Balal v R S Woolhouse

Permission to appeal should be refused where the proposed grounds disclose no real prospect of the Court of Appeal interfering with the trial judge’s conclusions. Particular restraint is required where those conclusions depend on the judge’s assessment of witnesses, credibility and expert evidence. The reasonableness of repair work and delay is assessed in all the circumstances, including the complexity of the work and the parties’ conduct. A subsequent failure in testing does not, without more, establish that contractual work was performed to an unacceptable standard. An appellate court will determine the case advanced in the pleadings and will not entertain a materially different factual theory.

The claimant’s Chevrolet van was delivered to the defendant, a specialist repairer, after an engine failure. The claimant alleged defective and delayed work, responsibility for supplying an incompatible engine, and conversion arising from the van’s retention and alleged use.

After hearing conflicting evidence and considering expert material, the Bradford County Court gave judgment for the defendant for £1,093 and costs. The claimant applied to the Court of Appeal for permission to appeal, challenging the factual findings, treatment of the expert evidence, delay conclusions, the standard of the repairs and rejection of the conversion claim.

Permission to appeal was refused. The Court of Appeal considered that none of the proposed grounds had a real prospect of success.

1. The trial judge had resolved substantial conflicts between the claimant and defendant and had accepted the relevant expert evidence. Findings based on the trial judge’s advantage in seeing and hearing witnesses, including findings on credibility and alleged expert lack of independence, could not realistically be reconsidered by an appellate court dealing with the case on paper.
2. The judge was entitled to proceed on the basis that the engines inspected by the expert were what they purported to be. The claimant’s pleaded case was that incorrect information had caused him to supply an engine which did not fit. A different theory, namely that the correct engine had been supplied but the defendant had chosen not to fit it, did not assist the appeal.
3. The conclusion that the repair was completed within a reasonable time was open to the judge. Relevant circumstances included the difficulties of repairing or replacing a foreign engine, the defendant’s small business and the claimant’s lack of urgency. In any event, the claimant had not shown that earlier notification would have enabled him to recover the van sooner or caused loss.
4. The judge was entitled to accept the expert’s view that the contracted work appeared to have been completed to an acceptable standard. The van’s failure to pass its MOT and the possibility that the engine might require further investigation did not compel a finding of defective workmanship.
5. The conversion claim also failed. The judge was entitled to reject the claimant’s earlier mileage evidence and rely on the substantially smaller mileage difference shown by the later inspection, which could readily be accounted for.

1. Court of Appeal (Civil Division): In [2002] EWCA Civ 1593, Lord Justice Tuckey refused permission to appeal.
2. Bradford County Court: His Honour Judge Cliffe gave judgment for the defendant for £1,093 and costs.