“…the loan agreement and its charge over Burleigh House are enforceable against the Claimant and a declaration in respect of the sums due under the agreement and charge.”
“… it being agreed that issue 1 in the list of issues be deleted on the basis thatthe claimant accepts that he was bound by the facility agreement and mortgage deed”
“Cause of action estoppel arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. In such a case the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. The discovery of new factual matter which could not have been found out by reasonable diligence for use in the earlier proceedings does not, according to the law of England, permit the latter to be re-opened. (104D-E) Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to re-open that issue. (105E)”
“Arnold is accordingly authority for the following propositions: (1) Cause of action estoppel is absolute in relation to all points which had to be and were decided in order to establish the existence or non-existence of a cause of action. (2) Cause of action estoppel also bars the raising in subsequent proceedings of points essential to the existence or non-existence of a cause of action which were not decided because they were not raised in the earlier proceedings, if they could with reasonable diligence and should in all the circumstances have been raised. (3) Except in special circumstances where this would cause injustice, issue estoppel bars the raising in subsequent proceedings of points which (i) were not raised in the earlier proceedings or (ii) were raised but unsuccessfully. If the relevant point was not raised, the bar will usually be absolute if it could with reasonable diligence and should in all the circumstances have been raised.”
“Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. Lord Bingham continued: “The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party.”
“It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.”
“But this point was addressed in Arnold, and to my mind the distinction made by Lord Keith remains a compelling one. Where the existence or non-existence of a cause of action has been decided in earlier proceedings, to allow a direct challenge to the outcome, even in changed circumstances and with material not available before, offends the core policy against the re-litigation of identical claims.”
“If in litigation upon one such cause of action any of such separate issues as to whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, either upon evidence or upon admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition assert that the condition was fulfilled if the court has in the first litigation determined that it was not, nor deny that it was fulfilled if the court in the first litigation determined that it was.”
“It has always been the law that a judgment by consent or by default raises an estoppel just in the same way as a judgment after the court has exercised a judicial discretion in the matter. The basis of the estoppel is that, when parties have once litigated a matter, it is in the interests of the estate that litigation should come to an end; and if they agree upon a result, or upon a verdict, or upon a judgment, or upon a verdict and judgment, as the case may be, an estoppel is raised as to all the matters in respect of which an estoppel would have been raised by judgment if the case had been fought out to the bitter end.”
“it is not competent to either party to an action to aver anything either expressing or importing a contradiction to the record, which, while it stands, is as between them and evidence of uncontrollable verity.”
“As it is now quite immaterial whether the judicial decision was pronounced by a tribunal which is required to keep a written record of its decisions… It may be convenient to describe res judicata in its true and original form as “cause of action estoppel””
“Where the existence or non-existence of a cause of action has been decided in earlier proceedings, to allow a direct challenge to the outcome, even in changed circumstances and with material not available before, offends the core policy against the re-litigation of identical claims.”
“It is the case that the claimant had previously borrowed the sum of£3 million in relation to Amberleigh house. That fact, and the fact that the lending was repaid in full without complaint is irrelevant.”
“Indeed the totality of his [ie Mr Levack’s] evidence contradicts the notion that APL (and therefore Mr Levack) was acting in some fiduciary capacity, acting for the interests not of itself but of a trust.”
“To the best of my recollection I did not look at all the transcript of the crossexamination of Mr Levack until well into 2017. I had no reason to. The transcript was considered in detail in May 2017 because, without waiving privilege, I was considering with my legal team whether to commence proceedings against Mr Atholl Taylor; upon reviewing those transcripts, the significance of what Mr Levack had said regarding APL’s dealings in his own interest was collectively discovered. It was shortly after that point, in June 2017, that I commenced the present proceedings against APL and in parallel against Bay Trust.”
"This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents."
“The Claimant’s allegations and Claims hereunder do not depend upon any contention that the Claimant was or is a beneficiary of the Trusts. Insofar as any allegation in the Claimant’s Particulars of Claim or this Reply are inconsistent with the foregoing averment, the Claimant does not rely on such allegation.”
"only beneficiaries, that is those to whom the trustees are liable to account,… have standing to take proceedings in respect of a breach of trust. This would exclude from this right other parties who may have an indirect interest in the affairs of the trust, such as settlors, protectors and the beneficiaries' family members. The trustees do not stand in a fiduciary relationship to such persons."
"(i). a person who provides or has provided or may in future provide to the Founder services or custom or products or finance (save for items of a capital 90. nature); and (ii) a person who provides or has provided or may in future provide finance to the Trustees or any manager from time to time of the Trust Fund."
"Just as the doctrine of frustration only applies if the contract contains no provision that covers the situation, the same should be true of common mistake."
"…there is no general rule that the property in money paid under a void contract does not pass to the payee; and it is difficult to escape the conclusion that, as a general rule, the beneficial interest in the money likewise passes to the payee. This must certainly be the case where the consideration for the payment fails after the payment is made, as in cases of frustration or breach of contract; and there appears to be no good reason why the same should not apply in cases where, as in the present case, the contract under which the payment is made is void ab initio and the consideration for payment therefore fails at the time of payment."
"If two trustees convey trust property in breach of trust, the conveyance is not void."
“3.10 Where there has been an error of procedure such as a failure to comply with a rule or practice direction – (a) the error does not invalidate any step taken in the proceedings unless the court so orders; and (b) the court may make an order to rectify the error.”
"22. First, if the phrase “error of procedure” is given a narrow meaning, difficult questions of classification will arise. This will inevitably lead to uncertainty and sophisticated arguments as to how to characterise an error. This would be highly undesirable. It seems to us that a broad common sense approach is what is required. 23. Secondly, rule 3.10 gives the court a discretion. This must be exercised in accordance with the overriding objective of dealing with cases justly: rule 1.1(1) . If remedying one party's error will cause injustice to the other party, then the court is unlikely to grant relief under the rule. This gives the court the necessary control to ensure that the apparently wide scope of rule 3.10 does not cause unfairness. 24. Thirdly, the general language of rule 3.10 cannot be used to achieve something that is prohibited under another rule. This is the principle established by Vinos."
"To the best of the Claimant's knowledge the following persons are in possession of the property: the Claimant has been informed, via the Defendant's solicitors, that the Defendant is in possession of the property but this is not within the Claimant's personal knowledge."
"Where a claim is based upon a written agreement: (1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim…"