the offer was referring to the car's current engine.
"We've had more fun with this car than any of my 14 cars. We bought it in 1980 as a running chassis and you kindly arranged for a body to be built and fitted. The chassis was finished to a very high standard as you used it as a showroom attraction. I saw it in Motor Sport and came up to chat and managed to persuade you to finish it for me. The engine was also in very good condition with a repair to the LH mounting lug. … Very sorry to part with her but lack of time means she no longer gets the use she deserves."
D. The Relevant Contracts and Terms
(1) Background - Mr Mann and SMRL
(2) Background - Mr James' bailment and conditional sale of the car with Mr Mann
(3) Background - Mrs Brewer starts her vintage Bentley search
(4) The contractual warranty
Classic & Sports Car
The car appeared in a half-page vertical advertisement in Classic and Sports Car with three other cars under the heading "Stanley Mann Racing". The car was the top car in this column of four cars being advertised for sale. The advertisement showed a photograph of the car from the front with its number plate clearly visible. The text read:
"1930 Bentley Speed Six. Restored by Stanley Mann 1980. [A] One owner since then (well he liked her) £POA"
Stanley Mann Racing's website
The details of the car on Stanley Mann Racing's website, which made no mention of Stanley Mann Racing Ltd, read as follows:
"Registration No. PG6345
Chassis No. SB2770
Engine No. WK2871 [B]
This Speed Six Bentley was restored by Stanley Mann [C] in our old workshop in 1980.
At the time I was rebuilding this Bentley with the intention of racing her [D] but this nice friendly chap walked in and said, "No, I want one of those because I want to do rallies and continental touring and that Speed Six ticks all my boxes." [E]
So the next day we were finishing this car for him.
I think he must have liked her because he is the only owner she had in those 26 years.
Never done as concours car although even now she's very smart and has a graceful look about her.
Recommended if you want W.O.'s finest [F] and not at a break-bank price."
Printed sales literature
The first page set out the text found on Stanley Mann Racing's website. The second page contained this further information about the car being offered for sale:
"Stanley Mann Racing
Fully rebuilt some 15,000 miles ago by Stanley Mann (1979-81)
Both mechanically and bodily [G]
New correct fitted full V.D.P. Le Mans body to drawings of the 1929-30 Le Mans cars. Four seater with racing wings, fold flat screens and Le Mans tank.
Engine rebuilt at this time [H] and has proved very reliable still not showing any signs of heating problems and constant 45 psi oil pressure all perfect. [I]
Rebuild including new radiator core, full remetalled engine [J], new bearings all round (engine, rear axle, gearbox and axles)
Trimmed in best materials and still in excellent condition
All brakes functioning well and with a rear axle ratio of 3-1 this Speed Six will happily run all day at 3100 which is its cruising speed of 100 mph." [K]
(1) The statement that the engine was a Speed Six engine. This statement was conveyed by the provision of both the chassis number with the engine number as if they were the originally paired Speed Six numbers ([B]). However, the engine number was not the original Speed Six engine number that had been paired with the original Speed Six chassis number, it was the number of a Standard 6½-litre engine that had been added to the car at a later date.
(2) The statement that the engine satisfied the Speed Six engine specification and performed as a Speed Six racing engine. This statement was conveyed by the three statements that referred to the engine's 45 psi oil pressure, to its being a fully remetalled engine and to its running at 3100 all day at a cruising speed of 100mph ([I], [J] and [K]). These statements also conveyed to the informed reader the fact that the engine was a Speed Six engine. However, the engine was not a Speed Six engine, it did not satisfy a Speed Six engine specification and it had never been proved to satisfy the performance requirements of any such specification.
(3) The statement that the car was a Speed Six car that contained an original 1930 Speed Six engine. This statement was conveyed by the statement that the car was the car for you "if you want W.O.'s finest" ([F]). This was a particularly significant statement because W.O. was particularly known as the designer and manufacturer of Speed Six engines, all of which had been produced by W.O. and his racing team under W.O.'s personal supervision in the Cricklewood works between 1929 and 1930. It followed that the statement that the car that was one of W.O.'s finest amounted to a statement that the engine in the car was an original 1930 Speed Six engine. Similarly, the statement that the car was one recommended by Mr Mann since "I want to do rallies and continental touring and that Speed Six ticks all my boxes" ([E]). In context, this was a statement that the car had a 1930 Speed Six engine and chassis. However, the engine was a 1927 Standard 6½-litre engine reconstructed by Mr Mann in the period 1978 – 1980 with a chassis that had started life as a 1930 Speed Six chassis but which had been reconstructed so as to consist predominantly of other parts and which no longer conformed to the Speed Six chassis specification.
(4) The statement that the 1930 Speed Six car had been restored ([A] and [C]) or rebuilt ([D], [G] and [H]). In context, these statements were to the effect that the car remained a 1930 Speed Six car despite the work that had been done to it. This was because of the accepted terminology of vintage Bentley enthusiasts, who used the words "restored" and "rebuilt" to mean that the original engine and chassis remained in the car even though the car had been extensively worked on over the years. In other words, the original engine and chassis remained in the car despite the work that had since been done on the car to date. However, the work that had been done to the engine and chassis was far more than restoration or rebuilding work. The car had been reconstructed with a different engine and a completely transformed chassis and it could no longer be described without qualification as a "1930 Speed Six".
(1) What did Mr Mann state about the engine and, in particular, did he state that it was "a Speed Six engine" or, alternatively, that it was prepared "to Speed Six specification";
(2) Was what Mr Mann said about the engine a statement that amounted to a contractual warranty; and
(3) Did Mrs Brewer rely on the statement to enter into the deposit contract and the hire purchase agreement?
(1) Mrs Brewer knew very little about Speed Six engines. It was suggested that since Mrs Brewer knew very little about Speed Six engines, it was therefore inconceivable that she had the knowledge to ask questions about the engine or to appreciate the distinction between a Speed Six engine and an engine that was to Speed Six specification.
(2) However, although Mrs Brewer has obviously learnt a great deal about the technical side of both Speed Sixes and Speed Six engines since this dispute arose, she demonstrated in her evidence that she had acquired significant knowledge about Speed Six engines of a general and non-practical kind in the short period of time that she had known and been married to Mr Brewer prior to the meeting with Mr Mann on 20 May 2007. Furthermore, and most significantly, she had taken detailed advice from Mr Brewer prior to that meeting which had been based on his extensive knowledge of Bentleys, Bentley racing history, Speed Sixes and the value of Speed Sixes and as to how a Speed Six's value was critically dependent on the changes, condition and history of that particular car since it had left the Bentley works as a Speed Six. Mrs Brewer had, therefore, been advised by Mr Brewer prior to the meeting as to what to look for and what to ask. Additionally, Mr Brewer was present at the discussion between Mrs Brewer and Mr Mann and was able to, and clearly would have, intervened to ask about the engine or about the meaning and effect of its being stated to be to Speed Six specification if such had been said or if there remained relevant unexplained details of a technical kind.
(3) Stanley Mann Racing. It was suggested that Mrs Brewer was obviously lying when she stated that she did not know that Mr Mann was speaking as the agent of SMRL at the critical meeting since she knew that he was selling the car as "Stanley Mann Racing". This name was, particularly to a commercial lawyer and practising solicitor, self-evidently the trading name of a limited company.
(4) I cannot accept this suggestion. Firstly, it is common knowledge that many one-person traders, tradesmen, dealers and commercial enterprises trade as individuals and not as companies using a trading name which describes their business without including the vital word "Ltd" in the name. Although some of these businesses include the word "co" in the title, there is no obviously accepted usage of a trading name that enables even a practising commercial lawyer to be aware that "Stanley Mann Racing" must connote a limited company. Whether or not someone such as Mrs Brewer is, or should be, aware of the personality of a business with a name that does not include the word "Ltd" depends on the context in which the name is used and on that person's knowledge and past history of dealings with that business. In Mrs Brewer's case, like Mr Fenn, she had no reason to suspect that Stanley Mann Racing was the trading name of a limited company as opposed to Mr Mann's personal trading name.
(5) External indications of the true provenance of the engine. It was suggested that Mrs Brewer could not have believed that the engine was an original, albeit replacement, Speed Six engine since the car did not have matching (i.e. original) registration, chassis and engine numbers and the car was known to have a different engine from the original engine, a shortened chassis from the original chassis, a modified rear axle and a new body. Moreover, Mrs Brewer could have checked in the Hay book whether the engine number cross-referred to the chassis number in that book so as to put her on enquiry as to the provenance of the engine. However, her stated reason for not making this enquiry was a lack of time before the meeting.
(6) These points of detail were available for Mrs Brewer to pick up prior to the meeting and to be used to cross-question Mr Mann as to the provenance of the car. However, I do not regard her failure, if it be a failure, to undertake a prior detailed investigation of the kind that would have been needed to alert her or Mr Brewer to these indications of provenance as showing her to be dishonest or unreliable in her evidence about the meeting. Both Brewers were entitled to rely on their visual examination of the car and on Mr Mann's written statements about it in his advertising material and his verbal statements about it at the two critical meetings. Only if either of them had been put on enquiry by what they were informed by Mr Mann, could a subsequent failure to consider these alternative sources of evidence give rise to adverse comment about their credibility in relation to their evidence given at the trial.
(7) BDC valuation. Mrs Brewer's lack of credibility was allegedly demonstrated by what was described by Mr Ticciati as a "bare faced lie" that was contained in her oral evidence. This was that she was not influenced by the value ascribed to the car in Mr Fenn's valuation but only by the description of the car it contained as being a Speed Six. This was, he contended, in sharp contrast to her solicitor's letters before action, which described the valuation as being "most influential" in and "crucial" to the decision to buy the car and to her own written evidence.
(8) Taking her evidence as a whole, I consider that her oral evidence as adding to rather than differing from her earlier written evidence and her solicitor's statements. This is because Mrs Brewer relied on a number of factors when deciding to buy the car including historic material, aesthetics and value. When giving her oral evidence, she was stating that historical and aesthetic factors predominated whereas her written evidence suggested that valuation evidence predominated. In reality, all these considerations played a part and although her evidence might be said to lack detailed consistency, she said nothing which showed that she was giving unreliable, let alone dishonest, evidence.
(9) Insurance evidence. Mrs Brewer stated, consistently with Mr Brewer's evidence, that Mr Brewer lawfully drove the car even though it was insured in her sole name because he had been informed by his broker that he was insured to drive the car, which he informed the broker was a vintage Bentley, by the insurance policy he had taken out in his name to drive his own car. It was suggested that this was a lie.
(10) Mrs Brewer was here repeating Mr Brewer's evidence. Therefore, her explanation that she relied on her husband's explanation is credible, the underlying and critical issue potentially affecting her credit is whether Mr Brewer's explanation is credible and, if not, whether Mrs Brewer can be seen to have repeated that explanation although she knew that it was untrue. There is no evidence to show that she knew that the explanation was untrue but, as I deal with below, there is no evidence to show that Mr Brewer's explanation was untrue.
(11) Lack of candour. It was suggested that Mrs Brewer was lacking in frankness in not referring in her written evidence to the fact that Mr Mann had offered to buy the car back from her and that her statement in her evidence that this omission occurred because Fortis had terminated the hire purchase agreement was wholly unmeritorious.
(12) I do not regard it as dishonest or even careless that Mrs Brewer made no mention of this offer in her evidence nor do I consider that she gave an unmeritorious explanation for that suggested omission. Mr Mann's offer, made in a letter dated 28 August 2008, was that he would repurchase the car for £425,000 which would be split by paying Fortis £390,000 and Mrs Brewer £35,000. The offer did not, therefore, cover any of the financing charges already paid nor any part of Mrs Brewer's potentially huge liability for unpaid future financing charges that she might be liable for under the agreement. Moreover, the offer was made after Fortis had determined the agreement and at a time when the car was about to be retaken by Fortis. The offer was not, therefore, one that had any attraction to her since she no longer had the power to decide whether Mr Mann could repurchase the car and, in any event, the offer was far too low for her to be able to give it realistic consideration particularly as, in her view, she was not in breach of the hire purchase agreement in the first place. Thus, no adverse inferences arise in relation to the suggested omission or to Mrs Brewer's explanation for that omission.
(13) Ability to pay. It is suggested that Mrs Brewer did not have the resources to pay the outstanding instalments to Fortis in July 2008 and that Mrs Brewer's reliance on her bank statements to show that she had the necessary funds to pay off that indebtedness at that time showed nothing since they were heavily redacted.
(14) There was no challenge to Mrs Brewer's statement of net worth supplied to Fortis in June 2007. That statement showed that Mrs Brewer was a very wealthy woman and that she must still have been a very wealthy woman despite the ensuing recession unless something dramatic had occurred, of which there was no evidence, to wipe her out completely. Although the redacted bank statements could not, on their own, show that Mrs Brewer had sufficient liquid funds to meet the then current indebtedness of just over £7,000, she was not directly challenged about her inability to pay off this sum and her explanation of the bank statement, if accepted without challenge, was to the effect that the necessary funds were in her account at that time if needed. For these reasons, no adverse inferences arise with regard to her financial resources and there was no evidence to suggest that she was attempting to avoid the consequences of a termination of the hire purchase agreement because of her impecuniosity.
(15) Letter before action. The letter before action sent by Mrs Brewer's solicitors and dated 8 August 2008 was said to omit her allegation that she asked whether the engine was a Speed Six engine and only alleged that she asked whether the car was a Speed Six car. This omission was said to undermine her evidence that she questioned Mr Mann as to whether the car and the engine were Speed Sixes.
(16) In the context of her evidence that she considered that the car could only properly be regarded as a Speed Six if its engine was a Speed Six engine, there is nothing adverse to be deduced from a letter before action written on behalf of Mrs Brewer that referred to a question about the provenance of the car without adding a reference to a question about the provenance of the engine. However, the suggested shortcoming in the letter is in any event without foundation. The critical passage reads:
"Mrs Brewer then specifically asked Mr Mann if the car was a Speed Six since it did not have the original engine and Mr Mann said it was and that Bentley often changed engines if a customer came back with a problem. Mr Peter Brewer also posed the same question to Mr Mann on a number of occasions and was also reassured that the engine was a Speed Six."
It is therefore clear that the letter before action was specifically alleging that Mr Mann stated at the meeting that the car and the engine were each Speed Sixes.
(17) Premature taking of counsel's advice. It was contended that Mrs Brewer's creditworthiness and credibility were shown to be unreliable by her having sought counsel's advice as soon as she received Fortis's final demand letter and then writing to Fortis seeking to excuse her non-payment of instalments under the agreement by reference to the valuation she had just received from Mr Gilbertson rather than taking the matter up with Mr Mann.
(18) The suggestion being made would appear to be this: Mrs Brewer got into financial difficulties which had placed her in imminent danger of Fortis terminating the agreement and repossessing the car. In an attempt to forestall those consequences, and presumably the further claim for damages that Fortis would make, Mrs Brewer created a false case based on misdescription that she then made against both Fortis and Mr Mann and purported to rescind the contract. The falsity of her case is demonstrated by her springing on Mr Mann a claim by way of a letter before action without first approaching him informally. As I see it, there is no other explanation for putting forward this complaint since the facts complained of do not otherwise give rise to any possible adverse inference related to Mrs Brewer's credibility.
(19) There is no basis for the suggestion that Mrs Brewer had trumped up a false case against Mr Mann in order to stave of the contractual consequences of her serious financial difficulties. The highest that this allegation can be put is that, in order to relieve her short term cash flow difficulties (assuming that she had such difficulties), Mrs Brewer wanted to ascertain what the resale value of her car was with an eye to a possible resale. That required her to obtain a valuation which, to her obvious surprise and anger, revealed to her for the first time that the car did not have a Speed Six engine.
(20) It follows that nothing adverse is shown by the sequence of events that started with her getting into £7,000 arrears with Fortis, with Fortis then issuing a Final Demand, with Mrs Brewer obtaining a valuation, with Fortis terminating the agreement and with Mrs Brewer having a letter before action sent to Mr Mann without first approaching him informally.
(1) Criticisms of detail. Seven specific and detailed criticisms of detail are made about Mr Brewer's evidence. Some of the criticisms are well-founded and others ill-founded.
(2) However, even if each was well-founded, they do not shake the overall credibility of Mr Brewer's evidence and are no more than examples of how the evidence of most witnesses contains some immaterial but obvious errors of detail.
(3) Similarity with Mrs Brewer's evidence. Complaint is made that both the written and oral evidence of Mr Brewer were very similar to that of Mrs Brewer.
(4) It was the case that both types of evidence were similar. Indeed passages of Mr Brewer's witness statement involving both himself and Mrs Brewer, which related to matters such as the meeting on 20 May 2007, were identical. Given that Mrs Brewer is a practising solicitor, it is not surprising that she drafted or influenced the wording of his statement, although he contended that the contents statement was his own. Since he had carefully read the statement before signing and then confirming it, he had adopted its contents as accurately stating his own evidence. Moreover, since he was the only other person present at the meeting and clearly took a careful and attentive, albeit largely silent, role, it is to be expected that his evidence about that meeting would be similar to Mrs Brewer's evidence. I was fully conscious of the danger that Mr Brewer, as Mrs Brewer's husband, would merely parrot her evidence, whether or not he agreed with it, so as to support her. It follows that, had there been no other evidence save Mrs Brewer's evidence, his evidence is unlikely to have added or strengthened that evidence. However, there was much other evidence and, in those circumstances, Mr Brewer's evidence provides some but not much additional support to her evidence. Furthermore, no adverse inferences should be drawn from the fact that his written and oral evidence was very similar to Mrs Brewer's evidence.
(5) Criminal matters. By far the most potentially significant matters that were relied on in an attempt to impugn Mr Brewer's veracity were a long-spent criminal conviction and three driving summonses that had lead to one further conviction. I will deal with each in turn:
(a) Mr Brewer accepted that he had been convicted of fraud over thirty years previously and had accordingly served a term of imprisonment. No other details were provided to the court. The conviction was obviously long-since spent. In the absence of any other details, this conviction could not have been referred to in a criminal court. In a civil court, there is no way of assessing whether, and if so how, Mr Brewer's general credibility was lowered or his credit was damaged by this conviction.
(b) On an unspecified date in the period 1998 – 2002, Mr Brewer was disqualified from driving for four years as a result of a drink driving conviction. Nothing further was proved about the circumstances of this offence and it is therefore something which cannot affect Mr Brewer's general credibility. Adverse comment was made of Mrs Brewer's answer in cross-examination that the magistrates had been sympathetic when imposing a four-year disqualification. Again, in the absence of further information, Mrs Brewer's comment can be seen as being nothing more than a wife's subsequent support for a husband's drink driving indiscretion that had occurred about ten years previously.
(c) On 21 July 2003, Mr Brewer was convicted of driving in a station car park whilst disqualified and with 225ml of alcohol per 100ml of blood at a time when the limit was 80ml. However, on 11 February 2004, the Administrative Court had quashed both convictions on the basis that the station car park in question was not a road but a public place. It is difficult to see what affect that possibly fortunate let off for Mr Brewer should be considered to have on his credibility. Had he been charged with the correct offence, he might or might not have been convicted. If he had been convicted, it would be difficult to assess the effect of those convictions on his credibility without further evidence of the circumstances.
Overall, I could do no more than note these matters and consider Mr Brewer's evidence with care. They could not be said to impugn his credibility to any significant extent.
(6) Insurance. I have already set out the relevant facts and Mr Brewer's explanation[17]. It was said that Mr Brewer's explanation was incredible by which was meant that it was a lying explanation since the criminal matters set out above would have made Mr Brewer virtually uninsurable, especially to drive a car stated to be worth £500,000 on the car's insurance certificate.
(7) If it had been shown that Mr Brewer's explanation was a lie, it would have had two consequences: that he had driven the car whilst he was disqualified and whilst the car was not insured for his driving and that he had lied to the court on a material matter relating to this case. However, I take account of the absence of any further evidence. Without further evidence, Mr Brewer's evidence is surprising but not unbelievable. He and his wife are very wealthy people and he is a vintage car enthusiast. I do not accept, without evidence, that it is impossible for Mr Brewer, no doubt at an enormous cost to himself, to obtain insurance to drive vintage cars on the road. Thus, if this had been an issue in the case rather than a matter going to credit, I could not have ruled out the possibility of Mr Brewer and his broker satisfying the court that he was insured to drive the car.
(8) It follows that this matter cannot affect Mr Brewer's credibility save to the limited extent I have already suggested in paragraph 132(5) above.
(1) The discrepancy between his witness statement, in which he stated that he was able to buy from Mr Townshend in 1976 a number of parts in addition to the rusty remains of the chassis and the steering column and two axles, and his oral evidence, in which he stated that he was only able to buy the remains of the chassis, steering column and axles[18].
(2) Mr Mann's insistence that only the middle section of the chassis had been replaced in 1978 despite the evidence of Mr Sibson to the contrary[19].
(3) Mr Mann reconstructed the Standard 6½-litre engine himself that he acquired from South Africa in March 1978 whereas he stated in evidence that the engine had been reconstructed to Speed Six specification before he acquired it[20].
(4) Mr Mann was unable to provide a full and detailed account of the work he had undertaken and the materials he had acquired in the period 1978 – 1980 or a satisfactory explanation as to why he was only able to disclose a limited number of invoices and why that disclosure had not been given to Mrs Brewer when she took possession of the car or, initially, when disclosure was given in the action[21].
(5) Mr Mann could not give a satisfactory explanation as to why he had originally intended to insert a Speed Six engine that he had also acquired from Mr Smith and had then changed his mind at a late stage and used the second engine he had acquired from Mr Smith. Moreover, he could not give a satisfactory explanation as to what he did with the first engine after he had reconstructed the car[22].
(6) Mr Mann inaccurately suggested to the Brewers that the limited documentation that he provided to them was the only documentation that he had in his possession and inaccurately impliedly represented to them that the car had a continuous history as a 1930 Speed Six[23].
(7) Mr Mann tested the car in 2009 without giving Mrs Brewer, her legal team or Mr Sibson good notice of his intentions and then undertook significant work on the car so that it was no longer possible to test it to ascertain its performance capabilities. He also did not arrange for such tests as he carried out to be fully documented[24].
(8) The evidence suggested that the engine was not up to the BDC Speed Six engine specification[25]
(9) Mr Mann contended that the value of the car in its condition when sold in 2007 was the same as it would have had if its engine was an original 1930 Speed Six engine[26].
(10) Mr Mann stated that he referred to the engine as being to Speed Six specification without explaining what that meant and without identifying the specification. This phrase is not one which was shown to have been used by anyone else on any other occasion[27].
(11) Mr Mann had no proved or verifiable basis for stating that the car complied with the Speed Six specification, certainly in relation to its performance aspects and the testing he stated that he had carried out, reinforced by Mr Sibson's visual inspection of the engine, showed that the engine was not capable of satisfying the performance aspects of that specification[28].
(12) Mr Mann put out inaccurate and misleading advertising materials which conveyed the meaning that the car retained its original Speed Six engine and had a proved capability of complying with all aspects of the Speed Six specification[29].
(13) Mr Mann held himself out as a personal trader although he in fact traded through his limited company. This enabled him to obtain informal valuations from Mr Fenn even though Mr Fenn was not prepared to provide these to companies[30].
(14) Mr Mann deliberately described the car in his invoices as a Bentley Motor Car despite being asked to describe it as a 1930 Bentley Speed Six Car by Mr Hardiman and then stated that he did this only because that is how he always described Speed Sixes yet, in reselling the car in November 2009, he described it as a Bentley Speed Six motor car because, he stated, that is what the customer had asked him to do[31].
(15) In his witness statement, Mr Mann somewhat misleadingly stated that he bought the car from Mr James in 2006 but he accepted in his oral evidence that he had an agreement to buy it from Mr James dependent on a forward sale being achieved and, somewhat dismissively, added that he regarded himself as having bought the car on taking delivery of it as a bailee from Mr James because "I would have bought the car anyway"[32].
(16) Mr Mann never provided an explanation as to why he did not describe the car from the outset as a 1930 Speed Six with a reconstituted 1927 Standard 6½-litre engine and a reconstituted chassis with no full documentary or continuous history or why, when asked about the engine, he described it as being to Speed Six specification, a phrase which has no clear meaning and no use by other dealers and Speed Six enthusiasts[33].
(5) To Speed Six Specification
(6) Enforceability of contractual warranty
"… it seems to me that if a representation is made in the course of dealings for a contract for the very purpose of inducing the other party to act upon it, and actually inducing him to act upon it, by entering into the contract, that is prima facie ground for inferring that it was intended as a warranty."
"The relevant legal principles regarding the recognition of pre-contractual promises or assurances as collateral warranties may be stated as follows:
1. A pre-contractual statement will only be treated as having contractual effect if the evidence shows that the parties intended this to be the case. Intention is a question of fact to be decided by looking at the totality of the evidence.
2. The test is the ordinary objective test for the formation of a contract: what is relevant is not the subjective thought of one party, but what a reasonable outside observer would infer from all the circumstances.
3. In deciding the question of intention, one important consideration will be whether the statement is followed by further negotiations and a written contract not containing any term corresponding to the statement. In such a case, it will be harder to infer that the statement was intended to have contractual effect, because the prima facie assumption will be that the written contract includes all the terms the parties wanted to be binding between them.
4. A further important factor will be the lapse of time between the statement and the making of the formal contract. The longer the interval, the greater the presumption must be that the parties did not intend the statement to have contractual effect in relation to a subsequent deal.
5. A representation of fact is much more likely to have intended to have contractual effect than a statement of future fact or a future forecast."
(1) Mr Mann did state unequivocally that the engine was a Speed Six engine;
(2) Mr Mann did not make any reference to the engine being to Speed Six specification;
(3) If Mr Mann used the phrase "to Speed Six specification", this would reasonably have been taken to have been a reference to an original 1930 Speed Six engine that had been renovated to Speed Six Specification and that phrase would have been an erroneous misrepresentation; and
(4) The statement "the engine is a Speed Six engine", in its context, amounted to a collateral warranty whose consideration was provided by Mrs Brewer's reliance on that statement to conclude her contracts with Fortis to bail, and with SMRL to pay the deposit for, the car.
(7) Mr Mann as a contracting party
(1) Mrs Brewer, when she subsequently became aware of the existence of SMRL, was not informed that Mr Mann had warranted on its behalf. There is no evidence that she was ever objectively aware that Mr Mann was acting as agent for SMRL in providing the warranty even after she had become aware that SMRL was the contracting party in relation to the deposit contract and the sale to Fortis.
(2) Even if Mrs Brewer had been informed of this, or even if Mrs Brewer should reasonably have presumed this on learning of SMRL's existence, Mr Mann continued to remain personally liable for any breach of that warranty until Mrs Brewer unequivocally elected to look to SMRL alone as the party liable for its breach[39].
(3) Mr Ticciati contended that it is only if the principal is undisclosed at the time of the coming into existence of the induced contract that the agent can be made personally liable for any contractual liability that arises from the warranty. Although he was referring to the hire purchase agreement as the relevant agreement that brought the contractual warranty into effect, the relevant contract in this case must be Mrs Brewer's earlier deposit contract. In a conventional contractual situation, that will usually be the case. However, in this case, the deposit contract and SMRL's sale contract to Fortis took place on the same day as Mrs Brewer was sent a copy of the invoice which could have first alerted her to the existence of SMRL so that that requirement would have been fulfilled, if that event was indeed what brought the contractual effect of the warranty into effect[40].
(4) In any event, the relevant contractual relationship was a collateral warranty which induced another contract which it was collateral to. The relevant point of time to consider whether the principal, on whose behalf the warranty was provided, was undisclosed in such circumstances was when the warranty was first provided and the inducement to contract first arose. That is because, from that moment, the induced party such as Mrs Brewer becomes potentially liable for loss arising from the inducement in the way of pre-contractual expenditure or other loss flowing from the inducement. Thus, had the deposit contract and the hire purchase agreement fallen through because, for example, Mrs Brewer or Fortis had became aware that the car was not a 1930 Speed Six as described, Mrs Brewer could have claimed from Mr Mann, as damages for breach of warranty, the commission charges that she might have had to pay to Mr Hardiman arising from his wasted time and expenditure in arranging her finance for a deal that never materialised.
Mrs Brewer was unaware that Mr Mann had provided his warranty as an agent for SMRL when the warranty was provided on 20 May 2007 and remained unaware of that relationship when she unequivocally agreed to proceed with the acquisition of the car at the same time. Since the first time that she could have discovered that SMRL was the contracting party for the deposit contract was on receipt of a copy of SMRL's sale invoice to Fortis on 30 May 2007 and since she never subsequently made an election to treat SMRL as the sole warranting party, Mr Mann remains personally liable to Mrs Brewer for any breach of the warranty on the undisclosed principal basis.
(8) Mrs Brewer's reliance on the collateral contractual warranty
(9) The deposit and sale contracts and the hire purchase agreement
(1) A deposit contract between SMRL and Mrs Brewer whereby she provided a sum of £40,000 to cover the deposit payable to SMRL when it sold the car for £430,000. This deposit was not covered by the sum being advanced by Fortis to enable it to buy the car and hire it on to Mrs Brewer since Fortis had contracted to bail it on hire purchase terms to Mrs Brewer for the repayment of the lesser sum of £390,000 and financing charges on that lesser sum. The contract was entered into on 30 May 2007 when the sale contract was made and SMRL issued the relevant invoice. On 5 June 2007, Mrs Brewer arranged for the transfer of the deposit from her account to SMRL's account pursuant to that invoice. This contract was, therefore, a contract which was both subject to and subordinate to the contract of sale to Fortis. It was, in summary, a contract which was evidenced by SMRL's invoice to Fortis dated 30 May 2007 that was subject to an implied term that the car conformed to the description as set out in SMRL's invoice to Fortis[41].
(2) A contract between SMRL and Fortis whereby SMRL sold the car to Fortis for £430,000, being the sum of £390,000 lent to Mrs Brewer plus the deposit of £40,000 which was paid by Mrs Brewer directly to SMRL. The contract was made on 30 May 2007 when SMRL sent out its invoice of the same date[42]. This was the date that Fortis's Broker Manager stated was the date of sale in his unchallenged witness statement. Fortis transferred £390,000 to SMRL, being its liability for the sale price less the deposit initially paid, on 6 June 2007.
(3) The hire purchase agreement entered into between Mrs Brewer and Fortis. This agreement was formed by Mr Hardiman filling out Fortis's blank standard conditions form, passing the completed form to Mrs Brewer to sign and then forwarding the signed form to Fortis on 6 June 2007. Fortis had already instructed a desktop appraisal of the car which it had received on 31 May 2007. This appraisal described the car being appraised as a "1930 Bentley Speed Six". Having received a satisfactory appraisal and without commissioning the more formal valuation inspection recommended by the appraisal, Fortis countersigned the agreement and sent a copy containing both signatures to Mrs Brewer on 3 July 2007. This agreement took effect on 6 June 2007 when Mrs Brewer signed her part of the agreement and Fortis transferred £390,000 to SMRL.
(4) The contract for the sale of the car by Mr James to SMRL which was entered into when Mr Mann forwarded £325,000 from SMRL to Mr James on 8 June 2007 with a purchase invoice in SMRL's name. This contract replaced the arrangement between Mr Mann and Mr James that had been entered into in December 2006 when Mr James bailed the car to Mr Mann to enable him to arrange for its sale on behalf of Mr James.
(1) On 20 May 2007, Mrs Brewer agreed with Mr Mann that she would buy the car for £430,000 and that she would pay him a deposit of £40,000 and that the balance would be funded by hire purchase. She then agreed that the deposit would be reduced by £5,000, effectively reducing the purchase price by £5,000.
(2) On 29 May 2007, Mr Hardiman contacted Fortis on Mrs Brewer's behalf with a proposal to borrow £390,000. The email stated:
"Mercedes Brewer is buying a 1930 Bentley Speed Six car, that was subject to full restoration in 1980 by Stanley Mann. The agree purchase price is £430,000, a deposit of £40,000 will be paid leaving a day one lend of £390,000."
(3) On 30 May 2007, Mr Hardiman emailed invoicing instructions to Mr Mann. He stated:
"Please find attached invoicing instructions for the Bentley Speed Six as promised. If you could complete in the normal manner and let me have a copy by email, I will forward this to the lender on your behalf.
As stated Peter and Mercedes are planning to visit you tomorrow at which point I believe they will be leaving you a deposit of £40,000 as detailed within the invoice."
(4) The attached draft invoice was made out to Fortis "to the sale of One 1930 Bentley Speed Six Car" and was as follows:
"Sale Price\ £430,000
Less Deposit Received\ £ 40,000
Balance Due\ £390,000"
(5) On 30 May 2007, Mr Mann issued a Stanley Mann Racing invoice as follows:
| "Date: 30.05.07 | |
| Vehicle supplied to Mercedes Travis Brewer | |
| One: | Bentley Motor Car |
| Registration No: | PG 6345 |
| Chassis No: | SB 2770 |
| Engine No: | WK 2671 |
| Year: | 1930 |
| Price: | £430,000 |
| Less Deposit Received: | £ 40,000 |
| Balance Due | £390,000 |
| For and on behalf of the Purchaser: | |
| Date: | 30.05.07 |
I declare that I am the seller of the vehicle described above at the price stated. Input tax has not and will not be claimed by me in respect of the vehicle sold on this invoice. The vehicle is sold free of any lien or encumbrance. Title passes on full payment.
For and on behalf of Stanley Mann Racing Ltd: [Mr Mann's signature]
Date: 30.5.07
The terms and conditions overleaf form part of this contract."
(6) There are three particular matters to note about this invoice:
(a) The statement contained in this document that the offer that was being made was being made "for and on behalf of Stanley Mann Racing Ltd." was the first time that Mr Mann had drawn attention to the fact that the car was being sold by SMRL. Mrs Brewer only first had sight of this invoice after she had paid the deposit and after SMRL had purported to pass title to Fortis when she collected the car with her husband on 7 June 2007.
(b) The invoice states that SMRL is the owner of the car. On 30 May 2007, it was not the owner of the car, Mr James was. Title only passed from Mr James to SMRL on 8 June 2007 after the sale to Fortis and after Mrs Brewer had taken delivery.
(c) On the reverse of the invoice were set out SMRL's standard terms including clause 3 that stated that title passed only on payment in full of the purchase price but the risk passed from the date of the invoice.
(d) The car, in blatant disregard of Mr Hardiman's request, described the car as a "Bentley Motor Car".
(7) On 30 May 2007, Mr Hardiman emailed Mrs Brewer a copy of SMRL's invoice "confirming the purchase price of £430,000 with a deposit of £40,000 to be paid directly to Stanley".
(8) On 5 June 2007, £40,000 was transferred by Mr Brewer on behalf of Mrs Brewer from her account to SMRL's account using the details that he had been provided with by either Mr Mann or Mr Hardiman.
(9) On 6 June 2007, Mr Hardiman provided Mrs Brewer with a copy of Fortis's standard agreement, the relevant details of which he had filled in as follows:
| "The Goods One 1930 Bentley Speed Six Car | |
| Cash Price (ex VAT) | £430,000 |
| Total | £430,000 |
| Cash Price of Goods | £430,000 |
| Less Deposit | £ 40,000 |
| Balance | £390,000" |
Mrs Brewer signed her part of the agreement and Mr Hardiman sent it off to Fortis on the same day.
(10) On 6 June 2007, SMRL transferred £390,000 to SMRL.
(11) On 7 June 2007, Mr and Mrs Brewer attended SMRL's premises to collect the car. On arrival, She was asked to sign the invoice addressed to Fortis and dated 30 May 2007. She asked Mr Mann to issue a fresh invoice because the invoice erroneously stated that the purchase price was £430,000 and the deposit was £40,000. She also asked for a refund of the £5,000 that had been overpaid. Mr Mann asked Mrs Brewer to sign the invoice as it stood, since all the paperwork had already been sent to Fortis but he stated that he would also issue a second invoice reflecting the necessary corrections and would issue a cheque for £5,000 to Mrs Brewer. She then signed the original invoice "for and on behalf of the Purchaser".
(12) On 7 June 2007, Mr Mann prepared a second invoice with these relevant details:
| "Vehicle supplied to: Mrs Mercedes Travis Brewer | |
| … | |
| Price: | £425,000 |
| Less Deposit Received: | £ 40,000 |
| Balance Due: | £390,000 |
| Overpaid: | £ 5,000 |
| Returned by cheque | 07.06.07. |
| For and on behalf of the Purchaser: | [signed by Mrs Brewer] |
| For and on behalf of Stanley Mann Racing Ltd: | [signed by Mr Mann]" |
There is no mention of Fortis on this invoice.
(10) Contractual descriptions
Registration No: PG6345
Chassis No: SB2770
Engine No: WK2671
Year: 1930
"It may also be pointed out that there is a sale by description even though the buyer is buying something displayed before him on the counter; a thing is sold by description, though it is specific, so long as it is sold not merely as the specific thing but as a thing corresponding to a description, e.g., woollen under-garments, a hot water bottle, a secondhand reaping machine, to select a few obvious illustrations."
The car was undoubtedly sold as a "thing corresponding to a description" whose meaning was "1930 Bentley Speed Six with a Speed Six engine". The sale, deposit and hire contracts were, therefore, respectively, a sale, a deposit and a bailment contract by or incorporating a description whose meaning was to be taken to be the same in each case.
E. Breach of warranty, breach of the deposit contract and non-compliance with description
(1) Breach of collateral contractual warranty155
(2) Breach of the deposit contract
(3) Breach of the hire purchase agreement
(4) Continuous history documentation
(5) Fortis agreement – whether or not a sale by description
"RE:1930 BENTLEY SPEED SIX
REGISTRATION NO: PB[47] 6345, CHASSIS NO SB 2770, WK NO 2671 (COST - £430,000) – DESKTOP APPRAISAL ADVICE
In accordance with your instructions, we have carried out a written desktop appraisal in order to provide advice on a 1930 Speed Six as at 31 May 2007.
We note from the advert for the vehicle on the website www.stanlymann.com that the subject vehicle was restored by Stanley Mann in 1980 and has since been with the purchaser for 26 years.
Bentley manufactured between 171 and 182 Speed Sixes between 1928 and 1930.
Research indicates that various synchro-less gearboxes were manufactured by Bentley with the A, C, D and F-type being the easiest to master. The wide ration B box is the least desirable however the vehicle is not fitted with this type of gear box.
Research indicates that vehicles with original bodies demand a premium and that detailed records for each vehicle should be available. We understand that the log book has been made available. The engine heads are not detachable hence it would require to pull the block which is expensive to replace. Similarly, the magneto is liable to failure due to heavy loading. Parts are available at a premium.
A recent example of a Speed Six, chassis no SB2773 was sold in the USA at auction in August 2006 for $1,815,000 USD. In July 2004 the sum of $5,109,665 was paid for a Speed Six at Christies in London. This vehicle had an exceptional racing provenance having been placed second at Le Mans in 1930 and a Double Twelve Winner in the same year. (see: www.sportscarmarket.com). A price range of between $400,000 and $5m USD has been attributed to this particular model depending on condition and provenance.
The market for classic cars is active however collectors and investors are the most likely buyers of the specified vehicle and it could take 12 months to achieve a sale.
Typically, high quality classic cars are seen as an investment hence depreciation is not attributable. This assumes that the vehicle is kept in appropriate storage and has all relevant documentation.
…
This appraisal has been prepared on the basis that full disclosure of all information and facts, which may affect the same, has been made to ourselves by the client and by any relevant third parties. … ."
It is to be particularly noted that the appraiser was not informed that the car's engine was a reconstructed 1927 Standard engine or that it was an engine that had been reconstructed to Speed Six specification or that the car did not have detailed records available to document its history.
"In view of the terms of the customer's declaration in the Schedule and Clauses 1.4, 1.5 and 3.1 and the fact that the goods have only been acquired by the Owner at the Customer's request to enable it to enter into this agreement with the Customer, the Customer agrees:-
1. That (apart from any of the following which have been expressly given to the Owner itself to the customer in writing) no condition, warranty, stipulation or representation whatsoever of any kind has been given by the Owner, its servants or agents in relation to the goods (other than a warranty that the Owner will pass to the customer upon exercise by the customer of the rights conferred on it by Clauses 4.1, 4.3 or 8.1 such title to the goods as the manufacturer or supplier pass to it);
2. That all implied conditions, warranties, stipulations and representations relating to the goods, whether statutory, collateral hereto, at common law or otherwise and whether relating to their capacity, age, quality, description, state, condition or use, or to their satisfactory quality or suitability or fitness for a particular or any purpose are hereby excluded and extinguished except (i) as regards any liability which may be implied on the Owner in respect of death or personal injury resulting from the Owner's negligence and (ii) any warranty implied by law that (subject to the provisions of this agreement) the Owner will not interfere with the Customer's quiet possession of the goods; ...".
(6) Overall conclusion - liability
(1) The 1930 Speed Six engine had been substituted with a reconstructed 1927 standard 6½-litre engine.
(2) The changes that had been made to the 1927 engine were not documented, the contents of the Speed Six specification the engine was said to satisfy had not been identified and no formal check or certification of the engine's compliance with the performance specification relied on had ever been undertaken. Moreover, the evidence showed that the performance parts of the BDC 1930 Speed Six specification were not capable of being satisfied by the engine that was currently in the car.
(3) The chassis was, to a very significant extent, different from and constructed to a different specification from, the original 1930 chassis.
(4) There was no continuous history available for the car or its chassis, its 1927 Standard engine, the reconstruction of its 1927 engine and 1930 chassis or the racing characteristics and Speed Six performance capabilities that it was said to have been provided with.
F. Mrs Brewer's entitlement to reject the car and rescind the Hire Purchase Agreement
G. Mrs Brewer's claims for damages and Fortis's counterclaim for damages
(1) Mrs Brewer's claim against Mr Mann and SMRL
"Here we are not dealing with a breach of warranty on a sale where the purchaser can sell an unsuitable article at its diminished value and where, therefore, he is adequately compensated if he receives as damages the diminution in value. In the present case the hire-purchase agreement was the purpose and the product of the warranty. To assess the damage, one has to consider the difference between the defendant's position if he had entered into such an agreement in respect of a car as warranted and his position when he has entered into it in respect of a persistently and, as it seems, incurably, unroadworthy car. The difficulty with regard to the return or retaking of the car was clearly foreseeable and the loss under the agreement was loss directly and naturally resulting from the breach of warranty. That loss includes the wasted instalments and the amounts payable under clause 8. Therefore the judge was entitled to hold as he did."
(2) Fortis's counterclaim against Mrs Brewer
(1) The agreement was terminated by Fortis by reason of Mrs Brewer's breach of the condition requiring prompt payment of the instalments pursuant to clause 2.1 of the contract;
(2) This non payment of contractual instalments constituted a repudiatory breach of the agreement by Mrs Brewer by virtue of clause 8.2.1 which entitled Fortis to terminate on those grounds; and
(3) Following a termination on account of Mrs Brewer's repudiation, Fortis may claim damages quantified in the manner set out in clause 9.4 of the agreement which provides a contractual basis for quantifying loss of future hire following termination for non-payment and the retaking of the car.
(4) Although Fortis never made a clear and unequivocal demand for contractual damages under clause 9.4 of the hire purchase agreement flowing from its retaking of the car due to arrears, it is not now precluded from making a claim under clause 9.4.
"8. Termination
…
8.2 By [Fortis]:
8.2.1 [Mrs Brewer} agrees that it is an express and fundamental condition of this Agreement that none of the following events shall occur during the term hereof:
8.2.1.1 [Mrs Brewer] shall fail to pay in full any Payment or other sums due under this Agreement or any other agreement between [Fortis] or any Associated Company of [Fortis] on the one part and [Mrs Brewer] or any Associated Company of [Mrs Brewer] on the other part on the due date for payment;
…
and if any such event shall occur [Mrs Brewer] shall be deemed to have repudiated this Agreement or any other such agreement."
"9. Consequences of Termination
... upon termination of this Agreement and/or the hiring hereunder whether under clause 8 or otherwise, [Mrs Brewer] agrees:
9.3 that [Mrs Brewer] shall immediately pay to [Fortis] any arrears of Payments accrued and any other sums (including interest) due at the date of termination and any costs and expenses incurred by the Owner in tracing and/or recovering possession of the Goods …
9.4 that, without prejudice to [Fortis's] rights to claim damages, [Fortis] may demand the following payment from [Mrs Brewer], if and only if [Fortis] makes such demand [Mrs Brewer] will be immediately liable to pay to [Fortis] a sum equal to the total of
9.4.1 an amount (certified conclusively by [Fortis] save for manifest error) equal to the loss or costs sustained by [Fortis] in breaking fixed deposits or for re-employing funds as a result of the termination (in whole or in part) before the end of the Agreement; and
9.4.2 as agreed compensation for [Fortis's] loss of profit, the total of all Payments (exclusive of VAT) which would have been payable during the unexpired period of this agreement, discounted at three per centum per annum, on a day to day basis, compounded quarterly; and
9.4.3 interest at the rate provided for and calculated in the manner as in clause 2.4 on the whole sums payable under clauses 9.2, 9.3, 9.4.1 and 9.4.2, calculated from the date of termination …. Or, in respect of costs and expenses incurred by [Fortis] from the date the same are incurred to the date of payment and any VAT properly chargeable on any sum payable under clause 9.3 and this clause 9.4 … ."
(1) She has no outstanding liability to pay the outstanding hire charges because Fortis did not terminate for non-payment of hire but instead terminated in an attempt to pre-empt Mrs Brewer's intimated claim to rescind the agreement and to reject the car[50].
(2) Further, Mrs Brewer may recover any recovery by Fortis of all its claims and of all payments it has received from Mrs Brewer, whether these for unpaid payments or for charges or for damages. Mrs Brewer's recovery is for damages flowing from Fortis's misdescription so that Fortis's claim fails either because it is eliminated by Mrs Brewer's cross-claim or by the defence open to Mrs Brewer of circuity of action.
(3) Fortis did not purport to terminate the agreement on the ground that Mrs Brewer had repudiated it as a result of her non-payment and has not claimed damages based on her repudiation. This is because Fortis did not purport to rely on clause 8 or refer to it in its termination notice when terminating the agreement and reliance on clause 8 cannot be inferred or presumed.
(4) Mrs Brewer did not, in any event, repudiate the agreement[51].
(5) Fortis's claim is based on an entitlement to claim sums pursuant to clause 9.4 of the contract but no demand or correctly formulated demand has ever been made for payment under that clause and a demand, or if made a correctly formulated written demand for payment, is a condition precedent to such payment. It is clear from the wording of that clause that a demand in writing is a condition precedent to claiming payment under that clause.
(6) If, contrary to this finding, a written demand was made, it was not one that complied with the requirements of that clause, It is not sufficient for a mere demand for payment to have been made, the necessary demand must be for a precise sum calculated in accordance with clause 9.4 of the agreement. That clause makes it clear that the demand must be a demand for "the following payment", that is a demand which identifies the sum, or sums, that are being claimed under each of the three heads specified in clause 9.4. Fortis have not pleaded that such a demand, or any demand, was made and no such demand was proved to have been made.
(3) Mrs Brewer's claim against Fortis
(4) Credit for use of the car during the period of hire
H. Damages, Interest and Costs
(1) Mr Sibson's first report is said to have dealt with matters that went beyond the scope of his instructions. In my view, that is correct to some extent. This did not cause, and was not shown to have caused, any additional or unnecessary costs save for 25% of the cost of Mr Sibson's first report charged by him.
(2) Mr Sibson's second report is said to have fallen outside the scope of the order permitting it. That is correct. However, it instead was a responsive report to Mr Fenn's report. It was extensively referred to and, had permission been sought for it, that permission would have been granted. No reduction in costs is appropriate.
(3) It is contended that much time was wasted by the suggested refusal by Mrs Brewer to co-operate in the production of an agenda for the experts. The basis of this suggested refusal was that Mr Sibson did not answer, or was not permitted to answer, a list of questions drafted on behalf of Mr Mann. These questions were unilaterally answered by Mr Fenn and subsequently a joint statement was produced by the experts. Finally, Mr Sibson answered the original list of questions when ordered to do so by me on day 3 of the trial. It is the case that the rules relating to the meeting of and the joint reporting by the experts was not followed by the experts. This was largely because neither expert had been involved in court proceedings previously but the problem was compounded by the parties failing jointly to prepare a list of issues on which the experts should report and to obtain an order from the court defining the timetable of meetings and the issues for discussion and agreement. Overall, I do not regard the suggested shortcomings of Mr Sibson and those instructing him to have caused any significant or identified additional costs. Furthermore, looking at the expert evidence and its preparation as a whole, there were shortcomings on both sides in roughly equal measure. For example, joint testing and inspection of the car by Mr Sibson and Mr Fenn in accordance with a jointly agreed protocol should have been arranged by or on behalf of the defendants in the period when it was in first Fortis's and then Mr Mann's possession.
I. Procedural Questions
(1) All issues that were already in play in Mrs Brewer's proceedings against Mr Mann and Fortis were also raised in Mrs Brewer's proposed claim against SMRL and no additional issues would arise if SMRL was joined into Mrs Brewer's claims,
(2) There was no discernible prejudice to SMRL since its defence was the same as Mr Mann's defence which had already been fully prepared;
(3) There was no discernible prejudice to Fortis who was already a party to the action and it could readily have joined SMRL as a third party to enable it to claim an indemnity from SMRL;
(4) Throughout the dispute SMRL had been, and would continue to be, represented by the same legal team as was representing Mr Mann;
(5) It had only become apparent at a late stage that SMRL did not own the car and had had no title to it when it sold the car to Mrs Brewer; and
(6) It was proportionate to allow that course to be taken at such a late stage to avoid the real possibility of further proceedings having to be taken against SMRL by Fortis following the conclusion of the trial.
J. Findings and Overall Conclusions
(1) (a) Mr Sibson had inspected and measured the chassis very carefully and had concluded that the only surviving section from the original 1930 chassis was part of the small front section (paragraphs 35 - 36 & 75 – 80).
(b) He also concluded that the engine could not be described as satisfying the 1930 Speed Six specification since its performance had never been properly tested or verified and its outward appearance, particularly its new pistons, suggested that it had never been capable of generating the power that would have been needed to satisfy the performance requirements of that specification (paragraphs 37 & 97 – 99).
(c) Overall, Mr Sibson contended that the car could not be described as a Speed Six and the engine could not be described as either a Speed Six engine or as one which was to Speed Six specification, whereas Mr Fenn contended that the car was a Speed Six car whose engine was to Speed Six specification. On all three of these issues Mr Sibson's evidence was accepted (paragraphs 38 & 175 - 182).
(2) The terminology used for vintage Bentleys including Speed Sixes varies but conventionally the term "restored" usually refers to the restoration of original parts and "rebuilt" to the taking apart and putting back together again of a car predominantly using original parts from the original car (paragraph 49). There is no generally accepted term that describes the use of a substantial part, particularly the engine, which has been transformed from its original place in one model to resemble and be placed in another model. (paragraph 50). I have adopted the word "reconstructed" to describe this substantial process of change since it is a fundamentally different process to that of "rebuilding" a Speed Six car (paragraph 51).
(3) It is clear that everyone involved with Speed Sixes now regard it as essential, for such a car to be properly described as a Speed Six, to be accompanied by a continuous history, being a full, unbroken and authentic set of documents which identify in a reliable manner who has owned the car, the uses that it has been put to and a description of its service history and any restoration, rebuilding or reconstruction work that the car has experienced throughout its life since originally leaving the Cricklewood works. The evidence suggested that this view arose, or was at least confirmed, as a custom of the Speed Six trade by Otton J's judgment in 1990 in Hubbard v Middlebridge Scimitar Limited[53]. This "Old Number One" judgment is certainly widely known to, and relied on by, enthusiasts, owners, dealers, auctioneers and valuers involved with Speed Sixes (paragraph 59).
(4) A specification has since been compiled retrospectively for the Speed Six and Standard 6½-litre engine types by the BDC. This specification was accepted at the trial as being the relevant specification against which the car's engine should be compared and, by inference, was the specification that Mr Mann claimed in evidence to have referred to in his discussions with Mrs Brewer as the "Speed Six specification" (paragraph 62).
(5) Part of the front section of the chassis and its attached chassis number is the only surviving part of the 1930 Speed Six car that had originally been delivered to Miss Unwin in February 1930 (paragraph 81).
(6) The engine was a standard engine when it arrived in Mr Mann's workshop and he himself carried out the reconstruction work to the engine between 1979 and 1980 which he stated must have been undertaken in South Africa (paragraph 86).
(7) Mr Mann's implied representation to the Brewers that the car had a continuous history as a 1930 Speed Six car was obviously false (paragraph 96).
(8) The car was not satisfactorily tested in 2009 and such test results as were claimed to have been undertaken apparently showed that the engine under load displayed significant non-compliance with the BDC's 1930 Speed Six specification (paragraph 99).
(9) Whatever the value of a 1930 Speed Six might be at any one time, it will be appreciably higher than the corresponding value of a reconstructed Speed Six with a reconstructed 1927 Standard 6½-litre engine a reconstructed 1930 chassis with no relevant continuous history and with no verified and authenticated ability to satisfy any relevant 1930 Speed Six specification (paragraph 103).
(10) The car lacked a continuous history for the entire period between 1930 and 1981 and any authenticated documents proving that history in that period. No such documents were provided to Mrs Brewer (paragraph 105).
(11) The pre-contract representations in the advertising material inaccurately and misleadingly conveyed the meaning to an informed reader such as Mrs Brewer that the car retained its original Speed Six engine and chassis which had been rebuilt but which still survived as a Speed Six engine with a proved capability of satisfying all aspects of the Speed Six specification. These representations were reinforced and confirmed by the absence of any reference in any of the documents to the fact that the engine was a Standard 1927 6½-litre engine and that the chassis had been significantly reconstructed so as to resemble a Speed Six chassis that satisfied the Speed Six chassis specification (paragraph 115).
(12) In relation to the collateral contractual warranty:
(1) Mr Mann stated unequivocally that the engine was a Speed Six engine;
(2) Mr Mann did not make any reference to the engine being to Speed Six specification;
(3) If Mr Mann used the phrase "to Speed Six specification" this would reasonably have been taken to have been a reference to an original 1930 Speed Six engine that had been renovated to Speed Six Specification and that phrase would have been an erroneous misrepresentation; and
(4) The statement "the engine is a Speed Six engine", in its context, amounted to a collateral warranty whose consideration was provided by Mrs Brewer's reliance on that statement to conclude her contracts with Fortis to bail, and with SMRL to provide the deposit for, the car (paragraph 145).
(13) Having carefully considered all evidence pertaining to the credibility of Mr and Mrs Brewer and Mr Mann, it was accepted and found that what Mrs Brewer said about the meeting was correct (paragraph 134).
(14) The statement "to Speed Six specification" was inaccurate in relation to the engine and amounted to a misrepresentation and a breach of warranty (paragraph 138).
(15) Mr Mann is personally liable to Mrs Brewer (paragraph 153).
(16) In addition, Mr Mann is liable to Mrs Brewer as the agent of SMRL who asserts that it was his undisclosed principal (paragraph 154). The warranty took effect contractually when it was provided and not when the deposit contract or the hire purchase agreement that it induced took effect (paragraph 155). Mrs Brewer only first became aware of SMRL as being the possible principle on 30 May 2007, the day that Fortis contended was the day that the sale of the car to itself was made (paragraph 155). Thus, for those reasons, and since Mrs Brewer never elected to hold SMRL liable, Mr Mann remained liable as the agent of an undisclosed principle in any event (paragraph 155).
(17) Furthermore, SMRL is separately and severally liable for any breach of warranty (paragraph 154). SMRL's additional liability for any such breach was established at the trial since its counsel accepted on its behalf that it would be liable to Mrs Brewer if and to the extent that any breach of warranty was established (paragraph 156).
(18) Mrs Brewer paid the deposit to SMRL under a separate contract that was initially made on 30 May 2007 and then varied on 6 June 2007. Its terms were that she was to provide £35,000 of the purchase price of £425,000 directly to SMRL and that SMRL was only to be contractually required to provide £390,000 of the purchase price. It is possible to argue that this sum was paid by Mrs Brewer as agent for Fortis but, if such an agency arose, it was separate from and additional to the direct deposit contract entered into between Mrs Brewer and SMRL to pay the deposit directly to SMRL (paragraph 161).
(19) It was a term of that contract that the car was a Bentley Motor Car which in context was intended by the parties to mean a 1930 Bentley Speed Six with a Speed Six engine" (paragraph 161). This was because the description in the invoice issued to Mrs Brewer under the deposit contract was clearly intended to be subject to the contractual warranty made by Mr Mann on both his and SMRL's behalf to Mrs Brewer. This warranty had the meaning and effect that the Bentley Motor Car in question was a Speed Six with a Speed Six engine. Therefore, the description contained in this deposit contract must be subject to, read together with and have the same meaning as that contractual warranty (paragraph 165).
(20) The description "Bentley Motor Car" in the deposit contract between SMRL and Mrs Brewer and "1930 Bentley Speed Six Car" in the hire purchase agreement between Fortis and Mrs Brewer are contractual descriptions which have the meaning: a "1930 Bentley Speed Six with a Speed Six engine". Since this judgment is not concerned with any breach by SMRL of the sale contract with Fortis, this finding does not extend to that contract (paragraph 171).
(21) Mr Mann and SMRL are liable to Mrs Brewer for any breach of the warranty (paragraph 172).
(22) If the deposit contract description of the car meant in context that the car was a 1930 Speed Six with a Speed Six engine, SMRL was in breach of the deposit contract. It was still in breach of the deposit contract if the description meant that the car was a 1930 Speed Six Bentley since the words "Speed Six" without qualification meant that the car has a Speed Six engine. Although the invoice referred to the car in even more limited terms as a Bentley motor car, by necessary implication that terminology was referring in this deposit contract to a 1930 Speed Six with a Speed Six engine (paragraph 183).
(23) There was a breach of the implied term in the hire purchase agreement that the car conformed to its description in that no part of the extended description was complied with. Since this judgment is not concerned with any breach by SMRL of the sale contract with Fortis, this finding does not extend to that contract (paragraph 188).
(24) It was particularly important that the contractual description accurately described all the significant changes that had occurred during the car's lifetime and that the seller found some way in which to authenticate those changes or stated in the description that they were not capable of being supported by a continuous history. Mr Fenn accepted in cross-examination that the car did not have a continuous history (paragraph 189).
(25) The car was no longer capable of being accurately described as a "1930 Bentley Speed Six Car". The reasons why the car could no longer be described in this way may be summarised as follows:
(1) The 1930 Speed Six engine had been substituted with a reconstructed 1927 Standard 6½-litre engine.
(2) The changes that had been made to the 1927 engine were not documented, the contents of the Speed Six specification the engine was said to satisfy had not been identified and no formal check or certification of the engine's compliance with the performance specification relied on had ever been undertaken. Moreover, the evidence showed that the performance parts of the BDC 1930 Speed Six specification were not capable of being satisfied by the engine that was currently in the car.
(3) The chassis was, to a very significant extent, different from and constructed to a different specification from, the original 1930 chassis.
(4) There was no continuous history available for the car or its chassis, its 1927 Standard engine, the reconstruction of its 1927 engine and 1930 chassis or the racing characteristics and Speed Six performance capabilities that it was said to have been provided with (paragraph 202).
(26) Mrs Brewer relied on the description within the hire purchase agreement to enter into that agreement. She had not provided that description, it had been provided by the seller of the car to Fortis and had then been approved by Fortis. In those circumstances, this was a bailment by description. Thus, Mrs Brewer may rely on any breach of section 9(1) of the Supply of Goods (Implied Terms) Act 1973 that occurred in consequence of that description being erroneous (paragraph 205).
(27) Fortis's liability is not excluded by Section 5.1 of the hire purchase agreement (paragraph 200 and 205).
(28) Mrs Brewer had not accepted the car and if clause 2 of the agreement has the effect of her having to be presumed to have accepted it, that presumption has no effect as a result of section 13 of UCTA. She remained entitled to reject the car at the time it was retaken and she sought to reject it on the grounds of its non conformity with its contractual description. This was not a tactical move on her part that was intended to allow her to avoid her financial difficulties. Instead, Fortis's purported termination on the grounds of Mrs Brewer's arrears was itself a tactical move which had been taken in an attempt to forestall Mrs Brewer's notified claim against it based on that misdescription. Overall, however, although Mrs Brewer still retained the right to reject the car, her claim is not dependent on that right but is one that is confined to a claim for damages (paragraph 216).
(29) Mrs Brewer is entitled to both heads of damages as claimed by her and is also entitled to an indemnity from both Mr Mann and SMRL against any outstanding liability she might have to Fortis (paragraph 220).
(30) Fortis had no entitlement to counterclaim the arrears of hire outstanding at the date it purported to terminate the agreement nor to damages for future loss of hire recovery at the date it purported to terminate the agreement (paragraph 224).
(31) Mrs Brewer is entitled to repayment by Fortis of all hire payments that she has previously paid since she was entitled to rescind the contract and such payments are recoverable as reliance damages in accordance with the principle identified in Yeoman Credit Ltd[54] (paragraph 225).
(32) It follows that no restitutionary claim arises and Mrs Brewer need not provide any off-set for her use and enjoyment of the car or on any other basis (paragraph 230).
(33) For the same reasons as have resulted in SMRL being joined as a party, it is fair and reasonable that Fortis should be entitled to join SMRL as a third party and to plead a third party contribution or indemnity claim against it (paragraph 201).
(34) In the result, Mrs Brewer's claims succeed against each defendant, Fortis's counterclaim fails and Mrs Brewer is entitled to damages in the sum of £94,000 and an indemnity from Mr Mann and SMRL as claimed (paragraphs 232 and 235). The defendants are jointly and severally liable for this sum (paragraph 235).
(35) Mrs Brewer should receive interest at 3% from 7 August 2008. No interest is awarded for the period from 7 June 2007 until 7 August 2008 because she had the use and enjoyment of the car in that period (paragraphs 237 – 238).
(36) Mrs Brewer is entitled to her costs on a standard basis from Mr Mann and Fortis and, from SMRL, from 22 February 2010. Each defendant is severally liable for the costs, SMRL's liability on that basis starting from 22 February 2010. There is to be no reduction in costs save that Mrs Brewer may only recover 75% of the recoverable costs of Mr Sibson's preparation of his first report (paragraphs 239 – 241).
HH Judge Anthony Thornton QC.
Appendix I
The Case of Old Bentley Number One
HUBBARD vs. MIDDLEBRIDGE SCIMITAR LIMITED
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice, London.
No. 90/MJ/2474 - 27th July 1990
Before: MR. JUSTICE OTTON
Transcribed from the Official Tape Recording by Cater Walsh & Co.,
6 Jelleyman Close, Blakebrook, Kidderminster DY11 6AD. (Official Court Reporters and Tape Transcribers. )
MR. M. ROSEN, instructed by Carter Faber, London EC4Y 9AY, appeared on behalf of the plaintiff.
MR. R. SLOWE, instructed by Dibb Clegg, London WC2A 1NE, appeared on behalf of the defendant.
JUDGEMENT (As Revised)
MR. JUSTICE OTTON: In this action the plaintiff, Edward Hubbard, seeks specific performance of a contract entered into with the defendants, Middlebridge Scimitar Limited, on 7th April 1990. The subject matter of the agreement is what is said to be a Bentley Speed 6 Racing Car known as "Old Number One".
The plaintiff agreed to sell this car for £10 million, in exchange for the assets of Middlebridge Scimitar Limited valued at £3.2 million, plus £6.8 million in cash. When the agreement was reduced into or evidenced in writing the car was described as "Bentley. Known as 'Old Number One'". The defendants subsequently resiled from the deal when they suspected the
authenticity of the car.
The plaintiff is 59 years of age and has had a passionate interest in fast and prestigious motor cars all his life. He has acquired a deep and detailed knowledge of vintage Bentleys and since that time he has owned 50 or more cars and has had one of the largest collections of Bentleys in the world. He had a private museum of classic motor cars at Radlett in Hertfordshire, and an extensive library on the subject. In separate premises in Watford he operates a company (Duttons Limited) where he employs a substantial staff to prepare and race a Formula 3 racing team to prepare and race vintage and historic racing cars, and for the purpose of restoring old racing cars. He still races with Vintage Bentleys and is a member of the Bentley Drivers Club.
The defendants are a company formed in May 1987. They are a subsidiary of Middlebridge Group Limited. The Company and the Group carry on the business of manufacture and sale of Scimitar cars. They also have an interest in modern racing cars, having recently acquired the well known Brabham Formula 1 racing team. The Company are also engaged in restoration of classic cars, i.e. cars produced some time after World War II.
The principal shareholder of the Group is Mr. Kohji Nakauchi, from whose name in Japanese the Group's name derives. He is clearly a wealthy industrialist and a collector of important motor cars, particularly of famous British marques. The chairman of the Company and the Group is Mr. Dennis Nursey. He, too, has a keen interest in motor cars, notably in the well known and well loved Aston Martin marque. He has considerable experience in the world of motor cars and in business. His business interest have taken him to Japan and he has the rare distinction of being able to speak Japanese. He is clearly a most able and accomplished businessman and "a bit of a go-getter". He is ambitious and talented.
The managing director of the Group and the Company is Mr. William McCormack. He has a history of banking behind him and is considered to be the person who looks after the financial side of both the Group and the Company and acts as their accountant. He is clearly articulate, intelligent and has experience in dealing with contractual arrangements and, in particular, with written contracts.
However, the principal character in this action is not the larger than life Edward Hubbard or the ambitious and thrusting Japanese speaking Dennis Nursey. It is two tons of motor car referred to throughout as Old Number One, and it is the integrity, provenance and pedigree of this vehicle which have been under scrutiny.
It was produced for my inspection in Lincoln's Inn. It looked beautiful and the magic and sheer power of its engine evoked excitement and nostalgic memories of the past; but looks and sounds are not everything. The defendants maintain that it is not worth to bear the name Old Number One.
Between 1921 and 1930 W.A. Bentley, the founder of Bentley Motor Cars, took a passionate interest in motor racing. To many, even today, motor racing in the 20s and 30s was the Golden Era. The rapid progress in mechanical engineering during and after the first world war brought together a remarkable fraternity of drivers, engineers, industrialists and enthusiasts who all shared a passion for racing cars. Drivers were legendary -- Captain Babe Barnato, Kitson, Sammy Davies, Sir Henry Birkin, Clive and James Dunfee to name a few of the "The Bentley Boys" as they were known. Wally Hassan and Nobby Clarke and others were the master mechanics and expert engineers who developed the racing car to the limits of technology, science and the state of the art of their day, and who had to satisfy the insatiable demand of the drivers for ever faster motor cars.
They strove to be, and were, world beaters particularly on two circuits -- Le Mans and Brooklands.
Origin
The car, which was later to be known as Old Number One, started life when it was selected at random from the Standard Six production line in preparation as the Bentley team entry for the 1929 Le Mans race. At that stage it was technically known as a rolling chassis, consisting of a chassis or chassis frame, an engine, steering column, suspension and wheels. It bore the chassis number LB2332 and the engine number LB2336. It was taken to the racing shop where it was stripped down and rebuilt to a higher specification by Wally Hassan, the master mechanic, and others.
It was the second Speed Six to be built. It had a six cylinder, 6+ litre engine, with a non-detachable head in the form of a conventional internal combustible engine. The precise specifications to which the car was built appears at pages 49 to 50 of Mr. Hay's authoritative book: "Bentley, the Vintage Years 1919 - 1931".
It was fitted with a four seater Van den Plas open body. After the successes at Le Mans of the 3 litre and 4+ litre cars, much was expected of it. At Le Mans in 1927 the 3 litre Bentley had won at a speed of 61.35 miles per hour. In 1928 in a 4+ litre affectionately known as Old Mother Gun, Captain Barnato with his co-driver Rubin had won at a speed of 69.11 miles per hour.
On 24th April 1929 the car was registered bearing the registration number MT 34484. The car that I saw bears this registration number today.
Racing History
The racing history of the car began at Brooklands in the Double twelve race in 1929, so-called because the race was run in two successive twelve hour daylight periods. In the interval the cars were locked up for the night. It did not complete the race, in circumstances of some mystery but probably because it suffered from a defective dynamo. In 1929 it entered the La Mans race and because its engine capacity of 6+litres was the largest in the field it was assigned the race number of No. 1. It was driven by Captain Barnato and his co-driver was Sir Henry Birkin.
At page 264 of Mr. Hay's book there is a short description of the race as follows:
"The Speed Six, driven by Birkin, was first away on the flagfall and apart from the problems with shifting ballast on the Clement Chausan 4½ litre and the retirement of the Earl of Howe in No. 11 with magneto trouble, the four Bentleys held the first four places virtually from beginning to end. At one point the Chrysler of Stoffel and Benoir reached third place but gradually the American challenge faded and W.O. (I.e. W.O. Bentley) reduced the speed of all cars to a fast tour. W.O.'s policy of not showing the potential of the cars irked the drivers. Jack Dunfee stopped at the pits and said I say, W.O., do you want me to get out and push the bloody thing? I've just stopped and had a drink at the Hippodrome', and he had one too. Shortly before 4 p.m. the cars slowed, formed up in line astern and at flagfall the victorious team cruised over the in finishing order: No.1, No.9, No.10, No.8, all Bentleys."
Some cruise! The speed was 73.62 miles per hour.
The cars in those days were driven back to England through France, via Paris, and one can imagine the victorious scenes which greeted the cars on their route back. They were driven by the engineers and mechanics. When they arrived at Cricklewood they were examined in length and depth.
As Mr. Hay in his expert's report says,
"It is important to realize that racing cars are invariably changed during their careers, to incorporate improvements and modifications, and because of hard use and accidents. This was effectively summarized by Nobby Clarke, head of the racing shop 1926 - 1929 and team manager at La Mans between 1926 - 1930 as follows in 1974: One must realize that the international reputation of the Company was at stake, and there had to be no mistakes made, by me or anyone else in authority. We therefore changed bits and pieces under racing conditions which under normal conditions could have been allowed to run on. Remember that once the starter's flag has dropped, it is too late to think I wish that I'd changed this or that'".
The plaintiff's experts, Mr. Hay and Mr. Guppy, with the aid of a remarkable series of photographs, the Bentley stripping records and service records, have been able to trace the way the car changed between each race, often significantly. Bentley Motors incorporated bits to latest specification when these were available. The changes are largely non-contentious between the parties and thus I can set them out in summary form.
Within a matter of weeks after participating in the Double Twelve race on 10th May, photographs taken in June 1929 show the Van den Plas body cut away for the driver's elbow was deepened. The body catches and straps had been changed; the petrol tank bar at the rear changed and Lucas headlamps substituted for Smiths. The chassis fairings had been removed and the handbrake changed to cable and adjuster pattern. It was essentially in this form that it arrived at Le Mans where it is noted that two horns had been added to the front. The fishtail exhausts required to placate the residents in the vicinity of Brooklands had been removed and a straight-through exhaust system substituted. It was in this form that it won the race at Le Mans.
A fortnight later, on 29th June, it was back at Brooklands for the 6 hours race. The back axle internals had been renewed along with the exhaust valves, and all the valves springs and rear drums. The Smith headlamps had been refitted and the former bonnet straps had again been changed. It won at 75.88 miles per hour and suffered slight damage.
Within a fortnight it had been modified and prepared for the Irish Grand Prix at Phoenix Park. The back axle internals had been removed; the fishtail had been refitted to the exhaust; the windscreen removed and aero-screens fitted direct to the body. In this form it took second place.
On 17th August 1929 it was ready for the Isle of Man TT Race. The fishtails were removed and a ballast bar added to the front of the chassis. Unfortunately the car crashed, suffering damage to the front end of the chassis, front axle, shock absorbers and brackets. The bonnet and magneto were replaced.
Even so, by 12th October 1929 it was ready for the 500 miles race at Brooklands. A new 600 cylinder pattern differential and spicer shaft had been fitted. The car was rebodied -- the four seater Van de Plas was removed and replaced by a two seater form with fintail or fishtail, new petrol tank and a fly-off handbrake had been fitted direct to a compensator. The gear lever was cranked outside the body with no reverse catch. The car in this form took second place.
Thus by the end of the 1929 season the car was overdue for a major overhaul. This must have taken a considerable period of time because there are no photographs between October 1929 and June 1930 when the car was entered for the Le Mans. In the intervening period two new Speed 6's were built to a new 1930 specification and the 1929 winner was similarly rebuilt. It is common ground between the experts and accepted by the defence that of the 1929 Le Mans winner possibly only the pedal shaft and the compensator survive.
The records reveal that the 4½ litre pattern differential was over stressed so the standard production 6½ litre differential was fitted with standard spicer shaft. The chassis frame was replaced, along with the front axle beam. A new gear box of the D Type, along with a new differential and spicer shaft were installed. Bracing across the front of the frame was changed. The Hartford friction shock absorbers were deleted and replaced by twin hydraulic Bentley and Drapers. It seems likely that the steering column was changed as well. There was a modified crankcase to accommodate the Bosch starter. Thus it can be seen that the 1930 car was very different from the 1929 car both in appearance and specification.
This Speed 6 did not race at the Double Twelve Race at Brooklands. However, Captain Barnato and Clement drove another 6½ litre and clocked the astonishing speed of 86.68 mph. Old Number One was being prepared for the Le Mans race along with two other Speed 6's.
The changes in the car can be readily seen from the series of photographs taken before and during the race. The car was again driven by Captain Woolf Barnarto. There was a formidable challenge from a supercharged 7 litre Mercedes Benz. Because of the Mercedes Benz' larger engine capacity it was assigned the No. 1 race number. The next three numbers were assigned to the three Bentley Speed 6's because they were of 6½ litre capacity, and No. 4 was assigned to the car bearing chassis number LB2332. Thus it was racing as No. 4.
Again, the account is of interest. The cars went off to a good start and the Mercedes driven by Karachiola and Berner did extremely well in early stages. Bentleys suffered some misfortune. However, the account reveals:
"The chase, though, was still on with Barnato taking over from Kitston with orders to push the Mercedes hard. Barnato finally took the lead on the 36th lap, pushing the Mercedes into using the clutch engaged supercharger all the time, the whine of which could be heard all the way round the track. It was well known that too much use of the supercharger would blow the Mercedes engine and Barnato was playing his part to perfection. The Mercedes led again on lap 37 and then the Bentley on lap 40, then the Mercedes again on No. 4's pit stop and handover to Kitston. The Mercedes came in to refuel on the 46th lap with Berner taking over for a brilliant spell in the dark to regain on the 59th lap, but this last effort heralded the demise of the Mercedes challenge. The reason, though, remains unclear to this day. The motor noted that the Mercedes had been suffering from weakening brakes and that flickering of the oil pressure gauge had been causing concern. Eton, in one of the Talbots, passed the Mercedes on one part of the course and noticed how powerful its headlamps were shortly before its retirement on the 82nd lap due to the battery being completely discharged. The failure of the Mercedes to respond to push-starting, coupled with W.O.'s mention of water pouring from a blown gasket suggests there was more to the Mercedes retirement than met the eye, and Karachiola and Berner told W.O. that their schedule, based on the 1929 Speed 6 performance, gave them a lead of a whole lap at that point -- a vindication of W.O.'s policy of not revealing his hand unnecessarily.
The rest of the race was inevitably something of an anti-climax. W.O. reduced the speed of the six Speed 6's to a fast tour with the Dangerfield car third and Birkin fourth. The two Stutzes (American cars) retired, one catching fire and the other with a deranged back axle. During the night Ramponi suffered from a fever and visions and could be persuaded to drive for a lap with only the greatest difficulty in order to meet the regulations. Of the Blowers (i.e. the Bentleys with superchargers), Birkin retired just before noon with a broken valve followed shortly by Dangerfield with a collapsed piston, a very stout effort having driven single-handed for ten hours. Thus it was that Old Number One Speed 6 led GF8507 over the line at 4 p.m. for the fifth and final Bentley win at Le Mans. The two Speed 6's also took first and second places in the Rudge Whitworth Biennial Cup with performance indices of 1.172 and 1.33 respectively. The British triumph was completed by the 2.3 Talbots which finished third and forth on distance and formula."
No-one has suggested that this car which won the 1930 Le Mans was a new car, merely that it was a metamorphosis from the 1929 car. The 1930 car was a continuous process and an evolutionary stage of the car's development. The modifications were clearly justified by the win and the increased average speed of 76.88 mph.
After this race Bentley Motors retired from racing and the car passed to Captain Barnato as his private motor car. Captain Barnato was a rich man and had many cars, including several Bentleys, but he always regarded MT3484 as his racing car. The registration book shows the alteration in ownership.
Shortly afterwards it was noted that there was a change to the windscreen and a standard exhaust system with silencer had been added.
Following its success at Le Mans it was prepared for the 500 miles race in October at Brooklands in 1931. The parts changed included the clutch stop, clutch shaft and linings, the offside stub axle with kingpin bearings, hubsteering arm, brake shoes and track rod. Five new main bearings and crankcase were fitted. For this race the Le Mans body was removed and replaced by the racing two-seater with its petrol tank.
From the photographs taken at Brooklands in October , further changes can also be observed. Double acting Bentley and Draper hydraulic shock absorbers had been installed to the rear along with additional inboard Hartfords friction absorbers. A horizontal mesh radiator stone guard had been added. A fly-off handbrake had been mounted on the compensator. The
radiator had been lowered, and various other less significant or visible modifications which I need not set out.
The result of this race was a resounding victory. The development had increased its speed to 118.39 -- nearly 9% increase on its previous year's performance.
At this stage I must refer to the evidence of Mr. Walter Hassan. He is now 85 years of age. He is a most remarkable man. He is acknowledged as being the master mechanic who looked after and ministered to and I have no doubt cherished the racing cars of the Bentley team, and in particular the Speed 6's. He gave me a short description of his life in mechanical engineering and he must have a reputation second to none. At least in this country if not outside it.
He told me that in 1930 Barnato, who was the Chairman of Bentley, asked Hassan if he would join Barnato to look after his team of cars. He was well familiar with what had happened to the car which had won Le Mans twice. Mr. Hassan was part of the team which had prepared the car for Le Mans on both occasions. I accept that Mr. Hassan and Captain Barnato considered that the same car had won both races. Captain Barnato having retired from racing himself, still took an active interest in the car. MT3884 was registered in his name in the log book on 5th July 1930. I am satisfied that after the 1931 500 mile race Captain Barnato asked Hassan to rebuild the car with whatever he thought was necessary to bring it up to a condition whereby it could race for several more years.
There was a fire in 1932 at Arden Run, the country seat of Captain Barnato where he kept his motor cars, and was the centre of activity both socially and otherwise for the Bentley Boys. As a result, the rebuild could not take place at Arden Run and it was conducted in a used garage in Mayfair, again owned by Captain Barnato.
Mr. Hassan started with a 4+ litre chassis frame which was stronger than the old 6.5 litre because it was feared that it would break or crack. Mr. Hassan told me that he used all the existing parts of the older car -- that is the radiator, the clutch, the gear box, the axles, the scuttle, the electrical equipment and pedals, as Mr. Hassan said in terms, "and we finished it up in the form it is now. It was ready for the 500 miles race in that September but Captain Barnato thought it would be a bit faster with a bigger engine, so we obtained an 8 litre engine and I built that into the car. That is the state that it ran in the race when Clive Dunfee unfortunately went over the top and was killed as a result."
He described in detail how they obtained the 4 litre side-members of the chassis and the 6½ litre cross-members in order to accommodate the D Type gear box from the old car which Captain Barnato insisted should be incorporated. Mr. Hassan told me that all the running parts that are important to a car came from the old 6.5 litre. It was really only the side-member which were replaced. He explained how Captain Barnato intended the car to be in effect the same car as it was before, and merely updated. For this reason, although new chassis side-member were incorporated, the old chassis number LB2332 was marked on the new chassis frame. The number was stamped but not, as I find, as Mr. Hassan recalls at the front of the chassis side-members in the vicinity of the dumb-irons. The numbers can clearly be seen on the front engine cross-members where the number is stamped twice. I suspect that this was done either by Mr. Hassan or a fellow mechanic engaged in that rebuild. This is of minimal significance.
The car in its new form and with the 6½ litre engine made its first race appearance on Easter Monday 1932 in the British Empire Trophy Race. It did not win and was deprived of third place. Captain Barnato was not used to his racing car not winning or taking a place -- even when he no longer raced the car himself. He thought the car was to slow. He was at that time on the Board of Rolls Royce. Using his influence he managed to obtain an 8 litre engine. There was only a week or so to the October race. He instructed Hassan to take out the 6½ litre engine and install the 8 litre engine. Hassan described how it went in easily. As he put it: "I did not have to do anything other than pull out the three bolts and put the other engine in and bolt it in again and connect up the clutch."
Photographs are available showing Barnato driving the rebuilt car on demonstration laps at the August 1932 BARC meeting at Brooklands. Mr. Hay, the expert called on behalf of the plaintiff, pointed out many parts from the Speed 6 -- namely the handbrake, radiator cap, droparm wings etc. As he put it in his report:
"It is clear that the rebuild represented an evolutionary stage in the development of the car, as in the 1929/1930 rebuild by Bentley Motors."
The final preparations for the 500 miles race at Brooklands included a cowl which was added to the scuttle in place of the aero-screen. There are many pictures of the car during the race and of the terrible crash. History records that the car went over the top of a bank at an estimated speed in excess of 120 mph causing Dunfee to lose control. He was thrown out of the car and received fatal injuries. The car appeared to break up and turn over, and there are several pictures of its sorry state when it came to rest. Not unnaturally, Barnato was very upset at the death of his friend. The car was recovered but it never raced again.
It is at this stage that mystery and myth start to surround the car. Commentators writing many years later seem to have formed the view that the car had suffered so much damaged that it was irreparable. This may well have been engendered in part by the dramatic newsreel film record. The doubting Thomases underestimated the skill of Wally Hassan. He examined the car. He told me: "The body was of course ripped off but all the mechanics, the mechanical parts, were all perfectly OK. The RAC held an inquest on the thing and no mechanical fault was found as a cause of the crash." Later he put disarmingly: "We were just able to clean it up and we had a new body built for it, a coupe body this time." The original 6.5 litre Speed 6 radiator was put back on the car. This item was very unusual because Captain Barnato had had all the cars successes inscribed upon the radiator and insisted that the radiator was incorporated in the car in the 1931 rebuild and the 1932 repair after the crash. The significance of this gesture appears hereafter.
Mr. Hassan, being an engineer, did not go along with the name Old Number One. That was a creature of the enthusiasts and no doubt journalists and other writers of the day. He knew it by the chassis number which, as he told me, is the true identity of any car. He knew it through out as LB2332. This was the number it carried right from the beginning when he first helped to assemble it way back in 1929. His power of recollection I found to be most impressive, although I am bound to say he appeared to tire towards the end of his evidence.
To the suggestion that the 1929 car had ceased to exist in 1932 he said "Well it did not, because the bulk of the car was fitted within the new side-members so that it was the same car, same wheels, same axle, same steering column, same clutch, same gear box." He then went on to describe what prompted the change of the chassis frame. The 4.5 litre cars all broke their chassis frames, one during the Le Mans race, one on the way home between Le Mans and Dieppe and one on the road from Newhaven to Cricklewood. This caused some anxiety. He also gave more details of his instructions, which were to put together as many parts of the first car, the 6.5 litre car, as possible within the two new side-members. They knew it was going to be used in the 500 miles race later that year and that they should build the car accordingly.
As he said in terms: "It was never the intention that it should be a new car. It was just the old car with new side-members which we had had problems with previously with them cracking. We took the best steps we thought possible to put the strongest chassis in. All the other parts were ex the body that had become known as Old Number One: engine, gear box, clutch, radiator, brakes, axles, all the sort of stuff which go together to make a car." He estimated that between 90 and 95% of the 1930 car went into the 1932 car. In the light of Mr. Hay's and Mr. Guppy's evidence I consider that this is an over estimate and the percentage was more likely to have been 70%, which was reduced when the 8 litre engine was substituted for the 6½ litre engine. This engine change did not require substantial modification to the chassis frame, gear box or axle.
The increased engine capacity was achieved by larger bores with the same piston stroke within the 6½ litre block. The inlet and exhaust sides were changed but I was shown at the view how this was achieved by simply swinging the 8 litre engine through 180 degrees before offering it to the chassis frame. Mr. Hassan also explained how later he was invited by Barnato to build a Bentley Special using the old 6½ litre engine. This was known as the Barnato Hassan Special and became famous in its own right. He also created the Pacey Hassan which, along with the Barnato Hassan, plays no part in this case.
In cross-examination he was asked about his book and how he had, when putting into writing his memories and career in a book called "Climax in Coventry" -- he was asked about the period of history of the car when he received his instructions from Captain Barnato. I shall not quote all the passages; only those I consider of particular relevance. He said at pages 29:
"At first there was no suggestion of my building a special track car for Barnato. I simply maintained his road cars whenever they were based at Arden Run and concentrated on preparing and developing his racing Bentley. The first car was the old Speed 6 which had brought Barnato so much success in the works team. He had all the successes he had gained with it engraved on the radiator. It had become his own property and in October 1931 he took it to Brooklands for the 500 mile race, where Jack Dunfee and Cyril Paul were to drive it ."
He then goes on to describe that race.
Later he was asked, reference bundle 3, 207A, why he wrote the following passage:
"Eventually we decided to retire the Speed 6 Old Number One and build a special track car, although the decision was rather forced on us when Jack Dunfee took it out in the Empire Trophy Race early in 1932 and brook its crankshaft. Now I won't say that this sort of breakage was unheard of, but for it to happen to a Speed 6 meant that the car had endured rather a lot of flat-out motoring. You could forgive it almost everything, though, because it had won a lot of races for Barnato and a lot of prestige all around. The new car was to be a purpose built racer and it was here that I put my idea to work on an entire car design for the first time. We had encountered chassis frame troubles on Old Number One so we decided to start with the strongest possible chassis. Although the 4 litre Bentley never had much of a reputation as a production car, its very strong frame, being a shortened version of the 8 litre, seemed to me to be ideal for the job.
At first we put the rebuilt 6½ litre engine out of Old Number One into the new car but it wasn't fast enough and somehow Barnato was able to get an 8 litre engine from Rolls Royce. The 8 litre engines were very rare by then so it needed considerable influence to get one out of Bentley's new owners."
Mr. Slowe would wish me to emphasize the words "retire", "build a special track car", "the new car was to be a purpose built racer" and "entire car design. We decided to start with the strongest possible chassis", and later "At first we put the rebuilt 6½ litre engine out of Old Number One into the new car".
Later he also uses expressions such as "the new track car was down through the trees on the entrance below" referring to the crash when the car had come to a standstill, and later "Barnato kept what was left of the car for some time and did nothing with it. Then eventually he decided that it should be rebuilt as there was not a lot of damage." There are other passages, notably where he seems to suggest that the car which was built which finally incorporated the 8 litre engine and which was entered for the race in 1932 at Brooklands in which Dunfee was killed was in fact a new car and not a continuation car of the 1929, 30 and 31 seasons.
I have had to consider that matter with great care. Mr. Slowe, if I may say so , dealt with the matter very delicately but tellingly in cross-examination, but at the end of the day I accept Mr. Hassan's explanation. He was merely talking into a tape recorder for the purpose of a book which was being produced or "ghosted". From this I infer that the matters were perhaps ghosted or he was assisted in writing those matters. Even those passages which suggest that must be read alongside the evidence which he gave.
I am satisfied that when he was giving his evidence his recollection was crystal clear and he was trying to help me as much as he could. If he could not remember anything he was frank enough to say so. I do not find those passages sufficient to impugn his integrity. He was a most careful and impressive witness and I accept his evidence implicitly.
Subsequent History
The subsequent history of the car can be summarized as follows. Following the 1933 rebuild it was fitted with mulliner fixed head coupe body. Captain Barnato drove the car as a road tourer in this country and in the United States. There was trouble trying to get fumes out of the car. Apparently even Wally Hassan could not cure that defect. In 1936 he sold it to a Major Hartley-White who sold it back to Captain Barnato and in 1939 the car was acquired by H.M. Bentley. In 1957 the car was acquired by a Michael Quinney. He and Alan Paget rebuilt the car with a two-seater body. In 1960 the car was purchased by a Mr. J. Ward in Lincolnshire. He sold it in 1966 to David Tunnick in the United States. In 1988 the car returned to the United Kingdom when it was offered for sale on the 5th December 1988 at Sotheby's. It was not sold and the car passed to Stanley Mann, a celebrated vintage car dealer and then to Edward Hubbard.
Based on all this data and information, it is Mr. Hay's considered opinion that none of the 1929 Speed 6 survives with the exception of fittings which is impossible to date. Of the 1930 Speed 6 he believes that only the following exist on the car as it is now, namely pedal shaft, gear box casing and steering column. Of the 1932 car, the 4 litre chassis and 8 litre engine form in which it was involved in the fatal accident, he believes that the following exist: the chassis frame, suspension (i.e. springs, hangers, shackles and mountings), front axle beam, back axle banjo, rear brakes, compensating shaft, front shock absorbers and mountings, the 8 litre engine, some instruments and detailed fittings.
On this analysis, and having examined the car as it exists today after Mr. Hubbard's rebuild of it, he has come to the conclusion that this car is a direct descendant of Old Number One Speed 6, the car that won at Le Mans in 1929 and 1930. The car has been rebuilt several times to reach its present form but has a continuous documented history from 1929. He is surprised why its identity is in question and he fails to understand how anybody could seriously argue that this car is not, by its continuous history,
Old Number One. As he put it: "there is most certainly no other car that has any claim whatsoever to be Old Number One." Thus we have the expert evidence of the historian. It is supported to a great extent by the evidence of Mr. John Guppy, the mechanical expert. He has over 30 years' experience as a mechanical expert which extends to Bentley motor cars. He received instructions from his later father who was the racing mechanic to the well known Tony Rolton and Red Parnell who were both amongst the leading British racing drivers of the post war period. He was a partner in the Mckenzie, Guppy & Sons which were universally acknowledged to be the leading repairers of Bentleys manufactured between 1919 and 1931, and sometimes known as Vintage or W.O. Bentleys. He served an apprenticeship with Mckenzie, Guppy &Sons and for the past 25 years he has been a freelance specialist in the restoration and race preparation of Vintage Bentleys and historic racing cars.
During that time he has maintained and repaired vintage cars of various leading Bentley exponents, and he gave names. During the course of such work he has become familiar with the design work of Walter Hassan. His experience also extends to having rebuilt the Pacey Hassan car twice and he has race-prepared the Barnato Hassan car which is still in existence. He is thus familiar with Hassan's work and considers it to have various recognizable characteristics. Hassan's experience, knowledge and ability coupled with exceptional connections allowed him to create three outstanding competition Bentleys during the 30s. The first of these was the car known as Old Number One, as well as the Pacey Hassan and the Barnato Hassan.
Hassan's vast experience, gained through direct involvement in Bentley Motors' racing programme enabled him select Bentley components best suited to his purpose and it would appear a combination of whatever parts he required. However, Hassan's cars contained relatively few adapted or modified parts. He did not hesitate to design his own components to suit his requirements.
There is also evidence from Mr. Hassan that whenever he could he always used as existing component providing it had been proved and there was no reason to suspect its integrity as a part or that it would let him down. As he put it: "I always liked to save my guv'nor money." I do not think it was merely parsimony that caused him to do that. It is the mark of an excellent engineer and his pride which will only permit him to use a replacement when the part is no longer serviceable.
Mr. Guppy went on to say that it is important to bear in mind that the purpose of maintaining a racing car is to ensure that it contains the optimum components available to enable it to win races. In the course of maintaining and repairing any racing car components would be continually examined, repaired and replaced to achieve the best possible performance and reliability. On occasions time constraints might also enforce the substitution of one component for another and the original may or may not be reinstated at a later time. In such circumstances it would, therefore, be quite unrealistic to complain that in 1990 a racing car first seen in 1929 did not exclusively consist of the original parts incorporated when the car was first built. A racing car is a continual development around a theme, and dependant upon its history might retain a greater or lesser proportion of its original parts without jeopardizing its perceived authenticity -- a word to which I shall return hereafter.
In his opinion, with regard to Vintage Bentleys it is relevant to observe that unlike a modern car, the bodywork was not an integral part and for racing purposes Bentley Motors fitted bodywork complying with the regulations for each event. This led to a situation where a car might have various bodies fitted during the course of a season's racing and bodywork being transferred from one car to another. Such changes and transfers were rarely recorded.
Having examined the car closely at the premises at Dutton U.K. Limited, and having satisfied himself that the numbers identifying the components correspond with the documentation relating to the car, he is satisfied that the chassis is stamped LB2332 and the engine is marked YH5127. As a result, he is in no doubt that the car in Mr. Hubbard's possession is the car which has historically been known as Old Number One. As he put it, "I base this identification upon this chassis which is rather unusual in that when it was rebuilt by Walter Hassan in 1931 he replaced the Speed 6 side rails with new 4 litre Bentley type side rails while retaining Old Number One's D Type gear box and related chassis cross members. I don't know of another Bentley with this configuration."
The plaintiff also gave evidence of an expert character but I do not think it right to accept his opinion on these matters, merely his description. He took me through in detail how the car was restored and produced a portfolio of coloured photographs which were assiduously taken each stage of the restoration process. Mr. Hubbard has obviously spared no effort and I suspect expense in establishing the bona fides of the car and sought perfection in researching the provenance and minute details of the car, including consulting Mr. Walter Hassan when the project first started. Mr. Hassan approved of the rebuild and was no doubt proud to be driven round the Montclery Circuit a few months ago with Mr. Hubbard at the wheel.
Thus the expert evidence is all one way. It confirms that as with any other racing car the parts in the car were continually being changed. Such changes were made either because the parts were worn or because the specification of the car needed upgrading. Accordingly, the car evolved over a period of time as a continuous entity and can still properly be regarded as the present legitimate manifestation of Old Number One. As Mr. Guppy put it,
"A racing car is a continual development around a theme and depending upon its history might contain a greater or lesser proportion of its original parts without jeopardizing its perceived authenticity".
The defendants did not call any expert evidence at all. No attempt was made to adduce as evidence (under the Civil Evidence Act) the views of any other experts, either dead or living. There was a hint when the case was well into its stride that the defendants might seek to call Mr. Keith Shellenburg. In the event, no expert's report was disclosed from him nor anybody else, nor was any application made. Even so, I must take account of other sources of information to which both sides referred.
Daryl Berthon is a former Secretary of the Bentley Drivers' Club. In 1935 he published the first edition of "A Racing History of the Bentley". In Appendix 1 he wrote an account of the 1931 500 miles race, stating:
"In this year's 500 miles race Woolf Barnato entered Old Number One Speed 6 No. 46 now fitted with a single seater body and driven by Jack Dunfee and Cyril Paul."
There were then two references to Old Number One and finally
"Old Number One crossed the line and received the chickened flag for the fourth time in its career".
I emphasize the words "fourth time"; it can only be a reference to the 1929 Le Mans, the 1929 Six Hour Race at Brooklands, the 1930 Le Mans and the 1931 500 miles race. He thus regarded the car as a continuous entity up until 1931.
In Appendix 2 he deals with the same race in 1932, the fatal race. He records:
"For the race. . . Old Number One had an 8 litre engine in place of the original 6½ litre engine and was driven by Jack and Clive Dunfee"
and later:
"Then behind the members' hill the exhaust noise of Old Number One suddenly cut out. It was never heard again."
Thus he regarded the 1932 crash as the end of Old Number One. In the second edition of his book it transpires that he had consulted Hassan "for solving the mystery regarding the fate of Old Number One Speed 6". In Appendix 1 he records at the end of the 1931 race: "This was Old Number One's last race"
and in Appendix 2 for the 1932 race he records:
"The Bentley driven by the Dunfee brothers in this race was not Old Number One."
These seemingly authoritative statements were the lynch pin of the defendant's case. This book was considered as the authoritative work on Bentley racing motor cars.
Mr. Hay, the plaintiff's expert, was only 22 years of age and still a student apprentice at British Aerospace when he set out to emulate Mr. Berthon. In 1986 he published his first edition of "Bentley - The Vintage Years 1919-1931". He devoted a whole chapter to the 6+ litre production and racing cars. In cross-examination he was naturally asked why, at page 92, beneath plate 192, he had written:
"If eye teeth were a marketable commodity, Old Number One Speed 6, winner of the 1929 and 30 Le Mans, here seen at Barnato's country house, Arden Run, just days before the 1929 race; the No. 2 is from the 1929 Double Twelve Race and a special cable operation with adjuster can be seen on the handbrake. Sadly broken up, bits of the original car survive in the 4/8 litre in the States, registration MT3464, chassis number LB2332, coach work by Van den Plas."
At page 278 he had recorded under a photograph of four Bentleys that one had survived and "the other three cars have all been broken up, i.e. including Old Number One." Mr. Hay had to concede, which he did with commendable frankness, that this was wholly inconsistent with his report and expert evidence. His explanation was that he had relied upon sources which included the respected Daryl Berthon. He also told me that he had changed his views well before he was asked to give evidence in the case. He was invited to Sotheby's to examine the car when it was in bond at Heathrow and helped to compile the auction catalogue in which his opinion that it is the same car, i.e. Old Number One, is included.
I have had to consider this matter with the greatest of care. I accept Mr. Hay's explanation and that his view had changed well before he anticipated giving evidence. I do not find that this inconsistency undermines to any significant degree the weight that I attach to his assiduous research into the history of the car and the opinion that he has expressed in his report and in evidence.
Mrs. Diane Barnato-Walker is the daughter of the late Captain Barnato. She was a surprise witness and contacted the plaintiff's solicitors of her own initiative when she read of this action in the newspapers. She was born in 1918 and was 14 years old as the time of the 1932 Brooklands crash. She was present at the 500 miles race and saw Clive Dunfee driving Old Number One, as she put it , in what she called gray primer. She was standing next to Jane Baxter, a celebrated actress of the day, who was married to Clive Dunfee. She witnessed the fatal accident.
Her recollection of the car has been rightly described by Mr. Rosen as "vivid". She had recollections of being driven by her father in the car in the grounds of Arden Run and how he used to time the car down the long drive. On the balance of probabilities, this was after it had ceased to be the property of Bentleys and had been acquired by Barnato as his personal racing car. This must have been after the 1930 Le Mans race and thus she must remember it in its Brooklands form in 1931 and 1932. However, the fire at Arden Run was in January 1932 so it is more likely that she remembers the car in that form at Arden Run in its 1931 form.
After the crash she remembers the car being rebuilt in its fixed head coupe form. She has fond memories of being collected in the car from her mother's home in North London by the chauffeur, de Holmes. He would stop at Lyons' Corner House at Marble Arch and buy her and her sister large yellow sweets which they would enjoy on the journey down to Arden Run in Surrey. It was a two-seater coupe and all three sat together in the front seat. It was very cramped. She recognized the car from a photograph. She recalls how fond her father was of the car. He treated it rather like a pet dog; he would often pat it on the radiator and say "Hello, Old Number One". Her father was deeply upset over the crash that killed Clive Dunfee, but he still regarded the car with great affection and she remembers him taking it to California.
I must, of course, heed Mr. Slowe's apt comment that some witnesses, with the passage of time, become more sentimental about the old days than actual events may warrant. I did not find Mrs. Walker such a person. She gave her evidence with great clarity and care but with evident pride and was patently trying to assist me in my task. She was, of course, of impressionable age and no doubt has great affection for the Bentley Boys whom she obviously knew well as visitors to Arden Run. She produced her cherished autograph album and I was privileged to see their entries. I have no hesitation in accepting Mrs. Walker's evidence. The importance is that so far as Captain Barnato was concerned, he regarded the car in its various forms from 1929 when it first won Le Mans until he sold it in 1936 as one single entity. It goes a long way to disprove the contention of the defendants that the winner of the 1929 and 1930 Le Mans died, lost its identity, disappeared into mere legend and myth and that a new car arose from its ashes.
As against this I have to consider Captain Barnato's letter in the Autocar in May 1943. This was in response to an article dealing with the history of the car up until 1931 and asking for information as to what happened to it after that. The inquirer had referred to it as "No. 4" and Barnato (who was by this time on war service in the RAF) in his letter in reply refers to the car in similar terms. Nothing turns on this: 4 was of course its race number in the 1930 Le Mans. Mr. Slowe relies very heavily upon this passage:
"It was after this race (the 1930 Le Mans) that I retired from race driving. I had the car de-tuned and used it on the road as a sports tourer including taking it down to the South of France in the late summer of 1930. In 1931 at the request of Jack Dunfee, I again had No.4 put into racing trim with its single seater body from the 500 miles race of that year... The car's final appearance was in the British Empire Trophy Race at Easter 1932, when it was deprived of third place by being given the chequered flag a lap too early. After this it was found that dear old No.4' had cracked her chassis frame and I decided to rebuild the car with a drop frame chassis similar to the 8 litre for the 500 miles race. When the car was completed it was found that the extra weight of the new chassis reduced its performance, so an 8 litre engine was put in instead...It was in this race ....Clive was killed. I rebuilt the car for the road, put a coupe body on it.....the original radiator with its inscriptions I still have somewhere. This radiator was badly damaged when the car went over the top in the...1932 race and a new 8 litre type was fitted when the car was adapted for the road; in fact one might really say that the inscribed radiator is all that remains of Old Number One." (? four)
Mr. Slowe submits that this is clear evidence that the car ceased to exist after the British Empire Trophy Race at Easter 1932. When it was found that the chassis frame was cracked Captain Barnato decided to rebuild the car with a new chassis and engine. This was a break in the continuity of the car and thus the 1929 and 1930 Le Mans winner ceased to exists for ever.
I have come to the conclusion that these submissions rely upon extracts of a letter taken out of context and which contain material inaccuracies. The letter as a whole relates to the history of the one and only car from 1929 up until he sold it in 1936. He makes it clear that it was his decision to rebuild the same car. He did not let it go into limbo, nor did it cease to exist. More importantly, he regards the car which raced in the British Empire Trophy Race at Easter 1932 as the same car that had won all the previous races back to the 1929 win. It also refers to the fact that it was racing with its old chassis and the 6+ litre engine in both 1929 and 1930 Le Mans races.
But in this regard I think his recollection with the passage of time was at fault. I accept Hassan's evidence that the car had already received the 4/8 litre chassis and it raced with the 6+ litre engine on the new chassis, and this must have been at the Empire Trophy Race 1932. Thus Captain Barnato was mistaken in saying the chassis and the engine were installed after the Trophy Race. I find as a fact by the time of the 1932 Empire Trophy Race it had its new chassis but was still racing with its old 6+ litre engine. That is why, probably, it was only in third place and explains why Barnato wanted it "hotted up" with a bigger engine in preparation for the 500 miles race in October.
When he refers to the "inscribed radiator as all that remains of Old No.4" he is literally correct. The engraved radiator was on the 1930 Le Mans car. I accept Hassan's evidence that it was still in the 1931 car when it raced at Brooklands and was incorporated into the 1932 rebuild after the fatal race, and I infer that it was probably still on the car when it went off the track in the fatal race. I find on the balance of probabilities that Hassan put it back on into the car after the crash and Captain Barnato removed it before he sold it in 1936. I see this as a deliberate, perhaps even sentimental attachment of Barnato to the car, yet indicative that he regarded the car between 1929 and 1932 throughout its four seasons of racing as one and the same. It may be that the radiator still exists. If so, it would be wonderful if it could be discovered, refurbished and reunited with the majestic motor car I saw in Lincoln's Inn; it would be its crowning glory.
In the course of cross-examination Mr. Hay was asked to consider propositions set out by Mr. Hugh Young, a well known enthusiast in his field. He postulates three tests for the integrity of a motor car. They are contained in a series of letters which I need not read at length save that in a letter dated 17th November 1989 he suggests that three tests to be applied are:
1. Historical continuity;
2. Physical originality; and
3. Owner's intent.
In answer to Mr. Slowe he accepted that those were three reasonable criteria to apply when trying to assess the provenance of a motor car. Applying them to the car in question he was satisfied that the historical continuity test could be passed with 100%; in other words it was unbroken and that was sufficient to establish the integrity of the car, bearing in mind that this is a racing car.
As to physical originality, he frankly conceded that the car which was produced failed this test "dismally". It cannot by any stretch of the imagination claim to be the physical original of the winner of any of its races. This could only have been established when it drove across the winning line at the end of each race, or possibly when it was being driven back through France by the mechanics to Cricklewood before it was stripped down either in 1929 or 1930, or indeed after any of its other races.
As to owners intent, Mr. Hay did not think much of that as a test and attached very little importance, if any, to it in the context of the car. I take a slightly more generous view of that aspect. Intent of itself would of course be nothing. It may be the owner's or creator's intent to preserve the continuity of the car by building a replica, but that would in itself not make it a genuine car or authentic. However, in this case I think there is sufficient evidence for me to draw the inference that nothing that Captain Barnato did or said, or any of the contemporary evidence can be said to be inconsistent with an intent on his part, a desire on his part to preserve the continuity of the car in his own memory and in others'.
In somewhat strange circumstances, the original logbook was produced in court. It had fallen into the hands of a Mr. Llewellen who apparently had built a car around the registration number and sought to register it. The DVLC initially granted the request but it came to the notice of the Bentley Drivers Club. Their authentication committee reconsidered the matter and recommended to the DVLC that Mr. Llewellen's car should be de-registered and that it was appropriate to re-allocate the number to the car which was in the process of being rebuilt by Mr. Hubbard. The logbook and its continuation show a continuous history for the car between its first registration on 24th April 1929 until March 1939. The chassis number is shown throughout as LB2332. The engine number is shown as having been changed from LB2336, the 6.5 litre engine, to YH5127, the 8 litre engine.
The logbook also faithfully records the body changes and the change of the colour from green, when it was first entered as a Bentley team car for the Le Mans race when the cars carried the traditional British racing green, to the maroon and black personal colours of Captain Barnato after the 1932 rebuild. Thus so far as the registration records are concerned the history of the car is continuous throughout its vital period of 1929 through to 1932 and thereafter to 1939 without a break.
There is no dispute that the car that Mr. Hubbard acquired from Stanley Mann was the car that can be traced from the car that Captain Barnato sold to Major Willard-White in 1936. Mr. Slowe submits that this record does not help to resolve the dispute as to weather or not a new car came into existence in the first Hassan rebuild. In a sense he is correct, but I have no doubt that those responsible were of such integrity that if a new car was created they would have recognized the necessity of surrendering the old registration documents and seeking a new registration for the new creation. This was not done.
The Bentley service records also show the car having a continuous history between 1929 and 1938. This series of documents carries less weight with me. I think Mr. Slowe is correct when he says that I should be slow to draw any inference in favour of the car when it is clear that the determining factor for the records is the chassis number which heads the records. Even if a new car had been created with a chassis upon which the old number was inscribed, the service records would have been identical. I think he is also right when he submits that as the racing shop records are no longer in existence I should attach even less weight to the Bentley records. To this extent the sub-structure upon which Mr. Hay's case is founded is weakened, but in my view not to any material degree.
I derive some assistance from some of the contemporaneous reports and documents from outside sources. In a letter dated 17th September 1931 Mr. Nobby Clark, who was in charge of racing shop, wrote to a gentleman in New Zealand about other
Bentley motor cars and having announced the sad fact that Bentley Motors Limited were in voluntary liquidation, went on:
"As a matter of interest, Captain Barnato has entered his old Le Mans type 6½ litre for the Brooklands Racing Drivers' Club 500 miles flat out race in October. (That must mean 1931) We are preparing the car in the department here."
Thus Mr. Clark from his important position regarded the car that was being prepared and entered for the 1931 500 miles race as the car that had previously won Le Mans. This is totally inconsistent with the defendants case that the old car was destroyed and that a new car was being created. This letter is more consistent with the general attitude of the racing car fraternity including the drivers and the engineers' view that racing machines moved from race to race. "You repair and race," as Mr. Hubbard put it. I would add one gloss: you repair, research, develop and race.
The new parts incorporated into the rebuild did not destroy the old car but was part of the process of development of its racing career which, in the case of the car in question, was over four seasons and but for the fatal accident would have continued thereafter.
Three days after the crash the Motor Magazine published a long and graphic account of the 500 miles race. The significance of this report for the purpose of this case is two-fold. First, the author records that "Clive Dunfee was driving Old Number One, a
Bentley with a famous record which had been fitted for this race with an 8 litre engine instead of the original 6½ litre power unit." This comment carries considerable weight with me. It is highly unlikely that if the historical continuity been broken, the contributor to such a prestigious magazine would have described the crashed car in such terms.
Secondly, however, there is a passage which reads:
"Still the fastest 500 miles race in the world, it might have been won at record speed but for the tragic accident in which Clive Dunfee lost his life and one of the fastest cars in the race was wrecked for ever."
Mr. Slowe relies upon this remark to show that the car ceased to exist. However, this was only three days after the race and before Wally Hassan had made his vital inspection and made the decision that it was only superficially damaged and that a rebuild was possible. I must also bear in mind that the defendant has never seriously contended that the 1932 post-crash rebuild was not a rebuild of the 1931 Brooklands car.
The East London Despatch, published in South Africa some weeks later, contained a report of the race and a tribute to Clive
Dunfee:
"The particular Bentley which crashed to ruin on September 24 was the famous Old Number One which won the 500 miles race in 1929. Owned by Woolf Barnato who has since given up motor racing, it was fitted with an entirely new engine for this year's race. The old veteran was resuscitated once too often."
I must be careful not to regard this report as supporting the plaintiff's case. However, it is wholly inconsistent with the defendant's contentions. Likewise, in the Times report of 26th September 1932, on the Monday after the fatal accident on the previous Saturday, it is reported:
"Mr. Dunfee had much experience of the car he was driving when he was killed. In partnership with Mr. S.C.H. Davis he drove it into second place in the 500 miles race in 1929 when it was fitted with its original 6 litre engine.
The car won the 500 miles race last year in the hands of Jack Dunfee and Cyril Paul. For this year's race the car had been fitted with an 8 litre Bentley engine."
Research has revealed that the Times reporter was Maynard Greville, a much respected commentator. These two articles again reveal the contemporary perception of the car, namely that it was the same car that had raced in 1929 and 1930 and again in 1931 and for the last time in 1932.
Mr. Slowe relied upon the sales particulars published by Jack Barclay Limited when the car was offered for sale in 1936. There is a reference to the engine number and the chassis number and the registration number, and rather beguilingly (secondhand)". It is described:
"A special chassis built for Captain Woolf Barnato modified in 1932, 1933 and later."
There is no reference to the car as the 1929 or 1930 Le Mans winning car. Nor is there a reference to the fact that it was the car which was driven by Clive Dunfee when it crashed and he was killed. There may well have been good reasons for Jack Barclay not to divulge the previous history of the car, particularly the fact of the crash, when he was offering it for sale. I therefore attach no importance to it whatsoever.
Equally, I attach no importance to the fact that Michael Sedgewick, the curator of the Montague Motor Museum, wrote to the editor of the Standard in 1960 to the effect that Old Number One had been completely written off in a tragic crash at Brooklands in 1932. He later consulted with Mr. Ward, who by this time had acquired the car and subsequently wrote that he was misinformed that the car had been rebuilt after the disastrous crash. He went on to say:
"There is no doubt whatsoever that the car now owned by Mr. Ward is none other than Old Number One and this has been confirmed by the Bentley Drivers Club."
Mr. Sedgewick was not called to give evidence, nor was his evidence put under the Civil Evidence Act. There is no evidence that he examined the car and he appears to have formed his revised view merely on what Mr. Ward told him. It was in Mr. Ward's interests to convince Mr. Sedgewick that he in fact owned Old Number One. Accordingly, I decline to put this correspondence in the scale on either side, save that it does confirm the defendant's contention that there was an informed body of opinion that the car was completely written off as a result of the 1932 crash.
I am satisfied that this body of opinion was totally misinformed and was totally unaware of the restoration work carried out by Wally Hassan which is now generally accepted as having restored the pre-crash car. In the course of evidence I was referred to many other articles and I have only picked out those which I consider to have been of any assistance to me when reaching the conclusion that I have.
Conclusions
I am satisfied that the car which was the subject matter of the contract for sale on 7th April is the Bentley known as Old Number One. The car can properly be refereed to as Old Number One. This is borne out by the logbook, the Bentley service records, the Bentley Drivers Club register, the evidence Wally Hassan, the evidence of Mrs. Walker, the evidence of Mr. Hay, the evidence of Mr. Guppy and the application of Hugh Young's criteria.
The name has been used to describe a particular racing Bentley in a succession of forms from its first registration, its first appearance in the Double 12 race at Brooklands in 1929 and successive races at Le Mans, Brooklands and other locations until it crashed, and thereafter when it was rebuilt in 1932.
I find that thereafter it continued to be known as and was properly called Old Number One, until its reappearance in the United Kingdom in December 1988 and its purchase by Edward Hubbard. I also find that the plaintiff has faithfully, sympathetically and accurately restored it to its last known racing form, i.e. the form it was in Brooklands in 1932 when it crashed. There has been no break in its historic continuity from the time when it first emerged from the racing shop in 1929 until today.
CLASSIFICATION
These findings are capable of further refinement and I turn to consider the car in the light of Jenkinson's classifications which were referred to in evidence and which are considered by many to be authoritative and helpful. For reasons of time and space I need not set out the original text of classifications. I consider only the relevant classification.
The car is not and cannot be considered to be, or be known properly as the "original" car which won either the 1929 or 1930 Le Mans. It would have to be composed of the same parts with which it left the racing shop or replaced by identical parts over the period of its existence, or the form for which it was prepared for the start of either race, or the form it was when it won. Degrees of originality, such as "nearly original", "almost original" or "completely original" have no meaning in the context of this car. It could properly only justify the description of "original" if it had remained in its 1929 Le Mans or Double Twelve form, even though such thing as tires, radiator, fuel tank had to be replaced (more than once) due to the ravages of time or use.
It cannot properly be described as "Genuine" Old Number One. This is a broad and practical description but more befitting a racing car which has had an active continuous life with no occasion when it disappeared into limbo or changed its character in any way. Old Number One has had a continuous life. It has never disappeared into limbo. It is arguable that it changed its character when after the 1932 rebuild it had a fixed head coupe body and it was used for touring in the United States, or later when it underwent its Mark Quinney transformation to the sorry state in which the plaintiff first saw it.
It cannot properly be described, as the defendants in effect contend, as a mere "resurrection" (another of the Jenkinson descriptions). Neither after the 1931 rebuild nor after the crash in 1932 did it reach the end of its useful life. The car in its then form (on each occasion) did not die, was not abandoned nor cannibalized, nor gradually dismantled and used as a source of spare parts for other cars. It did not reach the stage that such components as existed were gathered together to form the basis of a new car "from the bare bones or ashes of the original another one appeared . . . a resurrection from the dead, or from the graveyard". In 1930, 1931 and 1932 I am satisfied it was rebuilt substantially from its component parts and remained throughout a living entity.
Even the defendants have not suggested the car was merely a "reconstruction" after the 1930, 1931 or 1932 rebuilds or in its present form. This expression is meant to cover a car which stems from a single original component, or a collection of components from a variety of cars and where there is little left of the original racing car except its history and its character. The defendants have not really attempted to stigmatize the car in that matter.
Can it be said that the car bearing the plates MT 3464 which I saw in Lincoln's Inn gardens, can properly be described as "authentic"? That description or classification of Jenkinson requires some careful consideration. (Quote the definition "authentic") It is true that it has had a chequered career, through no fault of its own. It was given a clean bill of health after the 1932 crash. It has, however, never disappeared from view. The entity or sum of the parts has always existed in some form or another and has now been put back to a specification that it was in at some known point in its history, namely the start of the fatal 1932 Brooklands race, with the exception of the colour and possibly the detail of the rear suspension.
If anything, this car seems a better example of authenticity than that cited by Jenkinson. Here the entity which started life as a racing car never actually disappeared, so that the results of all the labours can justifiably be described as "authentic". At any one stage in its evolution it had indubitably retained its characteristics. Any new parts were assimilated into the whole at such a rate and over such a period of time that they never caused the car to lose its identity which included the fact that it won the Le Mans race in two successive years. It had an unbroken period of four seasons in top-class racing. There is no other Bentley either extinct or extant which could legitimately lay claim to the title of Old Number One or its reputation. It was this history and reputation, as well as its metal, which was for sale on 7th April 1990.
Summary
Thus, in summary, the expression Old Number One is the famous name in history of vintage Bentley racing car. It is justifiably applied to the car which in a succession of forms raced at Le Mans between 1929 and 1932 when it crashed. It is the "authentic" "Old Number One".
Note 1 See paragraphs 162 - 171 below for details of, and findings about, the contractual descriptions of the car. [Back] Note 2 See paragraph 159 below. [Back] Note 3 Paragraphs 244 -245 below. [Back] Note 4 See, further, paragraphs 75 – 80. [Back] Note 5 See, further, paragraphs 97 – 99. [Back] Note 6 See, further, paragraphs 175 – 182. [Back] Note 7 The sale agreement gave rise to a trade mark and passing off dispute involving Bentley Motors (1931) Ltd, the subsidiary of Rolls-Royce that acquired Bentley Motors, and Lagonda Ltd, the company that W.O. moved to from Bentley Motors (1931) Ltd. W.O. was contracted to Bentley Motors (1931) Ltd as a designer by the terms of the sale agreement. The relationship was an unhappy one and he left as soon as he could, after five years, and joined Lagonda. He was a co-defendant to the action which Bentley Motors (1931) Ltd won. The case is reported: Bentley Motors (1931) Ltd v Lagonda Ltd (1948) 64 Reports of Patent Cases (RPC) 34, Ch D, Roxburgh J. [Back] Note 8 The number set out in the BDC book “The Technical Facts of the Vintage Bentley” published in 1956. By 2009, a further 4 Speed Sixes may have emerged since an Octane Magazine article dated May 2009 on Vintage Bentleys stated that 181 Speed Sixes had been produced. [Back] Note 9 90/MJ/2474, unreported, 27 July 1990, QBD, BAILII: [1990] EWHC 1 (QB). The judgment is available on the internet and is annexed to this judgment. [Back] Note 10 See, further, paragraph 88 below. [Back] Note 11 Relevant extracts of these publications were put in evidence at the trial. The relevant works are: The Technical Facts of the Vintage Bentley, Edited by C.H.D. Berthon, 2nd Edition 1956; All The Pre-War Bentleys – As New by Stanley Sedgwick, 1976 and Bentley, The Vintage Years by Michael Hay, 2nd Edition 1997 and a further source of valuable information about the Speed Six: Bentley Speed Six by Clare Hay, 2008. [Back] Note 12 See paragraph 45 above. [Back] Note 13 See paragraphs 117 – 127 below. [Back] Note 14 See, further, paragraph 35 above. [Back] Note 15 See paragraphs 193 – 194 below. [Back] Note 16 See paragraph 114 below. [Back] Note 17 See paragraph 131(9) – (10) above. [Back] Note 18 See paragraph 54 above. [Back] Note 19 See paragraphs 74 – 81 above. [Back] Note 20 See paragraphs 82 – 91 above. [Back] Note 21 See paragraphs 55 – 56, 85, 87, 90 & 95 – 96 above. [Back] Note 22 See paragraph 88 above. [Back] Note 23 See paragraphs 95 – 96 above. [Back] Note 24 See paragraphs 97 – 99 above. [Back] Note 25 See paragraphs 34 – 35 & 97 – 99 above and 138 below. [Back] Note 26 See paragraphs 101 – 104 above. [Back] Note 27 See paragraphs 135 – 138 below. [Back] Note 28 See paragraphs 35, 97 – 99 & 135 - 138 [Back] Note 29 See paragraphs 112 – 115 below. [Back] Note 30 See paragraphs 151 – 153 below. [Back] Note 31 See paragraph 164 below. [Back] Note 32 See paragraph 100 below. [Back] Note 34 See paragraphs 121 – 127 above. [Back] Note 35 See, further, paragraphs 35 and 97 – 99 above. [Back] Note 36 [1965] 1 WLR 623, CA, at page 627. [Back] Note 37 [2000] 3 EGLR 31, Ch Division, at page 33. [Back] Note 38 See paragraph 159(1) – (3) below for a finding as to when these contracts took effect. [Back] Note 39 Savills v Scott [1988] 1 EGLR20, 12 EG 115 (1988), DC. [Back] Note 40 Fortis stated in its evidence that the sale agreement was entered into on 30 May 2007. See further paragraph 159(2) below. [Back] Note 41 See, further, paragraphs 160 – 161 below. [Back] Note 42 See paragraph 160(11) below for an explanation as to how the deposit was reduced to £35,000. [Back] Note 43 See paragraph 159(3) above the precise date the agreement must have been completed and taken effect. [Back] Note 44 [1935] All ER 209, PC, at page 215. [Back] Note 45 See paragraph 156 above. [Back] Note 46 See paragraph 194 below. [Back] Note 47 This was an error for PG. [Back] Note 48 (1854) 9 Exch 341. [Back] Note 49 [1962] 1 All ER 789, CA, at pages 793 – 794. [Back] Note 50 See paragraphs 208 & 213 above. [Back] Note 51 See paragraph 218 above. [Back] Note 52 See paragraph 219 above. [Back]