Car Crash Line Ltd & Anor v Branton Edwards (a firm)

A case management conference is not ordinarily the occasion for finally deciding substantive issues. A judge may express a provisional view, including that an proposed issue is hopeless, but a binding determination requires proper procedural steps and a fair opportunity for full argument. Where an application seeks an order for a preliminary issue, the court must comply with the procedural requirements governing case management and applications. An order dismissing that application does not prevent a party from advancing the substantive point at trial. Where the legal position may shortly be clarified by a pending appeal or legislative action, it may be preferable to defer determination of the issue.

The claimants operated a credit-hire business and alleged that the defendant solicitors negligently prepared documentation which failed to comply with the Consumer Credit Act 1974. The agreements were therefore said to be unenforceable. The defendants argued that the claimants might nevertheless have a restitutionary remedy against customers and sought a preliminary issue on that question.

The judge at a case management conference dismissed the application, expressing the view that Dimond v Lovell [2000] 2 WLR 1121 prevented such a claim. The claimants appealed. The central questions were whether the judge had made a binding ruling and whether a preliminary issue should be ordered while Wilson v First County Trust Ltd [2002] QB 74 was pending before the House of Lords.

1. Appeal dismissed. The order merely dismissed the defendants’ application for a preliminary issue. It did not determine the availability of a restitutionary remedy or prevent the defendants from arguing that issue in later proceedings.
2. Per Sir Christopher Staughton, a case management conference does not ordinarily decide substantive issues. A judge may express a view on the strength of an argument, but that view does not necessarily bind the trial judge. The court considered it preferable that the restitution issue should await clarification from the pending appeal in Wilson v First County Trust Ltd [2002] QB 74 and any resulting legislative response.
3. The court declined to express a view on whether the Human Rights Act 1998 had altered the reasoning in Dimond v Lovell [2000] 2 WLR 1121, or whether a restitutionary claim could succeed notwithstanding the statutory bar.
4. Per Lord Justice Brooke, CPR 3.1 confers case-management powers, including power to direct a separate trial. However, the defendants had applied for an order that a preliminary issue should be tried, not for the judge to decide the issue immediately. The judge therefore had no power, on his own initiative and without complying with CPR 3.3 and CPR 23.3(1), to make a ruling binding on the trial judge. Costs of the appeal were ordered to be costs in the issue whether a restitutionary claim was available.

• High Court of Justice, Queen’s Bench Division, Bristol Mercantile Court: His Honour Judge Havelock-Allan QC dismissed the application for a preliminary issue and expressed the view that the defendants were presently bound by Dimond v Lovell [2000] 2 WLR 1121.
• Court of Appeal (Civil Division): The appeal was dismissed. The order did not finally determine the restitution issue or prevent it being argued later.