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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Pennington v De Wan [2017] EWHC 4 (Ch) (05 January 2017) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2017/4.html Cite as: [2017] EWHC 4 (Ch)

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IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		5 January 2017

Master Matthews:

Introduction

1. This is my judgment on the trial of the assessment of damages in a claim brought by the claimant against the defendant in respect of various matters. The claim was begun by claim form issued on 30 March 2016. The matters concerned were (i) loans totalling some £82,266.33, (ii) a Rolex watch said to have been bought by the claimant and loaned by her to the defendant but not returned, and (iii) damage sustained to an Aston Martin DB9 motor car bought by the claimant but used by the defendant.
2. On 27 May 2016 the court entered judgment for the claimant in default of acknowledgment of service, in the sum of £97,608.57. On the application of the defendant to set aside the judgment, and after hearing the parties, on 22 July 2016 I varied the default judgment. In respect of the loans, judgment was entered for the claimant in the sum of £73,366.33. In respect of the watch claim, the judgment was set aside. The watch claim has since been abandoned. In respect of the car claim, judgment was entered for the claimant on liability with damages to be assessed. On 7 October 2016 I heard the parties on the assessment of damages on the car claim. On that occasion Mr Adrian Carr of counsel appeared for the claimant. The defendant appeared in person. This judgment is concerned only with that assessment of damages. I am sorry for the delay in handing it down.

The evidence

3. The evidence in this case was both written and oral. The claimant made an affidavit dated 29 March 2016 in support of an application for a freezing order against the defendant. (On 11 April 2016 Arnold J accepted an undertaking from the defendant in lieu of granting an order on the application.) On 11 June 2016 the defendant made a witness statement in support of his application to set aside the default judgment. Further witness statements were made by Ryan Jordan, Kaveh Mobasheri, and James Wilkinson (all dated 15 July 2016), and Andrew Fell (dated 19 July 2016), but none of them relates to the car claim. The defendant made a second witness statement dated 26 August 2016. The claimant's solicitor, Jonathan Hodge, made three witness statements, of which only the last, dated 5 September 2016 (dealing with the insurance of the car) is relevant. The claimant made a second witness statement of 5 September, responding to that of the defendant of 26 August 2016.
4. As to oral evidence, the claimant, the defendant and Mr Hodge were all tendered for cross-examination. The defendant (acting in person) asked no questions of the claimant or Mr Hodge in cross-examination. Mr Hodge is of course a solicitor and has no personal interest in the mater. His evidence was relatively uncontroversial and I have no hesitation in accepting it as the truth. The claimant is in a different position, because she has a strong personal interest in the matter. This is both because of the money claim and also because of the former intimate relationship between the parties. It is clear that she feels strongly that she has wasted both her time and (as she would say) her money on the defendant. That does not disentitle her to her rights, of course. But the absence of any cross-examination made it impossible for her evidence to be properly tested. I therefore accept her evidence with a degree of caution appropriate to the circumstances.
5. The position of the defendant is different. He was cross-examined at some length by Mr Carr on behalf of the claimant. He came across as a generally pleasant but, I am afraid, shallow and indeed rather pathetic individual. He tried hard to put a positive spin on everything, however negative it might otherwise appear to an objective observer. Partly as a result, his evidence was vague and often unclear. Sometimes it was simply untrue, as when he said in his witness statement that the parties agreed not to make an insurance claim to protect the claimant's no-claims bonus, when in fact it was clearly his decision in order to protect his own insurance position.
6. His written evidence was no better. Indeed, it was clearly incomplete. For example, he had failed to mention at all in his witness statement that during the course of the relationship with the claimant he had been banned from driving for a year after a drink-driving conviction (the offence having been committed in this car). Moreover, his standards of morality were variable. For example, he accepted in cross-examination that he had attempted to charge the claimant £1200 for new wheels for the car which in fact cost him £411. Sometimes in giving oral evidence he claimed not to remember matters of some importance even in the face of documentary evidence (eg whether he received speeding fines, despite the notice of intended prosecution for speeding put to him), whilst at others he remembered slight and irrelevant details with no prompting. At times indeed he seemed to be living in a fantasy world, in which he was always right, but was disturbed to find that reality kept butting in.
7. This does not mean however that I should disbelieve the whole of his evidence. Just because a person lives a fantasy does not mean that everything he says is untrue. Some of what he said (for example that the parties "argued a hell of a lot") had the ring of truth. Other evidence he gave was supported by independent evidence and can also be accepted. But where the only direct evidence is that of the parties, and it is in irreconcilable conflict, I prefer that of the claimant.

Facts found

8. In these circumstances I find the following facts. The claimant describes herself as a single mother, who in 2009 was "relatively recently divorced". She was "financially comfortable with healthy savings". The defendant is an estate agent, formerly in business on his own account, but now employed by another. When the claimant met him in 2009 in his own estate agency, in order to rent a flat in the area, he was "smartly dressed in expensive clothes and drove a Porsche sports car". She "therefore believed he was in a similar financial position to me". Unfortunately this turned out not to be correct.
9. From May 2009 the parties were in an intimate relationship, which broke up acrimoniously in February 2016. During the relationship the claimant, in retrospect perhaps naively, helped to fund the defendant's business and lifestyle in a number of ways, including the provision of the motor car with which I am now concerned. Once the relationship broke down, the claimant began these proceedings. The car claim arises as follows.
10. On 28 February 2014 the claimant bought and paid for the Aston Martin car the subject of the claim, the purchase price being £42,000. The evidence (which I accept) was that the car was in excellent condition at that time. The defendant accepted that he did not contribute to the purchase price as he "did not have any money". Now an Aston Martin DB9 is plainly not an ordinary, let alone a sensible, family car. This is a Grand Tourer, a "trophy" motor car, a symbol of the success to which no doubt the defendant aspired. The claimant says the defendant selected it and pressured her into buying it. The defendant says he did not pressure her and that it was a joint decision. Having seen both the defendant and the claimant in the witness box, I have no doubt that the claimant is right, and I reject the defendant's account.
11. Once it was bought, the car was insured in the name of the defendant, though the claimant (as the defendant admitted) paid the premiums. As is clear from the evidence of Mr Hodge, the insurer did not even know of the claimant's existence. The claimant permitted the defendant to drive the car regularly. There was no evidence that the claimant herself ever drove it. The claimant denied that she did, and the defendant said, weakly, only that "she may have driven it once". He certainly accepted in oral evidence that he drove it "most of the time", although he asserts that he did not drive it to work, as he took the tube. The defendant admitted registering himself as the keeper at DVLA. On this material I find that only the defendant drove the car.
12. When the relationship between the parties broke down, the car was still in the custody of the defendant. The claimant says she requested the defendant to return it to her, but he was reluctant to do so, and proposed buying it from her over a period of time. She did not believe however that he would ever pay anything. The defendant says she made no demand of him to return it. Indeed, he said that he tried to return the car "several times," but she would not accept it. Again, I believe the claimant on all these points, and disbelieve the defendant.
13. On 11 February 2016, prior to going abroad on a skiing holiday (without the claimant), the defendant left the car in the street near his home in Muswell Hill, telling the claimant by text that he had done so, and also that the insurance stopped that day. (He said he left the car near his own home because there were parking restrictions near the claimant's home in Richmond. Frankly, this was a feeble excuse, even if the defendant had persuaded himself it was true. And in my judgment it was not true. For example, he admitted receiving parking tickets for leaving the car near the claimant's flat before.) The claimant arranged for the car to be collected and taken to a garage. Upon inspection by the garage, the car was found to be damaged. On 8 July 2016 the claimant sold the car for £31,500.

The claimant's claim

14. The claimant says that the defendant was a gratuitous bailee of the car, and is liable for negligence, misuse and failure to exercise reasonable skill in using it. But he is not liable for reasonable wear and tear. In the light of all the facts found, I accept that the car was bailed to the defendant, and gratuitously. The defendant, albeit a layman, clearly understood that he had to drive the car responsibly and take reasonable care of it whilst in his charge.
15. The car was damaged in a number of ways while it was in the defendant's custody. First, the bonnet was dented. The defendant said this happened when the car was parked outside the claimant's flat. Second, the wing was scratched. The defendant said this happened on a trip by both of the parties to Chipping Camden, in the Cotswolds, as a result of a collision with a white van which had parked awkwardly beside them. In each case the claimant and the defendant would both have been in the vicinity. If they had returned to the car after the damage was done by a third party, I am sure they would have noticed. Indeed that was what the defendant said had happened in Chipping Camden. Yet the claimant's unchallenged evidence was that neither of these events occurred. I prefer her evidence to that of the defendant on this. In my judgment the damage occurred at some other time.
16. Given the impact which damage like this would have on the value of a luxury car like this one, one would have expected there to have been a claim on the car insurance, and therefore a documentary trail to follow. Yet it is clear from the evidence of Mr Hodge that the defendant never made a claim on the car insurance (for which the claimant had paid the premiums) in respect of either event. In his statement of 26 August 2016, at [9], he said that the parties agreed not to make a claim as they were concerned that that would affect the claimant's no-claims bonus. But he gave no disclosure in relation to any of this, and it was left to Mr Hodge to make inquiries with the insurers. The defendant's explanation was plainly bogus. Indeed, under cross-examination he admitted that it was false, saying instead that they were not sure when the car would be sold and that they would do the work when that happened. I am afraid I do not believe that, either.
17. There is a further aspect to the question of damage to the car. This relates to the wheels which the defendant had fitted to the car in January 2016. The defendant purchased four wheels on eBay for £411, although (as I say below) the mechanic consulted by the claimant after she had recovered the car told her that they should cost £1000 each. This suggests that they were the wrong wheels for this car.
18. The garage mechanic who collected and then inspected the car told the claimant that it needed £8,000-£10,000 spent on it to return it to a good condition. This included replacing the wheels (at £1,000 each), which he described as of the wrong type and as having caused damage to the car. The defendant denied this in oral evidence, but he is not an expert in the matter, and he adduced no evidence in support of his denial. I find that the wheels were of the wrong type and did damage the car.
19. There is no dispute that in May 2016 the claimant spent £1,995 on repairs to the car. The defendant accepted in oral evidence that this was done to put it in a saleable condition. The claimant then advertised it on Autotrader for a fortnight, but there was no interest from private individuals (who would pay the most), and she eventually sold it to a garage (who could carry out the repairs needed at cost) for £31,500. The defendant criticised the length of time for which it was marketed as too short. He said that you could not sell a car like this to an individual in only two weeks. However, as I have previously observed, the defendant has not demonstrated any expertise in the sale of luxury motor cars, such as to entitle him to give expert evidence of value, and he put forward no evidence from anyone else who did possess it. Accordingly, I cannot exclude the evidence of actual value shown by the sale. In the circumstances, I accept that £31,500 was the value of the car at the date of sale in its actual condition.

The value of the car

20. So far as the value of the car undamaged is concerned, I was shown various comparators. I have to say that the evidence on both sides was unimpressive. The parties put forward only a few examples, about half a dozen in total, none precisely matching this car. The claimant relied on one similar model offered for sale at £41,775. The defendant pointed out that this was newer, had a lower mileage, with an upgraded interior, and was a convertible, for which a higher price would be sought. The example that appeared to be nearest the car in question was priced at £38,995, but it also had a lower mileage than our car. In late December 2015 the defendant offered to buy the car from the claimant at £40,000. This is much more than it was sold for. The claimant suggests that the defendant was thereby accepting that he had caused damage to it and was offering to pay what it should have been worth. It is not necessary for me to place weight on the former point, but the latter certainly has some force, and I take it into account.
21. In my judgment the value of the car without the damage could not be as high as £41,775, for the reasons given by the defendant. The other example which I have mentioned, at £38,995, is also too high, both because of the mileage factor, and also because (as the defendant says in another context) it is an asking price, and not a sale price. Nevertheless, the figure of £34,000 put forward by the defendant is unsupported by the evidence before me, and seems too low. Doing the best I can, and making allowance for the various matters which have been argued, I find that the value of the car undamaged at the date of the sale would have been £38,000.

The law

22. As the gratuitous bailee of the car, the burden lies on the defendant as a matter of law to show that damage happening during the bailment did not occur through his fault: see Chitty on Contracts, 32^nd ed, [33-012]. The defendant has however entirely failed to satisfy me of this. I have disbelieved the explanations he put forward, and there is no other relevant evidence for me to take into account. (Indeed, the failure to make an insurance claim suggests that the defendant believed that any claim would fail because it was his fault.)

Conclusion

23. In my judgment, the defendant is liable for the difference in value between the car as it was and as it should have been at the end of the bailment. That is £6,500. In addition he is liable for the £1,995 which was required to be spent in order to make it saleable. This makes a total of £8,495, plus interest. I ask counsel to draw up the necessary minute of order for my approval, copying it to the defendant for his information.