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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 >> Balal v R S Woolhouse [2002] EWCA Civ 1593 (24 October 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1593.html Cite as: [2002] EWCA Civ 1593

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BRADFORD COUNTY COURT
(HIS HONOUR JUDGE CLIFFE)

		Royal Courts of Justice The Strand London Thursday 24 October 2002

Thursday 24 October 2002

LORD JUSTICE TUCKEY:

1. This is an application for permission to appeal by Dr Kamal Balal from a judgment of His Honour Judge Cliffe given in the Bradford County Court. Following a hearing which lasted a day or so, he gave judgment for the defendant, Mr Woolhouse, for £1,093 and costs which the judge assessed.
2. The dispute was about repairs to the applicant's 1987 Chevrolet van. It was common ground that in October 1997 the van broke down and was towed to the defendant's premises in Barnsley. The defendant holds himself out as a specialist repairer of American cars. It was also common ground that in February 1999 the defendant sent the applicant an invoice for the judgment sum, which the applicant did not pay. As a result the van remained, and as I understand it still remains, with the defendant.
3. Much of what happened between these two dates was hotly contested at the trial. But the parties agreed that in early 1998 it became apparent that the engine would either need to be extensively repaired or renewed. The applicant said that he would supply a new engine himself. He was given particulars of what was required to enable him to do so.
4. An apparently new engine was delivered to the defendant, as the judge found "probably in February 1998". In August 1998 the applicant was told that this engine did not fit, and agreed that the defendant would rebuild and refit the existing engine or a reconditioned engine. The agreed price for this was £1,000, but the defendant said that this took account of an £800 allowance for the engine which had been delivered to him by the applicant. The applicant said that it did not.
5. The defendant then did work on the engine and submitted his invoice to the applicant in February 1999. However, shortly after that was done the van failed its MOT because of excessive carbon monoxide and hydrocarbon levels in its exhaust.
6. The applicant started proceedings in February 2001 -- two years after the date of the invoice. In the meantime he had instructed solicitors who wrote a number of letters to the defendant to which apparently there was no reply.
7. The applicant alleged in his claim that the work had not been carried out to a reasonable standard and within a reasonable time; that it was the defendant's fault that the wrong engine had been supplied; and that by keeping and, as he alleged, using the van the defendant had converted it to his own use.
8. Before trial the court ordered a joint experts' report. It appears that the defendant, who throughout represented himself, did not co-operate with the court's earlier orders, but on 23 January 2002 the court ordered Automotive Consulting Engineers to prepare this report, and on 19 February 2002 directed that the defendant was to allow inspection by Mr Swift of that firm within two days.
9. In the event, Mr Helm of Automotive Consulting Engineers inspected the car the following day. In the joint report which he prepared for the court, his conclusions were as follows:

"1. At this stage there is no conclusive evidence to suggest that the repairs have been completed to a poor standard.

2. The supplied engine reportedly from the USA appears incompatible with the original unit."

He had noted in his report that the engine was not in fact new, but one which had been well reconditioned.

"3. The fuel injection system will require an independent test to confirm its condition, and possible causes of high CO and HC values. Should this indicate that the injection system is serviceable the engine will need to be dismantled for further investigation."

10. At trial the applicant was represented by solicitors and counsel. The judge had to resolve serious conflicts of evidence between the applicant and the defendant. He came down in favour of the defendant, largely because of what the appellant had said about how much and how he had paid for the new engine. He rejected each of the applicant's allegations.
11. The applicant has supported his Notice of Appeal to this court with an 85 paragraph skeleton argument, which I have read and considered carefully. Much of it repeat his case and asserts that the judge should have accepted that case and rejected that of the defendant. I shall confine myself to dealing with his more specific complaints. First, he complains about Mr Helm and his inspection. He says that Mr Helm was not the court-appointed expert; that he was in fact the defendant's expert. He says that the defendant could not have shown Mr Helm the original engine fitted to the car because the number of the engine he inspected did not tally with the engine number shown in the log book. Nor, Mr Balal submits this morning, did the engine that the expert inspected tally with the size and shape of the engine which was originally fitted to the car, which can be seen from the manufacturer's manual. Mr Balal goes on to submit that the expert was also probably misled about the engine which Mr Balal had supplied.
12. The judge rejected these allegations. He said:

"There is no evidence at all to suggest that the defendant has behaved in a devious way to mislead the expert by switching engines, and the Court can only proceed on the basis that the different engines examined by the expert are what they purport to be."

Later in his judgment he said:

"The claimant was unhappy about the contents of Mr Helm's report and his evidence, and subsequently, at a later stage during the trial, he sought to query Mr Helm's qualifications and also raised the question of whether he knew the defendant -- that is, whether Mr Helm was truly independent. There were no grounds for the claimant's suspicions in this regard."

13. Those are the judge's findings. The matter was obviously raised with him fairly and squarely by those representing Mr Balal at the trial. There is no way in which this court can interfere with such findings, based as they must have been upon the impression which the defendant and Mr Helm made on the judge.
14. Mr Balal says this morning that the judge could not have reached that conclusion if he had studied the documents disclosed by the DVLA and the manual to which I have already referred; and that the judge should have further investigated whether Mr Helm was qualified to inspect the work which the defendant had carried out, and also why it was that Mr Swift, the original expert named in the order, did not carry out the inspection as was intended.
15. I have given careful consideration to those submissions, but I am afraid my view of the matter remains that these were matters which were considered by the judge and that there is no way in which this court will be able to put itself into a better position than he was. The judge's conclusions were based upon the advantage which he had of being the trial judge who sees and hears the witnesses. It is not an advantage which this court, which deals with appeals on paper, enjoys. The same goes for the judge's findings about the applicant's credibility. But at the end of the day it does not seem to me that these points get the applicant very far. His pleaded case was that the engine he supplied did not fit because the defendant's employee had given him the wrong information. It was not that, for some inexplicable reason, although he supplied the right engine, the defendant had chosen not to fit it.
16. The next complaint I deal with is that the judge should have found that the defendant's delay between February, when the new engine was delivered, and August 1998 when he told the applicant that it did not fit, was unreasonable. The judge's general conclusion about delay was:

"In all the circumstances, given the difficulties with the repair and replacement of a foreign engine, the work was done within a reasonable time."

17. Whilst one might question this conclusion, I do not think that there are real prospects of this court interfering with it. The defendant obviously ran a small business. The history of the matter shows that the applicant was not in any particular hurry. Further, I doubt that this period of delay led to any loss because, as subsequent events have shown, the applicant would not have got his van back any sooner if he had been told earlier than he was that the engine did not fit.
18. Then it is said that the judge's conclusion that the work had not been properly carried out was wrong; that failure to pass the MOT in February 1999 showed this; and that Mr Helm himself had said that the engine might need to be dismantled for further investigation.
19. I do not agree. The judge accepted Mr Helm's evidence that the work which the defendant had contracted to do appeared to have been done to an acceptable standard.
20. Finally, the applicant says that the judge should not have rejected his claim in conversion. When the MOT test was done in February 1999 the mileage was recorded at 52,492. The applicant had certified it to his insurance company in March 1998 at 51,801. So the van must have been driven, he says, nearly 700 miles whilst in the defendant's possession.
21. The judge did not accept this. He compared the mileage in February 1999 with that found by Mr Helm in February 2002. That was a difference of only 51 miles. In doing so, he obviously rejected the applicant's earlier certificate. A difference of 51 miles could obviously be accounted for.
22. The applicant feels very aggrieved by the way he was treated by the defendant, and by the outcome of the trial of his claim against him. I sympathise with him for that. But at the end of the day I can see no real prospect of this court interfering with the judge's conclusions in this case, and therefore permission to appeal must be refused.