[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Barker v Fuller [2001] EWCA Civ 379 (7 March 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/379.html Cite as: [2001] EWCA Civ 379

[New search] [Printable RTF version] [Help]

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MEDWAY COUNTY COURT
(HIS HONOUR JUDGE RUSSELL-VICK QC)

		Royal Courts of Justice Strand London WC2 Wednesday, 7th March 2001

1. LORD JUSTICE WARD: This is a renewed application by the defendant to seek permission to appeal the order made by His Honour Judge Russell-Vick when he awarded the claimant some £56,000 damages inclusive of interest for the conversion of six motor cars. The application for permission was refused by My Lord on paper for reasons which when I first read them struck me as fairly compelling, but Mr Leonard has renewed his application, and fortunately provided a further skeleton, and in the result has satisfied me that this is a case in which we should give permission to appeal.
2. I shall explain that very shortly. After a four-day trial the judge gave a judgment which, charitably, can be described as crisp, but for the purposes of the appeal might be said to be wanting insufficient reason fully to explain why the judge came to the decision which he did. The claim originally related to seven motor cars but the claim in respect of one of them was abandoned. There had been four previous cars passing between the same parties. In respect of those the Court had earlier found that the dishonest salesman, Mr Wilson, employed by the claimant, had pocketed the proceeds having persuaded the defendant to pay for them by a cheque in Mrs Wilson's name. The basis of the judgment under appeal is that these remaining six transactions were a mirror image of the other four.
3. The problem, says Mr Leonard, is that in the case of one of them at least, the Mercedes, there was a fairly compelling body of evidence, so he would submit, which supports the case that that Mercedes was in fact bought by the Maingate Branch of the defendant's business; that it was paid for by a cheque drawn on that branch's account in favour of the claimant; and if that were correct, then that was a perfectly honest transaction and no claim for conversion could possibly arise. His complaint is that the judge had to deal with but simply failed to deal with that Mercedes transaction and that which would have undermined the basis of his fundamental finding of mirror image transactions.
4. The judge also had to consider the defendant's case that the defendant had purchased vehicles from Gary Ashton Cars from Portman Car Centre and from a Mr Mullane. Mr Mullane was not called but the other two did come to give evidence and produced documents to support that evidence. In the one case the invoice was manufactured after the event, and there are obvious criticisms to be made of that witness. But the judge proceeded this way:

"I have considered that evidence carefully but I have to reject it. It is not in accord with the evidence of the meeting in March 1994 when there was clear reference by Wilson and the defendant as to 11 cars which the defendant had had from Wilson."

5. It would seem that the reason for rejecting that evidence was the preference for the recollection of the claimant that 11 cars in all had been traded. The judge may have been perfectly entitled to come to that conclusion but it behoved him, submits Mr Leonard, to explain why two traders should be persuaded to give wholly perjured evidence and be prepared to support that evidence with documents which, on the judge's findings, must have been concocted. That they deserved an explanation before thus being condemned is the primary submission of Mr Leonard.
6. Finally it is submitted that the judge, having found that in general terms the defendant was an honest trader, the judge at least owed that generally honest trader an explanation of why he rejected what was being put forward as a contemporaneous stock record which recorded the purchases from these third parties as well as others, a document which on his findings had to be especially manufactured. In other words, and in a sentence, the judge failed to perform his judicial duty sufficiently to explain why he found against the defendant. Mr Leonard has not yet relied upon but doubtless will rely on Flannery v Halifax Building Society [2000] 1 WLR 377 to argue that a judgment which is not sufficiently explained is capable of being attacked for that reason alone. Mr Leonard persuaded me that at least he has an arguable complaint and permission should be granted accordingly.
7. LORD JUSTICE MANCE: Mr Leonard has also persuaded me that I was wrong in thinking that there was no real prospect of success. In the light of the matters which my Lord has mentioned, I may also also have been too charitable in describing the judge's reasoning as no more than "certainly short". It seems to me that there is a real prospect of success in the argument that it was far too short in the context of the issues which fell to be decided.
(Application granted and extension of time; costs in the appeal) (Order does not form part of approved Judgment)