Serene Construction Ltd v Barclays Bank Plc [2016] EWCA Civ 1379

Case No A2/2015/0654

[2016] EWCA Civ 1379

IN THE COURT OF APPEAL (CIVIL DIVISION)

Venue ON APPEAL FROM THE BIRMINGHAM DISTRICT REGISTRY

(HIS HONOUR JUDGE SIMON BROWN QC)

Venue Royal Courts of Justice, Strand London, WC2A 2LL

Date Thursday, 3 November 2016

B e f o r e:

LORD JUSTICE TREACY

LORD JUSTICE HAMBLEN

LORD JUSTICE IRWIN

Between

SERENE CONSTRUCTION LIMITEDAppellant

BARCLAYS BANK PLCRespondent

DAR Transcript of the Stenograph Notes of

WordWave International Limited

trading as DTI

165 Fleet Street London EC4A 2DY

Tel No: 020 7404 1400 Fax No: 020 7404 1424

(Official Shorthand Writers to the Court)

The Appellant appeared in person for in person

Mr N Leslie (instructed by Dentons UKMEA LLP) appeared for Respondent

J U D G M E N T(Approved)

LORD JUSTICE HAMBLEN:

Introduction

[1]The Appellant, SCL, ("the company") appeals against the judgment of His Honour Judge Simon Brown QC dated 19 January 2015 ("the judgment") whereby he granted the application of the Respondent, Barclays Bank, ("the bank") for summary judgment on the company's claim and the bank's counterclaim.

[2]As before the judge, the company has been represented at the hearing by Mr Raj, who is said to be the controlling mind and a de facto director of the company, assisted by his wife, Mrs Kumari, a director of the company. The bank has been represented by Mr Leslie of counsel.

Factual background

[3]By a written loan agreement dated 8 February 2007 the bank agreed to provide the company with a loan facility in the sum of £283,293.50 to enable it to refinance its existing debt with Yorkshire Bank ("the first facility"). The loan was advanced to the company on 7 March 2007. Interest accrued on the loan at a contractually agreed rate of 3.25 per cent above base per annum.

[4]By an offer letter dated 21 May 2008 the bank subsequently agreed to lend the company the sum of £103,800 ("the second facility"). A second offer letter dated 29 July 2008 was subsequently issued. The second offer letter was accepted on 4 August 2008.

[5]It was an express term of the second facility that:(1) The first tranche of £602,000 was required to be drawn down by 18 September 2008 ("the deadline").

(2) The drawdown request would have to be made in writing and delivered in person by first class post or by fax transmission to Level 9, 1 Churchill Place, London, E14 5HP specifying both the amount required and the proposed drawdown date.

(3) It was a condition precedent to drawdown of the second facility that the company should (i) provide further security by way of executed director guarantees and the charge over a further property in Daisy Street, Bilston and (ii) obtain an initial report from a voluntary surveyor that was satisfactory to the bank ("the conditions precedent").

[6]The purpose of the second facility was to refinance the first facility and to provide funding for a development project ("the development") to be undertaken by the company on land situated in Wolverhampton which it already owned ("the property").

[7]The bank contends that no request was made for a drawdown under the second facility on or by the deadline. This is disputed by the company, but no written request has been produced. We have been referred to an e-mail from the bank of 28 August 2008 setting out the conditions precedent which still needed to be fulfilled before the deadline, but that does not bear on whether a request was ever made.

[8]In any event, it is clear on the evidence and not disputed that the conditions precedent for any such drawdown were not met by the deadline and there was no drawdown of the first tranche under the second facility.

[9]The bank had concerns about the state of the development and changes in the UK property market following the financial crisis in September 2008. In October 2008 it commissioned an updated valuation ("the valuation report"). The valuation report indicated that the value of the property had fallen from around £900,000 in March 2008 to £516,000 and the value of the completed development had fallen to £2.2 million with prices set to fall further. Subsequent to the valuation report, the bank formed the view that the value of its security had eroded that and that the development project was looking to be commercially unviable. It decided that it could not refinance the development project.

[10]Following this, the company asked the bank for time to make arrangements with other financial institutions. However, given the deteriorating prospects of the UK property market in general and the value of the property in particular, it appears that no other financial institutions were willing to provide finance for the development.

[11]On 29 October 2008 and in the absence of satisfactory repayment proposals, the bank issued a formal demand under the first facility on the company in the sum of £327,413.35 ("the demand").

[12]The bank afforded the company time to satisfy this demand, but after over three years it decided to appoint receivers over the property. These were appointed on or around 31 January 2012.

[13]The receivers instructed two sets of experienced local estate agents to sell the property. Jorden Salata and Connells (West Midlands) ("the agents"). The agents valued the property at £100,000 to £150,000. The property was sold for £175,000 on 22 October 2012.

[14]At today’s hearing Mr Raj produced a newspaper report which indicates that two employees of Connells were convicted in July 2013 of fraud in relation to the purchase and reselling of distressed properties. There is no evidence, however, that these people were involved in the valuation of the property. In any event, the evidence shows that the main marketing of the property was done by Jorden Salata. They marketed the property to 15 developers and received expressions of interest from three, of which the best terms were offered by the buyer to whom the property was then sold for £175,000.

[15]After expenses and disbursements, the bank received a total of £14,782.74 from the property sale proceeds as well as £428.25 from a separate source. As at the date of the hearing, this left, with interest from 7 March 2008, a sum of £262,242.53 claimed to be outstanding under the first facility.

The procedural background

[16]In August 2014 the company issued proceedings against the bank claiming damages for breach of contract in failing to advance funds for the development and for selling the property at an undervalue. In the amended particulars of claim, the following causes of action are asserted. (1) Breach of contract in failing to advance funds under the second facility (referred to as the "acquisition facility" in the pleading). That claim is put as follows:

"8. In accordance with the contract, the Claimant duly sought to draw the acquisition facility in accordance with paragraph 4A above by giving notice to the Defendant that £602,000 was required. His request was acknowledged by the Defendant on 28 August 2008. Accordingly, such request was in advance of 18 September 2008. In breach of the contract, the Defendant failed to advance the acquisition facility to the Claimant on request." (2) Breach of duty of care in "offering to provide the facility and in failing to do so". (3) Misrepresentation in that "in offering to provide the facility, the Defendant made a negligent misrepresentation that was relied upon by the Claimant". (4) Breach of duty of care "to act reasonably and with care, skill and diligence when selling. The Defendant did not take any or any adequate steps to obtain the best possible price for the land."

[17]In October 2014 the bank served a defence and counterclaim. In summary, this stated(1) the company had not served it with a notice seeking a drawdown of the first tranche of the second facility and in any event, it had not satisfied the conditions precedent entitling it to receive the first tranche of the second facility.

(2) The negligent misstatement claim was misconceived as a matter of law.

(3) The land had been sold at an arm's length on the open market for a sum which exceeded its valuation by the estate agents responsible for marketing it.

[18]The bank also counterclaimed for the sum of £184,803.21, being the sum outstanding from the company under the first facility plus contractual interest and costs. No defence to the counterclaim was served by the company.

[19]On 21 November 2014 the bank issued an application for summary judgment on the claim and counterclaim supported by a witness statement of Samuel Holden of the bank's solicitors. This was served by post and fax and also sent to the company, at its request, by e-mail. No response to this application was received.

[20]On 29 December 2014 the court issued a notice of hearing of the application for Monday, 19 January 2015. The company says it did not receive this notice of hearing until Friday, 9 January 2015. On 13 January 2015 the company issued an application for adjournment of the hearing. This was not served on the bank and they were first made aware of the request for an adjournment by an e-mail at 17.43 hours on Friday, 16 January 2015. This requested the bank's agreement to an adjournment, which it was not prepared to give at that late stage.

[21]The bank had, in the meantime, served a second supporting witness statement of Brendan Kelly of its solicitors dated 14 January 2015.

[22]The parties duly attended the hearing on Monday, 19 January 2015 before His Honour Judge Simon Brown QC. The company appeared through Mr Raj assisted by Mrs Kumari. They were assisted by a representative of the PSU. The bank was represented by Mr Leslie of counsel.

[23]At the hearing, the company applied to the judge for an adjournment. In summary, it appears from the transcript that matters proceeded as follows:(1) The company stated it had not received notice of the bank's application at all until 9 January 2015 and asked for an extension of three months. The judge indicated that any adjournment was likely to be shorter than a month.

(2) The bank drew the court's attention to the e-mail whereby Mr Raj acknowledged receipt of the bank's application in November 2014. Mr Raj was unable to explain this inconsistency and his contention that he had been unaware of the application.

(3) The bank indicated that it would consent to an adjournment if the company undertook to file a defence to the counterclaim and was willing to pay £12,632 into court as security for the bank's costs of the hearing.

(4) The judge suggested that the company could instruct a barrister from Birmingham and that the case could be adjourned until the afternoon. Alternatively, the judge indicated that it was for the company to provide terms for an adjournment, but that he would not give an unconditional adjournment. He invited the company to consider its position during a half hour adjournment.

(5) After the brief adjournment, Mr Raj on behalf of the company indicated that he would "continue with the case".

[24]The hearing then went ahead with submissions being advanced on both sides, following which the judge proceeded to give judgment in favour of the bank. In his short judgment, the judge commented:

"I have heard a director of the Claimant, Mr Raj, who is ably supported by his colleague alongside him who also has detailed knowledge of this case, Mrs Santosh Kumari. Mr Raj has indeed been extremely eloquent in his appearance before the court and I am satisfied he has done the level best that he could in the circumstances."

[25]Mr Raj has performed a similar job for the company at today’s hearing.

[26]In his judgment, the judge held that:(1) The second facility could not be drawn down before the conditions precedent had been fulfilled, including the requirement for the company to provide various formal documents and approvals. He stated that: "It appears to me common ground that none of those documents have been provided at all, let alone by the due date... In my judgment, the plea of the Claimant for a cause of action for the loss of the development or failing to advance sums which had been agreed is not sustainable on the broad facts which appear to have been agreed between the parties... The advance could not be made and was not made."

(2) The claim in misrepresentation "does not make any sense at all" because nothing in the second facility letter could be taken to constitute "a material misstatement in law" such that the claim was "defective and not sustainable".

(3) As to the claim for sale at undervalue, "the facts indicate that the property was sold above the valuations that two agents had given" and so "cannot be said to have been negligent".

(4) There was no defence to the counterclaim, which accordingly succeeded in the amount claimed.

The grounds of appeal

[27]The grounds of appeal are:(1) The company did not receive notification of the date of the summary judgment hearing until 9 January 2015. This was inconsistent with the requirement under CPR 24.4(3)(a) to give 14 days' notice of a summary judgment hearing.

(2) The company applied to adjourn the hearing in order to seek representation from the Bar Pro Bono Unit ("BPBU"). However, the court did not respond to that application before the hearing.

(3) At the hearing, the judge did not grant the company's application to adjourn.

(4) As a result, the Claimant alleges that it was left with insufficient time to prepare for the application, meaning that it was unable to secure legal representation and was also unable to put all of the relevant evidence before the court.

[28]In its amended appellant's notice the company has applied to adduce new evidence in this appeal pursuant to CPR 52.11(2)(b). The bank has not opposed this application. At today’s hearing, Mr Raj has put forward a further bundle of documents which he has asked the court to consider and again the bank has not objected to those documents being put before the court.

[29]The company's appeal is based on CPR 52.11(3)(b). It contends that the judge's decision is "unjust because of a serious procedural or other irregularity in the proceedings in the lower court". It seeks a rehearing of the application.

[30]The bank denies there was any procedural irregularity. Alternatively, if there was, it denies that any injustice has been caused. In particular, it contends that there was and is no real prospect of the company's claim or of a defence to counterclaim succeeding and that it would be unjust, disproportionate and contrary to the overriding objective to order a rehearing.

[31]The essential point underlying all four grounds of appeal is that it was unfair to the company for the judge to refuse to allow its application for an adjournment or only to be prepared to grant such an application on conditions.

[32]In support of its appeal, the company relies in particular on the following:(1) Notification of the hearing was received by the company on Friday, 9 January 2015. This left the company with only five working days to prepare for the hearing.

(2) Under CPR 24.4(3) the Respondent to an application for summary judgment must be given at least 14 days' notice of the date fixed for the hearing. The company did not receive notification within that period.

(3) Since the company only became aware that the hearing was to take place on 9 January 2015, it was left with only five working days to obtain legal advice, compile the documents on which it intended to rely and file and serve those documents on the bank, which it inevitably failed to do.

(4) Given that the company is a litigant in person, it should have been informed of what was expected in ample time for it to comply. It had neither the time to comply with the directions or otherwise prepare for the hearing, nor an appreciation of the consequence of failing to do as much.

(5) The lack of notice rendered the decision of the court necessarily unjust because it precluded the court from dealing with the case justly according to the overriding objective. CPR Rule 1.1 sets out the overriding objective of the CPR, which is to deal with cases justly. CPR Rule 1.1(2)(a) states that dealing with cases justly included "ensuring that the parties are on equal footing". Because the company was not given the time necessary to prepare for the hearing of 19 January 2015, it came to the hearing at a significant disadvantage compared with the bank, who had had ample time to prepare. It instigated the hearing and was legally represented.

(6) At the outset of the hearing, the company produced a letter dated 16 January 2015, only three days before the matter being heard, confirming that a representative from the Bar Pro Bono Unit was willing to assist with its case, but that it required three weeks' notice in order to do so. The company reiterated its request for a postponement in order to allow it to be legally represented.

(7) This request was declined, which brought about an unjust, unfair and unequitable decision made by the court and put the company at an extreme disadvantage.

(8) The company and its non-legal representatives were overwhelmed by the hearing and had little understanding of what was taking place. It was unable to present the evidence it had brought to the hearing effectively or at all.

(9) Despite the company's efforts to put itself in a position whereby its case could be heard on an equal footing with the bank to its case put before the court, it was not allowed to do so, with the result that a just assessment of the Appellant's case could not be made.

[33]In order to succeed on the appeal, the company need to show (1) that the judge exercised his case management discretion unreasonably, giving rise to procedural irregularity, and(2) that this made the decision unjust.

[34]In support of the reasonableness of the exercise of the judge's case management discretion, the bank relies in particular on the following:(1) The company had adopted a persistently uncooperative approach to the proceedings and had failed both to file a defence to the bank's counterclaim and to respond to the bank's application.

(2) The company had alleged it had not received notice of the bank's application at all before 9 January 2015 until Mr Raj was shown an e-mail noting telephone discussions with the bank's solicitors about the application on 21 November 2014.

(3) The company did not give the bank three days' notice of its application for an adjournment, as required under CPR 23.7(1)(b). Indeed, the company did not serve its copy of the application for this on the bank at all in breach of CPR 23.4, nor did it give formal notification to the bank until almost 6.00 pm on the day before the hearing, in breach of CPR 23A PD 4.2.

(4) This was not merely a technical breach. It should have been self-evident that the company should seek to contact the bank in the circumstances, not least because the bank itself made efforts at contact, but it chose not to.

(5) The bank had incurred substantial costs preparing for the hearing and any adjournment would have caused disruption and/or delay to other court users.

[35]Against that background, the bank contends that it was reasonable for the judge to take the view that he would not grant an adjournment unconditionally. Further, the conditions that the judge proposed were reasonable in the circumstances. He suggested that(1) the company file a defence to the bank's counterclaim, as it was procedurally required to do, and

(2) the company pay into court a sum to cover the bank's costs of the hearing. This was proportionate, given that the company's uncooperative conduct had led to the bank incurring the costs of attendance and also given that the bank was, in any event, applying for security for its costs of the proceedings as a whole.

[36]As to the contention that the refusal to grant an adjournment denied the company an opportunity to seek legal advice and representation, the bank points out that:(1) The company had been on notice of the bank's application since 21 November 2014, almost two months before the hearing, which gave it ample time to seek and obtain assistance from the BPBU.

(2) The assistance offered was only "in order for advice to be provided initially". There was accordingly no guarantee of representation even if more notice had been given.

(3) Even if the company had had 14 days' notice of the hearing and the BPBU had been prepared to provide representation, the BPBU would still not have been able to act as it said it required at least three weeks' notice. Further, the judge offered the company an adjournment to seek local legal representation but the company did not take up that suggestion.

[37]As to the suggestion that it deprived the company of the opportunity to put forward relevant evidence, there was no such evidence clearly identified at the time, nor has evidence of any substance been identified or provided since.

[38]In my judgment, this was a case in which the company had reasonable grounds for seeking an adjournment, given in particular they had not had the 14 days' notice of the hearing proscribed by the Rules. Further, the difficulties created by short notice were exacerbated by the fact that they had no legal representation. On the other hand, the judge has a discretion to abridge periods of time specified by the Rules. Whether or not to grant an adjournment or to do so only on a conditional basis was a discretionary case management decision.

[39]In all the circumstances, I consider that this is a case in which the judge could reasonably have refused any adjournment. If so, being prepared to grant an adjournment on conditions was clearly within the reasonable range of decisions open to him.

[40]I reach this conclusion essentially in the light of the considerations identified by the bank and in particular the following:(1) The company had had since 21 November 2014 to prepare for the summary judgment hearing. It would or should have known that the hearing of the bank's application could be fixed at any time. Nothing, however, was done to prepare for any such hearing other than corresponding an unspecified date with the BPBU.

(2) Even if matters with the BPBU had been progressed further, it is unlikely that it would have resulted in sufficiently positive advice as to lead to representation, given, for reasons set out below, the lack of merit of the company's case. Further, if representation had been offered, on BPBU's evidence of the need for three weeks' notice, it is unlikely to have been available for the January hearing or any subsequent hearing on 14 days' notice. Lack of representation was, therefore, always likely, regardless of whether there was an adjournment.

(3) The company was, and indeed still is, unable to identify any evidence of significance which it wished to adduce and for which it needed an adjournment.

(4) The patent lack of merit of the company's substantive case.

[41]In the event, the judge did not refuse an adjournment outright, but instead offered the company the choice of an adjournment on conditions or continuing with the hearing. The conditions suggested were, in all the circumstances, reasonable.

[42]The company's defence to counterclaim was long overdue and relief from sanctions would have been required to defend the counterclaim. The company's failure to notify the bank of their application for an adjournment until the last moment meant that the bank had incurred costs which would be thrown away if an adjournment was now granted. Time was given to the company to consider the position and also to propose conditions. The company decided to press ahead with the hearing rather than seek to comply with the conditions suggested. That was its choice and involves no injustice.

[43]Even if that conclusion be wrong and an adjournment should have been granted unconditionally, no injustice has been caused, not least because it is apparent that there is no merit in the company's case and that this is obviously an appropriate case for summary judgment. Further, there is no point in ordering a rehearing. It is going to lead to delay and increased costs for both parties as well as taking up valuable court time but will result in the same substantive outcome.

[44]In our judgment, the company's pleaded case was and is bound to fail. I emphasise that it is the pleaded case that the court has to consider. That is the case advanced and it is that case and that case alone which has to be addressed.

[45]At today’s hearing Mr Raj has made wide ranging allegations to the effect that the company has been the subject of a fraudulent conspiracy by the bank. In support of that allegation he has produced a number of press articles critical of the conduct of banks in general and Barclays in particular. He has placed particular reliance on the Tomlinson report, which was a report by an entrepreneur in residence at the Department of Business, Innovation and Skills, which report refers to the conduct of banks in engineering defaults and in that context refers to revaluations and changes in loan value and reliance on technical breaches of covenants.

[46]Quite apart from the fact that no conspiracy case is pleaded, this generalised information provided in the further documents put forward today does not assist the company. None of this material relates to this case, to this property or to this branch of the bank. None of it begins to show that in this case there was an engineering of the default. There is, for example, no evidence to challenge the revaluation report obtained in October 2008 or to suggest that the failure to meet the conditions precedent was in any way engineered by the bank. On the contrary, the evidence shows repeated warnings being given of the need to meet the conditions precedent by the deadline and of outstanding matters that needed to be remedied.

[47]In considering the company’s case I shall, therefore, concentrate on each of the causes of action set out in the pleadings and shall address each in turn.

The alleged breach of contract and/or duty of care regarding the drawdown

[48]This allegation has no prospect of succeeding for a number of reasons. In particular:(1) Although the drawdown notice was required to be in writing, the company is unable to (a) identify the relevant drawdown notice or (b) specify on what date the alleged notice was sent.

(2) The allegation that there was a notice is inconsistent with contemporaneous documents, which make no mention of such notice being given and the recollection of Mr Kelly, the company's relationship manager, at the bank.

(3) It is also inconsistent with the company's own complaints immediately after the deadline, by which it acknowledged that it had failed to provide a drawdown notice on time but blamed the bank for this.

(4) Even if a drawdown had been requested, the bank was under no obligation to provide the funds as the company had failed to comply with the conditions precedent. In particular, as is not in dispute, it had failed (a) to provide a fully executed guarantee which was required to be supported by a first legal charge over Daisy Street, Bilston and (b) to provide the bank with a report from a bank approved monitoring surveyor.

(5) The bank's offer of funds was conditional on the conditions precedent being met in due time. If, as is the case, they were not, then the bank cannot have been in breach of contract or any duty of law in failing to provide the funds.

The allegation of misrepresentation

[49]This also has no prospect of succeeding. In particular:(1) The offer of facility was a contractual offer, not a representation.

(2) It involves no representation of fact, nor is any such representation identified.

(3) Even if it did involve a representation of fact, any such representation was qualified by the terms of the offer, including the requirement for the conditions precedent to be met before there would be any drawdown.

(4) There can have been and was no representation to provide facility funds even if the conditions precedent were not met by the deadline.

The allegation in relation to the sale of the property

[50]This wholly unparticularised allegation also has no prospect of succeeding. In particular:(1) No particulars have been given as to why the marketing of the property by experienced estate agents was negligent. It is also wholly unclear how achieving a price substantially in excess of the agents' valuation could amount to negligence.

(2) In any case, no alleged correct or different valuation at the time of valuation and sale has been advanced. Mr Raj has today produced a number of press articles which he says shows the housing market was strengthening in 2013. What matters, however, is the valuation of this property at the material time and there is no specific evidence to gainsay or even question the valuation given in September 2012 or the price obtained in October 2012.

(3) The company has not provided any challenge to the detailed account of the sale process set out in the bank's defence and counterclaim, whether by way of reply or defence to counterclaim or otherwise.

(4) The fundamental premise of the claim is flawed, relying as it does on the suggestion that the property had a value substantially in excess of £175,000 despite being empty and despite no financial institutions considering it to be commercially viable as a development prospect.

[51]For all these reasons, I consider that the judge was correct to conclude that the company's claim and any defence to counterclaim had no real prospect of succeeding and that this was an appropriate case for summary judgment.

[52]As Lord Woolf MR stated in Swain v Hillman

[2001] All ER 91

at 94B to C:

"It is important that a judge in appropriate cases should make use of the powers contained in Part 24. In doing so he or she gives effect to the overriding objectives contained in Part 1. It saves expense; it achieves expedition; it avoids the court's resources being used up on cases where this serves no purpose, and I would add, generally, that it is in the interests of justice. If a claimant has a case which is bound to fail, then it is in the claimant's interests to know as soon as possible that that is the position."

[53]In my judgment, those considerations apply in this case.

Conclusion

[54]In summary, there was no serious procedural irregularity in the proceedings below. The decision to proceed with the hearing was a reasonable exercise of the judge's case management discretion. Further, the judge's decision not to grant an unconditional adjournment did not lead to an unjust result and there would be no point in ordering a rehearing. This was and is an appropriate case for summary judgment.

[55]For all these reasons, I would dismiss this appeal.

LORD JUSTICE TREACY:

[57]I agree.

LORD JUSTICE IRWIN:

[58]I also agree.