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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bentley v Jones Harris & Company [2001] EWCA Civ 1724 (2 November 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1724.html Cite as: [2001] EWCA Civ 1724

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr H K Goddard QC)

		Royal Courts of Justice Strand London WC2
		Friday, 2nd November 2001

1. LORD JUSTICE LATHAM: I will ask Mr Justice Burton to give the first judgment.
2. MR JUSTICE BURTON: The claimant (the appellant in this appeal), Michael Bentley, at all material times has been a car dealer. He sued the defendants (the respondents to this appeal), Jones Harris & Company, who had been his accountants for many years. The principal partner in issue in relation to the case brought before the court was a Mr Bryning.
3. There were three discrete issues brought before the court by the claimant in respect of which he claimed that his accountants, the defendants, had acted negligently. The learned deputy judge, at the close of the claimant's case, having been addressed by counsel for the defendants and by the claimant in person (because during the course of the hearing he dispensed with the services of his counsel), concluded that there was no case to answer on any of them.
4. Permission to appeal has been given by Lord Justice Chadwick to this court on only one aspect of one of them. There was an attempt by Mr King, who today, very recently instructed, has appeared on behalf of the appellant claimant, to seek to resuscitate arguments in respect of the other two issues, but, for the reasons given by my Lord, Lord Justice Latham, earlier in the hearing, this court refused permission for that course. So I shall deal only with the one outstanding matter by way of permission to appeal, as slightly expanded with the acquiescence of Mr Cory-Wright, counsel for the respondent defendants, before us today.
5. The claimant's case is that, at a meeting on 3rd October 1996 between him and Mr Bryning, the latter gave the following advice in general terms:

(i)He gave pessimistic advice as to the likely liability of the claimant on a VAT assessment which had been received in the June/July in the sum of £155,000.

(ii)He told the claimant that that VAT liability could increase to as much as £225,000.

(iii)He said that he should run down his business and sell off his assets in order to avoid the consequences of that liability.

6. The claimant's further case, which was necessary to establish that any loss flowed from the alleged negligence, is that, as a result of Mr Bryning's advice on 3rd October, he did just that, ceasing to operate his business from his premises at Vicarage Lane and disposing of them.
7. The only ground on which Lord Justice Chadwick gave permission, out of the lengthy document put before him by way of notice of appeal by the claimant, then acting in person, was as follows:

"Permission to appeal ... limited to the issues (i) whether, in reaching the conclusion that Mr Charles Bryning did not give the advice on 3 October 1996 of which the applicant complains, the judge was entitled to rely on Mr Bryning's attendance note and, if not, (ii) whether that conclusion can stand."

8. He gave the following reasons:

"It is arguable that the judge ought not to have relied on Mr Bryning's attendance note of the meeting on 3 October 1996 in the circumstances that the attendance note was not agreed to be an accurate record of what took place and neither Mr Bryning nor any other witness was called to support its contents.

The judge gave two reasons for rejecting the applicant's own account of the meeting of 3 October 1996. One reason was the attendance note; the second reason was that he did not accept the applicant's evidence. It is arguable that, if the first reason is flawed, the judge might not have reached the conclusion that he did on the second reason alone.

I am satisfied that there is no real prospect of success in relation to the other issues on which the judge held against the applicant. The judge was plainly entitled to hold that the applicant had not made out his case on his own evidence; and was not bound to allow the trial to proceed so as to give the applicant an opportunity of making his case through the cross-examination of the defendants' witnesses."

9. The learned single judge did not in terms give permission to appeal in respect of the issue upon which he had also separately found against the claimant: namely, what can loosely be called `causation', i.e. that there was, in the learned judge's conclusion in any event, no loss proved by the claimant to have flowed from the alleged negligence. By a recent letter from freshly instructed solicitors, sent to the court on 26th October, notice was given of a desire to argue in addition whether the judge's finding as to causation can stand; and although, as I have indicated, we did not give permission to expand the grounds of appeal to include the matters relating to the two quite discrete issues in respect of which the judge found against the claimant, we have permitted argument by Mr King on this issue of causation in addition, not least because, without it, any success by him on the issue of negligence would have afforded him nothing because he would not have been able to establish any loss.
10. I turn first to the question of the attendance note of 3rd October 1996. The first and most important point to make clear in order to set this in context is that there were in fact a number of handwritten attendance notes of Mr Bryning of which this was only one, all of them apparently contemporaneous and many, if not all of them, recording events, statements and discussions with which the claimant took no issue. The events recorded with which he did take issue, of course, were those which have been very material in this trial.
11. The following significant matters must be recorded:

(1)The claimant was claiming, or claimed in the course of cross-examination, that all the attendance notes, or all the material attendance notes, were manufactured or fabricated, not just that of 3rd October.

(2)There was no challenge to the authenticity of the documents when they were included in the defendants' list of documents served at a time when the claimant was represented by solicitors. By Part 32.19 of the CPR it is provided that:

"(1) 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 proved at trial.

(2) A notice to prove a document must be served -

(a)by the latest date for serving witness statements; or

(b)within 7 days of disclosure of the document, whichever is the later."

12. This is a rule which largely repeats the old practice under the Rules of the Supreme Court, save that there is a note in the new White Book which reads as follows:

"This rule differs from its predecessors in that now a party will be deemed to admit the authenticity of documents disclosed to him unless he serves notice that he wishes the document to be proved at trial. (It is not incumbent on the disclosing party to seek an admission of authenticity.)"

(3)The claimant's then counsel agreed a chronology for the trial shortly prior to its start. That chronology included a resume of the contents of at least three of the relevant attendance notes. One was an attendance note of the meeting of 3rd October 1996. There is a quotation of that attendance note in the chronology which concludes with the following words:

"VAT case - how is it going - received assessment. [Arthur Andersen] dealing with it - very confident of having it withdrawn. Done well with other car dealers."

13. There is also included in the chronology reference to others of the attendance notes - for example, one of 13th May 1997, being a meeting at 1.05pm. There is a quotation from the attendance note which includes:

"[Bentley] said probably not an issue anyway since [Arthur Andersen] confident of winning case ..."

14. Then there is a further attendance note for May 1998 set out in the agreed chronology as follows:

"[Bentley] said that he had been told a provision should have already been made. [Bryning] said that the VAT was under dispute and [Arthur Andersen] had always maintained that they would win the case, so without quantifying liability it would have been inappropriate."

15. As I have indicated, counsel then instructed on behalf of the claimant agreed the chronology to go before the court in the following terms in paragraph 2 of his skeleton argument:

"The claimant agrees the:

(a)Dramatis Personae ...

(b)Chronology, subject to determination by the Court of disputed events - e.g. [the claimant] does not accept that David Rollinson expressed any concerns about his treatment of extras ... at the end of 1992, or at any time."

16. Nothing in terms is said, as can be seen, about the meetings and the attendance notes which had been set out in the chronology in the way I have described.

(4)The claimant's attack on the attendance notes emerged unheralded by any correspondence, or by his counsel's opening, or by anything he said in examination-in-chief. I deal with how it emerged by reference to the transcripts. On the second day of the hearing he was addressing, in cross-examination, not the attendance note of 3rd October, to which I have already referred, but an attendance note relating to a meeting between him and Mr Bryning of 5th March 1996. He was asked about the contents of that attendance note by Mr Cory-Wright, counsel for the defendants. There were the following questions and answers (p.47B):

"Q.Now that is an accurate record, not obviously wholly accurate in that it records everything that was said, but that was an accurate summary of what was discussed between you and Mr Bryning on the 8th of March of 1996?"

17. A.Up to a point.
18. Q.Is it that it is inaccurate in what it says or that it leaves things out?
19. A.It is inaccurate in what it says."
20. Then a little later, after the contents of the attendance note had been discussed with him (some parts said to be accurate and some not), the learned judge asked him (p.48G):

"... this attendance note, there is no reason to think that it is other than a genuine attendance note?"

21. Mr Cory-Wright intervened:

"No, there is no suggestion, there has never been any suggestion as to that about any of these attendance [notes]."

22. Then the questioning continued.
23. A little further on, after some more questions about the attendance note and its contents, there was this question from Mr Cory-Wright: "What this note records, and I am going to put it to you again to give you the opportunity to answer the question this time, what this note records is that you said to Mr Bryning, `Would like to sell' and that must mean sell Vicarage Lane. `Could earn as much from working from home selling to trade, with no hassle. Now did you or did you not say that to Mr Bryning?"
24. The answer was:

"No, sir, I did not."

25. Then the learned judge intervened:

"You did not say that? So he has made that up then? It is just a figment of his imagination, you would like to sell?"

26. I interpose to say that of course this was a meeting in March 1996, well before the October 1996 meeting at which it is part of the claimant's case that he was advised to sell up by Mr Bryning. The answer by Mr Bentley was:

"I don't know how I am allowed to phrase it."

27. The judge said:

"You can put it any way you like."

28. The response was:

"Well, I would phrase it that along with a lot of his other notes, they have been embroidered to fit the circumstances."

29. Then after further questioning, Mr Cory-Wright asked:

"Q.Are you suggesting that Mr Bryning has created these attendance notes after the event, long after the event in order to suit the defendant's case?"

30. A.Part of it.
31. Q.These are forgeries, you are saying?
32. A.I don't know if that's how they would be classed, but I'm saying that is not the conversation.
33. Q.Leaving aside the possibly over-emotional word forgery, what you are saying is that this note or at least some of this note in common with other of the attendance notes in this bundle have been created after the event by Mr Bryning in order to suit the defendant's case?"
34. A.I would assume so, sir, yes, because they are not accurate."
35. On the next day, the question of a different attendance note arose. This was an attendance note of November 1996, after the meeting of 3rd October 1997. Mr Cory-Wright put this question to the claimant (p.14E):

"You told us yesterday that some time between September and November there was a stalling of the negotiations with Enterprise [the potential purchasers of Vicarage Lane] ... It is clear from this note, is it not, that at this stage, whenever it was in November that this conversation took place, Enterprise were still or you were still considering the lease to Enterprise."

36. I interpolate again to say that that would have been apparently inconsistent with the case he made that he only considered selling the premises as a result of advice from Mr Bryning. The answer he gave was:

"With respect, sir, I don't agree with any, well with most of these notes, because I think most of these notes have been manufactured."

37. The learned judge continued:

"Q.That is your case, right?

A.That's my case.

Q.So your case now is that, your opinion is that these notes have been manufactured to fit the case?

A.Yes, sir."

38. By way of illustration, I turn only finally to refer to evidence that was given later on that same third day of the trial in relation to an attendance note of a Mr Gary Roberts of Waterford Investments, about which again Mr Bentley was asked questions by Mr Cory-Wright. After reference to an attendance note by Mr Roberts on 13th February 1997, there were the following questions and answers (p.32F):

"Q.He was the financial adviser who actually put you in touch with the Yorkshire Bank?

A.Mr Bryning's friend, yes, sir. ...

Q.You say Mr Bryning's friend. Are you suggesting that this attendance note too is false?

A.I would think it wouldn't surprise me at all.

Q.It would not surprise you?

A.No."

39. Then the learned judge said:

"Have you any reason to think it was not dictated immediately following the meeting?"

40. There was no response. The witness continued with his assertion that his view was that, because it backed up Mr Bryning's version of events, it must have been similarly manufactured.
41. The judge in those circumstances, it seems to me, having heard that evidence, was entitled to conclude (i) that he did not believe the claimant's case that the attendance notes were fabricated and (ii) that without that case, the claimant's allegations would effectively on his own admission evaporate or at least be heavily damaged. Hence the learned judge, in his judgment, said as follows, by reference to 3rd October (p.8D):

"Mr Bentley said to me that he thought it could well have been tailored to suit the defendant's case. Well, it is one of many handwritten memoranda which are before me, and I totally reject any suggestion that this has been brought into existence for the sole purpose of defeating Mr Bentley's claim. There is nothing whatsoever to justify such a finding."

42. He also referred further in the judgment to the memorandum of Mr Roberts (and this is, of course, relevant to causation), where he said (p.10G):

"... I find that he in fact in relation to the manner in which he conducted his business after October 1996 did this primarily following his own approach to what was in his best business interests, although I accept that of course he was put in touch with financial advisers and [there is] one memorandum, which is not again particularly helpful to his case. This is from Gary Roberts. Again Mr Bentley's comment in relation to that memorandum was `Well, he is a friend of Mr Bryning's.' In other words, this was a self-serving document to bolster the defendant's case, and I reject that suggestion."

43. The learned judge appears in his judgment to rest on the contents of the attendance notes (or at any rate the attendance note of 3rd October 1996) as if they themselves had constituted evidence. It is accepted by Mr Cory-Wright, as it was at the trial on behalf of the defendants, that, although the authenticity of the documents was deemed (as a result of the procedures of the CPR to which I have referred) to be accepted, and they had to be accepted as contemporaneous documents (subject, of course, to the subsequent change of case by the claimant in the course of evidence), they had not themselves become proved by becoming evidence, unless and until the witnesses for the defendants went into the witness-box to prove them. But what in fact the attendance notes constituted was a platform to test - and, in the event, in the judgment of the learned judge, destroy - the evidence of the claimant. It is quite clear that it was the catalyst of the attendance note or notes which caused the learned judge to disbelieve the claimant's evidence. They did not need to become evidence themselves in order to have that effect. The learned judge clearly examined the evidence of the claimant himself and considered his credibility and consistency. I refer to the judgment at p.6D, where the learned judge said as follows:

"On behalf of the defendants, Mr Cory-Wright accepts that if that advice were given in the terms described by Mr Bentley and given in evidence, then his clients, Mr Bryning on behalf of his clients, would have been negligent. At this stage of course I have not heard Mr Bryning's account, although of course I have seen his statement and his case has been put to Mr Bentley in cross-examination. I have to consider whether Mr Bentley's evidence which he gave before me should be accepted at face value, and whether I should accept everything he says in relation to the nature of the advice which he contends was given to him by Mr Bryning. What I and any judge makes of a witness depends essentially on how he presents in the witness box and how he responds to cross-examination, and how that evidence is consistent with any documentary evidence which is relevant to the issue."

44. The following evidence from the claimant himself was obviously central to the existence (or, in the event, in the opinion of the learned judge, non-existence) of the case against the defendants. First, it was common ground that from June 1996 the claimant instructed Arthur Andersen and not the defendants to assist him with his VAT problems, and that an assessment against the claimant, eventually received in August 1996 but expected from July, in the sum of £155,000 was being dealt with by Arthur Andersen. Second, it was Arthur Andersen who had the knowledge and handling of the VAT assessment and not the defendants, as the claimant accepted (see Day 2, p.92D; Day 3, pp.1H-2A). Third, Arthur Andersen at all times gave optimistic advice as to the likely outcome of that assessment, as the claimant accepted in evidence (see, for example, Day 2, p.71E and H; Day 2, p.90F). Fourth, Arthur Andersen had, with that knowledge, advised the claimant that the VAT liability would decrease, rendering it even less likely that it would increase from £155,000 to £225,000, as the claimant was alleging that the defendants advised him.
45. In the course of being cross-examined as to that, it is apparent from a passage to which I shall refer in a moment (Day 3, pp.5-8) that the claimant attempted to change his case in a manner which caused the learned judge to be less than impressed. Mr Bentley, in cross-examination by Mr Cory-Wright, confirmed his previous evidence that Arthur Andersen had been optimistic about getting the assessment reduced, and then confirmed that they had positively advised that there was going to be a significant reduction for various reasons that were then explained. Then, not surprisingly in those circumstances, it was put to the claimant that it was odd in those circumstances that he would have received the advice from Mr Bryning which he was asserting (particularly as he was not handling the matter) that there was likely to be an increase from £155,000 to £225,000, rather than the anticipated decrease which eventually materialised very substantially. In answer to further questions from Mr Cory-Wright, Mr Bentley specifically confirmed as follows (Day 3, p.6C):

"Q.Your evidence now today is that the perception that you had [that is, from Mr Bryning at that meeting] about £225,000 included the risks in relation to Income Tax?

A.No, sir, that was purely the VAT risk."

46. He thereby confirmed the evidence that he had twice given in his witness statement. Then, after further questioning, he said:

"Well, the difference between £155,000 and ... over £200,000 [was] because of the Income Tax that would be going with it."

47. The learned judge intervened and said:

"Well, there is a newer one, aspect. Is it pleaded ... about Income Tax?"

48. Mr Cory-Wright suggested, or began to suggest, that it was a wholly new allegation, and the answer Mr Bentley gave was:

"I am only trying to explain the conversation that I had. ... I am not telling lies to the court."

49. Then Mr Cory-Wright continued:
50. Q.We have never seen anything relating to that before your evidence this morning, have we?
51. A.No.
52. Q.This is something, Mr Bentley, which has occurred to you overnight, has it not?
53. A.No, it isn't."

(5)After the meeting when the defendants, through Mr Bryning, allegedly advised that the liability of £155,000 was likely to increase to £225,000, the claimant made no contact with Arthur Andersen, who were actually dealing with this, to see if this advice had any substance. He was asked about this by Mr Cory-Wright in the following terms (Day 2, p.93):

"Q.Mr Bentley, you went away from that meeting on the 3rd of October with the figure of £225,000 ringing in your ears, is that right?

A.Yes, sir.

Q.Arthur Andersen were in fact dealing with the VAT assessment. Did you get in touch with Mr Ruffles and say `I have just been to see my accountant. I know he is not dealing with my VAT now, but the firm had been dealing with it before on my behalf. I am terrified. He has told me I might actually have to go down to £225,000.'? ...

A.I can't say that I did.

Q.You do not remember doing so and you do not think you did?

A.No."

54. Then he was questioned further about why he did not.
55. The learned judge thought that this was extraordinary, as is plain from his judgment, where he said as follows (p.7F):

"Now if Mr Bentley is correct, and he says that this figure was put forward as a likely, indeed it was a worst case scenario, but that it was one which he ought to take account of and he ought to arrange his affairs accordingly. If that was put forward by Mr Bryning, then I find it quite extraordinary that Mr Bentley, who had retained the services of experts in this field, namely Arthur Andersen, and who had up to that time obtained optimistic comments from Arthur Andersen in relation to Mr Bentley's ultimate liability for Value Added Tax, I am surprised that he did not immediately get in touch with them and say `Well, my accountant Mr Bryning who I have known for 20 years or more, he tells me that I could be looking at a bill of £225,000. Now what do you say to that?' Apparently he did not do that, and I find it quite extraordinary that Mr Bentley would be prepared to drastically re-arrange his affairs on the say-so of Mr Bryning, who at that time was not specifically advising him on his VAT liability."

56. (6)Finally, the fact that the claimant was saying he was given the advice to reduce his assets, and he did so on the strength of that advice, fell to be set against its becoming clear from the claimant's own evidence:

(a)that the negotiation for the sale of the lease of his premises at Vicarage Lane had begun before the meeting of 3rd October (see Day 2, pp.74B-76F); and

(b)he was still considering plans for expansion of the business, not contraction, as late as February 1997 (see Day 3, pp.29E-30A).

57. On his own evidence, therefore, there appeared to be not a single factor that supported his case; and his case, in the learned judge's opinion, fell apart on the basis of his own evidence and the need to assert the fabrication of the attendance notes which otherwise supported the defendants' case. Thus in his judgment the learned judge said (p.10E):

"I also find this: that Mr Bentley, I have had the opportunity of observing him in the witness box and hearing about him. He strikes me as being an intelligent man, a man who has been used to dealing with business at a relatively high level for a considerable number of years, a man who is well versed in dealing with banks and well versed in discussing with them how he should conduct his affairs, and he has sought to present himself in a somewhat ingenuous way ..."

58. At the end of his judgment, dealing not only this issue but with the other two as well, he said:

"In my judgment, it would have been a complete waste of time and a waste of further costs for the matter to proceed further, but my findings, my principal findings, are that I do not, having seen Mr Bentley in the witness box, I do not accept the specific allegations he makes in relation to the October 3rd meeting, in relation to the September 1994 meeting, and I find that anything that was done there or said there in law does not amount to negligence, and I have already ruled in relation to the VAT. I am not satisfied that any specific acts of negligence at this stage have been proved against the defendant's servants or agents at that stage. In any event I am not satisfied that there is any provable damage resulting from the VAT advice."

59. As to causation, in his judgment in addition he said as follows (p.10D):

"... I find that there is nothing to suggest that there was negligent advice which caused the events to take place which subsequently did take place."

60. Then he said (p.10G):

"... I find that he in fact, in relation to the manner in which he conducted his business after October 1996, did this primarily following his own approach to what was in his best business interests ..."

61. At the time of this trial it was, it seems, common ground between counsel for both parties and the judge that under the CPR there was no need for a party making a submission of no case to answer to be put to his election. This has now been clarified by this Court in Boyce v Wyatt Engineering and Others [2001] EWCA 692 per Mance LJ, so that certain limits are set on that proposition. But it is clear that on the basis of the learned judge's judgment he concluded that in this case, in the light of the evidence given by the claimant, nothing in the defendants' evidence could affect the view he had taken (see per Mance LJ at para 5 and the learned judge's judgment at p.15D-F). In any event, the question of further evidence from the defendants never arose because the learned judge found that there was no case to answer. We have to decide whether that conclusion was right.
62. It is accepted that Mr Cory-Wright put a stark question to the learned judge for him to conclude, and Mr King accepts and asserts that it was the right one: namely (in accordance with the transcript of what Mr Cory-Wright was submitting (Day 4, p.5)):

"... whether the court comes to the conclusion that realistically there is no basis upon which a jury could, properly directed, find in favour of the claimant on the evidence that the claimant has adduced ..."

63. Then further:

"In other words, that the nature of the claimant's evidence generally and in particular his credibility on matters in contention is such that your Lordship should form the view that no part of his case should succeed."

64. There has been some canvassing in the course of this hearing as to the question of the applicability at this stage of the rules under Part 24 of the CPR and of the question as to whether, at any stage of the proceedings, at the instance of the learned judge himself if not of one party or the other, there can be a conclusion that there is no real prospect of succeeding on the claim or, put more loosely, that a claimant is bound to fail. But the traditional `no case to answer' test that I have read out from counsel's submissions was what was put before the judge. It is plain that the learned judge came to the conclusion that there was no such case to put to himself, wearing his jury hat.
65. The passages in the judgement on which Mr King has relied are those in which there is specific reference by the learned judge to the attendance note. The judge said (p.8C):

"However, there is another matter which causes me to unhesitatingly reject Mr Bentley's version of what took place on the 3rd of October, and that is the attendance note. Admittedly it is an attendance note prepared by Mr Bryning. It is in the documents before me. To this extent it might be regarded as a self-serving document."

66. He then continued to deal, in the passage which I have already quoted, with his rejection of any suggestion that it had been brought into existence for the sole purpose of defeating Mr Bentley's claim.
67. In his judgment the learned judge dealt, to an extent, with the contents of that attendance note, including the contents which had been specifically recited by Mr Cory-Wright in the chronology which I have earlier quoted. He said (p.9):

"... I say this of course on the basis that I have not heard Mr Bryning, I have no reason to doubt that this is other than a contemporaneous record of what took place."

68. Of course, although he does not specifically refer to it, it is worth recalling that, because of the operation of Part 32.19 of the CPR, its authenticity as a contemporaneous document had been deemed to be admitted.
69. He then continued, having recited the content of the note:

"Well, that is in the attendance note, and I reject Mr Bentley's evidence that Mr Bryning gave him specific advice that his liability to VAT was likely to be in the order of £225,000 and that he should do certain things to his business because of the potential liability. I reject it for principally two reasons. One of course is the attendance note, which I found to be a contemporaneous one, and secondly this is from Mr Bentley's own evidence himself, the fact that having retained Arthur Andersen, he did not go and seek their comments on the alleged statement by Mr Bryning that the potential liability could be as much as £225,000. So in those circumstances, I find that Mr Bentley has not satisfied me at this stage that there is any evidence that Mr Bryning gave negligent advice in October 1996."

70. Though the wording of the learned judge's unreserved judgment was perhaps infelicitous, he was plainly rejecting the claimant's evidence, and rejecting it not only on the basis of the attendance notes. He was in any event, in my view, just as entitled to do that on the basis of having heard the attendance notes put to the claimant as if he had heard the contents of a witness's evidence put to him in cross-examination from that witness's witness statement before such evidence was called, in order to see how the claimant's evidence survived it. It seems to me that he would be perfectly entitled to say, "On the basis that I have not heard Mr Bryning, I have heard the claimant deal with what Mr Bryning is going to say and, in the light of what he said and the way he said it, I disbelieve the claimant" - all the more so when it is a question of a whole series of apparently contemporaneous handwritten notes and an allegation of wholesale fabrication.
71. This is, in my opinion, the fallacy of what Mr King, who has argued the matter most ably on behalf of the claimant, has put in paragraph 14 of his skeleton, when he says that, absent the attendance note, the claimant's case was perfectly credible, albeit that in due course it may have been contradicted by evidence called on behalf of the defendants. Quite apart from the fact that there was much other material besides the attendance notes upon which the learned judge could reach the conclusion that the claimant's case was not at all credible, it ignores the fact that the learned judge was, in my opinion, perfectly entitled to take into account the way in which the claimant dealt with the attendance notes, in the respects to which I have already referred, in rejecting the evidence of the claimant.
72. In any event, even if the learned judge erred in the emphasis he placed on the contents of the attendance note of 3rd October, it is plain from the content of the claimant's own evidence, both on negligence and on causation, that the learned judge was entitled to find that his case was bound to fail on both aspects.
73. I would dismiss this appeal.
74. LORD JUSTICE LATHAM: I agree. I only wish to add a few words in relation to Mr King's submission that the judge should not have been seduced by Mr Cory-Wright into considering an application (as it was described) that there was no case to answer at the end of the claimant's case but before hearing any evidence from the defendants.
75. As Mance LJ has said in the case of Boyce, to which my Lord has already referred, it will only be in a rare case that the judge should be asked to determine the issues before him before all the evidence has been completed. However, it seems to me that, if a judge concludes at the end of a claimant's evidence, whether on the application of the defendant or of his own motion, that the claimant has no real prospect of success or, in other words, is bound to fail, on his assessment of the evidence before him at that stage, he is in my view entitled to give judgment for the defendant, in the same way as if there had been an application at an earlier stage in the proceedings for summary judgment under CPR Part 24.2. In that way he will be giving effect, in the circumstances of a trial, to the overriding objective and in particular to the need to contain within limits the expenditure of time and costs on the particular case before him.
76. As I have said, I agree with my Lord in the conclusions that he has reached on the substance of this appeal. Accordingly, I too would dismiss this appeal.
Order: appeal dismissed with costs, those costs to be the subject of detailed assessment.