Edgeworth Capital (Luxembourg) S.A.R.L. v Cuatrecasas Gonçalves Pereira LLP [2025] EWHC 1014 (Ch)

[2025] EWHC 1014 (Ch)Case No BL-2024-000237IN THE HIGH COURT OF JUSTICECHANCERY DIVISIONBUSINESS AND PROPERTY COURTS OF ENGLAND AND WALESVenue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 2 May 2025
Before
MASTER MCQUAIL
Between
EDGEWORTH CAPITAL (LUXEMBOURG) S.A.R.L.ClaimantCUATRECASAS GONÇALVES PEREIRA LLPDefendant
Simon Davenport KC and Simon Goldstone (instructed by Withers LLP) for ClaimantGraeme McPherson KC and Samuel Cuthbert (instructed by Kennedys Law LLP) for DefendantHearing Hearing date: 4 February 2025
Approved JudgmentThis judgment was handed down remotely at 11.30am on 2 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]This is my judgment following the hearing of the defendant’s application to strike out the claimant’s Claim Form and the claimant’s application to amend the Claim Form and the Particulars of Claim.[2]The claimant, Edgeworth Capital (Luxembourg) S.A.R.L, is a Luxembourg SPV with no employees. Its shares are held within a family trust structure for the benefit of Robert Tchenguiz and his family. Its sole director is a company called Elton Limited (Elton). R20 Advisory Limited (R20) is a company registered in this jurisdiction and owned by a trust of which members of Mr Tchenguiz’s family are beneficiaries and which functions as a “family office” for the benefit of Mr Tchenguiz and his family. R20 has at various times described itself or held itself out as representing or acting on behalf of the claimant. Nicole Martin (Ms Martin) is a director of R20 and has described herself variously as the claimant’s “General Counsel”, “Legal Counsel” or “In-house Legal Counsel”.[3]The defendant, Cuatrecasas Gonçalves Pereira LLP, is the London arm of a large law firm comprising multiple international offices and entities.[4]The underlying dispute between the parties is a professional negligence claim with a pleaded value of €213m. The claimant contends that the defendant acted negligently and in breach of retainer in connection with the sale of an SPV in which it had an interest (the Transaction).[5]The SPV had acquired assets and liabilities of the insolvent Marme Group in Spain. The assets included the freehold of Banco Santander’s office in Madrid, the liabilities included obligations to pay interest to Marme Group’s creditors. In early 2019 the Spanish Supreme Court gave judgment in two cases (the Decisions) the effect of which was to prevent creditors recovering interest following presentation of insolvency proceedings. The claimant says that the effect was to increase the value of the SPV, which was no longer liable for a sum of €426m, with the result that Banco Santander purchased the SPV at a price wrongly premised on the requirement that that liability be funded.[6]The claimant says that the defendant failed to advise it of the Decisions before completion of the Transaction in June 2019 and that it thereby lost the opportunity to negotiate a higher sale price or retain an asset of higher value than the sale price.[7]The defendant denies the claim.

The Retainer

[8]Marco Antonio Sanz (Mr Sanz) sent a document dated 23 March 2018 entitled “Service and Fee Proposal” (the Fee Proposal) to which were annexed “General Hiring Conditions” (the GHC) to the claimant at R20’s registered address marked for the attention of Ms Martin and sent to her at n.martin@r20advisory.com. That document was headed “Cuatrecasas” on each page. On the page bearing the date, the name of the claimant and R20’s address, was the London Office address of the defendant. The document explained that the proposal was that advice to the claimant would be provided by Mr Sanz and Ignacio Bull (Mr Bull) “from our London office” with the support (as required) of named Barcelona lawyers. The GHC included a clause submitting issues in the agreement between the claimant and Cuatrecasas to the courts of the city in which the office sending the fee proposal is located. The GHC also contained clauses apparently intended to limit the quantum of liability for negligence and to provide a contractual limitation period of five years. The proposal was countersigned by Ms Martin above the name of the claimant describing herself as acting “on behalf of R20 Advisory Limited” on 11 April 2018.

Procedural History

[9]Minutes of a meeting of the director of the claimant held on 19 February 2024 attended by Will Annan and Rob Titterington representing Elton record that the claimant was intending to file a claim in England and/or in Spain against Cuatrecasas described as the claimant’s “former Spanish lawyers.” The claimant resolved that Ms Martin described as “Head of Legal of R20” be expressly authorised to sign “the Letter Before Action to be sent to Cuatrecasas in accordance with Practice Direction on Pre-Action Conduct and the Claim Form in relation to the Claim.” The minutes were signed by Will Annan and Rob Titterington.[10]On 19 February 2024 R20 sent(i) A “Letter Before Action” in English marked for the attention of Mr Sanz and Mr Bull to Cuatrecasas Gonçalves Pereira at its London office address. On its face it records it was sent physically by “certified post” and to the cuatrecasas.com email addresses of Mr Sanz and Mr Bull; and(ii) A “Reclamation Extrajudicial” in Spanish marked for the attention of Mr Sanz and Mr Bull to Cuatrecasas Gonçalves Pereira at its Barcelona office address. On its face it records it was sent physically by “correo postal” and to the cuatrecasas.com email addresses of Mr Sanz and Mr Bull.[11]Each of these letters (the Letters Before Action), which are agreed by the parties to be in materially identical terms, criticised Cuatrecasas Gonçalves Pereira’s conduct in connection with the Transaction which was said, in paragraph 6 of the English version, to be pursuant to the engagement of “Cuatrecasas by R20 to act as legal advisors to [the claimant] (theEngagement)” as:
“governed by the fee proposal sent by Marco Antonio Sanz (Mr Sanz) on 27 March 2018, returned signed by Nicole Martin, Legal Counsel and director of R20 (Mrs Martin) in her capacity as legal representative of Edgeworth on 11 April 2018 (the Fee Proposal).”
The Letters Before Action referred to the claimant having lost an opportunity to obtain a greater profit from the Transaction had it been advised properly and to a belief that the claimant should be compensated for the loss it suffered. Each letter was signed by Ms Martin describing herself as “Legal Counsel” on behalf of R20.[12]On 10 June 2024 Kennedys Law LLP (Kennedys) sent a letter of response to Ms Martin at R20. Kennedys identified its client as “Cuatrecasas” which entity was said to have been retained by the claimant in March 2018. The letter referred to the GHC applying to the retainer and the limitation of liability included therein. The last paragraph included this:
“In the event the claim is pursued in England (in accordance with the General Hiring Conditions which were issued from our London office), Cuatrecasas will seek security for costs.”
[13]On 18 June 2024 R20 acting on behalf of the claimant served a Claim Form which had been sealed on 20 February 2024 on the defendant by delivery to its London office address. Particulars of Claim were served by the same method on 20 June 2024 and so within the period prescribed by CPR 7.4(2).[14]On 3 July 2024 Kennedys wrote to R20 identifying three particular features of the Claim Form which remain relevant:(i) the Claim Form names the defendant as “Cuatrecasas Gonçalves Pereira” with no LLP (or SLP) suffix;(ii) the relief sought by the “Brief details of Claim” as set out in the sealed claim form is as follows:
“1 – This is a claim for a declaration that: a. Claim in tort. The Defendant owed the Claimant a duty of care to act with reasonable care and skill which was breached by a failure from the Defendant to advice the Claimant about the implications of two Spanish Supreme Court Judgements and that such failure caused Edgeworth loss in that it could have otherwise obtained a grater profit from the from the Santander Transaction. b. Claim in contract: the Defendant breached specifics terms of the engagement with the Claimant by failing to advice the Claimant about the implications of two Spanish Supreme Court Judgements and that failure caused Edgeworth loss in that it could have otherwise obtained a grater profit from the from the Santander Transaction. 2 – Further or other relief 3 – Costs. Value To be assessed”
Together with the statement “to be assessed” against the “Amount claimed” heading. Value To be assessed” (iii) the statement of truth was signed by Ms Martin describing herself, by ticking the corresponding box, as signing on behalf of “Claimant” and recording that the position or office she held with the claimant company was “Legal Counsel”.

Value

[15]Kennedys contended:(i) no entity with the name used by the claimant as the defendant in the Claim Form exists;(ii) the relief sought by the claimant is inappropriate and does not match the relief sought in the Particulars of Claim which, by its prayer, seeks: “(1) Damages as aforesaid. (2) An account of all profits earned by Cuatrecasas at the time it was retained jointly by ING and Edgeworth and an order for payment of such profits to Edgeworth. (3) Interest as aforesaid.”; and(iii) Ms Martin’s signature to the statement of truth does not comply with the requirements of CPR PD 22 para 3.1.[16]On 12 September 2024 Kennedys on behalf of the defendant issued an application to strike out the Claim Form pursuant to CPR 3.4(2)(c). That application is supported by the witness statement of Paul Castellani dated 12 September 2024.[17]On 19 September 2024 Withers LLP (Withers) filed and served a notice of change of legal representative on behalf of the claimant, confirming that Withers had been instructed to act in place of R20.[18]On 15 November 2024 Withers on behalf of the claimant issued an application for permission to amend the Claim Form and the Particulars of Claim. The application is supported by the witness statements of Andrew Wass of Withers and Ms Martin both dated 15 November 2024.[19]There have been various iterations of the proposed Amended Claim Form. By the conclusion of the hearing the amendments for which permission is sought were identified as follows:(i) the addition of “LLP” to the name of the defendant;(ii) the striking through of the original brief details of claim and their replacement with the following: “The Claimant claims damages of Euros213m for professional negligence as follows: 1. The Claimant claims damages for breach of contractual and/or common law duty by the Defendant. 2. The Defendant was at all material times the Claimant’s appointed law firm. The Claimant had retained the Defendant to advise and represent it in conjunction with the proposed acquisition and (subsequently) disposal of a company directly or indirectly holding Banco Santander’s “Ciudad Financiera” (‘the Property’). 3. The breach of duty comprised the failure by the Defendant to advise the Claimant of the implications of two judgments of the Spanish Supreme Court in cases 3000334/14 and N11/2015 handed down in February 2019 and April 2019 respectively (‘The Spanish Judgments’). Those decisions had a significant impact on the value of a company called Sorlinda Investments SLU (‘Sorlinda’) in which the Claimant (via a Joint Venture) held an interest and which had acquired the rights to own the Property. 4. As a result of the Defendant’s breach of duty: (a) in June 2019 Sorlinda was sold to Banco Santander at a price that was €426m lower than would have been achieved had the Defendant advised the Claimant of the Spanish Judgments: and (b) the Claimant lost the opportunity to earn from the said sale 50% of said sum. 5. The Claimant claims the sum of €213m being the increased revenue it would have received upon the sale of Sorlinda but for the Defendant’s breach of duty.(iii) the striking through of “To be assessed” in the “Amount Claimed” box and its replacement with “Euros 213m”; and(iv) that Mr Wass would sign the statement of truth.[20]In summary it is the contention of the defendant that one or more of the defects identified means that the Claim Form should be struck out. The claimant says that to the extent that there are any defects in the Claim Form the correct course is to allow it to amend to remedy them. It is accepted by the Defendant that if the strike out application fails the amendments to the Claim Form and the Particulars of Claim are likely to be permitted.

Relevant Parts of the CPR

[21]CPR 2.3 provides the definition of “Statement of Case”. It:
“(a) means a claim form, particulars of claim where these are not included in a claim form, defence, counterclaim or other additional claim, or reply to defence; and (b) includes any further information given in relation to them voluntarily or by court order under rule 18.1.”
[22]CPR PD 16 paragraph 2.4 provides:
“2.4 The claim form must be headed with the title of the proceedings, including the full name of each party, where it is known – … (4) for a company or limited liability partnership registered in England and Wales, the full registered name, including suffix (plc, Limited, LLP, etc), if any;” (4) for a company or limited liability partnership registered in England and Wales, the full registered name, including suffix (plc, Limited, LLP, etc), if any;”
[23]CPR r.16.2(1) provides:
“(1) The claim form must - … (b) specify the remedy which the claimant seeks; (c) contain a statement of value in accordance with rule 16.3.”
[24]CPR 16.3(2) provides that where the claimant is making a claim for money:
“(2) The claimant must, in the claim form state – (a) the amount of money claimed; (b) that the claimant expects to recover— (i) not more than £10,000; or (ii) more than £10,000 but not more than £25,000; or (iii) more than £25,000 but not more than £100,000; or (iv) more than £100,000; or (c) that the claimant cannot say how much is likely to be recovered.” (a) the amount of money claimed; (b) that the claimant expects to recover— (i) not more than £10,000; or (ii) more than £10,000 but not more than £25,000; or (iii) more than £25,000 but not more than £100,000; or (iv) more than £100,000; or (c) that the claimant cannot say how much is likely to be recovered.”
[25]CPR 22.1(a) provides that a statement of case must be verified by a statement of truth.[26]CPR PD 22 at paragraph 2.1 sets out the prescribed form of statement of truth and at paragraph 3 sets out by whom the statement of truth must be signed in the case of a corporate body: “3.1 Where a document is to be verified on behalf of a company or other corporation, subject to paragraph 3.4 to 3.6 below, the statement of truth must be signed by a person holding a senior position in the company or corporation. That person must state the office or position held. 3.2 Each of the following persons is a person holding a senior position(1) in respect of a registered company or corporation, a director, the treasurer, secretary, chief executive, manager or other officer of the company or corporation; and(2) in respect of a corporation which is not a registered company, in addition to any of the persons set out in sub-paragraph (1), the mayor, the chair, president or town clerk or other similar officer of the corporation. …. 3.6 Where a party is legally represented, the legal representative may sign the statement of truth on their behalf. The statement signed by the legal representative will refer to the client’s belief, not their own. They must state the capacity in which they sign and the name of their firm where appropriate. … 3.9 A legal representative who signs a statement of truth must sign in their own name and not that of their firm or employer.” (1) in respect of a registered company or corporation, a director, the treasurer, secretary, chief executive, manager or other officer of the company or corporation; and (2) in respect of a corporation which is not a registered company, in addition to any of the persons set out in sub-paragraph (1), the mayor, the chair, president or town clerk or other similar officer of the corporation.[27]CPR PD6A para 6.2, which concerns personal service on a company or corporation provides a very similar definition of persons holding senior positions to that in PD 22.[28]A legal representative is defined in CPR 2.3(1) as a:
“(a) barrister; (b) solicitor; (c) solicitor's employee; (d) manager of a body recognised under section 9 of the Administration of Justice Act 1985; or (e) person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the conduct of litigation (within the meaning of that Act), who has been instructed to act for a party in relation to proceedings;”
[29]CPR r.22.2(2) expressly empowers the Court to strike out a statement of case which is not verified by a statement of truth. A similar power to strike out is given by CPR Part 3.4(2)(c) where a party has failed to comply with a rule or practice direction or court order.[30]The notes in the White Book at 3.4.17 provide a reminder that “the draconian step of striking a claim out is always a last resort.” In Biguzzi v Rank Leisure Plc [1999] 1 WLR 1926 Lord Woolf MR said:
“In many cases there will be alternatives which enable a case to be dealt with justly without taking the draconian step of striking the case out.”
[31]CPR 19.4 provides that:
“(1) The court’s permission is required to remove, add or substitute a party, unless the claim form has not been served.”
[32]CPR 17.1(3) provides that: “(2) If his statement of case has been served, a party may amend it only—(a) with the written consent of all the other parties; or(b) with the permission of the court. (3) If a statement of case has been served, an application to amend it by removing, adding or substituting a party must be made in accordance with rule 19.4.” (a) with the written consent of all the other parties; or (b) with the permission of the court.[33]The parties agree that CPR 17.4 and CPR 19.6 which concern amendments after the expiry of statutory limitation periods have no application as the only limitation period that may be argued to have expired is a 5 year contractual period. Accordingly the granting or refusing permission to amend is a matter for the Court’s discretion taking account of all relevant factors.

The Identity Issue

[34]The defendant says that the Claim Form does not correctly identify the intended defendant. The claimant accepts that, in error, “LLP” was omitted from the name of the defendant and that an amendment is required in order correctly to name the defendant.[35]The claimant says that its application to amend should be determined in accordance with the Overriding Objective:(i) the interests of justice are best served by allowing the amendment;(ii) no prejudice would be caused;(iii) there can have been no confusion as to the identity of the intended defendant;(iv) the claimant points to the note in the White Book at 17.4.5: “Where an action is mistakenly commenced in the name of a claimant company which had ceased to exist as a result of a merger, the Court has power, to correct the name of the claimant company, since the mistake had gone to the name rather than the identity of the claimant, and such amendment would relate back to the date of commencement of proceedings so that there never was a non-existent claimant.”(v) the reported cases concerning the correction of names arise under CPR 17.4(3) where the statutory limitation period has expired and the applicant must demonstrate a “mistake” which was “genuine” and not such as to “cause reasonable doubt as to the identity of the party in question” if they are to be permitted to amend. Examples include: The Sardinia Sulcis [1991] 1 Lloyd’s Rep 201 – where the proceedings were brought in the name of the ship owner which had ceased to exist by reason of a company merger by the time the issue of the claim; and Rosgosstrakh Limited v (1) Yapi Kredi Finansal Kiralama A.O. (2) Mehtap Denizcilik San. Ve Tic. Ltd. Sti [2017] EWHC 3377 (Comm) – where the named claimant had changed its name and corporate structuring and so ceased to exist before the issue of the claim form;(vi) the claimant says that its application to amend is not made under the stricter regime of CPR17.4(3) and the misnomer by the omission of “LLP” is akin to a spelling mistake rendering the party sued non-existent, but obviously identifiable, such that it could not seriously be suggested that the claim should be struck out;(vii) Ms Martin’s evidence is that neither the lawyer who drafted the Claim Form nor she noticed the omission of “LLP” and that that was an honest mistake. She points out that the Engagement Letter uses only the name Cuatrecasas without any suffix, but includes the defendant’s London office address and points out that the defendant invoiced the claimant nearly £850,000 pursuant to the Engagement Letter.[36]The defendant says:(i) Mr Castellani’s evidence is that the claimant “engaged with” lawyers from Cuatrecasas Gonçalves Pereirabased in both London and Barcelona in the relevant period some of whom are not members or employees of the defendant;(ii) the minute of the claimant’s board meeting on 19 February 2024 records that the claimant was intending to file a claim in England and Wales and/or in the Spanish courts against its former Spanish lawyers;(iii) letters of claim were sent to both the LLP and the SLP;(iv) the Brief Details of Claim do not identify the intended defendant;(v) this is not a case where the claimant intended to sue and has sued an entity providing the wrong name, the Claim Form names a non-existent entity;(vi) Mr Castellani’s witness statement includes a brief digest of correspondence concerning the Identity Issue and exhibits copy documents including the hand-addressed envelopes in which the Claim Form and Particulars of Claim were delivered to the defendant’s London Office, both of which include the suffix LLP and he relies upon them to conclude that the claimant was aware of the correct name of the legal entity it intended to sue;(vii) permitting an amendment would prejudice the defendant by depriving it of the ability to argue that the contractual five year limitation period in the GHC applied to the claim. On well-established principles the effect of an amendment would be back dated to the date of issue. The better course is to strike out the claim and allow limitation to be tested in fresh proceedings. The Relief Issue.[37]The claimant acknowledges, as it must, that the Claim Form seeks a different remedy from the Particulars of Claim.[38]The claimant: (i) says that claiming declaratory relief does not mean that the Claim Form is defective or that it was wrong to claim such relief. It accepts that claiming declarations as the only relief in a professional negligence claim would be unusual but says that the trial judge would as a matter of discretion be able to grant a declaration and points to the commentary in the White Book at 40.20.2:
“When considering whether to grant a declaration or not, the court should take into account justice to the claimant, justice to the defendant, whether the declaration would serve a useful purpose, and whether there are any other special reasons why or why not the court should grant the declaration”; (ii) points out that the relief sought included “further or other relief”, and even if the claim for a declaration should be struck out that would not mean the whole claim should be struck out; (iii) says no authority or rule has been identified which mandates the striking out of the claim of a claimant with a sustainable cause of action where the claimant includes a claim for an inappropriate remedy; (iv) relies upon the decision of the Court of Appeal in Evans v CIG Mon Cymru [2008] 1 WLR 2675 where the claimant wrongly referred to “abuse at work” in his claim form while the Particular of Claim claimed remedies for an “accident at work”
. There the defendant successfully applied to strike out the Particulars of Claim as inconsistent with the claim form and resisted the claimant’s application to amend to align the claim form with the particulars of claim, which was made after the expiry of the statutory limitation period and so governed by CPR 17.4. The Court of Appeal allowed the claimant’s appeal. Toulson LJ referred to the various relevant parts of the CPR including CPR Part 17 dealing with amendments to statements of case and the definition of statement of case to which I have referred. He concluded “that the term refers compendiously to a party’s case as set out in its pleadings.” In circumstances where the claim form and particulars of claim were all served together he concluded at [26] of his judgment that the proper approach is to look at the totality of the documents served, which together set out the claimant’s case and in that case included an obvious mismatch. Once that approach was taken the conclusion was that no new claim was being raised by the amendment application. In her concurring judgment Arden LJ discussed the proper interpretation of the claim form and the particulars of claim, which were served together, and were to be construed objectively but within the factual matrix which included a pre-action protocol letter and a telephone communication and concluded that the claim form ought to have been amended to properly reflect its true meaning. She described the result as a “blow in favour of the more cooperative approach to matters of procedure which was, surely, one of the purposes of the … Civil Procedure Rules.” In his concurring judgment Laws LJ criticised the decisions below as representing “a stark surrender of substance to form. We should not allow such a thing unless irresistibly driven to do so.”[39]The defendant’s position is that CPR 16.2(1) makes it mandatory for a Claim Form to specify the remedy sought and, where money is claimed, contain a statement of value. Those provisions must be intended to ensure that a defendant knows what is being claimed. The claimant should not be allowed to fundamentally change its case as to remedy after the expiry of the contractual limitation period and should be required to start again.

The Statement of Truth Issue

[40]The claimant does not accept that Ms Martin is not an appropriate person to sign the statement of truth on the Claim Form, although Mr Wass, who it is not disputed is an appropriate person, is willing to sign if necessary.[41]The claimant says:(i) it has no employees and its sole director is Elton. On 19 February 2024 the claimant by valid resolution authorised Ms Martin to sign the Claim Form. Ms Martin is a lawyer holding a valid practising certificate at both State (Queensland) and Federal Bar in Australia. She is a registered foreign lawyer with the SRA and is therefore allowed to practise law in England and Wales as a Registered Foreign Lawyer. She has been Edgeworth’s General Counsel, since around 2016. In her evidence Ms Martin explains that she has on multiple occasions been authorised to execute legal documents for Edgeworth, including in proceedings in which the defendant was involved. Further, it was she, on behalf of the claimant, who signed the retainer with which the current claim is concerned;(ii) relies upon Protea Leasing v Royal Air Cambodge Co Ltd[2000] 3 WLUK 162 a case where the claimant was a shell company and the signatory was its General Counsel. Timothy Walker J ruled that the fact that there was not a perfect synchronicity with CPR 22 did not matter ‘one iota’. The important thing was that the pleading “disclosed a respectable case”. The strike out application was dismissed. The claimant says that that case is entirely consistent with the mischief to which CPR 22 is directed as explained by the editors of the White Book at CPR 22.1.2: “the primary purpose of requiring statements of case (or amendments thereof) to be verified by statements of truth is to eliminate claims in which a party has no honest belief and discourage the pleading of cases unsupported by evidence which were put forward in the hope that something might turn up on disclosure or at trial(Clarke v Marlborough Fine Art (London) Ltd [2002] 1 W.L.R. 1731, Ch D).”(iii) relies also on the following passage in Zuckerman Civil Procedure: Principles of Practice, 4th Edition: “…an order to strike out a statement of case would be made only if the failure is substantial in the sense that it is indicative of a reluctance on the part of a litigant to stand behind their allegations. Purely technical failures would not justify a striking out application, as where a claimant has failed to verify the claim form but has verified the particulars of claim, or where the statement of truth on behalf of a company was signed by the wrong company officer. Where a striking out application is well founded, the court would normally give the defaulting party a chance to verify the statement of case and would therefore order that the statement of case should be struck out only if it is not verified by a certain date (PD 22 para.4.2).”(iv) Ms Martin’s evidence also referred to her representing and giving evidence on behalf of the claimant in previous proceedings without any challenge to her ability to do so;(v) the claimant points out that there is potentially a lacuna in the list at PD22 para 3 in the case of shell companies with corporate directors which will be unable to produce a natural person occupying the identified positions. The proper course is to read the list as permitting natural persons with appropriately delegated authority to sign on behalf of shell companies. If that is not done such companies could only participate in court proceedings by instructing English solicitors;(vi) to strike out would again be a triumph of form over substance. The rules do not mandate the strike out of an improperly signed statement of case;[42]The defendant:(i) points to the mandatory nature of the requirement for a statement of case, which includes the Claim Form, to be verified by a statement of truth in CPR 22.1(a) and points to the clear list of those occupying senior positions in registered companies or corporations who may sign and the alternative that a legal representative may sign in their own name and state the capacity in which they sign;(ii) relies upon [47] of the judgment of Simler LJ in Clarkson v Future Resources FZE [2022] EWCA Civ 230 CPR 22 where it was said:
“The signing of a statement of truth is no empty formality. Its importance is emphasised by the potential liability for contempt of court if signed without an honest belief in its truth. At interlocutory stages a statement of case, verified by a statement of truth is itself evidence of the truth of the facts alleged in it: CPR Part 36(2)(a).” (iii) points out that the claimant does not assert that Ms Martin was the claimant’s legal representative; rather, its position, according to the evidence of Mr Wass and Ms Martin herself, is that Ms Martin held a senior position in the claimant as “in-house counsel carrying out the role of General Counsel since around 2016.”
There is no evidence that she has been appointed to such a role in the claimant, rather than for the claimant; (iv) says that in any event the signature page of the Claim Form makes plain that Ms Martin did not sign it as a person holding a “senior capacity at the claimant.” The address and email address make clear her signature was appended as a director of R20. Similarly the board minute authorising Ms Martin to sign referred to authorising Ms Martin “Head of Legal at R20 Advisory” to sign the Letters Before Action and Claim Form; (v) points out that even if Ms Martin had a genuine belief that she was an appropriate person to sign the claim form there is no evidence that she gave any consideration to the issue before she signed and she plainly should have done so. The fact that her authority was not previously challenged in other circumstances is neither here nor there; (vi) identifies ways in which the Claim Form could have been signed by the claimant. Elton could have signed, as it signed the Minutes of the Meeting giving authority to Ms Martin to sign, by two directors. The claimant’s constitution provides that the claimant is managed by one or more managers; Ms Martin’s evidence is that Elton is now the only manager of the claimant, but a former manager was Jean Marc Faber; (vii) says that so far as the case of Protea is concerned in that case the company was a true shell company, which the claimant is not, and the person who signed held a power of attorney, putting it in the shoes of the claimant; (viii) so far as the passage in Zuckerman is concerned, says that the present case is closer to the situation referred to earlier in the same paragraph where a claimant repeatedly refuses to sign a statement of truth.[43]On the claimant’s application dated 15 November 2024 I gave permission after considering the papers for the parties to adduce expert evidence of Luxembourg law as to Ms Martin’s authority from the claimant to signed the Claim Form. My order contained the usual provision for a party affected to apply to set aside or vary. The defendant did not so apply and so both parties adduced expert evidence as permitted. It is now plain that the expert evidence is not directed to a question relevant to the applications before me. Discussion The Identity Issue

Discussion

[44]It is the clear evidence of Ms Martin that the omission of “LLP” from the name of the defendant in the Claim Form was a mistake and that the intention was to sue the defendant.[45]It is in any event unrealistic to assert that the claimant could have intended to sue a non-existent entity by these proceedings, there would have been no purpose in doing so. The only other possibility is that the claimant deliberately chose not to specify which of the LLP and the SLP to identify, but nothing could be gained by taking such a course and I reject that possibility as wholly implausible.[46]There are no possible candidate entities that the claimant could have been intending to sue apart from Cuatrecasas, Gonçalves Pereira LLP and Cuatrecasas, Gonçalves Pereira SLP.[47]The Claim Form gives the London address of the LLP.[48]From the face of the Claim Form it is apparent that the claimant intended to sue the party against which it had tortious and contractual claims relating to advice about the Transaction and that the claims were brought by reference to terms of an engagement between that party and the claimant. The only retainer by the claimant of a Cuatrecasas, Gonçalves Pereira entity was that contained in the Fee Proposal and GHC as countersigned by Ms Martin on 11 April 2018.[49]The retainer documentation itself did not include the suffix “LLP” within the Fee Proposal or the GHC but it was evidently intended to be a contract of retainer between the claimant and an entity. The only address given in the retainer documentation was the address of the London Office of the LLP and the documentation referred to advice being given from the London office with possible assistance from Barcelona lawyers and provided that the jurisdiction was to be that of the office which issued it.[50]Mr Castellani’s evidence is that the claimant engaged with lawyers from Cuatrecasas, Gonçalves Pereira based in both London and Barcelona during the period of the retainer, but there is no evidence that there was any contract of retainer between the claimant and the SLP. Kennedys’ letter of 10 June, while not identifying the defendant by suffix, refers to the issue of the GHC from “our London office”. Ms Martin’s evidence is that pursuant to the retainer advice was given by the LLP and that that entity charged and was paid substantial fees.[51]The Letters Before Action, although sent to Mr Sanz and Mr Bull at the offices of the LLP and the SLP are not addressed in terms to either entity but refer to the Engagement by reference to the retainer documentation sent out by Mr Sanz and returned signed by Ms Martin.[52]The Claim Form and the Particulars of Claim were delivered to the London Offices of the LLP in envelopes addressed to the LLP.[53]When one reads the Letters Before Action and the Claim Form and the envelope in which it was delivered together, the only possible conclusion is that the claimant intended to sue the defendant, the entity it had contracted with for the provision of legal services in 2018.[54]Taking all those matters together, I am entirely satisfied that a mistake was made in omitting LLP from the name of the defendant in the Claim Form, that the claimant intended to sue the defendant and that objectively viewed there can have been no doubt about the identity of the defendant.

The Relief Issue

[55]So far as the relief issue is concerned the Claim Form is not in orthodox form for a professional negligence claim. In addition to the unusual declaratory relief the Claim Form seeks further or other relief, which would obviously be capable of including an award of monetary compensation as referred to in the Letters of Claim.[56]When the Claim Form is read with the Letters of Claim it is apparent that the claimant is seeking monetary compensation for breaches of duty and contract. That conclusion is reinforced if it is also permissible to read the Particulars of Claim along with the Claim Form. There would be some absurdity in refusing to allow such a composite reading where the Particulars of Claim arrived with the defendant only two days after the Claim Form and before Kennedys’ 3 July 2024 letter taking issue with the content of the Claim Form.[57]The defendant has known since it received the English Letter of Claim that the claimant was intending to seek monetary compensation in connection with complaints about the performance of the Engagement.

The Statement of Truth Issue

[58]Ms Martin does not occupy a senior position with the claimant as defined in CPR PD 22 paragraph 3; she occupies no position with the claimant. Ms Martin is also not a legal representative of the claimant as defined in CPR 2.3(1). She is a director of R20 and was authorised to sign the Claim Form by the claimant in her capacity as “Head of Legal of R20”. That she was authorised by the claimant to sign the Claim Form and has previously been authorised to sign legal documents, has carried out legal work or been otherwise involved in legal matters for the claimant in the past makes no difference to whether or not Ms Martin was among those persons identified by the CPR as able to sign a statement of truth for the claimant. That she has described her role as “general counsel” or “in-house counsel” of the claimant does not mean that she occupied a senior position with the claimant or is or was the legal representative of the claimant.[59]As identified by the defendant there are various ways in which the claimant could have signed the Claim Form, but by giving authority to Ms Martin was not one of them.[60]It does not appear from her evidence that Ms Martin ever gave considered thought to the question of whether she could properly sign the Claim Form. However, that seems to have arisen from a lack of care and attention rather than any lack of belief in the matters which she was stating she believed to be true. It was she who signed the retainer documentation and upon whose instructions the defendant acted throughout the course of the retainer.

Conclusions

[61]Should the defects in the Claim Form whether taken individually or in combination lead me to strike it out? As explained in Biguzzi, striking out is a draconian step and I should consider whether the alternative of allowing the claimant to amend its Claim Form in the three respects I have identified would be the just way of dealing with the case.[62]The omission of “LLP” was a genuine mistake as to name not as to identity and could not have caused any reasonable doubt as to the identity of the intended defendant. It is plain from the cases to which I have been referred that if the matter were to be considered in the context of an application to correct such a mistake after the expiry of a statutory limitation period, correction of the name by amendment of the Claim Form would normally be allowed. Under CPR 17.1(3) and 19.4 it is a matter of my discretion whether to permit the addition of “LLP” to correctly name the defendant in the Claim Form. In exercising that discretion I must have regard to the Overriding Objective. Since in this case the claimant would overcome the stricter hurdle applicable were a statutory limitation period to have expired, it would be unjust to conclude that the potential expiry of a contractual limitation period should prevent the claimant from being allowed to amend to name the defendant correctly.[63]The claimant failed to set out the remedy it sought in the Claim Form, other than by referring to “further or other relief”, and failed to set out any statement of value as required by the CPR. However, when the whole factual matrix is viewed objectively it seems to me that just as in the Evans case it would be a triumph of form over substance not to permit the claimant to align by amendment the relief sought by its Claim Form with the relief it clearly set out in the Letters Before Action and in the Particulars of Claim served only two days after the Claim Form, and within the permissible period for serving the Claim Form. The defendant was aware of what the claimant was seeking, namely damages for breaches of retainer, from February of 2024.[64]As I have explained, I do not consider that Ms Martin was the appropriate person to sign the statement of truth on the Claim Form. It does not appear that she gave the matter appropriate thought before doing so or that she re-assessed the position when challenged by Kennedys in correspondence. It is important that statements of truth are taken seriously and a substantial failure to comply with the rules as to statements of truth might lead to a strike out if it were indicative that the case advanced was unsupported by evidence. Here Ms Martin is the person who instructed the defendant and had conduct of the retainer on behalf of the claimant and is likely to know as much about the claimant’s case as anyone else on the claimant’s side. Ms Martin is a foreign lawyer registered with the SRA, she has signed the statement of truth confirming that she understands proceedings for contempt of court may be brought against her if the document signed contains a false statement absent an honest belief in its truth. Mr Wass has said he will sign the statement of truth in an amended Claim Form. None of that indicates that this is a case where the failure to comply with the rules can be regarded as substantial and indicative of a litigant not being willing to stand by the case it is putting forward. It would not be appropriate or deal with this case justly if I were to strike out the Claim Form rather than give the claimant the opportunity to file and serve an amended Claim Form signed by Mr Wass as the claimant’s legal representative.[65]I will permit the claimant to amend its Claim Form in the manner described in paragraph 19 and, assuming that Mr Wass signs a statement of truth in accordance with the rules verifying that amended statement of case, I will dismiss the strike out application. Since the defendant has not, save by its strike out application, opposed the proposed amendments to the Particulars of Claim I will permit those amendments.[66]The application by the claimant to amend has been necessitated by a remarkable lack of care in preparing a Claim Form for the purpose of advancing a €213m professional negligence claim. On the other hand the defendant has made an opportunistic strike out application, without regard to the cooperative approach to matters of procedure which was, as Arden LJ pointed out in the Evans case, “one of the purposes of the … Civil Procedure Rules.”[67]I will deal with consequential matters at a further hearing.

Cited in 1 later judgment