“If his statement of case has been served, a party may amend it only … with the permission of the court.”
“(1) These Rules are a procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost. (2) Dealing with a case justly and at proportionate cost includes, so far as is practicable – (a) ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence; (b) saving expense; (c) dealing with the case in ways which are proportionate – (i) to the amount of money involved; (ii) to the importance of the case; (iii) to the complexity of the issues; and (iv) to the financial position of each party; (d) ensuring that it is dealt with expeditiously and fairly; (e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and (f) enforcing compliance with rules, practice directions and orders.” (a) ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence; (b) saving expense; (c) dealing with the case in ways which are proportionate – (i) to the amount of money involved; (ii) to the importance of the case; (iii) to the complexity of the issues; and (iv) to the financial position of each party; (d) ensuring that it is dealt with expeditiously and fairly; (e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and (f) enforcing compliance with rules, practice directions and orders.”
“(1) This rule applies where – (a) a party applies to amend their statement of case in one of the ways mentioned in this rule; and (b) a period of limitation has expired under – (i) theLimitation Act 1980 1; (ii) theForeign Limitation Periods Act 1984 2; or (iii) any other enactment which allows such an amendment, or under which such an amendment is allowed. (2) The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as are already in issue on as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings…”
“32. Postponement of limitation period in case of fraud, concealment or mistake. (1) Subject to subsections (3), (4A) and (4B) below, where in the case of any action for which a period of limitation is prescribed by this Act, either— (a) the action is based upon the fraud of the defendant; or (b) any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant; or (c) the action is for relief from the consequences of a mistake; the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. (2) References in this subsection to the defendant include references to the defendant’s agent and to any person through whom the defendant claims and his agent. (3) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty…”
“61. It is true that neither in Morrison v Mastercard nor Mastercard v Deutsche Bahn did the court expressly confine the Mastercard basis of amendment to cases involving an ongoing accrual of the cause of action into the 6 year period prior to amendment. Nevertheless, it is obvious that its endorsement of the defendant's acceptance of that position reflected the nature of the claim. The reasoning behind the defendant's position in the Libyan Investment Authority case is more difficult to discern, as Floyd LJ appears to have found, but it is clear that the court assumed its limitation defence might not be a complete one. “62. However, in my judgment there is a class of case where the court should not exercise its discretion in a way which side-steps the conventional approach to deciding the limitation point at the amendment stage. This is where the defendant contends it has a reasonably arguable limitation defence to the entirety of the new cause of action sought to be introduced, having regard to the date of its accrual, which cannot be overcome by recourse toCPR 17.4 (2). “63. Both the conventional approach and the Mastercard basis of amendment are aimed at preserving a defendant's limitation defence. The conventional approach is in my judgment the appropriate one to adopt where the defendant has a serious argument that the whole of the new claim is statute barred. As the relevant works were undertaken in 2010 and 2011, that is DBS's position on the present application. “64. In these circumstances, I am not persuaded that the Mastercard basis of amendment should be regarded as having any significance on the present application. This is particularly so when the parties' primary submissions have comprehensively engaged not only with the question of the applicable limitation period but also the impact ofCPR 17.4 (2) (cf. the Advanced Control Systems cases and the situation envisaged in the Libyan Investment Authority case). The material necessary for determining the amendment application on the conventional basis has not in fact been side-stepped in the present case. Instead, it formed a significant part of the evidence and argument relied upon at the hearing. “65. For completeness, I should say that had I considered it appropriate to proceed on the Mastercard basis then I would have been persuaded by Mr Land's submission that the new claims should be treated for limitation purposes as having been made as at the date of this judgment, not least because the qualification to the relation-back principle was not suggested until after the hearing of the application.”
“66. In cases where there is no scope for proceeding on the Mastercard basis and the proposed amendment appears to face a limitation problem on the application of the primary limitation period, the court does not have any discretion to permit it unless the claimant can knock out the limitation defence (on a summary determination by reference to the "reasonably arguable" threshold test) or he can bring it withinCPR 17.4 (2): see Bellinger v Mercer, at [15], and Diamandis v Wills[2015] EWHC 312 (Ch) , at [46]-[47]. “67. When the court's discretion does arise the factors operating upon its exercise are those summarised in Quah Su-Ling v Goldman Sachs International[2015] EWHC 759 (Comm) , at [38], CIP Properties (AIPT) Ltd v Galliford Try Infrastructure Ltd (No. 3), at 19], and Vilca v Xstrata Ltd[2017] EWHC 2096 (QB) at [28]-[29]. The points made in the first two of those decisions were summarised again by Lambert J in Pearce v East and North Hertfordshire NHS Trust[2020] EWHC 1504 (QB) , at [10], which Mr Frampton quoted in his skeleton argument, but without the qualification in Vilca (mentioned below) that a good explanation for delay is not actually a prerequisite to success with a late amendment. “68. The command inCPR 1.2 to give effect to the overriding objective (which Carr J in Quah described as being of the greatest importance) embraces the various considerations identified in those cases. So far as the aims of achieving fairness, saving expense and ensuring compliance with rules and orders are concerned, three observations in those decisions bear upon the present application and the arguments of counsel. “69. The first goes to the timing of the application for permission to amend. The authorities confirm that lateness is a relative concept. A "very late amendment" is one which prejudices an existing trial date. In Quah the application to amend was issued some 3 weeks before the trial date and its consequences meant it was categorised as "very late"; whereas the less prejudicial consequences of the application heard in Vilca some 2 months respectively before the trial meant it was "late" but not "very late". “70. The second observation relates to the history behind the amendment. Whatever the degree of lateness, the decisions in Quah and Vilca show that the applicant should provide a good explanation for the delay. However, the absence of one is not necessarily fatal to success on the application but instead just one of the factors to be considered in deciding it fairly. This was also recognised by the decision in Essex County Council v UBB Waste (Essex) Ltd addressed below. “71. The third observation goes to the force of the new case sought to be introduced by the proposed amendment. The court is likely to look less kindly upon an amendment which is not tightly drawn or focused. Mr Land referred to the Court of Appeal's decision in Swain-Mason v Mills & Reeve LLP (Practice Note)[2011] EWCA Civ 114 ;[2011] 1 WLR 2735 , at [73], for the proposition that an amendment should be clearly expressed so that the opposing party knows from the moment it is made what is the amended case he has to meet. So far as the merits behind any new claim are concerned, the authorities which address the court's amendment power underCPR 17.3 show that the burden upon the applicant involves the same benchmark as that applied (negatively) on an application for summary judgment. The amending party needs to show that the new claim has a real prospect of success. In Quah the claimant failed to establish that the merits of the new claim were sufficiently compelling to justify the amendment whereas in Vilca (which concerned an amendment to plead a Peruvian law limitation defence) the claimant took no point over the clarity of the defendant's proposed amendment and conceded that the defence had a real prospect of success. “72. Mr Land also referred to the passage in the White Book (para. 17.3.6) for a summary of the test to be applied when scrutinising the merits of the proposed amendment. One of the decisions cited in that passage is that of Mr Andrew Hochhauser QC in SPI North Ltd v Swiss Post International (UK) Ltd[2019] EWHC 2004 (Ch) , at [5]-[7], where the deputy judge applied the real prospect of success test to the various amendments proposed. For good forensic reasons Mr Frampton made the submission that the application of this test meant that DRJ only needs to show that it has a better than merely arguable case. That certainly holds true, on the application of the negative test, for a respondent seeking to escape the clutches of an application for summary judgment by shouldering the evidential burden of showing he has a "realistic" case worthy of trial. “73. Mr Frampton also relied upon the decision in Essex County Council v UBB Waste (Essex) Ltd[2019] EWHC 819 (TCC) , at [10]-[11], where Pepperall J addressed the merits behind the amendment, alongside the other factors mentioned in Quah and Vilca, by talking of claims or defences which are "intelligible and apparently credible". If the weighing of the competing outcomes of permission or refusal of the amendment application meant that the balance of injustice favours the amending party, the judge's view was that amendments carrying that degree of conviction should be allowed. “74. There is probably either no difference or a barely perceptible one between that test and the one recognised in SPI North but, for the purposes of the present application on which the persuasive burden is wholly upon DRJ, I would approach any exercise of discretion by simply applying the real prospect of success test to the proposed amendment. The application of that test in the analysis and evaluation of DRJ's new claims will require DRJ to show that they are sufficiently strong to justify the conclusion that they are more than merely arguable even though DRJ does not have to establish they are likely to succeed. In a different interlocutory context that would equate to a "good arguable case" (recognising that the same phrase can in yet another such context mean something more in requiring the applicant to demonstrate he has the better, possibly much the better, of the evidence and argument to support his case).”
“25. In Media Entertainment v Karagyydev2020 EWHC 1138 (which was cited to me) at paragraphs 50-56 I said: “The CPR “TheCPR 50 . CPR3.4(2) provides that: “The court may strike out a statement of case if it appears to the court- (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) that the statement of case is an abuse of the court’s process or otherwise likely to obstruct the just disposal of the proceedings; or (c) that there has been a failure to comply with a rule, practice direction or order.” 51. In principle, on the wording of the rule, the question of whether there is jurisdiction to strike-out under sub-paragraph (a) in circumstances of the nature of those before me involves simply a determination as to whether the wording of the statement of case, assuming the facts stated to be proved, discloses a cause of action in law, being a genuine and serious dispute, which could justify the relief sought – see White Book 3.4.2. Mr Burton has also drawn my attention to a passage in Altimo Holdings v Kyrgyz Mobil2012 1 WLR 1804 where at paragraph 84 Lord Collins stated that “it is not normally appropriate to strike out (or grant summary judgment) so as to decide a controversial question of law in a developing area, particularly because it is desirable that the facts should be found so that any further development of the law should be on the basis of actual and not hypothetical facts…” 52. CPR3.4(2) is, however, itself discretionary, being introduced by the word “may”, and which brings into play the overriding objective in CPR1.1. Thus, for example, if a statement of case does not disclose reasonable grounds, the court may often allow an opportunity for amendment, and the court will consider what is the proportionate response in relation to all aspects once one of the jurisdictional conditionals in the three sub-paragraphs of CPR3.4(2) is established. 53. CPR16.4(a) provides that Particulars of Claim must include “a concise statement of the facts on which the claimant relies”. 54. The Practice Direction toCPR Part 16 (“PD16 ”) in paragraph 8.2 provides that “a claimant must specifically set out the following matters in his particulars of claim where he wishes to rely upon them in support of his claim: (1) any allegation of fraud… (5) notice or knowledge of a fact.” 55. CPR24.2 provides that “The court may give summary judgment against a claimant… on the whole of a claim or on a particular issue if- (a) it considers that- (i) the claimant has no real prospect of succeeding on the claim or issue… and (b) there is no other compelling reason why the case or issue should be disposed of at a trial.” 56. It is common ground that in approaching the CPR24.2(i) test of “no real prospect” the court applies the principles summarised in NCC Skills Ltd v Ascentis[2016] EWHC 206 at paragraphs 5-8 being "The Test 5. Applications for summary judgment are governed byCPR 24 .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 – (i) that claimant has no real prospect of succeeding on the claim or issue; or (ii) that 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 a trial.” 6. There is no dispute between the parties as to the principles to be applied on an application for summary judgment. As was pointed out by Mr. Andrew Latimer, those principles were conveniently summarised by Simon J (as he then was) in JSC VTB Bank v Skurikhin[2014] EWHC 271 at paragraph 15. “The principles which apply have been set out in many cases, are summarised in the editorial comment in the White Book Part 1 at 24.2.3 and have been stated by Lewison J in Easyair Limited v. Opal Telecom Limited[2009] EWHC 339 (Ch) at [15], approved subsequently (among others) by Etherton LJ in A C Ward & Son v. Caitlin (Five) limited[2009] EWCA Civ 1098 at [24]. For the purposes of the present application it is sufficient to enumerate 10 points. (1) The Court must consider whether the defendant has a ‘realistic’ as opposed to a ‘fanciful’ prospect of success, see Swain v Hillman[2001] 2 All ER 91 , 92. A claim is ‘fanciful’ if it is entirely without substance, see Lord Hope in Three Rivers District Council v Bank of England[2001] UKHL 16 at [95]. (2) A ‘realistic’ prospect of success is one that carries some degree of conviction and not one that is merely arguable, see ED & F Man Liquid Products v. Patel[2003] EWCA Civ 472 . (3) The court must avoid conducting a ‘mini-trial’ without disclosure and oral evidence: Swain v Hillman (above) at p.95. As Lord Hope observed in the Three Rivers case, the object of the rule is to deal with cases that are not fit for trial at all. (4) This does not mean that the Court must take everything that a party says in his witness statement at face value and without analysis. In some cases it may be clear that there is no real substance in factual assertions which are made, particularly if they are contradicted by contemporaneous documents, see ED & F Man Liquid Products v. Patel (above) at [10]. Contemporary activity or lack of activity may similarly cast doubt on the substance of factual assertions. (5) However, the Court should avoid being drawn into an attempt to resolve those conflicts of fact which are normally resolved by a trial process, see Doncaster Pharmaceuticals Group Ltd v. Bolton Pharmaceutical Co 100 Ltd[2006] EWCA Civ 661 , Mummery LJ at [17]. (6) In reaching its conclusion, the court must take into account not only the evidence actually placed before it on the application for summary judgment, but the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond ( No. 5)[2001] EWCA Civ 550 , [19]. (7) Allegations of fraud may pose particular problems in summary disposal, since they often depend, not simply on facts, but inferences which can properly drawn from the relevant facts, the surrounding circumstances and a view of the state of mind of the participants, see for example JD Wetherspoon v Harris[2013] EWHC 1088 , Sir Terence Etherton Ch at [14]. (8) Some disputes on the law or the construction of a document are suitable for summary determination, since (if it is bad in law) the sooner it is determined the better, see the Easyair case. On the other hand the Court should heed the warning of Lord Collins in AK Investment CJSC v Kyrgyz Mobil Tel Ltd[2012] 1 WLR 1804 at [84] that it may not be appropriate to decide difficult questions of law on an interlocutory application where the facts may determine how those legal issues will present themselves for determination and/or the legal issues are in an area that requires detailed argument and mature consideration, see also at [116]. (9) The overall burden of proof remains on the claimant, …to establish, if it can, the negative proposition that the defendant has no real prospect of success (in the sense mentioned above) and that there is no other reason for a trial, see Henderson J in Apovodedo v Collins[2008] EWHC 775 (Ch) , at [32]. (10) So far as Part 24,2(b) is concerned, there will be a compelling reason for trial where ‘there are circumstances that ought to be investigated’, see Miles v Bull[1969] 1 QB 258 at 266A. In that case Megarry J was satisfied that there were reasons for scrutinising what appeared on its face to be a legitimate transaction; see also Global Marine Drillships Limited v Landmark Solicitors LLP[2011] EWHC 2685 (Ch) , Henderson J at [55]-[56].” 26. I also at Paragraph 136 of that judgment made clear that the relevant facts, being those which are said to give rise to the causes of action upon which the Claimant seeks his claimed remedies, have to be “pleaded” i.e. appear in the statement of case, and not simply in a witness statement. The function of statements of case (or pleadings as they were previously called) is to set out the facts relied upon as giving rise to a claim in law (or from which such facts are to be inferred); while witness statements adduce the evidence from which those facts are to be proved, and which evidence should not appear in the statement of case itself. It is important that the facts are “pleaded” in the statement of case both in order to test whether the relevant party is advancing a claim which can exist in law so as to give rise to the remedies sought and so that the other party (and the court) can assess it and respond to it by their own statement of case and generally. However, the court does have to bear in mind that the line between what is “fact” and what is “evidence” may be a narrow one and one which it is difficult for litigants, especially if acting in person, to appreciate. 27. Even more recently, in Rollingson v Hollingsworth2020 EWHC 3568 (which was not cited to me but which is to similar effect) I cited Portland Stone Firms Limited v Barclays Bank Plc[2018] EWHC 2341 where at paragraphs 23 to 30 (and which deal with the court’s approach both to CPR3.4 and CPR24 applications and to pleading fraud and other serious matters) it was held that: “23. The applicable principles set out in and flowing fromCPR 3.4 and 24 are also extremely well known. The summary by Lewison J in Easyair Ltd v Opal telecom Ltd[2009] EWHC 339 (Ch) at [15] was relied upon by all parties as a convenient summary: “The correct approach on applications by defendants is, in my judgment, as follows: i) The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman[2001] 2 All ER 91 ; ii) A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel[2003] EWCA Civ 472 at [8] iii) In reaching its conclusion the court must not conduct a “mini-trial”: Swain v Hillman iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10] v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5)[2001] EWCA Civ 550 ; vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd[2007] FSR 63 ; vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd[2007] EWCA Civ 7252 ”. 24. I adopt and will apply those principles in the present case. I would only add that, where a claim is defective and therefore susceptible to be struck out or subject to summary judgment, the Court should consider whether the defect in question might be cured by amendment and, if it might, should consider whether it is right to give the party in default an opportunity to make the defect good: see Hockin and Ors v RBS[2016] EWHC 92 (Ch) per Asplin J. This is another facet of the Royal Brompton Hospital principle that the Court should not merely look at the materials before it but should take account of what can reasonably be expected to be available at trial. I have borne this approach in mind in reaching my conclusions in the present case. Proof of fraud and the approach to striking out allegations of fraud 25. Where, as here, a Claimant wishes to amend to plead fraud and the application is opposed, it is material to bear in mind the approach that the Court routinely takes to proving fraud in civil litigation. A sufficient summary for present purposes is provided by Fiona Trust & Holding Corp v Privalov[2010] EWHC 3199 (Comm) at [1438]-[1439] per Andrew Smith J: “It is well established that “cogent evidence is required to justify a finding of fraud or other discreditable conduct”: per Moore-Bick LJ in Jafari-Fini v Skillglass Ltd.,[2007] EWCA Civ 261 at para.73. This principle reflects the court's conventional perception that it is generally not likely that people will engage in such conduct: “where a claimant seeks to prove a case of dishonesty, its inherent improbability means that, even on the civil burden of proof, the evidence needed to prove it must be all the stronger”, per Rix LJ in Markel v Higgins,[2009] EWCA 790 at para 50. The question remains one of the balance of probability, although typically, as Ungoed-Thomas J put it in In re Dellow's Will Trusts,[1964] 1 WLR 415 ,455 (cited by Lord Nicholls in In re H,[1996] AC 563 at p.586H), “The more serious the allegation the more cogent the evidence required to overcome the unlikelihood of what is alleged and thus to prove it”… …Thus in the Jafari-Fini case at para 49, Carnwath LJ recognised an obvious qualification to the application of the principle, and said, “Unless it is dealing with known fraudsters, the court should start from a strong presumption that the innocent explanation is more likely to be correct.” 26. This summary is consistent with many other decisions of high authority which establish that pleadings of fraud should be subjected to close scrutiny and that it is not possible to infer dishonesty from facts that are equally consistent with honesty: see, for example, Mukhtar v Saleem[2018] EWHC 1729 (QB) ; Elite Property Holdings Ltd v Barclays Bank[2017] EWHC 2030 (QB) ; Three Rivers DC v The Governor and Company of Barclays of England (No 3)[2003] 2 AC 1 at [186] per Lord Millett – see below. 27. One of the features of claims involving fraud or deceit is the prospect that the Defendant will, if the underlying allegation is true, have tried to shroud his conduct in secrecy. This has routinely been addressed in cases involving allegations that a defendant has engaged in anti-competitive arrangements. In such cases, the Court adopts what is called a generous approach to pleadings. The approach was summarised by Flaux J in Bord Na Mona Horticultural Ltd & Anr v British Polythene Industries Plc[2012] EWHC 3346 (Comm) at [29] ff. Flaux J set out the principles in play as described by Sales J in Nokia Corporation v AU Optronics Corporation[2012] EWHC 731 (Ch) at [62]-[67], which included the existence of a tension between (a) the impulse to ensure that claims are fully and clearly pleaded, and (b) the impulse to ensure that justice is done and a claimant is not prevented by overly strict and demanding rules of pleading from introducing a claim which may prove to be properly made out at trial but may be shut out by the law of limitation if the claimant is to be forced to wait until he has full particulars before launching a claim. Sales J indicated that this tension was to be resolved by “allowing a measure of generosity in favour of a claimant.”
“[31] This generous approach to the pleadings in cartel claims has been endorsed by the Court of Appeal, not only in Cooper Tire & Rubber Company Europe Ltd v Dow Deutschland[2010] EWCA Civ 864 but most recently by Etherton LJ in KME Yorkshire Ltd v Toshiba Carrier UK Ltd[2012] EWCA Civ 1190 at [32]: "As was stated by the Court of Appeal in Cooper Tire & Rubber Company Europe Ltd v Dow Deutschland Inc[2010] EWCA Civ 864 at paragraph [43], however, it is in the nature of anti-competitive arrangements that they are shrouded in secrecy and so it is difficult until after disclosure of documents fairly to assess the strength or otherwise of an allegation that a defendant was a party to, or aware of, the proven anti-competitive conduct of members of the same group of companies. That same generous approach was for the same reason taken by Sales J in Nokia Corporation v AU Optronics Corporation[2012] EWHC 731 in dismissing an application to strike out or to grant summary judgment against the claimant in proceedings for damages for infringement of Article 101. That approach is appropriate in the present case prior to disclosure of documents." [32] In the case of applications for summary judgment, it is well established that the court should not engage in a mini-trial where there is any conflict of evidence. The dangers of too wide a use of the summary judgment procedure were emphasised by Mummery LJ at [4-18] of his judgment in Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical[2006] EWCA Civ 661 . [5] and [18] of that judgment seem to me particularly apposite to the present case: "5. Although the test [whether the claim has a real prospect of success] can be stated simply, its application in practice can be difficult. In my experience there can be more difficulties in applying the "no real prospect of success" test on an application for summary judgment (or on an application for permission to appeal, where a similar test is applicable) than in trying the case in its entirety (or, in the case of an appeal, hearing the substantive appeal). The decision-maker at trial will usually have a better grasp of the case as a whole, because of the added benefits of hearing the evidence tested, of receiving more developed submissions and of having more time in which to digest and reflect on the materials.… 18. In my judgment, the court should also hesitate about making a final decision without a trial where, even though there is no obvious conflict of fact at the time of the application, reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case." [33] The same point was made by Lewison J (as he then was) in Federal Republic of Nigeria v Santolina Investment Corporation[2007] EWHC 437 (Ch) , at [4(vi)] citing the Doncaster Pharmaceuticals case: "Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case."" 28. These are salutary warnings and necessary protections for the Claimants, which I bear in mind. It is, however, to be remembered that the Court’s concern in these passages was in large measure based upon a lack of knowledge on the part of the Claimant before disclosure had been given. In the present case, the Defendants have given disclosure based upon wide-ranging search terms relating to multiple custodians. Although the Claimants submit that the Defendants’ disclosure is not complete, they have not identified any specific omissions or areas of default that would justify the Court in treating the Claimants as if they were still materially excluded from access to relevant disclosure for present purposes. 29. In any event, if a case alleging fraud or deceit (or other intention) rests upon the drawing of inferences about a Defendant’s state of mind from other facts, those other facts must be clearly pleaded and must be such as could support the finding for which the Claimant contends. This is clear from numerous authorities: see Three Rivers District Council v The Governor and Company of Barclays of England (No 3)[2003] 2 AC 1 at [55] per Lord Hope and [186] per Lord Millett. I endorse and adopt the statement of Flaux J in JSC Bank of Moscow v Kekhman[2015] EWHC 3073 (Comm) at [20] that: “The Claimant does not have to plead primary facts which are only consistent with dishonesty. The correct test is whether or not, on the basis of the primary facts pleaded, an inference of dishonesty is more likely than one of innocence or negligence. As Lord Millett put it, there must be some fact “which tilts the balance and justifies an inference of dishonesty.”
"As was stated by the Court of Appeal in Cooper Tire & Rubber Company Europe Ltd v Dow Deutschland Inc[2010] EWCA Civ 864 at paragraph [43], however, it is in the nature of anti-competitive arrangements that they are shrouded in secrecy and so it is difficult until after disclosure of documents fairly to assess the strength or otherwise of an allegation that a defendant was a party to, or aware of, the proven anti-competitive conduct of members of the same group of companies. That same generous approach was for the same reason taken by Sales J in Nokia Corporation v AU Optronics Corporation[2012] EWHC 731 in dismissing an application to strike out or to grant summary judgment against the claimant in proceedings for damages for infringement of Article 101. That approach is appropriate in the present case prior to disclosure of documents." [32] In the case of applications for summary judgment, it is well established that the court should not engage in a mini-trial where there is any conflict of evidence. The dangers of too wide a use of the summary judgment procedure were emphasised by Mummery LJ at [4-18] of his judgment in Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical[2006] EWCA Civ 661 . [5] and [18] of that judgment seem to me particularly apposite to the present case: "5. Although the test [whether the claim has a real prospect of success] can be stated simply, its application in practice can be difficult. In my experience there can be more difficulties in applying the "no real prospect of success" test on an application for summary judgment (or on an application for permission to appeal, where a similar test is applicable) than in trying the case in its entirety (or, in the case of an appeal, hearing the substantive appeal). The decision-maker at trial will usually have a better grasp of the case as a whole, because of the added benefits of hearing the evidence tested, of receiving more developed submissions and of having more time in which to digest and reflect on the materials.… 18. In my judgment, the court should also hesitate about making a final decision without a trial where, even though there is no obvious conflict of fact at the time of the application, reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case." [33] The same point was made by Lewison J (as he then was) in Federal Republic of Nigeria v Santolina Investment Corporation[2007] EWHC 437 (Ch) , at [4(vi)] citing the Doncaster Pharmaceuticals case: "
“27. It seems to me that the following principles are well established, at least as articulated in relation to summary disposal under Pt 24 of the CPR. (1) The purpose of resolving issues on a summary basis and at an early stage is to save time and costs and courts are encouraged to consider an issue or issues at an early stage which will either resolve or help to resolve the litigation as an important aspect of active case management: see Kent v Griffiths (No. 3)[2001] QB 36 at p. 51B–C. This is particularly so where a decision will put an end to an action. (2) In deciding whether to exercise powers of summary disposal, the court must have regard to the overriding objective. (3) The court should be slow to deal with single issues in cases where there will need to be a full trial on liability involving evidence and cross examination in any event and/or where summary disposal of the single issue may well delay, because of appeals, the ultimate trial of the action. (4) The court should always consider whether the objective of dealing with cases justly is better served by summary disposal of the particular issue or by letting all matters go to trial so that they can be fully investigated, and a properly informed decision reached. The authority for principles (2)–(4) is to be found in: Three Rivers District Council v Bank of England (No. 3)[2003] 2 AC 1 per Lord Hope at paras 92–93, considering Swain v Hillman[2001] 1 All ER 91 at pp.94–95; Green v Hancocks (a Firm) [2001] Ll Rep PN 212, per Chadwick LJ at para.53, p.219, col. 1; and Killick v PricewaterhouseCoopers (No. 1) [2001] Ll Rep PN 17 per Neuberger J at p.23, col. 2, 2–27.2” 30. I add that various of these principles have been very recently restated in Qatar Airways Group v Middle East News[2020] EWHC 2975 at paragraphs 147-160 and 214, albeit in the context of a jurisdiction challenge. Although this decision was published after I had heard various submissions from the parties, I do not regard it as taking matters further than what was already common-ground, and so I have not sought further submissions on it.”
"48. One necessary condition for any amendment is that the claim as amended should have a real prospect of success, which is the same test as applies on a summary judgment application. There is no point in giving permission for an amendment which is fanciful and which has no real prospect of success. In this regard the principal focus must be on the pleading in question and no attempt should be made to resolve disputed matters of evidence (conducting a mini-trial): Okpabi at [103] to [107]. It is, however, appropriate to consider whether a proposed pleading is coherent and contains properly particularised elements of the cause of action relied upon (Elite Property Holdings Ltd v Barclays Bank Plc[2019] EWCA Civ 204 at [42])… 66. Males LJ has already referred to three cases: Okpabi v. Royal Dutch Shell Plc[2021] UKSC 3 ,[2021] 1 WLR 1294 ("
'41. For the amendments to be allowed the Appellants need to show that they have a real as opposed to fanciful prospect of success which is one that is more than merely arguable and carries some degree of conviction: ED&F Man Liquid Products Ltd v Patel[2003] EWCA Civ 472 . A claim does not have such a prospect where (a) it is possible to say with confidence that the factual basis for the claim is fanciful because it is entirely without substance; (b) the claimant does not have material to support at least a prima facie case that the allegations are correct; and/or (c) the claim has pleaded insufficient facts in support of their case to entitle the Court to draw the necessary inferences: Three Rivers District Council v Bank of England (No3)[2003] 2 AC 1 . 42. The court is entitled to reject a version of the facts which is implausible, self-contradictory or not supported by the contemporaneous documents and it is appropriate for the court to consider whether the proposed pleading is coherent and contains the properly particularised elements of the cause of action relied upon. With that test in mind, I turn to the grounds of appeal.' 71. In the authorities which Asplin LJ cited in this passage, the courts were not commenting on applications to amend as such, but rather on the principles applicable to summary judgment and setting aside default judgments. In ED&F Man Liquid Products Ltd v. Patel[2003] EWCA Civ 472 , [2003] CP Rep 51, Potter LJ (with whom Peter Gibson LJ agreed) said this when comparing the test for summary judgment with that which applies to an application to set aside a default judgment: '8. I regard the distinction between a realistic and fanciful prospect of success as appropriately reflecting the observation in [Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc[1986] 2 Lloyd's Rep 221 ] that the defence sought to be argued must carry some degree of conviction. Both approaches require the defendant to have a case which is better than merely arguable… 10. It is certainly the case that under both rules, where there are significant differences between the parties so far as factual issues are concerned, the court is in no position to conduct a mini-trial: see per Lord Woolf MR in Swain v Hillman[2001] 1 All ER 91 at 95 in relation toCPR 24 . However, that does not mean that the court has to accept without analysis everything said by a party in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporary documents. If so, issues which are dependent upon those factual assertions may be susceptible of disposal at an early stage so as to save the cost and delay of trying an issue the outcome of which is inevitable: see the note at 24.2.3 in Civil Procedure (Autumn 2002) Vol 1 p.467 and Three Rivers DC v Bank of England (No.3) [2001] UKHL16,[2001] 2 All ER 513 per Lord Hope of Craighead at … [95].' 72. In Three Rivers District Council v. Bank of England (No 3)[2001] UKHL 16 ,[2003] 2 AC 1 , Lord Hope had reiterated that it is not appropriate to conduct a mini-trial on an application for summary judgment. He said at [95]: '
'103. … Those proceedings were meant to be as defined in the particulars of claim for which permission to serve out was sought. In this case the challenge was made on the grounds that the claimants had no arguable case against the anchor defendant. Where, as in this case, there are particulars of claim, that is an issue which should ordinarily fall to be addressed by reference to the pleaded case. 104. If the issues are addressed by reference to the pleaded case, then the focus of the inquiry is clearly circumscribed and problems of lack of proportionality should generally be avoided. 105. In the present case, not only did the parties choose to swamp the court with evidence, but it appears that the claimants chose not to update their pleadings to reflect the evidence. … 107. The result is that instead of focusing on the pleaded case and whether that discloses an arguable claim, the court is drawn into an evaluation of the weight of the evidence and the exercise of a judgment based on that evidence. That is not its task at this interlocutory stage. The factual averments made in support of the claim should be accepted unless, exceptionally, they are demonstrably untrue or unsupportable.' 74. Asplin LJ's comments in Elite thus lend no support to any idea that, so far as the strength of a claim is concerned, the courts take a different approach in the context of a "late" amendment to that adopted in relation to summary judgment. To the contrary, Asplin LJ relied on cases in which the principles governing summary judgment applications were addressed, and her remarks reflect those principles. Nor were we taken to any other authority in which it had been held that, when considering a "late" (as opposed to a "very late") amendment, it was permissible to attach weight to the apparent weakness of a case which would survive an application for reverse summary judgment. 75. As we have indicated, an application for permission to amend particulars of claim will be refused if the amendments put forward a new case which would have "no real prospect of succeeding" within the meaning ofCPR Part 24 . Beyond that, the Court has to strike a balance between the interests of the applicant and those of other parties and litigants more generally: "[i]n essence, the court must, taking account of the overriding objective, balance the injustice to the party seeking to amend if it is refused permission, against the need for finality in litigation and the injustice to the other parties and other litigants, if the amendment is permitted" (Nesbit Law Group LLP v. Acasta European Insurance Company Ltd[2018] EWCA Civ 268 , at [41] per Vos LJ). 76. Aside from very late amendments, we do not think the perceived strength of the case is normally a factor to be taken into account when undertaking that balancing exercise. As Carr J recognised, however, in Quah Su-Ling at [38(d)]: "lateness is not an absolute, but a relative concept". There will therefore perhaps be cases where the quality of the delay is unclear. In such cases, it may be necessary to consider, as Carr J suggested: "a review of the nature of the proposed amendment, the quality of the explanation for its timing, and a fair appreciation of the consequences in terms of work wasted and consequential work to be done". But even if it is necessary to adopt that approach when the amendment is on the cusp of being "late" and "very late", it will never be appropriate to attempt to conduct a mini-trial… 77. The general rule is that, except in the case of "very late" amendments, unless it can be seen that a claim has no real prospect of succeeding, its merits should be determined at a full trial. The warnings against mini-trials apply with just as much force to applications to amend as they do to summary judgment or jurisdiction disputes. The CPR do not bar litigants from pursuing claims that might at an interlocutory stage be considered weak. In our view, HH Judge Eyre QC (as he then was) correctly summarised the principles applicable to the determination of an application to amend in Scott v. Singh[2020] EWHC 1714 (Comm) at [19]: '
“Good morning PaoloI hope all is wellI'm bothering you for a moment for some "technical" information related to me.I am (we are) close to receiving all the various "authorisations" for the product exclusively designed, built and dedicated (thanks also to the indications received from Massimo) to the trust so as to be as much as possible in order to meet the expectations of results.I should indicate a minimum/maximum "capacity" of said product and here I need your help.Could you kindly indicate an amount (even an average amount) that will be transferred within the portfolio as well as a possible timing?Thank you very much and good day. Gennari.”
"Genaro [Mr Pinto] told me to get in touch with you for the management mandate and the risk profiling. Obviously the management should be conservative, but we need to agree on the parameters and especially the definition. That would be for a medium risk profile and not a low one. Even if the objective is to have a conservative, low volatility return, I would not want to narrow the field of action too much. When you have a chance, we can get in touch to define a few things for the start of operations."
"As far as profiling is concerned, I have already kept my hands fairly wide in the MiFiD forms so as not to have my hands tied when it comes to investing in alternatives, even though the management of the trust must in any case be that of a good family man and therefore an aggressive profile would have caused some problem for the trustees. I will have a copy of a balance mandate sent to you tomorrow and we can start working on it."
"Thank you for sending me this mandate. Do we do it even without having the account number or do we wait? We should understand with the bond fund policy that we would like to insert (even more than 50%) can be inserted or falls under the classification of diversified funds (so 50% max)."
"If you let me have the details of the Fund, I will have it surveyed internally. What percentage of the portfolio will be invested in it?"
"The Trustee resolves to delegate to BGB Western Limited the discretionary management of the portfolios of the Jacaranda Trust. The investment policy shall be prudent with a view to ensuring the preservation of capital."
"I would also like to understand what other funds we can include in accordance with a mandate you give us. In addition, I would also like to evaluate 'your' funds if this can help with subscriptions and especially to complete the asset allocation. In this regard do you think they could pay a rebate on management fees? If you have something to send me I can start to review it."
"The funders are Global Macro with liquidity of 35 to 45 days and we need to classify it as 'opportunistic'. I have prepared a mandate which would allows us 'free hands' (the Fund would be in the class of 'diversify'). I wait your okay to send the mandate to the Trust company."
"We can change the liquidity if we need to, but if you can adjust the mandate, we avoid other changes. The official monthly NAV [that is to say net asset value] allows us to keep costs down which would obviously be higher if we had a weekly NAV. I understand that you can't go above 30 per cent for funds anyway, right? Does this relate to maximum exposure (30 per cent max for one or more funds together) or to single fund exposure (30 per cent each up to a theoretical 90 per cent, three times 30 per cent)?"
"I am told by BGB Western that they cannot start trading because some documents are missing from me? I must have missed it. Can you tell me what is missing? Thank you and see you soon!"
"I thank you for the confirmation. Could you please give me the weights of the portfolio?"
“1. INVESTMENT OBJECTIVE AND INVESTMENT HORIZON:The investment objective is to optimise the return of a portfolio whose volatility, variability of returns, is comparable to that of an internationally-diversified portfolio of stocks denominated in EUR. Due to the presence of stock market risk, the portfolio's recommended investment horizon is at least 10 years. The investor should have an investment profile that the bank defines as “high risk”. 2. BREAKDOWN OF INSTRUMENTS BY STRATEGY AND INVESTMENT LIMITS:2.1. Target asset allocationThe proportions shown below are determined on the basis of the total value of the portfolio assets under management.CONVERTIBLE BONDS & EQUITIES AND SIMILARBONDS AND SIMILAR PRODUCTS 0- 100%0- 70% DIVERSIFIED FUNDS COMMODITIES/REAL ESTATE FUNDS CASH & MONEY MARKET FUNDS 0- 70%0- 30% The Bank is allowed to invest the different asset classes through structured products with or without capital protection.The proportions indicated above are provided for information purposes only. The Clientacknowledges that, due to market fluctuations, these limits may be temporarily exceeded, and in cases of abnormal market conditions, liquidity conditions might deteriorate.a) Convertible Bonds & Equities and similar productsThis asset class includes international stock market securities denominated in EUR or in any other currency. It may also comprise equity funds (third party or CBP funds), structured equity products or any financial product whose volatility is comparable to that of the equity markets.Furthermore, this asset class can be made of convertible bond investments, mainly through funds or structured products, without any explicit capital guarantee feature.This asset class also targets "long/short” funds, i.e. funds that are able to take short positions on the stock markets.b) Bonds and similar productsThis asset class includes bond-type products denominated in EUR or in any other currency, including emerging country currencies. Non-investment grade or non-rated securities are explicitly permitted.c) Diversified fundsThis asset class targets global funds characterised by diversified investments in different asset classes and / or different regions.”
"Can we get the go ahead today to start one allocation? This week I'll have the opportunity to meet the client and the firm that assists him and it would be useful to have at least something to present."
"Today I received the original mandate. What do you want to start with? Let me have a list of the securities to be subscribed and as soon as the mandate is associated with the report, I will send it ahead."
"According to the interpretation I/we have given to the pdf of the specifications and weights (appendix 2) investment strategy growth, the idea would be …"
"Such an allocation is part of the mandate and the sector specifications which have also been communicated to the client. We look forward to hearing from you."
“I have just come out of a two-hour meeting with my RM.In particular, the fact of investing a large part of the portfolio in illiquid hedge securities - securities that would be present only in the portfolio in question and not in the others managed by the Bank - would create problems in the light of the latest indications received from the CSSF. Among other things, we will be under inspection at the beginning of the year and therefore our colleagues in Risk Management are currently taking a stricter attitude.We have two solutions to overcome this problem;1) the simplest, since these are medium- to long-term positions, is to deposit the funds in question in an administered account, thus removing the Bank’s responsibility for the open positions. There would then be two open accounts, one under managementand one under administration (or even a single administered account,if so required). The opening of a second account would be immediate, there is no need to retrieve documentation and/or forms.From a practical point of view, compared to the current situation we would need the trustee's acceptance of the subscription of the funds in question. On the part of the portfolio placed under administration the trust would not pay management fees but only a custody fee; consequently this solution is in economic terms favourable to the trust and unfavourable to the Bank in the medium/long term.As a basis for discussion, I have prepared a table of what could be the conditions applied to the administered relationship, in order to keep the Bank's position neutral in the medium/long term, neutral for the first year (also for the other reason we know)2) The second possibility would involve the signing of an advisory agreement or sub-delegation of management between CBPQ and BGBW, countersigned by the client for acceptance. This possibility would also be unfavourable to the bank in terms ofcommission and would in any case be more risky, because it would inevitably lengthen the timeframe.We had originally discussed investing in traditional funds and therefore long-only funds, which would not have been a problemProduct selection is a problem for us, as we will be responsible to the client for alternative fund positions that we do not have time to evaluate. The spirit is to quickly find a solution that will put everyone at ease. If you give me the go-ahead on the first proposal,I will get in touch with Paolo on the same day to discuss MIFID profiling.I look forward to hearing from youRegards.Michele”
“ Solution found, 2 accounts, one operational managed and one administered on which the medium-term positions 'slip' (with the attendant problems that we know). I have already explained everything to Paolo, who is in full agreement. I am modifying the commission structure accordingly; for the first year the impact is neutral for the client, from the second year onwards the client saves on medium/long-term positions.I start the subscriptions tomorrow for the amounts requested (well over 70% of the portfolio). We will need to credit the TAs of the funds.Regards.Michele”
"My friends at BGB Western are requesting to subscribe again to the Fund we have already purchased. I would need confirmation of the following instruction."
"What liquidity does the Fund have? Notice and redemption? Gennaro suggests selling this Fund so sorry for the hassle, but it should be put up for sale now."
“ The big question in 2016 in my view is whether the dollar bull cycle is over or whether the summer consolidation vis-a-vis the other major currencies was merely apause. I believe that the outlook is still favourable for the U.S. dollar and an increasein the QE programs in Japan and the Eurozone is the most likely catalyst for arenewed period of U.S. dollar strength.In this context the portfolios returns won’t match expected returns and I have to stayinvested through the high and low to earn the long term returns.Over-exposure to derivatives market (index equities) and debt and the surprisingresilience of the Russian Ruble are the key reasons why the funds haveunderperformed their respective sectors this year. Despite numerous exhortationsfrom BGB Weston’s Directors to reduce positions’ size and hedge the risk I keptpositions open in accordance with my strong convictions. I got it wrong, I sold downvarious positions and I have significantly reduced the fund exposure. Sometimes themost brutal aspect of running a fund is the punishment meted out by volatile financialmarkets.So what is my conclusion from all of this? I have made some mistakes in the lastquarter 2015. It was an error I will not repeat unless the circumstances are reallyextreme. Managing weights down rather than the complete sale of qualitybusinesses is also an area for improvement going forward. Sudden changes incorrelations on specific markets are hard to forecast and any risk model will struggleto overcome this issue. Certainly, my sensitivity analysis around my view could havebeen more robust and I will certainly look to learn and improve from these lessons.”
“Hi Paolo I have just finished a meeting with Pinto and I would like to add the following:1) We asked Pinto for a number of documents about his structure and in particular, commercial brochure, corporate documents, authorisation documents at the local supervisory body, prospectus of the funds in his portfolio.2)We asked for a valuation at the current date in case of a request for an overall liquidation of the positions,-3) We had understood that the purpose of the opening at BIL was linked to the transition to a "normal" management of a single portfolio with delegation to manage BGB Weston: this approach is not acceptable to BGB which wants as a counterparty only the custodian bank that buys the funds (in fact hedge) that it manages on behalf of its clients (Pinto tells us that the assets are about 3b for about 10 funds).4) BGB already works with BIL for other positions (so from our point of view we do not understand then what the administrative problem of BIL is).In essence, to avoid dialectical short circuits:1) We are only concerned about the administrative manageability of this type of instrument: the trust is tax resident in Italy, the approach to non-harmonised funds is penalising on paper, even if in this specific case, being a trust, there should be no penalisation (we are checking); apart from the tax issue, there is still a need for 'civil law' reporting, which is currently absolutely inadequate because we do not have a complete bank statement;2) If the trustee and protector wish to continue with BGB, they must clarify the risks and investment strategy of the structured products in the portfolio because BGB does not agree to manage the account as a normal single portfolio management mandate, which is very transparent from a control point of view;3) If they intend to continue with BGB it is essential that there is a bank that correctly receives the valuations from the fund manager which in this case is UBS (we await confirmation on this point). If BIL is unable to do so (which is not understandable to us given that it already appears to be working with BGB funds) and the trustee and protector intend to maintain these products, the only alternative is to open an account in the UK with a bank known to BGB in order to have a statement of account correctly valuing the securities. We will then clarify the Italian taxation of the trust on non-harmonised (or harmonised depending on whether the funds are actually regulated) products.MatthewAw.Matteo PettinariDirectionCompagnia Fiduciaria Lombar”
“135. By email dated15/01/2018 (10:24) addressed to Mr Amari and copied to the Third Defendant Dr Panico requested a copy of the managementmandate to BGB. The Third Defendant responded on the same day by emailaddressed to Mr Amari and Dr Panico at 10:32:“I don’t want to confuse things… but perhaps reference is made to the ‘Gryffonmemoranda’ etc. If I have understood correctly, these are fairly voluminous dossiersin which the services subscribed are described (whereof course we the managers.”136. By email of20/01/2018 (06:39) addressed to the ThirdDefendant, Dr Panico wrote:“but is it simply the “Memorandum” of the fundsIt would be good to have a “management Agreement” you don’t have a standardlike BGBWe can sign it on Monday”137. By email dated21/01/2018 (09:35) to Dr Panico, the ThirdDefendant wrote:“In addition to the one reporting the funds there should be another page with ourdetails and the management objective.If you only have the memo then I turn you this agreement on Monday” 138. By email dated22 January 2018 (11:22) the Third Defendant sent to Dr Panico a form of Investment Management Agreement (the “Written IMA”) for completion and signature. Dr Panico completed the Written IMA and signed thesame, dating it30 November 2014 . The Third Defendant subsequently signed theWritten IMA on behalf of BGB.139. The Written IMA was produced and signed by the Third Defendant as a furtherassurance to Private Trustees that the Defendants were acting honestly and in the bestinterests of Private Trustees.140. The Claimant does not seek to rely on the Written IMA as a contractual documentbut will rely on the statement made by the Third Defendant in his Defence to theeffect that the Written IMA reflected what had been agreed in the Autumn of 2014.”
“42. The question therefore arises as to whether a contract between Mr El-Safty and WBA itself can be implied. The test for such an implication, as it became common ground during the hearing of the appeal, is necessity: see Baird Textile Holdings Ltd v. Marks & Spencer plc[2001] EWCA Civ 274 , [2002] 1 All ER (Comm) 737, especially at para 62.”
“15.. For Baird counsel submits that where, as alleged in paragraph 9, one party intentionally induces a particular belief in another, on which the other relies, such conduct attracts legal responsibility. The responsibility relied on is (1) to give reasonable notice to terminate the relationship and (2) during the subsistence of the relationship, to acquire garments from Baird in such quantities and at such prices as were in all the circumstances reasonable. More specifically he contends that the judge was wrong in three respects, namely (a) necessity is not the test for the implication of a contract from conduct, (b) there is a sufficient prospect of success in establishing an intention to create the legal relations relied on, and (c) the obligations are sufficiently certain to be enforceable as part of the alleged contract. 16.. In connection with the wide proposition counsel referred to academic discussion with regard to “relational contracts” and the legal implications to which they may give rise. But the articles which he produced did not suggest that the normal rules as to the implication and formation of contracts or the usual requirements of certainty did not apply to “relational contracts”
“… it would, in my view, be contrary to principle to countenance the implication of a contract from conduct if the conduct relied upon is no more consistent with an intention to contract than with an intention not to contract. It must, surely, be necessary to identify conduct referable to the contract contended for or, at the very least, conduct inconsistent with there being no contract made between the parties. Put another way, I think it must be fatal to the implication of a contract if the parties would or might have acted exactly as they did in the absence of a contract.” 19.. Counsel for Baird relied on the fact that in Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council[1990] 1 WLR 1195 , a case concerning the implication of a contract from a request for tenders and a submission in response, Bingham LJ put the matter somewhat differently. In that case he referred (pp. 1201 and 1202) to the “confident assumptions of commercial men” and the need to “be able to conclude with confidence both that the parties intended to create contractual relations and that the agreement was to the effect contended for”. 20.. For M&S it was submitted that it would be odd if the principle for the implication of a contract at all should be different or less onerous than the principle for the implication of a term in a contract. Reliance was placed on Wilson v Partenreederei Hannah Blumenthal[1983] AC 854 and The Gudermes [1993] 1 Ll.R.311 . The former concerned the question whether a contract to abandon an arbitration might be implied from conduct, or more precisely lack of conduct. Lord Brandon of Oakbrook considered (p.914) that an actual abandonment, as opposed to an estoppel precluding an assertion of continuance, required proof of conduct of each party, as evinced to the other party and acted on by him, as “leads necessarily to the inference of an implied agreement” between them to abandon the contract. Lord Roskill referred (p.923) to “the only possible inference [being] that the agreement to arbitrate has been rescinded by mutual consent”
“48.. I agree with the judgment of the Vice Chancellor on the contractual issue generally, and in particular his analysis of the problems of ascertaining with any sufficient precision the parties' mutual obligations, and also, by reason of the uncertainty, of establishing a mutual intention to create a legally enforceable relationship.”
“59.. The Vice-Chancellor has set out paragraph 12(1) and (2) of the judgment below, in which Morison J summarised the relevant legal principles as he saw them. For a contract to come into existence, there must be both (a) an agreement on essentials with sufficient certainty to be enforceable and (b) an intention to create legal relations. 60.. Both requirements are normally judged objectively. Absence of the former may involve or be explained by the latter. But this is not always so. A sufficiently certain agreement may be reached, but there may be either expressly (i.e. by express agreement) or impliedly (e.g. in some family situations) no intention to create legal relations. 61.. An intention to create legal relations is normally presumed in the case of an express or apparent agreement satisfying the first requirement: see Chitty on Contracts (28 th Ed.) Vol. 1 para.2–146. It is otherwise, when the case is that an implied contract falls to be inferred from parties' conduct: Chitty, para.2–147. It is then for the party asserting such a contract to show the necessity for implying it. As Morison J said in his paragraph 12(1), if the parties would or might have acted as they did without any such contract, there is no necessity to imply any contract. It is merely putting the same point another way to say that no intention to make any such contract will then be inferred. 62.. That the test of any such implication is necessity is, in my view, clear, both on the authority of The Aramis [1989] 1 Ll.R. 213 , Blackpool and Fylde Aero Club Ltd. v. Blackpool B.C.[1990] 1 WLR 1195 , The Hannah Blumenthal[1983] AC 854 and The Gudermes [1993] 1 Ll.R. 311 cited by the Vice-Chancellor, and also a matter of consistency. It could not be right to adopt a test of necessity when implying terms into a contract and a more relaxed test when implying a contract — which must itself have terms. 63.. Here it is sought by the claimant to argue in reverse. First, the issue of intention to create legal relations is addressed and it is suggested that the judge gave only one reason (based on paragraph 9.28 of the claim) for negativing any such intention. Then, having sought to show that reason as ill-founded, it is argued that the only barrier to an enforceable contract is “essentially one of interpretation” and of giving effect to an intention on the part of the parties to contract. 64.. It is, in my judgment, more appropriate to take the requirements in the order in which I have set them out, and to recognise their potential inter-relationship. If there is no sufficient agreement on essentials, that is on any view fundamental, and it may well also reflect an absence of intention to create legal relations. 69. Objectively, the only sensible analysis of the present situation is in my judgment that the parties had an extremely good long-term commercial relationship, but not one which they ever sought to express, or which the court would ever seek to express, in terms of long-term contractual obligations. The upshot is that I agree with the judge's conclusion that there was never here any agreement on essentials. 70. In addition, I consider that the fact that there was never any agreement to reach or even to set out the essential principles which might govern any legally binding long-term relationship indicates that neither party can objectively be taken to have intended to make any legally binding commitment of a long-term nature. Their conduct in this regard contrasts with their conduct in entering into short-term commitments relating to each season, as well as their conduct in entering into other particular contracts, such as that made by both M & S and Baird with the clothing designer, Matthew Williamson, dated 27 th March 1998.”
"Particulars of claim must include -- ... (e) such other matters as may be set out in a practice direction."
"52. Section 32 provides, so far as material: '(1) Subject to subsections (3), (4A) and (4B) below, where in the case of any action for which a period of limitation is prescribed by this Act, either – (a) the action is based upon the fraud of the defendant; or (b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or (c) the action is for relief from the consequences of a mistake; the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. '(2) for the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty ...' "
'The purpose of the postponement effected by section 32(1) is to ensure that a claimant is not disadvantaged, so far as limitation is concerned, by reason of being unaware of the circumstances giving rise to his cause of action as a result of fraud, concealment or mistake. That purpose is achieved, where the ingredients of the cause of action include his having made a mistake of law, if time runs from the point in time when he knows, or could with reasonable diligence know, that he made such a mistake "with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking advice and collecting evidence"; or, as Lord Brown put it in Deutsche Morgan Grenfell[2007] 1 AC 558 , he discovers or could with reasonable diligence have discovered his mistake in the sense of recognising that a worthwhile claim arises. We do not believe that there is any difference of substance between these formulations, each of which is helpful and casts light on the other.' "Although this paragraph has reference to mistake of law, it is clear from the judgment as a whole that (subject only to a possible difference as to the precise time at which the 6-year limitation period starts to run) the general principles explained apply equally to cases of fraud, deliberate concealment and mistake. "56. This and other passages in FII were considered by the Court of Appeal in Potter v Canada Square Operations Limited[2021] EWCA Civ 339 ;[2022] QB 1 , where it was explicitly stated that, in view of s.32 and other sections of the 1980 Act that have a similar effect, the Act does not pursue an unqualified goal of barring stale claims but its objective in that regard is tempered by the acceptance that it would be unfair for time to run against a claimant before they could reasonably be aware of the facts giving rise to a right of action. Males LJ in that case rejected the argument (advanced on the basis of dicta of Simon J) that s.32 itself should be narrowly construed: '
'… At the stage of an enquiry into limitation the existence of the cause of action, and therefore the truth of the facts relied on by the claimant to establish it, is not the relevant issue. Put in general terms, the question is not whether the claimant could have established his cause of action more than 6 years… before he issued his claim, but whether he could have commenced proceedings more than 6 years before he issued his claim. The existence of the constituents of the cause of action - such as fraud or mistake - as verified facts is not the issue' [201]. "The fact that the defendant disputes an element of the cause of action does not mean that commencement of the limitation period is further postponed. "58. Their Lordships then considered the statutory meaning in s.32(1) of 'could with reasonable diligence have discovered it' and noted that authoritative guidance had previously been given by Millett LJ in Paragon Finance plc v DB Thakerar & Co[1999] 1 All ER 400 at 428 as follows: '
'Not making any such assumption would rob the effect of the word "could", as emphasised by Millett LJ, of much of its significance. Further, the concept of "reasonable diligence" carries with it the notion of a desire to know, and, indeed, to investigate.' "59. Reviewing the practicability of the suggested approach in relation to a mistake of law, Lord Reed and Lord Hodge observed at [210] that its application would depend on the circumstances of the case, noting that in case of mistaken payment resulting from ignorance of the law the mistake would normally be discoverable immediately, by seeking legal advice - reasonable diligence would usually include the seeking of legal advice in that context. However, if the payment was made in accordance with the current understanding of the law, which was later overturned, the question would be whether it was discoverable by the exercise of reasonable diligence that the basis of the payment was legally questionable. "60. Although this comparison relates to mistake of law, it is instructive. It establishes that a person cannot rely on legal ignorance of the right to bring a claim if they know the facts that, according to a proper understanding of the law, give rise to that claim. Where mistake of law is not in issue but the question is whether there exists a factual basis for a right to bring a claim, the prior question is likely to be when, by the exercise of reasonable diligence, a person could discover the relevant facts. In this regard, as noted by Millett and Neuberger LJJ, it is to be assumed that the claimant is reasonably motivated to find out whether they have a claim. "61. The Supreme Court in FII did not deal with the question of what was meant by 'any fact relevant to the … cause of action' or what it was that put a claimant on inquiry in the first place, in a case of deliberate concealment. "62. The former question is now long established as meaning an essential fact needed to enable a statement of claim to be pleaded (the 'statement of claim test'). This question was addressed comprehensively by Simon J in Arcadia Group Brands Ltd v Visa Inc[2014] EWHC 3561 (Comm) ; [2015] Bus LR 1362 at [24] by reference to several authoritative decisions. It is of value because it addresses the matter in the context of an allegation of deliberate concealment, though the suggestion of narrow interpretation in principle (1) has been disapproved by the Court of Appeal (in the Potter case, see above): '
'In summary, when there has been deliberate concealment of a relevant factor, "reasonable diligence" will not require a claimant to take steps to discover that fact unless there is something (referred to in the cases as a "trigger") to put it on notice of the need to investigate. Whether there is such a trigger must be determined objectively as a question of fact.' (para 35) '
"I have been taken to Sheldon v RHM Outhwaite[1995] 2 All ER 558 and to RG Securities v Allianz 191 ConLR 1, and (in Ms Proferes' closing written submissions) to Hussain v Mukhtar[2016] EWHC 424 (QB) , from which (and also from the cases noted in the White Book at 8-85.1) I draw the following principles (which I do not think were really in contest) being: a. The fraud or the deliberately concealed facts must be part of the basis of the relevant claim i.e. unless they were pleaded the relevant cause of action which was the subject-matter of the Claim would not be held to exist b. The effect of deliberate concealment is to reset the limitation clock to start again with a new 6 year period (as opposed to a suspension of an existing running period), and even if the limitation period had already expired or the concealment took place after the events constituting the relevant tort or other wrong c. The 'deliberate' element of the concealment is a subjective requirement of the concealer actually appreciating that there is something, which may be a breach of duty, which is being concealed, and which involves both an appreciation of the existence of the fact(s) (in the case of a breach of duty, an appreciation of the fact that there is such a breach) and of the concealing of such fact(s) d. d. 'concealment' can take the form of non-disclosure (at least where disclosure had been sought or would have been expected) rather than a positive act e. The question of what amounts to reasonable diligence is fact sensitive, with the burden of proof being on the Claimant and with an objective test as to whether the relevant facts 'could' have been discovered 'with the exercise of reasonable diligent'. This imports some requirement to investigate where things seems to have gone wrong, although it is also necessary to show that such investigation would have revealed the relevant facts. A relevant summary appears in the often cited passage from the judgment of Millett LJ in Paragon v Thakerar[1999] 1 All ER 400 at 418: 'The question is not whether the Plaintiffs should have discovered the fraud sooner; but whether they could with reasonable diligence have done so. The burden of proof is on them. They must establish that they could not have discovered the fraud without exceptional measures which they could not reasonably have been expected to take. In this context the length of the applicable period of limitation is irrelevant. In the course of argument May LJ observed that reasonable diligence must be measured against some standard, but that the six year limitation period did not provide the relevant standard. He suggested that the test was how a person carrying on a business of the relevant kind would act if he had adequate but not unlimited staff and resources and were motivated by a reasonable but not excessive sense of urgency. I respectfully agree.' “ The Court should be careful and caution before concluding on a summary basis on limited evidence and prior to disclosure [as here] that a claimant did not have a real prospect of showing at trial either that deliberate concealment had occurred or that reasonable diligence would have revealed the relevant facts as such matters are particularly fact sensitive and may very well be affected by material appearing on disclosure (see RG Securities @ paragraphs 43-45)."
“43. The thrust of the defendant's argument on the appeal is directed to his case that the claimant discovered the fraud and/or the concealment long before5 August 1989 . On this issue the judge's findings were: “In the event I have concluded that the Plaintiff did not ‘discover’ the concealed fact until the filing of the Defence. It is true that he strongly suspected that the money had been paid to Ibanez — Mr Mendez always insisted that was so — he may even have thought that likely. However, his solicitor repeatedly asserted in writing — in his report on case, in correspondence, in dealings with other solicitors and the Law Society, that the money had been paid to Mr Mendez. I think it entirely reasonable to hold that one has not ‘discovered’ a fact whilst precisely the opposite is asserted by the solicitor who acted for you in the relevant transaction and there is no independent documentary evidence sufficient to gainsay that assertion.” 44. The first 15 pages of the defendant's written submissions to us are devoted to repeating and elaborating the points which the judge considered and rejected in the passage from the judgment which I have just cited. We were also taken to a number of documents which were before the judge. They included the letters from the defendant in which he asserted that the money had gone to Mr Mendez. Whether or not one describes this correspondence as a protracted tissue of lies, it does no credit to the defendant. His explanations for it are, to my mind, specious. 45. On this part of the limitation defence, as with the other issues I have so far considered, the defendant lost on the facts before the judge. I can see no basis on which this court can or should interfere with the judge's findings. The defendant's submissions include the assertion that the claimant knew that he was lying to him. Such a submission from a solicitor is startling and it is not surprising that the judge rejected it. 46. The defendant takes a further limitation point that the consequential losses awarded by the judge, including the money spent in support of Mr Mendez and the cost of investigating the true destination of the£524,100 , were suffered more than six years before the proceedings were issued. This point is misconceived. The effect of section 32 and the judge's findings is that time had not started to run in respect of these or any of the claimant's claims when the proceedings were issued because it was not until service of the defence that the true destination of the£524,100 was revealed.”
“ For myself, I do not find it absurd that the effect of section 32(1) is to afford to the plaintiff a full six-year period of limitation from the date of the discovery of the concealment. In such a case, the plaintiff must have been ignorant of the relevant facts during the period preceding the concealment: if he knew of them, no subsequent act of the defendant can have concealed them from him. If the defendant then deliberately takes a step to conceal the relevant facts (a step which is by ordinary standardsmorally unconscionable if not necessarily legally fraudulent) it does not seem to me absurd that a plaintiff who has been prevented by the dishonourable conduct of the defendant from learning of the facts on the basis of which to found his action should be afforded the full six-year period from the date of the discovery of such concealment to bring his action. Certainly, that consequence is far less bizarre than the result of theconstruction favoured by the majority of the Court of Appeal [1994] 3 W.L.R. 999 under which a plaintiffs right of action can become time-barred before he even becomes aware of the relevant facts, his ignorance being due to the deliberate concealment of such facts by the defendant.”
“I come back therefore to where I started from. Section 32 of the Act of 1980 is not ambiguous. On the plain meaning of the words any deliberate concealment of relevant facts falls within section 32(1)(b) with the consequence that, in applying the statutory time limits, time does not start to run until the concealment is discovered. The onus lies on the defendants to show a compelling reason to limit the generality of the words used. Far from there being any such compelling reason, the H defendants' construction would lead to an unfair result inconsistent with the underlying rationale of the section, viz. that the defendants would be entitled to benefit from their own alleged unconscionable behaviour by deliberately concealing the facts relevant to the plaintiffs' cause of action.”
"116. The relevant provisions of section 32 are as follows:- '32 postponement of limitation period in case of fraud, concealment or mistake (1) subject to subsection (3) and subsection (4 A) below, where in the case of any action which a period of limitation is prescribed by this Act either:- (b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the Defendant;... The period of limitation shall not have begun to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or with reasonable diligence have discovered it. Reference in this subsection to the Defendant include references to the Defendant's agent and to any person through whom the Defendant claims and his agent (2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstance in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts in breach of that duty' "117. Accordingly there must be deliberate concealment of any fact relevant to the Claimant's claim. Time will not then run against the Claimant until he has discovered the concealment or could with reasonable diligence have discovered it. "118. Therefore there must be a deliberate concealment of a relevant fact. Second, time does not run against a Claimant until he has discovered the concealment. Third, however the Claimant will be deemed to have been able to have discovered the deliberate concealment when he could have done so with reasonable diligence. Deliberate commission of a breach of duty in circumstances in which the facts are unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty. "119. I considered the ambit of section 32 in AG of Zambia v Meer Care & Desai[2007] EWHC 952 at paragraphs 376-422. The Court of Appeal has recently heard an appeal by the First Defendants against that decision. I understand that there are some challenges to the limitation determinations made by me. For the present in my view the relevant part is paragraphs 405 et seq. It seems to me plain that Bocardo could have discovered with reasonable diligence which carries with it 'the notion of a desire to know, and, indeed, to investigate' (Neuberger LJ as he then was) in Law Society v Sephton[2005] QB 1013 (C.A) long before Bocardo's claim that it did not have the requisite knowledge until 2006. "120. In my judgment it had the requisite knowledge by 1997 when the details of PW5 were made public. Time ran against Bocardo therefore from 1997. Any claim before 1997 became statute barred in 2003 i.e. 6 years after it could have discovered the claim with reasonable diligence. It follows therefore that it had requisite knowledge for the purposes of suing Star Onshore from 1997. It follows therefore that its claim is for 6 years to22nd July 2000 and any earlier claims are statute barred. "
"32. I simply do not see how a response from the solicitor along the lines of, 'Go and ask Mr Owen why I registered this charge', can amount to a deliberate concealment of the fact that eleven weeks earlier the client had told the solicitor not to allow registration without his authority. Lord Browne-Wilkinson in Sheldon v R.H.M. Outhwaite (Underwriting Agencies) Ltd.. [1996] A.C. 102, 144 identifies the fatal flaw in the claimant’s argument:- 'For myself, I do not find it absurd that the effect of s. 32(1) is to afford to the plaintiff a full six-year period of limitation from the date of the discovery of the concealment. In such a case, the plaintiff must have been ignorant of the relevant facts during the period preceding concealment: if he knew of them, no subsequent act of the defendant can have concealed them from him. If the defendant then deliberately takes a step to conceal the relevant facts (a step which is by ordinary standards morally unconscionable if not necessarily legally fraudulent) it does not seem to me to be absurd that a plaintiff who had been prevented by the dishonourable conduct of the defendant from learning of the facts on the basis of which to found his action should be afforded the full six-year period from the date of the discovery of such concealment to bring his action.' "
"I confirmed", implying, according to Mr Phillips, that Mr Gallucci had carefully investigated the matter himself personally. However, it seems to me that the letter can perfectly well mean that Mr Gallucci had tasked Mr Pinto to do the work. The letter does not say that Mr Gallucci had spoken to Interactive Brokers, and it seems to me that it is perfectly possible for a trusting managing director, where I have already held that it was natural and reasonable for everyone to trust Mr Pinto, would instruct Mr Pinto to investigate, and then write a letter saying: "
“44. The judge’s conclusion as to the extent and effect of Nigel Tobias’ fraudulent conduct is challenged by a respondents’ notice served by the petitioners. But, to my mind, that challenge must fail. There was ample material before the judge to justify his conclusion that Nigel Tobias had continued to lie on oath as to the extent of his fraudulent activity in relation to documents. The judge had the advantage, which this court did not have, of hearing and seeing Nigel Tobias give oral evidence at the trial under cross examination. There is no basis on which this court could interfere with the judge’s finding of fact. Nor can it be said that the judge was wrong to take the view that the existence of forged documentary material is likely to infect the oral evidence. In a case of this nature it is inevitable that documents will provide the basis for recollection. It is likely to be very difficult for a witness – even for a witness doing his or her best to tell the truth under oath – to accept that what the witness now thinks that he or she recalls from memory may, in truth, be based on a document which has been shown to be false, or in relation to which there is suspicion. The effect of forged documentary material on a trial is pernicious, because witnesses who have, at one stage in the process of preparing for trial, believed that documentary evidence to be genuine are unlikely to be able to evaluate, objectively, the effect which it has had on their recall of the events to which it relates.”
“53. In those circumstances I take the view that it was wrong for the judge to allow the petition to proceed once he had reached the conclusion that there was a substantial risk that the allegations in relation to the disputed terms of the 1994 agreement were incapable of a fair trial. He recognised, correctly, that a claim to relief based on allegations of abuse by the Blackledge respondents of their powers as directors and shareholder after 1997 would not require an investigation into what had or had not been agreed in 1994. But, as it seems to me, he failed to appreciate that, on a true analysis, the allegations made in the petition were allegations of oppressive conduct by Blackledge plc as supplier or as lender; and were not allegations of oppressive conduct by Blackledge plc as majority shareholder. In so far as there were general allegations of breach of duty by Graham and Margaret Blackledge as directors, those allegations were not supported by any evidence which the judge identified; and are contradicted by the material which was put before this court. In my view the judge ought to have reached the conclusion that, once the allegations in respect of which there was a substantial risk that Nigel Tobias’ fraudulent conduct had made a fair trial impossible were put on one side and left out of account, there was no case for relief which remained to be tried.”
“54. It would be open to this court to allow the appeal against the judge’s refusal to strike out the petition on that ground alone. But, for my part, I would allow that appeal on a second, and additional, ground. I adopt, as a general principle, the observations of Millett J in Logicrose Ltd v Southend United Football Club Ltd (1988) Times, 5 March, that the object of the rules as to discovery is to secure the fair trial of the action in accordance with the due process of the court; and that, accordingly, a party is not to be deprived of his right to a proper trial as a penalty for disobedience of those rules, even if such disobedience amounts to contempt for or defiance of the court, if that object is ultimately secured, by (for example) the late production of a document which has been withheld. But where a litigant’s conduct puts the fairness of the trial in jeopardy, where it is such that any judgment in favour of the litigant would have to be regarded as unsafe, or where it amounts to such an abuse of the process of the court as to render further proceedings unsatisfactory and to prevent the court from doing justice, the court is entitled, indeed, I would hold bound, to refuse to allow that litigant to take further part in the proceedings and (where appropriate) to determine the proceedings against him. The reason, as it seems to me, is that it is no part of the court’s function to proceed to trial if to do so would give rise to a substantial risk of injustice. The function of the court is to do justice between the parties; not to allow its process to be used as a means of achieving injustice. A litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial has forfeited his right to take part in a trial. His object is inimical to the process which he purports to invoke. 55. Further, in this context, a fair trial is a trial which is conducted without an undue expenditure of time and money; and with a proper regard to the demands of other litigants upon the finite resources of the court. The court does not do justice to the other parties to the proceedings in question if it allows its process to be abused so that the real point in issue becomes subordinated to an investigation into the effect which the admittedly fraudulent conduct of one party in connection with the process of litigation has had on the fairness of the trial itself. That, as it seems to me, is what happened in the present case. The trial was ‘hijacked’ by the need to investigate what documents were false and what documents had been destroyed. The need to do that arose from the facts (i) that the petitioners had sought to rely on documents which Nigel Tobias had forged with the object of frustrating a fair trial and (ii) that, as the judge found, Nigel Tobias was unwilling to make a frank disclosure of the extent of his fraudulent conduct, but persisted in his attempts to deceive. The result was that the petitioners’ case occupied far more of the court’s time than was necessary for the purpose of deciding the real points in issue on the petition. That was unfair to the Blackledge respondents; and it was unfair to other litigants who needed to have their disputes tried by the court. 56. In my view, having heard and disbelieved the evidence of Nigel Tobias as to the extent of his fraudulent conduct, and having reached the conclusion (as he did) that Nigel Tobias was persisting in his object of frustrating a fair trial, the judge ought to have considered whether it was fair to the respondents, and in the interests of the administration of justice generally, to allow the trial to continue. If he had considered that question, then, as it seems to me, he should have come to the conclusion that it must be answered in the negative. A decision to stop the trial in those circumstances is not based on the court’s desire (or any perceived need) to punish the party concerned; rather, it is a proper and necessary response where a party has shown that his object is not to have the fair trial which it is the court’s function to conduct, but to have a trial the fairness of which he has attempted (and continues to attempt) to compromise.”
“61. But I should not leave the matter without this comment. The judge’s observation, in the final paragraph of his first judgment, that ‘if in the course of the trial further evidence emerges that . . . other documents have been suppressed or fraudulently altered, the application to strike out can then be renewed and is highly likely to be successful’ must be taken to have led, in some measure, to the trial thereafter taking the course that it did. It seems to me that it may well be more satisfactory, in a case where there has been admitted forgery or destruction of relevant documents, to decide, on the application to strike out, whether the full extent of the fraudulent conduct has been revealed, even if that requires oral evidence at that stage. The judge recognised that cross-examination could have been sought on the application in October 1999. It is, of course, a matter of case management for the judge in each case whether to invite cross-examination on an interlocutory application, or to leave the point until trial. But I venture to suggest that a judge faced with an application to strike out in circumstances such as those in the present case ought to address the question whether the better course would not be to resolve the issue, before the trial begins (or, perhaps, as a preliminary issue at the start of the trial), whether full disclosure of the fraudulent conduct has been made. If, in the absence of cross-examination, the judge cannot resolve that issue at the interlocutory stage, then he is left in the position that he cannot be confident that there is no substantial risk that the trial (if it proceeds) will be a fair trial. Indeed, he can be reasonably confident that it will be unfair, in the sense that it will give rise to a detailed examination of issues which ought not, properly, to be occupying the time of the court at the trial. If, on the other hand, he is able to resolve that issue before trial (after cross-examination if necessary) then it will not require further investigation at the trial. If the judge is satisfied, in the light of what he accepts is full disclosure, that there is no substantial risk that the admitted forgery or destruction of documents will lead to a result which is unsafe then he will allow the trial to proceed. But, if he is not satisfied that there has been full and frank disclosure of the fraudulent conduct, then, for the reasons which I have already given, it seems to me that the correct response is to refuse to allow the party in default from taking any further part in the proceedings, with whatever consequences follow from that.”
“The trend of the authorities before the CPR was increasingly to support the notion that as the court became more pro-active, so greater importance was given to the need to emphasise and to protect the court’s own interest in administering justice fairly not only as between the parties before the court but to all others using the court service. Access to the courts was open to all but the time of the courts was a precious resource which needed to be managed rigorously in order to be fair to all. The CPR is the apotheosis of those ideals.”
“74. This was, therefore, a flagrant and continuing affront to the court. Striking out is not a disproportionate remedy for such an abuse, even when the petitioners lose so much of the fruits of their labour. 75. Even if the judge were correct in his analysis that all effect of the 1994 agreement could be excised from the petition and a prima facie case could be made out of what remained, I am quite clear that, if the CPR are to receive a correct start, then this court must make the clear statement that deception of this scale and magnitude will result in a party’s forfeiting his right to continue to be heard.”
“I have had the opportunity to read in draft the copy of the judgment of Chadwick LJ and I agree with it. I have added these words of my own simply to underline that the principles to apply are those in the new procedural code. They are encapsulated by the need to do justice, case by case. In this case it is no more than justice in that broad sense that the petitioners should be denied the relief which they sought to obtain by persistent cheating.”
"71. In our judgment, this decision is authority for the proposition that, where a claimant is guilty of misconduct in relation to proceedings which is so serious that it would be an affront to the court to permit him to continue to prosecute his claim, then the claim may be struck out for that reason. In Arrow Nominees, the misconduct lay in the petitioner's persistent and flagrant fraud whose object was to frustrate a fair trial. The question whether it is appropriate to strike out a claim on this ground will depend on the particular circumstances of the case. It is not necessary for us to express any view as to the kind of circumstances in which (even where the misconduct does not give rise to a real risk that a fair trial will not be possible) the power to strike out for such reasons should be exercised. There is a valuable discussion of the principles by Professor Adrian Zuckerman in his editor's note entitled 'Access to justice for litigants who advance their case by forgery and perjury' in CLQ[2008] 27 p 419 ."
"72. We accept that, in theory, it would have been open to the judge, even at the conclusion of the hearing, to find that Mr Masood had forged documents and given fraudulent evidence, to hold that he had thereby forfeited the right to have the claims determined and to refuse to adjudicate upon them. We say 'in theory' because it must be a very rare case where, at the end of a trial, it would be appropriate for a judge to strike out a case rather than dismiss it in a judgment on the merits in the usual way. "73. One of the objects to be achieved by striking out a claim is to stop the proceedings and prevent the further waste of precious resources on proceedings which the claimant has forfeited the right to have determined. Once the proceedings have run their course, it is too late to further that important objective. Once that stage has been achieved, it is difficult see what purpose is served by the judge striking out the claim (with reasons) rather than making findings and determining the issues in the usual way. If he finds that the claim is based on forgeries and fraudulent evidence, he will presumably dismiss the claim and make appropriate orders for costs. In a bad case, he can refer the papers to the relevant authorities for them to consider whether to prosecute for a criminal offence: we understand that this was done in the present case. "74. In his note, Professor Zuckerman comments on the judgment of Peter Smith J that, if the judge had struck out the claims, 'he would have spared the legal system considerable resources and would have delivered a clear message to those who might be tempted to use suppression, forgery and perjury to advance their cause'. We can see that, if an application to strike out had been made at an earlier stage of the proceedings, this might well have been the case. Indeed, Professor Zuckerman himself says that the adoption of the 'forfeiture approach would require the court to be alert to the possibility of fraud on the court and take the necessary measures at an early stage' (emphasis added). In a complex case (such as the present) which requires a good deal of evidence before the fraud can be established to the requisite standard of proof, it may be difficult to avoid a full trial. "75. The judge said at [150] that he would have struck out all the claims if he was dealing solely with the misconduct of Mr Masood. As we have said, we think that it was too late to take that course. But the judge was wrong to hold that the fact that the defendants had also been guilty of misconduct was a reason for him not to exercise the power to strike out the claims on the grounds of Mr Masood's misconduct. In our judgment, the defendants' misconduct was irrelevant. On the assumption that it was not too late to consider striking out the claim, the sole question was whether, by reason of Mr Masood's forgeries and fraudulent evidence, the claimants had forfeited the right to have an adjudication of their claims. The answer to that question did not involve an exercise of weighing the misconduct of the claimants against that of the defendants. The defendants did not start the proceedings. They did not seek relief from the court. They were merely defending the claims brought by the claimants. "76. It follows that we reject the first ground of appeal. The judge was right not to strike out the claims, although we do not agree with the reasons that he gave for refusing to do so."
"22. As stated at the outset, it was submitted on behalf of the defendant that the court has power to strike out the claim both underCPR 3.4 (2) and under its inherent jurisdiction. "
"34. We are conscious of the fact that there are now many cases decided since the advent of the CPR where it has been held that the court should approach the CPR as a code and that it should decline to have regard to decisions under the RSC. However, this is an exceptional class of case and it seems to us that it is appropriate to have regard to the way in which the inherent jurisdiction of the court was exercised in cases of abuse of process before the CPR came into force. "35. The pre CPR authorities established a number of propositions as follows: i) The court had power to strike out a claim for want of prosecution, not only in cases of inordinate and inexcusable delay which caused prejudice to the defendant, but also where the court was satisfied that the default was 'intentional and contumelious, e.g. disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court': Birkett v James[1978] AC 297 per Lord Diplock at p 318F G. In the latter case it was not necessary to show that a fair trial was not possible or that there was prejudice to the defendant. See also, for example, Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd[1998] 1 WLR 1426 , per Lord Woolf MR (with whom Waller and Robert Walker LJJ agreed) at p 1436H. ii) In a classic, much followed, statement in Hunter v Chief Constable of the West Midlands Police[1982] AC 529 Lord Diplock described the court's power to deal with abuse of process thus at p 536C: 'This is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right thinking people. The circumstances in which abuse of process can arise are very varied. … It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power.' iii) The court had power to strike out a claim on the ground of abuse of process, even though the effect of doing so would be to extinguish substantive rights. It follows from the conclusion in Birkett v James that the court could strike out a claim as an abuse of process for intentional and contumelious conduct amounting to an abuse of the process of the court without the necessity to show prejudice that the fact that a strike out might extinguish substantive rights is not a bar to such an order. iv) Although it appears clear that in the vast majority of cases in which the court struck out a claim it did so at an interlocutory stage and not after a trial or trials on liability and quantum, the cases show that the power to strike out remained even after a trial in an appropriate case. The relevant authorities, such as they are, were considered by Colman J in National Westminster Bank plc v Rabobank Nederland[2006] EWHC 2959 (Comm) , where he summarised the position thus in paras 27 and 28: '27. In my judgment, there can be no doubt that the court does have jurisdiction to strike out a claim or any severable part of a claim of its own volition whether immediately before or during the course of a trial. This is clear from the combined effect ofCPR 1.4 , 3.3 and 3.4 as well as 3PD 1 .2, and by reason of its inherent jurisdiction. 28. However, the occasion to exercise this jurisdiction after the start of the trial is likely to be very rare. The normal course will be for all applications to strike out a claim or part of a claim on the merits to be made underCPR 3.4 or 24.2 and determined well in advance of the trial.' v) We agree with Colman J. His conclusions are consistent with Glasgow Navigation Co v Iron Ore Co[1910] AC 293 , Webster v Bakewell RDC(1916) 115 LT 678 , Harrow LBC v Johnstone[1997] 1 WLR 459 , Bentley v Jones Harris & Co[2001] EWCA Civ 1724 per Latham LJ at para 75 and The Royal Brompton Hospital NHST v Hammond[2001] EWCA Civ 550 ; [2001] Lloyd's Rep PN 526, per Clarke LJ at paras 104 – 109, especially at para 107."
"36. As we see it, the present position is that, whether under the CPR or under its inherent jurisdiction, the court has power to strike out a statement of case at any stage on the ground that it is an abuse of process of the court, but it will only do so at the end of a trial in very exceptional circumstances. Some assistance is to be derived from Masood v Zahoor[2009] EWCA Civ 650 ,[2010] 1 WLR 746 , where the judgment of the Court of Appeal (comprising Mummery, Dyson and Jacob LJJ) was given by Mummery LJ. It had been argued that the judge should have struck the claim out as an abuse of process on the ground that some at least of the claims were based on forged documents and false written and oral evidence. "37. The Court of Appeal referred extensively to the decision of the Court of Appeal in Arrow Nominees Inc v Blackledge and held at para 71 that it was authority for the proposition that, where a claimant is guilty of misconduct in relation to proceedings which is so serious that it would be an affront to the court to permit him to continue to prosecute his claim, then the claim may be struck out for that reason. It noted that in the Arrow case, the misconduct lay in the petitioner's persistent and flagrant fraud whose object was to frustrate a fair trial. It held that the question whether it is appropriate to strike out a claim on this ground will depend on the particular circumstances of the case. It added that it was not necessary to express any view as to the kind of circumstances in which (even where the misconduct does not give rise to a real risk that a fair trial will not be possible) the power to strike out for such reasons should be exercised. It then referred to what this Court agrees is a valuable discussion by Professor Zuckerman in a note entitled 'Access to Justice for Litigants who Advance their case by Forgery and Perjury' in (2008) 27 CJQ 419. "38. The Court of Appeal expressed its conclusions of principle as follows: '72. We accept that, in theory, it would have been open to the judge, even at the conclusion of the hearing, to find that Mr Masood had forged documents and given fraudulent evidence, to hold that he had thereby forfeited the right to have the claims determined and to refuse to adjudicate upon them. We say 'in theory' because it must be a very rare case where, at the end of a trial, it would be appropriate for a judge to strike out a case rather than dismiss it in a judgment on the merits in the usual way. 73. One of the objects to be achieved by striking out a claim is to stop the proceedings and prevent the further waste of precious resources on proceedings which the claimant has forfeited the right to have determined. Once the proceedings have run their course, it is too late to further that important objective. Once that stage has been achieved, it is difficult see what purpose is served by the judge striking out the claim (with reasons) rather than making findings and determining the issues in the usual way. If he finds that the claim is based on forgeries and fraudulent evidence, he will presumably dismiss the claim and make appropriate orders for costs. In a bad case, he can refer the papers to the relevant authorities for them to consider whether to prosecute for a criminal offence: we understand that this was done in the present case.' "39. In para 74 the Court of Appeal stressed the importance, if possible, of making an application to strike out at an early stage in order to preserve court resources and save costs. However, it also appreciated that in a complex case it might not be possible to avoid a full trial. "40. It appears to us that the approach identified in paras 71 74 of Masood v Zahoor is somewhat different from that in Ul Haq v Shah. It recognises the possibility of striking out a claim at the end of a trial, whereas, as we read Ul Haq v Shah, it was there held that such a course was not permissible. We prefer the approach of Masood v Zahoor. We can summarise what we see as the correct approach in this way."
"41. The language of the CPR supports the existence of a jurisdiction to strike a claim out for abuse of process even where to do so would defeat a substantive claim. The express words ofCPR 3.4 (2)(b) give the court power to strike out a statement of case on the ground that it is an abuse of the court's process. It is common ground that deliberately to make a false claim and to adduce false evidence is an abuse of process. It follows from the language of the rule that in such a case the court has power to strike out the statement of case. There is nothing in the rule itself to qualify the power. It does not limit the time when an application for such an order must be made. Nor does it restrict the circumstances in which it can be made. The only restriction is that contained inCPR 1.1 and 1.2 that the court must decide cases in accordance with the overriding objective, which is to determine cases justly. "42. Under the CPR the court has a wide discretion as to how its powers should be exercised: see e.g. Biguzzi v Rank Leisure Plc[1999] 1 WLR 1926 . So the position is that the court has the power to strike out a statement of case for abuse of process but at the same time has a wide discretion as to which of its many powers to exercise. The position is the same under the inherent jurisdiction of the court, so that in the future it is sufficient for applications to be made under the CPR. We can see no reason why the conclusion reached should be any different, whether the application is made under the CPR or the inherent jurisdiction of the court. "43. We agree with the Court of Appeal in Masood v Zahoor at para 72 quoted above that, while the court has power to strike a claim out at the end of a trial, it would only do so if it were satisfied that the party's abuse of process was such that he had thereby forfeited the right to have his claim determined. The Court of Appeal said that this is a largely theoretical possibility because it must be a very rare case in which, at the end of a trial, it would be appropriate for a judge to strike out a case rather than dismiss it in a judgment on the merits in the usual way. We agree and would add that the same is true where, as in this case, the court is able to assess both the liability of the defendant and the amount of that liability. "44. We have considered whether the possibility is so theoretical that it should be rejected as beyond the powers of the court. However it was ultimately accepted on behalf of the claimant that one should never say never. Moreover we are mindful of Lord Diplock's warning in Hunter quoted at para 35 above that it would be unwise to limit in advance the kinds of circumstances in which abuse might be found. See also the speech of Lord Bingham of Cornhill in Johnson v Gore Wood & Co[2002] 2 AC 1 , at 31. "45. It was submitted that an ascertained claim for damages could only be removed by Parliament and not by the courts. We are unable to accept that submission. It is for the court, not for Parliament, to protect the court's process. The power to strike out is not a power to punish but to protect the court's process."
"61. The test in every case must be what is just and proportionate. It seems to us that it will only be in the very exceptional case that it will be just and proportionate for the court to strike out an action after a trial. The more appropriate course in the civil proceedings will be that proposed in both Masood v Zahoor and Ul Haq v Shah. Judgment will be given on the claim if the claimant's case is established on the facts. All proper inferences can be drawn against the claimant. The claimant may be held entitled to some costs but is likely to face a substantial order for indemnity costs in respect of time wasted by his fraudulent claims. The defendant may well be able to protect itself against costs by making a Calderbank offer. Moreover, it is open to the defendant (or its insurer) to seek to bring contempt proceedings against the claimant, which are likely to result in the imprisonment of the claimant if they are successful. It seems to us that the combination of these consequences is like to be a very effective deterrent to claimants bringing dishonest or fraudulent claims, especially if (as should of course happen in appropriate cases) the risks are explained by the claimant's solicitor. It further seems to us that it is in principle more appropriate to penalise such a claimant as a contemnor than to relieve the defendant of what the court has held to be a substantive liability."
"62. We note two points by way of postscript. First, nothing in this judgment affects the correct approach in a case where an application is made to strike out a statement of case in whole or in part at an early stage. As the Court of Appeal put it in Masood v Zahoor at para 73 (set out above) in a passage with which we agree, one of the objects to be achieved by striking out a claim is to stop proceedings and prevent the further waste of precious resources on proceedings which the claimant has forfeited the right to have determined. Secondly, nothing in this judgment affects the case where the fraud or dishonesty taints the whole claim. In that event, if the court is aware of it before the end of the trial, judgment will be given for the defendant and, if it comes to light afterwards, it will be open to a defendant to raise the issue in an appeal."
“There are three discernible approaches to this problem in the case law. The first is that the court should seek to try the issues between the parties as long as the litigant’s fraudulent conduct has not rendered it impossible to hold a fair trial upon such evidence that has not been contaminated by the litigant’s fraudulent practices. We may refer to this as the justice on the merits approach. The second is the forfeiture approach, which holds that a litigant who seeks to subvert the court process by suppression of evidence, forgery and perjury has forfeited his right to an adjudication of his cause and his statement of case should be struck out on this ground alone. A third approach brings to bear on the issue the overriding objective of the CPR. It holds that a litigant who suppresses or forges documents or adduces false testimony is imposing a greater and unjustified burden on court resources, because such subversive practice would oblige the court to devote more time and effort to disentangling reliable evidence from false evidence. According to this approach a litigant who employs such practices does not deserve the investment of the court’s scarce resources to his case and it should therefore be dismissed without adjudication on the merits. The third approach is a modern compromise between the two approaches; it allows the court to proceed with the case provided that the contaminated evidence does not necessitate the investment of disproportionate court resources in determining the facts.”
“The striking out of the petitioner’s case was thus justified on three grounds. First, that once the contaminated evidence has been excluded, insufficient evidence remained to support the judge’s findings in favour of the petitioners and consequently a fair trial was no longer possible. The second ground was that the petitioner had forfeited his right to a trial of his case because he had not come to court with clean hands but rather determined to subvert the legal process. The third ground was that the petitioner’s fraudulent conduct of the proceedings had led to unjustified waste of court resources and his action should have been stopped. Each of these principles has different implications and may point to different outcomes in a given case. The justice on the merits approach will require the court to give a fraudulent litigant an opportunity to prove his case provided he can do so by evidence which is uncontaminated by his fraudulent practices. By contrast, the forfeiture approach would deny the fraudulent litigant such opportunity. The outcome of the application of the overriding objective would depend on the extent to which the litigant’s fraudulent practices have increased the court’s burden of determining the truth.”
“There is, however, a more fundamental point to be made about the decision and it concerns the implied rejection of the forfeiture approach. What held the judge back from striking out the claimant’s case was the fact that the defendant was equally guilty. ‘‘The difficulty I have’’, Peter Smith J. said, ‘‘is with the application of an appropriate sanction’’ (at [151]). To regard striking out as a sanction or a punishment for wholesale and flagrant subversion of the court process is to misunderstand the forfeiture approach. Striking out in such circumstances does not amount to a denial of access to court, as the judge seemed to think. It is merely an acknowledgement of the litigant’s refusal to participate in a properly conducted fact-finding process. By declining to entertain the litigant’s case in such a situation the court merely draws the logical conclusion from the litigant’s refusal to accept the rules of the institution the protection of which he seeks. Sending away a litigant without adjudicating the merits of his case in this situation is no different from refusing a driving licence to a person who, in order to secure a favourable outcome, distracts and obstructs the driving instructor during the driving test.”
“A number of legal rules have developed which implement this maxim of equity by denying relief regardless of whether an undeserving opponent will benefit as a result. Two rules in particular should have provided guidance for dealing with the situation in this case. The first is embodied in the maxim in pari delicto potior est conditio defendentis; namely, where both parties are equally at fault the position of the defendant is the stronger. For example, where the parties are on an equal footing as regards an illegal contract neither can recover any property or money transferred to the other in pursuance of the contract. The other is in the maxim ex turpi causa non oritur actio; namely, no court will lend its aid to a man who founds his action upon an immoral or an illegal act. Thus the court will refuse to entertain an action founded on an illegal or immoral cause, even if this will benefit an undeserving or even equally guilty defendant. Finally, a defendant may rely on the illegality of a transaction as a defence to a restitutionary claim, when it would otherwise succeed. 4 Common to these rules is the recognition that justice is best served by refusing to allow court adjudication to be used for disentangling illegal or immoral transactions. Parties who embark on enterprises which violate the law or good public order are not entitled to demand protection from the institutions whose function is to uphold the law. The same should apply to litigants who seek court adjudication but at the same time employ fraudulent means to divert the court from the truth. And there is the further consideration of the overriding objective, highlighted by the Court of Appeal in the Arrow Nominees case. Litigants who forge documents and adduce perjured evidence not only discredit the legal process but impose an extra burden on it which diverts resources from more deserving litigants.”
“The adoption of the forfeiture approach would require the court to be alert to the possibility of fraud on the court and take the necessary measures at an early stage. In the Arrow Nominees case Chadwick L.J. made helpful remarks about the appropriate procedural course to be followed (at [64]). Where there has been admitted forgery or destruction of relevant documents and a striking out application has been made, the court should investigate there and then whether the full extent of the fraudulent conduct has been revealed, even if that requires oral evidence at that stage, and should resolve the issue before the trial if possible, or even as a preliminary issue at the start of the trial. Chadwick L.J. was of the view that if at the end of the hearing the judge cannot be confident that there is no substantial risk that the trial would be a fair trial, he should conclude that the trial would be unfair, if only because it would give rise to a detailed examination of issues which ought not, properly, to be occupying the time of the court at the trial. By following this procedure and applying the forfeiture approach the court will save itself much unnecessary trouble and promote more effectively the interests of the administration of justice then it would by trying to adjudicate between liars and forgers.”
“4.17 Most of the cases noted in paras 3.4.4 to 3.4.16 deal with particular instances of a fundamental principle that the court will not allow its process to be abused (and see also paras 3.1.17 to 3.1.17.6; the limits on the court’s power to vary or revoke orders; and paras 3.11.1 to 3.11.7 concerning the court’s powers to make civil restraint orders). The court’s objectives in all of these topics are to counteract any deliberate or incorrigible behaviour which would otherwise cause injustice and to protect litigants and also the court itself from the unnecessary waste and delay that such behaviour may cause. Proceedings can be struck out as an abuse of process even if there has been no unlawful conduct, no breach of relevant procedural rules, no collateral attack on a previous decision and no dishonesty or other reprehensible conduct (JSC VTB Bank v Skurikhin[2020] EWCA Civ 1337 at [51]; Cable v Liverpool Victoria Insurance Co Ltd[2020] EWCA Civ 1015 ; [2020] 4 W.L.R. 7/0 noted in para.3.4.18, breach of a pre-action protocol may amount to an abuse of process). As to whether a deliberate underpayment of the court fee is payable on the issue of a claim, see the conflicting decisions in Lewis v Ward Hadawav ( A Firm )[2015] EWHC 3503 (Ch) ; [2016] 4 W.L.R. 6 and Atha & Co Solicitors v Liddle[2018] EWHC 1751 (QB) ; [2018] 1 W.L.R. 4953. (In Hayes v Butters[2021] EWCA Civ 252 ; [2021] 1 W.L.R. 2886 Peter Jackson LJ expressed a provisional view against the disallowance of a claim on limitation grounds because of an inadvertent miscalculation of a court fee ([24]). In Citysprint UK Ltd v Barts Health NHS Trust[2021] EWHC 2618 (TCC ),Fraser J ruled that an inadvertent underpayment of a court fee at the time issue of a claim form did not, in that case, invalidate the issue of the claim form. It was a minor mistake which was corrected administratively (shortly after the steps taken to serve the claim form had been taken ([7], and see further, para.3.10.4)). A decision made by a trial court that part of a claim is dishonest or fraudulent is unlikely to lead to a striking out of the whole claim under r.3.4(2) or under the inherent jurisdiction if the court can still make a proper assessment of both liability and quantum. The draconian step of striking a claim out is always a last resort. Instead the trial court can ensure that the dishonesty does not increase the award of damages and can make orders penalising the claimant in costs, interest and by way of proceedings for contempt and criminal proceedings, it being open to a judge to refer the case to the CPS or DPP (Summers v Fairclough Homes Ltd[2012] UKSC 26 ; [2012] 1 W.L.R. 2004; the Supreme Court’s ruling in this case was subsequently negatived by Parliament in respect of personal injury claims: theCriminal Justice and Courts Act 2015 s.57 , as to which see para.16.5.2 and Vol.2 para.3F-32.3). Cases on forms of abuse falling outside the preceding paragraphs of this commentary are legion. Many are briefly summarised below. However it is not appropriate to treat these cases as settled precedents. Decisions as to abuse are extremely fact-sensitive. Whilst the circumstances of a particular case may, at first sight, raise an appearance of abuse, appearances can be deceptive. There is a two-stage test. First the court has to determine whether the claimant’s conduct was an abuse of process. Secondly, if it was, the court has to exercise its discretion as to whether or not to strike out the claim (Cable v Liverpool Victoria Insurance Co Ltd[2020] EWCA Civ 1015 ; [2020] 4 W.L.R. 110 at [63]). It is at the second stage that a balancing exercise, and considerations of proportionality, become relevant. The court must engage in a close “merits based” analysis of all the facts. “This will take into account the private and public interests involved, and will focus on the crucial question: whether in all the circumstances a party is abusing or misusing the court’s process” (Michael Wilson & Partners Ltd v Sinclair[2017] EWCA Civ 3 ; [2017] 1 W.L.R. 2646 at [48(3)] citing two earlier judgments). In each of the following cases a claim was struck out as an abuse. •Carter Commercial Developments v Bedford BC[2001] EWHC Admin 669 ; [2001] 34 E.G. 99 (C.S.),attempting to bring a Part 8 claim instead of judicial review proceedings in order to avoid the time limits applicable to judicial review (and see Clark v University of Lincolnshire and Humberside [2000] 1 W.L.R. 1988, CA, obiter). • Ashrafv Secretary of State for the Home Department[2013] EWHC 4028 (Admin) including an unmeritorious unlawful detention claim in judicial review proceedings solely to avoid a transfer from the Administrative Court to the Upper Tribunal. • Nomura International Pic v Granada Group Ltd[2007] EWHC 642 (Comm ); [2008] Bus. L.R. 1, issuing a claim for an illegitimate benefit, namely the prevention of further time running under the Limitation Acts for a claim C could not properly identify or plead. • Pickthall v Hill Dickinson LLP[2009] EWCA Civ 543 ; [2009] P.N.L.R. 31, issue of a claim by a bankrupt knowing he lacked title to do so but hoping would be assigned to him later (for contrary cases where no actual knowledge was proved, see Pathania v Adedeji[2014] EWCA Civ 681 and Munday v Hilburn[2014] EWHC 4496 (Ch) ; [2015] B.P.I.R. 684 ). •Towler v Wills[2010] EWHC 1209 (Comm ) serving particulars of claim which are so badly drafted that they fail to reveal to the defendant, or to the court, the case the defendant can expect to meet at trial in circumstances showing that even after attempting amendments, C is unable to put forward a coherently pleaded and intelligible claim (but note, (i) the word “obstruct” in r.3.4(2)(b) means “impede to a high extent” and thus the court will not strike out a statement of case merely because it raises some irrelevant issues or otherwise generates some untidiness in the pleadings ( Alas Consulting Ltd v Avis Europe Pic[2005] EWHC 982 (TCC) ); and (ii) the importance of giving C an opportunity to amend a defective claim ( Kim v Park[2011] EWHC 1781 (OB ) ). • Tchenguiz v Grant Thornton UK LLP[2015] EWHC 405 (Comm) ; [2015] 1 All E.R. (Comm) 961, particulars of claim which, at 94 pages, failed to comply with the principles set out in the Admiralty and Commercial Court Guide (which states that statements of case must be no longer than 25 pages unless the court has given permission for a longer document); Leggatt J struck out the particulars of claim, disallowed the costs of drafting them and ordered fresh compliant particulars of claim to be served. • Municipio De Mariana v BHP Group Pic[2020] EWHC 2930 (TCC) ; a group action relating to a dam failure in Brazil was commenced on behalf of many thousands of individuals and organisations against companies alleged to be indirect polluters. Similar proceedings involving many of these claimants were already on foot in Brazil against companies alleged to be direct polluters and some high-value judgments had been obtained and some compensation had been paid out to some claimants. Turner J ruled that there was no reason in principle why Henderson considerations should not be relevant in circumstances in which a claimant seeks to run two sufficiently related actions in two different jurisdictions whether sequentially or in parallel ([56]). Given the enormous overlap of issues raised in both sets of proceedings, the learned judge described the task facing the managing judge in England would be “akin to trying to build a house of cards in a wind tunnel” ([93]). For this and several other reasons the claims were struck out as an abuse of the court process. Following the grant of permission to appeal ([ 2021] EWCA Civ 1156 ) this case was listed for an appeal hearing but that listing has now been vacated.”
"The claimant also seeks rescission of a contract of the first defendant dated30 November 2014 ."
“21. As a consequence of the abovementioned discussions and representations and induced thereby, the Trustee, as trustee of Jacaranda, entered into an investment management agreement dated30 November 2014 (“the IMA”) a copy of which is annexed hereto at pages 1 – 3. The IMA, which was produced on BGB letterhead was signed by Mr Pinto on behalf of BGB (which is described by Mr Pinto’s signature as “The Manager”).”
"The claimant believes that the facts stated in these particulars of claim are true. I understand that proceedings for contempt of court may be brought against anyone who makes or causes to be made a false statement in a document verified by a statement of truth without an honest belief in its truth. I am duly authorised by the claimant to sign this statement."
"[PTL] as trustee of the Jacaranda trust entered into an investment management agreement dated30 November 2014 which agreement was signed by Mr Pinto in the circumstances I explain in the next paragraph. [And he then went on to refer to the investment strategy contained in it]"
“15. The IMA was drawn up on BGB letterheaded paper and it was provided to me by Gennaro Pinto via email. The IMA is headed "Addendum" but that is a misleading heading. In fact, that document was the only one executed and the Addendum does not form part of a larger document. It does, however, include the risk profile set out in Appendix 1 to the Addendum (which I have also exhibited). I had the impression that the IMA was in a standard form prepared by BGB and that there was no room for myself on behalf of Private Trustees to negotiate any of its terms. In the course of preparing this affidavit it has been drawn to my attention that, notwithstanding the fact that the IMA bore the logo and registered office address of BGB and that it was signed on behalf of "BGB Weston" by Gennaro Pinto, with whom I had only ever communicated in his capacity as a representative of 8GB, the IMA states that it has been entered into by Private Trustees and a party described as BGB Weston Asset Management Ltd. I had not noticed this to be the case before it was brought to my attention and at no point in the 5 years since the IMA was signed did anybody acting for BGB mention BGB Weston Asset Management Ltd to me or so far as I am aware (having made enquiries) to any other person representing Private Trustees.”
“I was troubled by this possibility as I had devoted a significant amount of time to the preparation of the Affidavit in order to ensure that Private Trustees S.A. complied with the obligation to make full and frank disclosure in its submissions to the court.”
"In order to comply with the claimant's obligation to make full and frank disclosure."
"To attend on me as I swore an oath to the truth of the contents of my affidavit and its exhibits."
“12. I would like to make clear to the court that I am and always have been acutely aware of Private Trustees’ and my obligation to provide full and frank disclosure to the court and trust that this witness statement and the re-sworn affidavit and exhibit demonstrate our continuing commitment to those obligations.”
"In the five years since the IMA was signed."