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Case No: A2/1999/0606
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
BRISTOL MERCANTILE COURT
(His Honour Judge Jack QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 20 October 2000
B e f o r e :
LORD JUSTICE KENNEDY
LORD JUSTICE WALLER
and
LORD JUSTICE JONATHAN PARKER
- - - - - - - - - - - - - - - - - - - - -
|
UYB
Ltd
|
Appellant/
Applicant
|
|
-
and -
|
|
|
British Railways Board
|
Respondent
|
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2HD
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
K Lewison Esq QC, Mr Gary Cowen (instructed by Eversheds) appeared for
the Applicant
J Gaunt Esq QC, Mr Jonathan Small (instructed by Kennedys) appeared for
the Respondent
- - - - - - - - - - - - - - - - - - - - -
JUDGMENT
As Approved by the Court
Crown Coyright
LORD JUSTICE WALLER:
Introduction.
1. This is an appeal with permission of the trial judge from two judgments of
His Honour Judge Jack QC in the Bristol Mercantile Court.
2. There are two issues raised in the appeal:
(i) Did the judge correctly apply the principles on which he awarded the
plaintiff company (UYB) £365,789 by way of damages (the subject of his
judgment delivered on 16 April 1999)?
(ii) Did he correctly exercise his discretion about interest when he excluded
from the interest calculation the period from service of the writ on 15
December 1995 to the service of an expert's report on 8 December 1999 (the
subject of his judgment delivered on 30 April 1999)?
The Facts
3. There is no challenge to the judge's findings of fact in the first judgment.
That being so, it is possible to state the background to the claim quite
shortly and I am indebted in large measure to the skeleton argument for the
appellant for the following summary.
4. UYB is a company of which Mr Nino Jones and Mr Darryll Kent-Morris were the
directors at the relevant time. It was formed for the purpose of opening and
running a leisure business. The premises in which the business was to be
carried on were two railway arches at Bristol Temple Meads station. In order
for the business to be carried on there it was necessary for UYB to obtain
planning permission and a liquor licence (including a special hours
certificate).
5. An application for planning permission was made on 2 February 1992. The
description of the development was use as "cafe wine bar discotheque". The
application was supported by the defendants (BRB) especially the wine bar.
Planning permission was granted on 6 March 1992.
6. An application for a liquor licence and a special hours certificate was made
in March 1992. A provisional licence was granted on 25 May 1992. For the
purpose of obtaining a licence, and in case they were required by the justices,
profit projections were prepared.
7. Negotiations for a tenancy agreement as between UYB and BRB progressed
during May and June 1992. On 2 July 1992 BRB wrote stating that they would
grant UYB a 25 year licence. A three year tenancy was in fact completed on 24
July 1992.
8. It was necessary for UYB to fit out the arches. The arches were originally
dry. But during the course of the fitting out work, BRB arranged for work to
be carried out to the roadway above the arches. In the course of that work
alterations were made which (for reasons which remain obscure) caused water to
penetrate the arches in considerable quantities. Complaints were made to UYB
to BRB during the summer of 1992. At the end of August 1992 there was a fire
in one of the arches, probably caused by water getting into the electrics. The
judge found that but for the problem of water penetration, the club would have
opened on 1 October 1992.
9. As a result of the water penetration the arches became unusable, and the
fitting out had to be halted. BRB gave up the search for a solution to the
problem in November 1993. The judge found that by 11 November 1993 there were
no prospects of the night-club project going ahead. He rejected the evidence
of Mr Jones and Mr Kent-Morris that they continued to think that the club might
still open.
10. The way the judge expressed his findings of fact at this stage are not
unimportant. At page 27 he posed the question as to what steps were taken as
from November 1993 and said as follows:-
"I accept that Mr Jones and Mr Kent-Morris looked at other property within
Temple Meads, which was not suitable. It is unclear when this was. I think
that otherwise they made little sustained effort to find other premises. No
documentary evidence was produced. I think that they felt that the arches
offered them a particular opportunity, which they were unlikely to match
elsewhere. It is clear from Mr Kent-Morris's clothing venture that he had
given up any close involvement with the night-club scheme. I think that they
both lost interest in the idea and were content to pursue the claim for
compensation. In 1993 and 1994 Mr Jones and initially also Mr Kent-Morris
concentrated on Superstaff. In the year to 30 April 1994 Superstaff more than
doubled its profits to £272,842 and in the year to 30 April 1995 it
achieved £221,531. In late 1993 Mr Kent-Morris went his own way with the
clothing business."
11. What however the judge also concluded in relation to UYB's obligation to
mitigate its loss was:-
"I conclude that if Mr Jones and Mr Kent-Morris had been as energetic as they
were at the start of the scheme when they found the arches, they would have
found somewhere within a period of between 18 months and 2 years. This is not
a precise finding: but a more precise finding on the scant evidence which I
have is unrealistic."
The proceedings
12. UYB issued a specially indorsed writ in August 1995. It claimed damages
both in contract and in tort for the failure of BRB to supply the premises in
accordance with their obligation under the lease. The writ alleged that UYB
had suffered loss and damage and the particulars given were:-
"The plaintiff has been prevented from opening the property as a wine bar, cafe
or discotheque and has suffered loss of profits from August 1992 to date. The
plaintiff estimates that its profits would have been not less than £62,500
per annum."
13. As far as the pleadings and open correspondence was concerned the position
was as follows. A defence was served on 23 February 1996. It denied liability
and relied on an exemption clause in the lease. So far as quantum was
concerned it put UYB to proof of the profits lost.
14. On 12 March 1997 UYB applied for the determination of a preliminary issue
whether BRB was entitled to avoid liability by reliance on the exemption
clause. On 6 May 1997 it was ordered by consent that BRB was not entitled to
avoid liability by virtue of that clause.
15. Following repeated applications by UYB for discovery, on 14 May 1998 BRB
submitted to judgment on liability with damages to be assessed. In June 1998
UYB applied for permission to amend their statement of claim and permission was
granted on 9 July 1998. By the amendment UYB asserted that they had an
expectation of a tenancy for 25 years and asserted "by reason of the
defendants' breaches the plaintiff has lost the right alternatively the
expectation of being able to continue in possession of trade in the property
for 25 years and is entitled to be compensated accordingly."
16. On 8 December 1998 UYB served experts' reports from their surveyor and
accountant. The claim now advanced was
loss of net profits to end 98: £4,838.339;
loss of profits for residue of 25 year lease:
£734,009 x 10: £7,340,090
total £12,178,429.
17. BRB, having at one stage by an amendment dated 7 August 1998, sought to
suggest that UYB had failed to mitigate its loss by unreasonably failing to
open the club in the arches or by unreasonably failing to take measures to
alleviate the water penetration, by a further amendment dated 17 February 1999
asserted that (a) from November 1993 UYB unreasonably failed to seek other
premises from which to operate the proposed business; and (b) consequently UYB
was not entitled to the alleged loss from expiry of a reasonable time in which
to find alternative premises.
18. At the trial BRB disputed UYB's method of assessing damages and submitted,
as one alternative, that the proper measure was (1) losses suffered from
opening until abandonment of the venture; plus (2) the value of the business as
a going concern as of that date less (3) the cost of setting up the business
which had not in fact been incurred. It was apparently in response to that way
of putting the case that UYB pleaded further alternative cases one of which was
that if they were not entitled to lost profits they were entitled to loss and
damage calculated by reference to the capital value of the asset lost namely
the proposed 25 year lease of the premises for the benefit of the licenses
granted to UYB. They alleged that the capital value of the lease alone was
£250,000 or £1.2m for the business as a going concern. In the
alternative they claimed wasted expenditure.
The judge's judgment relating to the assessment of damages
19. The judge found that the venture would have been profitable. He did not
however accept the evidence called by UYB on the extent of the profits. Indeed
he was highly critical of much of that evidence. His key findings were first
that contrary to UYB's case that the night-club would have been ready from
August 1992 it would not in fact have been ready to open before 1 October 1992
even in the absence of the water problem which had occurred. He found that
following the meeting on 11 November 1993 "it was wholly clear that the club
and cafe venture was never going to proceed." As already indicated he found
that if Mr Jones and Mr Kent-Morris had attempted to mitigate their loss they
would have found somewhere within a period of between 18 months and 2 years
from 11 November 1993. He accepted the submission on behalf of BRB based on
Owners of the Dredger Liesbosch v Owners of the Steamship Edison [1933] AC 449 that the appropriate basis for quantifying UYB's loss was as follows:-
(1) by an assessment of the profits lost between the date the premises would
have opened in 1992 had there been no water problem (ie October 1992) and 11
November 1993;
(2) by an assessment of the value of the hypothetical business in November
1993; and
(3) by the deduction from (2) of such loss as should have been avoided by
steps taken in mitigation.
20. The judge then carried out his own calculations and came to the conclusion
that the profits in a full year's trading would have been £198,848 but
that for the first year's trading profits they would have been lower and he
assessed them at £168,000. He held that an appropriate multiple of
profits should be applied in assessing the capital value of the lost business
and that that should be 1.65. In the result he awarded (a) £168,000 for
the period October 1992 to October 1993; (b) £23,000 for the six weeks
between 1 October and 11 November 1993 and (c) £328,350 for the value of
the business as at November 1993 being £199,000 x 1.65, total
£519,350 from which he deducted the investment saved and interest saved
reaching a net loss of £365,789.
Method of assessment of compensation
21. The Judge deals with the authorities from which he obtained the principles
that he was to apply from pages 19 to 26 of his judgement. He recognised the
overriding principle in the following words:-
"The general principle underlying the award of compensatory damages has often
been cited from the speech of Lord Blackburn in Livingstone v Rawyards Coal
Co. (1880) 5 App. Cas. 25 at 39: the measure is -
`that sum of money which will put the party who has been injured, or who has
suffered, in the same position as he would have been in if he had not sustained
the wrong for which he is now getting his compensation or reparation"
22. As already indicated the main competing arguments before him were on behalf
of UYB that he should award damages by assessing the loss of profits which it
was being suggested would have been lost over 25 years, and on behalf of BRB
that since where a profit earning chattel was destroyed, the measure of damage,
at least prima facie, is the value of the chattel taking account of its
profit-earning ability, that principle should be applied to a situation in
which it could be said that the leases and business had been destroyed as at
11th November 1993. The Liesbosch was relied on in this
regard.
23. It was recognised that in order to comply with the general overriding
principle there might have to be some compensation assessed by reference to
loss of profits for the period it would take to replace the profit-earning
chattel, and it was suggested that the same principle should be adapted to the
destruction of a business case. It was further argued by BRB that UYB were
bound to take steps to mitigate their loss, and that the judge should find that
other premises could have been found for the venture within a reasonable time
scale from 11th November 1993.
24. But before the judge it would seem that UYB did not argue that if the judge
chose as the appropriate measure of compensation the value of the business as
at the date of destruction ie 11th November 1993, he should in
addition award loss of profits for whatever period he chose as the period by
the end of which UYB should reasonably have found another place to start the
business destroyed.
25. In the Court of Appeal UYB did not challenge any of the findings of fact of
the judge, but they sought to argue on the following lines. Through Mr Kim
Lewison QC, they submitted that on the judge's findings, if (a) loss of profits
between October 1992 and November 1993, and (b) the value of the business as at
11th November 1993 was an appropriate way of assessing UYB's loss,
and if the judge was right in saying that UYB should reasonably have found
other premises from which to start their business within 18 months to two
years, UYB were also entitled to receive an award assessed by reference to the
loss of profits over the period of 2 years or 18 months, that being the period
during which UYB would be without the business.
26. The difficulty with that argument is that if UYB had found other premises
at the end of the 2 year or 18 month period, damages would have been assessed
not by reference to the value of the business, but on the basis of the
loss of profits over the period during which UYB had been delayed in starting
their business. If there had been a delay in starting the business, but it had
been started, either UYB would still have the business and it would not have
been destroyed, or they would have sold the business and received its value,
and all that they would be entitled to be compensated for would be the period
of delay in the start up ie profits for that period. So on this basis the
assessment would have been no different from that used for the period October
1992 to November 1993, save that it would certainly be arguable that no
deduction should be made for start-up costs which would be incurred at the new
premises in any event. But even with that adjustment the award would be in
broad terms for two and a half or three years loss of profits, and not
significantly different from the judge's award which was for one year (plus six
weeks) October 1992 to November 1993 plus 1.65 years of profits.
27. This indeed was well recognised by the judge at page 24 of his judgement
when he said :
"The problem in the present case comes if it is assumed that in November 1993
not that the club opened but it became clear that the premises were irreparably
unsuitable and that the venture had to be abandoned. At that point UYB came
under a duty to mitigate its on-going loss by seeking alternative premises or
possibly an alternative venture in which to employ its resources. If this had
been done successfully and a club opened at another venue with the same
prospects in a year's time, the court would have to assess the company's loss
of earnings until then. But the second venue might not be as advantageous as
the arches, so that there was a continuing loss after the new club opened. The
problem would then be the same as would exist if the court held that no
opportunity to mitigate the on-going loss arose".
28. Once it was put to Mr Lewison that in one sense what he was seeking was
damages for the delay in being able to commence UYB'S business, and that the
calculation of such a loss would produce two and a half or three years loss of
profits and not as his argument produced two years on top of 2.65 years, he
recognised the force of the point and was inclined to limit his argument to
obtaining the deduction which the judge had made for start-up costs in relation
to the first year's profits.
29. What in my view this case demonstrates is that in relation to the
assessment of damages each case depends on its own circumstances, and it is the
overriding principle quoted above which is important. It is thus of
significance that the judge's finding in relation to mitigation was simply that
if UYB, or more accurately Mr Jones and Mr Kent-Morris, had tried to
find other premises in which to carry forward the venture which they had hoped
to pursue on BRB's premises, they would have been able to do so within a period
of 18 months to two years. But it was his further finding that they did not
try to do so, and that indeed they took up their interests in other business
ventures which were profitable.
30. It was accordingly his view that it was not right to assume that having
commenced the venture, they would proceed with it rather than dispose of the
business. Furthermore, although the judge does not find that if the night-club
venture had been commenced it would have been impossible for Mr Kent-Morris and
Mr Jones to pursue other interests, he said this at page 25:
"There is also here a further and very real uncertainty as to the two
shareholders. UYB was and is very much the alter ego of Mr Jones and Mr
Kent-Morris. In late 1993 Mr Kent-Morris began his clothing business. In 1994
he sold his share in Superstaff to Mr Jones. Would the business at the arches
have continued in UYB's hands or would it have been sold? Mr Kent-Morris had
intended at least initially to put in considerable hours and that it was
intended that one or other would always be present. There is an unreality
about the business remaining in UYB's hands and earning substantial profits
over a substantial period."
31. To reflect his findings the judge formed the view that if UYB received the
value of the business which, on his findings, they would have built up as at
the date it became clear that it could no longer be pursued, UYB would be
properly compensated. He was of the view that the circumstances of the
particular case were and are such that awarding the value that the business
would have had provided a fair measure of the loss suffered.
32. The date he chose for his evaluation was the date when it should have been
clear that all expectations for starting the venture at BRB's premises were
dashed. But that date would also appear to coincide closely with the date when
the persons who were UYB both went off into other ventures which were
themselves profitable.
33. It seems to me that the judge was entitled to choose the method of
assessment that he did. The logic of his assessment was to say 11th
November 1993 was the date when the expectations were destroyed, and when as a
fact Mr Kent-Morris and Mr Jones, instead of attempting to fulfil the same
expectations at different premises, decided to pursue other ones more
vigorously than they otherwise could have done. To give UYB the value of those
expectations as at that date together with those profits which they would have
achieved by that date achieves as it seems to me, adequate and proper
compensation. That it does so can in my view be tested in the following ways:
1. First if instead of choosing as the date the moment when the expectations
were finally dashed, he had chosen the date when he could have expected UYB to
dispose of the business, he would have had to wrestle with the possibility that
Mr Kent-Morris and Mr Jones might not have started or pursued with the same
vigour their other businesses at the end of 1993, and would have proceeded with
the venture at BRB for a further period. It was not easy to assess what that
date would be. But also to award the value at some later date would allow the
profits earned in the other businesses (which on this basis would not in fact
have been earned possibly at all but certainly to the same degree) to be
retained, as well as the value of the business at the later date unless of
course some adjustment was carried out. Such calculation and adjustment does
not seem to me to be likely to reach any higher figure than that awarded by the
judge.
2. If the assessment is calculated on the basis that the failure of BRB to
supply the premises simply delayed the start-up of the venture, then on UYB's
best case that calculation would produce a little over two years and six
months, plus two years of profits without deduction for start-up costs as
already indicated. But that would be on the basis that it must be assumed that
UYB would have commenced the venture in November 1995. That however is not
what they did. Mr Kent-Morris and Mr Jones in fact pursued other ventures
during 1993 and 1994, and made profits in those ventures which they would not
have made if they had been pursuing the night-club venture. Their pursuit of
the other ventures would seem on the judges' findings, even though he does not
quite put it this way, to have been a step that was taken to mitigate the loss.
In certain passages of his judgment he suggested (in my view rightly) that UYB
were bound to take such steps if they did not pursue the night-club
venture. At page 24 he said "At that point UYB came under a duty to mitigate
its on-going loss by seeking alternative premises or possibly an alternative
venture in which to employ its resources". At page 28 he said "If it had
not been possible to find alternative premises from which to operate a
night-club, I do not think that UYB would have been entitled to do nothing
while watching its claim rise. There was a duty to find an alternative outlet
for its human and financial resources". On one view the new business ventures
gave the opportunity to start creating something with a capital value and BRB's
conduct had simply delayed the moment when that process could be started. On
that basis it could be said that all UYB were entitled to was that which
compensated them for the delay in commencing to make profits in some business
venture or another ie for the period October 1992 to the end of 1993 or the
beginning of 1994 when Mr Kent-Morris and Mr Jones put their efforts into the
other business ventures. I appreciate that I am not drawing a distinction
between UYB and the two individuals behind UYB, but the reality was that it was
the two individuals who were the profit earners and the new businesses could
just as easily have been carried on through UYB as by the two individuals
through different companies. On this basis the sum awarded would be much less
than the judge awarded.
34. I should not in anyway be understood to be saying that the above "cross
checks" are methods of calculation which the Judge should have used. It simply
seems to me that they demonstrate that the method he did use did fairly
compensate UYB for the destruction of their expectations in November 1993, and
that there is no legitimate basis on which UYB can complain as to the quantum
of damages awarded by the Judge.
35. I would dismiss this aspect of the appeal.
Interest
36. The only point pursued by Mr Lewison on the appeal was that the judge was
wrong to rule that albeit interest should run from 11th November
1993, there should be deducted from the interest calculation the period from
service of the writ on 15 December 1995 to 8th December 1998 the
date of service of Mr Pomeroy's report (the report which quantified the
claimant's claim for the first time at over £12 million).
37. Mr Lewison recognised that in assessing the period of interest the judge
was exercising a discretion, and that he would have to demonstrate that the
judge had misdirected himself or that his conclusion was "outside the generous
ambit within which a reasonable disagreement is possible" see the House of
Lords decision in G v G [1985] 1 WLR 647 at 651H.
38. The judge's reasons for disallowing the period of interest can be
summarised as follows:-
1. The original pleaded claim was for loss of profits at the rate of
£62,500 per annum which on the approach he had taken to damages would have
lead to an award of only £15,000. The respondents had paid into court
£40,000 on 19th March 1996, a further £65,463.22 on 7th
August 1998, and £19,536.78 on 19th February 1999 total
£125,000;
2. The "true" claim did not emerge until December 1998 (on delivery of the
Pomeroy report);
3. It is essential that a defendant knows the "value" or "magnitude" of the
claim he is facing at the earliest moment;
4. It seemed probable that Mr Pomeroy was only provided with the figures on
which to make his calculations in the latter part of 1998, and there was no
reason why Mr Jones and Mr Kent-Morris should not have done the calculations
which they eventually made in 1998, in 1995 or earlier.
39. Mr Lewison really concentrated his attack on one aspect. Mr Lewison
submitted that the judge misdirected himself by refusing to look at and have
regard to an initial advice from UYB's accountants disclosed on 25th
October 1996 "on an entirely without prejudice basis". No objection was taken
by Mr Gaunt for BRB to us looking at that draft, and indeed it is summarised in
BRB's skeleton at paragraph 2.4 in the following way:-
"It stated that the Claimants' loss "can be arrived at in two ways":
value of the proposed business if sold as a going concern after a short period
of trading;
loss of the on-going profits in the proposed business.
It expressed the view that on the first basis and assuming a 25 year lease,
David Morgan's valuation of £6000,000 was reasonable; on the second basis,
it spoke to a figure of £1.958m., calculated by multiplying an estimated
net operating profit ("NOP") of £112,500 by 17.41, being the 25 year term
discounted at a rate of 3%".
40. It seems that during the trial Mr Gaunt made a not very strenuous attempt
to put the draft report to Mr Morgan in order to demonstrate the change that
had taken place between the draft and the report of Mr Pomeroy and a claim to
privilege was made. That claim, so we were told, was a claim to legal
professional privilege, but in any event the document did not go into evidence.
41. Before us Mr Lewison argued that it should have been permissible for UYB to
refer to that draft report despite its without prejudice nature, (waiving
presumably the legal professional privilege previously claimed), once BRB were
asserting that BRB did not know the size of UYB'S claim until 1998. It was
submitted the judge had misdirected himself in not looking at the same.
42. Mr Gaunt's response was to argue that the document was a draft and
delivered on an entirely without prejudice basis and should not have been
referred to. He submitted that the draft figures were so different from what
was ultimately disclosed in the Pomeroy report that production of the draft did
not demonstrate that BRB knew of the "magnitude" of UYB's claim in 1996.
Furthermore he submitted that in any event looking at it should and would not
have made any difference to the way the judge exercised his discretion because
the 1998 Pomeroy figures were so different. He also pointed out that when the
judge came to deal with costs and the question whether some of the pre-trial
costs of UYB should be disallowed, he did not disallow the same because as the
judge said "I have taken account of that in the award of interest and that is
sufficient". So, he submitted, this was an exercise of discretion in the
round.
43. I do not think that the question whether the "without prejudice" draft
report should be admitted at the stage when interest was being considered is
easy to answer or as easy to answer as Mr Lewison would suggest. No
authorities were cited to us and my researches, aided by Rachel Chapman, a
Judicial Assistant, can find no case absolutely in point. The well known
authority on "without prejudice" documents Rush v Tompkins v
GLC [1989] AC 1280 HL discusses the principles lying behind the
without prejudice rule, and stresses the importance of the rule being observed
so as to enable parties to discuss matters freely in settlement negotiations.
The House of Lords there approved Cutts v Head [1984] CH 290
which recognised that unless a without prejudice letter was marked "without
prejudice save as to costs" it was not admissible on the costs hearing
after the trial. Of course there are exceptions to the admissibility of
matters covered by the without prejudice umbrella eg where improper threats are
made in such negotiations. But in Forster v Friedland [1992] CA
Transcript 1052 Hoffmann LJ said:-
"There are clear cases of improper threats, but the value of the without
prejudice rule would be seriously impaired if its protection could be removed
[for] anything less than unambiguous impropriety."
44. Mr Lewison submitted, however, that in a situation where BRB are asserting
that they did not know the size of the claim, when in without prejudice
negotiations they had been told of the size, the public policy which supports
the inadmissibility of such negotiations should give way to the public policy
of one party not being able in effect to assert a fact that is not true. That
at first sight may seem a powerful argument but the difficulty is that it may
often be possible to dress up an argument that something said in without
prejudice negotiations could demonstrate that what is being said at a trial is
untrue, and thus caution must be exercised. In any event BRB were not being
told the "size of the claim" that was ultimately to be made. The draft was a
draft, and the figures were quite different from that which ultimately was
disclosed by the Pomeroy report. The magnitude of the claim being made at the
trial was not known until 1998, and the maximum that could be said was that in
some without prejudice negotiations a much higher figure was being claimed than
the original statement of claim disclosed.
45. I am thus not in fact persuaded that the judge was wrong not to have regard
to the without prejudice report. But, in any event, even with knowledge of
that report the criticism made by the judge was still fully justified - the
calculations produced as he surmised in 1998 could have been produced in 1995
or earlier. That report demonstrated that they had not been produced by
October 1996 even though they should have been. I do not myself think that the
production of that without prejudice report would have affected the view of the
judge.
46. The fact is that the judge after a lengthy trial awarded what on one view
would seem substantial damages to UYB, but had formed a very poor view of the
way in which UYB had come to make a vastly inflated claim at a very late stage,
and indeed had attempted to support that claim in evidence which he rejected.
He was in my view entitled to exercise his discretion in the way he did. In a
careful judgment which covered interest and costs his reasoning cannot in my
view be criticised. I would dismiss the appeal on this aspect also.
Lord Justice Jonathan Parker:
47. I agree.
Lord Justice Kennedy:
48. I also agree.
Order: Appeal dismissed with costs.
(Order does not form part of approved judgment.)
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