Gilruth v Harding [2015] EWCA Civ 1085

Case No B2/2014/3490[2015] EWCA Civ 1085
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHESTER COUNTY COURT
(HIS HONOUR JUDGE HALBERT)
Venue Royal Courts of JusticeDate Tuesday, 21 July 2015
Strand
London, WC2A 2LL
B E F O R E:
LORD JUSTICE SULLIVAN
LORD JUSTICE TOMLINSON
LORD JUSTICE McFARLANE
MRS EMILY GILRUTH
Respondent/Claimant
-v-
MR G HENRY HARDING
Appellant/Defendant
(DAR Transcript of
WordWave International Limited
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Official Shorthand Writers to the Court)
Ms Hilary Stonefrost (instructed by Walker Morris LLP) appeared on behalf of the Appellant
Mr Louis Browne (instructed by Jolliffe & Co LLP) appeared on behalf of the Respondent
J U D G M E N T
Between
GilruthAppellantHardingRespondent

LORD JUSTICE SULLIVAN:

[1]I will ask Lord Justice Tomlinson to give the first judgment.

LORD JUSTICE TOMLINSON: This appeal, from an order of His Honour Judge Halbert made in the Chester County Court on 2 October 2014 after a three-day trial, relates to a single issue: the quantum of damages awarded by the judge to the claimant in respect of a breach of contract by the defendant. The judge awarded £42,500 together with interest. If the appeal succeeds the award will be reduced to £30,000 together with interest.

[3]The claimant (respondent on this appeal) is a professional rider in the field of three-day eventing. The defendant (appellant on this appeal) was at all material times, together with his wife, the owner of a horse whose full name was Ashdale Cruise Master, but which was known in the stables as "Splash". I shall call him either "Splash" or "the horse". The claimant trained and rode Splash for four years pursuant to a contractual arrangement with the defendant.[4]The trial was principally concerned with the establishment of the terms of the contract. The judge found that the defendant engaged the claimant to train and ride the horse in competition; that he agreed to pay the running costs associated therewith, such as veterinary and farrier’s fees, transport costs, the costs of entering competitions and so forth; whilst the claimant for her part agreed to bear all the livery costs of keeping the horse at her yard during the eventing season. It was a term of the agreement that the defendant could not engage another rider to compete on Splash without the consent of the claimant. The claimant was to retain any prize money.[5]The parties to the contract envisaged that the horse would increase in value if he competed successfully. It was agreed that he was worth £30,000 as at the date of the agreement, which was June 2006. The judge found that it was an express term of the oral agreement made in June 2006 that in the event that the defendant engaged another rider without the claimant's permission, the agreement would terminate on terms that the defendant would pay to the claimant 25% of the amount by which the value of the horse had by then increased over the base value. Although agreed orally, the terms of the contract were in fact reduced into writing by the claimant at the time. The defendant declined to sign a proffered version of the contract, asserting that he was a man of his word who would honour his agreement.[6]On 23 September 2009, the defendant told the claimant that she would no longer be permitted to ride the horse. It seems that the defendant and his wife had formed the view that the horse had a better prospect of obtaining a place in the Olympic squad if ridden by a rider with a higher profile than that enjoyed by the claimant. The rider they had in mind was Oliver Townend, a member of the British team.[7]The claimant had achieved considerable success with Splash, and her achievement in training what had initially been a showjumping horse into the different disciplines of eventing had attracted notice and praise in the small world of eventing. By the end of the 2009 season it was apparent that the claimant and Splash were in the running for a place in the British Olympic team. The claimant was understandably upset at the defendant's decision, but after taking legal advice recognised that she could not compel him to allow her to continue to compete on the horse. The horse was taken from her yard to that of Oliver Townend on 4 October 2009.[8]Not unnaturally, the claimant turned her attention to enforcing the terms of the agreement. The defendant denied having made an agreement in the terms which I have described, contending that the agreement had been that the claimant's entitlement to 25% of the enhancement in value would arise only in the event that the horse was sold whilst the claimant was still engaged as the rider, hence this litigation.[9]The judge resolved the dispute concerning the terms of the contract in the claimant's favour. The defendant was refused permission to appeal against the judge's determination in that regard.[10]The claim as originally made and pleaded was by reference to an offer to purchase the horse for £750,000 allegedly made to the defendant in about August 2009. That would have put the claimant's entitlement at £180,000 (being 25% of £720,000). Subsequently it transpired that, whilst this figure had not been plucked out of the air, its provenance was nothing more than an approach by an agent who had said to the defendant in effect, "If I can get you an offer of three quarters of a million, will you take it?" By the time of the trial, the claim was more modest. Paragraph 8 of the amended points of claim reads, so far as material:
"Particulars of Loss (a) The Claimant will contend that the value of Splash as at 23 September 2009 was at least £750,000 based upon the offer received by the Defendant at that time (see paragraph 4(j) above). (b) However, for the purposes of this claim and based upon the single joint expert evidence of Carol Gee the Claimant accepts that Splash's value as at 23 September 2009 was £200,000. Therefore, the Claimant claims 25% of the said sum i.e. 25% of £200,000 less £30,000 = £42,500."
[11]As is foreshadowed in that paragraph of the pleading,on 4 March 2011 District

Judge Newman had given directions for trial which included the following:

"5. The parties shall jointly instruct an expert to be agreed between them by no later than 4 pm on 25 March 2011 with regard to the valuation of the horse as at September 2009. Such report shall be delivered no later than 27 May 2011. 6. Written questions to the expert shall be delivered no later than 4 pm on 24 June 2011 and responded to by no later than 4 pm on 27 July 2011. 7. Expert evidence shall be received at the final hearing by means of written reports and responses to questions."
[12]On 26 May 2011 the parties jointly instructed Carol Gee of Fernhill Sport Horses in Kilkenny in the Republic of Ireland. She trades in horses for the event market. She was jointly instructed by the parties to carry out a valuation of the horse as at 23 September 2009. The letter of instruction enclosed a "curriculum vitae" itemising in detail the horse's performance at events in 2007, 2008 and 2009. Ms Gee was also given access to veterinary records which she was told "should be considered and taken into account when providing your valuation of the horse".[13]Ms Gee produced her report on 12 October 2011. I shall call this "her first report". As it is of some importance and relatively short, I shall set it out in full:
"I Carol Gee of Fernhill Sport Horses, Granges Road, Kilkenny, Ireland have prepared this report as my opinion of the valuation of the horse Ashdale Cruise Master as at 23rd September 2009. I understand my duty to the court and have complied with this duty. I trade in horses for the Event market and have based my figure on horses that I and other agents sold around that time of a similar calibre. I consider the horse's value to be £200k sterling as of the above date. To be sold at this or any other figure the horse would have to have had a full and thorough veterinary examination which would include extensive X-rays of front feet, fetlocks, hocks, stifles and possibly the back. This examination is one vet's opinion on the day. I understand there is a question over the horse's health at the moment but the problem that has become apparent now may not have been detected from a normal pre-purchase veterinary examination. All of us who are involved in the selling of horses know that opinions of vets vary greatly and what one vet finds unacceptable another vet will not pass comment. During my interview with Oliver Townend, the present rider he highlighted that the horse was very 'one Sided' when he took over the ride and as we all know he did suffer some very nasty falls when the horse did not lift his left leg as high as he should have on more than one occasion. I studied videos of the horse at length and it is not easy to see why he behaves in such a way occasionally. This could have been as a result of a health problem with the horse but again whether this would have been detected in a pre-purchase examination is again in question. I have studied the horse's competition record in detail and it would seem to be a good record for a horse of his age and stage in training. Whilst there are no major wins he is fairly consistent. He was a very 'talked about' horse during his early career and looked to have a very bright future. I have presented the horse's record and statistics to two other dealers/agents who have also sold horses of this calibre and they came back with a similar valuation to myself. So in conclusion if a buyer were to be found, tried and tested the horse as to his suitability to them, if they appointed a vet who was happy with the horse's health and was confident that he had no medical problems preventing him from reaching his full potential I think it is fair to say that a price of £200k could be sought. I confirm that is so far as the facts stated in my report are within my own knowledge I have made clear, which they are, and I believe them to be true and the opinions I have expressed represent the true and complete professional opinion."
[14]As is apparent, there had been some slippage in the timetable. On 3 November 2011 District

Judge Sanderson directed:

"1. Written questions to the expert shall be delivered no later than 1 December 2011 and responded to by no later than 4 pm on 3 January 2012. 2. Expert evidence shall be received at the final hearing by means of written reports and responses to questions."
[15]On 28 November 2011 the solicitors for the defendant wrote to Carol Gee in these terms, so far as material:
"Carol, We write further to the court order dated 3 November 2011 of District Judge Sanderson of Chester County Court (copy attached). As you will note from the order, written questions must be submitted to you as expert by no later than 1 December 2011. You should note that the previous valuation that you have given to Ms Gilruth should be disregarded as you have made that valuation without first considering the questions raised by Mr Harding. Having considered the above, please respond to the following questions: 1. Please see attached a medical report from Oakham Veterinary Hospital dated 21 October 2011. This veterinary report was taken just before the horse sadly had to be put down. You will note from the report that Neil Ashton of Oakham Veterinary Hospital believes that had the horse been examined around September 2009 (which was around the time that the horse changed yards) the evidence of the horse's problems would have been picked up. Please consider the report from Oakham Veterinary Hospital and state whether you agree with its contents. 2. As stated, the horse had to be put down after the attached report. As such, the horse had no value as at the date of the attached report. If you agree with the contents of the attached report, would you agree that the horse would have had no value or at the very least, would have been difficult to sell for value at September 2009 if a pre-sale check would have uncovered the medical problems that the horse had? 3. If you do not agree that the horse would have had only a nominal or zero value in September 2009 following a veterinary examination, please explain upon what basis you disagree with the medical evidence of Neil Ashton and why you believe that a pre-sale veterinary examination would not have uncovered the problems that the horse suffered from and why you believe that someone would have paid any significant value for a horse that had serious medical problems..."
[16]The veterinary report to which reference is there made by the solicitors for the defendant reads as follows:
"The above named horse was seen initially at Oliver Townend's on 11th December 2009. He was evaluated for a variety of issues including back pain. From the 8th March 2010 we managed the back pain using extra-corporal shockwave and occasional strategic local medication. Extra-corporal shockwave was repeated on the 8th, 16th and 31st March. He was medicated on the 31st March. He had intra-articular medication of the hocks and coffin joints and shockwave to his back again on the 6th April. On the 30th July 2010 he developed a low grade superficial digital flexor tendonitis which was managed conservatively. When he was back in full competition work he had repeated shockwave treatment on the 21st January 2011 for back pain and eventually on the 23rd March the rider reported that, despite treatment, he was still showing performance limiting signs consistent with back pain. Radiographs of his dorsal spinous processes were obtained. These revealed very severe overriding dorsal spinous processes from the region of the withers all the way through to the last thoracic vertebrae behind the saddle patch. These lesions showed extensive overlapping of the dorsal spinous processes, very severe sclerotic and lytic changes consistent with advanced severe 'kissing spine syndrome'. These lesions were then specifically medicated and again treated with shockwave. Subsequently surgery was performed to resect the lesions to alleviate the pain completely. In my opinion this horse had back pain from the beginning of his time with Oliver Townend. This was managed initially conservatively, then investigated when the treatment became less effective. Investigation led to the identification of severe kissing spine lesions that were likely to play a significant role in the back pain syndrome. In my opinion the severity of those changes would be consistent with lesions that would have been present prior to his time at Oliver Townend's yard. Had the horse been subject to a prior to purchase examination prior to moving yards, in my opinion radiographic evidenced of these kissing spine lesions would have been present. If you have any further queries, please do not hesitate to contact me."
[17]Ms Gee provided her response to the defendant's questions on 13 April 2012. I shall call this "her second report". Again, I set it out in full:
"You will see from my report below, I stated that this amount could only be achieved if the horse was passed by a vet in a pre-purchase examination. It is not common practice to have the back X-rayed but I have had cases where the client had requested it. These said clients were from Germany only. As the horse had a good competition record prior to the change of rider a buyer might have used the vet report as a bargaining tool to reduce the price. At this stage as he was still performing well and passed Veterinary examinations at the International events he attended it is very probable someone would have seen a value in him. As you can see from his record the Horse won three different three star events so it is hard to say he had no value at this stage. Horses at this level of competition are prone to wear and tear and it is hard to find a horse at this level that has no issues. So in conclusion I feel should a buyer have been found and had a veterinary examination done on the horse the problems that were highlighted prior to his destruction may or may not have been revealed. Should they have been revealed I think that they would have bargained the price down probably by 25%. Please call me if you wish to discuss this further."
[18]It was therefore the evidence of Ms Gee that, as a prerequisite of a sale, the horse would have had to undergo a full and thorough veterinary examination which would include extensive X-rays of front feet, fetlocks, hocks and stifles and "possibly the back". It was not common practice to have the back X-rayed, but Ms Gee had had cases where clients from Germany had requested it.[19]In an exchange at the beginning of Ms Stonefrost's final address at trial, the judge summarised Ms Gee's evidence as amounting to this: that the horse would have realised £200,000 on sale on 23 September 2009 had the back defect described by Mr Ashton not come to light; and £150,000 if it had. Ms Stonefrost accepted that that was the expert's view. A little later she came close to recognising (if she did not expressly concede) that the outcome if she lost on liability was a straight choice between an award of £42,500 or one of £30,000. She recognised that she could not persuade the judge that the horse had no value as at 23 September 2009.[20]The judge had no evidence on the question whether an X-ray of the horse's spine in September 2009 would have revealed lesions, but I will assume in the defendant's favour that it would have done. The judge also had no expert evidence beyond that of Ms Gee on the question whether a prospective purchaser in September 2009 would have requested an X-ray of the horse's back. Ms Gee's evidence was simply that that was not common practice, although she had come across it with German purchasers.[21]The judge was plainly alive to the limitations of the expert evidence because he observed to Ms Stonefrost early in her cross-examination of a witness, Rachel Greetham, that he would "have to draw a conclusion, if I find that there was a contract, I will have to draw a conclusion as to whether the back defect would have been likely to have been discovered in September/October 2009 if the horse had been sold at that stage".[22]Rachel Greetham is a chartered equine physiotherapist. Her short witness statement read as follows:
"1. I am a Chartered Equine physiotherapist. 2. I assessed and routinely treated Splash (Ashdale Cruise Master) whilst he was in the care of and competed on by Emily Gilruth. This embraced a period from 2006 to 2009. 3. Over this period of time I saw Splash formally on seven separate occasions. These were on the following dates: 13th March 2006, 2nd January 2007, 28th November 2007, 3rd December 2007, 12th December 2007, 12th May 2008 and 20th May 2009. This information is taken from my examination notes. As I looked after other horses for Emily Gilruth, I also saw Splash informally on many other occasions. I was also responsible for looking at Splash when Emily competed at Burghley Horse Trials in 2009..." (It emerged in evidence that the Burghley Horse Trials were in September 2009, shortly before the parting of the ways between the claimant and the defendant.) "... I was there to look after Splash for Emily and other horses for other clients too. 4. When assessed there was always a full movement and palpatory assessment. The horse did not suffer from any major back problems and if there were any issues it was routine mild muscle spasm which was normal for an event horse competing at 3 and 4 star level. 5. I never found any tenderness on palpation of the dorsal spinous processes (this can be a sign of over-riding spinous processes). During the time I assessed and treated Splash there were no performance issues that relate to back pain."
[23]Ms Stonefrost was naturally anxious to put to Ms Greetham the report of Mr Ashton. Mr Browne objected to Ms Greetham being asked about Mr Ashton's report. He pointed out, quite correctly, that the defendant had no permission to rely upon the report of Mr Ashton as expert opinion evidence. He also pointed out that the contents of Mr Ashton's report were not agreed and that Mr Ashton was not being called as a witness to give evidence in accordance with his report. Mr Browne might have added, as he almost does in his respondent's notice, that the evidence was not even contained in a witness statement from Mr Ashton and could not therefore be introduced as evidence of the matters stated pursuant to the Civil Evidence Act 1995 and the rules of court made thereunder. Mr Ashton's report was in fact appended to a witness statement of 2 March 2012 made by the defendant for the purpose of seeking an adjournment of the then trial date. No indication was given pursuant to CPR 33.2 that the defendant intended to rely upon the contents of Mr Ashton's report at trial as evidence of the truth thereof.[24]The judge was therefore, in my view, unquestionably right to indicate (as he did on Mr Browne's intervention) that the report of Mr Ashton was inadmissible in evidence, but equally right to indicate that it could of course be put to Ms Greetham in cross-examination and that she could be asked to comment on it.[25]Ms Stonefrost, for her part, pointed out to the judge that Mr Ashton's report was part of the material that had been considered by Ms Gee in coming to her opinion. That may be so, but it does not render Mr Ashton's report evidence of the matters stated therein; still less does it enable the defendant to rely upon it as expert opinion evidence on the question of the value of the horse, a fortiori in a case where the court has directed that expert opinion evidence on that matter be given by a single jointly instructed expert.[26]The procedure for putting questions to experts is dealt with by CPR 35.6. As is made clear by CPR 35.6(3), an expert's answers to questions put in accordance with the procedure there set out shall be treated as part of the expert's report. There is, unsurprisingly, no provision to the effect that the questions put to the expert, or any material appended thereto on which the expert is asked to comment, acquires the status of evidence of the truth of its contents or indeed any evidential status by virtue of having been so deployed; it is simply part of the corpus of material upon the basis of which the expert has been invited to express an opinion. Nor is it anything to the point that neither Ms Gee nor the claimant took issue at the time with what was stated in Mr Ashton's report. The claimant had no occasion to challenge it and Ms Gee no doubt would have had no reason to think that the facts stated by Mr Ashton were inaccurate.[27]In any event, all this discussion is, in my view, somewhat academic, since Mr Ashton does not in his report offer a view on the critical question whether an intending purchaser would in September 2009 have requested that the X-rays traditionally accompanying a purchase or an intended purchase extend on this occasion to X-rays of the horse's back. The evidence of the jointly instructed expert Ms Gee has from the start been only that X-rays commissioned on purchase "might possibly" extend to the back. In her second report, having considered Mr Ashton's report, she maintained that opinion, adding (consistently with what she had first said) that it is not common practice to have the back X-rayed.[28]In those circumstances, it would not be a fair or safe inference from the penultimate sentence of Mr Ashton's report that he necessarily considers that a purchaser in September 2009 would have asked for X-rays of the back. He is not addressing that question. There is also the further question whether Mr Ashton is competent to express such a view if indeed he holds it. He is a veterinary surgeon, not, like Ms Gee, a trader in horses. It is to the latter that one looks for the relevant expertise to express a view as to the procedures which would be insisted upon as a condition of a successful transaction.[29]I might also add that considerations such as these indicate that had Mr Ashton's report by the process suggested by Ms Stonefrost become evidence of the truth of its contents, it would have given rise to all sorts of questions of which there would have been no opportunity to ask Mr Ashton as he was not called as a witness at trial.[30]I set out below the passage in the cross-examination of Ms Greetham which followed the debate about the admissibility of Mr Ashton's report: Q. In September 2009, what steps did you take to examine the horse? A. I was working with Emily at Burghley, and so basically before dressage we assessed him and gave him a nice massage, routine massage, and after cross-country routine massage, assessment for soundness, et cetera, to help with performance of showjumping and the passing the trot up, so it's part of the competition physiotherapy. Q. Okay, thank you. And so just going back to 237 -- JUDGE HALBERT: So you carried out a fairly detailed examination of the horse in September 2009 whilst at the event in Burghley? A. At Burghley, yes. JUDGE HALBERT: And it is a fairly tough course, Burghley? A. Yeah. JUDGE HALBERT: And if the horse had been in any significant pain after, you would certainly have known about it? A. Absolutely, yeah. JUDGE HALBERT: Was he? A. No. JUDGE HALBERT: Next question? MS STONEFROST: Thank you. A. I can't find 237, cos the page numbers are -- MS STONEFROST: Has the witness bundle not been renumbered? It is in tab -- JUDGE HALBERT: Just give the, I have got -- MS STONEFROST: Tab 5. Thank you. JUDGE HALBERT: I had to rewrite the numbering. A. Oh right, okay. MS STONEFROST: So this is a report of the vet who saw Splash on 11 December 2009, he says in the opening sentence, so not long after, about six weeks or so after, he had been moved from Emily to Oliver Townend's place, and what, he was evaluated for a variety of issues including back pain is what the report says. He was given some treatment, and then in the second paragraph you will see that, the third line down, the radiographs of his dorsal spine processes were obtained. Radiographs would mean X-rays, would it not? So they would have had a look at -- A. When, do we know when those X-rays were taken? Q. They were done in, it says eventually on 23 March, 'The rider reported that despite treatment he was showing performance limiting back pain and radiographs of his...' sorry, inserted, '...radiographs of his dorsal spine...' so it would be some time after March, 23 March 2010, and he says that, 'These revealed very severe overriding dorsal spinous processes from the region of the withers all the way through the vertebrae...', and then a bit further down, '...advanced severe kissing spine syndrome...'? JUDGE HALBERT: You are aware of what both of those are, I take it? A. Yeah. MS STONEFROST: And would you like to describe, rather than me speculating about what it is, would you like to describe what that is? A. Kissing spines or overriding dorsal spinous processes is a condition where instead of the vertebrae being straight and there being a clear gap between the two, they can be closer or in some cases they can be touching. As with any condition, it generally affects horses in different ways, so although you can have X-rays of that, of arthritis, it can be clinically pursued with very different, so depending on the pain levels and the inflammation, so horses compete at top level with kissing spines and some horses are retired because they cannot cope. It is very much how that horse copes with that condition. Q. And with the level of pain that it creates? A. Yeah. JUDGE HALBERT: Just like humans. You get some people who -- A. Yeah, absolutely, if you -- JUDGE HALBERT: -- you know, look at an X-ray of the spine and wonder how they are standing up and they are experiencing no pain at all -- A. Yeah. JUDGE HALBERT: -- whereas another patient with a spinal X-ray which shows very few symptoms has got chronic back pain. A. Yeah, absolutely. JUDGE HALBERT: Yes, I have got it. MS STONEFROST: And the vet then says at, he gives his opinion towards the end of that page, where he says, 'In my opinion, the severities of those changes would be consistent with lesions that would have been present prior to this time at Oliver Townend's yard. Had the horse been subject to a prior purchase or examination, the radiographic evidence of those kissing spine lesions would have been present...' Now, is it fair to say that a radiographic picture of the spine will give you more information about the state of the spine than you would have just by riding the horse or examining the horse? A. With any, with any clinical picture you never take just one diagnostic tool, you look at the whole picture, so normally when you're doing vetting you look at how the horse is moving, for lameness, whether they've got good top line muscle over the musculature and whether they've got pain that area, and if you actually look and think, well actually the horse is lacking a lot of muscle, it's painful, then you would X-ray, but if the horse is performing well and there's no pain over the area, you wouldn't routinely X-ray the spine. Q. So, but you would, if you got an X-ray that would give you more information than the previous two steps you talk about, that would be to obtain additional information and a picture of what was really happening inside the horse? A. It's part of the jigsaw. It's not everything. It's, you know, it is a part -- Q. But an important part, to have a look at -- A. It's as equally as important with how the horse is actually moving through its spine, how the muscles are responding, how the horse is performing and whether the pain levels are there, so it's no more important, you know, there were other tests that could be done like ultrasound scans and nuclear scintigraphy. It's one part of the picture. Q. So from your examinations you had not picked up that there was this problem with his spine -- A. No. Q. Or that he was suffering any pain from his spine? A. There was no indication of pain, no tenderness on the dorsal spinous processes and he had a full range of movement and he was performing well. Q. So he could have been, the kissing spine could have been there but he could have coped with the pain? A. Absolutely, but, you know, it could, at the time there wasn't, there wasn't any indication and other things can make it become more peripheral, so for example if the horse lost lots of top line, if the horse had had trauma, then that can make that problem become more significant. Q. And to be fair you would not have known in September or May 2009 what a radiograph might have shown in relation to his spine? A. We had no call to have his back X-rayed because he (Inaudible) no problems.[31]The judge had already observed just before this evidence was given that Ms Greetham is an expert in horse physiology. In her final address, Ms Stonefrost rightly reminded the judge that whilst Ms Greetham indeed had that expertise, she was not called as an expert witness and the claimant had no entitlement to rely upon her evidence as expert opinion evidence. The judge recognised that this was so, but pointed out that Ms Greetham had given clear evidence that the horse was exhibiting no symptoms of back pain when she saw it in September 2009 or in the period before that. That was evidence of fact. I have no reason to think that the judge had lost sight of the status of Ms Greetham as simply a witness of fact when he came to write his judgment later that evening and the following morning. As the judge records at paragraph 22 of his judgment:
"The horse was taken from her yard on 4 October 2009 to Oliver Townend, an existing member of the British Team. He rode Splash throughout the 2010 season entering 10 events just exactly as Emily Gilruth had done. He achieved two better front-line results but fewer points overall. He and the horse suffered a major fall at Lexington in April 2010. He also reported in December 2009 that the horse was suffering from back problems and X-rays taken after March 2010 (the precise date is not clear) disclosed a significant spinal defect."
[32]I would just add two points in relation to that paragraph of the judge's judgment. First, on my reading of Mr Ashton's report, it looks as though the relevant X-rays of the horse's back may have been carried out after March 2011, although the precise date does not matter. Ms Stonefrost was inclined to agree that my reading of the report was correct and that an error had been made at trial in thinking that the relevant X-rays had been taken shortly after March 2010. The second observation I would make at this stage in fact relates to paragraph 23 of the judge's judgment, which reads:
"Despite this Oliver Townend competed with Splash during the remainder of 2010 and the first part of the 2011 season. Splash was subsequently discovered to have a serious lung condition and had to be destroyed."
[33]So far as concerns the lung condition, it is not clear that this was the reason why the horse was put down. In his second witness statement the defendant said at paragraph 1.9 that it was as a result of Mr Ashton's report that the horse had to be put down. That report deals only with back injury. It is true that in his oral evidence at the hearing, the defendant also said:
"...I feel I should explain that because the horse was found in early 2010, 2011, that he was bleeding into his lungs and he could manage a three star event because that's over six minutes, they can gallop over six minutes. A four star event is over 12 minutes and they've got to gallop for 12 minutes. His lungs were filling up with blood and we didn't find this, this would have been similar possibly when Emily was riding the horse because he was suffering from an illness, bleeding into his lungs, and we didn't find this out, and this is the reason the horse had to be put down."
[34]It is unclear from that evidence whether the discovery concerning the lung condition was made in 2010 or 2011. Again, it does not matter: this evidence came too late to be relied upon in relation to the value of the horse in September 2009 and no reliance was placed upon it by Ms Stonefrost at trial. The judge was not asked to find that an intending purchaser in September 2009 would have discovered a lung defect, and there was absolutely no material on the basis of which he could have been invited to make such a finding. No one invited Ms Gee to consider that possibility either.[35]The judge's critical findings are set out in paragraph 35 of his judgment, but I will first reproduce paragraph 28 in order to put the former into context. At paragraph 28,

the judge said:

"28. The claim when originally made was based on an offer the defendant had told both the claimant and her father he had received for the horse of £750,000. Accordingly the claim was pleaded for one quarter of the increase of £720,000 which is £180,000. Subsequently, it has emerged that this was not a firm 'offer', but an approach by an agent who said in effect 'if I can get you an offer of three quarters of a million, will you take it?'. In those circumstances, at an early stage the court sanctioned the appointment of a jointly instructed expert to value the horse and the result, which is uncontradicted by any admissible evidence, is a valuation of £200,000 as at the end of September 2009 it the subsequently discovered back defect had not come to light at that stage and £150,000 if it had. ... 35. Rachel Greetham gave clear and credible evidence that throughout 2009 she discovered no significant back problems with Splash save the normal muscular aches and pains to be found in an athletic horse. In particular she said that when she last saw the horse in September 2009 there was no sign of any back pain. Since back pain was not reported until 2 1/2 months later, on the basis of her evidence I find as a fact on balance of probability that had Splash been sold at the end of September 2009 the back difficulties would not have come to light. That fixes the valuation of the horse at £200,000 and hence the increase in its value as a result of the time spent with the claimant at £170,000."
[36]In my view, what the judge effectively found at paragraph 35 of his judgment was that, in the light of the horse's record of success in the three years he was ridden by the claimant, and in the light of the circumstance that he was exhibiting no symptoms of back pain, it was not demonstrated on the balance of probability that an intending purchaser in September 2009 would have taken the uncommon step of asking for X-rays of the horse's back. There would have been no reason to do so; There was nothing to alert an intending purchaser to take this unusual step. The judge had ample evidence on the basis of which he could come to this conclusion.[37]Before us, although not before the judge, Ms Stonefrost has suggested that there was material in Ms Gee's first report which ought to have led the judge to conclude that an intending purchaser would indeed have been sufficiently concerned about the horse's performance prior to 23 September 2009 to insist upon X-rays of the spine. In support of that submission she showed us, first, messages sent to Ms Gee by the Claimant’s solicitors after receipt of her first report. The first of those messages from Messrs Jolliffe reads as follows:
"Thank you for your email of 12 October with your valuation. You were asked to value the horse as at 23 September 2009. When carrying out that valuation you must of course ignore anything subsequent that happened to the horse either to the horse's benefit or detriment. Please confirm in writing that in reaching your valuation of £200,000 as at 23 September 2009 you have ignored and have not taken into account anything that happened after that date. If you have you will need to reconsider your valuation."
[38]Then, two weeks later, on 1 November 2011, a further message was sent by Messrs Jolliffe which read:
"We refer to our email of 18 October (copy attached). Please may we have your response as a matter of some urgency. Our client is concerned that you consulted Oliver Townend. We would invite you to disregard anything Oliver Townend has told you as it post dates the valuation date i.e. September 2009. Our client is also aware that Oliver Townend spent two years trying to persuade the owner of Splash to take the ride away from our client - Emily Gilruth. It follows that his view may not be impartial. Please may we hear from you by return."
[39]Those messages elicited a perhaps somewhat indignant response from Ms Gee in an email of 1 November 2011. In that email she said this:
"I did respond to [your] mail as soon as I received it, at the time I was at a competition in France so my apologies if my mail did not arrive. I made a full and impartial valuation of Ashdale Cruise Master. I did not consider any events that took place after the date of valuation. Oliver Townend would not influence my valuation in any way shape or form. I valued the horse at a price I thought could be realistically achieved on the open market at the time of the change of rider. I consider myself very professional at what I do and have sold horses of this calibre on many occasions. As I stated he was a much talked about horse and one which I think could have easily been sold but he had no major wins that made him exceptional. I can imagine that Oliver along with other riders would have been keen to take on the ride of a horse of this class and I am sure Oliver underestimated Emily as a rider and felt he could dramatically improve the horse after her. Emily did an amazing job of producing the horse, his achievements shortly after Emily losing the ride on him I think show this. I hope this answers your question."
[40]Building on the statement that Ms Gee had not considered any events that took place after the date of the valuation (i.e. after 23 September 2009), Ms Stonefrost submitted that it is a fair inference that the videos of the horse's performance to which Ms Gee refers in her first report must have been filmed of him competing in the period prior to 23 September 2009. Thus, she suggested, the instances of the horse failing to lift his left leg as high as he should have done, leading to nasty falls, must all have occurred prior to September 2009.[41]I am afraid that I am not prepared to draw this inference. In her description of this material, written in October 2011, Ms Gee says that it is not easy to see why the horse behaves (and I emphasise the present tense) in such a way occasionally. The particular nasty fall to which Ms Gee refers, which is apparently well documented, occurred at Lexington in April 2010, as I have already mentioned. In my view, Ms Stonefrost places more weight upon Ms Gee's indignant email than it can fairly bear. In any event, it would not be fair to derive the inference suggested when(i) the trial judge was not invited to draw it, and(ii) it was never put at trial to either the claimant or to Ms Greetham that the horse whilst under their care manifested a tendency not to lift his left leg sufficiently high, which in turn might have been indicative of a back problem.[42]I also bear in mind that the reason why the ride was taken away from the claimant was because it was thought by the defendant and his wife that the horse would have a better chance of achieving a place in the Olympic team being ridden by Mr Townend. There is no suggestion that at this stage either the defendant or his wife had any concerns whatsoever about the horse's health or condition.[43]In so far as it is relevant, the subsequent history of the horse bears out the reasonableness of the judge's view that an intending purchaser in September 2009 would not have taken the uncommon step of commissioning an X-ray of the horse's back. Although back pain was investigated as from 11 December 2009, and treated as from 8 March 2010, the horse continued to participate in competitions successfully throughout 2010 (notwithstanding the serious fall at Lexington in April) and into 2011. Indeed, the horse was ridden by Mr Townend on the defendant's behalf on ten occasions between 13 March and 6 August 2010 and on five occasions in 2011. The defendant in his oral evidence at trial spoke of the success achieved with the horse by Mr Townend in 2010 (see bundle 1 page 164 at lines 2 to 6).[44]I also note incidentally that Mr Ashton seems to be saying in his report of 21 October 2011 that surgery in 2011 alleviated the back pain completely. That too potentially gives rise in my mind to questions which would have needed to be asked of Mr Ashton had the defendant been in a position to rely upon his report as evidence of the truth of its contents.[45]However that may be, and whatever the relevance of the subsequent history, the judge was in my view amply entitled to come to the conclusion which he did concerning the likelihood of back X-rays being conducted in connection with a sale of the horse in September 2009. It was common ground at trial that the assessment of the value of the horse as at 23 September 2009 had to be conducted by reference to the outcome of a putative sale. Likewise before us, Ms Stonefrost accepted that the value of the horse as at 23 September 2009 is not some abstract concept of true as opposed to artificial value, but rather the price which would have been achieved by a putative sale on that day. That is the orthodox approach, and it was in respect of that exercise of valuation that the single joint expert was instructed to provide opinion evidence. In order to apply that unchallenged opinion evidence to the facts of the case, the judge had to make a finding as to whether the back defect would, on the balance of probability, have been discovered on a sale in September 2009, a requirement which he identified clearly at an early stage of the trial. In my view, the judge reached an entirely justified and wholly unexceptional conclusion on that point, from which it followed that the appropriate award of damages was £42,500.[46]I would reiterate that in any event the only alternative open to the judge was an award of £30,000 as it was the jointly instructed expert's unchallenged evidence that had the back defect described by Mr Ashton been discovered the outcome would have been a 25% reduction in the sale price achieved. I am afraid that I did not follow the basis upon which Ms Stonefrost faintly argued that she could contend on this appeal for a nil value.[47]In reality, this is a case in which the defendant simply did not accept the opinion of the single joint expert that revelation of the back problem in September 2009 would have led to only a 25% reduction in the price achieved. The remedy in such a case, however, is for the disaffected party to apply to the court for permission to instruct another expert with a view to obtaining a report which will enable it to make a decision whether or not there are aspects of the report of the single joint expert which it wishes to challenge. The procedure is described in the notes to CPR 35.7 at paragraph 35.7.6. In an appropriate case, permission may be given to the dissatisfied party to adduce its own expert evidence. Nothing of that sort was done here, and it is not open to Ms Stonefrost to challenge the opinion of the single joint expert, leaving on one side the anterior difficulty that no such challenge was essayed at trial.[48]I would dismiss the appeal.

LORD JUSTICE McFARLANE: I agree.

LORD JUSTICE SULLIVAN: I also agree.