Cosgrove Packaging Limited v BMB (UK) Limited

In exercising case-management powers, the court may refuse a late application for a split trial where the claimant has had ample opportunity to prepare its case, the claim is stale, and a separate liability trial would impose disproportionate cost. The overriding objective requires fairness to both parties and proper use of court resources. A claimant alleging contractual breach must plead and prove loss in monetary terms. Lost production time alone does not justify an inference of financial loss, and the court must not speculate. Where the pleadings and evidence disclose, at most, nominal damages, summary judgment may properly be entered.

Cosgrove Packaging Limited v BMB (UK) Limited concerned the sale of a plastic moulding machine alleged to be defective. The claimant initially sought approximately £18,500 for loss of profit arising from lost production, but later abandoned that head of loss and sought to pursue diminution in value without amending its pleading or providing the ordered evidence of resale.

On 19 November 2001, the County Court refused a split trial and entered summary judgment for BMB under CPR 24. The claimant renewed its application for permission to appeal. The central issues were whether the case-management discretion had been wrongly exercised and whether the existing pleadings and evidence could support a substantial damages claim.

Lord Justice Tuckey gave the substantive judgment. Lord Justice Jonathan Parker agreed.

1. Split trial. The trial judge was entitled to refuse the late application for a split trial. In applying the overriding objective, he was entitled to consider the stale history of the claim, repeated failures to comply with directions, the claimant’s ample opportunity to prepare its case, fairness to both parties, and the proper allocation of court resources. The Court of Appeal found no basis for interfering with that discretionary decision.
2. Proof of loss. In a breach of contract claim, the claimant must plead and prove that the breach caused loss measured in monetary terms. The fact of lost production time did not permit the court to infer financial loss. The court could not speculate where the claimant had supplied no evidence translating the alleged downtime into money.
3. Unpleaded or unsupported claims. The judge was entitled to reject an attempt to introduce loss-of-profit evidence through witnesses whose statements did not address the calculation, particularly without supporting disclosure. The proposed diminution-in-value claim had not been pleaded or particularised, and the claimant had failed to provide evidence of the alleged resale. The court noted that the relevant date for assessing diminution in value under the Sale of Goods Act was accepted to be the date of sale, but the necessary evidence remained absent.
4. Summary judgment and proportionality. On the pleadings and evidence, the most the claimant could expect, even if liability were established, was nominal damages. Given the estimated costs of about £60,000 and the further costs of a liability trial, the judge was not required to conduct a trial whose practical outcome was inevitable. Summary judgment under the Civil Procedure Rules 1998 Part 24 was therefore justified.

The renewed application for permission to appeal was refused.

• Court of Appeal (Civil Division) ([2002] EWCA Civ 375): refused the renewed application for permission to appeal.
• County Court: on 19 November 2001, Judge Holman refused a split trial and entered summary judgment for BMB under CPR 24.