Gleave v Holder

Permission to appeal against findings of fraudulent misrepresentation will not be granted where the trial judge’s findings are supported by accepted evidence and no realistic basis for interference is shown. A representation is fraudulent where the maker knows it is false or is reckless as to whether it is true or false. Additional evidence may be considered provisionally, but the appeal should still fail if it could not realistically undermine the findings. A vague allegation concerning a joint expert’s possible bias is insufficient. A retrial will not ordinarily be ordered merely because available evidence was not properly advanced at trial.

The claimant bought an Aermacchi motorcycle at auction from an auctioneer acting as the defendant’s agent. The trial judge found that the catalogue description falsely represented the motorcycle’s approximate date and the authenticity suggested by its matching numbers. He found that those representations had induced the purchase and that the defendant knew they were false or was reckless as to their truth.

The defendant applied for permission to appeal. He challenged the refusal to admit an additional question to a witness, sought to rely on further evidence from that witness, and alleged impropriety or possible bias concerning the joint expert. The central issue was whether those matters disclosed any realistic prospect of overturning the findings or required a retrial.

1. Application dismissed. Potter LJ held that the critical findings were that the representation that the motorcycle was circa 1964 was clear, relied upon, and known to be false or made recklessly. Those findings were supported by the trial judge’s preference for Mr Linton’s evidence and by the expert evidence. The finding concerning the engine and frame numbers independently justified the conclusion that the defendant had acted fraudulently.
2. The proposed evidence from Mr Altinier did not provide a realistic basis for interference. Even assuming it could be considered de bene esse, it did not answer the evidence that Mr Linton had explained the motorcycle’s true character to the defendant before the auction, nor the trial judge’s severe criticism of the defendant’s reliability. The principles in Ladd v Marshal created further difficulty because the evidence had been available before trial and there was no satisfactory explanation for its omission.
3. The trial judge was entitled to control the late additional question to Mr Altinier. It introduced evidence omitted from the witness’s statement, and both parties were treated consistently. The allegation of fraud did not require every late evidential addition to be admitted.
4. The challenge to the joint expert was unsustainable. The trial judge relied on the written report and answers prepared before trial, while leaving the defendant free to cross-examine. A vague suggestion that the expert had known another witness for many years did not establish bias or lack of integrity.
5. Arden LJ agreed. The defendant had an opportunity to present his whole case at trial, and a retrial would be unfair to the claimant merely because available evidence had not been brought forward. The formal order was that the application for permission to appeal was dismissed.

• Court of Appeal (Civil Division): Application for permission to appeal dismissed.
• Central London Civil Justice Centre / Tunbridge Wells County Court: His Honour Judge Cowell gave judgment for the claimant, ordered rescission of the sale contract, repayment of £4,705 with interest of £1,426.09, and payment of £10,000 on account of costs.