Bentley v Jones Harris & Company

A judge may give judgment for the defendant at the close of the claimant’s evidence where the claimant has no real prospect of success and is bound to fail. Determination before completion of all the evidence should be rare.

A document whose authenticity is deemed admitted under the Civil Procedure Rules 1998 does not thereby become evidence of the truth of its contents. It may nevertheless provide a proper basis for testing the claimant’s evidence in cross-examination. The judge may assess how the claimant responds to it when determining credibility and whether any case remains to answer.

The claimant sued his long-standing accountants for negligence. He alleged that a partner had advised him that a VAT liability might rise from £155,000 to £225,000 and that he should run down his business and dispose of its assets. At the close of the claimant’s evidence, the deputy judge held that there was no case to answer and that the claimant had proved neither negligent advice nor resulting loss.

Permission to appeal was confined principally to whether the deputy judge could rely upon an unproved attendance note of the relevant meeting and whether his factual conclusion could stand without such reliance. The Court of Appeal also permitted argument on causation. Permission to revive two other negligence issues was refused.

1. Appeal dismissed unanimously. Burton J, giving the first judgment, held that the deputy judge was entitled to reject the claimant’s evidence. Latham LJ agreed.

2. Under Part 32.19 of the Civil Procedure Rules 1998, the authenticity of the disclosed attendance notes was deemed admitted because no notice requiring proof had been served. That admission established their authenticity as contemporaneous documents. It did not make the notes evidence of the truth of their contents before their makers gave evidence.

3. The notes nevertheless provided a legitimate platform for testing the claimant’s account in cross-examination. The deputy judge could assess the claimant’s allegation that several apparently contemporaneous handwritten notes had been fabricated. He could also evaluate the manner in which the claimant responded to the contrary account which the defendants intended to advance. The deputy judge’s references to the contents of the principal attendance note were infelicitously expressed, but his decision rested upon a permissible assessment of the claimant’s credibility and consistency.

4. The claimant’s own evidence independently justified the conclusion that his case was bound to fail. The accountants were not handling the VAT assessment; the specialist advisers who were handling it had given optimistic advice; and the claimant did not ask them about the alleged warning. Negotiations concerning the premises had begun before the alleged advice, while the claimant was still considering expansion afterwards. His evidence therefore failed to establish either negligent advice or causative loss.

5. Applying Boyce v Wyatt Engineering and Others [2001] EWCA 692, Burton J held that nothing in the defendants’ evidence could have affected the assessment reached upon the claimant’s evidence. Latham LJ added that deciding a case before all evidence has been completed should be rare. A judge may nevertheless enter judgment for the defendant at the close of the claimant’s evidence where the claimant has no real prospect of success and is bound to fail. This gives effect to the overriding objective by containing unnecessary expenditure of time and costs, consistently with the approach under Part 24.2 of the Civil Procedure Rules 1998.

The appeal was dismissed with costs, subject to detailed assessment.

• Court of Appeal (Civil Division): The claimant’s appeal was dismissed unanimously. The court upheld the determination that there was no case to answer on negligent advice or causative loss: [2001] EWCA Civ 1724.

• High Court, Queen’s Bench Division: Mr H K Goddard QC, sitting as a deputy judge, entered judgment at the close of the claimant’s case. He found no case to answer on any of the three allegations of professional negligence and no provable damage resulting from the alleged VAT advice.