Goose v Wilson Sandford & Co & Anor

A delay of exceptional length in delivering a reserved judgment may materially weaken the trial judge’s advantage in assessing evidence. Where the delay, errors in the treatment of evidence and omissions in primary findings create a substantial risk of miscarriage of justice, the appellate court may order a retrial under Order 59 rule 11.

An appellate court cannot resolve limitation issues requiring primary findings about discovery, reasonable diligence or deliberate concealment. A retainer cannot be established merely because an intermediary instructed professionals for a company or proposed consortium; authority to act for the individual claimant must be proved.

Rex Goose appealed from the order of Harman J, dated 1 April 1996, dismissing consolidated proceedings against Wilson Sandford & Co and Gerard Mainon. The claims included breach of contract, negligence, deceit, breach of fiduciary duty, equitable compensation and knowing assistance.

The proceedings arose from a proposed farming and finance venture involving Peter Bray, Intag and alleged security in gemstones. The trial judge rejected the alleged retainer and most alleged representations, found no duty of care and held that the constructive-trust claim could not succeed. He made no findings necessary to determine the limitation issues.

The appeal raised the effect of the judge’s delay of more than 20 months, the safety of his factual findings, limitation and amendment issues, and whether the claims should be retried.

1. Delay and appellate review. The court strongly censured the delay of more than 20 months in delivering judgment. Such delay undermined the trial judge’s advantage in assessing witnesses and required the appellate court to examine challenged findings with especial care. The delay was wholly unacceptable and had materially affected the safety of the judgment.
2. Limitation. The court held that it could not decide whether time was postponed under section 32 of the Limitation Act 1980. The necessary findings concerned what Mr Goose had discovered, what he could have discovered with reasonable diligence, and what Mr Wilson had deliberately concealed. Those were primary factual questions which the appellate court could not make.
3. Amendments. The amendments allowed in the first action did not arise out of the same facts or substantially the same facts as an existing cause of action within Order 20 rule 5(5) of the Rules of the Supreme Court. The judge had therefore misdirected himself, and the cross-appeal succeeded on that ground. The claims remained in the consolidated proceedings through the second action.
4. Retainer and evidence. There was no evidence that Mr Bray had authority to retain Wilson Sandford for Mr Goose. Intag could instruct the firm as a legal entity, but that did not establish instructions by the individual members of the proposed consortium. The retainer claim was hopeless. However, the findings concerning alleged representations in September 1984, April 1985 and July 1985 were unsafe, and the April proposal could potentially give rise to a duty of care if the facts were proved differently.
5. Disposition. The appeal was allowed. The action was ordered to be retried because Mr Goose had lost a fairly open chance of success on a substantial part of his case and the miscarriage of justice could not otherwise be rectified. The court declined to determine the remaining deceit, negligence and constructive-trust issues in advance of the retrial.

• Court of Appeal (Civil Division): [1998] EWCA Civ 245. Appeal allowed and action ordered to be retried. The cross-appeal succeeded to the extent that amendments allowed under Order 20 rule 5(5) were set aside.
• High Court, Chancery Division: Harman J dismissed the consolidated action on 1 April 1996.