Summary

Lloyd's Names had not proved fraudulent misrepresentation by Lloyd's because they had failed to prove that the relevant individuals at Lloyd's did not believe the representations to be true or that they knew or were reckless as to whether they were true or untrue. There had been no procedural unfairness in the conduct of the trial. * Application for leave to appeal to the House of Lords pending.

Facts

Appeal by certain Lloyd's Names from the judgment of Cresswell J in which he decided the threshold fraud issue, ie whether Lloyd's were liable for making fraudulent misrepresentations adversely to the Names. The Names challenged his decision on its merits and also claimed that they had not received a fair trial, a matter on which they sought permission to appeal. They alleged that, having regard to the inequality of arms between themselves and Lloyd's, they were put under unacceptable pressure; the rate and extent of documentary disclosure was unfair; as was the fact that some of them were redacted; incorrect decisions were made as to the confidentiality of certain information; the judge failed to draw appropriate adverse inferences by reason of Lloyd's failure to call witnesses said to be central to the case; and the treatment of the litigants in person was unfair.

Held

(1) There was, contrary to the judge's finding, a representation in the 1981 brochure produced by Lloyd's that a rigorous system of auditing existed that involved the making of a reasonable estimate of outstanding liabilities, including unknown and unnoted losses. (2) Subsequent brochures contained essentially the same representation although the word "rigorous" no longer appeared. (3) The 1981 brochure also contained a representation that Lloyd's believed that such a system was in place, as did subsequent brochures. (4) The global accounts contained no relevant representations. (5) The representations in (1) and (2) above were, during the relevant period, untrue. (6) The Names had, however, failed to prove that the relevant individuals at Lloyd's did not believe the representations to be true or that they either knew that they were or became untrue or were reckless as to whether they were true or untrue. (7) The issue of whether Lloyd's could be attributed with the knowledge of individuals did not arise. (8) As such the judge was right to determine the threshold fraud issue in favour of Lloyd's and to hold that Lloyd's was not liable to the Names in the tort of deceit. (9) No application for an adjournment had been made at the trial. In the absence of such an application it was difficult to imagine a case in which it would be appropriate for the Court of Appeal to hold that the decision of the trial judge, whilst not wrong within the meaning of CPR 52.11(3)(a), was unjust because of a serious procedural or other irregularity in the proceedings within CPR 52.11(3)(b). In the circumstances here, the Names were not under unacceptable pressure in any of the respects alleged. The judge made sensible case management decisions which the names did not challenge at the time. He acceded to the names' submission that the trial date should be earlier rather than later. The legally-aided Names did not apply for an adjournment and their counsel played an important part in the trial. The judge acted entirely fairly throughout the period both before the trial and during the trial itself. (10) Both at the trial and on appeal counsel had been able to identify the documents of importance and to dwell upon them appropriately. No application was made for an adjournment to deal with such a problem. No case had been made out that the judge should have ordered redacted parts of particular documents to be disclosed and the Names had not been prejudiced by the decisions on confidential information. (11) The judge dealt with the fact that certain witnesses were not called entirely fairly by indicating that he would draw whatever inferences he thought appropriate from Lloyd's failure to call the witnesses concerned. (12) No criticism could be made of the treatment of litigants in person. (13) There was nothing unfair about the trial either in terms of substance or appearance. The application for permission to appeal on procedural grounds was dismissed.

Appeal and application for permission to appeal dismissed.

* The petition of Sir William Otho Jaffray & ors seeking leave to appeal to the House of Lords in this case was presented and referred to an Appeal Committee on 7 November 2002.