I have had the privilege of reading in draft the opinion of my noble and learned friend Lord Mance and agree that this appeal should be dismissed.
Lord Hope of Craighead
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Mance. I agree with it, and for the reasons he gives I too would dismiss the appeal. I wish to add only a few observations of my own on the first issue: was there a contract for the carriage of goods by road within the meaning of article 1 of the Convention on the Contract for the International Carriage of Goods by Road ("CMR").
The reach of article 1 of CMR is very wide. It applies to every contract for the carriage of goods by road, provided it is a contract for reward and the place of taking over the goods and the place designated for delivery, as specified in the contract, are situated in two different countries of which at least one is a contracting country. The place of residence and the nationality of the parties are irrelevant. All the qualifications as to the kind of contract that the article contemplates are met in this case. The questions are whether, in the events that happened, the three packages that UPS's driver uplifted from Datec's premises in Milton Keynes for delivery to Incoparts' agents in Amsterdam were being transported under a contract and, if so, whether it was a contract of carriage. It is not disputed that, if there was a contract of carriage, CMR applies to it.
The underlying facts point strongly towards there having been a contract between the parties of some kind. UPS's driver presented himself at Datec's premises in response to a computer booking for the transportation of the packages to Amsterdam. This was to be done in consideration of a transportation charge for which Date was to be billed through its account with UPS. He accepted the packages and carried them by road to Luton. From there they continued on their journey by air to Cologne and then on by road to Amsterdam. The essential elements of a contract were all present. I think that the surrounding circumstances indicate that the transaction was being undertaken on both sides with reference to the framework agreement which the parties entered into on 8 March 2001. This was a standard form contract to which terms and conditions of carriage ("the conditions") were attached. The problem arises, as Lord Mance has explained, because each of the three packages exceeded the limit of value set out in clause 3(a)(ii) of the conditions.
Clause 3 of the conditions begins with these words:
This section sets out various restrictions and conditions which limit and govern the extent of the service UPS offers. It also explains what the consequences are of the shipper presenting packages which do not meet these requirements.
The conditions must, of course, be read as a whole. So the provisions which follow must be read in the light of the guidance as their purpose which is to be found in these two opening sentences.
Various service restrictions and conditions are set out in para (a). These include restrictions on the size, value and contents of packages. Among these restrictions is para (a)(iv). It provides that packages must not contain goods which might endanger human or animal life or any means of transportation or which might otherwise taint or endanger other goods being transported by UPS. Para (a) also makes the shipper responsible, among other things, for the accuracy and completeness of the particulars inserted in the waybill and for ensuring that all packages set out adequate contact details for the shipper and receiver of the package. A breach of the limits set by some of the restrictions and conditions may be capable of being identified by inspection at the outset before any carriage takes place: see para (a)(i), which relates to the weight and size of packages. Others may not be discovered until something happens: see para (a)(iv), which relates to packages which may damage other goods being transported by UPS.
The consequences of a failure to meet the requirements of para (a) are set out in paras (c), (d) and (e). If it comes to the attention of UPS that any package does not meet any of the restrictions or conditions set out in para (a), it may suspend carriage and hold the package or shipment to the shipper's order: para (c)(i). It may also do this if, among other things, it has been given an incorrect address for delivery. The shipper is responsible for the reasonable costs and expenses of UPS and for all claims against UPS because a package does not meet any of the restrictions and conditions in para (a): para (d). UPS is not liable for any losses which the shipper may suffer arising out of UPS's carrying packages which do not meet the restrictions and conditions set out in para (a): para (e).
The service which UPS offers is an express package and document service which is designed to handle high volumes with the minimum of delay and inconvenience to customers. The commercial purpose of the framework agreement is to allocate responsibility between the parties in events which may be expected to happen in contracts of that kind. Two situations are contemplated by clause 3(c), which is headed "refusal and suspension of carriage". To these a third must be added, which is this case. The first is where the fact that package does not meet any of the restrictions or conditions comes to the attention of the driver at the outset before it is accepted for carriage by UPS. In this situation UPS may "refuse to transport" the package. The second is where this fact comes to the attention of UPS after carriage has begun and while the package is still in transit. In this situation UPS may "suspend carriage". The third is where carriage has begun and the fact does not come to the attention of UPS until the package is lost or damaged before or at the point of delivery.
In the first situation there is no contract. The package does not meet the terms of UPS's offer, so UPS is entitled not to accept it. In the second and third situations, however, I do not think that it can be said that there was no contract. The package has been handed over and accepted, and it is being or has been carried. The conditions explain how the transaction is then to be regulated. In the case of suspension, the package is held for the shipper's order and may be returned to the shipper at the discretion of UPS: para (c)(iii). In the case of suspension or where loss or damage occurs, UPS is relieved of any liability to the shipper by para (d). The fact that the conditions are designed to deal with these situations indicates that a transaction which gets this far falls within the contract of carriage and is regulated by it. It is, of course, obvious that the conditions cannot mean one thing when they are applied to domestic carriage and other when they are applied to carriage which is international. I would have expected UPS to have wished to take advantage of the conditions if the carriage which was being undertaken was internal to the UK. It is the disadvantage that flows from the application of CMR that lies behind the contention that there was no contract of carriage in this case.
In the result I would construe the conditions in the framework agreement in this way. If UPS is made aware at the outset that a package that it is asked to carry does not meet any of the restrictions or conditions, it may refuse to accept it. The framework agreement permits it to do this. There is no contract of carriage. But if UPS accepts the package and the undertaking to transport it is performed to any extent, there is a contract of carriage. This is what the framework agreement itself contemplates, and its actions must be taken to be referable to a contract of carriage that has been made under it. The consequences are those which the framework agreement sets out, as modified by CMR if the contract is one to which article 1 of CMR applies.
Lord Walker of Gestingthorpe
On the first issue in this appeal I am in full agreement with the reasoning and conclusions of my noble and learned friends Lord Hope of Craighead and Lord Mance, whose opinions I have read in draft.
On the second issue (the judge's conclusion that wilful misconduct had not been proved on the balance of probabilities) I feel real doubt whether the Court of Appeal had sufficient grounds for reversing the trial judge, who had the advantage of seeing and hearing the witnesses. He set out his findings fully and clearly and nothing in his judgment suggests to me that he failed to make full use of that advantage. In principle there are clear distinctions between findings of primary fact, factual inferences and the evaluation of factual matters, but in practice they often start to run into one another. An appellate court should be cautious about differing from the trial judge in any of his findings, for the reasons explained by my noble and learned friend Lord Hoffmann in a passage in Biogen Inc v Medeva Ltd  RPC 1, 45 which is so well known as not to need repetition.
But I do not think it necessary to press my doubt to the point of dissent. I too would dismiss this appeal.
This appeal raises, first, a legal issue of general interest relating to the Convention on the Contract for the International Carriage of Goods by Road ("CMR"), scheduled to the Carriage of Goods by Road Act 1965 and, secondly, a factual issue on which the courts below have differed. The appellants, United Parcels Service Limited ("UPS"), perform a parcels delivery service on a worldwide basis. On Thursday, 25 July 2002, the first respondents, Datec Electronics Holdings Ltd ("Datec"), as consignors handed over to UPS in Milton Keynes three packages of Pentium IV computer processors, with a view to their delivery next morning to L & A Freight BV ("L&A"), as agents for the second respondents, Incoparts BV ("Incoparts"), in Amsterdam. The packages reached UPS's hub (or feeder) premises in Amsterdam, but the judge, Andrew Smith J, found that they were never delivered to L&A.
The issue of law arises because the packages were carried partway by road internationally. UPS took them first by road to Luton Airport, then by air to Cologne (apparently by UPS's own cargo service) and from there by road to Amsterdam. The leg between Cologne and L&A in Amsterdam is international carriage within the potential scope of CMR. The respondents' primary claim is that CMR applied to this leg, that UPS is liable for the loss of the packages during this leg under article 17(2) and that the probable cause of loss was wilful misconduct by UPS or its agents or servants within article 29, displacing the limitation of liability otherwise available to UPS under article 23(3) of CMR.
UPS rely in response on their standard terms and conditions (which I shall for convenience call "UPS's conditions"). These were incorporated in an umbrella or framework agreement which Datec and UPS made on 8 March 2001 to regulate their frequent dealings. Further, when making the computer booking for this particular consignment on 25 July 2002, Datec had to click on a box expressly confirming acceptance of UPS's conditions. Under such conditions UPS sought to ensure that it did not carry any individual package worth more than US$50,000. The three packages each had a value well in excess of that limit. Their total value was US$377,856. The processors were stored within them in eight smaller boxes - two boxes in one package which weighed 17kg, and three boxes in each of the other two packages which each weighed 25kg. Each box had a value of US$47,232.
In these circumstances, UPS's case is that that there was never any contract at all relating to the three packages or that, if there was, it was not a contract for carriage. On the former analysis, UPS accept that they were bailees, but invoke exemptions in their conditions as the terms of the non-contractual bailment. On the latter analysis, they maintain that there was a contractual bailment on the terms of the same exemptions. The respondents deny that UPS's standard conditions have either alleged effect. If that be wrong, however, they submit that nothing in UPS's conditions exempts UPS from liability for the loss which occurred.
On the issue whether CMR applied, the respondents succeeded both before the judge, Andrew Smith J:  1 Lloyd's Rep 470, and before the Court of Appeal (Brooke V-P and Sedley and Stephen Richards LJJ:  1 Lloyd's Rep 279). The factual issue then arose whether the respondents had discharged the burden on them of establishing wilful misconduct under CMR. The judge held that they had not. The Court of Appeal disagreed and held UPS liable for the full amount of the respondents' loss. Against this decision, UPS now appeal. I wish to express my appreciation for the quality of the written and oral submissions on both sides in what may, for its subject-matter, be regarded as an unusually difficult case. I take the two broad issues in turn.
The contractual issue
UPS's conditions provide as follows:
UPS TERMS AND CONDITIONS OF CARRIAGE
UPS's Service and Tariff Guide, referred to in clause 1A of UPS's conditions, contains further references to the $50,000 restriction. Under the heading "Sending and receiving shipments. Declared value charge for insurance", the Guide mentions the facility to increase the limit of UPS's liability by declaration, but adds that "The value of the goods concerned should not however in any event exceed US$50,000 (US$500 in the case of jewellery other than costume jewellery) .... as UPS does not offer carriage for goods with values above these amounts". A later provision headed "Service restrictions" reads: "The maximum value or declared value per package is US$50,000 ....". A further statement headed "Prohibited articles" lists various articles as "prohibited from shipment to all countries" including "Articles of exceptional value (e.g. works of art, antiques, precious stones, gold and silver)" and "Dangerous goods/Hazardous materials".
There was originally common ground on the pleadings that UPS had entered into a contract for the carriage of the three packages of processors. But, by amendment at the trial, UPS pleaded that under their conditions they did not offer, and so had never agreed, to carry these packages, which were accordingly not "goods" for the purposes of CMR. The amendment was permitted on the basis that it involved no new allegations of fact. The judge emphasised the limited ambit of the new argument  1 Lloyd's Rep 470, para 116:
.... it is directed only to the effect of the UPS terms. No argument was advanced about the authority of any person making a contract on behalf of UPS, nor was it said that a contract was vitiated for mistake on UPS's part, nor that the contract should be rescinded for misrepresentation (although UPS do plead that the claimants and T&B misrepresented that the packages were in compliance with the UPS terms and that otherwise UPS would not have carried them).
The first issue is ultimately a short one. Under section 1 of the Carriage of Goods by Road Act 1965, the provisions of CMR have the force of law
so far as they relate to the rights and liabilities of persons concerned in the carriage of goods by road under a contract to which the Convention applies.
Article 1 of CMR states:
This Convention shall apply to every contract for the carriage of goods by road in vehicles for reward, when the place of taking over of the goods and the place designated for delivery, as specified in the contract, are situated in two different countries, of which at least one is a Contracting country, irrespective of the place of residence and the nationality of the parties.
Here, UPS had discretion as to the route and means (cf clause 1D of their conditions), and they chose to perform as an international road carrier between Cologne and the final destination in Amsterdam. The $50,000 question apart, it is common ground that CMR would apply as between UPS and the respondents to the international road carriage which UPS was entitled, and chose, to undertake: cf Quantum Corpn Inc. v Plane Trucking Ltd.  EWCA Civ 350;  2 Lloyd's Rep 25. Whether CMR in fact applied thus depends on whether there was any "contract for the carriage" of these packages from Milton Keynes to Amsterdam.
The umbrella agreement did not cover the despatch of particular packages - indeed it did not oblige Datec to despatch any packages at all. In the case of packages conforming to UPS's conditions, a contract for carriage would come into existence either when a shipment was booked by computer or at latest when it was collected pursuant to such a booking. That some form of contract was intended by UPS's conditions even in respect of packages not meeting UPS's restrictions seems clear. The "consequences" of a shipper presenting non-conforming packages for carriage were stated to involve rights on the part of UPS to suspend carriage (clause 3(c)(i) and (ii)), to retain any carriage charges paid (clause 3(e)) and to open and inspect any package tendered to it for transportation (clauses 3(c)(i) and (ii) and (f)). The conditions also include a positive obligation on the part of the shipper to be responsible for costs and expenses, for losses, taxes and customs duties suffered and for claims made against UPS because of the non-compliance (clause 3(d)). This last is an obligation which one can well envisage UPS wishing to be able enforce against a shipper - for example, in the case of dangerous goods damaging other goods or damaging the carrying vehicle itself, or in the case of goods prohibited for import, which resulted in UPS incurring a customs penalty or costs. The critical question is to my mind whether the contract was for carriage subject to such rights and obligations, or was for some form of bailment capable of conversion into a contract for carriage only if UPS discovered the non-conformity and decided to proceed with, rather than suspend, the actual carriage.
Short though the issue is, it is not an easy one. But I have come to the conclusion that the courts below were correct. I would adopt the reasons given succinctly by Andrew Smith J in paras 118-119 of his judgment, when he said:
To these reasons, I would add that the assumption behind the concluding words of clause 3(e) is that, where carriage occurs without the non-conformity being detected or the carriage being suspended, carriage charges are without more due contractually. An argument that they are due as reward for carriage inadvertently performed under a bailment which was not for carriage seems to run into the commercial unreality which the judge had in mind in para 119. To the case of mutual ignorance which the judge postulated in the second sentence of para 119, one may also add that many situations can be conceived in which there was room for disagreement or mistake about whether some of the restrictions applied. Differences of view or mistakes could well arise as to whether articles were of "unusual value" or "might .... taint or damage other goods being transported by UPS". Finally, it is material to note that clause 3 regulates some situations where there is on any view a contract for carriage: cf the concluding sentence of clause 3(a), clause 3(b), clause 3(c)(ii) read with (iii) and the last words of clause 3(e) as well as clause 3(f). The more natural inference is, in my view, that the whole of clause 3 provides a contractual regime governing carriage of non-conforming goods.
It is well to remember that, in many circumstances, particularly in cases of domestic carriage and carriage not subject to mandatory rules, this conclusion, and the first issue, would not be significant. There would be no problem about UPS restricting its liability, whether or not there was a contract for carriage. Whether clause 3(e) would be sufficient to do this is a different matter. Mr Reeve for the respondents submitted that it would not be, because loss by failure to take due care or worse cannot be regarded as loss "arising out" of UPS carrying non-conforming packages. The word "loss" was not amplified by the usual phrases to embrace loss caused "howsoever" or by negligence, still less by employee misconduct or theft (cf Canada Steamship Lines Ltd. v The King  AC 192, 208, per Lord Morton). However, I would reserve any opinion on the correctness of Mr Reeve's submission, at least in relation to loss or damage by negligence, in circumstances where, under clause 9.2 and apart from situations governed by Convention or mandatory national rules, UPS would not anyway be liable except for negligence. I should mention that Mr Flaux QC representing UPS disclaimed any submission that clause 9.2 could apply if there was no contract for carriage. UPS's argument that there was no contract for carriage of the three packages was aimed solely at invoking clause 3(e).
UPS's difficulties in relying on clause 3, if there was a contract for carriage of the three packages, arise from the application to international carriage of the Warsaw Convention in the case of air transport and (more pertinently in this case) of CMR in the case of road transport. These Conventions regulate the liability of international carriers by air and road for loss of or damage or delay to goods in terms from which no derogation is permissible: cf in particular Chapters IV and VII of CMR. For the benefit of carriers, they also include certain exclusions and strict limits on the extent of liability (8.33 units of account, about £10, per kilogram in the case of CMR: article 23(3)); and these apply in relation to extra-contractual as well as contractual claims against the carrier, its servants and agents and others of whose services the carrier makes use: article 28(1) and (2). In most situations, therefore, the application of the CMR regime to the carriage of non-conforming packages would not expose UPS to unlimited exposure. But the CMR exclusions and limits are not available if the claimant is able to prove wilful misconduct or its equivalent: article 29(1). The carrier is then exposed to unlimited liability. Hence, in the present case, UPS's concern to establish that CMR is inapplicable.
Exposure to unlimited liability in respect of wilful misconduct of its servants or agents is not normally a matter in respect of which a carrier can expect sympathy. But a carrier is entitled to refuse to carry particular goods or to require the shipper to give an undertaking as to the nature or qualities of goods which it agrees to carry. A carrier who unwittingly receives and carries goods which do not comply with stated restrictions is unlikely to be the ordinary carrier whom the drafters of CMR had in the forefront of their mind. It is relevant to consider whether the fact that goods did not conform to the carrier's restrictions retains any relevance if CMR applies. There are various ways in which it might do so, some of them discussed before the judge.
First, if the non-conforming nature of the goods (e.g. excess weight) itself led to damage to the goods themselves, this could be relevant under article 17(2) of CMR both to show that the damage occurred through circumstances which the carrier could not avoid and, quite possibly, to show that it was caused by wrongful act or neglect of the claimant. In the present case, UPS advanced before the judge the more ambitious contention that the loss was caused by wrongful act or neglect of the respondents through despatching goods worth more than US$50,000. The judge at para 127 was not persuaded that the despatch of excess-value packages was a "wrongful act" by Datec, and he did not regard it as necessary or permissible to interpret the contract as containing an implied undertaking not to despatch such packages. I have considerable doubts about this part of the judge's reasoning. But the judge also rejected UPS's contention for the more persuasive reason that the excessive value of the packages did not in any way cause the loss. The packages were not, in other words, lost because of their individual value (although, as will appear, they may well have been targeted because of the value of their contents). The judge further found that, had Datec not ignored the package value restriction, it could and would in any event have despatched the contents of the packages (that is the eight boxes each having a value of less than US$50,000) as separate packages via UPS.
Article 41 of CMR renders null and void "any stipulation which would directly or indirectly derogate from the provisions of this Convention", adding that "the nullity of such a stipulation shall not involve the nullity of the other provisions of the contract". So far as the first part of clause 3(e) of UPS's conditions purports to remove liability for loss, damage or delay which UPS would otherwise incur under article 17 of CMR, clause 3(e) is null and void. But CMR does not supersede all aspects of the contractual or legal relationship between a carrier and those contracting for the carrier's services. It is at least arguable that clause 3(d) of UPS's conditions would enable UPS to cross-claim, against those contracting for UPS's services, in respect of any excess exposure over and above US$50,000 per package which UPS could show that they only incurred as a result of the shipment of non-conforming packages. Before the House, the possibility that there might be or have been some relief based on an implied misrepresentation or misstatement of the characteristics of the packages being despatched was also raised. The limited scope of the first issue (cf paragraph 21 above) means that the validity of these arguments has not been tested. But, if they are not sound, the harsh, but clear-cut position will be that, where a carrier contracts unwittingly to carry non-conforming goods and chooses to perform internationally by road, CMR applies with its benefits and burdens, and that the carrier's restrictions will be relevant only if and in so far as they may assist the carrier to avoid liability under article 17(2).
I would therefore reject UPS's challenge to the application of CMR to the carriage of the three packages. The issue of wilful misconduct thus arises for consideration.
Some further facts need stating. The three packages bore barcode labels with separate identification numbers. These labels were all twice scanned at about 7.30 a.m. on Friday, 26 July 2002 shortly after the packages arrived at UPS's hub premises in Amsterdam. The hub premises consisted of a yard surrounded by a 3 metre fence with one pedestrian and two vehicular gates. Inside the yard was a large secure warehouse, with gates on one side against which incoming vehicles reversed in such a way as to make it "virtually impossible" for anyone to enter or leave the warehouse along either side of the vehicles. Short feeder conveyors were extended into the backs of incoming vehicles, and staff called "unloaders" used these to discharge packages to a main conveyor belt inside the shed. The barcodes were scanned first on "import" and then, on reaching the main conveyor belt, as "out for delivery". Staff called "splitters" manually directed packages off the main conveyor onto one of two conveyor belt spurs, alongside each of which between five and perhaps ten loading vehicles destined for different delivery areas were backed up. Packages were unloaded from the spurs either by the driver for the relevant vehicle or by "pre-loaders". Loading was a quick operation giving very little time to assess what packages contained or their value (although Mr van Beusekom of UPS said in his written statement that a driver loading his own vehicle "might have more of an opportunity to assess" such matters). Loaded vans left the warehouse through roll-doors opened by "proximity" card. The vans had automatic locks on the doors between the cabin and their rear, as well as padlocks to their rear doors. Drivers were instructed to apply these padlocks whenever they left the van, including when making a delivery. Drivers carried a electronic "DIAD" board to obtain the recipient's signature for each package delivered. The information on each DIAD board was down-loaded to UPS's mainframe computer each day. Any package not delivered should have been returned by the driver to the hub, where it should on "import" have been scanned and then placed in a secure "overgoods" area inside the warehouse, for identification and delivery as appropriate as soon as possible. There was some, but not complete, CCTV coverage inside the warehouse.
L&A's premises were in the Schiphol South East area about 15 km from the UPS hub. On 26 July 2002 the van due to make deliveries there was driven by a Mr Kadim. The last recorded sighting of the three packages was by a UBS employee, Mr Kharbouche, at the hub. He saw the packages stacked behind Mr Kadim's vehicle and checked their barcodes to make sure that they had been correctly sorted. But Mr van Beusekom, gave evidence that this did not mean that the packages were necessarily loaded into Mr Kadim's van. Being large packages, they might have been stacked there for stowage in an accessible part of the vehicle, or because there was no space for them on the vehicle, or in order to be loaded onto another vehicle.
Mr Kadim delivered only one package not the subject of these proceedings to L&A on the morning of 26 July 2002. By about mid-day, L&A were complaining of non-delivery of the three packages. L&A later also complained of non-delivery of a fourth package consigned by Datec to L&A as agents for Axxis Hardware BV ("Axxis"). UPS started their enquiries as soon as L&A complained about the missing three packages. Mr Kadim was telephoned on the evening of 26 July. He told UPS to contact their other drivers, some of whom, he said, had taken packages from his lorry. At trial, UPS did not call any evidence about the outcome of any such enquiries.
On Sunday, 26 July 2002 Mr Kadim flew back to his country of birth, Morocco. He already had a poor attendance record, and, when he did not appear for work on Monday, 29 July, UPS issued a notice dismissing him. Mr Kadim returned to Holland in late September 2002. After being informed by a friend that the police were looking for him, he went to the police, and in interview explained that he had gone to Morocco as a result of an urgent call from his mother at 11.30 p.m. on Friday, 26 July informing him that his father had been seriously ill. He said that he "did not think it necessary to notify" UPS that he was in Morocco because he "knew that [his] contract was not going to be extended". He said that his van had been loaded on 26 July by pre-loaders, Sebastian (Roux) and Rob (Wiegant), and repeated that other drivers - three, whose names he did not know - had on 26 July taken parcels from his lorry to deliver themselves. Asked how he knew what was on his lorry and where to go, he said that he would look to see just before he set out, but that "since I no longer have the Sloterdijk route, I no longer know my way around very well". The evidence is that the Sloterdijk route had been his regular route, and he was not the regular driver for the Schiphol South East route which he was due to take on 26 July 2002. Mr van Beusekom's inspection of the CCTV footage and enquiries of the pre-loaders, Mr Roux and Mr Wiegant, yielded nothing relevant or abnormal. The loading of Mr Kadim's van could not be directly observed on the footage and Mr van Beusekom was not aware what the three packages looked like.
The judge had to consider whether the three packages, and so far as relevant the Axxis package, had been delivered to L&A. He was satisfied that they had not been. No DIAD signature existed for any of the packages except the fifth package which Mr Kadim did deliver, and it was improbable that the relevant barcodes had (all) been damaged in their pouches or become illegible. The nature of L&A's premises and procedures added to the unlikelihood of any loss occurring after delivery to L&A. The judge's finding of non-delivery was not appealed before the Court of Appeal or therefore the House.
On the basis that there was non-delivery, the judge turned to consider the likelihood of theft by an employee of UPS. Mr van Beusekom's evidence was that the hub had lost only eighteen packages due to theft between 1998 and 2002, with "17 of them being lost to a crime ring that was broken in March 2001", and that UPS's security systems were sound and UPS's approach to theft that it was always prosecuted. He also said that the hub lost 41 packages in July 2002 alone, an average of around 1 in every 2712 packages handled, and gave various possible explanations as to how packages could go missing "inexplicably" (as the judge put it). They included delivery without any record being made, mis-delivery and theft from a van on its rounds. So far as Mr van Beusekom in his witness statement expressed opinions as to what might have happened to the three packages, Mr Reeve did not cross-examine, taking the view that this was a matter for the experts called on either side (and the judge in a comment during cross-examination endorsed this approach).
Experts were called and examined on both sides, Mr Holmes for the respondents and Mr Heinrich-Jones for UPS. But it was for the judge to decide whether, in the light of all the evidence, any and if so what probable cause of loss could be determined. In the event, the judge found their evidence "of limited value". He went on (paragraph 13)
inevitably, they had formed their views on the basis of the material put before them, .... whereas I must assess the evidence presented at trial. Although their information apparently largely coincided with the evidence, it was not entirely the same and in these circumstances I hesitate to place great weight upon their opinions.
The judge said later (in para 57):
So far as the last sentence is relevant, I do not regard it as an accurate summary of the effect of Mr Holmes' evidence under cross-examination on 18 November 2004 (transcript pp. 76-80 and 85). Mr Holmes went on to make clear that he believed that he had said that the probable cause was theft by Mr Kadim or another UPS employee and that this was indeed both "highly likely" and the probable cause, although "one cannot be 100% certain". He was also plainly, and rightly, unhappy about being asked to decide questions on a balance of probabilities which he understood were "for the court to decide".
Mr Julian Flaux QC for UPS stressed in his submissions that, based on an original list by Mr Heinrich-Jones, the experts had in a joint memorandum identified a range of 17 possibilities, grouped under four headings:
Labelling Issues and
Two such possibilities, "Delivered but no proof of delivery" under head II and "Bar code problems" under head (III). fall out of the picture in the light of the judge's finding that the packages were not delivered to L&A. There is nothing in Datec's or UPS's documentation or in the course of known events to suggest any likelihood of the remaining possibilities listed as "Labelling Issues" under head III, that is Incorrectly labelled, Incorrectly addressed or Over labelled. This is particularly so when
it would be a remarkable coincidence if three or four packages due for delivery to the same place all went astray on 26 July 2002 for such a reason,
all four packages were satisfactorily scanned both on import and as "out for delivery" at UPS's hub on the morning of 26 July 2002, and
Mr Kharbouche checked the labels on the three packages and found them visually in order just before they were due for loading on 26th July.
Two possibilities under head IV (Theft by UPS Delivery Driver and by Unknown UPS Employee) involve wilful misconduct. The remaining possibilities listed under head IV were Third party theft from the hub, Theft following forcible entry, In transit theft from delivery vehicle and Theft by deception. Mr Heinrich-Jones considered that the security and operations at the hub effectively precluded the first two, that the third could not be eliminated as one of the likely causes of the loss, and that the last (in the form of deception persuading the driver to deliver the packages to unconnected third parties) was "possible". However, as he observed, there was no DIAD signature to suggest that Mr Kadim or any other driver was innocently deceived into any such mis-delivery. There was also no positive support for the possibility of theft from the delivery vehicle without the complicity of the driver. Even if one confines attention to the three packages (and the loss of the Axxis package would involve a remarkable coincidence, if due to some entirely different cause to that causing the loss of the three packages), an untargeted, adventitious theft of three heavy packages during an unguarded moment would be unlikely. It is far more likely, as Mr Heinrich-Jones recognised in paragraph 6.78 of his report, that any theft "would be a clear example of theft of high value targeted items". But, if these packages were targeted, it is also highly likely that there was collaboration or information as to their movement from within UPS. Consistently with this, the judge accepted (at paragraph 59) that "if they were stolen, it is probable that an employee of UPS was responsible for the theft".
The judge concluded that the probable cause of loss was not theft, but was accidental, so falling within one of the three possibilities given as under head I, Misplaced (viz Missorted, Mislaid or Damaged then thrown away) or within one of the remaining two possibilities under head II, Delivery issues (viz Failed delivery, Mis-delivery or Delivered in error). He said,  1 Lloyd's Rep 470, 481:
Richards LJ gave the principal judgment in the Court of Appeal with which Brooke LJ agreed:  1 Lloyd's Rep 279. Richards LJ summarised the criticisms made of the judge's approach by Mr Reeve in his submissions as follows, at p 295:
At paras 67 to 76, Richards LJ accepted the substance of Mr Reeve's criticisms. He said:
It is right at this point to say a word about Mr Kadim's position, although I agree with Richards LJ that it is not ultimately critical. The judge in addressing Mr Kadim's position treated four considerations as casting "real doubt" on any contention that he had stolen the packages: the fact that Mr Kadim went voluntarily to the police, the fact that it was not obvious from the labelling and documentation that the packages were particularly valuable (and there was no evidence that Mr Kadim knew that they were, although it was "possible" that he did), the fact that he did deliver one package to L&A on 26 July 2002 and the absence of any convincing evidence that the packages were loaded on his vehicle. Richards LJ commented:
I agree with Richards LJ's comments. I do not regard either Mr Kadim's voluntary visit to the police, when he knew they were seeking to arrest him, or his delivery of one package to L&A as any particular indication of innocence. Mr Kadim's statement (quoted in paragraph 35 above) was also not that he was not on 26th July familiar with the Schiphol South East route - all that is known is that this had not been his regular route. But, as the judge said, the respondents' case does not depend on putting the blame on any specific employee of UPS. If Mr Kadim is right in suggesting that another unscheduled UPS driver may have taken these three (or presumably all four) missing packages for delivery, the questions arise why this driver took the packages and why he never delivered them.
Mr Flaux for UPS submits that the Court of Appeal, in concluding that employee theft was the relevant cause, paid insufficient attention to the primacy of the judge's findings, that it was lured into a process of elimination (which could at best arrive a conclusion as to which of many possible causes was the least unlikely, rather than a conclusion as to any cause which was more probable than all the others viewed together) and that, despite lip service to the need for clear and cogent evidence, it found wilful misconduct when there was an absence of any such evidence.
As to the correct approach in an appellate court to findings and inferences of fact made by a judge at first instance after hearing evidence, there was no disagreement between counsel. In Assicurazioni Generali SpA v Arab Insurance Group  1 WLR 577, Clarke LJ summarised the position, referring also to a passage in a judgment of my own:
The judgment of Ward LJ in the Assicurazioni Generali case may be read as advocating a different test, which would equate the approach of an appellate court to findings of fact with its approach to decisions taken in the exercise of a discretion. As Waller LJ correctly pointed out in Manning v Stylianou  EWCA Civ 1655, that is not the correct test, and it is the judgment of Clarke LJ in the paragraphs quoted above from his judgment that gives proper guidance as to the role of the Court of Appeal when faced with appeals on fact.
In the present case, the judge's findings of primary fact have not been challenged. One or two small points have been made on factual matters, but they are of no or minor relevance and do not justify Mr Flaux's submission that the Court of Appeal exceeded its proper role in reviewing the judge's conclusions. Essentially, what have been in issue have been the inferences with regard to the causation of loss to be drawn from primary facts which are not in dispute. Mr Flaux, in my view correctly, accepted this was a correct analysis of the central issues, when opening the appeal. I note in parenthesis that Richards LJ appears to have treated as applicable the steeper appellate hurdle that would have applied if the appeal had been related to an evaluation or judgment or a decision analogous to the exercise of a discretion; even so he arrived at the conclusion he did on the basis that the judge had in his paragraph 66 failed to take into account relevant considerations; in particular the judge had failed to follow through the two examples he gave of accidental loss and to consider what each involved and how plausible each might be (cf paras 85 to 87). I do not disagree with Richards LJ's latter comments, but in my view the situation is one where an appellate court is well placed and entitled to re-consider for itself the judge's findings as to what should or should not be inferred regarding causation from the primary facts which he found.
Nor do I accept Mr Flaux's submission that Richards LJ was lured, by a process of elimination, into accepting as the probable cause the least unlikely of a range of possibilities all of them unlikely. That was the error the House identified in the approach taken by the judge at first instance in Rhesa Shipping Co SA v Edmunds (The "Popi M")  1 WLR 948. The reasoning of Sedley LJ in the present case may be open to criticism both for suggesting that sufficient was known for the court to base its conclusions on the least improbable cause and for doing this. But that of Richards LJ, with whom Brooke LJ agreed, is not.
Richards LJ summarised his conclusions as follows:
I find the reasons given by Richards LJ for reversing the judge compelling. None of the possibilities mentioned by the judge in para 66 affords any plausible explanation of the disappearance of the three packages, still less of all the four that were due for delivery to L&A on 26th July 2002. In their joint memorandum the two experts were in fact agreed that the possibilities of loss, Missorted, Mislaid and Damaged/thrown away/sold at auction, under head I were each "less likely than others", in view of the sighting of the packages by Mr Karbouche correctly stacked and labelled on the spur shortly before loading. None of these possibilities anyway offers any comprehensible explanation for the disappearance of three (or in fact four) large and valuable packages. The possibilities, Mis-delivered and Delivered in error, under head II run up, as previously stated, against the inherent implausibility of three or four separate packages due for delivery to L&A all being innocently misdelivered on the same day without any DIAD signature being obtained from anyone. The possibilities floated before the judge (but not even mentioned by him in his paragraph 66) under head II, Labelling issues, are remote in the extreme for the reasons given in paragraph 27 above. As to head IV, Theft, the joint memorandum categorised all the possibilities as "less likely", except for those involving a UPS driver or employees, and the judge found that, if the packages were stolen, it was probably by a UPS employee. Inevitably, any systematic consideration of the possibilities is subject to a risk that it may become a process of elimination leading to no more than a conclusion regarding the least unlikely cause of loss. But, as I have said, I do not consider that Richards LJ fell into that trap. I share, without hesitation, the view which he formed overall that theft involving a UPS employee was shown on a strong balance of probability to have been the cause of this loss.
In agreement with the reasoning of the majority contained in the judgment of Richards LJ in the Court of Appeal, I would therefore dismiss this appeal.
Lord Neuberger of Abbotsbury
I have had the privilege of reading the draft opinion of my noble and learned friend Lord Mance and agree that this appeal should be dismissed.
Julian Flaux QC & Charles Priday (instructed by Barlow Lyde & Gilbert) for appellant.
Matthew Reeve & Emmet Coldrick (instructed by Clyde & Co) for respondent.
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