Sharn Panesar Ltd v Pistachios In The Park Ltd & Anor

A trial of preliminary issues is unjust where the judge makes apparently binding findings on matters outside the defined issues without giving the parties a proper opportunity to adduce evidence and make submissions. Where the wider findings may have influenced the findings within scope, those findings cannot safely be severed or preserved. The appropriate remedy is to quash the order and remit all issues for trial before a different judge. The decision also confirms the need for preliminary issues to be formulated clearly and precisely, since they may otherwise fetter the court’s ability to reach a just result.

The claim concerned alleged misrepresentations inducing the claimants to enter into a café franchise agreement. The County Court ordered a trial of preliminary factual and agency issues. HHJ Saggerson answered those issues but also made further factual findings outside their scope, and incorporated all his findings into the order.

On appeal, the claimants argued that the procedure was seriously irregular and unjust. The respondents accepted that findings had exceeded the proper scope but argued that the findings on the preliminary issues could be preserved. The central issue was whether the valid findings could safely be isolated from the wider fact-finding exercise.

1. Appeal allowed. The County Court order was quashed and the case was remitted for trial of all issues before a different judge.
2. The judge had made findings on factual matters outside the preliminary issues without the parties having a proper opportunity to adduce evidence or make submissions on them. That constituted a serious procedural or other irregularity rendering the trial unjust under CPR r 52.21(3)(b).
3. The relevant question was not whether the judge had acted deliberately unfairly, nor whether individual findings were plainly wrong. The issue was whether the parties and the appellate court could be sufficiently confident that the findings within scope had not been materially influenced by the other findings. They could not.
4. Although factual findings may be accumulative, the findings necessary to answer the preliminary issues could not safely be isolated and severed from the totality of the judge’s fact-finding exercise. Varying the order to preserve only selected findings would therefore not cure the unfairness.
5. The court did not need to determine whether any finding was irrational or perverse under CPR r 52.21(3)(a), or whether the judge had applied the correct test for deceit. Those matters were unnecessary to the disposition.
6. The court endorsed the caution that preliminary issues should be formulated simply, clearly and precisely, and that the attraction of ordering them must be weighed against the risk of procedural unfairness and fettering a just result.

• High Court (Queen’s Bench Division): Appeal from the County Court at Central London order of HHJ Saggerson dated 23 October 2018. The order was quashed and the matter remitted for trial of all issues before a different judge.