ICG Manager Limited & Ors v Colliers International Valuation UK LLP [2026] EWHC 1749 (Ch)

[2026] EWHC 1749 (Ch)Case No BL-2024-001106
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 13/07/2026
Before
MR DAVID HALPERN KC
Between
ICG MANAGER LIMITED (FORMERLY INTERMEDIATE CAPITAL MANAGERS LIMITED)ClaimantsICG LONGBOW SENIOR DEBT INVESTMENTS NO.1 LLPClaimantBUPA PENSION SCHEME TRUSTEES LTD ACTING IN ITS CAPACITY AS TRUSTEE OF THE BUPA PENSION SCHEMEClaimantAPEX GROUP FIDUCIARY SERVICES LIMITED (FORMERLY SANNE FIDUCIARY SERVICES LIMITEDClaimantCOLLIERS INTERNATIONAL VALUATION UK LLP T/A COLLIERS INTERNATIONAL (NO. OC391629)Defendant
Ms Alicia Tew (instructed by Burges Salmon LLP) for ClaimantsMr Diarmuid Laffan (instructed by RPC LLP) for Defendant(Approved Judgment)This judgment was handed down remotely at 10.30am on 13 July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................DAVID HALPERN KC SITTING AS A DEPUTY JUDGE OF THE CHANCERY DIVISION

Mr David Halpern KC :

[1]This is my judgment on the Claimants’ application to re-amend their Particulars of Claim. Some of the proposed amendments to the draft Re-Amended Particulars of Claim (“RAPOC”) are not objected to, and I will permit these to be made.[2]The facts underlying the dispute are briefly summarised in my first judgment dated 16 June 2026 ([2026] EWHC 1346 (Ch)). In short, the Claimants say that on 31 January 2018 the Defendant negligently overvalued a property on which the Claimants had previously made a secured loan. Their case is that, if a competent valuation had been given, they would have realised that the outstanding loan was more than 75% of the value of the property and hence breached the minimum loan-to-value ratio (“LTV”) in the facility agreement, and they would have taken immediate steps to sell the property, thereby avoiding the bigger loss which was made when the property was eventually sold.[3]Disclosure took place in December 2025. The Claimants say that the Defendant’s disclosure revealed for the first time that the Defendant’s valuer, Mr Paul Geoffrey Hale, prepared a draft valuation on 21 January 2018 in the sum of £22.41m (which represented an LTV of 79.2%), and that he had a conversation with Mr Mackenzie-Carmichael and/or Mr Noe of Capreon (the borrower’s agent) on 30 January 2018, following which he issued his valuation on 31 January with a revised figure of £23.75m (an LTV of 74.74%).[4]On 20 January 2026 Burges Salmon, for the Claimants, wrote the first relevant letter to RPC for the Defendant. They referred to the facts summarised in paragraph 3 above and said:
“1.2 In the absence of further evidence – and you say there is no further documentary evidence - it appears that your client’s Mr Hale (under pressure to “declare his hand” to our clients) had a telephone conversation with the borrower’s representatives, following which he increased his valuation from a figure which would have breached the LTV covenant to one which did not. We can see no other amendments to the Draft Valuation or anything in any of your client’s disclosed documents which objectively justifies or explains Mr Hale’s decision to increase the Market Value of the property (by altering the yield) in the 2018 Valuation. We cannot see any evidence that the increased valuation was sent to your client’s Risk Management team. Please direct us to any disclosed evidence in both respects. Please also confirm if you will be submitting witness evidence from Mr Hale and that he will be available for cross-examination at trial. 1.3 As things stand, we anticipate inviting the Court to infer from the available contemporaneous documentary evidence that Mr Hale increased the valuation in response to a request from the borrower’s representatives to ensure that the LTV covenant was met so that the loan facility would not be called in by our clients.”
The letter sought written explanations and further disclosure in this regard and concluded:
“3.1 Pending your explanation, the sequence of events described in this letter gives rise to serious concerns regarding your client’s approach to valuations and the satisfaction of its duty of care to our clients. It certainly causes our clients to have even greater confidence in the merits of their claim. They consider the potential reputational impact for your client will be profound if the Court draws the inferences which the current documentary evidence points to.”
[5]On 12 February 2026 RPC responded in part but did not engage with the inference which Burges Salmon was seeking to draw. On 19 March 2026 RPC wrote saying:
“None of these issues have been pleaded and we do not consider it appropriate or necessary to address in correspondence issues that have not been pleaded, and which would (at very most) be matters for evidence. We are not obliged to set out in correspondence our client's evidence on any issues, let alone issues that are not pleaded.”
[6]On 5 May 2026 Burges Salmon sent draft RAPOC to RPC and on 12 May it issued the current application. The covering letter said:
“1.1 Your suggestion that the proposed amendments seek to advance allegations of “conscious impropriety”, “wilful default” or “fraud” is firmly rejected. If that is the characterisation you seek to impose, it is a product of your own supposition, not the amendments to the Claimants’ pleaded case. 1.2 To be clear, the Claimants do not plead any allegation of intentional wrongdoing or impropriety, nor fraud. That is why no such case is set out in the draft Re-Amended Particulars of Claim. 1.3 Instead, the amendments articulate a further head of negligence arising directly from your client’s own Extended Disclosure. They do not alter the fundamental nature of the Claimants’ case; your attempt to recast the amendments as something other than that is not understood.”
[7]In my judgment the natural reading of Burges Salmon’s letter of 20 January 2026 is that they were alleging breach of fiduciary duty in consciously preferring the interests of the borrower to those of the Defendant’s client, the lender. I accept that the position was clarified by the letter of 12 May 2026, but the version of the RAPOC sent on that date continued to contain at least one ambiguity which was not resolved until the third draft (see paragraph 15(iii) below16.iii) below). Ms Alicia Tew (for the Claimants) relies on the fact that Burges Salmon has served three different versions of the RAPOC as evidence of how reasonably the Claimants have behaved. However, if and insofar as the earlier versions were deficient, this is a point against her and not in her favour.[8]I should add that it was no part of Ms Tew’s submission that the Defendant was in fact aware of the LTV in the facility agreement. Mr Diarmuid Laffan, counsel for the Defendant, told me that (as far as he was aware) the Defendant never saw the Claimants’ facility agreement which contained the LTV, and Ms Tew did not dispute this. (I mention this because paragraph 19.2 of the POC is slightly unfortunately worded. On first reading it led me wrongly to conclude that the Defendant was said to have been aware of the LTV.)[9]Mr Laffan sought to make submissions on the changes that were made between the first and third drafts of the RAPOC. However, I decided that it would be disproportionate for the court to consider this issue in relation to an application listed for 1½ hours. At the end of the day, what matters is whether the current draft should be approved. The history has no relevance, save possibly to costs and to the issue of the lateness of the application.[10]Each side referred to different authorities on the principles to be applied, but I did not detect any serious difference between them. Both sides accepted that: i) The Claimants are required to show that the amendments have a real, and not merely a fanciful, prospect of success. (Ms Tew submitted that the authorities did not necessarily require this in the case of further particularisation of an existing claim but was content to assume this burden.) ii) If the amendments are properly to be classified as “late” then there is a higher burden on the Claimants to persuade the court to allow them, as explained by Carr J (as she then was) in Quah Su-Ling v Goldman Sachs [2015] EWHC 759 at [38]. However, the Defendant accepted that they would not prejudice the trial date and hence were not “very late”. iii) The court has to consider whether the injustice to the Claimants in refusing to allow the amendments would outweigh the injustice to the Defendant in permitting them, in the context of the overriding objective. Real prospect of success?[11]The amendments to which the Defendant objects occur at three points in the RAPOC. The first is paragraphs 21A to 21J, which set out the facts on which the Claimants wish to rely in support of their new particulars of breach. Subject to two specific objections, Mr Laffan accepted that these amendments should be permitted if, but only if, the new particulars of breach are permitted.[12]The first specific objection is to paragraph 21A, which pleads an internal email from Mr Hale in which he says:
“I had forgotten how utterly awful it is here.”
This was said to be a reference to the property and to indicate that he had formed a negative view of it. The RAPOC does not expressly relate this to breach or causation. In my judgment it is a proper matter for cross-examination but has no place in a pleading, absent any attempt to relate it to breach.[13]The second specific objection is to paragraph 21G, which reads:
“It is to be inferred that during the aforesaid call on 30 January 2018, Capreon persuaded Mr Hale and/or Mr Hale decided after speaking to Capreon, to increase his valuation of the Property. Mr Hale increased the valuation to a level which did not result in a breach of the LTV covenant, although it is not alleged that Mr Hale knew or appreciated this at the time.”
[14]Mr Laffan’s objection to this is two-fold. Firstly that it is too vague and lacking in particulars, and secondly that there is no proper basis for drawing this inference. In my judgment these criticisms are misplaced. The basis of the inference is that Mr Hale had a conversation with the borrower’s agent and amended his draft figure next day. Mr Laffan told me on instructions that his client believes that the figure was changed before the conversation, in which case the conversation could not have influenced the change, but he said that his client could not be sure of the order of events, not having found relevant metadata. In those circumstances the pleading, if permitted, needs to be amended to make it clear that it is based on the assumption that the conversation preceded the change. If that alteration is made, the remaining question is whether it is reasonable to infer a causal connection from the temporal connection.[15]In the case of an allegation of fraud or wilful default based on inference, the court will not draw the requisite inference unless this is more likely than an inference of innocence or mere negligence. This rule does not directly apply in the present case, because the inference sought to be drawn is the basis for an allegation in negligence (not fraud or wilful default). The position can be tested by considering what conclusion the court would draw if Mr Hale chose not to give evidence. In my judgment, absent any documentary evidence of any facts or matters which led him to change his mind, the court could properly infer that Mr Hale changed his mind as a result of the discussion with the borrower’s agent. It would be unfair to require the Claimants to provide further particulars of a conversation about which they have no knowledge or means of knowledge, but which is entirely within the knowledge of the Defendant. Mr Laffan suggested in his skeleton argument that the right course for the Claimants would have been to serve a Part 18 Request to elicit this information. Wisely, he did not pursue this in oral submissions. If he had done so, it would have led to the obvious riposte that the Defendant would almost certainly have objected to such a Request.[16]The second set of amendments comprise further particulars of breach, as follows:
“34.10A Unreasonably decided to increase the Market Value from £22.41 million to £23.75 million (a 6% increase of £1.34m, by decreasing the net initial yield from 8.48% to 8%) when compared to the Initial 2018 Valuation; 34.10B Failed to obtain proper or any approval from the Defendant’s Risk Management team for the final 2018 Valuation; 34.10C Unreasonably and/or without justification decided to increase the Market Value from the Initial 2018 Valuation figure to the final 2018 Valuation with the (unplanned) effect that the reported value of the Property was not in breach of the LTV covenant; 34.10D Unreasonably and/or without justification permitted Capreon on behalf of the borrower to influence the figure stated for Market Value in the 2018 Valuation, in particular in increasing it with the (unplanned) effect that the reported value of the Property was not in breach of the LTV covenant;”
[17]The Defendant objects to these allegations on the ground that they are not properly particularised and further that they add nothing to the existing allegation of negligent overvaluation. I will take the individual paragraphs in turn: i) As regards 34.10A, I consider it is properly arguable that it was negligent to decrease the yield in the absence of a good reason for doing so. (A lower yield would result in a higher property value.) This is further support for the overarching allegation of overvaluation. ii) As regards 34.10B, I consider it properly arguable that it was negligent not to seek approval from the Defendant’s risk management team. Mr Laffan says that the Claimants have failed to plead what the risk management team would have done, if approval had been sought. I do not consider this to be a reason for refusing the amendment. Clearly, if the Claimants are right, a competent risk management team would have refused to approve; if the team had approved, it might have led to different particulars of negligence. iii) As regards 34.10C, this makes no sense to me. As originally drafted, it failed to include the word “unplanned”, which understandably led RPC to criticise it as ambiguous, in view of Burges Salmon’s assertion that there was no allegation of breach of fiduciary duty. As it currently stands, it duplicates 34.10A. Further, given the statement that the alleged consequence was unplanned, I cannot see what place it has in a pleading of breach of duty. iv) As regards 34.10D, I have already said that I consider it to be arguable that the Claimants are entitled to draw the inference at paragraph 21G. I also consider it arguable that it is negligent for a valuer advising a lender to let himself be influenced by representations made by the borrower, unless these representations are objectively justifiable. However, I do not consider that the Claimants should be allowed to plead the unplanned consequence, for the same reason that I have declined to permit this in 34.10C.[18]The third set of amendments to which objection is taken relate to causation. I set out the first part of paragraph 35 with the proposed amendments underlined:
“The Defendant’s breaches as pleaded above caused the Claimants to suffer loss and damage. Had the Defendant identified in its 2018 Valuation that the true Market Value of the Property at that date was £16,900,000 (or within a reasonable margin of this); or alternatively in the 2018 Valuation reported a Market Value below the threshold required by the LTV covenant: 35.1 This would have immediately identified that the Borrower was in breach of the LTV covenants in the Facility Agreement and the Claimants would have had the opportunity at that time to consider and as appropriate implement all remediation/ enforcement options as a consequence. 35.2 The Claimants would have given the Borrower/Sponsor the opportunity to make a payment to bring the LTV below 75%, which would have required a payment from the Sponsor of around £5 million; or alternatively such amount as required to correct the LTV breach. However, there was no real chance that the Sponsor or Borrower would have elected, or alternatively been able, to make such a payment.”
[19]Mr Laffan’s objection is that this is an attempt to argue by the back door that the Defendant was negligent in reaching a valuation which would prevent the LTV from being breached. I agree with him that it is not open to the Claimants to run such a case, given that there is no allegation of a breach in that regard. However, in my judgment that is not the purpose of the amendment. I consider that the reference to LTV is simply a shorthand way of saying that, if the court does not accept the Claimants’ figure as to the true market value (or the appropriate bracket around that figure), the court might nevertheless conclude that the Defendant was negligent in overvaluing the property in a sum which had the effect of the Claimants not realising that the LTV had been breached. I consider that the Claimants should be permitted to run that case. Lateness[20]I am told that the PTR is due to take place on 23 or 24 July and that the trial is due to start in early October. The only impact of allowing the amendments (apart from re-amending the Defence) is that it will be necessary for the Defendant to have permission for Mr Hale to serve a supplementary witness statement dealing with these allegations. Mr Hale’s first witness statement was served on 8 May 2026, which was after Burges Salmon had written to RPC with the first draft RAPOC. Mr Hale’s statement does refer to the meeting on 30 January 2018 but says nothing about the issue pleaded in paragraph 21G.[21]It was correct for Mr Hale to say nothing about that issue, given that the pleading had not yet been agreed or approved. Nevertheless, it would be wrong for the Defendant to gain any advantage by choosing to serve its witness statements at a time when it knew that this issue was live. The Defendant should have permission to serve a further witness statement from Mr Hale, limited to this issue. Mr Laffan very properly did not contend that this would prevent the trial from proceeding.[22]The current application could not have been made until Burges Salmon had had a reasonable opportunity to digest the disclosure provided by RPC in December 2025. In my judgment Burges Salmon did not delay unduly by raising the issue in January. It is unfortunate that they did so in a way which reasonably led RPC to consider that breach of fiduciary duty was being alleged. This led to time being wasted whilst that was resolved. The application could have been issued earlier than 12 May, but I do not consider that the delay has caused the Defendant any real prejudice, which cannot be cured by an order for costs. The exercise of the court’s discretion[23]In my judgment there would be more injustice in preventing the Claimants from being allowed to advance their revised case than would be caused to the Defendant by granting the application.[24]In accordance with the overriding objective, I therefore allow the amendments to the following extent: i) Paragraphs 21B to 21J, subject to adding in paragraph 21G that this is predicated on the Claimants’ understanding that the conversation with Capreon preceded the revised valuation; ii) Paragraphs 34.10A, 34.10B and 34.10D (down to “Valuation”); and iii) Paragraph 35.[25]The Claimants are to pay the costs of and occasioned by the amendments (including the undisputed amendments), to include the costs of making consequential re-amendments to the Defence and the costs of preparing a further witness statement for Mr Hale.[26]I will hear the parties as to the timetable for amending the Defence and serving a further witness statement and as to the costs of the application.

Cited in 1 later judgment