Mortgagee claiming damages for negligent over valuation – Defendant alleging contributory negligence – Defendant lodging trial bundles with court but failing to appear at trial – Whether issue of contributory negligence triable – Whether defendant’s trial bundles capable of affording evidence
In March 1991 the first defendant, a company offering valuation services, was engaged by the plaintiff to value a public house in Portsmouth for the purpose of an intended loan to a married couple who were running the pub and wished to buy it. On the basis of the defendant’s vacant possession valuation of £185,000 the bank advanced the sum of £140,000 to the couple on the security of a first legal charge. Following a default by the borrowers the bank took possession of the property, which it sold in April 1993. The sale yielded net proceeds of £92,807. In proceedings issued by the bank for negligence, the defendant filed a defence claiming that, if (which was denied) it had been negligent, damages should be reduced so as to take account of the contributory negligence of the bank in failing, so it was alleged, to take adequate steps to ascertain the true purpose of the loan and the ability of the borrowers to meet their obligations. Both parties lodged substantial files (trial bundles) with the court containing documents which they intended to rely on; however, 10 days before the trial, which had been fixed for March 30 1998, the defendant went into liquidation and the liquidator decided that the defendant would not be represented at the trial. After finding that the bank had established an actionable loss of £95,000, the judge went on to determine whether he should rule upon the allegations of contributory negligence and, if so, what evidence should be taken to be before the court.
Held A ruling had to be made, but only upon the evidence tendered by the bank.
1. There was no reason why a defendant who did not appear at the trial should be treated as if his pleaded defences (save possibly a limitation defence) had been abandoned or struck out. Nor would the cause of justice be served by compelling a party, who was content to let the issue be decided on the other parties’ evidence, to arrange for legal representation or (if an individual) to appear in person. The bank could not rely on Fookes v Slaytor [1978] 1 WLR 1293 because in that case there was no issue of contributory negligence on the pleadings.
2. However the bank was correct in contending that the court could not consider the documents contained in the defendant’s trial bundles. The modern practice of ordering bundles to be lodged did not of itself alter the rule that it was for the parties to decide at trial what evidence to adduce. Accordingly, the court was limited in the present case to such evidence as the bank had tendered on the contributory negligence issue, and there was nothing in that evidence to substantiate the claim made by the defendant.
John Wardell (instructed by Dibb Lupton Alsop) appeared for the plaintiff; the defendants did not appear and were not represented.
