Lowry Trading Limited & Anor v Matthew Haycox [2025] EWHC 2754 (Comm)

[2025] EWHC 2754 (Comm)Case No CC-2024-MAN-000047IN THE HIGH COURT OF JUSTICEVenue BUSINESS & PROPERTIES COURT IN MANCHESTERCIRCUIT COMMERCIAL COURT (KBD)1 Bridge Street WestVenue Manchester M60 9DJDate Tuesday, 9 th October 2025
Before
HIS HONOUR JUDGE PEARCE(Sitting as a Judge of the High Court)
Between
LOWRY TRADING LIMITEDClaimantSCOTT FLETCHERClaimantMATTHEW HAYCOXDefendant
MR JONATHAN COHEN KC and MR ASHLEY CUKIER (instructed by Edmonds MarshallMcMahon) for ClaimantsTHE DEFENDANT appeared as Litigant in Person for in person
JUDGMENT(via MS Teams)
Digital Transcription by Marten Walsh Cherer Ltd2 nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HPTel No: 020 7067 2900. DX: 410 LDEEmail: info@martenwalshcherer.com
[1]This is my judgment on the claimants’ application for summary judgment. This is a claim brought in deceit. The tort of deceit is committed where a representor makes a false representation, knowing it to be untrue or being reckless as to its truth, and intending that the person to whom the representation is made should act in reliance on it. To the extent that the person to whom the representation is made in fact relies on the representation and suffers loss as a result, the representor is liable in the tort of deceit for such loss. It will be noted that the tort does not require an express finding of dishonesty or, necessarily, fraud on the part of the person making the representation, though it will often be the case that one or both of those descriptions fit the representor’s conduct. But the reference to the fact that the representation must not only be false but be false to the knowledge of the representor inevitably means that a court engaging with a claim in deceit is engaging with the question as to whether a person has lied which is likely to be considered disreputable conduct by society at large..[2]In the course of submissions, Mr Haycox referred to the passage from the judgment of the late Lord Etherton when he was Chancellor of the High Court in Allied Fort Insurance Services Limited & Ors v Creation Consumer Finance Limited [2015] EWCA Civ 841. The relevant passage of that judgment has buried in it two quotes by other distinguished judges. It is a helpful starting point for anybody considering an application for summary judgment in a claim of this nature:
“81. ...although summary judgment is not precluded in a case in which the honesty of one or more of the parties is in issue, particular caution should be exercised before depriving a party of the opportunity of rebutting allegations of dishonest conduct: comp ED&F Man Liquid Products v Patel [2003] EWCA Civ 472...and Wrexham Association Football Club v Crucialmove Limited [2006] EWCA Civ 237... As Sir Igor Judge P, with his wealth of experience handling both civil and criminal cases, wisely observed in that case: ’57. I do not underestimate the importance of a finding adverse to the integrity of one of the parties. In itself, the risk of such a finding may provide a compelling reason for allowing a case to proceed to full oral hearing, notwithstanding the apparent strength of the claim on paper, and the confident expectation, based on the papers, that the defendant lacks any real prospect of success. Experience teaches us that on occasion apparently overwhelming cases of fraud and dishonesty somehow inexplicably disintegrate. In short, oral testimony may show that some such cases are only tissue paper strong. As Lord Steyn observed in Medcalf v Weatherill (2003) 1 AC 120 at paragraph 42, when considering wasted costs orders: “The law reports are replete with cases which were thought to be hopeless before investigation but were decided the other way after the Court had allowed the matter to be tried.’” ’57. I do not underestimate the importance of a finding adverse to the integrity of one of the parties. In itself, the risk of such a finding may provide a compelling reason for allowing a case to proceed to full oral hearing, notwithstanding the apparent strength of the claim on paper, and the confident expectation, based on the papers, that the defendant lacks any real prospect of success. Experience teaches us that on occasion apparently overwhelming cases of fraud and dishonesty somehow inexplicably disintegrate. In short, oral testimony may show that some such cases are only tissue paper strong. As Lord Steyn observed in Medcalf v Weatherill (2003) 1 AC 120 at paragraph 42, when considering wasted costs orders: “The law reports are replete with cases which were thought to be hopeless before investigation but were decided the other way after the Court had allowed the matter to be tried.’”
[3]It is entirely right that this court should be extremely cautious before entering summary judgment against somebody accused of disreputable or dishonest conduct. Summary judgment applications are rare in cases where fraud or deceit are alleged. But they are not unknown, in particular where either one or both of the following features are present: firstly, the defendant admits that they have knowingly made an untrue statement; and, secondly, that the defendant has made a statement that the claimant says it can prove is untrue in circumstances where one would expect the untruth to be apparent to the defendant when the statement was made, yet the defendant fails to address the circumstances of how they came to make that statement. As Ms Clare Ambrose, sitting as a Deputy Judge of the High Court, said in Rahbarpoor v Suliman [2021] EWHC 2686, having referred to a string of cases on the question as to whether a defence has a real prospect of success for the purpose of Part 24 of the Civil Procedure Rules:
“27. All these cases show that a court must show very considerable caution in granting summary judgment where dishonesty is critical to the claim in question, especially where each side will effectively be saying that the other is lying. This is the paradigm case for having a trial, where each side’s witness evidence can be challenged. However, Foglia and Easyair do suggest that the court may properly be willing to grasp the nettle where there is firm, unanswerable contemporaneous evidence suggesting that the defence to the allegation of dishonesty has no real prospect of success.”
[4]The principle is well illustrated by the facts of case of Verdi Law Group PC v BNP Paribas SA & Ors [2023] EWHC 1860. Picken J was asked to determine, as part of a summary judgment application, a question as to whether certain documents were authentic. In essence, the judge found that the evidence that those documents were fake was unanswerable and he rejected an argument that he should leave determination of the issue to the trial judge on the grounds that it might be that, by the time of trial, the court would be better placed to determine the issues with confidence. I should add that that case is no more than an illustration of the general proposition that even cases involving allegations of disreputable conduct, forgery, dishonesty, and such like, where that disreputable conduct is not admitted, may nevertheless be considered suitable for the summary judgment jurisdiction.[5]It is the claimants’ contention that this claim falls into both of those two categories that I have mentioned, first, on the basis that Mr Haycox admits that some of his statements were untrue. He uses different expressions for that. His skeleton argument refers to “strategic misstatements.” In the course of oral submissions last week, he described himself as having told “white lies.” Whichever phrase one uses, it involves Mr Haycox accepting that some of what he said to the claimants was, to his knowledge, untrue. Further, in respect of a material part of the claim to which I shall come, what the particulars of claim terms “the Initial Representations”, the claimant alleges that what Mr Haycox said is obviously untrue, or, at least on the face of it, is so obviously untrue that it calls for an explanation from Mr Haycox as to the circumstances in which he made the statement, yet he has not given such an explanation. In those circumstances, the case falls into the second of those two categories that I refer to above, and the claimants contend that it is open to this court to give summary judgment where the defendant has had an opportunity to explain but has not done so.[6]Turning to the application itself, it is made by notice that appears in page 152 of the bundle. The application came on for hearing on 29 September 2025. I have before me the witness statements of Ms Liina Tulk for the claimant, dated 29 July, and from the defendant himself, dated 8 September. I had the benefit of skeleton arguments from both parties and I have reread those skeleton arguments for the purpose of giving judgment today. As will be seen, I have considered a further argument beyond that which was addressed orally but which is at least touched upon within the defendant’s skeleton argument.[7]By way of overview, the first claimant, Lowry is a company owned by a family trust. The second claimant, Mr Fletcher is a beneficiary of that trust. At the relevant time, one of the directors of Lowry was a Mr Robert Nugent, whose involvement in this case, as we will see, is of significance.[8]Huddle Capital Group Limited was part of a group of companies which engaged in non-bank peer-to-peer lending for property development projects. The scheme by which the Huddle group operated often involved the establishment of special purpose vehicles (“SPVs”) for specified investors to provide loans which were then sub-loaned to specified borrowers. Mr Haycox was not a director of companies in the Huddle group. I note an allegation that has been made during the course of this litigation that he acted as a shadow director. It is wholly unnecessary for the purpose of this summary judgment application to address that issue, or indeed to delve further into the dealings between Mr Haycox and the Huddle group of companies., although the issue had some relevance to another issue in the case touched upon below relating to the conduct to the claimants’ former solicitors.[9]In any event, Mr Haycox acted as a broker in respect of relevant loans for two special purpose vehicle companies called SPV 20 and SPV 3. The claimants contend that by Mr Haycox’s representations they were induced to invest several million pounds into those two companies, but the investments were in truth worthless.[10]For the purpose of this application, the court is concerned only with the SPV 20 loan. In that case, Mr Fletcher initially lent £4.5 million and, subsequently, there was a refinance deal by which Lowry effectively refinanced the remaining indebtedness to Mr Fletcher, which was a sum in excess of £2 million. The basis of SPV 20 was that the finance was necessary to loan to purported borrowers, Nicholas and Ayse Sutton, for a renovation project at Homestall Manor in East Sussex. The fact that this was the expressed basis of the loan forms part of what the particulars of claim call “the Initial Representations.”[11]It is common ground that the loan monies sent to SPV 20 were not in fact provided to the Suttons and that the Suttons never in fact entered into a loan agreement with SPV 20. The claimants contend also that, in the course of the Initial Representations, Mr Haycox misstated that the Suttons had executed documents (copies of which he produced with an email) when in fact those documents were not executed as of that time. It had seemed, in advance of the hearing last week, that Mr Haycox accepted that the transaction documents were not in fact executed but that he had represented them to be executed. It appeared that the issue was somewhat different, although during the course of his submissions it would appear that he considered that those documents had been executed and, accordingly, a factual issue may arise. In any event, after the monies were advanced by Mr Fletcher that was said to form the loan to the Suttons through SPV 20, Mr Haycox made various further representations about the performance of the SPV 20 loan. It is the claimants’ case that those representations necessarily implied that the money had been loaned to the Suttons pursuant to the scheme of the SPV 20 vehicle. In the particulars of claim the claimants call these “the Subsequent Representations.” Those representations are, at least in part, accepted by Mr Haycox to have been untrue.[12]SPV 20 is one part of the claim in this action. The other part is a claim in respect of SPV 3. Like the SPV 20 claim, that is a claim in deceit. However, it is not the subject matter of this application and I do not need to address SPV 3 any further.[13]At the hearing last week, an initial issue arose on the defendant’s application to adjourn the hearing of the summary judgment application. This claim has a considerable procedural history and that included, amongst other things, an application by the claimants to amend the particulars of claim in respect of the Initial Representations. I granted such permission and, in response, the defendant was granted permission to amend his defence. That permission did not expressly limit any amendments to ones that were consequential on the claimants’ draft amended particulars of claim. The amended defence as filed went beyond the bounds of dealing with that which was raised by way of amendment to the particulars of claim and, by order dated 26 August 2025, I struck out parts of the amended defence which were not consequential on the amended particulars of claim.[14]Mr Haycox has sought permission to appeal that decision and he sought, both from this court and from the Court of Appeal, an adjournment of this application pending the determination of the appeal. The Court of Appeal referred the application made to it back to me, declining to make the order sought.[15]At the hearing last week, the position taken by Mr Cohen KC for the claimants was that, notwithstanding the claimants’ argument that the appeal was unarguable and permission should be refused, I could in fact determine this application on the assumption that the Court of Appeal reverses my decision and permits the defendant to argue the additional points. That was a sensible concession. It is always relevant for a court considering a summary judgment application to bear in mind whether an amendment to a statement of claim could save a party from having the case summarily determined against them. In the case of the amendments which Mr Haycox had made to the defence and which were not permitted to be pursued at this stage, it had occurred to me that it was possible that, with those arguments being recast and better particularised, the defendant might succeed in an application to amend, at least in respect of part of the material. It follows that I would inevitably be considering the possibility of an amended defence giving rise to arguable points when I consider the claimants’ summary judgment application. In this case, that is most easily done by simply assuming that I got matters wrong on the occasion on which I refused permission to amend and considering the case on the alternative bases that permission to amend is, in due course, allowed.[16]In light of that concession from Mr Cohen, I refused Mr Haycox’s application for reasons given at the time. It is to be noted that that was an outcome which Mr Haycox could not necessarily have anticipated. One could not blame him for having thought that either he would succeed in his application to adjourn or that, if he did not succeed in it, the hearing last week would go ahead without him being able to refer to those parts of the amended defence that I had struck out. This is reflected in his written skeleton argument insofar as he makes no more than passing reference to those matters which were the subject of my strike-out. He expressly made the point last week that he had not prepared for the hearing on the basis that he was able to argue the content of his amended defence and his oral submissions did not really expand on any of those arguments to any significant degree.[17]One of the reasons why I did not hand down judgment immediately after hearing submissions last week was that I wanted to make sure that I had had the opportunity properly to consider any alternative arguments that might arise, were it to be the case that the struck-out amended defence were reinstated on appeal, to ensure that I had given every possible consideration to any arguable case that might reasonably be advanced on the part of the defendant.[18]I turn to how the claimants put its claim, dealing first of all with the Initial Representations. The Initial Representations, as relied on for the summary judgment application, were the subject matter of the application to amend the particulars of claim. That is because the claimants contend that a document came to light which changed the character of the case and which enabled them to present the argument as to deceit in a different way. The relevant parts of the pleaded case are paragraphs 13 and 14:
“13. On 17 November 2022, Mr Haycox sent an email to Mr Nugent Mr Nugent was of course a director of Lowry with a proposal for investment in SPV 20 (‘the 17 November email’). Mr Haycox knew and expected that Mr Nugent would communicate the content of the email to Mr Fletcher. The proposal was as follows: (a) Mr Fletcher (or Lowry) would advance £4.5m to SPV 20; (b) SPV 20 would sub-loan to Ayse and Nicholas Sutton (‘the Suttons’), who were hoteliers turning Homestall Manor, a 14th century residential property, into a luxury hotel destination (‘the Homestall Project’); (c) The Suttons were borrowing £4.5m in order to refinance the previous loan that they had taken out in relation to the Homestall Project (‘the SPV 20 loan’); (d) The SPV 20 Loan would be for a term of 6 months, to be repaid in full on the repayment date; (e) The SPV 20 Loan would be secured against Homestall Manor, which was unencumbered (other than the existing loan to be refinanced) and had a valuation of circa £7.5 million.” 14. In support of the proposal in the 17 November email, Mr Haycox stated that there had been delay with the ‘legals’ (a reference to the contractual documents required to execute the SPV 20 Loan), but that they were ‘now there’, meaning that those documents had been executed. So as to demonstrate that, he attached to the 17 November email (split into two as a result of the file size) valuation reports, signed facility agreements and charge agreements in relation to Homestall Manor all of which were, on their face executed. So as to explain why there were two sets of documents, one set signed on behalf of Huddle, and the other by the Suttons, he said that they had been signed in ‘different locations’, which was ‘the usual counterpart scenario’ (‘the Transaction Documents’) He also provided details of a bank account in the name of SPV 20. This corroborated the existence of the Homestall Project and necessarily represented that the Suttons had committed to taking the SPV 20 Loan which had executed the Initial SPV 20 Representations. The Initial SPV 20 Representations incorporated the Business Model Representations, in that the former were designed to give the impression that the SPV 20 Loan was an executed transaction in accordance with the principles of the latter.”
It is the claimants’ case that, in reliance on the Initial Representations, Mr Fletcher invested £4.5 million. (a) Mr Fletcher (or Lowry) would advance £4.5m to SPV 20; (b) SPV 20 would sub-loan to Ayse and Nicholas Sutton (‘the Suttons’), who were hoteliers turning Homestall Manor, a 14th century residential property, into a luxury hotel destination (‘the Homestall Project’); (c) The Suttons were borrowing £4.5m in order to refinance the previous loan that they had taken out in relation to the Homestall Project (‘the SPV 20 loan’); (d) The SPV 20 Loan would be for a term of 6 months, to be repaid in full on the repayment date; (e) The SPV 20 Loan would be secured against Homestall Manor, which was unencumbered (other than the existing loan to be refinanced) and had a valuation of circa £7.5 million.”[19]The so-called Subsequent Representations are pleaded at paragraph 17 of the amended particulars of claim:
“17. Following entry into the SPV 20 terms by Fletcher, further representations were made by Mr Haycox, or on his instructions, to Mr Nugent to Mr Fletcher, as follows: (‘the Subsequent SPV 20 Representations’) (a) On 7 December 2022, Mr Haycox provided a report investigating the title of Homestall Manor by Clarion Solicitors. That implied that SPV 20 had loaned money, secured against Homestall Manor. (b) Monthly statements were received from December 2022 to December 2023 (save for May and November when the monthly statements were not provided) setting out the sums said to be due and paid in respect of interest on the SPV 20 Loan, together with the amount of outstanding principal. (c) Periodic payments, which purported to be monthly interest payments of £534,483.87 on the Fletcher investment were made. (d) Payments which purported to be capital repayments of the Fletcher investment totalling £2,145,000 were made. (e) By emails dated 7 February 2023, 3 March 2023, 5 May 2023, 30 May 2023, 4 August 2023, 6 September 2023, 10 September 2023, 25 October 2023 and 26 January 2024, and by WhatsApp voice note of 25 May 2023, updates were provided and representations made by Mr Haycox about the performance of the SPV 20 Loan. By necessary implication, these updates represented that the SPV 20 Loan had in fact be made. (f) On 13 September 2023, Mr Haycox and Mr Fletcher met in person and discussed the future approach that would be taken in respect of SPV 20 (amongst other matters). Mr Haycox said nothing to disabuse Mr Fletcher of his belief, implicit in the discussion, that the SPV 20 Loan had been made.”
[20]During 2023, discussions took place about the refinancing of Mr Fletcher’s Loan to SPV 20, and, in January 2024, Lowry agreed to stand in Mr Fletcher’s shoes, taking over his investment. That is pleaded at paragraph 18 of the particulars of claim.[21]In fact, the claimants contend the SPV loan had not been executed. This allegation is set out at paragraph 20(a) of the amended particulars of claim. The purportedly executed documents were, the claimants say, forgeries and the claimants contend that there is compelling evidence that the defendant was aware that they were forgeries. However, I make clear that, for the current purposes of this summary judgment application, the claimants do not rely on the allegation of forgery, simply the assertion that the statement made by Mr Haycox about the SPV 20 judgments having been executed was untrue in circumstances where he must have known that it was untrue. the claimants contend that that is self-evidently the case when one looks at some documents, to which I will come in a moment, showing that in fact the Suttons had not agreed to enter into the arrangement and discussions were continuing to take place. Indeed, by December, the potential deal looked very much to be on the rocks.[22]Further, the claimants contend that the Subsequent SPV 20 Representations were also untrue. No investment was ever made, so there was never an investment in respect of which Mr Haycox could report about its performance. Further, the claimants contend that the defendant obviously knew that the representations were untrue.[23]The claimants note that the defendant does not, in substance, plead to the Initial Representation save to accept that the documents provided by the claimants on 17 November “implied correctly that the Suttons were in the process of taking out the SPV 20 loan”: see the defence at paragraph 14(b). He accepts that he represented that, on 17 November 2022, the Homestall Project existed and the Suttons intended to proceed with a loan facility: see, again, the defence at paragraph 14(b). Beyond this, the defendant does not plead to the Initial Representation.[24]As to the Subsequent Representations, he admits that a number of them were false and that he knew them to be false. The admission of falsity is in paragraph 18 of the defence. The admission of knowledge of falsity appears in the defence at paragraph 23 and it is of some significance to note what Mr Haycox says by explanation of the falsity of the Subsequent Representations. In paragraph 23, by way of summary, Mr Haycox says that he discovered in around mid-January 2023 that the £4.5 million invested by Mr Fletcher in SPV 20 had not in fact been lent onwards to the Suttons but had been diverted elsewhere by a business colleague, Mr Pickthall.[25]The pleading in this issue is at paragraph 23 of the defence:
“(a) In around mid-January 2023, Mr Haycox discovered that the £4.5 million invested by Mr Fletcher in SPV20 had not been lent onwards to the Suttons; instead, and as Mr Haycox is only now aware, on 12 December 2022 SPV20 had paid £4,000,625 into a client account with Clarion Solicitors Ltd (Clarion, solicitors to SPV20) whilst awaiting onward lending to the Suttons; between 13 January 2023 and 26 January 2023 Clarion paid sums totalling £3,575,625 of such sums into Huddle SPV4 Limited’s (SPV4) bank account. Mr Haycox’s understanding is that: Clarion misdirected the funds to SPV4’s account; accordingly, Mr Anthony Pickthall (who was the sole director of SPVs 4 and 20) had mistakenly identified the money as a payment from a 3rd party investor for use by SPV4; Mr Pickthall had, around mid January 2023 mistakenly used £2 million of such sums for onward investment connected with SPV4; (b) After discovering that these sums had not in fact been SPV 4’s funds, Mr Pickthall informed Mr Haycox that he anticipated that the 3rd party investor would shortly invest the expected sums into SPV 4, at which point both Messrs Pickthall and Haycox expected the misallocation of funds to be rectified, so as to return the £4.5 million to Mr Fletcher.”
[26]The defence goes on at paragraph 24:
“On that understanding Mr Haycox elected not to tell Mr Fletcher about Mr Pickthall’s error, and covered up that error by providing Mr Fletcher with positive updates about the loan to the Suttons, which had in fact not completed, while intending that he be repaid as soon as possible. Mr Haycox took such actions in response to Mr Fletcher’s tendency to volatile and unpredictable conduct, which often manifested in mood swings and impaired decision-making. It was important, in Mr Haycox’s judgment, to pick the right moment to disclose the problem to Mr Fletcher.”
[27]It will be noted that earlier in this judgment I made reference to Mr Haycox in his written submissions having referred to “strategic misstatements” and in his oral submissions to having referred to “white lies.” My understanding is that the explanation in paragraph 24 of the defence similarly goes to his explanation for why it was that he knowingly made misstatements to Mr Fletcher. In any event, having alleged that the representations were untrue and that the defendant knew the representations were untrue, the claimants say that it is clear that investment was in fact induced by that deceit and that the tort of deceit is, therefore, made out.[28]By way of defence, the defence denies that the Initial Representations were untrue, but it is a bare denial, without explanation. It admits the untruth of the Subsequent Representations, but it denies any deceit and, most particularly and importantly denies that the claimants entered into the investments in reliance on any misstatement that might be identified.[29]It is notable to see what Mr Haycox says in his witness statement. At paragraph 3, he denies any fraudulent inducement of investment. He asserts that SPV 20 was a real transaction which was actively being negotiated between real parties represented by real law firms. Just because the deal later collapsed and attempts were made to regularise and refinance the position does not, as he put it, retrospectively convert a genuine transaction into a fictitious one. He goes on to say that when he later gave updates that proved inaccurate, these were made with the purpose of securing recovery and minimising loss. He was not in control of what monies moved where.[30]At paragraph 11 and following of his witness statement, he denies that he knew that the loan documents circulated on 17 November were forgeries. As I have said, that is not in fact in issue for the purpose of the summary judgment application. His description of the transaction at paragraph 16 of his statement is that, as at 17 November, the Sutton transaction was “not yet completed.”[31]He then goes on to deal with the assertions of untruth in his representation in his Initial Representation. That involves considering a sequence of emails that begin with the 17 November 2022 email. That is an email from Mr Haycox to Mr Nugent under the subject heading, “New deal pay-out,” Attachments: Homestall Hall AY valuation, Legal Charge - Lender, Lender - Facility.” “Hi Rob. Hope all is good. Scott Mr Fletcher, the second claimant has been chasing me on this as he doesn’t like missing out on high interest opportunities!! But it has run behind with the legals - we are now there. I attach the loan docs and legal charge doc, along with the usual trust dead. [sic] You have 2 copies of each of the lending docs because 1 is signed by huddle and 1 by the borrower (usual counterpart scenario as signing from different locations). have a blast through and let me know any questions. once confirmed i will get you the bank details over which are for Huddle direct you will be pleased to know! ...” The attachments to the email are stated to be “Homestall Hall AY valuation,” “Legal Charge – Lender” and “Lender - Facility.”

Hope all is good. Scott

[32]As the claimants point out, on 6 December 2022, Mr Haycox emailed Mr Chris Whitney at the email address development@homestallmanor.com, saying as follows:
“Gents. Chris, you and i have spoken on this last week so i assume has been relayed to Nick Mr Sutton . As of today we need to start to applying non utilisation interest to the loan. I have held off investors for as long as possible but can do so no longer. Also have lawyers going mental as they have 8k on the clock with a 3k undertaking. The world has changed since this deal was offered and I have done everything possible to keep the wheels on the track despite many protestations. I know we are being told that things are happening in the back ground but it all feels very ‘wishy washy’, with no clear plan/timeline, and i can’t lose investor relationships over this. so from today we will need to accumulate daily interest at a pro rate of 1.25 per cent per month. obviously that is only any good if the deal actually closes otherwise we won’t be able to claim it. so I must set a hard stop of 14 December.” so I must set a hard stop of 14 December.”
[33]So, whilst on 17 November Mr Haycox email says “We are now there” and encloses what appear to be executed documents, in this email on 6 December, he is talking about the fact that the deal “has not closed.” On 7 December, Mr Haycox again emails the address “development”, copying in Mr Chris Whitney, and saying, amongst other things:
“I don’t want to sound like a repetitive bore, but really can’t keep it alive past the end of next week.”
[34]Then on to an email on 15 December, again to the “development” email address that I have referred to already, the defendant states:
“Nick, can’t get a response from you. The deal is now dead anyway...”
[35]Of that last email, Mr Haycox says, at paragraph 17 of his statement:
“On 15 December 2022, I sent an email to the Suttons stating that ‘the deal is now dead.’ That statement was a negotiation tactic and reflected frustration at the lack of progress. It was not an admission that the SPV 20 loan had never existed. In the property finance market, it is common to say a deal is ‘dead’ to promote urgency or movement, even where documentation has been exchanged and solicitors remain involved. It is necessary to have a trial so that I can bring industry experts to explain this as a tactic, as well as cross-examining the introducing broker on this transaction who was aware of my frustrations at the length of time the deal was taking and agreed with me that we should ‘pressure’ the Suttons in this way.”
[36]At paragraphs 21 and 22 of his statement, the defendant says of the subsequent Representations that he accepts that some of them were inaccurate, but says they were never made with the purpose of inducing fresh investment:
“My overriding concern at that stage was damage control. By then it was apparent that the SPV 20 loan had not completed in the straightforward way originally envisaged and that funds were caught up within the wider Huddle structures. My communications were aimed at managing Mr Fletcher’s expectations, reducing volatility, and creating space to secure repayments.”
[37]In respect of the argument of inducement to invest, Mr Haycox argues that his statements were always made to Mr Fletcher and not Lowry and that he did not seek to induce Lowry to do anything. In fact, the refinancing of the loan by Lowry was driven by Mr Fletcher’s own internal needs and desires, nothing that he had said. He explains this a little further at paragraph 29 of his statement:
“By late 2023, the drivers for the refinance were not my email updates, but Fletcher’s and Lowry’s own internal considerations: • Mr Fletcher was concerned about tax exposure and the need to have loans refinanced. • Lowry’s directors, including Mr Nugent, had fiduciary duties and had already taken professional advice about moving loans into Lowry’s names. • They wanted to ensure charges were properly registered and that trust obligations were satisfied.” • Mr Fletcher was concerned about tax exposure and the need to have loans refinanced. • Lowry’s directors, including Mr Nugent, had fiduciary duties and had already taken professional advice about moving loans into Lowry’s names. • They wanted to ensure charges were properly registered and that trust obligations were satisfied.”
[38]Mr Fletcher then goes on, at paragraph 34, to summarise what he says are the issues to be tried in this case:• “Whether the SPV 20 loan was ‘fictitious’ or a genuine transaction that collapsed;• Whether the 17 November ‘22 documents were authentic, or forgeries;• What I knew and believed at the time I circulated them;• Whether my later updates were dishonest inducements or pragmatic attempts at damage control; and• Whether Lowry’s decision to refinance in January 2024 was caused by my statements or by its own fiduciary and tax drivers.”[39]As I have said, I have borne in mind the initial additional arguments that would have been before the court had I not struck out paragraphs of the amended defence. I can summarise those very simply: i) Paragraph 1(a) of the original amended defence refers to issues of volatility of Mr Fletcher. ii) Paragraph 1(b) refers to allegations of forgery of documents on the claimants’ side. iii) Paragraph 1(c) refers to an allegation that Mr Fletcher cannot and does not believe in the validity of this claim because of his willingness to forego a right to monies in what might be described as a trivial fashion. iv) Paragraph 1(d) that Mr Fletcher is motivated in this claim by a desire for revenge.[40]Additional amendments which were non-consequential were contained in paragraphs 55(a) to 55(d) of the amended defence, but it is common ground that they related exclusively to SPV 3 and, therefore, could be of no relevance to this application in any event.[41]I turn to deal with the relevant law. I have summarised the elements of the tort of deceit earlier. I would note several points made been with the skeleton argument of the claimants, all of which seem to me correctly to identify relevant elements of the authorities on the issues that arise. First of all, that, with respect to the issue of the intent of a party who makes a representation:(i) intention is rebuttably presumed once fraudulent misrepresentation is established;(ii) intention to induce a claimant into acting is established not only if the defendant positively intends it be the case, but also if the defendant appreciates that it is likely to be the case;(iii) provided that intention is established, it does not matter whether the claimant acted in precisely the way that the defendant intended.[42]The second area covered within the claimants’ skeleton argument is reliance and loss. i) if the representation is a material one, once a fraudulent misrepresentation with intention to deceive is proven, there is a rebuttable presumption that the claimant in fact relied on the representation. That is a point to which I shall return later. ii) the presumption is difficult to rebut where the claimant has in fact acted as was intended. iii) the fraudulent representation need not be the sole dominant or even a decisive cause of the claimants’ action. iv) given the difficult of establishing what would happen in a hypothetical scenario in which different representations were made, the relevant question is whether the claimant was in fact induced by the lie, not what the claimant would have done in other circumstances. v) how a person would have acted if not told a lie is seldom, if ever, to be discerned by reference to direct evidence from that person. The question of how a person would have acted in hypothetical or counterfactual circumstances is a matter of inference on which, as Stuart-Smith LJ said in Allied Maples Group v Simmons & Simmons [1995] 1 WLR 1602:
“Direct evidence is never likely to be useful.”
[43]Finally, though I have to say with some caution I note the principle that the court applies a ‘fair wind’ principle, recognising that if it is the defendant’s fault that the court does not know what would have happened but for the breach of duty so that a burden may be reversed such that it is for the defendant to show that loss would have occurred irrespective of that breach. That involves citing the distinguished judgment of Leggatt J in Yam Seng [2013] 1 Lloyd Rep 526, although the exact application of the ‘fair wind’ principle to particular circumstances is one which requires some care and is probably unlikely to be the basis upon which the court would grant summary judgment.[44]I turn to the issue of summary judgment and the law to be applied. CPR 24.2 provides that the court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if(a) it considers that the defendant has no real prospect of successfully defending the claim or issue; and(b) there is no other compelling reason why the case or issue should be disposed of at trial. So, the test is a twofold one: is there no real prospect of successfully defending the claim; and is there some other compelling reason why the case should be disposed of at trial? It is to be noted that CPR 24.2 is expressed as a discretion or a power rather than an obligation to give summary judgment in certain circumstances, so I suppose that, in any case, there is a residual discretion in the court not to give summary judgment. But it is difficult to imagine a case in which the court would decline to give summary judgment if it had already decided that there was no real prospect of successfully defending the claim and if it had decided that there was no other compelling reason for the case to be disposed of at trial.[45]In terms of the test of no real prospect of successfully defending, I refer to the well-known principles formulated by Lewison LJ in Easyair Limited v Opal Telecom Limited [2009] EWHC 339. They have been summarised and repeated so many times that it does not, I think, behove me to repeat them yet again. But I note Mr Haycox’s emphasis on the need that the court should not conduct a mini-trial, albeit that there are cases where the court can properly grasp the nettle.[46]During the course of his submissions, Mr Cohen KC for the claimants placed some emphasis on the burden of proof. This is of particular relevance to the issue of the Initial Representation. It is clearly established and set out at paragraph 24.2.4 of theWhite Book and authorities cited therein that if an applicant for summary judgment adduces credible evidence in support of the application, then the respondent is under an evidential burden to prove a real prospect of success. On the facts of this case, to which I shall come in my analysis in a moment, the claimants contend that on the issue of the Initial Representation it has raised a clear prima facie case that the defendant produced to it documents that were not in fact true and that, accordingly, he is under an evidential burden to explain why they did not amount to a misstatement.[47]I turn then to the application of the law as referred to above to the facts of the particular case. I have already pointed to the emails of 17 November from the defendant essentially to the claimants (one or both) and the email which was sent to the Suttons or people acting on their behalf on 6 December which the claimants say is at odds with the assertion in the email in November that they were ‘there with the legals’ and that executed documents could properly be produced. The claimants say quite simply that the email of 17 November including purported executed documents was the clearest of representations that the Suttons had committed to the scheme and had done so irrevocably by executing their side of the documents. The only thing left to be done was the provision of finance by the claimant himself and that, accordingly, the deal was a done deal as at the date of 17 November. In fact, the claimant says that was clearly untrue. It was not a done deal and, furthermore, Mr Haycox must have known that it was untrue given the emails that he was exchanging with the Suttons and those acting on the Suttons’ behalf in December. That, say the claimants, reverses the burdens of proof and requires the defendant to adduce evidence in response, yet none has been produced.[48]The defendant’s pleading is essentially silent on this issue. Indeed, there is some force in the claimants’ submission that a proper reading of the defence involves an admission that the documents had not been executed as at 17 November. When one sees that Mr Haycox admits paragraph 14 of the particulars of claim so far as it is consistent with paragraph 13 of the defence, then that, it seems to me, can, as a pleading point, properly be taken to be an admission of what is said in paragraph 14, namely that the documents were executed, since nothing in paragraph 13 of the defence is inconsistent with this assertion that the documents had been executed. However for the purpose of the summary judgement application, I do not hold the defendant to any admissions that he may have made but rather look at whether the claimant is in fact able to rley on the argument that the documents had not been executed for summary judgement purposes.[49]The defence, insofar as it deals with the question of knowledge of falsity, is a mere denial of knowledge. It gives no particularity of it. Yet the context of the making of the initial representations is one in which it is difficult to see how Mr Haycox could not have known that the initial representations were untrue if he knew that the deal was by no means a done deal. Mr Haycox, in my judgment, simply fails to engage with this point within his evidence or his submissions.[50]I accept that the defendant can show an arguable case in respect of the Suttons as at December, and, therefore, as at November, where he was negotiating with them seeking to get them “over the line” in other words seeking to get their commitment to the deal. I am willing to accept, certainly for summary judgment purposes, that when he later describes the deal as being dead, that does not necessarily mean that it cannot be resurrected. I am well aware from dealing with commercial litigation on a regular basis that, during the course of negotiations, those involved will make all kinds of statements in an attempt to achieve the end that they are seeking to achieve. It may be that Haycox thought that by being so clear to the Suttons that the deal was dead, he was actually putting pressure on them to make the deal complete. But that is not the point. The point is not why he was saying that to the Suttons in December. It is why he was saying what to the claimants in November that the parties were “there with the legals” - that is simply unexplained.[51]It is inevitably the case on a summary judgment application, bearing in mind all of the cautions that I have referred to above, that the court will at least consider the possible explanations that there may be for making apparently untrue statements. That task is made extremely difficult to consider them where the party who could be expected to explain the representations has failed to do so. In this case, whether I look at it as a question of a burden of proof or whether I look at it simply on the basis of whether a plausible defence has been raised or could be raised, there is no material that could lead a trial to any conclusion other than that when he made the assertions in the email of 17 November, which inevitably included the assertion that there was nothing more that the Suttons needed to do to be tied into the deal in SPV 20, that he knew that that was not true. It is simply not plausible that he could have believed what he was saying in that email to be true.[52]Turning then to the question as to whether that misstatement was a misstatement made with intention to deceive, in my judgment, there is no plausible explanation for the statement other than that it was made with intention to deceive. It is self-evident that the statement was made in order to try to get the investment in SPV 20. If there were any other explanation for it, one could expect Mr Haycox to have come forward with the explanation. But the absence of any other explanation is, I think, not want of effort on the part of Mr Haycox - it is because there is no other plausible explanation for it. -[53]Finally, in terms of inducement, Mr Fletcher asserts that he had advanced the money it SPV 20 because he believed that the deal with the Suttons was over the line and that he believed that because of the Initial Representation. No positive case is put in response to that. The defendant argues that he can simply put Mr Fletcher to proof of this. The judgment of Briggs J (as he then was) in 4 Eng Limited v Harper [2007] EWHC 1568 shows that that kind of argument is misconceived. By the time one gets to a summary judgment application, in which a claimant has signed a statement of truth asserting that they were induced to do the very thing that the representation upon which they relied intended them to do, the burden is very much upon the person making the representation to show some kind of arguable case that the inducement was not in fact effective.[54]In those circumstances, on the face of it, and subject to some other points to which I shall return later on, the claimants show a powerful argument for the grant of summary judgment in respect of the Initial Representations.[55]As to the Subsequent Representations, as I have indicated already, they are admitted to be untrue in large part insofar as they contained reference to the update of the performance of SPV 20 when, in truth, there was no performance of SPV 20 on which an update could be given.[56]The materiality of a reference to the performance of SPV 20 is self-evident. Any investor is likely to want to know how their investment is doing. Mr Fletcher certainly did. There is a series of email (B442 to B448) in the bundle in which he is asking for updates and which Mr Haycox duly makes the representations relied on within the particulars of claim. The performance of SPV 20 was clearly a matter of significance to him.[57]As the parties move, in late 2023, to the thought of refinancing, it is clear that the representations continue. One can see the sequence in the emails that I have referred to already. Moreover, for example, the representation in the email of 25 October 2023 was one made both to Mr Nugent, director of the Lowry Group, and to Mr Fletcher.[58]The claimants say that this is a typical example of the principle referred to within the textbookCivil Fraud at paragraph 1-1.05:
“A representation need not be made directly by the defendant to the claimant for it to be actionable. It is clear that if a representor makes a false representation to X, intending or expecting that it will be passed to, and acted upon, by Y, then the representor may be liable to Y in deceit; so too where the representor knows that a false representation to X has been passed on to Y and allows it to go uncorrected before contracting with Y.”
In this case, if X is Mr Fletcher and Y is Lowry, the communications were with both of them and were very clearly intended to influence either of them insofar as they were acting in respect of SPV 20. Indeed, it is a central part of Mr Haycox’s case that Mr Fletcher was controlling Lowry. If that be so, then it is all the more obvious that representations to Mr Fletcher are representations that are, in truth, being made to Lowry. But the case is stronger here where, in any event, representations were made to Mr Nugent who was a director of the first claimant.[59]Further, the claimants draw my attention to the authorities say that it does not matter who ultimately acts on the misrepresentation as long as the representor knows that the person entering into the contract knows of the misrepresentation. Pilmore v Hood(1838) 132 ER 1042 is authority for this proposition. The same point is made in Swift v Winterbotham (1873) LR 8 QB 244; and noted and considered to be good law by Flaux J as the then was in OMV Petrom SA v Glencore International AG [2015] EWHC 666.[60]I note in passing whilst referring to the representations that were made an email from Mr Nugent at page 450 in the bundle. In the body of the email, which is dated 2 November 2023, Mr Nugent, when asking about SPV 7, SPV 17 and SPV 20, says:
“Given the length of time they have all been in place for we need to work to get these novated over to Lowry asap please - I appreciate you don’t think this is necessary but the tax advice we have had on Scott’s behalf is that we need to move these out of Scott’s name and if they are not going to be repaid in full imminently then the only way to facilitate this is by refinancing them to Lowry. We (i.e. Paul Sweeney and I acting as both Directors of Lowry and also Trustees of the Trust which own Lowry) have also taken advice further with regard to the existing and refinancing loans - and in order to ensure we are fulfilling our fiduciary duties to the beneficiaries of the Trust whom we are acting on behalf of, and given the quantum of money involved with regards to these loans from Lowry, we will need to ensure that going forward we are adequately protected & the underlying loans and any charges on property are registered in Lowry’s name directly and we have the ability to act accordingly (if needed).”
That passage demonstrates several points, some of which Mr Haycox relies on, some of which the claimants rely on. It demonstrates the fact that the refinancing was for Mr Fletcher’s benefit, a point that the defendant places obvious and significant emphasis on. But it also emphasises that Mr Nugent is engaging with Mr Haycox about these loans and, more particularly, that Mr Nugent is engaging with his own duties as a director of a company, a point to which I shall return.[61]Mr Haycox’s case in respect of inducement is that the subsequent representations were irrelevant to the refinancing of this loan. The refinancing was going to happen anyway and was for tax reasons. Whilst the case is not expressly put this way, I suppose it amounts to this: that, even if the claimants had known that the representations were untrue and that there was no active SPV 20 to make repayments, the refinancing would have taken place anyway because it suited the claimants, specifically suited Mr Fletcher’s needs. That argument has several problems and ultimately, in my judgment, cannot succeed.[62]The first point is that these representations cannot be said to be in any way peripheral. They were central to the very investment in which Lowry was going or was considering investing. The actual existence of the investment must surely be something that would influence any responsible director in taking a decision. Put another way, if Mr Nugent had knowingly refinanced the loan in circumstances where he knew that SPV 20 was not a real investment, he would have been exposing himself to very severe consequences in terms of impropriety and breach of fiduciary duties as a director.[63]Second, the email from Mr Nugent to which I have referred already is not consistent with the idea that the investment would have happened in any event. Rather, it is consistent with the idea that Mr Nugent was seeking to ensure that everything was in place in respect of the investment. It is difficult to believe that he would not have been concerned if he had known that the investment was not even genuine in the way that he had been led to understand.[64]Third, and in many ways most importantly, the question of how a party in the position of Lowry would have acted in alternative circumstances is one that needs to be considered with very great care. The issue was considered by Longmore LJ in the judgment of the Court of Appeal in BV Nederlandse Industrie Van Eiprodukten v Rembrandt Enterprises Inc [2020] QB 551, following Smith v Chadwick 9 AC 187. Lord Longmore had this to say:
“25 ...if a representor fraudulently intends his words to be taken in a certain sense and the representee understands them in that sense and enters into a contract, it is likely to be inferred that the representee was induced to enter into the contract on the faith of the representor’s statement. It is fair to call this a presumption of inducement. But it is a presumption of fact which can be rebutted, not a presumption of law which cannot be rebutted or can only be rebutted in a particular way. The tribunal of fact has to make up its mind on the question of whether the representee was induced by the representation on the basis of all the evidence available to it. If a claimant does not give evidence or if he does give evidence which is equivocal, that is part of the overall picture but is not conclusive. It also follows that the legal burden of proving inducement/reliance is on the representee and the fact that the court may start by making a presumption of fact in his favour does not change that position. Although Smith v Chadwick was an action for damages in the tort of deceit, it would, on the face of it, be odd if the law was any different in an action for recission on the ground of fraudulent misrepresentation.”
Later within the judgment, at paragraph 43, Longmore LJ stated: “43. ...there is an evidential presumption of fact (not law) that a representee will have been induced by a fraudulent representation intended to cause him to enter the contract. That inference will be ‘very difficult to rebut’....[65]The law in this respect is helpfully summarised by Hildyard J in the case of ACL Netherlands BV v Lynch [2022] EWHC 1178 at paragraph 557, where

the judge said this:

“The legal burden is on the claimant to establish that he has been induced to act by the defendant’s misrepresentation.”
He cites BV Nederlandse v Rembrandt. “However, and as explained in the context of the FMSA (Financial Services Markets Act) claims, once it has been established that a false statement has been made which is material, in the sense that it was likely to induce the contract, and which was intended to induce the representee’s investment decision, the claimant/representee has the benefit of a fair inference or presumption of fact (though not an inference of law) that he was influenced by the statement. This presumption is difficult to shift but can be so rebutted where it can be shown that the fraudulent statement or omission played no real or substantial part in the determination of the course of action adopted by the representee, whether because the representee did not hear or read it or because he chose entirely to ignore it, and/or the claimant would have entered into the contract even if the misrepresentation had not be made.”[66]To rebut the evidential presumption here, the defendant would have to show that Lowry did not care whether the subsequent representations were true or not. Not only is that inherently unlikely and contrary to what we do know about the stance taken by Mr Nugent as a director of Lowry, it is an issue as to which Mr Haycox can have little or, if anything, meaningful to say since it turns not on any evidence that he can directly give but on what was going on in the minds of the decision-makers at Lowry. There is, for example, no evidence here that the representees knew the representation was untrue but nevertheless Lowry entered into the contract. That would perhaps be the most compelling evidence against a finding of inducement. The inference here is obvious that these representations were made in circumstances in which they were intended to cause anybody investing in SPV 20 to believe that it was a genuine investment and that, in the circumstances, that belief was one factor in the mind of Lowry.[67]In those circumstances, again subject to some further points that I shall consider in a moment, I am satisfied that the claim in respect of the subsequent representations is one on which I should properly give summary judgment.[68]I turn to certain other issues raised by the defendant. Within the defence, the defendant raises a defence of waiver. That is based on an assertion, at paragraph 39 of the defence:
“In an oral conversation in around late March 2024 at the Fairmont Hotel, Dubai Mr Fletcher, speaking in this context for himself and for Lowry, told Mr Haycox that: ‘I’m not going to come after the SPV 20 money from you. We will work it out amicably.’ (‘the Waiver’)”
On its face, the argument that the claimant gave up a right to claim damages in tort by such a conversation seems unlikely. As Mr Cohen persuasively argued within his submissions, in a claim in tort the defence of accord and satisfaction might be made out if it could be shown that there was a concluded agreement by which a right to pursue a cause of action was given up. But that is not what is being contended for here. Given the tentative nature of the negotiations that are referred to in paragraph 40 of the defence, I can see why the defence of accord and satisfaction is not being pursued. It would have been a hopeless one and it is sensible that it was not pursued. All one sees is a position of negotiation rather than any concluded agreement.[69]Thus, the case is put in what is called waiver. Mr Cohen KC contended that it is better seen as promissory estoppel and there may be very good reason for that, though I shall return to the argument for true waiver before concluding this judgment. In terms of a promissory estoppel argument, he says that such an argument is absolutely doomed. There is no known case of the settlement of a claim in tort arising by reason of an estoppel. The estoppel could only work, if one thinks about it, by the creation of some kind of enforceable contractual rights. But that would offend against the very principle of estoppels, that they do not create contractual rights but, rather, prevent one from exercising rights.[70]The authorities clearly show that promissory estoppel, which is what Mr Cohen contends this is best seen as, is a remedy only available between parties in a contractual relationship: seeSpencer Bower: Reliance-Based Estoppel at paragraph 14.2022. But here the contract was between the claimants and SPV 20; it was not between the claimants and the defendant. In any event, the negotiations failed. There never was a binding agreement, promise, representation, or anything else to act in a particular way or to refrain from acting in a particular way because the parties never came to terms. They were simply negotiating.[71]Mr Cohen, argues that the final nail in the coffin of promissory estoppel is that Mr Haycox fails to show that he has changed his position in any way in reliance on the alleged promise. The action that he alleges he took cost him nothing and cannot amount to a change of position in law.[72]In my judgment, all of these arguments are well made out. This is not capable of being a promissory estoppel.[73]For the sake of completeness, I note the claimants’ argument that, even if this could work as a promissory estoppel, that would only be suspensory in nature and it is questionable how it would work out here where Mr Haycox is arguing it should have final effect. To the extent that I need to consider that argument, I would not have considered that it defeated a defence to the summary judgment application since it seems to me it would have required further argument out on the particular facts of the case.[74]But, as I have mentioned, for the sake of completeness I consider the alternative argument in waiver, notwithstanding the position that Mr Cohen took in submissions. I do so to seek to ensure that there is no arguable defence that the court has overlooked. Is it possible to frame the defence in what might be called a true waiver, whether a waiver by election or a unilateral waiver? The concept of a waiver involves a person making an unequivocal statement in circumstances that deprive that person of the right to take a different course of action. Such waiver might be seen as waiver by election. The claimants here had two choices: they could bring a claim against Mr Haycox; or they could not do so do. They said they were not going to do so and the argument is they cannot go behind that now. Indeed, that kind of waiver might even be argued to be the very rare concept of the unilateral waiver.[75]There are, however, several legal and conceptual difficulties with this argument. In the first place, it is highly questionable whether waiver can ever have application in this kind of sense other than in the context of parties in a contractual relationship. It is the very fact of the contractual relationship that gives rise to the differing courses of action which may be waived by the party who expresses a particular view as to how they are going to act. That is to be distinguished from the right to bring a claim, which is a procedural right, which doubtless the claimants believed they had in the circumstances of the discussion that took place in the Fairmont Hotel but did not arise from a contractual relationship between the parties. Quite simply, it is questionable whether waiver could apply at all in this non-contractual circumstance.[76]But even if it could arise, it seems to me that there would be very great difficulty in the defendant being allowed to rely on it. The main difference between waiver and estoppel, at least for present purposes, is that waiver focuses on the acts of the person who is alleged to have abandoned their rights, whereas estoppel focuses on the detriment to a person who believes that rights will not be enforced against them because of some statement or promise made by the person who putatively has the right to enforce against them. To that extent, the burden of proving detriment is not a necessary part of the waiver argument. It is potentially a more useful concept for the defendant to rely on. But, on any view of the authorities, waiver requires a non-equivocal abandonment of rights. He would need to show that an oral communication which included the words “We will work it out” or “work this out,” or words to that effect, amounted to a unilateral abandonment of rights. In my judgment, that is clearly not an argument that has a real prospect of success. The defendant could never show the kind of unequivocal choice or expression of which course of action was to be taken that might mount a defence in waiver.[77]Several other arguments are taken by the defendant in his skeleton argument. As I have indicated already, he raises as a triable issue the question of whether the SPV 20 loan was fictitious or a genuine transaction that collapsed. It is true to say that within the underlying case there is a significant issue as to whether either the SPV 20 or the SPV 3 loans were fictitious transactions, which I take to be meaning that there were schemes luring investors into them and keeping them committed to the scheme for so long as possible by repaying them from monies raised from different putative investors in the scheme, a so-called Ponzi scheme; or, alternatively, whether this was a genuine investment that failed. The reference to Ponzi schemes was not one that was contained within the skeleton arguments of the claimant; it is one that the defendant himself raised during the course of his submissions. He was keen to assure the court that this was not a Ponzi scheme, and he made the point (doubtless true) that the administrators of SPV 20 have not asserted that investment in that scheme was a Ponzi scheme.[78]I entirely accept the argument made by Mr Haycox that it is not for this court on this kind of application to determine the genuineness of the underlying transaction. I could not do so on the material before me. The point, though, is that it is irrelevant to the summary judgment application whether this was indeed a genuine or fraudulent scheme in the manner described by Mr Haycox.[79]The second issue is whether the documents of 17 November were authentic or forgeries. Again, I accept that that is a real issue in this case. The claimants contend that the defendant must have known that the documents were forgeries. They set out circumstances that they say lead to that conclusion. But they do not in fact rely on that conclusion as part of this summary judgment application, for reasons I have dealt with already. It follows that I do not need to determine whether they were forgeries and/or whether the defendant knew that they are forgeries in order to determine the summary judgment application, and I do not do so.[80]Those deal with all of the arguments within the skeleton arguments and submissions before me, but I indicated at the outset of this case that I would deal with those additional arguments that were made within the amended defence, and I will deal with three other points which were made in passing in submissions that may be relevant, in particular, if the claimant shows that the defendant has no real prospect of successfully defending the claim, but if the question as to whether there is another compelling reason for the matter to be disposed of at trial rather than on a summary judgment application.[81]Dealing with the additional arguments in the defence, the issue of Mr Fletcher’s alleged volatility is one that is set out in greater detail in paragraph 1(a) of the proposed amended defence that I disallowed than is set out within the existing defence, but it is a point that is already there. If we assume for the moment that Mr Haycox is right to say that Mr Fletcher is somebody who is prone to be irascible, therefore someone whom one wanted to treat with kid gloves, what does this add to the case other than providing an explanation for why Mr Haycox lied to him? A lie is no less a lie just because one fears that the person to whom one is telling the lie would be angry if they were told the truth. I do not see that the allegations in that paragraph add anything to what is already pleaded, or, more particularly, have any bearing on the defence of this claim.[82]The second allegation is one of forgery of documents on the claimants’ side. That seems to be something of a tit-for-tat argument. It is conceivable that if that allegation were made out it could in some way affect the court’s attitude to the grant of equitable relief. But that which is sought on this summary judgment application is not equitable relief, it is a claim in law for damages, which would be unaffected by an issue of conduct of that nature. It adds nothing to the case.[83]At paragraph 1(c) is the allegation, in essence, that Mr Fletcher cannot or does not the truly believe in the righteousness of his case because he was willing to forego his entitlement to monies in a trivial fashion. Let us assume for the moment that Mr Fletcher was a man who was well disposed to Mr Haycox, who was willing to excuse any deception that Mr Haycox may have practised on him. I suspect many a parent will recognise a situation in which they have been tempted to, and indeed have, excused a wayward child who had deceived them. Would that any the less mean that they had been deceived at the outset? If anything, the fact that Mr Fletcher might be willing to express a view that he will forego his entitlement to monies demonstrates a belief on his part that he has an entitlement to those monies, not a belief that his claim is in some way cooked up or otherwise other than genuine.[84]The fourth argument is that Mr Fletcher is motivated by a desire for revenge. I accept that he may well be motivated by a desire for revenge. There may be many a person in the position of Mr Fletcher who would have considered that bringing this claim was throwing good money after bad. There have been probably ten hearings, maybe even more than that, before me in which the claimants have been represented nearly always by both leading counsel and junior counsel. Ultimately, enforcement of any judgment against Mr Haycox may be extremely difficult. But the mere fact that Mr Fletcher chooses to pursue the claim, even out of revenge, is not in and of itself a reason to say that the defendant has a good prospect of successfully defending the claim, nor, indeed, does it represent some other good reason for the matter to go to trial.[85]Mr Haycox made three further points during his submissions. The first seems to be largely a comment in which he sought to ensure that he was not being painted as being a worse person than he truly is. His argument was that he had made representations as to the success of the scheme, whilst simultaneously trying to repay the claimants insofar as possible. Indeed, he makes the point, perfectly validly, that part of the investment of Mr Fletcher was repaid before the refinancing took place. I rather assume that the claimants might view the fact that a partial repayment was made in a different light than that in which it is painted by Mr Haycox. But, in any event, it does not bears on the argument as to whether his defence has a real prospect of success on the issues on which the claimants seek summary judgment.[86]Second, he refers to the fact that the solicitors who acted for the claimants at the outset of this case had previously advised him in respect of related issues, in particular, in broad terms, relating to the allegation of shadow directorship referred to above. He says that that has sullied this claim and of itself is a reason why, in his terms, he should “have his day in court.” It is true to say that Mr Haycox argued that it was inappropriate for those solicitors to act. It is, of course, true that I upheld his challenge to them acting in the case and, essentially, considered that it was inappropriate that they should continue to do so. That is a matter of record and my reasons for coming to that conclusion are a matter for my previous judgment.[87]Is this, though, a compelling reason for the matter to go to trial? The idea that somebody should have one’s day in court ignores the reality of litigation. Trials in court do not exist simply to allow people to tell the court and the world at large whatever they want to do. They are part of a dispute resolution process to be used where necessary and to the extent that is necessary and proportionate to resolve differences between the parties. The issue as to the former solicitors acting is one has already been resolved; it does not require this matter to go to trial.[88]The third, and arguably associated, point is that Mr Haycox argues that since this application, if successful, will not deal with all issues in the case, then a trial will be required in any event. That is most obviously true in respect of SPV 3, which has not been the ambit of this application as before. That said, I have already alluded to the cost of pursuing this claim. It is obviously the case that the claimants may reach a point where they consider that sufficient has been resolved for them to conclude that continuing to pursue the remaining actions is simply not worth the candle. Equally, given the seriousness of the allegations that remain outstanding and the likelihood that adverse findings on those remaining issues would themselves seriously damage Mr Haycox’s reputation, it may well be that he would wish to find a way to resolve outstanding issues in this litigation without a trial. I do not see that the possibility that a trial may be required on other issues should deter the court from giving judgment on issues where it is clear that there is to real prospect of successfully defending the claim.[89]In those circumstances, I am satisfied that the claimants make out the burden of showing that the defendant has no real prospect of successfully defending the claim on the grounds set out within their application herein and that they are entitled to summary judgment, there being no other compelling reason why those issues should be disposed of at trial. I, accordingly, grant the application. L a t e r[90]The first application I need to deal with is the claimants’ application for costs. The claimants succeeded on their application for summary judgment and contend that, as the winners of the application, they should have their costs following the usual principle under CPR Part 44.[91]Mr Haycox’s response is that it does not matter what he says, so he has nothing to say on the issue. I think it hardly fair to say fair to say it does not matter what he says since what he has said on other issues in this case has affected the outcome of other applications in this case.[92]I, nevertheless, consider the claimants’ application according to the usual principles. It is right to say that a successful party on an application will normally recover their costs. There are circumstances where they will not, perhaps because of the particular features of the case or because of their particular conduct, but I see none of that as arising here. In those circumstances, I will order the defendant to pay the claimants’ costs of the application, to be assessed on the stand basis if not agreed. L a t e r[93]I do not think I can usefully add to my reasons beyond what I have said already. I refuse permission for the reasons that I granted the application. I consider the application for permission has no real prospect of success. - - - - - - - - - - Digital Transcription by Marten Walsh Cherer Ltd 2nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP Tel No: 020 7067 2900. DX: 410 LDE Email: info@martenwalshcherer.com Web: www.martenwalshcherer.com