Amanda Claire Marian Feilding or Charteris, Countess of Wemyss and March & Anor v Simon C Dickinson Limited

On an application for permission to appeal, the Court of Appeal held that a party should not introduce an unpleaded contractual case on appeal where it was not defended at trial and determining it would require different evidence and preparation.

Permission should also be refused where, even assuming an arguable legal error, there is no real prospect that the appeal would produce a different outcome and no other compelling reason for it to be heard. In assessing alleged negligence in an expert attribution, the expert’s actual opinion and any genuine doubts must be identified before asking whether a reasonably competent specialist could properly hold that opinion.

The trustees of the Wemyss Heirlooms Trust claimed that Simon C. Dickinson Limited had acted negligently in selling a painting as “Chardin and Studio” rather than pursuing a possible full attribution to Chardin or discussing further steps before sale. The High Court dismissed the claim in [2022] EWHC 3091 (Ch), and the judge refused permission to appeal.

Before the Court of Appeal, the trustees relied on a proposed contractual duty to report back, alleged duties to warn and obtain further expert advice, challenges to factual findings and the assessment of loss by loss-of-chance principles. The central questions were whether the new contractual case could be pursued and whether any alleged errors had a realistic prospect of affecting the outcome.

Permission to appeal was refused. Lady Justice Falk gave the reasons, with Lady Justices Simler and Asplin agreeing.

1. Contractual duty. The proposed argument that the defendant was contractually obliged to report back before sale was a new point. It had not been pleaded or defended as an independent contractual term. Determining it would have required examination of the parties’ significant prior dealings, with consequences for the evidence and cross-examination at trial. Applying the principles summarised in Hudson v Hathaway [2022] EWCA Civ 1648 at [34]–[35], it would not be just to permit the point to be pursued on appeal.
2. Duties to warn and obtain further advice. There was no real prospect of reversing the judge’s conclusion that the claim should be dismissed, and no other compelling reason for the appeal to be heard. The trustees had accepted at trial that they would have followed Mr Dickinson’s advice. The judge was entitled to find that the decision not to consult Mr Rosenberg was not negligent, given the risk that consultation could reduce the painting’s value, and that Mr Dickinson’s attribution and the sale price were not negligent.
3. Factual and expert findings. Limited extracts from the evidence could not substitute for the full evidential record heard by the trial judge. There was no real prospect of showing that the findings concerning the risks of consultation or the likely reaction of the trustees were unavailable on the evidence. In assessing negligent attribution, the expert’s actual opinion, including any real doubts, must be identified. The further question is whether that opinion was one which a reasonably competent specialist could hold, as illustrated by Thomson v Christie Manson & Woods Ltd [2005] PNLR 38 at [157].
4. Loss of chance. The loss-of-chance ground did not arise because permission had been refused on breach of duty.

• Court of Appeal (Civil Division): Permission to appeal was refused on 23 June 2023.
• High Court of Justice, Business and Property Courts, Business List (ChD): Deputy High Court Judge Simon Gleeson dismissed the trustees’ negligence claim in [2022] EWHC 3091 (Ch) and refused permission to appeal.