“This draft judgment super[s]edes the draft judgment previously sent to the parties on8 August 2010 . That earlier judgment should be discarded. The changes between the two judgments do not affect or alter the decisions, findings or reasoning set out in that previous judgment.”
“11. I also refuse permission on ground 24 which complains that I made findings of dishonesty against Mr Mann [the dealer] which were unjustified and irrelevant. These findings were necessary, fully addressed in the evidence and counsel’s submissions and could not be avoided if the issue for determination relating to what was said and warranted was to be determined.”
“[94] Once a judgment has been handed down or given, there are obvious reasons why the court should hesitate long and hard before making a material alteration to it…The cases also acknowledge that there may very occasionally be circumstances in which a judge not only can, but should make a material alteration in the interests of justice. There may for instance be a palpable error in the judgment and an alteration would save the parties the expense of an appeal. On the other hand, reopening contentious matters or permitting one or more of the parties to add to their case or make a new case should rarely be allowed. Any attempt to do so is likely to receive summary rejection in most cases. It will only very rarely be appropriate for parties to attempt to do so. This necessarily means that the court would only be persuaded to do so in exceptional circumstances, but that expression by itself is no more than a relatively uninformative label. It is not profitable to debate what it means in isolation from the facts of a particular case. [95] The practice of providing the parties’ legal representatives with a draft of written reserved judgments a day or two before the date appointed for handing them down is intended to promote efficiency and economy. Typographical corrections may be made so that the judgment is available in its final form for publication on the day it is handed down. The parties are enabled to agree the form of any order and consequential order, for instance as to costs. The court time taken in delivering the judgment is reduced to a minimum. In many cases, the parties are relieved from the expense of their lawyers attending when the judgment is handed down. The standard notice on a draft judgment states the purpose of making it available and the limitations on its use and publication. It is not provided so that the parties may reopen its substance. If a draft judgment is altered materially after it has been provided to the lawyers but before it is handed down, that fact will become known to the clients. As a minimum, disappointment may ensue. The possibility of an appeal based on the differences between the draft judgment and the handed down judgment is increased. This was certainly so in the present case in which, as Rix LJ indicated in Noga v Abacha[2001] 3 All ER 513 , an appeal became inevitable, or at least highly likely. [96] It scarcely needs saying that judges should not send draft judgments to the parties’ legal representatives in accordance with the Practice Direction, if they themselves perceive a risk that they may want to change them materially before they hand them down. More importantly, perhaps, parties should understand that this procedure is not an invitation to the court to reopen or add to contentious matters. The court will only exceptionally make material alterations to a draft judgment provided in this way. So perhaps the uninformative label “exceptional circumstances” needs to be appended to the exercise of the jurisdiction. I personally prefer Rix LJ’s “strong reasons”, but that again is only a label. The question whether to exercise the jurisdiction can only depend on the circumstances of the particular case… [98] The circumstances of the case will usually include the possibility and appropriateness of an appeal. The court in which the problem arises may be a consideration, since appeals in lower courts are generally less troublesome and expensive for the parties than appeals at higher levels. I have indicated my view that there is a material distinction between a judgment which has been handed down or given and a draft judgment which has not yet been handed down. There is also, in my view, a significant difference between a case in which one or more of the parties want to persuade a reluctant judge to reconsider a draft judgment; and a case where the judge himself has decided that his draft judgment is wrong. In the latter case, at least where the judgment is only a draft, I consider that the judge is positively obliged to alter it, however the consequences of doing so may appear. It cannot be right for the law to require a judge to hand down for the first time a judgment which he believes to be wrong…”
“It need not involve a lengthy judgment. It does require the judge to identify and record those matters which were critical to his decision. If the critical issue was one of fact, it may be enough to say that one witness was preferred to another because the one had manifestly a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon.”
“[24] We are not greatly attracted by the suggestion that a judge who has given inadequate reasons should be invited to have a second bite at the cherry. But we are much less attracted at the prospect of expensive appellate proceedings on the ground of lack of reasons. Where the judge who has heard the evidence has based a rational decision on it, the successful party will suffer an injustice if that decision is appealed, let alone set aside, simply because the judge has not included in his judgment adequate reasons for his decision… [25] Accordingly, we recommend the following course. If an application to appeal on the ground of lack of reasons is made to the trial judge, the judge should consider whether his judgment is defective for lack of reasons, adjourning for that purpose should he find this necessary. If he concludes that it is, he should set out to remedy the defect by the provision of additional reasons refusing permission to appeal on the basis that he has adopted that course. If he concludes that he has given adequate reasons, he will no doubt refuse permission to appeal. If an application for permission to appeal on the ground of lack of reasons is made to the appellate court and it appears to the appellate court that the application is well founded, it should consider adjourning the application and remitting the case to the trial judge with an invitation to provide additional reasons for his decision or, where appropriate, his reasons for a specific finding or findings.”
“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.”
“SB2770 NH2732 PG6345 February 30 Saloon (W) Freestone & Webb Miss Unwin”
“SP SB2770 NH2732 PG6345 2/30 Saloon (W) Freestone & Webb Miss Unwin”
“PG 6345 Chassis SB 2770 (Speed Six) with axles and steering column. In need of restoration.”
“For the avoidance of doubt, let me explain right away the difference between a standard Six engine and a Speed Six engine. Both have the same crank case design, both have the same block design, save for improved porting for better gas flow on the Speed model engine, Both have the same sump design, both have the same ignition. The Speed model has two carburettors instead of a single unit. The Speed model has uprated compression pistons, while a choice of camshaft was available. The horsepower output was increased by virtue of these modifications by around 15%. The car in question has all of the features, including the single port Speed model block, which the Speed model specification offered. It has the uprated horsepower. Only the crank case is from a standard car, but is identical to the Speed Six crank case. This part of the engine bears the engine number WK2671.”
“Engine and f/axle fitted to other cars”
“BENTLEY SPEED 6 CHASSIS NUMBER SB 2770 1. I am in receipt of your letter and V55/5 application for registration and licensing the above vehicle, and enclosing a copy of “All the Pre-War Bentleys” by Stanley Sedgwick, for which latter item I am extremely grateful. 2. I note the body has been restored as a tourer, not as in the original form of the vehicle, a saloon. Please let me know of any particular reasons for this deviation. 3. I shall also require the receipt from the previous owner for the sale of the vehicle to yourself, please. Alternatively, if you will let me know the full name and address details of the preceding owner, I will contact that owner direct. 4. I would also like to know the antecedents of the engine unit which differs from the original – an invoice indicating its origin, or alternatively a statement from yourself in that regard. 5. In the meantime, arrangements will be put in hand for examination at your premises.”
“Vehicle inspected…Reg. Mark confirmed by ‘All the Pre War Bentleys’ p52 written by S Sedgwick”
“SPEED SIX 1930 PG 6345… 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 L.H. mounting lug. You accepted monthly payments until it was ready in 1981… …I used it for continental rallies and once parked next to Paul Sydowsky’s Speed Six en route to Venice only to learn that he had the original engine from the car [NH 2732]. We became very good chums… Up to 1986 I used it to go to Cape St Vincent (Portugal), Czech Republic, and all over Europe on rallies… Very sorry to part with her but lack of time means she no longer gets the use she deserves.”
“Registration No. PG 6345 Chassis No. SB 2770 Engine No. WK 2871 Chassis No. SB 2770 Price A pleasant surprise This Speed Six Bentley was restored by Stanley Mann in our old work shop in 1980. At the time I was rebuilding this Bentley with the intention of racing her but this friendly chap walked in and said, “No, I want one of these because I want to do rallies and continental touring and that Speed Six ticks all my boxes.”
“Fully rebuilt some 15,000 miles ago by Stanley Mann (1979-81) both mechanically and bodily New correct fitted full V.D.P. Le Mans body to drawings of the 1929 Le Mans Cars. Four seater with racing wings, fold flat screens and Le Mans tank. Engine rebuilt at this time and has proved very reliable still not showing any signs of heating problems and constant 45 psi oil pressure all perfect. Rebuild included new radiator core, fully remetalled engine, 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 gate of 100 mph.”
“Mrs Brewer and her husband Peter then came down to see you, and obtained from you a more detailed explanation of what had been done to the Bentley namely that it had been rebuilt some 15,000 miles ago by Stanley Mann both mechanically and bodily including an engine rebuild. Mrs Brewer was told by Mr Mann that the engine was not the original engine. 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 reassured that the engine was a Speed Six”
“…you recount part of the conversation I held with your Clients. I most certainly did say that the engine had been changed during the car’s long life and I am pleased that there is no dispute about what I said. It is true that Mrs Brewer then asked if an engine change meant that it was no longer a Speed Six, to which I correctly answered that it most certainly was a Speed Six, but that it had undergone changes in the last 75 years, as was often the case, but the engine was prepared to Speed Six specification. Both factory and agents as well as private owners frequently undertook changes, not all of which were recorded, while some were inexplicable.”
“Our client asked Mr Mann how many Speed Six Bentleys were made and she was told about 100 and something (in fact the true figure is 177) and she further enquired as to how many were left and Mr Mann said about 40. She told Mr Mann this was important to her because if there were only 40 in the world the car would hold its value (subject, of course, to market fluctuations). At this point Mr Mann said “I tell all my customers that if they ever want to sell their car I will buy it back for what they paid me.”… After further consideration and discussions, Mrs Brewer decided to proceed with the transaction and detailed terms were then discussed. E-mails were exchanged with Stoke Park Finance Limited who was approached on your recommendation to finance the transaction and who in fact required a valuation which Mr Mann said he would arrange. This consisted of a letter from Bentley Drivers Club of24th May 2007 (attachment 5) addressed to Mr Mann stating that they had examined the Bentley and confirmed its value of£550,000 . This valuation itself was most influential in our client’s decision to proceed with the transaction as she regarded Bentley Drivers Club as being of the utmost good standing and importance.”
“Research indicates that vehicles with original bodies demand a premium and that detailed records for each vehicle should be available”, which may possibly amount to a suggestion that the provenance of each vehicle can be researched (eg through such records as Hay and Sedgwick). As for the specific: “A recent example of a Speed Six, chassis no SB2773 was sold in the USA at auction in August 2006 for$1,815,000 . 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…A price range between$400,000 and$5m USD has been attributed to this particular model depending on condition and provenance.”
“Typically, high quality classic cars are seen as an investment hence depreciation is not attributable. This assumes that the vessel is kept in appropriate storage and has all relevant documentation.”
“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…”
“We picked up the Bentley yesterday…The car is wonderful…”
“These Terms and Conditions shall apply to any Contract of Sale between Stanley Mann Racing Ltd (the “Seller”) and the Purchaser, including any related part-exchange. The subject-matter of the contract is referred to as “goods” below. 1. Any motor vehicle sold by the Seller is sold as a collector’s item and not as a means of transport. Purchasers are specifically warned that any vehicle sold as such may well have had parts replaced and paint renewed or be made up of parts from other vehicles, the condition of which may be difficult to establish. Accordingly, the Seller cannot and does not guarantee the serviceability of all or any of the parts of which the motor vehicle being the subject of the contract is made up. 2. The Purchaser is specifically warned that when any motor vehicle is described as “original” this does not necessarily mean that the motor vehicle has the original parts or finish with which it was manufactured since the term is often used to denote vehicles which have naturally evolved over the years as distinct from those which have been entirely rebuilt or renewed and the Seller can accept no liability arising out of the use of the word “original” in relation to any motor vehicle… 8. The liability of the Seller under this contract shall be limited to the invoice value of the goods. These terms were referred to on the front of the invoice, viz “The terms and conditions overleaf form part of this contract.”
“I assumed that my engine was but another change at Bentley Motor Works and I still believed my engine was a genuine Speed Six engine…we found it impossible to find the details [of engine number WK 2671] in the Hay Book without the chassis number, but at that point I had no reason to believe I had anything but a genuine Speed Six engine.”
“…we hold you to be in Default under the terms of your agreement and I will have no option but to commence the recovery process unless you take action now to clear the arrears within seven days from the date of this letter. Failure to make payment within seven days will result in the full outstanding balance of£448,347.00 becoming due, we will then repossess the vehicle, offset any sales proceeds received against this amount and you will be liable for the shortfall. I look forward to hearing from you by return.”
“I had known of Bonhams for years…and therefore supported my wife’s decision”
“Valuation of 1930 Bentley Speed Six – Chassis Number SB: 2770 Dear Peter The following letter confirms the official Bonhams Auctioneers valuation of the 1930 Bentley Speed Six. Upon inspection of the vehicle (Chassis Number: SB 2770) we have found that the car in question has been subject to an engine change, the replacement engine (Engine Number: WK 2871) In fact WK 2671 is according to the Bentley records from a 1927 Bentley 6½ Litre (Chassis Number: TW 2705) This is not correct. Hay said that engine number TW 2710 was from chassis number TW 2705. This would indicate that TW 2710 also came from a Standard 6½ litre car: see at para 51 above. Engine number WK 2671 in fact came from chassis number FW 2614, as reference to Hay demonstrates. purported to be up-rated to Speed Six specification. The Bentley Speed Six was not introduced until 1928 so we can conclusively confirm that the car does not contain a Speed Six engine. The car originally carried Saloon coachwork by Freestone & Webb, which has been converted to a ‘Le Mans Replica’ Open Tourer. From this information we would place the auction valuation on this car as a 1930 Bentley Speed Six with a 1927 Bentley 6½ Litre engine, fitted with ‘Le Mans Replica’ coachwork: Auction Value:£300,000 –£350,000 ”
“Our client would never have entered into the Agreement had she known the true situation as she never wanted a hybrid car worth very substantially less than the genuine article especially since one of the side benefits of owning a genuine Speed Six is appreciation in value, subject to market fluctuations.”
“he says he wants to settle it amicably, but of course he has in mind£425,000 . I told him I would be looking for my costs and Fortis’ settlement figure. He tried to say I knew the engine in the car. I said I knew the engine number not what it was. He tried to explain to me technically how the top of the engine has been modified and the bottom not. I said I relied on what he told me and the appraisal (which the bank relied on as well). I told him that the car should never have been marketed as a Speed Six, and explained how Bonhams says it should be defined. I said that I did not know I had a 1927 6½ litre engine. Stanley tried to say why it’s a speed six, I said it is not. I told him that Fortis is owed roughly£380,000 and I have£94,000 + in the deal. He said “well you have had the benefit of the car for a year.”
“Your Clients have purchased and have had the use of a most attractive and very reliable car of utmost quality for the past fifteen months. If they have decided to sell for profit or because they need to, they could have approached me. If they were unhappy or misunderstood the description of the car they could have put it to me directly… In accordance with the concept of seeking to resolve these matters without recourse to Court proceedings however, we both have to demonstrate that we remain willing to talk. I am prepared [to] talk to you and or your Clients direct and may be willing to reach an accommodation with them. May I suggest that upon receipt of this letter, you, or your Clients call me within the next ten days?”
“It is understood that there has been an indication by you that you may be willing to make a proposal which sees the vehicle being sold back to you. We are writing to ascertain whether you would be prepared to buy the vehicle back at the price paid to you for it, namely£430,000 . If you are, we would propose to Mrs Brewer’s solicitors that£390,000 be paid to our clients and£40,000 to Mrs Brewer. Our clients will then accept that sum in full and final settlement of their claim against Mrs Brewer for the outstanding balance under the Agreement but Mrs Brewer must also accept the£40,000 in full and final settlement of her claim against our clients and against yourselves.”
“Subject to the precise figure our client might be willing to accept a payment from [Fortis] in full satisfaction of any claims against them but only on the strict understanding that this would leave her open to pursue Stanley Mann for any shortfall.”
“The valuation was crucial to our client’s decision to proceed and she placed heavy reliance on this.”
“(a) he had restored the Bentley; (b) the Bentley was not a matching number car and that it did not have its original engine but it was still a Speed Six and that the Bentley factory often changed engines if a customer came back with a problem; (c) the engine was a Speed Six engine; (d) the chassis had been shortened to comply with the specifications of another Bentley known as Old Bentley No 2 and the rear axle had been modified to the Old Bentley No 2 specifications of 3 to 1; and (e) the Le Mans body was a replica of Old Bentley No 2.”
“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 has had a great wealth of practical qualifying experience to act as an expert.”
“4.1 Having read the information given to me prior to my inspection, I fully expected to see an original Speed Six Bentley in excellent condition, the literature describes a rebuild and a restoration but not a vehicle that does not have its original body nor its original engine. The specification of the present engine has not been confirmed either. The Chassis having been shortened to replicate another vehicle leads me to believe it is not as described and the sole purpose of such conversion is to inflate the value. 4.2 Throughout the motor trade, the word restoration describes a vehicle which has been overhauled to as far as possible, its exact specifications and condition as when new. To me, this vehicle obviously does not meet this criteria. A rebuild is a description of a vehicle that has been overhauled but not necessarily restored back to its original condition. I believe the only way to describe this vehicle is that it has been the subject of a conversion from a Saloon to a Le Mans type replica. Therefore I conclude that the vehicle represents a mere reconstruction meaning 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 except the chassis and registration number.”
“6.14…I am quite satisfied that this car is a rebuilt speed Six Bentley, and not a “reconstruction”
“you state that engine # WK.2671 has been re-built with unidentified spares to look like a Speed Six engine. This is not the case; using parts made and supplied by Bentley Motors Ltd. it has been brought up to the specification of engine # NH.2732 originally fitted to chassis SB.2770. Modifications of this nature have been carried out on 6½ litre Bentley engines for the past 79 years!”
“1930 Bentley. Speed Six Chassis No. SB.2770. Engine No. WK.2671 Registration Mark. PG.6345 I have examined this car in the recent past and can confirm that although the engine fitted was manufactured in 1927, it has been modified to the full Speed Six specification. This would include a single port cylinder block, up-rated connecting rods, twin type U. HVG5 carburettors and testing. This work was often undertaken by Bentley Motors Ltd. after they had introduced the Speed Six model in February, 1929. Others have done so since. From all engineering aspects this vehicle can be regarded as a Speed Six Bentley and I value it as such. To replace it would cost at least£550,000 .”
“So it is fair to call it a Bentley Speed Six?”
“Q. If they are in doubt about matters they go to Mr [Fenn] did they not? A. I think with Bentley, yes. Q. Then, you are not dealing with an office worker, you are dealing with possibly… A. Yes, I’m not suggesting…what actually happens. I’m not questioning what you say. Q. So far as someone purchasing the car is concerned, that event in this vehicle’s life, it has been given by the DVLA that imprimatur, is a very important fact, is it not? A. It is. It is indeed, and one of my greatest concerns is the fact that you can build a special, go to the DVLA, take Mr Fenn’s statement…chassis number on that vehicle, and you can… Q. No-one is suggesting that is what happened in this case, are they?A. No. Q. Taking the evidence in its totality, you accept that it is perfectly acceptable to call this car a 1930 Bentley Speed Six, because it has got the… A. That’s true, it is a 1930 Speed Six, with reservations over the engine. Q. Precisely. Its engine is to Speed Six specification, is it not? A. It might be; I have seen no proof of that.”
“Given their respective lengthy working experiences of Speed Six cars and engines, 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. It was considered, authoritative and based on his detailed inspection of the car’s engine. I also accepted Mr Fenn’s historical and valuation evidence in its entirety. I also accepted his view as to how factually the car should be described.”
“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.”
“By the end of the trial, as much but not all of the history of the car’s engine, 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.”
“(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 conform to 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. (3) There was no continuous history available for…the adaptation of the 1927 engine… (4)There was no evidence in the form of a test certificate or test results that the car in fact complied with the Speed Six specification and the details of the applicable specification were never established or proved.”
“37. 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 satisfy the performance requirements of the BDC specification, which it would have had to be 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 The judge here, by his footnote 5, cross-referred to paragraphs 97-99 of his judgment 4, where the judge went into further detail about the performance component of a Speed Six specification. . 38. 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 only of 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. The judge here by his footnote 6 cross-referred to paragraphs 175-182 of his judgment 4 where he entered into further discussion of Mr Fenn’s and Mr Mann’s opinions that the car could properly be described as a 1930 Speed Six on the basis of its chassis number. ”
“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”; to the judge’s definition of the contractual warranty alleged (at para 6): “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”; and to the judge’s conclusion on this issue (at para 145): “Conclusion – collateral contractual warranty. I therefore conclude: (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…”
“This conclusion is highly relevant in assessing the truthfulness and reliability of Mr Mann’s evidence as to what he stated to Mrs Brewer about the engine”
“Credibility.On this crucial issue of what was said and the context and consequence of what was said at the meeting of20 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.”
“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 the20 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 on20 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 The judge refers back, in his footnote 35, to his paragraphs 121-127. . 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.”
“I told him that the car should never have been marketed as a Speed Six”
“38…Put bluntly the judge’s findings are obviously unfair. CWS never had an opportunity of considering, (with the assistance of its legal advisers) or answering a case of dishonesty which had never been put. It is an essential safeguard of our judicial process that the judge ‘should hear the other side’ (audi alteram partem). Where a judge acts, without warning, on his own view of an extended case of bad faith as providing a critical explanation of events…it is a matter of fundamental fairness that the judge’s concern should be broached to the parties, above all to the party prejudiced by his view of things. Without that safeguard, the judge is likely to fall into error not only on the matter which is causing him particular concern, but also on other ramifications of the case. He simply has not heard what the party most affected has to say about what concerns him.”… “85…It must often be the melancholy duty of a judge to conclude that the truth, and the legal merits too, lie on only one side of the dispute; and to say so in necessarily clear and strong terms. In the present case, however, what is so troubling is that the judge has made findings of bad faith and false evidence, against CWS and its principal witness, Mr Brydon, and against Mr Melmoth who was not even a witness, when no bad faith had been pleaded or suggested, and then has inevitably been drawn, consciously or unconsciously, into utilising his conclusions about CWS’ or its employees’ bad faith for the purpose of deciding other disputed issues of fact and law. In this way the focus of the judge’s objective vision was distorted.”
“I asked Mr Mann if it was a matching number car A new formulation. . Mr Mann said it was not and that it did not have the original engine which we later came to learn was number NH2732. I then asked if the car was a Speed Six since it did not have the original engine. Mr Mann said yes. Mr Mann went on to say that Bentley often changed engines if a customer came back with a problem. I then asked if the engine was a Speed Six engine. Mr Mann said yes. These questions and the answers Mr Mann gave me clearly led me to the conclusion that the car had at one time or another gone back to old Bentley Motor works and had an engine change to another original Speed Six engine. Mr Mann then went on to describe some of the work he had done in the restoration. He explained that the engine was up to Speed Six racing specifications and that the chassis had been shortened to comply with the specifications of Old Bentley No 2, which was another famous Bentley racing car. He explained that the rear axle had been modified to the Old Bentley No 2 specifications of 3 to 1. Lastly he explained that the Le Mans body was a replica of Old Bentley No 2.”
“There was a discussion at some stage with both of them about the engine, but it was certainly not the conversation which Mrs Brewer now alleges took place. I simply said that the engine was not original to the car, and one of them did ask if the engine change meant that the car was no longer a Speed Six motor car. I said it most certainly was a Speed Six motor car but like all cars of that age, of 75 years old, it had undergone changes during its life, but the engine was prepared to Speed Six specification. As I pointed out in my letter to her solicitors dated14th August 2008 …both factory and agents as well as private owners frequently undertook changes, not all of which were recorded, whilst some were inexplicable. Neither Mr nor Mrs Brewer gave me any indication at all that this part of the discussion was critical to their decision to buy the car, and I certainly had no problems about describing the car absolutely accurately. I could have sold the car several times over at that time…It has been asserted that Mr Brewer asked me several times whether the engine was a Speed Six engine…That is not true.”
“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…”
“148. 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 the6 June 2007 which was after Mrs Brewer knew that SMRL was the contracting party for the provision of any warranty.”
“Although [Mr Ticciati] 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 situation, that [ie Mr Ticcati’s submission] 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 would have 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.”
“Fortis stated in its evidence that the sale agreement was entered into on30 May 2007 . See further paragraph 159(2) below.”
“(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 on7 June 2007 ”
“To be enforceable as a collateral contract, a promise must be supported by consideration, and in the cases considered in paragraphs 18-005 to 18-007 above there is no difficulty in explaining how this requirement was satisfied…in the hire-purchase case it is the entering by the customer into a hire-purchase agreement with the finance company…”
“Where the principal is undisclosed at the time of contracting, the contract is made with the agent…”
“(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…Mrs Brewer was unaware that Mr Mann had provided his warranty as an agent for SMRL when the warranty was provided on20 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 she could have discovered that SMRL was the contracting party for the deposit contract was on receipt of a copy of SMRL’s invoice to Fortis on30 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.”
“It is an application to add that party as a third defendant and any objection to that being done and any submissions as to whether there is a claim against that party the proposal is it should be dealt with in closing submissions.”
“Before we move on to other evidence, I feel that we should seek to resolve whether there is in play an actual or putative claim over by [Fortis] against [Mr Mann].”
“I am not quite sure what your Lordship means by the term “in play”? There is no additional claim between [Fortis] and [Mr Mann] in this action.”
“And none is going to be brought?” and Mr Brant confirmed that “I can envisage no such claim arising in the circumstances of this case, no.”
“We are in this difficulty because the claimant chose consciously and on legal advice not to join the company…they are now seeking to go back on it – not, if I may say so, at their own invitation but at your Lordship’s invitation.”
“I finally conclude that since there is no wish or current application by [Fortis] to mount a claim over against [SMRL] (if that company is joined into the proceedings), I say no more about it. But I would reiterate what I said during the course of Mr Brant’s submissions that it would be most unfortunate and possibly even an abuse of process if hereafter the situation arose that fresh proceedings were brought by Fortis…against [SMRL] since the issues that would be raised would, in relation to the core issue of breach of warranty, as I see it, be very similar if not identical to the equivalent issue in these proceedings. The possibility that the evidence would have to be called all over again in a different trial, particularly if it were before a different judge, only has to be raised to indicate the practical, procedural and possibly substantive difficulties that would arise. However, since Mr Brant does not wish to pursue further at the present time the possibility of a claim over, I say no more about it”
“I make no comment as to whether you made it clear. That position did not impinge itself into my conscious or sub consciousness. Why are you rising to your feet now? Are you making an application?”
“121. Joinder of SMRL. I ruled that SMRL should be joined as a third defendant because there was no discernible prejudice to SMRL since all aspects of its defence had already been prepared in relation to Mr Mann’s defence, because it had only become apparent at a late stage that SMRL had no title to the car when it sold it to Mrs Brewer and because it was proportionate to allow that course to be taken to avoid the possibility of further proceedings following the conclusion of the trial. 122. Joinder of SMRL to the third party proceedings. For the same reasons, it is fair and reasonable that Fortis should be entitled to join SMRL into the third party proceedings as defendant to Fortis’s claim over against SMRL.”
“244. Joinder of SMRL. During the trial, I ruled that SMRL could and should be joined as a third defendant. This was because: (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 reasons 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. 245. Joinder of SMRL to the third 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.”
“(1) Where under a hire-purchase agreement goods are bailed or (in Scotland) hired by description, there is an implied term that the goods will correspond with the description… (2) Goods shall not be prevented from being bailed or hired by description by reason only that, being exposed for sale, bailment or hire, they are selected by the person to whom they are bailed or hired.”
“3. The Goods The Customer agrees: 3.1 that it selected the type, quantity and manufacturer(s) and/or supplier(s) of the Goods and has not relied on the skill or judgment of the Owner in relation to the acquisition of the Goods… 3.1 that it selected the type, quantity and manufacturer(s) and/or supplier(s) of the Goods and has not relied on the skill or judgment of the Owner in relation to the acquisition of the Goods… 5. Warranties and Exclusions 5.1 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:- 5.1.1 That (apart from any of the following which have been expressly given by the Owner itself to the customer in writing) no condition, warranty, stipulation, or representation whatsoever of any kind has been given by the Owner… 5.1.2 That all implied conditions, warranties, stipulations and representations relating to the Goods, whether statutory or 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 purpose are hereby excluded and extinguished…”
“3. My attention has been drawn to clauses 5 and 6 overleaf which deal with the exclusion of certain conditions and warranties or, in Scotland, stipulations. To the extent necessary I have taken advice from an independent source as to the performance and condition of the Goods. I have considered the need to obtain remedies elsewhere and have obtained those I require. I agree that such exclusions are fair and reasonable, although nothing in this Agreement will affect any statutory rights I may have if I am a consumer.”
“It follows that the only sales not by description are sales of specific goods as such. Specific goods may be sold as such when they are sold without any description, express or implied; or where any statement made about them is not essential to their identity; or where, though the goods are described, the description is not relied upon, as where the buyer buys the goods such as they are.”
“Sales by description may…be divided into sales (1) of unascertained or future goods, as being of a certain kind or class, or to which otherwise a ‘description’ in the contract is applied; (2) of specific goods, bought by the buyer in reliance, at least in part, upon the description given, or to be tacitly inferred from the circumstances, and which identifies the goods.”
“For all practical purposes I would say that there cannot be a contract for the sale of goods by description where it is not within the reasonable contemplation of the parties that the buyer is relying on the description.”
“the fact that a description has been attributed to the goods, either during the course of the negotiations or even in the contract (if written) itself, does not necessarily and by itself render the contract one for “sale by description.”
“All this is a matter of common knowledge amongst dealers in the art market, and, I would expect, amongst all but the most inexperienced or naïve of collectors. It means that almost any attribution to a recognised artist, especially of a picture whose provenance is unknown, may be arguable. In sales by auction, where the seller does not know who the buyer will be, the completeness with which the artist’s name is stated in the catalogue, e.g. “Peter Paul Rubens,” “P.P. Rubens” or “Rubens” signifies in a descending scale the degree of confidence with which the attribution is made. Nowadays an auctioneer’s conditions of sale usually, perhaps invariably, so declare and, further, that any description is an opinion only. But in sales by private treaty by one dealer to another there is no such practice. That would suggest that there the seller’s attribution is not a matter of importance. Indeed, Mr. Evelyn Joll, who gave evidence at the trial as to the professional practices of art dealers, went further. The effect of his evidence was that neither of the conditions implied by sections 13(1) and 14(2) could apply by a sale by one dealer to another. He said that an art dealer’s success depended on, and was judged by, his ability to exercise his own judgment. It was not customary for a dealer to rely in any way on the judgment or representations of the dealer from whom a picture was being purchased. Understandably enough, the judge was not satisfied on Mr. Joll’s evidence that there was any usage or custom in the London art market which would exclude the application of the material provisions of the Act of 1979. But he did, I think, accept it as showing that many dealers habitually deal with each other on the principle caveat emptor. For my part, being confident that that principle would receive general acceptance amongst dealers, I would say that the astuteness of lawyers ought to be directed towards facilitating, rather than impeding, the efficient working of the market. The court ought to be exceedingly wary in giving a seller’s attribution any contractual effect. To put it in lawyer’s language, the potential arguability of almost any attribution, being part of the common experience of the contracting parties, is part of the factual background against which the effect, if any, of an attribution must be judged.”
“186. Thus, to take this case, the generic description “1930 Speed Six” was one which was capable of covering any car with an authentic Speed Six chassis whatever the provenance of its engine. In this case, the description was intended by the seller to describe a car which started life with a Speed Six [engine] 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. 187. 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 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. 188. 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 and mean: a “1930 Bentley Speed Six with a Speed Six engine”
“162. The deposit contract between SMRL and Mrs Brewer... 165. 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. 166. Thus, the description, in context, was intended to mean, and did mean, a “1930 Bentley Speed Six with a Speed Six engine”. 167. The contract of sale between SMRL and Fortis. This described the car as a “Bentley Motor Car”
“175. 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 the car’s description should have been a “Speed Six with a 1927 Standard engine modified to Speed Six specification”
“What is the description in question? Did the object correspond with it?”
“What is the defendant’s duty? What should he have said or done? Did he say or do what he should have said or done?”
“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 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 and cannibalised such that, by 1939, a Speed Six had no calculable trade value.”
“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.”
“Q. Taking the evidence in its totality, you accept that it is perfectly acceptable to call this car a 1930 Bentley Speed Six, because it has got the… A.That’s true, it is a 1930 Speed Six, with reservations over the engine…”
“215. Moreover, the submission that 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…”
“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.”
“What, then, is the measure of damages which the hirer has suffered in this case? He has contracted to hire, in the event which has happened, a motor-car for three months. He cannot complain, I think, that he no longer has the option to purchase it, because it was his own breach of the contract which entitled the finance company to determine the hiring. But having had the motor-car for three months, he has had practically no use from it. My Lord has assessed the use he has had at£5 , which I regard as a figure on the high side, but from which I will not dissent… …On the other hand, it is perfectly true, of course, that the hire-purchase rent contains a very substantial element represented by the option to purchase at the end of the hiring for the sum of£1 (for the loss of which right, for the reasons I have given, the hirer cannot complain), and, in a sense, the monthly rental does not measure the value of the hire per month. But the assessment of damages has never been an exact science; it is essentially practical, and a contracting party who has wholly failed to deliver that which he has contracted to lend cannot complain if the court takes a somewhat severe view of his failure to implement his promise and makes the punishment fit the crime. This case, in my judgment, will lay down no principle of law in the assessment of damages, though it may form a useful guide in similar cases. But for the fact that the car moved briefly and sporadically during the hire the hirer could have reclaimed the money he has paid as on a total failure of consideration. What is the practical answer?” [Emphasis added]
“His measure of damages is his loss on the transaction, and taking a robust view of that loss, I would call it the sum of£132 4s 0d already mentioned.”
“223. Mrs Brewer’s response, which I accept and apply, successfully refutes Fortis’s counterclaim on the following five [sc six] cumulative grounds: (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. (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 amounts 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 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 to 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. (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. The 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.”