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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 >> British School Of Motoring v Hooper [2001] EWCA Civ 1421 (31 July 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1421.html Cite as: [2001] EWCA Civ 1421

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

		Royal Courts of Justice Strand London WC2 Tuesday, 31 July 2001

1. SIR MARTIN NOURSE: This is an application for permission to appeal, and an extension of time for appealing, against an order made by His Honour Judge Walker in the Wandsworth County Court on 14 February 2001 dismissing a Part 20 claim for damages made by Mr Donald Hooper against British School of Motoring Ltd ("BSM"). Originally a claim was made by BSM against Mr Hooper for an unpaid franchise fee, but that claim was discontinued shortly before the trial. The judge ordered Mr Hooper, who has appeared in person both here and below, to pay the costs of the Part 20 claim, subject to a set-off in respect of the costs of the discontinued claim.
2. Mr Hooper has told me this morning that the amount being claimed by BSM in respect of costs, though no detailed assessment has taken place, is about £6,000. Naturally, that is a sum about which he is very concerned, he being on income support and having no means to meet it.
3. The dispute between the parties arose out of a franchise agreement dated 9 June 1993, whereby BSM granted Mr Hooper a franchise as an independent self-employed driving instructor. Mr Hooper, who will be 65 next Boxing Day, had qualified as a Department of Transport instructor in 1979 and was described by the judge as being a very experienced driving instructor before he ever came to BSM.
4. For present purposes, the important provision of the franchise agreement was that it was terminable by either party at or at any time after the expiration of the first twelve months by 28 days prior written notice. In fact it was terminated by Mr Hooper without notice on 27 September 1993, only some 17 or 18 weeks after it had been entered into. Mr Hooper, by his pleading, alleged that BSM were in repudiatory breach of the agreement and claimed damages in respect of 9 years' lost net income until his retirement, which would have taken place on Boxing Day; the sum claimed being in the region of £20,000 per annum. BSM maintained that they were not in repudiatory breach and alleged that Mr Hooper had withdrawn from the agreement, after they had given notice in September 1993 that the weekly franchise fee would be increased pursuant to a provision contained in the agreement. In brief, Mr Hooper says that though that may have been a contributory reason, the real reason was that he was making a substantial loss out of the agreement and that he could not afford to carry on with it.
5. At the trial Mr Hooper gave evidence-in-chief and was cross-examined. No oral evidence was called on behalf of BSM. In giving judgment the judge prefaced his consideration of Mr Hooper's allegations of breach by saying that he was not able to accept him as a reliable witness of fact. Having explained why he took that view, the judge went on to consider the individual allegations in turn. Because they had adduced no evidence to the contrary, he was prepared to accept that BSM had in certain instances been in breach of contract. However, he took the view, correctly in my view, that none of the alleged breaches, either individually or cumulatively, could amount to a repudiatory breach of the agreement which entitled Mr Hooper to withdraw from it.
6. Mr Hooper, in addition to his notice of appeal, has put in a further document this morning headed "Grounds For Appeal" in which he sets out the main points he wishes to make in support of his application. His first point is that the judge ought to have granted an adjournment in the light of the late delivery of paginated documents by BSM. He also complains that although he himself gave evidence he did not have the opportunity of cross-examining any witnesses on behalf of BSM. In regard to the first of those points, that appears to be part of a more general complaint which I will come to shortly. As to the second, I have explained to Mr Hooper that a defendant is not obliged to call oral evidence. He takes certain risks by not doing so. But, as I have said, the judge here was careful to deal with Mr Hooper's allegations on the basis that, in certain respects there was no evidence to the contrary and that breaches were established.
7. I think that so far as Mr Hooper is concerned, the main complaint he makes is in paragraph 5 of his Grounds For Appeal, in which he repeats allegations made previously, to the effect that the application of BSM should never have been entertained and that they deliberately deceived the court by committing perjury and quoting wrong addresses for the delivery of papers, summonses, etcetera. Then, he adds, that to drop their case under the pretence that their witnesses were no longer available was contemptuous to say the least.
8. I fully understand how Mr Hooper views this case. He is very aggrieved by what he feels to have been the wrong behaviour of BSM. But his difficulty, as I have sought to point out to him, is that the judge made findings of fact with which this court, as an appeal court, could not interfere. There is also the very important point that the power for either side to determine the agreement at or after the expiration of the first twelve months means that on no footing would have Mr Hooper been able to claim damages for any period except that between September 1993 and the first anniversary of the contract on 9 June 1994. Taking everything together, it appears to me that the judge was entitled to make the findings that he did and, having made those findings, that he had no alternative but to dismiss Mr Hooper's Part 20 claim. In those circumstances, an appeal to this court would have no prospect of success and that means that Mr Hooper's application for permission to appeal must be dismissed.
Order: Application for permission to appeal dismissed.