British School Of Motoring v Hooper

An appellate court will not interfere with findings of fact made by a trial judge in circumstances where the findings are open to the judge. Contractual breaches, considered individually or cumulatively, justify withdrawal only if they amount to a repudiatory breach. A contractual termination clause also limits any claim for future loss. Where a contract permits termination after an initial fixed period, damages cannot be claimed for periods extending beyond the contractual limit. A defendant is not obliged to call oral evidence, although it assumes the risks of relying on the claimant’s evidence. Permission to appeal was refused because the proposed appeal had no prospect of success.

British School of Motoring Ltd discontinued its claim against Donald Hooper for an unpaid franchise fee. Hooper pursued a Part 20 claim for damages, alleging that BSM had repudiated a franchise agreement under which he worked as an independent self-employed driving instructor. The Wandsworth County Court dismissed the claim on 14 February 2001 and ordered Hooper to pay costs, subject to a set-off.

Hooper applied to the Court of Appeal for permission to appeal and an extension of time. He challenged the trial procedure, the absence of oral evidence from BSM, the judge’s factual findings, and the conclusion that BSM’s breaches were not repudiatory. He also claimed damages for approximately nine years of lost income. The central issues were whether the findings could be revisited on appeal, whether the breaches entitled him to withdraw from the agreement, and how the contractual termination provision affected the damages claim.

Permission to appeal

The application for permission to appeal was dismissed. The proposed appeal had no prospect of success.

1. Trial findings. The trial judge was entitled to assess Hooper as an unreliable witness. Although BSM called no oral evidence, the judge was entitled to accept that certain breaches had occurred where there was no evidence to the contrary. A defendant is not obliged to call oral evidence, although it takes risks by choosing not to do so.
2. Repudiatory breach. The judge considered the alleged breaches individually and cumulatively. The Court of Appeal agreed that none of them, whether taken separately or together, amounted to a repudiatory breach entitling Hooper to withdraw from the franchise agreement.
3. Contractual limit on loss. The agreement could be terminated by either party by 28 days’ written notice at or after the expiry of the first twelve months. Accordingly, Hooper could not claim damages for the whole period until his retirement. On the court’s analysis, any claim for loss could extend only from the termination in September 1993 to the first anniversary of the agreement on 9 June 1994.
4. Result. The judge’s findings were open to him and, having made them, he had no alternative but to dismiss the Part 20 claim. The application for permission to appeal was therefore dismissed.

• Court of Appeal (Civil Division): Application for permission to appeal, together with an application for an extension of time, against the county court order; permission to appeal dismissed.
• Wandsworth County Court: His Honour Judge Walker dismissed the Part 20 claim on 14 February 2001 and ordered costs, subject to a set-off for the discontinued claim.