Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
THE HONOURABLE MRS JUSTICE NICOLA DAVIES
Between :
Jasdip Kaur Gill | Claimant |
- and - | |
Fiat Group Automobiles UK Limited | Defendant |
William Edwards (instructed by DWF. LLP) for the Claimant
Steven Thompson (instructed by Payne Hicks Beach) for the Defendant
Hearing dates: 21 January 2015
Judgment
MRS JUSTICE NICOLA DAVIES:
The claimant seeks permission to appeal the Order of Deputy Master Eyre (the Master) dated 16 October 2014 dismissing the claimant’s applications for permission to re-amend the Particulars of Claim and adduce expert evidence at trial. Before this court the claimant has focussed upon the issue of the re-amendment of the Particulars of Claim. In summary the grounds of appeal are that the Master failed to give adequate reasons for his decision such that neither the parties nor the court is in a position to ascertain why the Master reached the decision which he did. Accordingly the Court itself should consider afresh the issues which were before the Master. Secondly the Master’s refusal of permission upon the ground that the claimant’s case by way of amendment stood no real prospect of success at trial is wrong. Permission to appeal was refused by Simler J on a reading of the papers on 25 November 2014.
Background
In late 2006 the claimant and her husband incorporated a company, Denkale West London Limited, (“DWLL”). In January 2007 the company entered into two dealership agreements and a lease with the defendant, a group which manufactures motor vehicles including Fiat, whereby it became an authorised dealer in, and repairer of Fiat vehicles, and the tenant of premises in West London owned by the defendant from which it was to conduct that business. The claimant alleges that in the summer of 2006 the defendant’s employees, in particular Mr Phil Norton, lied to her and her husband in relation to the prospective Fiat car dealership about which they had enquired. As a result of what are alleged to be fraudulent representations the claimant was induced to act as she did and as a result suffered loss. The claim was issued in November 2012, six years and nine months after the representations in respect of which complaint is made.
The chronology of the pleadings is as follows:
Particulars of Claim | 13 March 2013 |
Defence | 9 May 2013 |
Amended Defence | 4 April 2014 |
Reply | 19 September 2013 |
Amended Particulars of Claim | 28 February 2014 |
Revised draft Re-Amended | |
Particulars of Claim | 21 July 2014 |
Disclosure has taken place, the date for witness statements has been postponed by reason of these applications, the trial is set down for June 2015.
Following a change of solicitors and counsel in 2014, the claimant sought permission to re-amend the Particulars of Claim. The proposed amendments may be divided as follows:
amendments which are described by the claimant as being “general introductory” or amendments which are said to better particularise the existing claim;
amendments which the claimant describes as seeking to “articulate the case in a different way in respect of “PARC” data and to advance a new case in respect of information relating to Alfa Romeo;
amendments in respect of loss.
The Master refused permission in respect of all the amendments, the claimant pursues the application for permission in respect of all the amendments save those in relation to Alfa Romeo and one point in respect of loss.
The Order of the Master
In the Order dated 16 October 2014 the terms are set out and under the heading “REASONS” are ten paragraphs. The first three summarise the background and paragraphs 4 to 10 are as follows:
“ 4.The claimant now seeks to re-amend her Particulars of Claim, Counsel contending that the proposed adjustments simply clarify her present allegations and that it would be wrong to subject the proposals to detailed scrutiny, that being the function of the trial.
5. The Defendant objects that the proposals call for a scrutiny that is at least to a degree detailed, and that it is proper to do that, since such scrutiny will show that the re-amendments ought not to be permitted.
6. Both Counsel have provided written arguments, and, after considering both arguments, it is absolutely clear that the Defendant’s contentions are without exception correct – including the contention that careful scrutiny is needed now – and that the re-amendments ought to be refused.
7. In view of the detail in the Defendant’s written argument, it is unnecessary to repeat the points made, but among the high points are these:
Alfa – Romeo” (not relevant for this application)
“PARC data: These are the data relating to road-vehicles that are compiled by the DVLA. At present, the Particulars of Claim allege simply that the data provided by the Defendant were incorrect. The proposal is to abandon that allegation and to allege instead that the Claimant asked the Defendant for data that had been refined by the Defendant to produce only data relevant to what the Claimant’s husband told the Defendant that she needed. The refinement was to exclude from the data the statistics for fleet-cars, since, the Claimant now insists, she was not interested in those. However:
1. The budgets that the Claimant’s husband produced show clearly that the Claimant intended to deal in fleet-cars.
2. There is no trace in the documents of any warning by the Claimant or her husband that statistics about fleet-cars were nonetheless to be excluded.
3. The Claimant now says that her husband gave the Defendant such warning orally, and received the required assurance orally, yet there is no witness-statement from her husband or other evidence to support this.
c. Losses: The Claimant wants to include in the losses for which she says that she ought to be compensated by the Defendant:
1. Repayment by her of a debt to Chevrolet. However|
(A) The only documentary evidence leads to the conclusion that the debt was repaid by a third party; and
(B) There is no suggestion by the Claimant, still less any evidence, that such was not the case, or that she for example repaid the third party.
2) The Claimant also wants to include losses resulting from the closure of the dealership and her other business, yet does not care now to put forward figures for those losses, and offers merely the prospect of figures and supporting evidence at some future time. Considering how very late after the events in issue this comes, this approach is utterly unfair and improper.
For those reasons and the other reasons given by the Defendant, the allegations contained in the proposed re-amendment are plainly not merely untrue, but untruthful. The allegations of fraud that remain are so weak as to make the action objectionable or at least highly-suspect to the extent that it is brought in fraud.
It is hard to believe that the action was begun as an action in fraud in good faith. Even if it was, though, this application shows that it is most certainly not now being maintained in good faith.
It follows that, if there were a future application for striking - out or a stay, this action would be vulnerable”.
Prepared for the hearing before the Master were clear and detailed skeleton arguments on behalf of the claimant and the defendant. The detail of the defendant’s case was set out in 59 paragraphs and no one reading it could have been in any doubt as to the case which the defendant was placing before the court. Further, witness statements from the claimant, Arun Chauhan, her solicitor, Richard Manyon, the defendant’s solicitor and the report of Sidney Hopper the claimant’s proposed expert were before the Master and this court.
On 22 December 2014 Simler J refused permission to appeal, her reasons were as follows:
“(i) I am not satisfied that the appeal would have a real prospect of success or that there is any other compelling reason why the appeal should be heard.”
(ii) The proposed appeal concerns a refusal to allow re- amendments to a claim based on fraudulent misrepresentations alleged to have been made in June 2006, which was not listed until May 2013; and a refusal to permit expert evidence to be called. The Appellant has had many years in which to consider how she wished to put her case. Far from simply clarifying already pleaded matters, the re-amendments represent a substantive change to a number of aspects of the claim, and there is no compelling reason why these matters were not pleaded earlier.
(iii) There was accordingly a heavy onus on the Appellant to persuade the Deputy Master that the re-amendments had real prospect of success; and that the expert evidence should be permitted in the circumstances.
(iv) Following detailed consideration of the documents in the case (disclosure having been completed) and lengthy argument on both sides, the Deputy Master was entitled to conclude that the Appellant did not discharge that onus in circumstances where the re-amendments were either inconsistent with or contradicted by contemporaneous documents; or unsupported by the evidence and so amounted at best to self-serving speculation. It followed from the refusal to permit the re-amendments that there was no basis for allowing the expert evidence to be called.
(v) The judgment as a whole contains sufficient reasons that make plain the principles on which the Deputy Master proceeded and explain why he reached the impugned decisions.
(vi) The conclusion reached by the Deputy Master that each of the proposed amendments still relied on, did not stand a real prospect of success at trial, is not arguably wrong. Nor is there any basis for concluding that there was an improper exercise of discretion in this case.”
The claimant’s application – proposed amendments
Background/Further Particulars of the claimant’s existing case
The background amendments e.g. first and final sentences of para 2A and para 2C, the content of contemporaneous documents (para 4A); the information and data which the claimant contends must have been available to Fiat and its employees (para 2F) are said to do no more than provide further information. As the judgment contains no explanation for the Master’s refusal to allow these amendments it is said to be difficult to understand what if any reasoning he applied to them, in any event there are no proper grounds for concluding that these amendments did not stand a real prospect of success.
The amendments said by the claimant to further particularise the existing pleaded case relate to:
The position in relation to warranty work (para 6,17(2))
The original pleading raises a claim based on the premise that the proposal put to the claimant and her husband was on the footing that the dealership they were to take on was “to retain the warranty work within the postcode allocated to the dealership”. It is said that the claimant’s complaint has always been that limited warranty work went to the dealership in part because of the agreement with Addison Lee. (para 17 (2)). The amendments sought alleged that the relevant individuals at Fiat knew of the relevant agreement (paras 2E, 2G) add a cross reference to an existing paragraph of the Pleading (8B), make clear the nature of the claimant’s case as to the existence of the relevant agreement (paras 17 (2) (iii), (iv)) and “adequately” particularise the allegation of deceit (para 18(B)).
The representation that an “average dealer within the area would obtain £800 - £900 unit retail (para 8)
The existing pleading raises a claim based upon the allegation that the profit per unit figure given was wrong. (paras 8, 17 (3)). By way of amendments the claimant seeks to allege that the relevant individual at Fiat knew of the competition which the dealership faced (para 2(F)) and refers to a contemporaneous internal Fiat document stating that the previous franchisee had concluded that the site was “not viable” (paras 4A, 17 (3) (iv)). Further particularisation of the allegation of deceit is set out at paragraph 18 C.
The fact that a flagship dealership was opened in Wigmore Street in March 2008.
It is the claimant’s case that the defendant had been aware of the opening of a new flagship dealership in Wigmore Street, a fact not disclosed to her. The amendments seek to allege that the relevant individual at Fiat knew of the proposed opening of the site (2E) plead more fully the claimant’s case as to timing of the opening of the site (para 17 (4) (ii)); sort out more clearly the legal basis of the claimant’s case (para 17 (3) (iii)) and adequately particularise the allegation of deceit (para 18 D).
The “PARC” amendments.
Prior to the agreement being made the defendant supplied the claimant and her husband with “PARC” data in relation to the dealership. In the original pleading the claimant contended that the data was “wrong” (para 17 (2)). It is now said that the existing pleading fails to set out the true nature of the claimant’s case and what the claimant now seeks to allege in summary is as follows:
A prospective motor dealer, in order to consider the position, needs to establish the number of cars the dealership may be expected to service and to do this he needs the serviceable car park figure. This must have been appreciated by the defendant’s business development manager, Mr Norton;
A manufacturer such as Fiat must have a substantial amount of data relating to its dealership network and performance ordinarily include customer data split into retail, business and fleet users. Thus the data required to conduct the data analysis was data which the defendant would have ordinarily had;
Mr Gill by email in June 2006 sought data to enable him to “see if it is viable for me to operate”. It is said that can only be understood as meaning data upon which he could base projections not the “raw” PARC data;
Mr Norton supplied, without qualification a document showing a PARC figure of 8,854. The claimant’s case is that this could only be understood as being a figure excluding the fleet registrations however, that figure included the fleet registration;
It is now alleged that during a telephone conversation on 20 June 2006 Mr Norton provided express confirmation that the 8,854 was useable for forecasting purposes in respect of “service figures”;
As the quoted figure included fleet registration the claimant now alleges that the projections based on that figure proved inevitably to be wrong. The amendments are set out in paras 2B, 2D-F, 5A, 6A-D, 7, 8, 8A, 17(1), 18 A of the draft Re-Amended Particulars of Claim.
The claimant criticises the reasoning of the Master in refusing the PARC amendments upon three bases: i)It is said that the Master appears to have concluded that the fact that the claimant and Mr Gill were interested in fleet sales also meant that they wanted data including fleet data for service projections. The claimant’s evidence supported by her expert explains why these are two separate matters, evidence with which the Master failed to engage. It is said that the dispute was one which could not be properly resolved short of trial. ii) The Master appears to have considered that the fact that no warning was given in the documents by the claimant and Mr Gill that they would rely upon such figures meant that the claimant’s claim could not succeed. The absence of a legal warning is legally irrelevant and the Master was wrong to take it into account. iii) The Master apparently concluded that an account of a conversation between an employee of the defendant and Mr Gill was incapable of belief. That is said to be a conclusion not open to the Master it having being admitted on the pleadings that a conversation took place on the day in question although contradicted in evidence before the Master by the defendant’s solicitor. The issue being precisely what was said. It is the claimant’s case that in the absence of any contemporaneous note or record of what was said the issue cannot be resolved without a trial and it was wrong of the Master to try to conclude that the account of the conversation given by Mr Gill was incapable of belief.
Loss
The claimant sought permission to amend paragraph 20 of the Particulars of Claim so as to reduce the amount claimed under certain heads of loss and add further heads of loss. In relation to the first three heads of loss (paras 20 (1) - (3)) which sought to reduce the quantum of the claim, the Master gives no reasons for his refusal of permission. As to the addition of further heads of loss (paras 20(5)-(7)) the Master’s decision was premised on the fact that the claimant had not provided further particulars and/or evidence in support. The Master wholly failed to have regard to the fact that the qualifications and particularisations of these claims required expert accountancy evidence. It was unrealistic to expect the claimant to go to the expense of obtaining that evidence before permission to amend was granted and in any event for the purpose of a pleading what was before the court was adequate.
Aside from the particularity of the criticism raised in respect of specific amendments counsel on behalf of the claimant criticised the Master for giving his decision at the end of a full day’s hearing. The reasons were provided at a later date. It is said that the Master had not had sufficient time to properly consider and reflect upon the decision he was to make. Further criticisms were made of the Master which it is not necessary to repeat in this judgment save to say that they bordered on the personal and came perilously close to rudeness.
Conclusion
At paragraph 1 of the Particulars of Claim the claimant is described thus:
“The claimant is an experienced business woman in the motor trade. She graduated in Chemistry and joined Tesco’s graduate programme after leaving university in 1993. In 1997 the claimant left Tesco to join Hyundai Cars UK, in 2001 she moved to Renault Retail Group as commercial development manager and in early 2004 the claimant joined Denkale Limited full time.”
It was the claimant who signed the Statement of Truth at the end of the Particulars of Claim and the Amended Particulars of Claim. In February 2014 the Amended Particulars of Claim had been completed. It contained none of the radical amendments seen in the draft Re-Amended Particulars of Claim, which is 17 pages in length as compared with 7 pages of the original pleading, 22 new paragraphs are included together with amendments to half of the paragraphs which have survived from the Amended Particulars of Claim. The changes go far beyond particularisation and clarification and include new and substantive allegations. For the purpose of this application the substantive applications relate to the PARC data and the additional claims of loss.
PARC data
It is obligatory to register with the Government every vehicle at a particular address. This information is retained and made available to the public free of charge. The information includes the make, model, age, engine capacity of the vehicle and the address of the registered keeper. Companies collate the data and sell analyses of it in differing levels of detail. The claimant’s original claim was that Mr Norton had provided Mr Gill with erroneous figures as to the number of Fiat vehicles in the dealership’s postcodes (Amended Particulars of Claim paras 7, 17 (1)).
The definition of “PARC” was set out in paragraph 5 of the Particulars of Claim as follows: “PARC refers to the number of (Fiat) vehicles registered within the dealership’s postcode and the age of the vehicles”. No issue was taken with the definition in the Defence. At the first CMC in October 2013 the claimant provided a case summary dated 29 September 2013 paragraph 2 of which read “PARC refers to the number of (Fiat) vehicles registered within the dealership’s postcode and the age of the vehicles”. At the next CMC in February 2014 the claimant produced another case summary which contained the identical wording. At that hearing the court gave permission to the claimant to amend her Particulars of Claim paragraph 5, which stated “PARC refers to the number of (Fiat) vehicles registered within the dealership’s postcode and the age of the vehicles”. The Master also directed a hearing in April 2014 for the claimant’s application for forensic examination of a laptop. Prior to that hearing the claimant circulated another case summary with the same wording as the first two drafts in relation to the PARC data. On 7 April 2014 the parties jointly instructed a company to carry out a forensic examination of a computer belonging to one of the defendant’s employees. A copy of the joint letter of instruction states “Mrs Gill alleges that the PARC figures provided by the Defendant were inaccurate. Please refer to the Amended Particulars of Claim and the Defence for full details of this issue”.
The issue of PARC data was also of relevance in the context of a proposal for expert evidence. On 27 September 2013 the claimant’s solicitors sent a letter including a draft order with a proposal for expert evidence. Under the terms of the order the role of the expert was to “review vehicle PARC data for the relevant location…. analyse and summarise the raw data… [and] consider distortions between the PARC figures provided and the actual circumstances prevailing”. The same formulation was repeated in a draft order sent by the claimant’s solicitors on 3 October 2013. In the covering letter to the draft order the claimant’s solicitors explained the role of the expert as they perceived it as being: “ the PARC figures consisted of complex data which requires the analysis of a specialised expert in the particular field of the automotive dealership trade, as well as experience in accounting… our client relied upon the PARC figures provided by your client and accordingly the figures will need to be assessed by an expert in order to evaluate their accuracy and whether they truly represented the market position at the time”.
The claimant’s solicitors circulated a further draft order seeking permission for the claimant to adduce expert evidence on 19 February 2014. This draft used exactly the same formulation relating to PARC data as the earlier drafts save that it also provided that the expert would “consider the accuracy of any representation made by the defendant in relation to the PARC data”. In fact the claimant did not seek permission to rely on expert evidence at the hearing because of difficulty in obtaining a draft report. The claimant’s solicitor prepared a witness statement for the hearing exhibited to which was an email from the claimant’s proposed expert Mr Lewis of 24 February 2014 which stated: “We have undertaken an initial review of the [PARC] data. On the basis of this initial review it is not clear that the PARC data was necessarily inaccurate. Rather, it would be necessary to consider how this data was used by your client [the claimant] developing its business plan and any specific representations made by Fiat regarding the PARC data”. The point relied upon by the defendant at the hearing before Master Eyre was that the proposed expert did not question the nature of the PARC data or suggest that this was not in fact PARC data as generally understood within the motor trade.
The change in the approach of the claimant to PARC data first appeared in the witness statement of her new solicitor Mr Chauhan dated 16 May 2014 when he stated at paragraph 13 “It is important to understand what the expression “PARC” or “Parc” data means in the motor industry in respect of dealer site acquisitions. I am told by the Claimant and Mr Gill that the expression “PARC”/“Parc” is always understood as meaning not simply the total number of vehicles of a particular marque, but that total figure less registrations unlikely to be of relevance to the trade of the dealership in question. For example vehicles registered in the names of large fleet customers, lease companies, and rental companies would be removed. This is because such vehicles are most unlikely to generate business for a dealership. For example, a small electrical firm with two or three vans might well use the services of a dealership whereas a large business (EDF Energy) would be most unlikely to”.
In the second witness statement of Richard Manyon dated 30 May 2014 the defendant’s solicitor referred to the PARC data provided to the claimant’s husband by the defendant on 20 June 2006. This showed that the total market for new vehicle sales in the postcode around Hayes for 2004 and 2005 was broken down into business, retail and fleet sales. On the documentation relating to the 2005 figures it is clear that the number of Fiats sold was identified. It was therefore apparent from the data sent by the defendant that both fleet and retail vehicles were included. Further, Mr Manyon stated, the claimant and her husband acknowledged that the fleet trade was as shown in the PARC data and this would be an important and relevant consideration in their proposed business when on 9 October 2006 the claimant emailed the defendant stating: “fleet in the area contributes just over 80% of registrations and this is the key to pump registrations into the area”.
In the same email Mr Gill refers to a dealer who had worked with the claimant when she was at Renault and who was familiar with the fleet market and customers. Mr Manyon states that this demonstrates that fleet deals were an important part of the plans which the claimant and her husband had for the new dealership, they were aware that fleet vehicles constituted a substantial proportion of the vehicle PARC within the Hayes postcodes and were basing their business plans on this information. It follows, and so Mr Manyon asserted, that Mr Chauhan’s contention that the claimant believed that the PARC data provided excluded fleet vehicles was not sustainable. It is therefore of note that when the draft Re-Amended Particulars of Claim dated 21 July 2014 were provided to the defendant the claimant’s new explanation as given to Mr Chauhan was no part of that draft.
The significant change to the claimant’s case in respect of PARC data as now contained in the draft Re-Amended Particulars of Claim is contained in paragraphs 5A(5), 6A-C. It is now alleged that when Mr Gill asked for “vehicle Parc” data he was in fact asking for the number of Fiat cars (not vehicles) excluding registrations of Fiat cars and any other cars which were “unlikely to be of relevance to the after sales trade of the dealership in question”. Further it is alleged that Mr Norton knew not only that that is what Mr Gill meant but also that he knew what was not likely to be of relevance to the Gill’s proposed dealerships.
It is the claimant’s contention that it is the fault of her former solicitors that this case was not pleaded before. This is difficult to accept. The issue is one of fact. The claimant is described in paragraph 1 of the original pleading as an experienced business woman in the motor trade. She signed the Statements of Truth on the Particulars of Claim and the Amended Particulars of Claim. Given the claimant’s proven intelligence and the knowledge and experience gained during the course of her career she would have been in a better position than many to understand and explain the meaning of ‘Parc’ data and give appropriate instructions to her solicitors.
Nothing better demonstrates the tactics of the claimant than her attempted shift of position in May 2014 when instructing Mr Chauhan as to a new interpretation of PARC data. By this time the claimant’s expert had not provided unequivocal support for the claimant’s original case upon the accuracy of the Parc data. The second interpretation was given in Mr Chauhan’s witness statement. When this explanation was comprehensively negated by the defendant’s solicitor, who relied upon contemporaneous documents, the claimant abandoned the second interpretation and moved onto a third which is now a part of the Re-Amended Particulars of Claim. All of this evidence was before the Master. His conclusion that the allegations are not merely untrue but untruthful and that the action is not now being maintained in good faith, is both fair and reasonable given the history of the matter as set out above. In my view an appeal upon the PARC data issue has no reasonable prospect of success, further there is no other compelling reason for this ground of appeal to be heard.
Losses
New heads of loss.
The claimant has adduced no evidence to support the new heads of loss save for her own assertions. A contention that it was not practical for the claimant to obtain expert evidence until she knew whether the proposed amendment was to be allowed carries little weight given the time which the claimant has had to bring proceedings and the dearth of other evidence relating to loss. The reasoning of the Master upon the issue of loss identifies the relevant issues, his conclusion is not arguably wrong, an appeal stands no reasonable prospect of success, there is no other reason to grant permission.
The general allegation that the Master’s reasoning cannot be identified is without foundation. The Master’s reliance upon the defendant’s clear and detailed skeleton argument together with his own reasoning enables the court to understand what he did and why.
Remaining proposed amendments.
It is clear that what the Master did in determining this application was to address particularly contentious proposed amendments and thereafter consider the application as a whole. This was an approach which it was open to this experienced Master to take. He did so in the context of the history of these proceedings which included the issue of a claim alleging misrepresentations made over six years prior to the issue of proceedings and the fact that, Amended Particulars of Claim had been issued just some months before this application. The claimant had ample time to consider, formulate and plead her claim. No good reason was before the Master or this court as to why these amendments were sought at such a late date. In the circumstances the decision of the Master was neither wrong nor unreasonable. An appeal stands no reasonable prospect of success. There is no other compelling reason why the appeal should be heard given the age of these proceedings and the history of the claimant’s case. Accordingly this application is refused. The issue of the proposed expert evidence was dependent upon the application being allowed.