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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> LSG (Europe) Ltd v Payen [2013] EWCA Civ 217 (01 March 2013) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/217.html Cite as: [2013] EWCA Civ 217

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WANDSWORTH COUNTY COURT
(HIS HONOUR JUDGE WELCHMAN)

		Royal Courts of Justice Strand, London, WC2A 2LL
		1 March 2013

Lord Justice Kitchin:

1. This is an application by LSG (Europe) Limited for permission to appeal against the judgment of His Honour Judge Welchman sitting in the Wandsworth County Court dated 23 August 2012 and his consequential order whereby he dismissed LSG's claim against the defendant, Mr Payen. Permission to appeal was refused on the papers by Longmore LJ by order dated 20 December 2012. LSG has requested that that decision be reconsidered at an oral hearing and it has come before me today. Upon this application LSG has been represented by Mr Thornton, who is its company secretary.
2. The claim arises out of a road traffic accident which occurred on 3 September 2008. LSG was not involved in the accident directly, but its employee, a Mr Michael Wadham, was. He was driving a Suzuki motorcycle which collided with a BMW motorcar driven by Mr Payen. It was accepted that the accident occurred as a result of Mr Payen's negligence.
3. On 2 September 2011 LSG issued these proceedings claiming damages arising from the absence of Mr Wadham from work. It sought damages in excess of £32,000 based upon five invoices said to represent the costs of employing temporary electronic security personnel needed to carry out Mr Wadham's work during the period of his convalescence.
4. The Particulars of Claim were signed by Mr Victor Stockinger, a solicitor advocate who was then instructed by and represented LSG. The case was allocated to the multi-track and, as I have said, came on for trial on 23 August 2012.
5. The judge dismissed the claim for two reasons. First, it was not supported by any evidence save for the Particulars of Claim to which I have referred and five invoices in the trial bundle. The Particulars of Claim contained a statement that Mr Wadham was and is an electronic engineer employed by LSG and that LSG had suffered losses as a result of his injury which gave rise to a claim for damages. The losses were supported by the five invoices.
6. The judge considered that this was not sufficient support for the claim, there being no evidence as to Mr Wadham's role or responsibilities as an employee, no explanation of the need for replacement cover and no explanation as to the nature of the work carried out by the temporary personnel hired in his absence.
7. The second reason that the claim failed was because the judge held it was not sustainable as a matter of law. It was a claim for financial loss and the judge was not satisfied that Mr Payen owed to LSG a relevant duty of care which he had breached. LSG was not itself involved in the accident and had merely suffered consequential loss as a result of injury to its employee and his absence from work.
8. Upon this application Mr Thornton has advanced what I understand to be four grounds of appeal and he has elaborated those in the course of his oral submissions to me this morning. First, he contends that LSG had a further and different claim founded upon an assignment by Mr Wadham to LSG of his cause of action. The problem with this submission is that it provides a basis for a claim which is wholly different from that which was pleaded by LSG and advanced on its behalf by Mr Stockinger at the trial. I say nothing about whether or not such a claim would have had any merit or whether or not it is a claim which is still open to LSG to pursue in other proceedings. However, I have no doubt at all that it does not improve LSG's prospects of successfully appealing the case which was pleaded and advanced at trial. Any claim founded upon Mr Wadham's cause of action could have been pleaded and advanced at the trial and supported by appropriate evidence but it was not, and I see no prospect of an appeal against the judge's judgment and consequential order upon this ground succeeding.
9. The second ground of appeal advanced by Mr Thornton is that LSG had virtually no notice of the trial date and only became aware of it in circumstances such that it was unable to call any witnesses to give evidence because they were all abroad. Indeed, Mr Thornton continues, in early July he informed Mr Stockinger that he would be travelling during the whole month of August and unable to provide instructions or information in relation to any ongoing cases during that time, and that it was therefore imperative that nothing should take place which required his attendance or presence in England. He says that Mr Stockinger advised him that there were no hearings scheduled to take place during August and so there was nothing for him to worry about.
10. Then on 16 August Mr Stockinger advised LSG that a counter schedule of loss had been served upon it together with an outline of submissions with an indication that there was to be a hearing the following week. But LSG gained the impression that the hearing was to be a directions hearing and accordingly Mr Thornton instructed Mr Stockinger to seek advice from counsel and to ascertain what evidence needed to be gathered. Mr Thornton continues that it was not until the Friday before the date fixed for the trial that it became clear that the hearing fixed for the following week was in fact the trial and that it was only three working days away.
11. The insuperable difficulty facing LSG in relation to all of these contentions is that Mr Stockinger was the solicitor on the record and was instructed by LSG to conduct these proceedings on its behalf throughout. If and insofar as there has been any failure by Mr Stockinger properly to advise LSG or properly to follow instructions, that is a matter in relation to which LSG may be able to seek recourse against him. Mr Stockinger is not before me and it would not be right for me to express any view about the merits of any complaint or claim that LSG may have against him or his firm and I do not do so. For present purposes I am simply concerned with the claim advanced by LSG against Mr Payen. So far as Mr Payen is concerned, Mr Stockinger was on the record throughout and there is no basis for depriving Mr Payen of the benefit of the judgment that he has secured.
12. Mr Thornton next contends that once LSG became aware of the fact that the trial was due to take place he asked Mr Stockinger to seek an adjournment. However, Mr Thornton continues, Mr Stockinger disregarded that instruction and instead attempted to draft witness statements and prepare a trial bundle and then proceeded to attend on the day of the trial and attempted to conduct it without the benefit of any witnesses and contrary to instructions.
13. Once again these are very serious allegations as to the merits of which it would be inappropriate for me to express any view. However, so far as this appeal is concerned, Mr Stockinger continued to act throughout on behalf of LSG and represented it at the trial. There does not appear to have been any request for an adjournment and in any event the trial proceeded. Accordingly, once again these are, it seems to me, matters between LSG and Mr Stockinger. As Longmore LJ said, it may have grounds for recourse against Mr Stockinger but that does not provide any ground for an appeal from the judgment and consequential order of the judge.
14. Finally Mr Thornton contends that an appeal has a real prospect of success because there is evidence which was not made available to the court at the time of the hearing and that such evidence would have been filed in advance of the hearing had LSG been given proper notice of it. It is apparent from this ground of appeal that the evidence upon which LSG seeks to rely could and should have been adduced at the trial. There is no proper basis for seeking to admit it on the appeal or for ordering a retrial.
15. For all these reasons and despite the very clear submissions made by Mr Thornton both in writing and in the course of this oral hearing, I have reached the conclusion that an appeal has no real prospect of success and accordingly this application must be dismissed.

Order: Application refused