Brendan Connor v Reid Douglas Torr

This case is about a second-hand Ferrari 360 Spider sports car. It is an appeal from a judgment (“the Judgment”) given on 18 February 2019 in the Central London County Court by Mr Recorder Alastair Wilson QC (“the Judge”). The Judgment followed a four-day hearing of a trial. This took place on 7 and 8 March 2018 when it adjourned part-heard, resuming on 24 and 25 July 2018, after which written submissions were made by both sides. After the Judgment, submissions were made on consequential matters, culminating in the Judge making a detailed order on 30 May 2019. There are four grounds of appeal. Permission to appeal was given by Foster J on 24 October 2019. Each ground involves a challenge to the approach taken by the Judge in the Judgment (rather than in relation to consequential matters).

There was no dispute as to applicable legal principles, which I will identify at appropriate points in this judgment. The starting point is that whether the appeal is well-founded and stands to be allowed depends on whether the appellant can show that the decision of the Judge was “wrong; or … unjust because of a serious procedural or other irregularity in the proceedings” (CPR 52.21(3)). A decision on legal matters can be “wrong” because of a material error of law. A decision as to factual matters can be “wrong” because “a critical finding of fact is unsupported by the evidence” or because “the decision is one which no reasonable judge could have reached” (see Haringey London Borough Council v Ahmed [2017] EWCA Civ 1861 [2018] HLR 9 at paragraph 31).

The claim with which the Judge was concerned at the trial was a claim in the tort of deceit, brought by the Respondent (“Mr Torr”) against the Appellant (“Mr Connor”). It was the sequel to a contract claim. What had happened was this. Mr Connor was sole director of a car dealership called Heathfield Motor Company Ltd (“HMC”). In April 2013 HMC sold the car to Mr Torr. Mr Torr lived in Australia. He saw an online advertisement, communicated his interest in the car and had a telephone conversation with Mr Connor about it, before agreeing to buy it. The car was transported to Brisbane, where Mr Torr was unhappy with it. He commenced a contract claim against HMC, obtaining a judgment in default, including damages and a ruling recognising his entitlement to rescind the contract. The contract claim was not defended by HMC, who at the time of the judgment in default (16 July 2015) had gone into liquidation. Mr Torr then commenced the deceit claim, seeking damages from Mr Connor personally. The basis of the claim was that Mr Connor had made written and oral representations about the car, on which Mr Torr had relied in buying it, but which were both false and fraudulent, and which had caused Mr Torr recoverable losses.

Various aspects of the background regarding the purchase of the car were common ground between the parties by the time of the trial, as could be seen from an agreed Chronology for Trial. They included the following:

At the trial, Mr Torr needed to satisfy the Judge on the following five key issues, as was reflected in the Judgment (paragraph 3). (1) The representations issue: that representations had been made about the car. (2) The falsity issue: that those representations had been false, because the car did not match up to them. (3) The reliance issue: that Mr Torr had relied on the representations. (4) The dishonesty issue: that that the representations were made by Mr Connor fraudulently (both Counsel referred to this at the trial as the issue of “dishonesty”). (5) The recoverability issue: that damage had resulted, leading to recoverability in law.

In summary, the Judge held as follows:

I have referred already to some of the evidence at trial, including the Laser Report and the Granell Email. I do not need to summarise the entirety of the evidence. It is however helpful to say this:

As I have indicated, Grounds One to Three relate to the dishonesty issue and Ground Four to the recoverability issue. There was no challenge to the Judge’s analysis on the representations issue; the reliance issue; or the falsity issue. That does not mean, as Ms Perselli suggested, that Mr Connor has “changed his case”. What it means is that Mr Connor accepts that he can point to no appealable error or irregularity in the way in which the Judge dealt with these other issues.

I will summarise the part of the Judgment which addressed the dishonesty issue. The Judge had already dealt with these topics: the background (paragraphs 4-5), the car in issue (paragraphs 6-15), the condition of the car before and after its export to Australia (paragraphs 16-26), the alleged misrepresentations (paragraphs 27-49) and reliance (paragraphs 50-54). He then addressed the dishonesty issue, under the heading: “Were the misrepresentations fraudulent?” (paragraphs 55 to 68). This was the anatomy of that section (the labels are mine):

At the hearing before me, two concerns were raised about adequate time to deal with the issues. Mr Zaiwalla was initially concerned about points of detail arising from Ms Perselli’s skeleton argument. I refused an adjournment, so that it could be seen whether there was anything in this. Ms Perselli was initially concerned about whether a second day would be needed, for detailed submissions on photographs. In the event, these concerns fell away. Nobody maintained that an adjournment, a second day, or written submissions were appropriate.

Ground One is that the Judge’s decision was unjust on grounds of a serious procedural irregularity in the proceedings (CPR 52.21(3)(b)), because his conclusion on the dishonesty issue was based on a critical adverse finding on a matter never put to Mr Connor, namely that Mr Connor had dishonestly procured two documents: the Laser Report and the Granell Email.

As to the law, there was common ground as to the correct approach for an appeal court to follow on this issue, in the circumstances of this case. The approach, which I will follow, is the one described by Lord Neuberger and Lord Mance for the Privy Council in Chen v Ng [2017] UKPC 27 [2017] 5 LRC 462 at paragraphs 53 to 56. That passage includes the following:

A point about authenticity and notice appeared in the skeleton arguments but fell away at the hearing before me. CPR 32.19 provides: “A party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 … unless he serves notice that he wishes the document to be provided at trial”. The Laser Report and Granell Email were disclosed to Mr Torr under Part 31 and no notice was served by Mr Torr. Mr Zaiwalla’s skeleton argument argued that this precluded a finding of dishonest procurement of the two documents. However, as Ms Perselli rightly pointed out, the suggestion that a document which is what it purports on its face to be contains unreliable content by reason of an improper motive (of the writer or a third party) is not an allegation of a lack of authenticity: see ECO3 Capital Ltd v Ludsin Overseas Ltd [2013] EWCA Civ 413 at paragraph 404.

Ms Perselli rightly accepts that the Judgment contains – in the analysis on the dishonesty issue – a finding by the Judge that Mr Connor dishonestly procured the Laser Report and the Granell Email. Candidly and properly, she also accepts that this dishonest procurement of documents was not her case at trial, was not put by her to witnesses including Mr Connor and Mr Simm, and did not feature in her closing speech at the end of Day Four of the trial, when she spoke last. Nevertheless, says Ms Perselli, reviewing the evidence, the transcripts of the hearing and the Judgment, and applying the principles in Chen, these proceedings involved no procedural irregularity and no injustice. She says the trial, viewed overall, was fair. She says fraudulent procurement of documents by Mr Connor was sufficiently close to the points put to Mr Connor. She says it had been raised, or at least touched on, in closing speeches, including that of Mr Zaiwalla for Mr Connor. She says it had, by that stage, been brought into issue by relevant further facts. She also says that the Judge had, and identified, ample other and self-standing grounds for his adverse finding on the dishonesty issue. Mr Perselli’s submissions focused on three aspects of the trial in particular: (a) the closing speeches; (b) the cross-examination of witnesses; and (c) the Judgment.

I cannot accept Ms Perselli’s submissions. In my judgment, Ground One is made out and succeeds. I have in mind the needs for finality and minimising litigation costs, but also the important requirement of a fair trial. I have in mind that dishonesty was one of five issues. I have in mind that the Judge discussed and described his conclusions on other matters in the section in which he answered the dishonesty issue, the anatomy of which I have described. I have taken into account of all the findings and observations made by the Judge in that section and throughout the Judgment. I also take account of the reality that Judgments can always be better expressed, and that what is expressed is inherently an incomplete statement of the impression which the primary evidence made on the Judge. I recognise the importance of reading the Judgment, evidence and transcripts of the trial as a whole. I have considered the points made by Ms Perselli individually, but also cumulatively.

The dishonesty issue was one of the essential elements of the claim, on which Mr Torr had to succeed in order to win the case. On it, the Judge rejected the evidence of Mr Connor, a witness who gave live evidence and a party to the proceedings. He did so, on a point which had not been put to Mr Connor and which was not part of Mr Torr’s case, at any stage: that Mr Connor had dishonestly procured the two documents. The Judge emphasised this. He took the content of the two documents out of the falsity issue and located them squarely within the dishonesty issue. He found, and repeated, that Mr Connor had procured the unreliable content. He said this was the “main difficulty” with believing Mr Connor on the dishonesty issue, so far as the condition of the car was concerned. It was the only point which he described in his conclusion on dishonesty and factory fitted features.

Yet it had never been the position, at any stage at or before the trial, that Mr Connor’s evidence was being challenged on this basis. No relevant facts arising at the trial made that clear. Nor did the closing speeches. Nor did the Judge raise it with Counsel during the trial. Fraudulent procurement of the two documents was not proximate to any point which was put to Mr Connor and maintained. Indeed, it was most closely connected to a point (forgery of the Granell Email) which was put but was then expressly withdrawn, prior to re-examination. That withdrawal was, in terms, that Mr Connor was not being said to have been responsible for documents with unreliable content having been written.

There was ample time for cross-examination, and for the putting of dishonest procurement. Indeed, the case went part-heard after two days and cross-examination of Mr Connor recommenced several months later when the trial resumed. Dishonest procurement was not raised or even, in my judgment, touched on in speeches to the court, witness statements or elsewhere. It was reasonable for Ms Perselli not to put a case of dishonest procurement of documents, because this was not her case. As she put it to me, she did not have an evidential foundation for putting such a case. If it was considered that an evidential platform had arisen at the time of closing speeches, on which basis dishonest procurement of documents could now be put, this needed to be made clear and explicit. As Ms Perselli rightly accepts, she did not in her closing speech take up dishonest procurement. Instead, she maintained the position taken throughout. It is no criticism of Ms Perselli that the Judge took it upon himself to make findings of dishonest procurement of the documents. The problem is that to do so was not a course fairly open to him, given the way in which the case had been put at trial.

I find it impossible to characterise the Judge as being satisfied on the dishonesty issue, by reference to other matters discussed in the Judgment, when he went out of his way to describe this as being the “main difficulty” (in the passage on dishonesty and the condition of the car), and when he re-emphasised it (in the passage on dishonesty and factory-fitted features). I also find it impossible to characterise as implausible the prospect that Mr Connor could satisfactorily have answered the point, had it been raised at the trial and put to the witnesses. Especially given that the point raised obvious questions about whether the Laser Report – on the thesis of being dishonestly procured by Mr Connor – bore a false date and so had not been provided in March 2013 for Mr Simm at all; or bore a correct date as having been dishonestly procured to mislead a witness (Mr Simm) and was then not provided to Mr Torr when he was considering buying the car. The Judge found, and relied on, the latter. But none of this was explored at the trial.

On the facts of the particular case, where a witness and party was disbelieved on grounds which were not put to him, the trial viewed overall was not fair. The Laser Report and the Granell Email were significant documents in the case and the unreliability of their content was squarely in issue. Their contents, if reliable, supported Mr Connor on the falsity issue: that the car did not fail to match up to any representations about factory-fitted features or the condition of the car. Mr Torr’s case at trial had always, and necessarily, included the contention that the Laser Report and the Granell Email were unreliable as to their content. That remained the consistent position, throughout. The GoogleEarth search regarding the Croydon crash and the press photograph went squarely to this point.

Alleging unreliability of the content of the two documents is one thing. It was quite another to allege Mr Connor’s dishonest responsibility for that unreliable content. As Perselli explained to me, she had been and remained careful not to allege this, subject only to a suggestion of forgery from her client which was then withdrawn. Unreliable content was a feature on the falsity issue; dishonest responsibility of Mr Connor would be a feature on the distinct dishonesty issue. On their face, these were documents emanating from third parties (Mr Woodward and Mr Granell). One of them (the Laser Report), on its face, both predated the dealings with Mr Torr and was produced not only by a third party (Mr Woodward) but for a third party (Mr Simm). The procedural irregularity, and the injustice in the trial, was that the Judge found against Mr Connor on the dishonesty issue giving critical prominence to a finding that Mr Connor had been responsible for procuring the unreliable content of two documents, when that was never put to him. The Judge did so notwithstanding that Counsel for Mr Torr had stated in terms that it was not being alleged that Mr Connor had been responsible for unreliable content.

I will consider each of the three features of the trial emphasised by Ms Perselli. I will do so, in the sequence in which they occurred. First, cross-examination of witnesses. Ms Perselli accepts that dishonest procurement was never put. But she submits that Mr Connor had already been given a fair opportunity to give relevant evidence which the Judge could fairly appraise. She says the putting of the Laser Report and the Granell Email to Mr Connor meant he was asked in cross-examination about the origin of the two documents, the timing of his knowledge about them, and how, from his perspective, each had come into existence. That, she says, gave him a fair opportunity to give his evidence on those topics, and for the Judge to evaluate that evidence. She further submits that, although it was subsequently withdrawn, the putting of the allegation of forgery of the Granell Email to Mr Connor had the consequence of enabling Mr Connor to give his answer to it. This, says Ms Perselli, gave Mr Connor the opportunity to address the broad question whether the content of the Granell Email was (as she put it in her oral submissions) “false as a result of his wrongdoing”. The Judge could then fairly assess that evidence, in considering dishonest procurement.

I cannot accept these submissions. Putting the documents and their origin to Mr Connor, and putting forgery of one of them (the Granell Email) to him, did not provide a fair basis for a finding of dishonest procurement. Furthermore, prior to the resumption of cross-examination of Mr Connor on Day Three and long before Mr Connor came to be re-examined, it had explicitly been accepted and recorded that it was not being said against Mr Connor that he had been responsible for the unreliable content of the Granell Email. Dishonest procurement of unreliable content falls squarely within being responsible for unreliable content.

Asking Mr Connor about the origin of the two documents, the timing of his knowledge about them, and how, from his perspective, each had come into existence is not the same as giving a fair opportunity to respond to an allegation of dishonestly procuring them. Nor was putting an allegation of Mr Connor’s forgery of one document, and then specifically withdrawing it and any suggestion of his being responsible for the unreliable content, the same as giving a fair opportunity to respond to an allegation of dishonest procurement of that document; still less of another document.

The Laser Report was put to Mr Simm in cross-examination. Mr Simm said that the Report had been done for him and that he had received it in March 2013. Mr Simm was asked in cross-examination about the similarity between the damage listed in the Laser Report and that which formed the basis of Mr Connor’s case in defending the proceedings. The Laser Report was put to Mr Connor in cross examination, who described the circumstances in which he had received it. Counsel for Mr Torr put to Mr Connor in cross-examination that Mr Woodward was a friend of Mr Connor’s and that there was no such company as Laser Garage Services. But it was never put to Mr Connor that he had dishonestly procured the Laser Report in March 2013 with incorrect content so as to mislead Mr Simms. Nor that he had dishonestly procured it after July 2013 with incorrect content and a false date so as to bolster Mr Connor’s position in responding to Mr Torr’s complaint. Nor was it put to Mr Simm that the Laser Report had been created only after July 2013.

The Granell Email was put to Mr Torr and it was then that he told the Court that he believed this email had been ‘forged’ by Mr Connor. Mr Torr, himself a computer technologist, said this view was based on matters relating to metadata of the Granell Email. This allegation of forgery of the Granell Email was then put to Mr Connor by Counsel for Mr Torr in cross-examination. Mr Connor denied forgery and gave oral evidence describing his interaction with Mr Granell in relation to the Granell Email. The forgery allegation was expressly withdrawn, by Mr Torr’s Counsel, before cross-examination of Mr Connor resumed. The Judge had expressed the concern that to “bottom out” the question of what the metadata showed would in fairness need an adjournment. The forgery allegation had been withdrawn prior to the trial adjourning part-heard at the end of Day Two. It was not advanced when the trial, and cross-examination of Mr Connor, resumed four months later. It was never put to Mr Connor that he had dishonestly procured the Granell Email.

So it was, during Day Two of the trial, that Ms Perselli specifically confirmed to the Judge in relation to the Granell Email that: “we won’t pursue the argument that it is a forgery”. The Judge responded: “But it could be seen as a bit of a touchstone in this case. But, fine, if that’s the decision you have taken.” Counsel then responded with a clear statement of position so far as concerned unreliability of the content of the Granell Email and wrongdoing on the part of Mr Connor relating to the bringing into being of that unreliable content. She said (emphasis added): “I will still make submissions about the reliability of the content of the email, but not its provenance.” The Judge replied (emphasis added): “that is a quite different matter. On the face of it, it seems likely that it was unreliable. But what you are not suggesting is that the defendant was responsible for the unreliability.” Counsel replied: “No”.

Thus it was clearly stated, in the context of a forgery allegation which was temporarily raised and expressly withdrawn, that the contentions made by Mr Torr about the Granell Email concerned reliability of content and not provenance, and that it was not being suggested that Mr Connor was responsible for any unreliable content. Still less was any suggestion being made as to responsibility for unreliability of content of the Laser Report which, on the evidence of Mr Connor and Mr Simm had been provided in March 2013 for Mr Simm by Mr Woodward.

Nothing said at any subsequent stage, by Counsel or by the Judge, had the effect of putting dishonest procurement of the Granell Email, nor of the Laser Report, in issue; nor of fairly indicating to Mr Connor or his Counsel that dishonest procurement was being suggested and could be the basis of an adverse finding of fact by the Judge. In those circumstances, there was nothing fairly to alert Mr Connor to the fact that he might be disbelieved and found to be dishonest on the basis of the idea that he had dishonestly procured unreliable content in the Granell Email; nor the Laser Report.

In these circumstances, so far as the Granell Email is concerned, I cannot accept that procedural fairness was secured through the putting of forgery, as carrying with it and allowing an answer to be given to the broader question of whether Mr Connor by reason of dishonest action was responsible for the coming into existence of an unreliable document. The allegation made was one of forgery. Moreover, the withdrawal of forgery was in terms of withdrawing any suggestion that Mr Connor “was responsible for the unreliability”. If there was already a wider connotation, it was withdrawn. The timing is significant. The express withdrawal – of any suggestion that Mr Connor “was responsible for the unreliability” of the Granell Email came after consideration at the lunch adjournment on Day two of the trial (8 March 2018), long before the re-examination of Mr Connor on the afternoon of Day three (24 July 2018). The case being put, and not being put, on behalf of Mr Torr on Day two and the morning of Day three was the necessary, fair framework for that re-examination.

So far as the Laser Report was concerned, the position is even stronger than in relation to the Granell Email. No forgery allegation was made by Mr Torr, or put to Mr Connor, so far as the Laser Report was concerned. That means Ms Perselli’s argument that an allegation of forgery carried with it a broader suggestion of wrongful conduct as to the bringing into existence of an unreliable document, so as fairly to enable Mr Connor to have responded to the broader point, is undermined. There was nothing to withdraw, so far as any suggestion that Mr Connor was “responsible for the unreliability” of the Laser Report, and the Judge did not need to ask for confirmation that no such allegation was being made.

I turn to the topic of closing speeches. Ms Perselli says that dishonest procurement of the two documents was a live consideration by the time the closing speeches were being made on Day Four. She says this was clear as a consequence of facts coming to light, namely the GoogleEarth search result produced at the start of the afternoon that day, showing the press photograph to be the actual car in the 2004 Croydon crash. She relies on the fact that the Judge had put to Mr Zaiwalla in his closing speech and in relation to the evidence of Mr Connor and Mr Simm that, if the press photograph was indeed Mr Wright’s crashed car, this would be “[a]n important indicia of … honesty”. She also relies on the fact that, responding to a question from the Judge, concerning a conclusion based on information said to emanate from the Ferrari database, Mr Zaiwalla said: “Your Honour will have to find that the Granell Email is a forgery or at least a lie in order to come to that conclusion”.

As it was put in her skeleton argument, Ms Perselli says the exchanges between Counsel and the Judge at the stage of closing speeches reflected as a live issue that it “followed that the content of these documents (but not necessarily their provenance) could not be correct and had most likely been fabricated to assist [Mr Connor]”. I accept the first part of this: that the exchanges reflect the live issue that the two documents “could not be correct”. That was always Mr Torr’s case. That was the falsity issue. I do not accept that they reflected that it “followed” that they had been “fabricated to assist the appellant”; nor that he had dishonestly procured them. The GoogleEarth search did not introduce a new issue of dishonest procurement. It was material which emphatically went to the reliability of the content of the two documents. That was always in issue, and was a key part of the falsity issue. Had the question of dishonest procurement of the documents been squarely raised during closing submissions (as Ms Perselli submits it effectively was), then the Judge would have been able to – and would have needed to – consider the procedural implications (including in the light of Chen). These would have included whether Mr Connor needed to be recalled; the position so far as Mr Simm was concerned; and any question as to whether the trial now needed a fifth day.

The logic of Ms Perselli’s submissions is that there was now a species of dishonesty, distinct from the question of forgery which had been disavowed, but which nevertheless involved Mr Connor being dishonestly “responsible for the unreliability” of the content of the two documents (which had also been disavowed), which had become supportable by the evidence and was now fairly open to the Judge, by the time of Mr Zaiwalla’s closing submissions on behalf of Mr Connor on the morning of Day Four of the trial (25 July 2018). Those closing submissions ended at the end of that morning, and Ms Perselli’s closing submissions were then made on the afternoon of that final day. In my judgment, the proof of the pudding is found in what happened when Ms Perselli made her closing speech. She spoke last. Moreover, when she came to do so, the Judge flagged up with her during that closing speech that the issue “on which I want most help” was the dishonesty issue. During her closing speech, in response to Mr Zaiwalla’s closing speech, Ms Perselli made no submission inviting the Judge to conclude, on the evidence, that Mr Connor had dishonestly procured the two documents, or either of them. Nor did she refer to that course as open to the Judge. That is not a criticism of her. She maintained the position which she had taken throughout. She did not respond that there was now a point, involving dishonest procurement of documents by Mr Connor, which had arisen from the Judge’s exchanges with Mr Zaiwalla. That is not surprising. In my judgment, none had.

Mr Perselli held to the position which she had taken when witnesses had given evidence during the trial (including the withdrawal of forgery). On the question of the unreliability of the Laser Report, Ms Perselli submitted that the report was “highly questionable”. As to whether the unreliability of the content of the Granell Email would involve the Judge concluding that it was “a lie”, Ms Perselli’s closing submissions reflected the observations made to Mr Zaiwalla by the Judge, to which I will return below.

The Judge’s reference to an “indicia of honesty”, made in the context of the evidence of Mr Connor and Mr Simm, was not in my Judgment a statement or warning that the Judge now regarded dishonest procurement of the documents by Mr Connor as being a live issue. Nobody picked up on it as being that. The observation by Mr Zaiwalla in his closing that, if the content of the Granell Email were incorrect, that document would have to have been “a forgery or at least a lie” was a submission made in circumstances where forgery had been withdrawn and lie would have been a finding about dishonesty on the part of Mr Granell. Both the Judge and then Ms Perselli responded to that submission. Neither did so in a way which indicated that dishonest procurement by Mr Connor was now in issue. Quite the contrary. The Judge’s responded by suggesting scenarios in which the Granell Email would be concluded to have been unreliable as to its content, without any dishonesty even on the part even of the writer (Mr Granell). The Judge said this:

The closing speeches, and the interaction with the Judge during them, do not in my judgment support the view that dishonest procurement of the documents was now recognised as being a live issue. On the contrary, Ms Perselli stopped short, in the context of each of the two documents, of making any allegation of dishonest procurement by Mr Connor. She did so, having heard the Judge’s observations to Mr Zaiwalla, and Mr Zaiwalla’s submissions to the Judge.

I turn to the third feature, the Judgment. I have earlier summarised the anatomy of the part of the Judgment in which the Judge addressed the dishonesty issue. I will not repeat what I there set out. Ms Perselli rightly accepts that the Judge’s conclusion on the dishonesty issue included a finding of dishonest procurement by Mr Connor of the two documents. She submits that the conclusion did not turn on that finding. She emphasises that the Judge said he reached his finding as to dishonesty and the condition of the car on the evidence as a whole: he referred to “all the above”. That included the Judge’s adverse finding about photographs and inspection (paragraph 58). It also included the Judge’s finding about pages from the service booklet (paragraph 61). Moreover, she submits by reference to Chen and the comments of Lord Hoffmann from Piglowska, the Judge will also have had further unarticulated, matters of impression and evaluation supporting his adverse finding as to honesty and credibility. In all the circumstances, says Ms Perselli, even if dishonest procurement ought to have been put, this Court ought nevertheless to uphold the Judge’s finding on the dishonesty issue in the light of the other evidence and findings relevant to that issue.

I cannot accept these submissions. It is right that dishonest procurement was not the sole feature in the section of the judgment dealing with the dishonesty issue. In the passages about dishonesty and condition of the car, the Judge referred to other matters. That included the point about photographs and inspection, which contained its own adverse conclusion, whose lawfulness is the subject of Ground Three. It also included the point about pages from the service booklet, which contained another adverse finding of dishonesty not separately impugned on this appeal. The Judge – in referring to “all the above” – will have had in mind these features of the case and is likely also to have been influenced (as pointed out by Lord Hoffmann) by matters of impression and evaluation not expressly articulated within the Judgment. Nevertheless, dishonest procurement of the two documents was of central significance to the Judge’s adverse conclusion on the dishonesty issue.

The Judge himself made that very clear. Discussing the dishonesty issue and the condition of the car, the Judge said he had “concluded that [Mr Connor] was not a credible witness” but was a person who had “set out to put together a false case in answer to Mr Torr’s claims…” The Judge then described what had “led me to this conclusion”, identifying the “main difficulty in his evidence” which had done so. That “main difficulty” concerned the Laser Report and the Granell Email, and it was in identifying it that the Judge specifically described himself as “convinced” that Mr Connor had “in some way” acted so as “to procure the putting together of the Laser Report and the Granell Email”.

So, in relation to dishonesty and the condition of the car, the Judge’s ultimate conclusion was (paragraph 63) that: “In the light of all the above, I consider that I should not regard Mr Connor as a witness of truth”. He earlier put it this way (paragraph 59, emphasis added): “Mr Connor… denied that he was aware of the damage. I do not believe his denial. In my judgment he was well aware of the state of the car at the time of the sale… I have concluded that he was not a credible witness, who has set out to put together a false case in answer to Mr Torr’s claims against him and HMC.” The Judge then continued (paragraph 60, emphasis added): “The main difficulty in his evidence which has led me to this conclusion arises from the Laser Report and the Granell Email… Both of these documents contained the same two separate and important untruths: first that the car was factory fitted with Challenge Stradale wheels, and secondly that the car was factory fitted with a challenge Stradale front bumper… the idea that two people could make the same two errors, each important to support Mr Connor’s case, stretches my credulity beyond breaking point. I do not know how Mr Connor managed to procure the putting together of the Laser Report and the Granell Email, but I am convinced that in some way he did.” The Judge subsequently said this (paragraph 60a): “I should mention that Mr Torr asserted at the trial that the Granell email had been forged by Mr Connor, and that an examination of the metadata associated with it would demonstrate that this was so. I offered the Defendant an adjournment to enable this point to be bottomed out, but the Claimant decided to withdraw the allegation. I do not take the view that Mr Connor forged this email; I have no reason to doubt that it was sent to him in the form that it stands in the witness bundle, but I do take the view that Mr Connor was involved in some way in procuring it. At the time it was sent, no one other than he had any interest in the making of the false statements it contained.”

In the context of the dishonesty issue and the question of factory fitted features, the Judge’s reasons were focused and very clear. His holding was that “by the time Mr Connor came to deal with Mr Torr, his representations about the challenge Stradale bumpers and wheels were known by him to be false”. That finding had an explicit basis, reflected in the Judge’s phrase “I therefore hold”. The “therefore” in that sentence was an explicit reference to the Judge’s finding that the Laser Report had been dishonestly procured by Mr Connor, which the Judge found had happened in March 2013 in the context of an intended purchase by Mr Simm, before Mr Torr was ever on the scene. The Judge expressed this finding as follows: “In my view… Mr Connor was even then knowingly involved in falsifying the history of the car”. That was the basis for finding dishonesty so far as factory fitted features were concerned.

I cannot accept that the passage in the Judgment about photographs and inspection (paragraph 58) was a self-standing basis on which, leaving aside the question of dishonest procurement of documents, the Judge found – or would necessarily have found – against Mr Connor on the dishonesty issue, even in relation to the condition of the car, let alone the factory fitted features. The Judge could and would have said if an adverse finding in relation to the point about photographs and inspection was sufficient support for his conclusion that Mr Connor was not a credible witness, and was well aware of the state of the car at the time of sale. That would have meant his points about putting together a false case and procuring the two documents would have been “further difficulties”, or “another … problem” (language which he used at paragraph 61). They were not. The “false case” was directly linked by the Judge to the conclusion that Mr Connor “was well aware of the state of the car at the time of the sale” and “was not a credible witness”, and the “main difficulty” which “led” to the Judge’s conclusion was then spelled out (paragraph 60).

Nor do I accept, even in relation to the condition of the car, that the passage (paragraph 61) about the pages from the service booklet was a self-standing basis on which the Judge found – or would necessarily have found – against Mr Connor on the dishonesty issue, leaving aside the question of dishonest procurement. Ms Perselli is right that the Judge found that Mr Connor deliberately removed the pages, which he linked to Mr Connor’s evidence about recalling seeing the first page. But the Judge dealt with the service booklet (paragraph 61) only after already having made a finding of fact that Mr Connor had “set out to put together a false case in answer to Mr Torr’s claims” and had acted to “procure the putting together of the Laser report and the Granell email”. Having found dishonesty by Mr Connor in the procuring of two documents, it was a relatively short step for the Judge then to decide, put alongside what Mr Connor had said about the service booklet, that Mr Connor had also deliberately removed the service booklet pages. Indeed, it was the Judge himself who identified what “the main difficulty” was, and characterised the service booklet point as “another unexplained problem with Mr Connor’s evidence”.

The Judge’s express focus on the dishonest procurement of the two documents is striking, for a number of reasons. In the first place, because it followed the discussion of various topics which the Judge could have said were of themselves fatal to Mr Connor’s case. Secondly, because the Judge was very clear in introducing and relying on dishonest procurement of the two documents, notwithstanding that this had not been Mr Torr’s case and notwithstanding that it had not been put to the witnesses. Thirdly, because the Judge referred to the contention of dishonest responsibility for the unreliable content which had been raised, but was then withdrawn, namely forgery (paragraph 60a). Fourthly, because the Judge referred to a point about the apparent non-existence of ‘Laser Garage Services’, recording that this had not been put in cross-examination of Mr Simm (paragraph 60b). It was amid all of this, and in all these circumstances, the Judge spelled out in clear terms that his conclusion on dishonest procurement was of central significance to his finding on the dishonesty issue, as to condition of the car (paragraphs 59, 60 and 63); and as to factory-fitted features (paragraph 64).

Other features of the Judge’s analysis are to be noted. One is that the key conclusion of dishonest procurement of documents was accompanied by a lack of specificity. The Judge said he was “convinced” that “in some way” Mr Connor had “managed to procure the putting together of the Laser Report and the Granell Email”. He said he took “the view” that Mr Connor was involved “in some way” in “procuring” the Granell Email. He said it was “not clear” how the false statement came to be incorporated in the Laser Report. He referred to the “apparent non-existence” of Laser Garage Services. This language is indicative of the Judge not having reached a clear view on any matter of detail. The point is that the Judge had heard no evidence, no cross-examination, and no submissions about dishonest procurement of the documents. No such thesis had been put forward, still less explained and amplified, at the trial. And yet that came to be a point of central significance in his analysis.

Another point to be noted is a timing point, concerning dishonest procurement by Mr Connor of the Laser Report. The Judge concluded that the Laser Report involved Mr Connor being “knowingly involved in falsifying the history of the car” (paragraph 64). An obvious and important question as to timing was whether such falsification, if this had been being suggested, took place in March 2013 in the context of Mr Simm’s proposed purchase, or later in the context of Mr Torr’s claims. The Judge had previously said his conclusion was that Mr Connor had “set out to put together a false case in answer to Mr Torr’s claims” (paragraph 59). Reading that finding alongside the next paragraph, which concerned both the Granell Email and the Laser Report, would indicate a thesis in which the Laser Report must have been written sometime after 25 July 2013 when Mr Torr first complained. That would mean it was not a report written for, or received by, Mr Simm at all. Mr Simm had given evidence and been cross-examined. In the event, the Judge expressed his ultimate conclusion that the Laser Report had been written in March 2013, for Mr Simm, but that Mr Connor had at that earlier time – and in that earlier transaction – acted dishonestly in procuring this report with its unreliable content. As Mr Zaiwalla points out, that is particularly striking. It would mean that this dishonestly procured report was not “put together [as] a false case in answer to Mr Torr’s claims”, a phrase apparently intended to embrace both documents. It would mean that the Laser Report was unreliable and dishonestly procured, but reliable and accurate as to its date. It would mean a report dishonestly procured by Mr Connor in March 2013 to mislead prospective purchaser Mr Simm was not then produced in April 2013 to mislead prospective purchaser Mr Torr, but was held back until after Mr Torr later complained. This is an aspect which illustrates the importance, from a procedural fairness perspective, of properly and fully exploring an allegation of impropriety at the trial and with the witnesses. Not only was the matter not put to Mr Connor, but it was not explored with Mr Simm, who himself gave evidence at trial. It is a striking feature of the case, for this reason. Its logical consequence would be that – at the time when Mr Torr was enquiring of Mr Connor as to factory fitted features – Mr Connor had at his disposal a report about the car, prepared for an earlier proposed purchaser, which confirmed the position. That document was intended to reassure a purchaser, and yet Mr Connor did not rely on it to reassure Mr Torr. Once again, the point is that none of these matters were ever explored. They were not the subject of evidence, of questioning, or of submissions. That was because dishonest procurement of the documents was never raised.

In these circumstances and for these reasons, Ground One is in my judgment made out. The decision was unjust because of a serious procedural irregularity in the proceedings, concerning the dishonesty issue.

Ground Two is unnecessary if Mr Connor succeeds on Ground One. It concerns the Judge’s finding that the Laser Report, although unreliable as to its content and dishonestly procured as to its origin, was nevertheless reliable as to its 20 March 2013 date. This was the dishonesty conclusion as to factory fitted features (paragraph 64). The Judge said Mr Connor had “even [in March 2013 been] knowingly involved in falsifying the history of the car”, so that “by the time Mr Connor came to deal with Mr Torr, his representations about the challenge Stradale bumper and wheels were known by him to be false”.

The essence of Mr Zaiwalla’s submissions on Ground Two were as follows. Having found the Laser Report to have been dishonestly procured by Mr Connor, there was no proper basis on which the Judge could reasonably conclude that the Laser Report was nevertheless accurate and reliable so far as its date was concerned, and then hold that reliable aspect against Mr Connor. That conclusion was, moreover, inherently improbable, given that it would mean Mr Connor had access to a false report to reassure a prospective purchaser but did not then rely on it for that very purpose in relation to Mr Torr. The consequence is that the Judge made a finding of fact in relation to the date of the Laser Report which was not reasonably open to him on the evidence.

The relevant legal standard is not in dispute: whether there was a critical finding of fact unsupported by the evidence or the decision was one which no reasonable judge could have reached.

In my judgment, the points made under Ground Two illustrate the problem seen in Ground One but do not constitute a well-founded self-standing ground of appeal. Under Ground One, I have held that the question of dishonest procurement of the Laser Report was not fairly raised at the trial. That means it was never put to Mr Connor, and no enquiry was undertaken with the witnesses, or in submissions with the Judge, and no thesis explored, as to the timing of the Laser Report as a dishonestly procured document. I have explained how the timing point features in the analysis of the implications in fairness of dishonest procurement never having been raised. That, in my judgment, is as far as the point can properly go. Put another way, were I satisfied that the decision of the Judge was just and involved no serious procedural irregularity, there would in my judgment have been no room for a freestanding complaint as is made under Ground Two. As I have explained, I am not satisfied that the point was fairly ventilated and for that reason the Judge did not have the benefit of an assessment and impression with the matter having been so ventilated. But that is Ground One.

It is not the case that a conclusion on unreliable content dishonestly procured would necessarily and logically carry with it the conclusion that the date borne by a document is itself unreliable and false. It is possible for a document to be unreliable and dishonestly motivated without also being unauthentic so far as date (or for that matter author) is concerned. That was the point arising out of the Eco-3 case discussed above. There is no inherent probability to the point of logical impossibility or unreasonableness viewing the evidence as a whole, taking into account all issues of evaluation and impression, so far as the knowledge and deployment of the Laser Report are concerned. What does arise is a striking feature as to temporality of the Laser Report, illustrative of the importance of this matter being the subject of an adverse finding on the dishonesty issue against Mr Connor only having first been fairly raised at the trial. But that, as I have said, is to restate an aspect of the procedural irregularity that is Ground One.

Ground Three, like Ground Two, arises only if Mr Zaiwalla is wrong about Ground One. I explained earlier in this judgment that the anatomy of the section of the Judgment relating to the dishonesty issue included a passage about photographs and inspection. In it, the Judge said this (paragraph 58):

There are two strands in this part of the Judge’s reasoning, as can be seen from the criticised passage quoted. The first is the Judge’s finding (expressed as a belief) that the discrepancies and kinks would have led an experienced dealer to look hard at the car. The second is the Judge’s finding (expressed as an observation of what “would” have happened) about an experienced dealer looking hard at the car reaching the same conclusion as those who inspected the car in Australia. Mr Zaiwalla challenges the supportability and reasonableness of each of these aspects.

So far as the first aspect is concerned, relying on the photographs taken in England, Mr Zaiwalla invites me to form my own view (as an appeal court may do of photographs: see eg. Manning v Stylianou [2006] EWCA Civ 1655 paragraphs 12-13), and to conclude that the photographs do not in fact show discrepancies or kinks which would lead an experienced dealer to look hard at the car. He submits, moreover, that the expert reports of Mr Marks and the responses of witnesses when questioned at trial about the photographs provide any reasonable evidential support for the Judge’s view.

So far as concerns the second aspect, what the outcome of a hard look at the car would have been, Mr Zaiwalla submits that there was no evidence to support the conclusion, or it was otherwise unreasonable to conclude, that Mr Connor would have, was in the practical position of being able to have, or could be found to have, conducted an inspection of a nature as would have allowed the same conclusion to be arrived at as formed by those inspecting the car subsequently in Australia. That Australian inspection, he emphasises, involves the dismantling of the car. It is, he submits, unreal to suppose that Mr Connor undertook – or required someone else on his behalf to undertake – the dismantling of the car.

In my judgment, this Ground is not made out.

Ground Four, which relates to the recoverability issue, arises out of the following passage in the Judgment (paragraph 75):

Mr Zaiwalla submits that this approach was wrong in law. He says the Judge should have applied the principle in Smith New Court Securities and was wrong to identify this case as falling within any exception to that principle. He submitted, in essence, as follows:

Once again, there was no dispute between the parties as to the applicable law. The relevant passage in the speech of Lord Browne Wilkinson in Smith New Court is at page 266H to page 267D and reads as follows:

This Ground fails. In my judgment, there was here no error of law.

It follows that this appeal succeeds, on Ground One. The Judge’s adverse finding on the dishonesty issue (paragraphs 55 to 64) and, for that reason, his conclusion that the claim succeeded (paragraph 69) cannot stand because there was a serious procedural irregularity in finding dishonest procurement of documents when that had not been part of Mr Torr’s case or put to Mr Connor at the trial. Grounds Two, Three and Four fail.

I received written representations as to what order I should make, and as to any consequential matters, in the light of this judgment circulated in draft.

I do not accept the primary submissions of either party. The appropriate course is to set aside the order of 16 May 2019, direct that the Judgment stand as the determination of the four other issues, and order a retrial of the dishonesty issue, before a different Judge. All questions of costs are to be dealt with by the County Court.

As to costs, having considered the parties’ representations, I am satisfied that the appropriate order is that Mr Torr shall pay Mr Connor’s costs of the appeal, to be taxed if not agreed.

I will make the following Order: (1) The appeal is allowed. (2) The order dated 30 May 2019 is set aside. (3) The Judgment of the County Court dated 18 February 2019 stands as the determination of the following issues (as identified in this Judgment [2020] EWHC 293 (QB) paragraphs 5-6): the representations issue; the falsity issue; the reliance issue; and the recoverability issue. (4) There shall be a retrial of the dishonesty issue, before a different judge, any directions as to which are a matter for the County Court. (5) All questions of costs in the County Court, including those arising as a result of paragraph (2) above, are to be dealt with by that Court, at such time and in such manner as that Court considers appropriate. (6) Respondent to pay the Appellant’s costs of this appeal to be taxed if not agreed.