Lloyd v Svenby [2006] EWHC 315 (QB)

[2006] EWHC 315 (QB)Case No HQ04X01862
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/02/2006
Before
MR JUSTICE STANLEY BURNTON
Between
ALLEN JOHN LLOYDClaimantSTAFFAN SVENBYFirst DefendantTHE SECRETARY OF STATE FOR TRANSPORTSecond Defendant
Oliver Ticciati (instructed by Wilmot & Co Solicitors LLP) for ClaimantJames Mellor (instructed by Davies Wallis Foyster) for First Defendant for The Second Defendant did not appear and was not represented.Hearing Hearing dates: 7, 8, 9, 10 November 2005, 13, 16 December 2005, 13 January 2006
Judgment

Introduction

[1]This is a tale of two cars. It might be said to be a tale of two Jags, but that might be misunderstood. It concerns their registration and chassis numbers. The Claimant and the First Defendant have argued about which of their cars is “entitled” (the quotation marks are deliberate) to the registration number WTM 446 and chassis number BHL126. There is no dispute as to the ownership of the cars. There is no confusion as to which car is which. No one has suggested that either the Claimant or the First Defendant has personally acted in any way dishonestly or improperly. At the beginning of the trial I expressed surprise that two seemingly intelligent and honest men would seek to resolve this dispute by expensive litigation, which in the event occupied 7 days of court time, rather than by compromise. I was told that a considerable sum of money turns on my decision, although I am bound to say that the evidence for that is sparse, and that whatever that sum may be it has, I am sure, been substantially exceeded by the legal costs the parties have incurred. My wonderment did not diminish during the course of the hearing.[2]This case raises an issue as to the role of the Court and its relationship with the Executive, and as to whether the Court should grant any relief in a case such as the present. Mr Ticciati, for Mr Lloyd, submitted that the Court should grant declaratory relief. Mr Mellor, for Mr Svenby, submitted that the Court should not grant any relief to Claimant, irrespective of the factual findings that the Court might otherwise make.[3]In order to understand these questions, it is necessary to understand the background to the case and to set out, regrettably at some length, the uncontroversial facts.

The background and the cars

[4]Except where otherwise appears, the facts set out in this section are uncontroversial. Its preparation has been greatly assisted by the chronologies prepared by Mr Ticciati.[5]Both Mr Lloyd’s car and Mr Svenby’s car are, or are claimed to be, historic racing cars, known as Lister Jaguars. In 1954 Brian Lister (whose initials are BHL) established a company, Brian Lister (Light Engineering) Ltd, to take over the automotive business of the family engineering company established by his grandfather. His interest in motor racing had led to the design and construction, shortly before he established his own company, of a chassis and body shell for a new racing car. That first chassis was given the chassis mark BHL1. Subsequent chassis were given consecutive chassis numbers: BHL2, BHL 3, and so on. These marks were stamped on the chassis with letter and number punches. Mr Lister’s customers would buy the chassis and fit an engine purchased elsewhere; they would have a body made and fitted, and the car completed. In this way they could avoid paying the purchase tax that would be payable on a complete car.[6]In 1957 Mr Lister developed a new chassis to take a Jaguar D-type engine. The resulting car was very successful in races. Mr Lister’s cars with Jaguar engines came to be called Lister Jaguars. The success of this car led to demand from those who could afford them and were sufficiently interested in motor racing.[7]In 1958, Mr Lister designed and set up production of a new series of cars. They came to be known as “Knobbly” cars after the design of the body. They were to take 3-litre Jaguar engines. The first was given the chassis number BHL101; they were produced in 1958 and 1959, with the last of the series being BHL133 or a number close to 133.[8]At about the same time, Frank Costin, an aerodynamicist who later became famous in his own right (see Flying On Four Wheels – Frank Costin and his Car Designs, by Dennis E. Ortenburger), joined Mr Lister as a body designer. He created a new design of body (referred to as the Costin body) for the chassis that had previously been fitted with the Knobbly body.[9]The cars with a Lister chassis and a Jaguar engine – Lister Jaguars – have become famous (at least so far as those interested in classic racing cars are concerned) and valuable. They have had the good fortune to be a subject of a comprehensive and reliable history, by Doug Nye, entitled Powered by Jaguar, a book that covers other Jaguar-powered cars, such as the Cooper-Jaguars, too. The first edition was published in 1980; quotations in this judgment are from the second edition of 2005. Regrettably, Doug Nye was abroad during this trial, and he did not give evidence. He is a revered motor historian, and was referred to in terms that implied near infallibility. Counsel agreed that, at least in relation to uncontroversial facts, I could treat the contents of his book as evidence. Although I heard a considerable amount of oral evidence, I suspect that for the purposes of my decision it has not added appreciably to the contents of his book. I have, therefore, set out his summary of the history of the cars which are the subject of these proceedings as Appendix 1 to my judgment.[10]One of the cars to which the Costin body was fitted had chassis number BHL126. It was bought by William (“Bill”) Frank Moss, a racing driver, and on 24 August 1959 it was registered by him with his local registration authority with the registration number WTM 446 for use on the road. It was also raced. As a car driven by Bill Moss, it had a certain notoriety.[11]During 1959, Mr Lister’s company (in the person of Mr Costin) designed a new chassis, lighter than the existing chassis, made of tubular steel. It was called the spaceframe chassis. Only one was made. It was and is unique. That same year, Mr Lister decided to abandon the manufacture of racing cars. The last racing car he manufactured was given a chassis number around BHL133: the production records have been lost, and Mr Lister, who gave evidence, was understandably unsure of the last production number. Mr Lister did not give the spaceframe chassis a chassis number.[12]Along with other items, the spaceframe chassis, which was apparently incomplete, was sold to Jim Diggory, a garage owner from Rhostyllen in North Wales. He completed a car on the chassis, with a Jaguar engine.[13]Both the spaceframe car and the Bill Moss car came into the ownership of John Coundley. In 1960 he allowed the Bill Moss car to be used in the making of a film entitled “The Green Helmet”. It crashed, and was damaged, as can be seen in photographs taken at the time reproduced at page 151 of Doug Nye’s book. The damage was clearly extensive, and the chassis itself was damaged (as is indeed clear from those photographs).[14]The spaceframe car itself suffered some damage in a sports car race at Aintree in 1961. In 1962 it was bought from Mr Coundley by Peter Sargent, jointly with Peter Lumsden, with a view to their racing it in the 1963 Le Mans 24-hour race. They added the body, a new closed design by Frank Costin complying with the requirements for the Le Mans 24 hour race, and a new suspension, also designed by Costin.[15]Mr Sargent wanted a registration number and a chassis number for the spaceframe car. He needed them in order to compete at Le Mans. Mr Coundley had the registration document, commonly called the log book, of the Bill Moss car. Mr Sargent, who was an impressive witness, unconnected with any party to this litigation, described what was left of the Bill Moss car as a wreck. He told Mr Coundley that he wanted a registration and a chassis number for the spaceframe car. For that purpose, Mr Coundley, who may have thought that he had no further use (at least on the road) for the remains of the Bill Moss car, sold Mr Sargent the registration document for that car. Mr Sargent paid separately for it. He caused the registration number WTM 446 to be affixed to his spaceframe car, and the chassis number in the registration document, i.e. BHL 126, to be attached to the spaceframe chassis on a metal plate that was screwed or riveted to some part of the car. Mr Sargent registered himself as the keeper of WTM 446, which as a result of that transaction he (and, I infer, Mr Coundley) regarded as the registration number of the spaceframe car.[16]At this time, motor vehicles were registered with local registration authorities. Subsequently the Driver and Vehicle Licensing Centre, an executive agency of the Department of Transport, which is the national registration authority, was created and took over the registration function. The DVLC is now called the Driver and Vehicle Licensing Agency, and I shall refer to both as the DVLA. Neither Mr Sargent nor Mr Coundley informed the local licensing authority that the registration number had been (physically) transferred to the spaceframe car. It follows that the local licensing authority did not authorise or agree to that transfer; indeed, it was ignorant of it.[17]Mr Sargent entered the spaceframe car in the 1963 Le Mans race, with Peter Lumsden as his co-driver and Mr Coundley as the reserve driver. Mr Sargent’s entry form, signed by him, was dated 22 March 1963. He described his car as a prototype, a Lister Jaguar, type GT, and its year of création, i.e. production, as 1963. A testing weekend was held at Le Mans at the beginning of April. A photograph of the car in Motoring News of 11 April 1963 shows it on the Le Mans circuit with the registration number WTM 446. A photograph in Autosport of 12 April 1963 also showed the registration number. The caption stated: “The main point of bringing the car to the testing weekend was to ensure that it satisfied the A.C.O. scrutineers”, a statement confirmed by Mr Sargent in his evidence. A number of minor modifications were made to the car as a result of the test weekend. It was painted British racing green but still bore the registration number WTM 446.[18]The car was identified for the purposes of the race by its registration number, its engine number and the chassis number: I refer to the document at page 396. I do not think it would have been so identified if it had not borne the registration number (and there is in fact no dispute that it did) and the chassis number. I do not think that Mr Sargent would have risked his entry by giving a chassis number which the car did not bear; and the evidence is that the scrutineers at Le Mans were assiduous, and one or more of them would have checked that the car being raced was that entered by and specified by Mr Sargent, and for that purpose would have examined the chassis number. I therefore find that the spaceframe car bore the chassis number BHL126 when it raced at Le Mans. Mr Pearson, to whom I refer below, thought that he had seen the car with the chassis number BHL136, but given the contemporaneous document and the 40 years that have passed, I have no doubt that his recollection is mistaken. (There was a photograph of “the unique spaceframe Lister Jaguar BHL136” in Classic Jaguar World magazine for August 2001; since no source for the chassis number is given, I do not think it carries the case further.)[19]The spaceframe car duly raced at Le Mans on 15 and 16 June 1963, with the registration number WTM 446. Unfortunately, it did not complete the race, owing to the clutch bolts shearing. I assume that Mr Coundley was at the race, since he was the reserve driver. He and other persons interested in motor racing would also have seen the car with its registration number in photographs in the motoring press. Not surprisingly, there is no suggestion that Mr Coundley protested at its displaying the registration number.[20]In 1964 Mr Sargent and Mr Lumsden entered the spaceframe car in the 1964 Nurburgring 1000 km race, when it was driven by Mr Coundley and Jack Fairman.[21]As a result of its racing at, in particular, Le Mans, the spaceframe car with the registration number WTM 446 had a certain notoriety.[22]During the time that he owned it, Mr Sargent was registered as the keeper of the car and paid road tax on it. The registration authority was unaware of what had become of the Bill Moss car and remained ignorant of the (physical) transfer of the registration number to the spaceframe car. As a result, as far as the registration authority was aware, the car of which Mr Sargent was the keeper was the Bill Moss car (which in fact no longer existed as a complete car).[23]In the latter part of 1964 Mr Sargent sold the spaceframe car, with the log book, but without its engine and gearbox, to David Harvey. Mr Harvey installed another Jaguar engine and gearbox and raced the car in Cornwall on 11 April 1966. He also used it in many motor sport speed events. He paid the road tax for the car, using the registration number WTM 446. In the late 1960s Mr Harvey sold the car, with that registration number and with its logbook, to J A Pearce. It then (via Brian Classick and Neil Corner) came into the ownership of Hexagon of Highgate, who cut off the roof to make it into an open top roadster. New panels were fitted to the rear and sides of the cockpit, and the car re-painted in the brown livery of Hexagon with some yellow to reflect the sponsorship from Camel cigarettes. The registration number was not replaced, since Hexagon did not intend to use the car on the public roads. In 1972 Gerald Marshall drove it in races at Crystal Palace. Driven by Nick Faure, the car was raced in the 1973 JCB Championship for historic racing and sports racing cars.[24]In 1973 the spaceframe car was sold to Barry Simpson, who painted it dark blue and raced it until shortly before his death in 1983 from cancer. In September 1980, Mr Marshall drove it again, in the Lloyds and Scottish Championship that had replaced the JCB Championship. He won his class. The car carried the registration number WTM 446. Mr Marshall’s success added to the value of the car.[25]Between 1974 and 1982, the DVLA converted the details of all vehicles the registered details of which were held manually onto a centrally-held computer register. The DVLA (as opposed to a local registration authority) first became aware of a vehicle bearing the registration number WTM 446 in July 1978, when Mr Simpson applied to his local taxation office, a residual office of the local registration system, to have the record for the spaceframe car that he owned converted to the centrally-held computer system. The DVLA issued to him a vehicle registration document (a log book, or form V5) naming him as the registered keeper, with the registration number stated as WTM 446, the chassis number as BHL 126, the engine number 103519, and the year of original manufacture 1959. Initially the car was not licensed for use on the public roads, but in about June 1979 it was so licensed. It must, therefore, have borne the registration number, as is confirmed by a photograph of it driven by Mr Marshall in the Lloyds and Scottish Championship in September 1980.[26]In about October 1981, Mr Simpson, who was terminally ill with cancer, sold the spaceframe car either to Dr Philippe Renault or to Dr Renault and John Harper jointly. Its registration history thereafter is described below. The car was restored to its 1963 Le Mans GT prototype bodywork and repainted British racing green. It was exported to France and exhibited in the museum at Le Mans.[27]Mr Lloyd’s case is that in about 1961 what was left of the Bill Moss car had been acquired by Maurice Charles, without the log book. That accords with the account in Doug Nye’s book at page 150. Mr Nye too describes what was left as a “wreck”. According to him, the wreck was sold without the engine. It was then bought by Nigel Moores, of Longbacon Engineering Ltd, again without a log book. He retained it for some 10 to 15 years. It is clear that Mr Moores had a Lister chassis. He offered it to John Pearson. What Mr Moores had (although not its identity) and its relative value in 1967 may be gleaned from Mr Moores’ letter to Mr Pearson of 31 October 1967:
“John Pearson, I understand from Paul Kelly they you are still reasonably interested in our Lister chassis. … Just to clarify the position I am asking in exchange for the assembly as shown in my recent photograph a ‘D’ type gearbox in good order complete with all fittings, linkages and bell housing and also a dry sump unit complete with all pumps and fittings. …”
Clearly, at that date there was no car, but only a chassis. Not surprisingly, it displayed no registration number.[28]According to Mr Pearson, Mr Moores carried out work to his Lister chassis: he straightened and repaired it. Doug Nye is unsure: he states that it was sold “supposedly with a straightened chassis”, to Mr Pearson. At some date that he could not specify, Mr Pearson bought the (or a) chassis from Mr Moores for £400 plus some Jaguar spares. There was no log book. If the chassis was the chassis of the Bill Moss car, it was the only part of that car to pass to Mr Pearson.[29]Mr Pearson sold a chassis to John Harper. Mr Harper had to straighten out the chassis a second time, according to Doug Nye in order to erase the mark of the filming crash. Doug Nye continues: The chassis spent a period stacked with other Lister detritus in storage, during which various frames and frame sections became muddled. It was probably the one which ended up with Stephen Langton, historic and classic car dealer of Reigate, who built up an Historic racing Lister-Jaguar to which he fitted a “Knobbly” body and raced in his black-and-gold colours into the eighties. He found it “extremely exciting and very manageable, although it does tend to get the better of me now and then”. He applied to the Vehicle Licensing Department at Swansea for the Lister registration number WTM 446 and it was granted to him. However, more than 20 years before, the registration WTM 446 had been transferred de facto to the 1st ex-works team car, the Frank Costin-designed spaceframe. …[30]In fact, in about 1975 or 1976, Mr Harper sold the chassis to John May. Mr Harper described it as the car that had raced in “The Green Helmet”. The chassis had the number BHL 126 stamped on it. Mr May sold the chassis, on which was a partially complete car, to Kenneth Dalziel for £10,000. There was no log book. The body was a period body, but not the original body; it had instruments, an engine and running gear. Photographs of the car taken when Mr Dalziel acquired the car in 1977 show it had no registration number on it.[31]Mr Dalziel sold the car on to Stephen Langton shortly after he acquired it. Mr Langton commissioned Mr Simpson to restore it. By restoration, I do not mean restoring the car to its original appearance and condition, or the replacement or completion of the car with its original body and equipment: it was completed with a Knobbly body, rather than the original Costin body. It is common ground that the only part that this car might have had in common with the Bill Moss car was and is the chassis. A photograph of the car, in the black and gold colours chosen by Mr Langton, taken in 1979, shows that at that date it had no registration number. A photograph of the car taken in April 1983 shows it with the registration number WTM 446. Whether the registration number was painted on to the bodywork, or was in the form of a removable transfer, cannot be determined.[32]It is at this stage that the registration history of the two cars becomes complicated. In March 1980 another V5 was issued to Mr Simpson relating to the spaceframe car. According to, in particular, Sandra Chitty, Mr Simpson’s daughter, he agreed with Mr Langton that the registration number should go to the latter’s car. However, if Mr Simpson executed any document to effect such a transfer, neither he nor Mr Langton nor anyone else submitted that document to the DVLA. Nor did Mr Simpson give Mr Langton his V5 registration document: he gave it to Mr Harper when he sold the spaceframe to Dr Renault or Dr Renault and Mr Harper jointly.[33]In June 1982 Mr Langton applied to the DVLA for a registration document for a car with the registration number WTM 446 and the chassis number BHL 126, which he intended to relate to his Lister Jaguar. Although he had owned the car since about 1977, he gave the date he acquired the car as 14 January 1981, a date which is not suggested to be that of any relevant transaction, and was clearly not the date that he acquired it. He declared that the registration document had not been given to him by the previous keeper of the vehicle.[34]The DVLA assumed that Mr Langton’s application related to the spaceframe car. In July 1982, it issued a V5 to him. The registration document stated that the previous recorded keeper was Barry Simpson and it gave the engine number as 103519. Those details related to the spaceframe car, as Mr Langton must have known.[35]Meanwhile, on 30 March 1982, Mr Langton had submitted an Historic Vehicle Identity Form for his car to the Fédération Internationale de l’Automobile (the FIA), giving the registration number WTM 446, the chassis number BHL126, the engine number W1987/9 and the year in which the car had been assembled to its current specification as 1959. The contents of the form were certified by the authorised affiliated club and the Motor Sports Association.[36]In October 1983 Mr Harper applied to be registered as the keeper of the spaceframe car he and Mr Renault, or Dr Renault alone, had bought from Mr Simpson. For this purpose he used the form on the back of what had been Mr Simpson’s V5. Mr Harper gave the date of his acquisition of the car as 10 October 1981, which was of course after the date given by Mr Langton in his application for a registration document as the date of his acquisition of WTM 446. Mr Harper gave as his address New Inn Farm in Cambridge. The DVLA, still unaware that there were two cars with the same registration number, assumed that Mr Langton had sold his car to Mr Harper, and it issued Mr Harper with a V5 stating that Mr Langton was the previous recorded owner. The car was described as black/gold, whereas the spaceframe car was blue; the engine number given was that of the spaceframe car.[37]Mr Langton died in October 1985. After his death, his widow, Elizabeth Langton, was unable to find the V5 he had obtained. In June 1986, she applied for a new V5, in a form that described his car. The DVLA informed her that WTM 446 was registered in the name of Mr Harper. Mrs Langton spoke to him about the registration number. According to her witness statement, the conversation was inconclusive. Nonetheless, in July 1986 the DVLA issued her with a registration document. It gave the correct colours of her car (black/gold), but named Mr Harper as the previous recorded keeper; it again gave the engine number of the spaceframe car. The V5 that had been issued to Mr Langton was used when Mrs Langton sold the car to Mr Aidan Mills Thomas, and in March 1987 the DVLA issued to him a V5 stating that Mrs Langton was the previous recorded keeper. It gave the colours of the car as black/gold; the engine number remained that of the spaceframe car.[38]Mr Mills Thomas raced the car, with the registration number WTM 446. In May 1988 he sold the car at a Coys of Kensington auction. The car was described as a 1959 Lister Jaguar, registration number WTM 446 “supplied new to Bill Moss”, and as the car that had appeared in The Green Helmet. It was bought by Mr Lloyd for £124,785. Mr Lloyd received Mr Mills Thomas’s V5, and used it to register himself as the keeper of his car. He received his V5 in May 1990. It still gave the engine number of the spaceframe car. Mr Lloyd fitted a new engine to his car.[39]Mr Lloyd saw the spaceframe car in 1992 at the Retromobile Motor Show in Paris, with the registration number, but, according to Mr Lloyd, with no chassis number. His evidence is that he was told by someone he assumed to be the owner that the registration number had been put on the car for the purpose of the motor show only. As a result, Mr Lloyd took no action in relation to the registration number.[40]In 1998 the spaceframe car was seen by Nicholas Faure at the Essen Classic Show in Germany, with its registration number WTM 446.[41]Mr Svenby (or more accurately his company Omega Invest AB) bought the spaceframe car in February 2001 at the price of £285,000. Don Law acted for him. According to Mr Law, the chassis number BHL126 was stamped on a small aluminium plate bonded and riveted to the horizontal section of the foot well within the engine bay.[42]In July 2001, the spaceframe car was advertised for sale on the Internet. The car was said to be in France, and I infer that the advertisement had been placed at the instance of Dr Renault before the sale to Mr Svenby. The chassis number was given as “BHL 126-2” and the registration number as WTM 446.[43]On 16 February 2001, Mr Harper notified the DVLA of a change of colour of the car of which he was the registered keeper, to blue. He gave the date of the change as 10 January 2001. In fact, the car had been blue for some time: the change of registered colour was necessary because his V5 described the car as black/gold, the colours of what was by then Mr Lloyd’s car. On 8 May 2001, Mr Harper notified a change of registered keeper’s details, giving his address as High Cross Farm, Evesham (i.e., a different address from his previous registered address) on a form that named Mr Lloyd as the then registered keeper at Mr Harper’s address and Mr Mills Thomas as the previous keeper. Obviously, as Mr Harper was well aware, neither Mr Lloyd nor Mr Mills Thomas had been keepers of the spaceframe car. On 23 May 2001, Mr Harper applied for a 6-month road tax for the spaceframe car.[44]On 1 June 2001, Mr Harper and John Law, who signed on behalf of Mr Svenby, notified to the DVLA the last change of keeper of the spaceframe and the change of its colour to green. The V5 they used for this purpose gave (incorrectly for the spaceframe car) Mr Lloyd, at Mr Harper’s address, as the previous registered keeper. It gave 1 June 2001 as the date of the sale or transfer of the car to Mr Svenby. The DVLA issued a vehicle registration document naming Mr Svenby as the registered keeper, with the correct engine number 103519, and the green colour of his spaceframe car.[45]Also on 1 June 2001, Mr Law, on behalf of Mr Svenby, signed a completed FIA Historic Vehicle Identity Form relating to the spaceframe car. It gave its registration number as WTM 446, its chassis number as BHL126, said to be on a bulkhead plate, its engine number as 1035/9, its year of manufacture as 1963 and its year of restoration as 1984. The form was duly certified by the Motor Sports Association.[46]Mr Lloyd was unaware that he had ceased to be a registered keeper. The DVLA were still unaware that there were two cars displaying the registration number WTM 446, and that they had been registering as keeper sometimes the owner of one and sometimes the owner (or in the case of Mr Harper the sometime owner) of the other.[47]In 2001, Mr Lloyd saw a photograph of the spaceframe car being driven by Don Law (whom he knew) with the registration number WTM 446. In addition, he learnt that Mr Harper was seeking to register himself as the keeper of a car with that registration number. He entered into correspondence with the DVLA, which in consequence learnt for the first time that there were two cars displaying the registration number WTM 446. Correspondence ensued between the DVLA and Mr Lloyd and Mr Svenby and those representing them, and both sides submitted information and evidence to the DVLA in support of his case that his car should retain the registration number. The DVLA decided to withdraw the registration number from both cars. In a letter dated 13 September 2002 to Mr Lloyd, the DVLA adhered to that decision, stating: The Agency has considered the evidence presented both by yourself, in support of your contention that your vehicle has the better claim to display the registration mark WTM 446, along with that presented by the other party in relation to their vehicle. We have concluded that the claims of both parties are not only complex but ultimately contradictory and inconclusive. In these circumstances, it would not be sensible for the Agency to declare that either party has the better claim and allow them to have the mark re-assigned to their vehicle. The DVLA also required Mr Lloyd to stamp a VIN number on the chassis of his car. That requirement was subsequently withdrawn, and is now irrelevant.

These proceedings

[48]Mr Lloyd was dissatisfied with the DVLA’s decision to withdraw the registration number from both cars. In December 2003 he began proceedings in the Administrative Court against the Agency and the Secretary of State for Transport for judicial review of that decision, seeking orders, so far as is relevant, that it be quashed and that the registration number WTM 446 be allocated to his car. Mr Svenby was joined as Interested Party. On 7 April 2004 the proceedings came before Keith J on a directions hearing. The Secretary of State (the DVLA having ceased to be a separate defendant) was, I think, naturally concerned to extract himself from litigation in which he had no real interest. His counsel’s skeleton argument suggested that the better course of action was for the court to direct Mr Lloyd and Mr Svenby:
“(1) to set out particulars of claim stating why they consider that they have a better claim to be registered as keeper of vehicle WTM 446; (2) to adduce the evidence in support of their claim; (3) to formulate a claim for appropriate declaratory relief (e.g. that the Claimant or the interested party has the better claim, as against the other, to be registered as the registered keeper of the vehicle with registration number WTM 446.”
[49]Mr Lloyd was represented before Keith J by Mr Ticciati; Mr Svenby was represented by a solicitor. Keith J acceded to the suggestion made by counsel for the Secretary of State, without objection from, and perhaps with the agreement of, Mr Svenby’s solicitor, and made an order that Mr Lloyd serve particulars of his claim, Mr Svenby serve a defence, and that on the filing of his defence the proceedings against the Secretary of State should be stayed and transferred to the Queen’s Bench Division.[50]Both Mr Lloyd and Mr Svenby served and filed pleadings in accordance with Keith J’s order. The proceedings were duly transferred to the Queen’s Bench Division and ordered to proceed under Part 7 of the CPR.[51]Mr Lloyd’s original Particulars of Claim pleaded summarily in 6 sub-paragraphs and 3 sub-sub-paragraphs why his car had the better claim to the registration number. He sought a declaration that his car, referred to as the Costin, had a better claim to the registration number than the spaceframe, and, if that declaration was granted and the DVLA registered the Costin with the registration number, an injunction restraining Mr Svenby from using it on the spaceframe car. However, in February 2005 the Particulars of Claim were amended to add a claim that Mr Svenby had committed the tort of slander of title by affixing to his car a plate stating that the chassis number of the car was BHL126. Malice is a necessary component of this tort, and in this context malice means dishonesty or at least some improper motive; the allegation is akin to one of fraud (see Kerly’s Law of Trademarks and Trade Names, 14th edition, at paragraph 18-063). The only evidence put forward of impropriety on the part of Mr Svenby was his failure to concede Mr Lloyd’s case. Mr Svenby was fully entitled to defend this claim. Neither he nor his solicitor or counsel could sensibly be accused of impropriety in doing so. “It is no evidence of malice if a defendant persists in asserting his claim after he has been informed that it is groundless”: Clerk & Lindsell on Torts, 18th edition, at paragraph 23-12. Moreover, Mr Svenby’s case is not groundless. The allegation of slander of title, implying as it did an allegation of malice on the part of Mr Svenby, should never have been made. It was, quite properly, not pursued (and should have been expressly abandoned) in Mr Ticciati’s closing submissions.[52]Mr Svenby’s defence pleaded more fully the facts on which he relied in support of his claim that he should have the registration number. He denied the claim of slander of title. In his Re-Amended Defence and Counterclaim he disputed that there is any right to a particular registration number, and contended that Mr Lloyd’s claim in relation to the registration number is not justiciable by the Court. I shall consider that contention below. His Counterclaim alleged that Mr Lloyd threatened to pass off his car as and for the Lister Jaguar that raced at Le Mans in 1963, i.e., Mr Svenby’s car.

The facts that are not disputed and those that are

[53]Ultimately, the factual issues between the parties are relatively few. It is common ground that Mr Svenby’s car has the only spaceframe chassis made by Mr Lister’s company; that when manufactured it bore no chassis number; that the car was completed by Mr Diggory; that Mr Coundley sold the log book of the Bill Moss car to Mr Sargent and agreed to his also affixing to the spaceframe car the chassis number of the Bill Moss car; that Mr Sargent registered himself as the keeper of WTM 446, the registration number of the crashed Bill Moss car, which he applied to the spaceframe car with the agreement of Mr Coundley, although not of the vehicle registration authority; that, as is well known to the classic racing car fraternity (or anoraks, an expression disarmingly used by one witness to refer to the cognoscenti, including himself), it raced at Le Mans with that registration number and has carried it since. It is not really disputed that Mr Sargent affixed the chassis number BHL126 to his car for the purposes of its race at Le Mans, and that that chassis number has been associated with that car ever since. It is not disputed that the spaceframe car now is substantially the same car with the same design of body and specification as that driven by Mr Sargent.[54]It is common ground that Bill Moss owned and raced a Lister Jaguar with the registration number WTM 446, as is well known to the classic racing car fraternity; that the chassis of the Bill Moss car had been stamped when manufactured by Mr Lister with the chassis number BHL126; that, as a result of and following the crash during the filming of “The Green Helmet”, all that came to remain of the Bill Moss car was a damaged chassis; and that until the late 1960’s there was no complete or roadworthy car on that chassis. By far the most important factual issue is whether what was acquired by John May was a car based on that chassis, or the major part of that chassis, or a forgery. (On any basis, parts of the original chassis must have been replaced to repair the crash damage, and it has been altered or added to in order to take the Knobbly body.) It is, however, common ground that for some 20 years until Stephen Langton applied for a registration document for his car in 1982, the only car displaying WTM 446 and the only car registered with that number was the spaceframe car. Mr Langton did not make known to the DVLA that there was another car already displaying that registration number. It is also common ground that the present body of Mr Lloyd’s car, a Knobbly body, is not the design of body it had when it was owned by Bill Moss.[55]It is also, I think, common ground that anyone interested in the history of these cars may consult Doug Nye’s book for a detailed and generally reliable account.[56]So far as the DVLA is concerned, as I have already stated, it is common ground that at all times it assumed that there was only one car using the registration number WTM 446.[57]Although it is irrelevant to any issue I propose to determine in this judgment, I should mention that it is I think generally accepted that there are more Lister Jaguars now in existence than Mr Lister made. There are also instances of more than one Lister having the same chassis number, as can be seen from a perusal of pages 185 and following of Doug Nye’s book, in which duplicate chassis numbers are indicated by “(2)” (or, where there have been more than 2 cars with the same chassis number, that number) after the chassis number itself, as in “BHL1 (2)”. Thus, the July 2001 advertisements of the spaceframe car referred to above indicated that it was not the only car with the chassis number BHL126. Indeed, it may possibly be read as indicating that the other BHL126 was the first chassis to be so numbered.

Statutory provisions

[58]The system of registration numbers (or more accurately registration marks) is entirely statutory. The statutory scheme in force when Peter Sargent obtained the log book for the Bill Moss car and registered himself as the keeper of WTM 446 was contained in the Road Vehicles (Registration and Licensing) Regulations 1955. The Regulations required the owner of a mechanically propelled vehicle who desired to obtain a licence for it to apply to the county (or county borough) council for his area for a licence in respect of his vehicle. It was unlawful to use a mechanically propelled vehicle on a public road without a licence. County councils were required keep a record of the registration of mechanically propelled vehicles. Regulation 14(3) required councils to assign to such vehicles a registration mark “which shall thereafter attach to that vehicle until the same is broken up, destroyed or sent permanently out of Great Britain”. Regulation 21 required vehicles to exhibit their registration mark. Regulation 11 provided that when any vehicle was broken up, destroyed or sent permanently out of Great Britain, the owner should notify the Council with which the vehicle was registered and deliver the registration book to that Council. There was no provision for the transfer of a registration mark by an owner of one vehicle to the owner of another. Changes in ownership of vehicles or of registered details of a vehicle or its owner (such as his address) were required to be notified to the relevant Council.[59]The 1955 Regulations remained in force until 30 August 1964, when they were replaced by the Road Vehicles (Registration and Licensing) Regulations 1964, which were in force until 31 March 1971. The 1964 Regulations were in turn replaced by the Road Vehicles (Registration and Licensing) Regulations 1971, which were in force from 1 April 1971 until (in the main) 29 November 2002. (Certain provisions, principally those relating to new registration documents, came into force on 6 April 2003.) The 1971 Regulations were therefore in force when Mr Langton applied for and obtained a V5. The only material difference between the 1971 Regulations and the 1955 Regulations was the substitution, under the 1971 Regulations, of the Secretary of State for the Environment (now the Secretary of State for Transport) as the national registration authority in the place of the local registration authorities under the earlier Regulations.[60]The current regulations relating to the licensing and registration of vehicles generally are the Road Vehicles (Registration and Licensing) Regulations 2002, made under the Vehicle Excise and Registration Act 1994. The 2002 Regulations contain similar provisions to those of the previous regulations in relation to notification of changes in registered particulars, the notification of changes in the keeper’s details, and the permanent export of a vehicle. The 1994 Act is a consolidating enactment. The registration of vehicles is the subject of Part 2 of the Act. Section 23 requires the Secretary of State when registering a vehicle to assign to it a registration mark indicating the registration number of that vehicle. Subsection (2) is as follows: (2) The Secretary of State may, in such circumstances as he may determine—(a) assign a registration mark to a vehicle to which another registration mark has previously been assigned,(b) assign to a vehicle (whether on its first registration or later) a registration mark previously assigned to another vehicle,(c) (whether or not in connection with an assignment within paragraph (a) or (b)) withdraw any registration mark for the time being assigned to a vehicle, and(d) re-assign to a vehicle a registration mark previously assigned to it but subsequently withdrawn. (a) assign a registration mark to a vehicle to which another registration mark has previously been assigned, (b) assign to a vehicle (whether on its first registration or later) a registration mark previously assigned to another vehicle, (c) (whether or not in connection with an assignment within paragraph (a) or (b)) withdraw any registration mark for the time being assigned to a vehicle, and (d) re-assign to a vehicle a registration mark previously assigned to it but subsequently withdrawn.[61]Section 25 authorises the Secretary of State to make regulations providing for a charge to be made for the assignment of a registration mark from one vehicle to another. Section 26 authorises the Secretary of State to make regulations that: … provide for a person in whose name a vehicle is registered under this Act to be granted a right, exercisable on a single occasion falling within a period prescribed by the regulations, to have the registration mark for the time being assigned to the vehicle assigned to some other vehicle which is registered under this Act—(a) in that person's name, or(b) in the name of some other person nominated by him in accordance with the regulations. The Retention of Registration Marks Regulations 1992 continue to have effect for the purposes of that section. (a) in that person's name, or (b) in the name of some other person nominated by him in accordance with the regulations.[62]Section 27 authorises the Secretary of State to make a scheme under which a person may acquire a right to have a particular registration mark assigned to a vehicle registered in his name or in the name of a person nominated by him. The scheme made by the Secretary of State is contained in the Sale of Registration Marks Regulations 1995. It is under this scheme that personalised or cherished registration numbers are bought and sold.[63]It is not suggested that either Mr Lloyd or Mr Svenby has acquired any right of the kind contemplated by section 26 or under the scheme made under section 27. Neither of them claims any such right. The Act contains no other provisions conferring on a person a right to a particular registration mark.

The relief sought by the parties

[64]In his Re-Amended Particulars of Claim, as against Mr Svenby Mr Lloyd sought:(a) A declaration that his car (described as “the Costin”) has a better claim to the registration number WTM 446 than Mr Svenby’s spaceframe car.(b) If that declaration is granted, and if the DVLA register the Costin with that registration number, an injunction restraining Mr Svenby from using that registration number on his car.(c) An injunction restraining Mr Svenby from representing that his spaceframe car has the chassis number BHL126 or any variation thereof, such as BHL126-2.[65]In his Re-Amended Defence and Counterclaim, Mr Svenby claimed:(a) A declaration that it was his car that has the better claim to the registration number.(b) A declaration that Mr Lloyd is unable to prevent him from racing, exhibiting, advertising or offering for sale his car bearing that registration number off public roads.(c) An injunction preventing Mr Lloyd from passing off his car as and for the Lister Jaguar car registration number WTM 446 which raced at Le Mans in 1963. However, in this pleading Mr Svenby raised the issue whether the claim in relation to the registration number is justiciable by the Court.[66]In addition to their written opening submissions, both Mr Mellor and Mr Ticciati submitted full written closing submissions, which were supplemented orally. In his final submissions, Mr Mellor placed emphasis on his submission that the Court could not or should not determine which car or which owner has the better claim to the registration number. In his written submissions, he invited the Court to dismiss Mr Lloyd’s claim and to make declarations of fact as follows:(a) When the central computerised register was established, the spaceframe car was registered with the registration mark WTM 446; and(b) No valid transfer of that registration mark from the spaceframe car to Mr Lloyd’s car was effected in 1982 by Mr Langton’s application dated 12 June 1982 for a registration document. Thus Mr Svenby’s claim for injunctive relief had been abandoned. If the Court were to refuse to make those declarations, Mr Mellor submitted that the Court should simply dismiss Mr Lloyd’s claim.[67]In his closing submissions, Mr Ticciati for Mr Lloyd sought the following relief:(a) The first declaration; alternatively(b) A declaration (“the second declaration”) that Mr Lloyd’s car has a better claim than Mr Svenby’s car to be the car which William Frank (“Bill”) Moss registered with Bedford District Council on 23.3.59 with registration mark WTM 446.(c) A declaration (“the third declaration”) that the chassis of Mr Lloyd’s car was manufactured and numbered “BHL 126” by Brian Horace Lister; and(d) a declaration (“the fourth declaration”) that the chassis of Mr Svenby’s car was given no number by anyone involved in its manufacture. The claim for injunctive relief based on slander of goods was expressly no longer pursued in those submissions, served on 12 January 2006.[68]The first issue I shall consider is whether the Court should grant any declaratory relief in this case. If the answer is negative, that is the end of the case.

Discussion: justiciability and the jurisdiction of the Court

[69]It can be seen that there are now no tortious causes of action pursued by either party. Given the absence of any evidence suggesting dishonesty or impropriety on the part of either Mr Lloyd or Mr Svenby personally, other than Mr Svenby’s refusal to concede Mr Lloyd’s case, this is hardly surprising.[70]I have to admit having been puzzled from an early stage by the terms of the first declaration sought by Mr Lloyd. In the first place, under English Law, cars are not legal persons. A claim is an assertion of a right, and only people (or legal persons, such as corporations, which the law treats as persons) have rights. As I put it to Mr Ticciati at an early stage in the hearing, in order to make my concerns known, cars do not have claims: people have claims. In India, a temple may have legal personality, and if so an Indian temple may assert rights and make claims under English Law: Bumper Development Corporation v. Commissioner of Police of the Metropolis [1991] 1 WLR 1362. But a car does not have legal personality under our law. It follows, in my judgment, that no car can have a better claim to anything than any other car. The Court could not, therefore, make a declaration in the terms of the first declaration sought by Mr Lloyd. Precisely the same applies to the first declaration sought by Mr Svenby in his Re-Amended Defence and Counterclaim.[71]The fact that a car cannot have a claim is not of itself necessarily fatal to Mr Lloyd’s or to Mr Svenby’s claim for relief in relation to the registration mark. The declarations could be reformulated in personal terms: that Mr Lloyd has a better claim to have his car registered with the disputed registration number than Mr Svenby (or vice versa). But there are in my judgment insuperable obstacles to the grant of such relief.[72]In the first place, there is no common law right to a particular (or any) registration mark. The system of registration marks is a creature of statute, and any right to a particular mark must be found in statute or statutory instrument. Apart from the rights that may be conferred pursuant to section 26 of the 1994 Act or under a scheme made under section 27, there is no statutory right to a particular registration mark. There is therefore in the present case no right which may be the subject of adjudication.[73]Mr Ticciati submitted that the Court should nonetheless grant the declarations sought by Mr Lloyd in relation to the registration number because the Secretary of State and the DVLA had requested the Court to assist them in resolving the dispute between the parties and the Court, i.e. Keith J, had made an order with the agreement of the parties for the matter to be determined by the Court. But the Secretary of State cannot confer jurisdiction on the Court that it does not otherwise have; nor can that request create the principles to be applied to the decision to be made by the Court. Much the same applies to the order made by Keith J. There was no issue before him as to whether the Court can or should grant relief such as that sought by Mr Lloyd in relation to the registration mark, and no decision by him on this issue. I doubt that Mr Svenby’s solicitor had considered the full implications of the order made by Keith J, and I note that in any event formally the order was not a consent order. Of course, if the issues are not justiciable, the parties have wasted considerable costs, and the court considerable time, but that is a consequence of the parties’ initial pursuit and late abandonment of causes of action in tort, and of full argument only taking place after the evidence was heard.[74]There are other objections to the Court making the first declaration sought by Mr Lloyd or that originally sought by Mr Svenby. It is common ground that under the statutory scheme, it is the Secretary of State (by his agency the DVLA) who decides whether a particular car should have a particular registration number. His decision may be impugned by judicial review, as Mr Lloyd sought to do, although it is difficult to see the basis on which the lawfulness of the Secretary of State’s decision to withdraw the registration mark from both cars, on the basis that he could not decide which car should keep it, could successfully have been challenged. I have not heard argument on the issue, but it would appear to have been a most sensible, and therefore reasonable and lawful, decision in the circumstances. Be that as it may, neither the request of the Secretary of State nor the agreement of the parties (if such there was) can entitle the Court to make a decision that Parliament has enacted is to be made by him.[75]Mr Ticciati submitted that the Court should consider the issues raised by Mr Lloyd’s application for the first declaration because the Court would not be deciding which car should be registered with the disputed mark, which, as he accepts, is a decision that only the Secretary of State can make, but only which car has the better claim. But that seems to me to be an unrealistic distinction. It is difficult to imagine the Secretary of State doing other than to assign the mark to the car which the court decided had the better claim. If he were to refuse to do so, judicial review proceedings would follow. In practice, the Court would be deciding to which car the mark should be assigned. That the Court is being asked to make a decision that Parliament has decided is to be made by the Secretary of State is confirmed by the DVLA’s formulation of the issue it had to resolve, as set out in its letter to Mr Lloyd of 22 February 2002: … the Agency has to concentrate essentially on the identity of a vehicle established when it is first registered and having looked at all aspects of the matter decide which of the two vehicles in existence now (has) the (better) claim to be that vehicle now or to have legitimately inherited the registration mark following an official transfer of marks. Mr Ticciati submitted that “this is a precise formulation of how the Court should approach the principal issue in this action”. But, apart from the point that these matters are to be determined by the Secretary of State rather than the Court, if and to the extent that it differs from the general question, namely, “Which car has the better claim to the registration mark?” it is a formulation made by the Agency which is not based on or reflected in any statute or statutory instrument.[76]In my judgment, Mr Ticciati’s best point is that the Agency has stated that it is unable to resolve the factual issues on which the determination of its question depends, and has invited the Court to make a decision. However, as I have stated, the decision made by the Agency would appear to have been a lawful one. It is unnecessary to resolve the factual issues to determine any right of property or cause of action. If Mr Ticciati’s submission were well-founded, in any case in which Parliament has conferred the making of a decision on a tribunal or on the executive, the court could be required to act as a fact-finding agency, to find facts in dispute and express an opinion as to the most meritorious outcome. As Mr Mellor rightly submitted, that would be inconsistent with the principles of judicial review. No authority has been cited to me in which the Court has so acted. It would be to substitute the Court for the authority to which Parliament has given this task.[77]There is another good reason not to accede to such applications. The time of the Court is a finite resource. Court time taken on a case such as the present means that other cases, that are indubitably the subject of the adjudicative jurisdiction of the Court, must be heard later than otherwise would be the case. This case took up 7 days of court time, to which must be added the considerable time required to write this judgment, even on the limited basis on which I propose to do so. In my judgment, the genealogy of motor cars is not of itself a proper subject for the Court to investigate, unless the investigation is for the purpose of deciding on justiciable rights of the parties.[78]There is a further objection to my acceding to Mr Ticciati’s submissions on this issue. There are no recognised or established principles to apply to the determination of the issue raised by the application for the first declaration. This is precisely because a registration mark is not a right of property and no tortious cause of action is now alleged. Many questions would fall for consideration, and I do not pretend that what follows is an exhaustive list. Most, but not all, depend on the assumption that the chassis of Mr Lloyd’s car is indeed the chassis of the Bill Moss car, itself an issue between the parties. On that assumption, should Mr Lloyd’s claim or Mr Svenby’s depend on the actions of their predecessors in title? Should the registration number go to the car that was more famous for having been raced with it? Did Bill Moss’s car cease to exist as a car after the filming accident, and if so is that relevant? Should the initial transfer to the spaceframe car be ignored because no one informed the local registration authority of what had happened to the Bill Moss car (which, on one view of the facts, had been destroyed or broken up, and so should not have retained a registration number in any event), or sought its agreement to the registration of the spaceframe with that registration number? Would it be relevant if (as is suggested on behalf of Mr Svenby) at that time such informal transfers of registration numbers and chassis numbers were common, or not uncommon? (Compare Mr Langton’s registration of himself as keeper of WTM 446 in 1982.) Is it relevant that Bill Moss owned his car with the registration mark for about a year, whereas subsequently for some 20 years the spaceframe car was the only car with the registration number and displayed it and raced with it without challenge? Was there any agreement between Mr Langton and Mr Harper precluding the former from claiming the registration number, and if so is that relevant now? Did Mr Simpson intend to pass the registration mark to Mr Langton’s car, and if so is that relevant if he did not carry out that agreement by executing any documentation or delivering the log book of the spaceframe car to Mr Langton? What is the relevance of the fact that Mr Simpson gave the log book of the spaceframe car to Mr Harper when he sold it? Should Mr Langton’s registration of his car, in circumstances when, on one view of the facts, he must have known that the DVLA believed that the car with that registration number was the spaceframe, without informing the DVLA that there were 2 different cars in question, affect the propriety of his action? If so, with what consequences? Is it relevant that the first car registered on the central vehicle register with the mark was the spaceframe? What if anything is the significance of the fact that, on the above assumption, the only component of the Bill Moss car that is incorporated in Mr Lloyd’s car is the chassis, whereas the spaceframe car is very substantially the same car that raced in the 1963 Le Mans? Should Mr Lloyd’s car be regarded as the same car as that driven by Bill Moss? In a note to Mr Law, Doug Nye described the spaceframe car, an admittedly unique classic racing car, as “class”, whereas he used a four letter word denoting solid animal waste to describe Mr Lloyd’s car, because of the very considerable changes it had undergone since it was owned by Bill Moss, including the fitting of a different design of body from the original. Is that difference in the extent and quality of their pedigree relevant to the question which car should be registered with the mark? Was the spaceframe permanently exported by Dr Renault (or Dr Renault and Mr Harper jointly), and if so does that mean that the spaceframe lost its “right” to the registration mark? Was the conduct of Mr Harper in relation to the registration of the spaceframe reprehensible, and if so should that affect Mr Svenby’s claim?[79]One can contrast this list of possible questions with the position where a cause of action is pleaded, such as malicious falsehood. The issues to be addressed by the court are defined by the constituents of the tort: did the defendant make a publication, was it false, did the defendant make it maliciously, did it cause damage?[80]The questions I have mentioned in paragraph 78 above, which I consider to be entirely legitimate if the court is to consider granting the first declaration, show that it would be inappropriate for the Court to grant any particular factual declaration relevant to the allocation of the registration mark. Any such declaration would be partial, not necessarily in the sense of favouring one party at the expense of another, although that might well be the effect, but because it would give an incomplete picture of the facts and judgments that might be relevant. That applies as much to the first declaration sought by Mr Mellor in his closing submissions as to any other claim.[81]I add that any findings of disputed facts would be made in a case that relates to a history of some 40 years, in a context that is, apart from the undisputed registration history, to a significant extent undocumented, and where the evidence of significant actors (such as Mr Langton and Mr Simpson) is unavailable. Furthermore, possibly because of the absence of any framework, the parties’ pleadings were less than perfect. By way of example, the permanent export point was not pleaded by Mr Ticciati; when Mr Mellor made his final submissions, he objected to the issue being raised, partly on the justifiable basis that if it had been pleaded Mr Svenby’s case would have focused on the point, and, for example, greater efforts would have been made to obtain evidence from Dr Renault, who is seriously ill. For his part, in Mr Svenby’s original Defence and Counterclaim there was no allegation that the chassis of Mr Lloyd’s car was not that of the Bill Moss car. Even in the Re-Amended Defence and Counterclaim, there was no such clear allegation, but only an allegation that the chassis sold by Mr Harper to Mr Langton did not bear a chassis number (which is not necessarily the same allegation). Yet the issue as to whether the chassis of Mr Lloyd’s car is by and large the chassis of the Bill Moss car came to be a major issue of fact. On 7 February 2005, Master Leslie made an order requiring any application for permission to rely upon expert evidence to be issued and served with any draft expert report by 27 May 2005. No such application was made. Nonetheless, evidence that was in my view expert evidence was adduced orally from witnesses of fact, for example as to whether a chassis is the part of a vehicle that defines its identity, and whether (as Mr Svenby suggested) in the 1960s there was an accepted or general practice for registration numbers to be transferred informally from one car to another without notification to the registration authority. No objection was made to that evidence, but I was left with the feeling that if expert reports had been exchanged matters would have been explored more thoroughly. There was no expert evidence (and I think no other reliable evidence) that either Mr Lloyd or Mr Svenby has suffered loss as a result of the other’s use of the registration number or the chassis number in question; or that chassis numbers are generally unique, or that the use by Mr Svenby of the chassis number BHL126 (which he does not pretend to have been allocated by Mr Lister) has caused or may cause any loss or practical difficulty to Mr Lloyd.[82]As has been indicated above, during the course of the hearing I voiced my concerns relating to the first declaration. It was presumably in recognition of these objections that Mr Ticciati (although not accepting the validity of those objections) put forward the second declaration. But apart from any other objection to the making of a declaration in that form, there is no dispute as to its content. Mr Svenby has never suggested that his car is the car once owned by Bill Moss. Anyone who has any interest in the subject can see from Doug Nye’s book that there are two different cars. A declaration that Mr Lloyd’s car has the better claim to be Bill Moss’s car than Mr Svenby’s car is inappropriate where Mr Svenby does not claim that his car is Bill Moss’s car. Much the same may be said about the first declaration sought by Mr Mellor in his closing submissions. For the Court to make a declaration that the spaceframe car was registered with the registration mark WTM 446 when the centralised computerised register was established begs a question as to whether the spaceframe car should be regarded as the car lawfully registered with that mark immediately before the register was established, and also gives the impression (which may not be justified) that the fact that it was so registered (assuming it is to be so regarded) is significant, if not decisive, as to entitlement to the mark now. As to the second declaration sought by Mr Mellor in his closing submissions, the Court could not fairly consider the making of such a declaration without considering whether a similar declaration should be made in relation to Mr Sargent’s registration of himself as the keeper of WTM 446. Viewed in isolation, the declaration sought by Mr Mellor, if granted, would be seen as decisive of entitlement to the disputed mark.[83]Turning to the question of the chassis number, the fourth declaration is of facts that are not in dispute. No one has suggested or now suggests that the chassis number BHL126 was given to the spaceframe when the chassis was manufactured. It is not in dispute that it was Mr Sargent who affixed the chassis number in the circumstances set out above.[84]As to the third declaration, the issue as to the authenticity of the chassis of Mr Lloyd’s car arose as part of Mr Svenby’s defence to the claim of slander of title. That claim has been abandoned. As a result, the only function of this declaration, if granted, would be to authenticate the chassis of Mr Lloyd’s car. If a declaration to the opposite effect were made, or the Court were to find that on the balance of probabilities the chassis was not that of the Bill Moss car, the effect would be to destroy Mr Lloyd’s claim of authenticity.[85]In my judgment, it is not, and it should not be, the function of the Court, to act as an authority to determine the authenticity or inauthenticity of chassis numbers, or indeed of works of art or antiquities, where it is not necessary to do so in order to determine justiciable issues between the parties before it; for example, where there is a dispute as to whether an object sold by description complies with that description (as in the case of Hubbard v Middlebridge Scimitar Ltd, an unreported decision of Otton J of 27 July 1990). In such a case there are justiciable contractual rights and obligations in play. In this case there are now none. A declaration made by the Court in these proceedings would be a declaration as between Mr Lloyd and Mr Svenby. But Mr Svenby’s primary contention is that if I do not grant the declarations he seeks I should dismiss both parties’ claims. Any declaration made in these proceedings would not bind anyone other than Mr Lloyd, Mr Svenby and the Secretary of State. It would not, it seems to me, for example bind a purchaser from Mr Lloyd. Mr Svenby has put forward substantial grounds, set out in Mr Mellor’s Supplementary Note on the Chassis, to question whether Mr Lloyd’s chassis is the Bill Moss chassis. If I were to rule on this issue of fact, I should do so in circumstances in which the evidence put before me was determined by the parties, in which Mr Lister was not asked in terms whether or not the chassis number on Mr Lloyd’s chassis was or could have been impressed by his company’s stamps, and in which it was not clearly put to Mr Pearson that he had forged that chassis number on a chassis which was not that of the Bill Moss car: omissions that would be relevant to my decision, although they are peculiar to this trial. To grant the declaration sought would give an apparent objectivity to a declaration that would be in fact be relative and specific to Mr Lloyd and Mr Svenby. In considering the appropriateness of a declaration or a specific finding of fact, one should consider it both ways. Now that Mr Svenby is not the object of any tortious claim, it seems to me difficult to see that he has any legitimate interest in a finding by the Court that Mr Lloyd’s chassis not authentic. If so, why should the Court determine whether or not it is authentic?[86]It will be appreciated that the fact that neither car is registered with the disputed registration mark does not as a matter of English Law prevent either of them being driven with that mark otherwise than on the public roads. No evidence was put before me to the effect that a refusal to grant declaratory relief would result in either Mr Lloyd or Mr Svenby being unable to enter his car in historic vehicle races organised under the aegis of the FIA or that of any other authority.[87]The power of the Court to make declarations is unfettered by statute or the CPR: see CPR Part 40.20. In Financial Services Authority v Rourke [2002] C.P. Rep 14, The Times 12 November 2001, Neuberger J said that “when deciding whether to grant a declaration or not, the court should take into account justice to the claimant, justice to the defendant, whether the declaration would serve a useful purpose and whether there are any other special reasons why or why not the court should grant the declaration”. That case was a very different case from the present, and it is not useful to compare its context and facts. It is sufficient to say that for the reasons I have given I consider that the power should not be exercised in this case.

Conclusion

[88]For the reasons I have given, both the claim and the counterclaim will be dismissed.[89]During the course of argument, I expressed the hope that, if there were to be an appeal against my judgment (and Mr Ticciati made it clear that Mr Lloyd would seek to appeal any adverse judgment on the jurisdictional issues I have addressed), it would be unnecessary for the Court of Appeal to remit the case to me for further facts to be found. On reflection, I have concluded that I should not make findings on the facts in issue, for the reasons I have given. If the Court of Appeal decides that I should have done so, it will doubtless indicate which factual disputes it is necessary to resolve and the basis on which the court is to decide which of these two cars has the better claim to the disputed registration mark. I should be able to make those findings of fact without a further hearing. APPENDIX 1: Extracts from Doug Nye’s book “Powered by Jaguar”90. “Fifth production ‘Costin’ Lister – Chassis serial BHL 126 Supplied new to accept Jaguar XK 6-cylinder engine by Brian Lister (Light Engineering) Ltd, Abbey Road, Cambridge – to Bill Moss, Luton, 1959 – road registered WTM 446 – to John Coundley – crashed heavily and severely damaged during filming of The Green Helmet, driver Stephen Ouvaroff. Wreck to Maurice Charles, Cardiff – remains subsequently sold to Nigel Moores, Liverpool – repaired by Paul Kelly to rolling chassis condition and sold to John Pearson. To John Harper in incomplete component form – to John May – to Ken Dalziel – to Stephen Langton, Reigate, who rebuilt the components acquired for Historic racing with a Jaguar engine and non-original ‘Knobbly’ body in place of the genuine car’s Costin body. Langton applied for and secured the modern-era British national vehicle licensing authority at Swansea. This entirely inappropriately-bodied ‘Knobbly’ entity passed subsequently to Aiden Mills Thomas – to Allen Lloyd and retained, still wearing the ‘Knobbly’ body, 2005.91. The unique spaceframe Lister-Jaguar Coupe – Chassis serial BHL 126 (2) John Pearson, early 1960’s mechanic on this car, recalls it as having been in reality at that time serialled BHL 136*…which would explain how 10 more Listers apparently came to be numbered after the spaceframe ‘last Lister’…Ex works Frank Costin-designed multi-tubular spaceframe chassis – sold incomplete after Lister’s withdrawal from racing to Jim Diggory, Wrexham, North Wales – completed to running order with open Costin bodywork and driven by Diggory, Colin Escort and Bruce Halford before being sold to John Coundley – crashed at Aintree. It was sold to Mrs Sargent for Peter Sargent/Peter Lumsden – converted for them with the addition of a close coupe roof/windscreen/side windows/rear screen by Playford Engineering for the Le Mans 24-Hours race – powered by Lucas fuel-injected alloy-block XK engine removed from Sargent/Lumsden Lightweight E-Type which had been damaged in the ADAC 1,000 Kms at Nurburgring. This unique Coupe Lister-Jaguar carried the registration WTM 446 at Le Mans, but retired due to clutch failure. Subsequently it was sold back to John Coundley and co-driven by him and Jack Fairman in the 1964 ADAC 1,000 Kms at Nurburgring, prepared by mechanic John Pearson. Subsequently to David Harvey – to JA Pearce – to Neil Corner – to Hexagon of Highgate, who had it cut down into open sports-racing roadster form for Historic racing with drivers Nick Faure and Gerry Marshall. Subsequently (still open ‘Costin’ sports-racing form) it went to Barry Simpson – then to Dr Philippe Renault, Paris, France, for whom it was restored to its 1963-64 Le Mans Coupe form – later to Staffan Svenby (formerly manager to the great Ronnie Peterson) in Sweden, but kept in the UK where it was prepared by Don Law Racing for drivers Justin Law, Win Percy, Andy Wallace, etc. A star of the Goodwood Festival of Speed and Revival meetings, and retained 2005.” _______________________ * If in fact 130 series cars numbered higher than 132 (of which there is the contemporary original sales invoice record, quoted above ) were ever produced in period at all…

Cited in 2 later judgments