Morin v Bonhams & Brooks Ltd. & Anor

The appellant, Mr Morin, is French by nationality, but resides and carries on an antiques business in England. He has a penchant for old cars. On 21^st May 2001 at an auction held in Monaco, he bid FF 4,350,000 (c. £430,000) for a "mighty Ferrari 410 Superamerica", built in 1959. He incurred an additional FF 538,200 (including TVA @ 19.6%) by way of auction premium. The catalogue description stated in English:

The effective single owner was an Austrian, Mr Mayerhoffer, for whom the car was auctioned. According to his own letter dated 4^th September 2001, the catalogue description was gravely inaccurate:

The second respondent, Bonhams & Brooks SAM ("BBM") conducted the auction. BBM is a Monagasque company formed in 1992 as a subsidiary of the first respondent, Bonhams & Brooks Limited ("BBL"), "so as to allow the Bonhams Group to conduct auctions within Monaco". It has three directors (Robert Brooks, Simon Kidston and Robert MacLean) who also feature among BBL’s 14 or so directors. Another subsidiary is Bonhams & Brooks Europe SA of Geneva ("BBE"), which has the same three directors as the Monaco company (together with a fourth, who may or may not also be a fourth director of the Monaco company).

The basic issue on Mr Morin’s appeal is whether he should be permitted to pursue his grievance against BBM in England. There is a secondary issue whether he has a properly arguable claim against BBL which he should on that basis also be allowed to pursue. Mr Jonathan Hirst QC, sitting as a deputy judge of the Commercial Court, decided against Mr Morin on both these issues. He therefore refused an application which was before him by Mr Morin for permission to serve out of the jurisdiction on BBM, and he set aside the service of the proceedings upon BBL within the jurisdiction. This appeal is brought pursuant to his permission. BBM cross-appeals against the judge’s conclusion that there is a properly arguable case against BBM, and on the ground that permission to serve out of the jurisdiction on BBM should anyway be refused for non-disclosure by Mr Morin in his original affidavit seeking permission.

The salient facts regarding the purchase are that Mr Morin heard of the forthcoming auction, telephoned BBL’s office in London and requested a catalogue. He received one by post from BBL at his London home on about 6^th May 2001. He studied the catalogue, in which the car was one of 59 "historic" cars up for auction. On about 9^th May, he telephoned BBL for and was given the car’s estimated auction price, $400-500,000. On 19^th May, he travelled to Monaco, and was able to see the car briefly on 19^th and 20^th May. He was not allowed to start the car’s engine or drive it. On 20^th May he was given a short condition report which made no reference to mileage, and stated that

Admission to the auction at the Prince Rainier Car Museum on 21^st May was by catalogue and signature of a "bidder reservation form". During the auction, Mr Morin became involved in a bidding ‘battle’. The price (including premium) which he eventually bid to obtain the car was the subject of an invoice sent to him in London by BBM and was paid by a remittance from a Bahamas trust, pursuant to instructions which he gave to the London branch of a bank. Mr Morin arranged the shipment of the car to England and its insurance from June 2001. Meanwhile, "Bonhams & Brooks" issued a press release under BBL’s London address with the heading "Monaco Sensation from Bonhams & Brooks", stating inter alia:

After discovering the car’s poor mechanical condition, Mr Morin complained to BBL. Mr Mayerhoffer was contacted about the complaint and he responded to Mr Kidston at BBL’s London address by his letter dated 4^th September 2001. Letters addressed by Mr Morin’s solicitors to Mr Brooks at Bonham & Brooks, at BBL’s London address eventually yielded a faxed response from BBE’s Swiss office on 11^th December 2001, to the effect that Mr Kidston would not be back in the office until the next day. On the next day there arrived from BBE’s Swiss fax number a reply signed by Mr Kidston for BBM under BBM’s typed name and address, dated "Monaco, 12^th December 2001". It may well be, as Mr Houseman submitted, that Mr Kidson was in Geneva when this was signed and sent. The letter asserted Mr Morin was "no doubt" attracted by the car’s single ownership and extreme rarity as one of only 12 such cars made by Ferrari, and that he had "no doubt…carefully inspected the car before bidding on it". It said that

In the catalogue the auction had been announced as "A Sale of Important Historic Motor Cars, Fine Automobile and Collectors’ Watches" under the jurisdiction of a Monegasque huissier, "to be sold at auction by Bonhams & Brooks S.A.M. Monaco". In addition to the pages describing and portraying the cars and other items for sale, the catalogue contained a page headed "Important Information for Buyers and Sellers" and another headed and setting out a "Notice and Conditions of Sale". The former page referred to the requirement of bidder registration, and said that

The catalogue in fact contained conditions (in their English version) as follows:

The judge’s reasoning, so far as relevant to this appeal, can be summarised as follows:

On this appeal, Mr Morin challenges the reasoning at point (i), at point (iii) – though only so far as concerns the joint tortfeasor claim and only if he succeeds on point (i), at point (iv) – though again only if he succeeds on point (i), and consequentially at point (v). By cross-appeal, BBM challenges the reasoning at points (ii) and (vii). The appeal turns therefore on point (i).

The law governing any tort claim is now to be ascertained in accordance with the Private International Law (Miscellaneous Provisions) Act 1995. The law of England as the place of the forum determines the proper characterisation of the present claims as tort claims: s.9(2). It is common ground that under English law the proposed claims against both BBM and BBL are on this basis tort claims. This is so, although, on the evidence of Monegasque law, it appears that the claim against BBM may well there be characterised as contractual.

Ss.11 and 12 of the 1995 Act provide:

The relevant head of s.11 is in this case s.11(2)(c). The elements of the tort of negligent misstatement under English law are the negligent making of an incorrect statement by A on which B reasonably relies and thereby incurs loss. Here, Mr Houseman for Mr Morin emphasises that the misstatement was made in London, where Mr Morin received through the post from BBL and read the catalogue, and that Mr Morin also relied on the representation and suffered some loss in England, in so far as it was here that he decided and arranged to travel to Monaco to bid at the auction (although there is no formal claim for the travel costs). After the auction Mr Morin gave instructions through a London branch for a remittance from the Bahamas to Monaco. Mr Houseman further points out that Mr Morin suffered some consequential loss in England after buying the car, (e.g. in arranging with English forwarders for it to be transported here and in respect of costs of insurance, testing and inspection, all of these items being included in the claim). His skeleton suggested that Mr Morin’s loss of enjoyment of the use of his purchase fell into the same category, but that, as he conceded during oral argument, would on the face of it only be recoverable on a contractual, not a tortious, measure of loss.

The matters that I have set out in the previous paragraph enable Mr Morin to say that he acquired a potential cause of action before he ever left England. But Mr Houseman, realistically in my view, accepted that Mr Morin’s continuing reliance, and any loss that he suffered, outside the jurisdiction by reason of his successful bidding at the auction were all part and parcel of one and the same cause of action in tort. There was a continuum of reliance and loss, and the single tort which is here alleged must be viewed overall. So, Mr Parker for the respondents relied on Mr Morin’s presence and his successful bidding in Monaco, and the loss to which he thereby committed himself in the form of a car bought and delivered to his order in Monaco which would not otherwise have been bought, or at least bought at the high price that Mr Morin actually bid. Mr Parker pointed out that there is no evidence or pleaded claim in respect of costs incurred in connection with travelling to Monaco. Further, although the claim includes the minor consequential losses after the car reached England, the overwhelmingly larger loss is that resulting from the successful bid.

S.11 of the 1995 Act adopts a geographical test. Where elements of the events constituting a tort occur in different countries, then in the case of personal injury or death resulting from personal injury or property damage, it selects the law of the country where the person or property was when injured or damaged. In any other case, it selects the law of the country "in which the most significant element or elements of those events [i.e. those constituting the tort] occurred." What is required is an analysis of all the elements constituting the tort as a matter of law, and a value judgment regarding their "significance", in order to identify the country in which there is either one element or several elements, which taken alone or together, outweighs or outweigh in significance any element or elements to be found in any other country. The governing law under s.11(2)(c) will be the law of that country.

It was suggested by Mr Houseman that assistance could be gained from looking at previous authority under former Rules of Court concerning the question where a tort was "committed" or (after 1987) when damage could be said to have "resulted from an act committed" within the jurisdiction. The test adopted involved considering "where in substance did the cause of action arise, or … what were the elements which constituted the gist of the relevant tort which it was alleged had been committed?": see Distillers Co. Ltd. v. Thompson [1971] AC 458, 469A-B; Metall und Rohstoff AG v. Donaldson Lufkin & Jenrette Inc. [1990] QB 391, 437B-G and 449B-D; and Dicey & Morris, The Conflict of Laws, 13^th Ed. Vol. 2 para. 35-085-086. Mr Houseman is able to find support in Dicey & Morris for his submission that the court might under s.11(2)(c) draw for assistance on this previous test, although as a guide rather than a solution. Mr Houseman therefore referred us to Diamond v. Bank of London [1979] QB 333, where it was held, with respect to allegedly fraudulent or negligent misstatements by telex and telephone calls from the Bahamas, that the substance of the tort occurred in England, where they were "received and acted on", and to Ennstone Building Products Ltd. v. Stanger Ltd. [2002] 1 WLR 3059, where Diamond was cited, although with emphasis on the receipt in England of the allegedly negligent advice (the place of acting not being clear from the report).

Mr Parker in response referred us to a statement in Protea Leasing Ltd. v. Royal Air Cambodge Ltd [2002] EWHC 2731 (Comm), where Moore-Bick J suggested caution about turning too readily to the earlier authorities, when the 1995 Act establishes a new set of principles. I think that caution well founded. It is undesirable that submissions about the new wording of the 1995 Act should be complicated by increasingly outdated debate about the precise nuances of old law. I do not say that the two schemes may not amount to much the same (particularly if the old law involved taking the ‘broad’ approach mentioned in Metall & Rohstoff at p.449C). But it is inappropriate for disputes under a new statutory wording to become clogged with an overlay of arguments about whether and how far this was true, based on authorities on different and now irrelevant wording. It seems to me even less fruitful to try to refer for inspiration, as Mr Houseman at one point suggested that we might do, to other schemes, such as that under the Brussels Convention or Regulation 44/2001. The legal elements of the tort of negligent misstatement are clear enough, and the new statutory wording of the 1995 Act requires a value judgment about their ‘significance’ in the context of the particular facts in issue.

In the present case, elements constituting the alleged tort occurred both in England and in Monaco. But I agree with the judge that the most significant elements occurred in Monaco. The making by BBM through its catalogue in England of a negligent misstatement is of course one essential element. But the element of reliance was present in the form of a continuum of activity, starting in England, but having by far its most significant aspect in the form of Mr Morin’s presence and successful bidding in Monaco. By the same token although some loss was caused in England, the successful bid involved Mr Morin entering into a contract in Monaco, under which he bought and received the car there and became liable to pay there the price and auction premium, which he met by the remittance from the Bahamas. It is his decision on the spot when making his successful bid, and his resulting commitment to buy the car and pay that price and premium, which represent by far the major elements of his reliance and of the loss caused and claimed in this case. The entering into of an adverse contractual commitment involves on its face an actionable loss, even prior to any actual financial expenditure pursuant to it (see e.g. Forster v. Outred [1982] 1 WLR 86, 97B-C).

It is unnecessary to decide what might be the position in other respects or other hypothetical situations. The judge expressed the view that, if Mr Morin had had a properly maintainable basis for alleging that BBL had itself made a tortious misstatement to Mr Morin, by issuing him with the catalogue, the significant elements of that tort would have occurred in London because of BBL’s presence here. I have considerable doubt about that proposition, but it is unnecessary to decide on its correctness, since it is no longer suggested that BBL committed any independent tort: the only argument now pursued is that BBL was a joint tortfeasor in respect of a tort primarily committed by BBM.

We were also asked to consider what would have been the position, if Mr Morin had, like his American counter-bidder, remained in his office or home, and bid from England by telephone. That is a teasing question. But significance under s.11 directs attention to the intrinsic nature of the element(s) of the tort – and not to the nature or closeness of any tie between those elements and the country where they occurred. The nature or closeness of any tie can, however, be very relevant on an issue arising under s.12, when considering "factors which connect a tort" with one or another country. The embrace of "factors connecting" a tort with a country extends potentially much wider than the "elements constituting the tort". It follows, as Mr Parker conceded, that, if Mr Morin had stayed at home, the balance of significant elements under s.11(2)(c) might, geographically, have shifted from Monaco to London. But, if so, that is simply because Monaco and England are different countries.

Applying s.11(2)(c), the tort allegedly committed by BBM was thus governed by Monegasque law. Mr Houseman does not suggest that Mr Morin can reverse this conclusion under s.12. On the other hand, if it had been concluded that s.11(2)(c) pointed in the first instance to English law, then Mr Parker would have sought to rely on s.12 to reverse that conclusion. It is unnecessary to consider his submissions in that respect in any great detail. I simply record that they turned primarily on clause 9.1 of BBM’s Conditions of Sale. Construing the Conditions of Sale as a whole (according to English law principles of construction, since we have no evidence that Monegasque principles differ), I would accept that the phrase "the transactions to which these Conditions apply and all matters connected therewith" embraces any claim for negligent misstatement allegedly contained in the catalogue, in which the conditions appeared. Clauses 1.2, 3, 4, 5 and 7 are all examples of conditions covering matters occurring prior to, and indeed for the most part independently of, any successful bid. The specific references to catalogue descriptions in clauses 3 and 27 reinforce the conclusion that clause 9.1 should be read as embracing any claim arising therefrom. The point is only underlined by evidence of Monegasque law, which is before us, to the effect that any claim based on alleged negligent misstatement in the catalogue would under that law probably be regarded as lying in contract, rather than delict.

The next question arising in relation to the application of s.12 would have been whether the concept of "factors which connect a tort" with a country embraces the parties’ choice of the law of a particular country. In general terms, it would seem odd, if an express choice of law were not at least relevant to the governing law of a tort. But Adrian Briggs, in an article ‘On drafting agreements on choice of law’ in [2003] LMCLQ 389, points out the difficulty of the language of s.12 - adding however that "it may not be impossible" to overcome its "anti-commercial cast". The law of a country is after all a feature of the country. Further, one should not forget that clause 9.1 not only deals with governing law, but provides for submission to the non-exclusive jurisdiction of the Monegasque courts. It may be open to argument that that itself constitutes a "factor connecting the tort" to Monaco. The judge did not decide any points relating to s.12, and, since we do not have to do so either, I prefer to leave them all open.

I record next briefly the position relating to the merits of Mr Morin’s claim against BBM for negligent misstatement. The judge considered these both under both Monegasque and English law. Bearing in mind that the evidence of Monegasque law is that the court would have power to exclude or not enforce any contractual provision that "grants one party an excessive advantage which badly upsets the balance of mutual obligation" (judgment para. 48), the judge had no difficulty in concluding that Mr Morin had a properly arguable cause of action under Monegasque law. There has been no cross-appeal against that conclusion. As to English law, the judge also concluded, obiter, that Mr Morin had a reasonable prospect of showing that BBM owed him and were in breach of a duty of care, despite clauses 3 and 27 of the Conditions of Sale. He distinguished statements of Morison J in Maria Zelinger de Balkany v. Christies Manson & Woods Ltd. [1995] Trading Law Reports 163 as obiter and as concerned with differently worded conditions. The present conditions are at pains to exclude any warranty or guarantee, and to refer to catalogue statements as matters of "opinion". But clause 3 is prefaced by the words "Whilst every effort is made to ensure the accuracy of the description of each Lot in any Catalogue …" and clause 27 says that the description and information in the catalogue "are given for guidance". It is a usual implication in relation to any expression of opinion by a professional person that due diligence has been exercised in preparing and expressing the opinion, and the opening words of clause 3 are entirely consistent with this.

As to the issue of breach of any duty, it is noticeable that the respondents have in their evidence failed altogether to address, let alone to seek to explain either what, if any steps, they took to ascertain or confirm the mileage or how it came to be misstated. Mr Kidston (who has not given evidence and is not identified as even the indirect source of any evidence that has been given on this application) stated in his letter dated 12^th December 2001 that "the mileage shown …. was as stated by the vendor to us and appeared to us to be consistent ….". But this contrasts with Mr Mayerhoffer’s apparently immediate and unconcerned admission in his earlier letter dated 4^th September 2001 that the "mileage refers to the period after the complete engine overhaul, which was carried out in Maranello in 1969". In the course of submissions, and wisely therefore, Mr Parker abandoned the respondents’ cross-appeal to the effect that Mr Morin had no real prospect of succeeding in a claim for negligent misstatement under English law.

Mr Morin’s appeal against the judge’s conclusion that he had no real prospect of holding BBL liable as joint tortfeasors is also academic, since it was expressly conditioned by Mr Houseman on showing that the tort claim against BBM was governed by English law. However, I add a few words about it, because I would have been minded to think that the judge was wrong to conclude that there was no real prospect. One party may be a joint tortfeasor in relation to a tort for which another may be viewed as primarily responsible, if both can be said to have been involved in a common venture involving the doing of the acts which constitute that tort: Brooke v. Bool [1928] 2 KB 578 and Unilever Plc v. Gillette (UK) Ltd. [1989] RPC 583, 603, 609 (CA). We were also referred to Evans-Lombe J’s decision in Investors Compensation Scheme Ltd. v. West Bromwich BS [1999] Lloyd’s Rep (Prof. Neg.) 496. At the present stage, there is, as I have said, a void in the information available about how the misstatement of mileage came about. There are general statements by Mr MacLean and by the respondents’ solicitor, Mr Richards, to the effect that BBL had "no involvement whatsoever with the auction", save to have catalogues available at its premises for distribution (although the catalogues were printed in London). Both deponents fail to make clear when they are speaking of their own knowledge and, so far as they are not (and Mr Richards obviously cannot be) who their informant was. Neither explains how BBL knew about the auction reserve; why it was from BBL’s London offices that the press release came after the auction event; why it was to Mr Kidston at BBL that Mr Mayerhoffer wrote on 4^th September 2001 (in answer to a letter not yet available, but very likely to have come from the same office); why it was Mr Kidston who (albeit under the name of BBM and a heading showing the letter as if it had come from Monaco) wrote to say that "the mileage shown …. was as stated by the vendor"; and to what communications with Mr Mayerhoffer by which individual on behalf of which company Mr Kidston may have been referring. If, as may well be in the light of the letter dated 4^th September 2001, Mr Mayerhoffer dealt with BBL, then it seems equally possible that a case of joint tortfeasors in relation to the making of the misstatement could arise. The information available tends to suggest that BBM is not itself a substantial company, and, although the actual position is unknown, the auction premiums which it received would on the face of it have been of considerable interest and, quite possibly, fairly direct financial benefit to BBL. In all the circumstances, I would at this stage probably not have thought it right to preclude Mr Morin from pursuing such a case in England against a properly served English company, on the ground of lack of merits.

As it is, however, the present proceedings fall to be viewed on basis that the law governing any tort (or indeed contract) claim against BBM in Monegasque law. On this basis, Mr Houseman accepts that he cannot challenge the judge’s conclusion that the appropriate forum for determination of that claim is Monaco, or the refusal accordingly to grant permission to serve the present proceedings on BBM out of the jurisdiction. Mr Houseman also accepts that the appropriate forum for any claim against BBL, as joint tortfeasors or on any other basis, is Monaco, the evidence being that it would be possible to add any properly arguable claim against BBL into any Monegasque proceedings against BBM. The present appeal therefore fails against both BBM and BBL.

It is unnecessary to reach any decision on Mr Parker’s submission that, even if the law governing the tort claim against BBM had been English, England would still not have been shown to be a more appropriate jurisdiction than Monaco. This was primarily based on the existence of the contractual relationship between Mr Morin and BBM, with conditions which would have required to be construed according to Monegasque law and which included a non-exclusive jurisdiction clause. But, since the elements of the tort would depend on English law and since furthermore the catalogue conditions are in both French and English and there is no suggestion that Monegasque principles of contractual construction differ from English, I would have doubted the force of Mr Parker’s submission.

Finally, I should mention Mr Parker’s cross-appeal, to the effect that, if all else failed (as it has not), Mr Morin’s application for permission to serve BBM out of the jurisdiction should fail because of two seriously misleading statements in his solicitor’s original affidavit in support of the application. The affidavit failed to make clear that the conditions of sale appeared in the auction catalogue itself, and positively stated that "Mr Morin did not see, let alone sign, any documents giving him notice of any standard terms", when Mr Morin had in fact signed the bidder registration form in order to gain access to the auction premises. The former error arose, according to the solicitor, from an oversight when compiling the evidence which included extracts from the lengthy catalogue, while the latter arose from Mr Morin’s erroneous instructions, arising from the circumstances outlined in paragraph 8 above. The judge was, in the exercise of his discretion, prepared to excuse both errors as inadvertent, in circumstances where they had been pointed out during the course of the application and so Mr Morin had gained no substantial advantage from either. His decision to do so is unassailable, indeed plainly right, and this aspect of the cross-appeal was and is hopeless.

I end by paying tribute to the quality of the succinct but complete submissions that we heard from both counsel. The outcome is that the appeal is dismissed, as is the cross-appeal.

I agree.

I also agree.