Brendan Connor v Reid Douglas Torr

An appellate court must assess whether the trial was fair overall where a judge rejects a witness’s evidence on a significant ground that was not put to that witness. A finding of dishonesty based centrally on an unpleaded and unput allegation may constitute a serious procedural irregularity, even where other adverse findings were made. An appeal court should not substitute its factual evaluation merely because it might view photographs or evidence differently, provided the trial judge’s conclusion was reasonably supported. In deceit damages, the usual credit for the market value of property acquired is not inflexible. The overriding compensatory principle may justify recovery of the full price where the claimant was not freely retaining the asset and was entitled to rescind.

The appellant appealed from a judgment of the Central London County Court arising from the respondent’s deceit claim concerning the sale of a second-hand Ferrari. The County Court found that representations about the car’s condition and factory-fitted features had been made, relied upon, and were false and fraudulent. It awarded recoverable damages.

Four grounds challenged the judge’s approach to dishonesty, the treatment of the date of a report, factual findings concerning inspection of the car, and the assessment of damages. The central issues were whether the dishonesty finding was procedurally unfair because dishonest procurement of documents had not been put to the appellant, and whether the respondent should receive credit for the car’s market value.

1. Appeal allowed. The County Court’s finding on dishonesty could not stand because the judge treated the alleged dishonest procurement of the Laser Report and Granell Email as central to his conclusion, although that allegation had never formed part of the respondent’s case and had not been put to the appellant or relevant witnesses.
2. The governing question was whether the trial, viewed overall, was fair. Relevant factors included the importance of the issue, the closeness of the unput ground to matters raised, the reasonableness of not putting it, the time available for cross-examination, whether it had been raised in speeches or evidence, and whether the witness might have answered it satisfactorily. The allegation was materially different from challenging the reliability of document contents or alleging forgery, the latter having been expressly withdrawn.
3. The procedural irregularity was serious because dishonesty was an essential element of the deceit claim. The judge’s references to dishonest procurement as the main difficulty and as the basis of the finding concerning factory-fitted features showed that the other findings did not independently rescue the decision.
4. Grounds concerning the report’s date and the judge’s assessment of photographs and inspection failed. The latter conclusion was reasonably open on the evidence and did not amount to impermissible appellate disagreement. A document may contain unreliable content without its date or authorship necessarily being false.
5. The damages challenge also failed. The principles in Smith New Court Securities v Scrimgeour Vickers [1997] AC 254 require the claimant to receive full compensation, but the usual credit for market value at acquisition is not inflexible. The respondent had sought rescission, was not freely retaining the car, and was entitled to recover the full price subject to credit for recovery under the purchaser’s lien.
6. The County Court judgment stood on representations, falsity, reliance and recoverability. The dishonesty issue was to be retried entirely afresh before a different judge. The County Court was to determine costs, and the respondent was ordered to pay the appellant’s appeal costs.

• Central London County Court: Judgment dated 18 February 2019 found for the respondent on deceit, including representations, falsity, reliance, dishonesty and recoverable damage.
• High Court (Queen’s Bench Division): Appeal allowed. The order dated 30 May 2019 was set aside. Four issues remained determined; the dishonesty issue was remitted for retrial before a different judge.