Brewer v Mann & Ors

A judge should not substantially rewrite a handed-down judgment merely to answer grounds of appeal. Such alteration requires the most extraordinary justification.

It is procedurally unfair to make unpleaded findings of dishonesty and then use them to determine disputed facts. A hire-purchase description must be construed in its commercial and specialist context. It cannot incorporate a separate oral warranty given by a third party without the finance house’s knowledge.

A vintage car described as a particular model need not possess perfect originality, complete provenance or every original component. Where market understanding identifies the model by its chassis, a replacement engine does not necessarily breach the description. Any damages for defective goods must credit substantial beneficial use.

The claimant acquired a vintage Bentley from Fortis Lease UK Ltd under a hire-purchase agreement describing it as a “1930 Bentley Speed Six Car”. Stanley Mann, acting personally or through Stanley Mann Racing Ltd, had negotiated the transaction. The claimant alleged that he also warranted orally that the replacement engine was an authentic Speed Six engine.

His Honour Judge Thornton QC found for the claimant, awarded £94,555 plus interest against all three defendants and dismissed Fortis’s counterclaim. After handing down an approved judgment, the judge substantially rewrote it in response to grounds of appeal. The revised judgment included extensive adverse findings about Mr Mann’s honesty although dishonesty had neither been alleged nor put to him.

The appeals concerned the fairness of the trial, alteration of the judgment, the identity of the party to any collateral warranty, bailment by description under section 9 of the Supply of Goods (Implied Terms) Act 1973, the meaning of “1930 Bentley Speed Six”, damages and Fortis’s counterclaim.

1. Disposition. The appeals of Mr Mann and Stanley Mann Racing Ltd were allowed and their liability was remitted for a new trial. Fortis’s appeal was allowed in full. The claimant’s claim against Fortis failed, and Fortis recovered £61,224 on its counterclaim.

2. The trial was undermined by apparent loss of objectivity and procedural unfairness. The judge made an unheralded attack on Mr Mann’s honesty, although dishonesty had not been pleaded or put in cross-examination, and used those findings when deciding the critical disputed conversation. His treatment of the expert evidence and the late joinder of the company displayed similar unfairness. The question whether an oral warranty about the engine had been given remained entirely open for retrial.

3. A handed-down judgment should not be substantially rewritten merely to answer criticisms in proposed grounds of appeal. The jurisdiction to reconsider a judgment before the order is perfected survives, but alteration after hand-down requires the most extraordinary justification. Supplying requested missing reasons in an appropriate case differs from rewriting extensive reasoning to reinforce conclusions already reached. The rewritten fourth judgment had no status beyond serving as evidence of what had gone wrong.

4. A collateral warranty inducing another contract becomes enforceable when supported by consideration, ordinarily when the induced contract is made. The relevant time for determining whether the representor contracted personally or for a disclosed principal was therefore no earlier than payment of the deposit in anticipation of the hire-purchase agreement. Whether the company then supplanted Mr Mann, or whether he remained personally bound, required factual determination at retrial.

5. Subject to the unresolved possibility that the model description represented opinion rather than a contractual term, the agreement was prima facie a bailment by description under section 9 of the Supply of Goods (Implied Terms) Act 1973. Reliance could be inferred even though the goods were specific and the description also identified them.

6. Fortis could not be affected by an oral warranty allegedly given during a conversation to which it was not privy. Market and expert understanding formed part of the factual background to construing “1930 Bentley Speed Six”. The expression required incorporation of the original chassis and chassis number, but not an original Speed Six engine, complete documentary provenance or perfect authenticity. The expert evidence established that the car corresponded with its contractual description.

7. Had damages otherwise been recoverable, the claimant was required to credit £45,000 for approximately 14 months of pleasurable and substantial use. Fortis validly terminated for non-payment under the agreement. The contractually recoverable sum on its counterclaim had been agreed at £61,224.

1. Court of Appeal (Civil Division): The appeals were allowed. Fortis obtained judgment on its £61,224 counterclaim, while the claims against Mr Mann and Stanley Mann Racing Ltd were remitted for retrial. The substantially rewritten fourth judgment was held to have no operative status.

2. Queen’s Bench Division: His Honour Judge Thornton QC, sitting as a High Court judge, gave judgment reported as [2010] EWHC 2444 QB. He awarded the claimant £100,811 including interest against all three defendants and dismissed Fortis’s counterclaim.