“… my client would like me to point out that of course he, so far as he is able to, is proceeding to reserve the right to pursue that in the future in subsequent proceedings, but he understands that my learned friend not having been able to give any comfort in relation to res judicata or Henderson v Henderson, he takes the risk as to whether or not such pursuit would be barred by anything that happens in these proceedings.”
“19. However, I would add that even if the bank knew of the terms of the agreement between the Theodossiades and the ORS and the conversion into stock of E-Comsport that would not (without very much more) have imposed upon the Bank a legal duty not to avoid the lapse of the Barclays SLOC. That is not to say, of course, that there could not exist circumstances in which a bank took on the responsibility of preserving the value of a standby letter of credit in its hands and ensuring, in the interests of the customer, that it would be called before expiring. But I see nothing on the facts of the case before me to show that the bank assumed such a duty to ORS in relation to the Barclays SLOC. 20. Recognising that I have sacrificed a lot of detail in the evidence in relation to the SLOC and its extensions and its expiry, I think I have said enough about it to get sufficient of the picture across for purposes of this judgment, and I move on to the more pertinent part of the factual history.”
“On a different note at paras 16 last sentence, para 17 last sentence, para 19 and at the end of para [20] the Judge refers to no duty being owed by NWB to ORS or anyone else to the preservation/call etc of the Standby Letter of Credit – is it intended to make a finding that no legal duty was so owed? Such a legal duty was alleged in the proposed amendment, but it did not form any part of the amendment for which permission was granted (in part I thought I had understood, because of the difficulties in attempting to address that point at the late stage at which it was raised and because of the failure of the proposed amendment to rely on assignment by ORS). As a result this matter was not made the subject of submissions in the case. Could you please draw this query to the Judge’s attention.”
“As to the further representation concerning the standby letter of credit, namely, that it was the bank’s intention to launch an investigation into the circumstances of its loss and that if it were shown to be at fault it would release the replacement security, that claim too was rejected by me as untrue and it lengthened the trial considerably because it prompted a vast excursion into the history of the standby letter of credit. I indicated in my judgment that the time devoted to that history was out of all proportion to its significance. It would have been quite sufficient to deal with the standby letter of credit by indicating that the bank made some sort of internal mistake and lost the benefit of that security and that the embarrassment of that event caused it to be over eager to plug the gap caused by its own mistake, and that this led it to misrepresent the position to Mr Kotonou. Instead, to the end, Mr Kotonou fought on the basis that the bank was in some way responsible to him and his companies for failing to extend the standby letter of credit. This, again, considerably increased the size of the case. These separate issues in which Mr Kotonou lost amply justify departure from the normal rule that the winner takes all. But it is not only the fact of separate issues which justify such a departure. In my judgment, Mr Kotonou unreasonably and improperly raised those further allegations, which turned out to be untrue, and the allegation of fraud against upright bank officials was wholly unjustified.”
“The facts alleged in the Particulars of Claim in the present action correspond closely to those set out in the amended defence and counterclaim relating to the SLOC, which were the subject of the findings by the judge. In my view, the way in which the Particulars of Claim are pleaded in the present action amounts to a collateral attack on the findings of the judge in the previous action relating to the SLOC. The Particulars of Claim ought, in my view, to be struck out on that ground. The Particulars of Claim contain so many extensive factual averments which are inconsistent with the findings of fact, that I do not think it would be profitable for me to define or attempt to define in this judgment, the precise parts which are contrary to the findings of fact made by the judge.”
“The court therefore has to consider, by an intense focus on the facts of the particular case, whether in broad terms the proceedings that it is sought to strike out can be characterised as falling under one or other, or both, of the broad rubrics of unfairness or the bringing of the administration of justice into disrepute. Attempts to draw narrower rules applicable to particular categories of case (in the present instance, negligence claims against solicitors where an orginal action has been lost) are not likely to be helpful.”