“241 From these cases I therefore conclude that the correct approach to determining whether the directors should be required to make a contribution under section 214(1) is, as the directors contended, to ascertain whether the company suffered loss which was caused by the continuation of trading by the company after31 August 2010 until the company went into administration on13 October 2010 , and that as a starting point this should be approached by asking whether there was an increase or reduction in the net deficiency of the company as regards unsecured creditors between the two dates. 242 I think that the authorities to which I have referred also make good the submission on behalf of the directors that there has to be some causal connection between the amount of any contribution and the continuation of trading. Losses that would have been incurred in any event as a consequence of a company going into a formal insolvency process should not be laid at the door of directors under section 214. That factor is of particular importance in this case as a result of the evidence (including the contemporaneous comments of Mr Tickell) of the particular difficulties in dealing with customers in the insolvency of any construction company.”
“There can be no doubt, now, that a liquidator can proceed unders. 212 of the Insolvency Act 1986 where all that is alleged is common law negligence. But, if he does so, he must establish a cause of action at common law; that is to say, he must show that the breach of duty of which he complains has caused loss or damage. In my view. when exercising the power, conferred by s. 212(3)(b), to compel a delinquent director 'to contribute such sum to the company's assets by way of compensation in respect of the … breach of ... other duty' in a case where the breach of duty complained of is a breach of the common law duty to take care, the court has to be satisfied that the negligence has caused a loss in respect of which compensation can be awarded. The position, in this respect, is the same as it would be if the company had brought an action in its own name. In so far as the judge suggested, in the passage at p. 286H of his judgment to which I have already referred, that the position was otherwise, I have no doubt that he was wrong. But the point is not, I think, material in the present case because, as the judge thought, causation had been established.”
“299. In the premises set out above, by17 April 2015 or alternatively by some later date prior to25 April 2016 , the Respondents or any of them knew or ought to have concluded that there was no reasonable prospect that the Companies or any of them would avoid going into insolvent liquidation or entering insolvent administration.”
“300. After the time referred to in Paragraph 299 above, the Respondents or any of them failed to take every step with a view to minimising the potential loss to the Companies’ creditors as they ought to have taken. 301. The losses occasioned by the Companies’ continued trading after17 April 2015 represent the increase in the net deficiency of assets between that date and the Companies’ insolvent administrations on25 April 2016 .”
“305. Orders for a contribution to the Companies’ assets in the foregoing sums, with recoveries capped at£163,092,249 , together with interest, are sought against Mr Chappell and/or Mr Henningson and/or Mr Chandler on a joint and several basis under s.214(1) of the IA 1986. 306. An order for a contribution to BHSGL’s assets in the sum of at least£11,497,399 together with interest is sought against Mr Smith under s.214(1) of the IA 1986.”
“(1) A declaration that from17 April 2015 onwards or from some later date prior to25 April 2016 : a. the Respondents or any of them knew or ought to have concluded that there was no reasonable prospect that the Companies or any of them would avoid going into insolvent liquidation or entering insolvent administration; and b. failed to take every step with a view to minimising the potential loss to the Companies’ creditors as they or any of them ought to have taken. (2) An order under s.214(1) of the IA 1986 that Mr Chappell and/or Mr Henningson and/or Mr Chandler jointly and severally contribute the following sums together with interest: a.£11,497,399 to the assets of BHSGL; b.£169,390,639 to the assets of BHSL; c.£67,719,224 to the assets of Davenbush; and d.£21,245,185 to the assets of Lowland, subject to a cap on recoveries of£163,092,249 . (3) An order under s.214(1) of the IA 1986 that Mr Smith contributes£11,497,399 together with interest to the assets of BHSGL.”
“307. In addition to the breaches of duty by the Respondents in relation to particular transactions set out at Paragraphs 127, 128, 139, 167, 189, 222, 228, 254, 265, 279 and 297 above, further and as to the whole of their conduct from the dates of each of their appointments as directors of each of the Companies, the Respondents committed the following ongoing breaches of duty: a. they failed to act in the interests of the Companies in that they failed to have sufficient regard for the interests of the Companies’ creditors at any material time; b. in particular, they failed to put in place an Adequate Plan or consider on a rational or informed basis whether or not the Schemes could be dealt with and/or, if they could, how that should be done; c. they failed to act for proper purposes, in that instead of acting for the purposes of the Companies, they acted throughout for the purposes of RAL and/or for their own purposes; d. they failed to take reasonable care in their stewardship of the Companies and, in particular: i. they failed to keep themselves informed of the true financial position of the Companies; ii. they failed to take adequate advice and/or instruct advisers properly and/or heed such advice as they received; and iii. they failed to hold regular board meetings or reach properly documented decisions.” a. they failed to act in the interests of the Companies in that they failed to have sufficient regard for the interests of the Companies’ creditors at any material time; b. in particular, they failed to put in place an Adequate Plan or consider on a rational or informed basis whether or not the Schemes could be dealt with and/or, if they could, how that should be done; c. they failed to act for proper purposes, in that instead of acting for the purposes of the Companies, they acted throughout for the purposes of RAL and/or for their own purposes; d. they failed to take reasonable care in their stewardship of the Companies and, in particular: i. they failed to keep themselves informed of the true financial position of the Companies; ii. they failed to take adequate advice and/or instruct advisers properly and/or heed such advice as they received; and iii. they failed to hold regular board meetings or reach properly documented decisions.”
“308. Had the Respondents discharged their duties properly, then they would have concluded that the Companies should not continue trading after, at the latest,17 April 2015 and the losses occasioned by that continued trading would not have been incurred. 309. Had the Respondents not breached their duties as set out in these Points of Claim, they would have caused the Companies to cease trading on17 April 2015 or alternatively on some subsequent date prior to25 April 2016 . In the premises set out above, the entirety of the Companies’ trading after the Respondents should have ceased trading was misfeasant. Had the Respondents not breached their duties in that way, then the Companies and their respective unsecured creditors would not have suffered the increase in net asset deficiency particularised at Paragraphs 303 to 305 above.”
“310. Orders for equitable compensation in like sums to those set out at Paragraphs 305 and 306 above capped at£163,092,249 together with interest compounded in equity is sought against the Respondents on a joint and several basis under s.212(3) of the IA 1986 or otherwise.”
“(4) Further or alternatively, a declaration that in their conduct of the Companies’ business from17 April 2015 onwards or from some later date prior to25 April 2016 , the Respondents or any of them acted in breach of duty to the Companies or any of them and had they discharged their duties they would have caused the Companies to cease trading. (5) An order against Mr Chappell and/or Mr Henningson and/or Mr Chandler for equitable compensation under s.212(3) of the IA 1986 or otherwise in the following sums: a.£11,497,399 to the assets of BHSGL; b.£169,390,639 to the assets of BHSL; c.£67,719,224 to the assets of Davenbush; and d.£21,245,185 to the assets of Lowland, subject to a cap on recoveries of£163,092,249 . (6) An order against Mr Smith for equitable compensation under s.212(3) of the IA 1986 or otherwise in the sum of£11,497,399 in favour of BHSGL.”
“8. Please give details of the estimate by the Schemes’ actuary of the Schemes’ funding deficit on a buy-out basis: a. as at17 April 2015 (or as at the date closest to that date at which that estimate is known); and b. as at such (currently unidentified) “alternative later date prior to25 April 2016 ” by which it is alleged that had Mr Chandler not breached his duties as a director he would have caused the Companies to cease trading.”
“8. Details as to the Scheme’s funding deficit on a buy-out basis as at31 March 2015 is clearly pleaded in Paragraph 55, and is contained in the Determination Notice at Item 208 of the Initial Disclosure List. It would be disproportionate at this stage for the Applicants to provide the information requested as to alternative dates for wrongful trading (which are outlined in further detail below at Response 119).”
“Please identify the alternative later date prior to25 April 2016 by which it is alleged that Mr Chandler knew or ought to have concluded that there was no reasonable prospect that the Companies or any of them would avoid going into insolvent liquidation or entering insolvent administration, and if so, please identify with full particularity the basis on which this allegation is made.”
“The alternative dates subsequent to17 April 2015 and prior to25 April 2016 are clear from the pleading. For the avoidance of doubt, Mr Chandler knew or ought to have concluded that that there was no reasonable prospect of the Companies or any of them avoiding going into insolvent liquidation or entering insolvent administration on the following dates subsequent to17 April 2015 : •6 May 2015 : the date of the Second LoC Facility: Paragraphs 192 to 197, and in particular Paragraphs 196 and 197, set out the deterioration in the Companies’ financial position since17 April 2015 and the falsification of the purported basis on which the Respondents decided to continue trading on17 April 2015 (cf Paragraphs 177 to 179). •26 June 2015 : the date of ACE II: Paragraphs 203 to 222, and in particular Paragraphs 204(a), 204(b), 205 and 206 set out the deterioration in the Companies’ financial position since17 April 2015 ; the falsification of the purported basis on which the Respondents had decided to continue trading on17 April 2015 (cf Paragraphs 177 to 179); and the failure to put in place an Adequate Plan, without which there was no reasonable prospect that the Companies would avoid going into insolvent liquidation or administration (see Paragraph 106). •13 July 2015 : July 2015 Turnaround Plan: Paragraphs 223 to 224 set out that the July 2015 Turnaround Plan was (a) not an Adequate Plan; and (b) did not include any proposal for restructuring the Schemes, without either of which there was no reasonable prospect that the Companies would avoid going into insolvent liquidation or administration (see Paragraphs 82, 102 and 106). •26 August 2015 : Repayment of ACE I: Paragraphs 225 to 228 set out the deterioration in the Companies’ financial position since17 April 2015 . •8 September 2015 : Grovepoint Facility: Paragraphs 229 to 238, and in particular Paragraphs 231 and 233, set out the deterioration in the Companies’ financial position since17 April 2015 ; and the falsification of the purported basis on which the Respondents decided to continue trading on17 April 2015 (cf Paragraphs 177 to 179). Further, the Applicants advance the overarching case that without an Adequate Plan (see in particular Paragraph 106) and/or a restructuring of the Schemes (see in particular Paragraphs 62, 82 and 102), there was no reasonable prospect that the Companies would avoid insolvent liquidation or administration.”
“120. Please state whether it is alleged that by that alternative date Mr Chandler knew that there was no reasonable prospect that the Companies or any of them would avoid going into insolvent liquidation or entering insolvent administration, and if so, in accordance with the requirements of 16PD, para 8.2(5), please identify all facts and matters relied upon in support of this allegation.”
“120. Response 119 is repeated.”
“121. Please identify what steps it is alleged that Mr Chandler ought to have taken after17 April 2015 with a view to minimising the potential loss to the Companies’ creditors.” “122. Please identify what steps it is alleged that Mr Chandler ought to have taken after the (unspecified) “later date prior to25 April 2016 ” with a view to minimising the potential loss to the Companies’ creditors.”
“121. The burden is on Mr Chandler to establish the statutory defence in s.214(3) of the IA 1986, i.e. to establish that he took every step, not on the Applicants to show that he did not.” “122. Response 121 is repeated.”
“126. Please identify the basis on which it is alleged that had Mr Chandler not breached his duties as a director he would have caused the Companies to cease trading on17 April 2015 .” “127. Please: a. identify the alternative subsequent date prior to25 April 2016 by which it is alleged that had Mr Chandler not breached his duties as a director he would have caused the Companies to cease trading; and b. identify the basis on which it is alleged that had Mr Chandler not breached his duties as a director he would have caused the Companies to cease trading on that date.” a. identify the alternative subsequent date prior to25 April 2016 by which it is alleged that had Mr Chandler not breached his duties as a director he would have caused the Companies to cease trading; and b. identify the basis on which it is alleged that had Mr Chandler not breached his duties as a director he would have caused the Companies to cease trading on that date.”
“126.Those matters relied upon in support of this allegation are quite clearly pleaded in the Points of Claim, and dealt with above.” “127.Responses 119 and 126 are repeated.”
“128. Please identify the alternative later date prior to25 April 2016 .”
“128. This request is repetitive. Response 119 is repeated.”
“129. Please identify the alternative later date prior to25 April 2016 .”
“129. This request is repetitive. Response 119 is repeated.”
“In the premises, paragraph 197(c) [of the Points of Claim] is denied. Insofar as the Liquidators intend to suggest (having regard to RFI Response 119) that6 May 2015 is an alternative date for the purposes of a wrongful and/or misfeasant trading claim against Mr Chandler, such a claim is embarrassing for want of particularity and Mr Chandler cannot and does not plead to it.”
“Paragraph 144.c is denied: the grounds for advancing6 May 2015 as an alternative date are clear from Paragraphs 168 to 185 and 192 to 197 of the PoC and RFI Response 119.”
“Paragraph 299 is denied, in light of the facts and matters set out in this Points of Defence. It is specifically denied: a. that the Applicants are entitled to pursue an alternative wrongful trading claim against Mr Chandler “by some later date prior to25 April 2016 ” without pleading the specific date(s) by which they maintain that the provisions of s. 214(2)(b) IA 1986 apply with in relation to him and fully particularising their case against him as to the basis on which they maintain that the provisions of s. 214(2)(b) apply in relation to him as at that date; and b. for the reasons pleaded in these Points of Defence, that Mr Chandler knew or ought to have concluded there was no real prospect that the Companies or any of them would avoid going into insolvent liquidation or entering solvent administration by17 April 2015 or on any of the five alternative dates identified in RFI Response 119 (the “Alternative Dates”).”
“As to Paragraph 244: a. the alternative dates for the purposes of s.214 of the IA 1986 are properly and sufficiently pleaded; b. the alternative dates for the purposes of s.214 of the IA 1986 are6 May 2015 ,26 June 2015 ,13 July 2015 ,26 August 2015 and8 September 2015 , as Mr Chandler is aware from RFI Request 119; c. further and in any event the Applicants advance the overarching case that without an Adequate Plan (see Paragraphs 104 to 108 of the PoC) and/or a restructuring of the Schemes (see Paragraphs 62, 82 and 102 of the PoC), there was no reasonable prospect that the Companies would avoid insolvency liquidation or administration; d. it is noted that Mr Chandler has pleaded to the alternative dates in the Defence; and e. save as aforesaid Paragraph 244 is denied.”
“1. The parts of the Points of Claim which relate to the Applicants’ five purported alternative claims for alleged wrongful trading (the “Alternative Date Wrongful Trading Claims”) be struck out pursuant toCPR r.3.4 (2)(a) being: a. The words “or alternatively by some later date prior to25 April 2016 ” at paragraph 299 of the Points of Claim. b. The words “or alternatively on some subsequent date prior to25 April 2016 ” at paragraph 309 of the Points of Claim. c. The words “or from some later date prior to25 April 2016 ” at paragraphs 1 and 4 of the Prayer to the Points of Claim. d. Of the RFI Response to R3: the second sentence of Response 8; Responses 119, 120 and 122; the words “or some subsequent date prior to25 April 2016 (as set out at Response 119)” at Response 124; and Responses 127, 128 and 129. e. Paragraphs 86(f), 87(g), 102, 106, 109 and 148 of the Points of Reply to R3.” a. The words “or alternatively by some later date prior to25 April 2016 ” at paragraph 299 of the Points of Claim. b. The words “or alternatively on some subsequent date prior to25 April 2016 ” at paragraph 309 of the Points of Claim. c. The words “or from some later date prior to25 April 2016 ” at paragraphs 1 and 4 of the Prayer to the Points of Claim. d. Of the RFI Response to R3: the second sentence of Response 8; Responses 119, 120 and 122; the words “or some subsequent date prior to25 April 2016 (as set out at Response 119)” at Response 124; and Responses 127, 128 and 129. e. Paragraphs 86(f), 87(g), 102, 106, 109 and 148 of the Points of Reply to R3.”
“To these principles there should be added the following general points about particulars: i) The purpose of giving particulars is to allow the defendant to know the case he has to meet: Three Rivers at [185]-[186]; McPhilemy v Times Newspapers Ltd[1999] 3 All ER 775 at 793B (Lord Woolf MR). ii) When giving particulars, no more than a concise statement of the facts relied upon is required: McPhilemy at 793B. iii) Unless there is some obvious purpose to be served by fighting over the precise terms of a pleading, contests over their terms are to be discouraged: McPhilemy at 793D.”
“20 The issue here is a stark one. Does Mr Chandler and those advising him know what alternative dates the Joint Liquidators are choosing to adopt in determining what is the IND suffered by the companies from any of those alternative dates in continuing to trade?”
“Having considered these submissions and, in particular, the criticisms made of the relevant parts of the points of claim and points of reply, irrespective of there being no direct authority on the point, that quantifying claims of this nature need to be pleaded, I am clearly of the view that there is insufficient substance to the respondents’ criticisms to support this application. The following eight factors are material in reaching that conclusion:”
“The basic purpose of pleadings is to enable the opposing party to know what case is being made in sufficient detail to enable that party properly to prepare to answer it. To my mind, it seems that in recent years there has been a tendency to forget this basic purpose and to seek particularisation even when it is not really required. This is not only costly in itself, but is calculated to lead to delay and to interlocutory battles in which the parties and the court pore over endless pages of pleadings to see whether or not some particular point has or has not been raised or answered when in truth each party knows perfectly well what case is being made by the other and is able properly to prepare to deal with it. Pleadings are not a game to be played at the expense of litigants, nor an end in themselves, but a means to the end and that end is to give each party a fair hearing.”
“20 The issue here is a stark one. Does Mr Chandler and those advising him know what alternative dates the Joint Liquidators are choosing to adopt in determining what is the IND suffered by the companies from any of those alternative dates in continuing to trade?”
“The Third Respondent seeks an order (a draft of which is attached) that: (a) The parts of the Applicants’ pleadings (as specified in the draft Order) which relate to the Applicants’ five purported alternative claims for alleged wrongful trading be struck out.”
“I make this statement in support of Mr Chandler’s application (the “Application”) pursuant toCPR r.3.4 (2)(a) to strike out the parts of the Applicants’ pleadings which relate to the Applicants’ five purported alternative claims for alleged wrongful trading (defined below as the Alternative Date Wrongful Trading Claims).”
“(2) The court may strike out a statement of case if it appears to the court— (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;” (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;”
“CPR r.16.4 (1)(a) requires that a particulars of claim must include “a concise statement of the facts on which the claimant relies”
“19 This is not, I hope, a dry technical point. The question of the relief being claimed by Mrs Dhillon was central to this case. If the CLR had wanted to say that this was not a case of rectification at all, then it was required to plead such a contention. That was in order that the parties could properly marshal their arguments to address that submission and so that, in due course, the court would know what issues it was being asked to decide. It is too often the case in civil litigation that the pleadings become forgotten as time goes on, and the trial can become something of a free-for-all. That is not appropriate. I can only echo and agree with the recent warning by David Richards LJ in UK Learning Academy Ltd v Secretary of State for Education[2020] EWCA Civ 370 when he said: “47. I would add here that I endorse the view expressed by the judge to the parties at the trial and repeated in his judgment at [11] that the statements of case ought, at the very least, to identify the issues to be determined. In that way, the parties know the issues to which they should direct their evidence and their challenges to the evidence of the other party or parties and the issues to which they should direct their submissions on the law and the evidence. Equally importantly, it enables the judge to keep the trial within manageable bounds, so that public resources as well as the parties’ own resources are not wasted, and so that the judge knows the issues on which the proceedings, and the judgment, must concentrate. If, as he said, there was ‘a prevailing view that parties should not be held to their pleaded cases’, it is wrong. That is not to say that technical points may be used to prevent the just disposal of a case or that a trial judge may not permit a departure from a pleaded case where it is just to do so (although in such a case it is good practice to amend the pleading, even at trial), but the statements of case play a critical role in civil litigation which should not be diminished.” “47. I would add here that I endorse the view expressed by the judge to the parties at the trial and repeated in his judgment at [11] that the statements of case ought, at the very least, to identify the issues to be determined. In that way, the parties know the issues to which they should direct their evidence and their challenges to the evidence of the other party or parties and the issues to which they should direct their submissions on the law and the evidence. Equally importantly, it enables the judge to keep the trial within manageable bounds, so that public resources as well as the parties’ own resources are not wasted, and so that the judge knows the issues on which the proceedings, and the judgment, must concentrate. If, as he said, there was ‘a prevailing view that parties should not be held to their pleaded cases’, it is wrong. That is not to say that technical points may be used to prevent the just disposal of a case or that a trial judge may not permit a departure from a pleaded case where it is just to do so (although in such a case it is good practice to amend the pleading, even at trial), but the statements of case play a critical role in civil litigation which should not be diminished.”
“a civil claim should be conducted on the basis that a party is entitled to know, normally through a statement of case, the essentials of its opponent’s case in advance, so that the trial can be fairly conducted, and, in particular, the parties can properly prepare their respective evidence and arguments at trial.” 146. The second purpose then is to ensure that the parties can properly prepare for trial – and that unnecessary costs are not expended and court time required chasing points which are not in issue or which lead nowhere. That of course ties in with the Overriding Objective, which counts amongst its many limbs “(d) ensuring that [the case] is dealt with expeditiously and fairly; (e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases…”. 147. This is a point which feeds into the dictum of Teare J in Towler v Wills[2010] EWHC 1209 (Comm) , at [18]-[21]: “The purpose of a pleading or statement of case is to inform the other party what the case is that is being brought against him. It is necessary that the other party understands the case which is being brought against him so that he may plead to it in response, disclose those of his documents which are relevant to that case and prepare witness statements which support his defence. If the case which is brought against him is vague or incoherent he will not, or may not, be able to do any of those things. Time and costs will, or may, be wasted if the defendant seeks to respond to a vague and incoherent case. It is also necessary for the Court to understand the case which is brought so that it may fairly and expeditiously decide the case and in a manner which saves unnecessary expense. For these reasons it is necessary that a party's pleaded case is a concise and clear statement of the facts on which he relies.” 148. The third purpose for the pleading rules is less well known but no less important. The process of pleading a case operates (or should operate) as a critical audit for the claimant and its legal team that it has a complete cause of action or defence.” “a civil claim should be conducted on the basis that a party is entitled to know, normally through a statement of case, the essentials of its opponent’s case in advance, so that the trial can be fairly conducted, and, in particular, the parties can properly prepare their respective evidence and arguments at trial.” “The purpose of a pleading or statement of case is to inform the other party what the case is that is being brought against him. It is necessary that the other party understands the case which is being brought against him so that he may plead to it in response, disclose those of his documents which are relevant to that case and prepare witness statements which support his defence. If the case which is brought against him is vague or incoherent he will not, or may not, be able to do any of those things. Time and costs will, or may, be wasted if the defendant seeks to respond to a vague and incoherent case. It is also necessary for the Court to understand the case which is brought so that it may fairly and expeditiously decide the case and in a manner which saves unnecessary expense. For these reasons it is necessary that a party's pleaded case is a concise and clear statement of the facts on which he relies.”
“149. Particulars of Claim, in particular, should generally aim to set out the essential facts which go to make up each essential element of the cause of action – and thought should be given to whether any more than that is either necessary or appropriate, bearing in mind the functions which a pleading serves and whether any components of what is pleaded are subject to rules requiring specific particularisation.”
“The liquidator also sought to argue that, if his case was not made out as to the dates in January 1988, the directors should have concluded on subsequent dates that there was no reasonable prospect of Sherborne avoiding going into liquidation. This alternative case was not pleaded. It was only made clear that the liquidator was seeking to advance such a case after the evidence had been heard. It would not be fair to the respondents to permit the liquidator to pick a series of subsequent dates, or to invite the court to pick a subsequent date, saying in respect of such a date or dates that at least then the conclusion that there was no reasonable prospect that Sherbome would avoid insolvent liquidation should have been reached. Such a case would have required the examination of each date for this purpose.”
“All the witness statements, expert evidence and calculations of loss have been made on the basis that the liquidators have committed themselves to19 July 1991 as the latest date at which the directors ought to have caused Continental to cease to trade and to initiate the process towards liquidation. However, the points of claim para 45 have the wording ‘from at least19 July 1991 , alternatively at such other date as the court may determine’.”
“I am asked to rule on whether I am prepared to consider evidence or submissions arguing for a later date than19 July 1991 . My conclusion is that in principle I am not. I accept that in some cases under the same statutory jurisdiction the court itself has selected the starting date on which the period of wrongful trading commenced. However, in a case of the magnitude and complexity of this one I believe that it would be wholly unsatisfactory for the starting date to remain at large. In this connection I agree with observations of Jack J, then His Honour Judge Jack sitting as a High Court judge, in Re Sherborne Associates[1995] BCC 40 . I would not wish my decision to be cited hereafter as authority for the proposition that in all cases under s 214 the liquidator must always specify his starting date, and must lose the whole case if he cannot satisfy the court that his case is made out by reference to that particular date. Cases vary in detail and complexity. This case is as complex as any s 214 case is likely to be, and I think that, given the procedural history so far, the liquidators’ case must stand or fall with their chosen date of19 July 1991 .”
“16. In my judgment, it is quite clear from the authorities (including the older cases referred to in Mr Banner’s Skeleton Argument and in the Judgment of the Learned Registrar) that proof of loss to the Company is a necessary ingredient of a cause of action for breach of fiduciary duty or negligence under section 212. I do not accept that the section justifies a laxer approach to pleading than would be called for in a writ action. In my judgment the Defendant director is entitled to know what case is being made against him and it is necessary that the Claimant should (a) allege loss to the Company and (b) at least make clear the types of loss that are alleged to have been caused by the breaches of duty or negligence in question.”
“309. Had the Respondents not breached their duties as set out in these Points of Claim, they would have caused the Companies to cease trading on17 April 2015 or alternatively on some subsequent date prior to25 April 2016 . In the premises set out above, the entirety of the Companies’ trading after the Respondents should have ceased trading was misfeasant. Had the Respondents not breached their duties in that way, then the Companies and their respective unsecured creditors would not have suffered the increase in net asset deficiency particularised at Paragraphs 303 to 305 above.”
“28 Thirdly, you make the point that it will be unfortunate to countenance a different practice for officeholders as opposed to ordinary litigants.. The point I make here is that this claim is discrete, specifically a recovery which can be made under statute only by officeholders. They are not ordinary litigants and when you take all the facts of this case in the round, liquidators are entitled to rely on different approaches by the court, particularly the ICC which specialises in these types of cases, when considering whether or not the pleadings, which are very, very substantial, are sufficient to allow the respondents in this case to identify exactly what claims are being made against them, particularly on the issue of knowledge which is critical given that the primary period, the twelve month period, has been identified, has been particularised in terms of quantum, and the five alternative dates which have been produced are alternative dates which fall within that twelve month period band. It would be to the advantage of the respondents to identify in due course whether losses within that primary twelve month period, can be reduced if any of the alternative date periods find favour with the trial judge, so I do not find that a sufficient ground to give permission to appeal.”
“114. I have concluded that the approach taken by the liquidators to setting out and particularising their case as to the amount of compensation which the directors should be ordered to pay was fundamentally deficient throughout. The importance of one party setting out the parameters of the case it is advancing so that the other party may prepare for the case it has to meet, both in its evidence and its argument, is obvious. If authority is needed for this proposition notwithstanding its obviousness, it can be found in any number of authorities, including McPhilemy v Times Newspapers Ltd [1999] 3 All E.R. 775 at 792–793, Guild v Eskander Ltd[2002] EWCA Civ 316 ; [2003] F.S.R. 3 and Jones v Environcom Ltd[2011] EWCA Civ 1152 ; [2012] P.N.L.R. 5. It is obviously the best course, and in some cases the required course, for those parameters to appear from statements of case and particulars of statements of case. However, the authorities make it clear that where the details of a party’s case emerges sufficiently from the material it has served, including witness statements, the court will want to decide the real points in issue between the parties, where this can be done without unfairness to the other party, rather than allowing one party to take a stand on a “pleading point” in respect of a point of which it has had fair notice and a fair opportunity to address.”
“(8) So far as Mr Lightman’s submissions on the failure to plead loss or the seeking of a contribution are concerned, they are not sufficiently compelling in these circumstances as it is looking at the pleadings through a prism of perfection, a trap which Saville LJ’s comments referred to above cautioned against. The pleadings include the further and better information which is linked to the phrase “some other date” at para.299 of the points of claim, and the prayer. The primary IND claim is encapsulated within the twelve-month period. This may be ameliorated by expert analysis of the five alternative date claims within that 12-month period. I accept that there may be, at present, some prejudice to the respondents in not knowing at the moment what may be the exact quantification of those alternative date claims because these have not yet been calculated but to ask the Joint Liquidators to embark on that task now when it will be addressed by experts for all parties would not be proportionate.”
“40. However, where the court holds that there is a defect in a pleading, it Is normal for the court to refrain from striking out that pleading unless the court has given the party concerned an opportunity of putting right the defect, provided that there is reason to believe that he will be in a position to put the defect right. In para 19 of his Judgment the Master recorded that the Claimant had informed him that he already had witnesses. On17 January 2011 the Claimant demonstrated that that was not wishful thinking, or a bluff, by submitting the statements that he did submit.”