Chandra & Anor v Brooke North & Anor (Rev 3) [2013] EWHC 417 (QB)

[2013] EWHC 417 (QB)Case No HQ09X02077Case No HQ09X02074
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 8 March 2013
Before
HIS HONOUR JUDGE ANTHONY THORNTON QCSitting as a deputy judge of the High Court
Between
(1) Mr Bala Perampalam ChandraClaimants(2) Mrs Maria Perpetua ChandraDefendants(2) Brooke North LLPDefendantBPC Hotels LimitedClaimant(1) Brooke North (a firm of Solicitors)Defendants(2) Brooke North LLPDefendant
Mr Chandra represented himself and, with the permission of the court, also represented Mrs Chandra and BPC Hotels LtdMr Jamie Smith (instructed by DAC Beachcroft LLP) represented the Defendants
JUDGMENT
[1]This judgment is concerned with two amendment applications that have been referred to a judge of the Queen’s Bench Division by Deputy Master Rose. These applications were issued in two related actions arising out of a complex project involving the redevelopment of a new hotel in Manchester between 1999 and 2004. The applications, made at an early stage in the actions, are opposed on the grounds that they raise fresh claims which are already statute-barred by the Limitation Act 1980. The claimants made a without notice paper application to amend both particulars of claim because they were concerned that their proposed new claims were about to become statute-barred and the Deputy Master granted the applications without a hearing but gave the defendants permission to apply to set aside the order at a hearing if they wanted to contest the grant of permission. It is those applications to set aside that have been referred by the Deputy Master for a hearing by a judge of the Queen’s Bench Division. This judgment sets out the facts in considerable detail. These facts are derived from the voluminous material placed before the court for these procedural applications made at an early stage in the litigation As with all procedural applications, I have not tried the action and have not been engaged in a fact-finding exercise. I must therefore place such reliance on the facts that are set out or asserted in the document as is fair and just and, if these are disputed or inconsistent with other documents, and since I am not making findings, I must draw what inferences that I reasonably can from the documents in order to do justice to the case. Since it is unnecessarily tedious to refer continuously to “alleged” facts, I set out what is to be found in the documents in narrative form. I am not, however, making conclusive findings of fact.[2]Mr and Mrs Chandra, the claimants in the first action, are husband and wife. They built up a very successful chain of nursing homes in the North West in the 1980s and 1990s and, in 1997, they sold that business leaving them with a substantial profit. They decided to invest it in a new business venture involving the redevelopment by BPC Hotels Ltd (“BPC”), the claimant in the second action, of a Victorian office building in Manchester into a 4-star Holiday Inn. The Chandras used BPC, a wholly-owned dormant subsidiary of one of their companies to purchase and redevelop this property and then to run it as a hotel once it opened. In 2000, before any contracts had been signed, the estimated redevelopment cost was about £15.25m of which £10.65m would be lent to BPC by The Royal Bank of Scotland (“the Bank”) pursuant to two finance agreements dated 20 September 2000 and 30 October 2001. It was a term of the second finance agreement that the Chandras would provide personal guarantees secured on their matrimonial home in the sum of £700,000.[3]The chosen contractor was Costains PLC (“Costain”) who entered into a building contract with BPC dated 30 April 2001 which provided that practical completion would take place on 7 July 2002. On 18 July 2001, BPC, the Bank and Costain entered into a Deed of Warranty whereby, amongst other terms, the Bank undertook to step-into BPC’s rights and obligations under the building contract if Costain gave notice of termination of the building contract for any contractually permitted reason.[4]Mr Stephen Lopeman was in 2000 a partner in Leeds-based solicitors, Brooke North (“BN”), the first defendant. The Chandras contend that Mr Lopeman had acted for them since 1991 in relation to their various companies and business ventures and a significant degree of reliance and trust had developed between him and them and between him and their companies including BPC. In about June 1999, the three claimants contend that they retained Mr Lopeman, and hence BN, to act for them in all matters concerning the hotel redevelopment project. This retainer included within its scope all necessary legal advice as to the terms and suitability of the entire suite of project documentation including the building contract, the finance agreements, the Deed of Warranty, the guarantees and security agreements and the agreements leading to the Bank’s provision of further project finance in 2003. The claimants contend that Mr Lopeman negligently failed to advise the claimants as to the risks that they would run of being liable for vast unquantifiable liabilities and in the need to seek and in securing a further agreement or agreements between BPC and the Bank to ameliorate the effect on the claimants of the activation of the step-in provisions of the Deed of Warranty.[5]Unfortunately, the project went disastrously wrong. By early 2003, the project was experiencing significant cost overruns and was much delayed. Costain, BPC and Mr Chandra, who was managing the project single-handed on behalf of BPC, were in dispute and BPC required additional finance to complete the project. On 20 May 2003, Costain was owed a significant sum of money and threatened to give notice terminating the building contract so as to trigger the step-in provisions of the Deed of Warranty. BPC requested further emergency funding from the Bank which it agreed to provide in the form of an overdraft on condition that the Chandras provided increased personal guarantees in the total sum of £1.15m. In reliance on the advice of Mr Lopeman, the Chandras provided the required additional guarantees and additional finance was provided through a third finance agreement. The claimants contend that Mr Lopeman negligently failed to advise them to negotiate a further side agreement with the Bank that would ensure that BPC did not enter administration which was otherwise a distinct possibility.[6]Unfortunately, the problems with the project continued. On 28 August 2003, the Bank appointed administrative receivers over the hotel project business and the company’s assets. The total indebtedness to the Bank at that point was about £12.3m. Pursuant to the step-in provisions of the Deed of Warranty, the Bank advanced all necessary funds to complete the development including payments to settle Costain’s claims and then sought to recoup those losses from the sale of the hotel, from BPC and calls on the guarantees and charges provided by the Chandras.[7]The hotel was sold in March 2004 for £13.5m leaving a shortfall of £4.118m on the amount that BPC owed the Bank. In November 2004, the Bank started proceedings to recover part of this shortfall against the Chandras by making a call on their personal guarantees and to enforce its charge over their matrimonial home (“the possession proceedings”). These proceedings finally came to trial in October 2009 and, by a judgment dated 28 January 2010, David Richards J upheld the Bank’s claim in full save for a finding that Mrs Chandra’s further personal guarantee had been procured by her husband’s undue influence and, having had notice of that undue influence, the Bank could not enforce that part of its claim against her. The upshot of this disaster is that the Chandras and BPC were left, as they saw it, with the collapse of the project; the loss of the hotel, their home and BPC and huge liabilities to the Bank.[8]The three claimants now consider that this damage was caused by Mr Lopeman’s negligent advice and negligent failure to give advice about the huge and unquantifiable risk to them of the step-in provisions of the Deed of Warranty, the finance agreements, the debenture, the various guarantees and charges and the uncertainty of the final cost of the payment and claims provisions of the building contract.[9]Between 2004 and 2009, the Chandras’ attention was taken up with defending the Bank’s claims. However, during and as a result of the possession proceedings, they acquired sufficient knowledge to consider that they had very large realistic claims against Mr Lopeman based on his perceived shortcomings in the advice he had given and had failed to give about the Deed of Warranty and the other contracts that he had been involved with. However, they also became aware that these claims might well, become statute-barred on 20 May 2009, six years after an additional finance agreement had been signed on 20 May 2003.[10]In consequence, the Chandras and BPC started two separate albeit very similar actions against BN that were issued in the form of generally endorsed claim forms on 18 May 2009. Since BN had been incorporated as an LLP in 2005, the claimants issued their claims against both BN and BN LLP. The claim forms were served on both defendants with particulars of claim on 11 September 2009. The parties agreed that these actions should be treated as being stayed by an agreement dated 1 October 2009 pending the conclusions of the Bank’s possession proceedings.[11]Judgment in the possession proceedings was handed down on 28 January 2010. The stay agreement remained in force and the Chandras and BPC, now acting without legal representation, applied to the Master on 14 November 2011 for permission to amend the particulars of claim in both actions to add new claims. The applications were considered to be urgent because they considered that these claims might become statute-barred on 19 November 2011.[12]Master Eyre endorsed both applications with permission to amend but granted the defendants permission to apply to set the orders aside. The applications to revisit or set aside these amendment decisions are the subject-matter of this referral. The claimants seek to uphold the amendment permission decisions of the Master and the defendants seek to have those orders withdrawn or set aside. The referred applications[13]The applications that Deputy Master Rose referred for determination by a judge of the Queen’s Bench Division had the following procedural history: 1. Claimants’ applications dated 14 November 2011 The Chandras in claim HQ09X02077 and BPC in claim HQ09X02074 submitted an application notice on Form N244 in identical terms save that the action number and the names of the claimants were different and each had attached to it the proposed amended particulars of claim relating to that action. Each notice names BN as the defendant and neither named BN LLP. Each notice stated: 1. The original claim was a protective claim to preserve the claim within the limitation period and was filed prior to the conclusion of the possession proceedings. The Claimants are applying for permission to amend the Particulars of Claim to include the following:1.1 Amendments as required based on certain factual findings of the Judge in the possession proceedings.1.2 Amendments to include further details of the case.1.3 Amendments to correct errors in the Particulars of Claim.1.4 Amendments to include the new claim against the Defendant for breaches of duty in relation to the Deed of Warranty dated 18 July 2001. 1.5. Amendments to “Section N. Events of 20 May 2003”, as the consequence of inclusion in the new claim. 2. Please note that the limitation time for the new claim will expire on 19 November 2011, as particularised in section E of the amended Particulars of Claim. 3. If is the case the new claim would be barred from inclusion in the amended Particulars of Claim after 19 November 2011, the Claimants are respectfully asking the court to consider this application prior to the expiry of the said limitation time. 4. The Claimant is writing to the Defendant’s solicitors, inviting them to agree the amendments, so that the need for a hearing can be avoided. The claimants had ticked the box “at a hearing” rather than the box “without a hearing” attached to question 5:
“How do you want this application dealt with?”
[2]Master Eyre’s decisions dated 15 November 2011 The Master on his own initiative, and presumably pursuant to CPR 23.8(c), decided the applications without a hearing and without receiving notice of BN’s consent and inserted the following handwritten endorsement on each application notice as follows: O. As sought. Liberty to D to apply as Rule 23.10 28 days. [Master’s initials] 15:xi:11 CPR23.8(c) provides that the court may deal with an application without a hearing if it does not consider that a hearing would be appropriate. In such circumstances, CPR 23.10 provides that a person who was not served with a copy of the application notice after it was filed and before the order was made without a hearing may apply to have the order set aside or varied. An application under CPR 23.10 should be made within 7 days after the date on which the order was served on the person making the application. It followed that the Master’s order was extending the time within which the Defendant could apply to vary or set aside the order endorsed on the application notices, if it wished to take this step, from 7 days after the order was served to 28 days from 15 November 2011.[3]Order of Deputy Master Nussey sealed on 5 April 2012 AND UPON the Actions currently being the subject of a stay AND UPON the Claimants having issued applications for permission to make amendments to the Particulars of Claim in the Actions … IT IS ORDERED THAT 1. The stay in the actions is lifted, but time for service of Defences by the Defendant shall be postponed generally pending determination of the Applications. 2. The nature and effect of Master Eyre’s adjudications of the Applications is an issue to be resolved in the Applications. By 4pm on 27 April 2012 the Defendant shall issue an application to set aside any order made by Master Eyre. AND UPON the Actions currently being the subject of a stay

IT IS ORDERED THAT

[4]Defendant’s applications dated 17 April 2012 [The Defendant] intend (sic) to apply for an order that: 1. The orders and/or endorsement in manuscript made by Master Eyre on 15 November 2011 in favour of the Claimants on the Application Notices issued by the Claimants were revoked by Master Eyre’s email of 16 January 2012 stating that “in the circumstances the Orders will not be made without a hearing”; 2. If the foregoing submission is not upheld by the Court an order that the orders and/or endorsements of Master Eyre made on 15 November 2011 be set aside; 3. The time for making an application to have the above orders and/or endorsements set aside be extended because the Defendant did not have notice of the orders and/or endorsements until 21 March 2012 and because Deputy Master Nussey gave leave on 3 April 2012 for the Defendant to apply to have the orders and/or endorsements of Master Eyre set aside to 27 April 2012. [The Defendant] intend (sic) to apply for an order that: 5. Order of Deputy Master Rose sealed on 21 June 2012 1. That there be referred to a Judge (and, if practicable, a High Court Judge) under Practice Direction 2B, paragraph 1.2:1.1 The applications by the Claimants by Application Notice in each of the said claims dated 11 November 2011, issued on 14 November 2011 and endorsed by Master Eyre on 15 November 2011; and1.2 The application by the Defendant by single Application Notice in both of the said claims dated 17 April 2012 and issued on 20 April 2012. 2. That if and insofar as the Claimants seek permission to amend the Claim Forms, they do by 6 July 2012 file and serve on the Defendant draft proposed amended Claim Forms in each claim. … 8. That the application be subject to such further directions as the Judge shall see fit to give including directions as to the filing and exchange of Skeleton Arguments. Procedural Considerations

[The Defendant] intend (sic) to apply for an order that:

[14]These referred applications raise a series of difficult issues. These are:(1) Are Master Eyre’s orders endorsed on the application notices granting permission to amend still in force unless and until they are revoked or set aside?(2) If the endorsements are still in force, what is the test to be applied in relation to the revisiting and setting aside applications in order to decide whether to revoke or set aside the permission orders granted by Master Eyre?(3) Do any of the permitted amendments raise new causes of action and, to the extent that they do, may permission be granted nonetheless because of section 14A of the Limitation Act?(4) Should the endorsement orders be revisited or set aside and, if so, on what terms?(5) The future of the actions. 19. Chronology of the Relevant Factual Background[15]The chronology of the relevant factual background, which is taken from Mr Chandra’s evidence, is as follows:(1) 1998. The redevelopment property was bought for £1.5m.(2) 7 September 2000. The interim building contract between BPC and Costain was entered into. The claimants contend that they should have been advised not to sign this interim contract or to amend any obligation it contained committing them to step-in provisions in the permanent contract.(3) September – October 2000. The Deed of Warranty was negotiated by BN, the Bank’s solicitor Mr Bentley and Costain. The Chandras contend that Mr Lopeman was negligent in approving the terms of the Deed of Warranty’s step-in provisions and in not advising them of the inherent risks of that agreement unless these were amended or ameliorated in a further side agreement between them, BPC and the Bank.(4) 20 September 2000. The first finance agreement between the Bank and BPC was signed. The Bank was thereby committed to lend BPC £10.65m. The claimants contend that they should have been advised not to sign this agreement or to amend or ameliorate any obligation it contained committing them to step-in provisions and other onerous and unduly risky provisions in the permanent contracts, guarantees and charges they were to sign thereafter.(5) 2 October 2000. Costain started work at the property under the interim building contract.(6) 24 November 2000. The step-in provisions (clauses 9 and 10) of the Deed of Warranty were agreed by the Bank and Costain and approved by BN.(7) 30 April 2001. The Chandras, Mr Lopeman of BN and BPC’s quantity surveyor met Costain’s representatives. The formal JCT building contract was entered into. Mr Lopeman asked the Chandras to sign the undated debenture and the Deed of Warranty on behalf of BPC. Mr Lopeman advised the Chandras of the effect of the Deed of Warranty. The Chandras contend that this advice was negligently inaccurate in failing to identify the risks inherent in signing the Deed of Warranty and the debenture and in not advising them to sign only if a side agreement was entered into with the Bank ameliorating the inherent risks to the claimants of signing the Deed of Warranty.(8) 12 July 2001. The Bank provided overdraft facilities to BPC limited to £300,000 and repayable on demand to assist BPC with VAT timing difficulties.(9) 18 July 2001. The Bank and BN on behalf of BPC executed the Deed of Warranty which had already been signed by Mr and Mrs Chandra, on behalf of BPC, on 30 April 2001. BN did not give any advice to Mr Chandra on 18 July 2001 on the effects of executing the debenture.(10) 23 July 2001. The Bank and BN on behalf of BPC executed the debenture which had already been signed by Mr and Mrs Chandra on behalf of BPC on 30 April 2001. BPC granted the Bank fixed and floating charges over its business and assets and the power to appoint administrative receivers. The first drawdown under the first finance agreement was made soon afterwards.(11) September 2001. The estimated cost of the redevelopment rose by about £755,000.(12) 30 October 2001. In order to provide for the increase in the estimated cost of the redevelopment: (1) A second finance agreement was entered into between the Bank and BPC whereby further loan finance of £700,000 was to be provided by the bank; and (2) Mr and Mrs Chandra each executed personal guarantees of BPC’s borrowings secured by a second charge over their matrimonial.(13) From mid-2002. Significant and on-going difficulties with and disputes between BPC and Costain about the redevelopment arose that resulted in an ever-increasing projected final cost of the redevelopment.(14) November 2002. BPC warned Costain that it would start to deduct liquidated damages in the sum of £45,000 per week and Costain warned BPC that it would cease work if that was to happen. The Bank informed Mr Chandra that it would have to place BPC into receivership if Costain was to cease work or to terminate the building contract and that the Bank’s oversight of the loans, finance agreements and the Deed of Warranty had collectively been transferred to its specialist Specialised Lending Services department. BPC and Mr Chandra consulted BN for advice about the risks and contend that they were negligently not advised about the full nature of the financial risks they were now exposed to or as to the measures that they could take to ameliorate those risks.(15) February 2003. Mr Chandra informed the Bank that BPC would not be seeking further funding from the Bank but that he and Mrs Chandra would inject £700,000 in April 2003 to be raised from the sale of their matrimonial home which was put on the market with offers invited at over £2m.(16) 20 May 2003. The matrimonial home had not been sold, a payment of over £485,000 was due to Costain and there was a shortfall of nearly £99,000 in the facilities available to BPC to pay this sum. BPC and Mr Chandra knew that any failure to pay promptly the full sum that was owed would be likely to lead to Costain ceasing work and to the Bank appointing receivers over BPC’s interest in the redevelopment project and assets and to its stepping into the building contract but they contend that BN negligently failed to advise them as to the potential and severe financial consequences of these matters if they occurred.(17) 20 May 2003. BPC requested further funding from the Bank to enable Costain to be paid. The Bank agreed to provide funds to enable this to happen conditional upon Mr and Mrs Chandra signing a further guarantee increasing their overall guarantee from £700,000 to £1.15m. The increase in the sum guaranteed was added to the Bank’s second charge over the Chandras’ matrimonial home.(18) 20 May 2003. The Chandras contend that they should have been provided with advice by Mr Lopeman about the risks the claimants were running in agreeing to the additional fiancé being provided at all and, in particular, being provided by way of an extension of its overdraft facilities and not by an extension of the finance agreements and in signing the additional guarantees and charge but were negligently advised and not properly or fully advised about these risks. Furthermore, they should have been advised that the claimants should enter into a side agreement with the Bank to ameliorate the adverse effects of the Bank stepping into the building contract and appointing receivers over BPC.(19) On and before 25 June 2003. The claimants contend that Mr Lopeman provided negligently erroneous advice to the claimants about, failed to advise them fully and properly about and failed to advise them of the need to reach side agreements with the Bank to ameliorate the huge and unquantified financial risks that they were exposed to(20) 25 June 2003. Mr Macklin, head of the Bank’s SLS, met with Mr Chandra and Mr Lopeman and informed them that no further funding would be provided by the Bank unless it reached agreement with Costain to complete the redevelopment for a fixed price and a fixed time period. It is now clear that Mr Macklin was unaware of the step-in provisions of the Deed of Warranty.(21) 25 June 2003. The claimants contend that Mr Lopeman should have, but did not, advise Mr Chandra of the further risks facing the claimants in the light of what was said at that meeting. In particular, Mr Lopeman did not advise him of, and did not seek to persuade Mr Macklin of, the need for the Chandras and the Bank to negotiate and agree on steps to ameliorate the adverse effects on BPC and the Chandras of the operation of the step-in provisions and of the Bank operating the debenture, appointing receivers over BPC and calling in BPC’s overdraft and its loans to BPC.(22) June – August 2003. Discussions between Mr Chandra, BPC and the Bank in an effort to agree a further finance agreement to provide further funds were unsuccessful, largely due to an inability to reach a reasonable degree of certainty as to future costs and to Mr Chandra’s refusal to accept the Bank’s proposal to introduce a new manager of the redevelopment project to replace him or to allow the Bank to discuss Costain’s claims directly with it.(23) 17 July 2003. Meeting between Costain, RBS, BPC’s quantity surveyor and Mr Chandra. Costain relied on the mandatory step-in provisions and were only prepared to agree to an unacceptably large fixed lump sum figure to complete the contract because, so they made it clear at the meeting, they were protected by the step-in provisions to ensure that the Bank would have to meet the full cost of their claims and completion costs if no lump sum was agreed. The Chandras and BPC contend that they were only in such an exposed position because of Mr Lopeman’s failures to advise them at the appropriate times of the inherent risks and to negotiate ameliorating side agreements with the Bank.(24) 28 August 2003. The Bank appointed receivers over the business and assets of BPC and made demands for payment. The indebtedness of BPC to the Bank was a little under £12.3m.(25) 18 September 2003. A SPV was nominated by the Bank as a clean company owned by the receivers’ firm to carry on BPC’s business and to step-into the building contract and BPC agreed to indemnify the SPV against all the liabilities that it incurred. The Bank advanced the necessary funding to BPC in receivership to complete the redevelopment. This led to £1.655m being advanced to complete the redevelopment and £3.2m to settle Costain’s claims following a negotiated settlement.(26) 20 November 2003. BN sent its files in respect of the purchase of the redevelopment property and the funding in respect of that purchase (including at least one letter concerning the step-in provisions of the Deed of Warranty) to the Chandras’ newly instructed solicitors who were to act for them in the threatened Bank’s possession proceedings.(27) November 2003. BN sent the BPC transaction files that it held to the solicitors acting for BPC’s administrators. BN did not keep copies of the contents of these files.(28) March 2004. The completed hotel was sold for £13.5m leaving a shortfall owed to the Bank of £4.118m.(29) 27 May 2004. The SPV and Costain reached a settlement agreement in relation to a final contract sum and all claims and payments due to each party under the building contract.(30) November 2004. The Bank started possession proceedings against the Chandras.(31) 20 November 2008. The claimants contend that Mr Chandra had disclosed to him in the possession proceedings two significant documents, namely two letters sent by the Bank’s solicitor to the Bank dated 6 and 23 October 2000.(32) February 2009. The receivers’ solicitors sent the BPC transaction files back to BN LLP.(33) 7 and 17 April 2009. Mr Chandra has BPC’s transaction files returned to the Chandra’s solicitors, Wright Hassall LLP.(34) 18 May 2009. BPC’s and the Chandras’ generally endorsed claim forms were issued against BN and BN LLP(35) 11 September 2009. The claim forms with particulars of claim were served.(36) 1 October 2009. The parties agreed that the actions should be treated as being stayed pending the conclusion of the Bank’s possession proceedings. The stay was not to be lifted until the later of a date three months after (i) all the information set out in the agreement had been provided by the claimants or (ii) the date judgment was handed down in the possession proceedings.(37) 19 October 2009. The claimants contend that Mr Chandra had disclosed to him during the Bank’s possession action legal advice given to the Bank on 17 July 2003 as to the precarious position that BPC had been placed in by the provisions of the step-in agreement whose effect was to “divorce the asset from the debt”.(38) 28 January 2010. Judgment in the Bank’s possession proceedings was handed down by David Richards J.(39) 2010. The claimants took over the actions and then acted through Mr Chandra when their solicitors acting for them ceased to act for them on financial grounds.(40) 11 November 2011. The claimants served draft amended particulars of claim on the defendants. The Chandra’s letter serving the applications to amend was not received by Beachcroft LLP until 15 November 2011.(41) 15 November 2011. The Master’s orders endorsed in manuscript on the claimants’ applications granting amendment orders.[16]The claimants contend that various relevant documents in BN and/or BN LLP’s possession have not been made available to them and it appears to be the case that these documents are no longer in BN’s or BN LLP’s control. These documents include files containing correspondence between Costain and BN, between the Bank and BN and between the Bank and Costain relating to the step-in provisions of the Deed of Warranty and Mr Lopeman’s attendance notes with each of the claimants. They also contend that a relevant file “Funding, Princess Court Hotel [the development property]” has been mislaid (or deliberately destroyed) by the defendants. Issue 1: Master Eyre’s Endorsements (1) The relevant procedural history[17]This issue is to whether the Master’s orders endorsed on the application notices granting permission to amend remained in force unless and until they are revoked or set aside. The relevant procedural history of the Master’s endorsements and the subsequent procedural steps that were taken are as follows:(1) 11 November 2011. Mr Chandra sent to Beachcroft LLP (“DACB”), copies of the two application notices seeking permission to amend in each action; this was not received by DACB until 15 November 2011. The proposed amended particulars of claim were attached to each application notice. Mr Chandra had ticked the box that suggested that the application should be made at a hearing. The covering letter invited DACB to agree the amendments so that the need for a hearing could be avoided. This service complied with the requirements of CPR 23.7(1)(a) which required a copy of the application notices to be served with a copy of the proposed amended particulars of claim. Each application notice only named BN.(2) 14 November 2011. The claimants’ application notices were filed with and sealed by the court.(3) 15 November 2011. DACB receive the copies of the application notices sent to them by Mr Chandra.(4) Mr Chandra emailed the court with a copy of his letter to DACB attached and also with authentic coloured copies of the proposed amendments attached and added: “We have also written to the defendant to lift the agreed stay of the claims and a copy of the said letter is enclosed for your information. I will write to you again once the defendant has agreed to lift the stay of the claim.”(5) 15 November 2011. Mr Chandra emailed DACB and informed them that the claimants’ amendment applications had been filed at court. The letter invited DACB to consent to the lifting of the stays.(6) 15 November 2011. The Master endorsed his orders granting permission to amend in manuscript on each application notice. CPR 23.8(c) entitled him to make these orders without a hearing if he did not consider, in the exercise of his case management powers and in conformity with the overriding objective, that a hearing would be appropriate.(7) 15 November 2011. Since the Master had decided to make the orders without a hearing, they had to be treated as being ones that had been made on the court’s own initiative (23APD11.2). The orders therefore had to be served on the defendants with a statement of the right to make an application to set them aside (CPR 23.10). The Master’s orders granted the defendants 28 days from the date of the order to apply to set them aside if they wished to do so. Thus, this part of his orders extended the time for taking this step from within 7 days of the service of the orders on the defendants (CPR 23.10) to 28 days from 15 November 2011.(8) 15 November 2011. The orders took effect from the moment they were made (CPR 40.7(1) and Paulin v Paulin. [2010] 1 WLR 1057. )(9) 15 November 2011. The court should have drawn up the Master’s orders and served them on the parties since the orders did not order the claimants to draw them up (CPR 40.3(1) & 40.3(4)). It should also have sealed the orders and served them on the parties (CPR 40.2(1)(b) & 40.3(1)(a)). However, the court staff acted on the basis that the orders were ones that CPR 40.3(4) applied to and that the claimants had to draw up. The orders endorsed by the Master were therefore left at the Public Counter in the Royal Courts of Justice for Mr Chandra to pick up without, at that stage, informing him that this had been done.(10) 29 November 2011. Mr Chandra, unaware that the amendment orders had already been made without a hearing on the Master’s own initiative, wrote to DACB to inform them that the court would not consider the claimants’ applications to amend the particulars of claim until the stays had been lifted.(11) 20 December 2011. The court wrote to Mr Chandra enclosing the orders made by the Master that were endorsed on the application notices and stated: “[these] has (sic) not been collected from the Court’s Public Counter. Please attend to drawing up the Order.”(12) 3 January 2012. Mr Chandra, in compliance with the court staff’s request contained in its letter dated 20 December 2011, submitted draft orders to the Masters’ Support Unit for attention and approval with a request that the drafts be returned to him with any required amendments. Mr Chandra did not send a copy of this email to DACB.(13) 12 January 2012. In response to Master Eyre’s emailed direction, Mr Chandra again emailed the draft orders to the court with copies emailed to DACB.(14) 16 January 2012. DACB emailed Master Eyre and Mr Chandra and informed them that the draft amendments and the request to lift the stays were not consented to and that the claimants’ applications should not be considered without a hearing.(15) 16 January 2012. On receipt of DACB’s email, Master Eyre emailed Mr Chandra and DACB and informed them: “Many thanks, and in the circumstances the orders will not be made without a hearing. For that purpose, the claimants must complete and submit a request for a private-room appointment.”(16) 8 March 2012. Mr Chandra sent the court a request for a private-room appointment.(17) 19 March 2012. Master Eyre ordered without a hearing that a directions hearing should be held to give directions as to how the court should proceed with the claimants’ endorsed application notices and Master Eyre’s directions set out in his email of 16 January 2012. This order named and was addressed to both BN and BN LLP.(18) 21 March 2012. On receipt of a copy of Deputy Master Rose’s order dated 19 March 2012, DACB learnt for the first time that Master Eyre had already endorsed the claimants’ application notices with the orders granting permission to amend. It was reasonable for DACB to be unaware of the fact that orders had been made on 15 November 2011 since no copy of the endorsed application notices had previously been served on DACB.(19) 3 April 2012. At the directions hearing held by Deputy Master Nussey, it was ordered that the stay should be lifted in both actions, that the nature and effect of the Deputy Master’s adjudications of the amendment applications should be addressed and resolved at the hearing at which the court was to consider whether the Deputy Master’s orders should be drawn up, sealed and served and that “the defendant” should by 27 April 2012 issue an application to set aside any order made by Master Eyre. The order only named and was only addressed to BN.(20) 20 April 2012. In compliance with Deputy Master Nussey’s order, DACB issued an application notice on behalf of BN seeking an order that the orders made Master Eyre should be revoked or set aside and that the time for applying for those orders should be extended until the date of the issue of the application notice.(21) 21 June 2012. Deputy Master Rose directed at a further directions hearing at the suggestion of counsel appearing for BN and without opposition from Mr Chandra that the claimants’ and the defendants’ applications should be referred for decision by a judge of the Queen’s Bench Division. The claimants were directed to serve drafts of their proposed amended general endorsements of each claim form.(22) 18 September 2012. The claimants issued an application notice in each claim seeking permission to amend the claim forms and to re-amend the particulars of claim. Both BN and BN LLP were named as defendants in each amended claim form and application. The applications were endorsed by the court as ones that should be heard by a judge at the same time as the referred applications.(23) 6. November 2012. The court heard the various applications. (2) The effect of the stay[18]Wright Hassall, who were the solicitors who were then acting for all three claimants, and DACB, who was acting for both BN and BN LLP, reached an agreement that was set out in DACB’s letter dated 1 October 2009 to Wright Hassall to the effect that both actions would be stayed. The relevant parts of this letter stated:
“Dear Sirs Our Client: Brooke North LLP Your Clients: Bala Perampalam Chandra & Maria Perpetua Chandra (1) BPC Hotels Limited (2) … We note that your clients are involved in separate proceedings with [the Bank] and agree that it would be sensible to stay claims HQ09X02074 and HQ09X02077 pending the outcome of the possession proceedings and also to allow for pre-action protocol investigations to be undertaken. We agree to a stay in both sets of proceedings subject to the provision that the stay will not be lifted until the later of (1) a date three months after all of the information requested below has been provided or (2) a date three months from the date judgment is handed down on the possession claim with RBS. This will allow us to investigate matters in the light of the outcome of that claim.”
Our Client: Brooke North LLP BPC Hotels Limited (2)

Our Client: Brooke North LLP

[19]In reaching this agreement, DACB was acting for both BN and BN LLP. Although the letter referred to “our client: Brooke North LLP”, it can be seen that it was concerned with both actions and, in both, BN was named as first defendant and BN LLP as second defendant. Moreover, DACB served acknowledgments of service in both actions in the names of both BN and BN LLP. Further evidence that it was acting for both defendants in reaching this agreement was provided by its statement in the letter that its client was BN LLP but it must also have been acting for BN because it subsequently issued its applications seeking to revoke or set aside the Master’s endorsements in the name of BN and then its’ counsel suggested to the Deputy Master in connection with the hearing of these applications that the stay in both actions should be lifted. In these applications in both actions, BN was named as the single defendant. The Deputy Master adopted that suggestion and made lifting orders dated 3 April 2012[20]Although the parties’ solicitors reached an agreement that the actions would be stayed, no stay orders were ever sought from or made by the court. However, once the stay agreement was made on 1 October 2009, the parties acted on the basis that the actions had been stayed and, at the first directions hearing concerned with these applications, the court made an order dated 3 April 2012 which recited that the actions were currently the subject of a stay and then directed that those stays should be lifted.[21]It follows that both actions were subject to an out of court agreement that they should be treated as having been stayed which was still in force when the claimants issued and sent to the court their application notices applying to amend the particulars of claim. Because the court had not made a stay order, it had jurisdiction to make orders on 15 November 2011 of its own initiative granting the claimants permission to amend the particulars of claim even though the parties’ stay agreement was still in force. This was particularly so, as the Master would have seen from the copy correspondence on the court file, that the claimants had already sought, but not obtained, the defendants’ permission to allow the stays to be lifted in its letter to DACB dated 11 November 2011 which Mr Chandra had copied to the court on 15 November 2011.[22]It also follows that the court had jurisdiction to make permission orders on 15 November 2011. It was suggested on behalf of the defendants that it was not appropriate for the Master to act as he did but, in the light of the circumstances in which the amendment orders were being sought, it was clearly appropriate for him to have acted in this way and, besides, his exercise of discretion to act as he did was well within the margin of discretion permitted to him and is unreviewable by me. However, no further step could have then been taken by any of the parties until the stays had been lifted by agreement or by orders of the court since it would have been an abuse of process for any party to act in contravention of the stay agreement whilst it was still in force. However, once the court had lifted the stays, as it did in its order dated 3 April 2012, the actions were able to proceed, the orders made by Master Eyre dated 15 November 2011 could be acted upon and the claimants’ applications for permission to draw up, seal and serve those orders and the defendants’ applications to revoke them or set them aside could all be dealt with by the judge. (3). Did Master Eyre grant the claimants permission to amend the particulars of claim?[23]On 15 November 2011, the Master had placed before him two application notices in two obviously related actions seeking an urgent hearing of applications to amend particulars of claim. He also had a copy of an emailed letter from Mr Chandra informing him that the claimants had invited the defendant to agree to the amendment applications and to lift the agreed stay. The application notices informed him that the limitation time for the new claim would expire on 19 November 2011, as particularised in section E of the amended Particulars of Claim and that, since the new claims would be barred from inclusion in the amended Particulars of Claim after 19 November 2011, the claimants respectfully asked the court to consider these applications prior to the expiry of the limitation time. The Master would not have had the time to consider the very detailed and intricate proposed amended particulars of claim but he would have read Mr Chandra’s letter to DACB dated 11 November 2011 inviting them to consent to the applications so that the defendants appeared to be aware of the applications and had not responded adversely to them. Similarly, he would have read Mr Chandra’s letter to the court that showed that there were agreed stays in force but that the defendants had been invited to agree to them being lifted and that DACB had not responded adversely to that request. In those circumstances, it was open to the Master, exercising his case management powers and his obligation to decide applications so as to give effect to the overriding objective, to take the initiative to decide and grant the applications without a hearing and to direct that the defendants could apply to set the orders aside within an extended timescale of 28 days from the date of his orders.[24]The course taken by the Master did not prejudice the defendants since they were at liberty to apply to have the orders set aside and would be able to obtain an order to that effect if they applied for it in time and showed that the amendments raised new causes of action which the claimants were not entitled to obtain permission to make by way of amendment. The claimants might, on the other hand, be severely prejudiced if they were not granted permission to amend prior to 19 November 2011 since, according to Mr Chandra’s letter, the application might well relate to new causes of action which would be statute-barred on that date unless the court had previously permitted them to be added by amendment. Equally, if the stay was not lifted in the future, the amendments would not be capable of being pursued but if they were not now granted and the stay was subsequently removed, the claimants would have lost the opportunity to rely on any new causes of action contained in the amendments.[25]In short, the Master’s decision to make the amendment orders was fully justified and certainly within his case management powers. The orders were, in consequence valid and took effect from the moment they were made. (4) Did Master Eyre revoke the orders by his informal direction made on 16 January 2012?[26]On 16 January 2012, Master Eyre emailed the parties as follows:
“Many thanks, and in the circumstances the orders will not be made without a hearing”
. The Master was not, with this direction, seeking to revoke the orders made by him. Instead, he was directing that they should not be drawn up and sealed without a hearing. He was, in effect, revoking the court’s earlier administrative direction in its letter to Mr Chandra dated 20 December 2011 whereby he was asked to submit draft orders to the court for finalisation of the wording and sealing. Master Eyre had no jurisdiction to revoke the order he had previously made since, if it was to be revoked, it had to be revoked by that judicial officer by way of a decision to change his mind made prior to the sealing of the order and he was not making a decision but issuing an administrative direction that the order was not to be sealed until he had had an opportunity to decide whether or not to revoke it. However, the Master was correct in issuing a direction that the orders should not be sealed, which was in the nature of a stay order on the sealing of the order, since the defendants’ time to apply to have the orders set aside had passed, albeit for no fault of DACB and the sealing of the orders might otherwise take place before the defendants’ application to set them aside could be heard.[27]On behalf of the defendants, it was contended that the Master’s direction could only be explained as a change of mind and that it had successfully revoked his earlier orders. The claimants’ only remedy, if they were dissatisfied with Master Eyre’s directions would have been to seek to appeal those directions and to have them set aside. This submission was allied to the submission that his original orders were not effective until they had been incorporated into a sealed order. These submissions cannot be accepted for a number of reasons. Firstly, the Master’s orders had immediate effect on being made on 15 November 2011 and the Master had already given the defendants permission to apply to set the orders aside so that there was no need for a further order whose effect was to revoke the earlier orders without a hearing. Secondly, the Master did not have the power to change his mind and revoke the earlier orders without there being a hearing at which a change of mind order was applied for. Thirdly, in context and given the procedural language applicable to this somewhat esoteric area of Queen’s Bench procedure, when Master Eyre stated in his direction that “the orders will not be made”, he was referring to the drawing up, sealing and service of existing orders. That wording could not mean and could not be stretched to mean that the original orders would be withdrawn and would only be made (or more strictly remade), if at all, at a subsequent oral hearing.[28]It follows that Master Eyre did not revoke or seek to revoke his earlier orders. (5). What are the applications concerning Master Eyre’s orders that are now to be determined?[29]There are three related applications that must now be determined. These are:(1) The hearing that Master Eyre directed should take place at which he was to determine whether or not his orders should be drawn up and sealed. The only basis for not permitting them to be drawn up and sealed would be if the Master could be persuaded to change his mind and withdrew the orders prior to their being drawn up. At a directions hearing on 21 June 2012, Deputy Master Nussey decided to refer that hearing and the other matters requiring a decision to a judge of the Queen’s Bench Division for decision. It follows that I am now to decide whether it is appropriate for the orders made by Master Eyre should be withdrawn in what is, in effect, a review of those orders.(2) The hearing of BN’s application to set aside the orders. These applications were made in the application notices dated 20 April 2012 that were issued pursuant to the order of Deputy Master Nussey dated 5 April 2012. Since Master Eyre had previously directed that BN was entitled to make these applications so long as they were made within 28 days of 15 November 2011, it was too late for the applications to be issued on 20 April 2012. However, as has already been explained, DACB had not known of the content of Master Eyre’s orders until 21 March 2012 because the court had not complied with its duty of drawing up, sealing and serving the orders on DACB and in consequence DACB did not learn of those orders until it received a copy of Master Eyre’s subsequent directions order dated 21 March 2012. BN’s application notices sought an extension of time within which to serve its applications seeking set aside orders. They are now somewhat academic applications since Deputy Master Nussey’s order of 5 April 2012 was, in effect, an order extending the time for BN to issue the set aside orders until 27 April 2012. If that order was not technically one extending BN’s time, it is now clearly entitled to an extension and, out of an abundance of caution, I will extend time for BN to issue the set aside applications until 20 April 2012.(3) The claimant’s applications to amend the claim forms and re-amend the particulars of claim dated 18 September 2012.(4) The claimants’ application for orders that the court should draw up, seal and serve Master Eyre’s orders dated 15 November 2011.[30]Thus, I am concerned with an application or a direction to consider revoking Master Eyre’s orders dated 15 November 2011 under the inherent jurisdiction of the court and a second application to set aside those orders pursuant to CPR 23.10 and, if I dismiss those applications, applications that the Master’s orders should be drawn up, sealed and served on the parties by the court and that there be permission to amend the claim forms and re-amend the particulars of claim. Issue 2: The Applicable Considerations[31]This issue is if the endorsements are still in force, what the test is that has to be applied in relation to the revisiting and setting aside applications in order to decide whether to revoke or set aside the permission orders granted by the Master. Until recently, the first application, concerned with whether the orders should be revoked or withdrawn, would have been governed by the principles identified in In re Barrell Enterprises [1973] 1 WLR 19, CA. , known by civil practitioners as “the Barrell jurisdiction.” However, recently, the Supreme Court has overruled the Barrell jurisdiction in In the matter of L and B (Children) [2013] UKSC 8, SC, judgment handed down on 20 February 2013. .This decision holds that a judge (including any appeal or first instance judge of whatever status) retains a jurisdiction to change his or her mind after he or she has made an order until the order is sealed. The order that was made takes effect immediately on being made but the power to revisit the order and confirm, vary or replace it with a different order must now be exercised on broad principles. The court must deal with any application to revisit an earlier order by exercising the overriding objective of dealing with the case justly. A relevant principle is whether any party has acted upon the decision to his detriment, especially in a case where it is expected that they may do so before the order is formally drawn up. Other possible situations where an order could justly be revisited are where a plain mistake has been made by the court, where the parties have failed to draw to the court’s attention a plainly relevant fact or point of law and the discovery of new facts after judgment was given. See paragraphs 24 and 27 of Baroness Hale’s judgment and her reference with approval to the judgment of Neuberger J in In re Blenheim Leisure (Restaurants)Ltd (No 3), [2000] 1WLR 2268 at page 2285. Baroness Hale stressed that these are only examples, a carefully considered change of mind could be sufficient. Every case should depend on its own facts.[32]As for the basis of considering an application to set aside an order made under CPR 23.10, no principles are identified or are referred to in that order as being those that should govern the consideration of the setting aside application. It is clear that the court has a discretion and that that discretion should be exercised so as to give effect to the overriding objective to deal with cases justly, that is so as to ensure so far as possible that the parties are on an equal footing, so as to save expense, so as to ensure that the cases are dealt with expeditiously and fairly and so as to allot an appropriate share of the court’s resources to these cases whilst taking into account the need to allot resources to other cases. It is also necessary to deal with the application in ways that are proportionate to the amount of money involved, the importance of the case, the complexity of the issues and the financial position of each party.[33]It follows that the tests applicable to address the revocation or revisiting application and the setting aside application are the same and involve a broad consideration of the justice of the situation. The particular issues raised by the claimants and the defendants For reasons that I will address in paragraphs 98 - 100 below, I consider that both BN and BN LLP always have been and remain parties to both actions and to all these applications. in support of their respective applications that the orders should be confirmed or revisited and revoked or set aside are as follows:(a) The ground urged by the defendants (1) The amended particulars of claim and the proposed amended claim forms and re-amended particulars of claim seek to raise fresh claims which are statute-barred and which may not be added by way of amendment to the existing claims set out in the unamended actions. (2) The existing claims are inconsistent with the effects of the judgment of David Richards J in the possession proceedings and are now, in consequence, an abuse of process. (3) The section 32 arguments in the proposed re-amended particulars of claim are an abuse of process in making unwarranted and unsupported allegations including allegations of dishonesty and fraudulent behaviour.(b) The grounds urged by the claimants (4) The claimants have good arguable grounds for showing that the amendments and proposed re-amendments are not barred by limitation even if they raise new claims or causes of action. (5) The claimants would be severely prejudiced if they were unable to retain the benefit of the Master’s order. (6) The other grounds advanced by the defendants are appropriately capable of being addressed by modern methods of case management and are not fairly matters that should lead to their amendments and proposed re-amendments being shut out at this stage.[34]It is right to keep in mind that the principal ground advanced by the defendants was the first ground concerned with the allegation that the amendments sought to raise new causes of action which may not be added as a matter of law to the existing claims by way of amendment. It is also necessary to keep in mind that these applications are not “all or nothing” applications. It is perfectly possible and within my powers in dealing with them for me to direct that the orders should be varied and that only parts of the permitted amendments or applied for re-amendments should be allowed to stand. I propose to deal first with the applications to revisit or set aside the Master’s orders and only after I have decided those applications, to consider whether to allow the further applications to amend the claim forms and re-amend the particulars of claim. (1). Essential factual background[35]The determination of these procedural issues has been made very much more difficult than was necessary by the enormous length and complexity of the amended and draft pleadings, witness statements and written submissions prepared with remarkable energy and application by Mr Chandra. As a result of the agreed stays and court orders, the defendants have not yet served a pleading and they have only provided minimal evidence of what they contend is the nature and scope of BN’s engagement, of each of the claimants’ instructions and of the advice given and work undertaken by Mr Lopeman and his colleagues at BN. They have not put in evidence any of the relevant documents taken from their client files such as client care letters, letters written to the Chandras containing Mr Lopeman’s advice or his attendance notes that summarise the instructions that he received, the advice that he gave and the work that he undertook. Mr Lopeman did provide a witness statement but that was only concerned with the claims now made by the claimants that he deliberately withheld information from his clients and deliberately destroyed or mislaid documents to cover up BN’s negligence. He explained in this statement:
“In his witness statement, Mr Chandra has made serious allegations against me that I have been guilty of both types of deliberate concealment. …What I do not cover in this witness statement is my evidence in response to the substantive claims made against my firm and the detailed account of events put forward by Mr Chandra in his witness statement (save where it touches on my alleged concealment). That has nothing to do with the applications for permission to amend and it is a very substantial task that will need to be undertaken if/when these two actions get to the stage of exchange of witness statements of fact”
[36]It is not a criticism of BN, BN LLP and Mr Lopeman that there is so little evidence relating to the allegations of negligent acts, advice and omissions now made by the claimants but I must decide these procedural applications by reference to the evidence before me. That evidence shows that Mr Lopeman and BN’s engagement by, and their services rendered to, the claimants was terminated when receivers were appointed over BPC in August 2003. BN had sent all or most of its BPC client files to the solicitors acting for the receivers soon after they were appointed in August 2003 and did not take copies of the documents they passed on and Mr Lopeman left BN in 2006. BN became a limited partnership in about 2006 and the limited partnership was dissolved in 2011. The attempts to recover BN’s client and transaction files since have only been partially successful. Those now acting for the relevant former partners in BN and its successor limited partnership and Mr Lopeman and his colleagues therefore have a formidable task in this litigation in providing evidence of what BN did and did not do in the period between 1999 and 2003 when BN was providing professional services to the claimants in connection with the hotel redevelopment project.[37]It follows that in considering whether the amended and proposed re-amended pleadings raise new causes of action in negligence which are now time-barred, I am confined to the detailed evidence provided by Mr Chandra and the findings made by David Richards J in his judgment in the possession action.[38]A further difficulty arises from the fact that these claims are now proceeding after the conclusion of the Bank’s possession proceedings and the failure of the Chandras’ defences, save for a defence of undue influence successfully mounted by Mrs Chandra. The judgment is formidable for its clarity and length and its discussion about many of the difficult legal issues arising out of the Deed of Warranty and the step-in provisions. The two actions that I am concerned with were stayed principally so as to enable the parties to take on board and rely on as many of the findings reached in that litigation as possible.[39]Mr Chandra has attempted valiantly to undertake that exercise which explains in large measure the length and complexity of his amended and re-amended pleadings. The defendants, on the other hand, have not attempted to relate the amendments that they complain about to the judgment and findings of David Richards J. Mr Jamie Smith, counsel for BN and BN LLP, did briefly summarise the findings of

the judge in his written skeleton and added this comment:

“It is these difficulties that have now prompted the Claimants to seek to introduce entirely novel claims against the defendant and Brook North LLP. In effect, the new claims have been engineered to seek to get around the findings of David Richards J in the Bank Action.”
[40]There can be no objection in principle to Mr Chandra’s attempts to react to and take account of David Richards J’s judgment and findings in the possession proceedings. Those attempts are not matters of criticism since the actions were stayed to allow all parties to investigate all matters arising out of the claimants’ claims against BN in the light of the evidence produced, findings made and outcome of that action. The defendants’ submissions do not attempt to identify how the claimants’ suggested engineering has produced any unacceptable changes to their claims as now presented against BN and BN LLP. I must therefore decide these applications that I am concerned with on the basis of Mr Chandra’s detailed evidence and the relevant findings of David Richards J. It will be open, of course, for the defendants if they chose to do so, to contend in their defences and at the trial that any of the claims are statute-barred albeit that the relevant date that the proceedings would be taken to have commences would be the 18 May 2009 when the claim forms were originally issued.[41]The essential events that form the background to these claims have already been set out. It is convenient however, to adopt various passages of the judgment of David Richards J since these set out much of the essential background very clearly and although similar to my summary, they show that Mr Chandra has attempted to accept and adopt them in his amended pleadings. The factual overview was explained by the judge in these paragraphs of his judgment: 2. The defendants are Bala Perampalam Chandra and Maria Perpetua Chandra. Mr Chandra was born in Sri Lanka in 1946, came to the UK as a student and became a UK citizen in 1978. He was a chemical engineer by training and profession, becoming a corporate member of the Institute of Chemical Engineers in 1980. In 1984 he was awarded a certified diploma in accountancy and finance by the Association of Certified Accountants. Mrs Chandra is an Irish citizen, born in 1950, who came to the UK in 1968 to train as a nurse, qualifying as a registered general nurse in 1972. She became a nursing sister in 1974. Mr and Mrs Chandra were married in 1972 and have two adult children. 3. Mr and Mrs Chandra had over a period of 17 years built up from scratch a chain of nursing homes in the North West. Their roles in the nursing home business reflected their respective experience in business and finance and in nursing. Mrs Chandra was responsible for the recruitment of staff and the effective running of the homes from a nursing and general services point of view, while Mr Chandra concentrated on the financial and commercial side. It was a successful business and in 1997 they sold it for £23m which left them with a net profit of approximately £5.3m. The nursing home business was owned by a jointly-owned company which sold the business and changed its name to BPC Enterprises Limited. 4. Mr Chandra was anxious to pursue further business opportunities and was anxious also to shelter the gain on the sale of the business for capital gains tax purposes by making use of roll-over relief. He identified a property in central Manchester which could be developed as a hotel. The property was a grade 2-listed Victorian office building in Princess Street. It was decided to use a wholly-owned dormant subsidiary of BPC Enterprises Limited to purchase and develop the property and to run the hotel once it opened. It was granted a franchise to run the hotel as a 4-star Holiday Inn. The subsidiary was re-named as BPC Hotels Limited (the company). Mr and Mrs Chandra were its directors. The guarantees in issue in this case were given in respect of liabilities of the company. 5. Mrs Chandra was content to support Mr Chandra in his plan, although I accept her evidence that she would have preferred them simply to enjoy the fruits of their labours in the nursing home business. It was envisaged that she would become involved in the staff and service side of the hotel. She was not actively involved in the acquisition and development of the property or in its financing. 6. The property was acquired by the company in 1998 for £1.5m. The purchase price was provided from the sale proceeds of the nursing home business. It was at first estimated that the total cost of acquisition and development would be £11.9 million but in 2000 the proposed size of the hotel was increased and the projected cost revised to £15.25m. Costain Limited (Costain) was engaged as the contractor. 7. The bank agreed to provide loan finance to the company for the project, following an introduction from Holiday Inn. It was initially envisaged that the bank would provide loan finance of £7.3 million but this was increased to £10.65m and it was this figure which the bank committed to lend in a finance agreement dated 20 September 2000 (the first finance agreement). Costain started work on the property on 2 October 2000 under an interim agreement dated 7 September 2000. Formal building contracts were entered into on 30 April 2001, comprising a contract in the JCT Standard Form of Building Contract 1998 Edition with Quantities and a supplemental bespoke contract, varying some of the terms of the main contract. 8. The first drawdown under the first finance agreement was made towards the end of July 2001. As pre-conditions to drawdown, the company granted on 23 July 2001 a debenture creating fixed and floating charges over the company's business and assets, with the usual power to appoint administrative receivers, and a first legal charge over the property. As a further pre-condition, a deed of warranty was executed on 18 July 2001 by Costain, the company and the bank. It will be necessary to look in detail at some of the provisions of these financing documents. 9. On 12 July 2001 the bank provided overdraft facilities, limited to £300,000 and repayable on demand, to assist the company with VAT timing differences. 10. In September 2001 the estimated cost of redevelopment rose by a little over £755,000 and on 30 October 2001 a second finance agreement was made between the bank and the company, whereby further loan finance of £700,000 was to be provided by the bank. It was a term of this further agreement that Mr and Mrs Chandra should give a personal guarantee of the company's borrowings, limited in amount to £700,000 and secured by a second charge on their matrimonial home. The guarantee and charge were executed by them on 30 October 2001. It was an all monies guarantee, limited to £700,000, and did not therefore secure any specific or particular borrowing from the bank. 11. There were difficulties in the redevelopment, and in particular disputes developed between Costain and the company from about mid-2002. It became clear that the costs were increasing and that the company would require further funds to complete the development. In February 2003 Mr Chandra informed the bank that the company would not be seeking further funding from the bank, but that he and Mrs Chandra would inject £700,000 in April 2003 to be raised from the sale of their home, which they put on the market with offers invited at over £2m. Mr Chandra later told the bank that he expected to sell the house in May 2003 and inject £900,000. 12. Mr and Mrs Chandra's house was not sold and further funds were not forthcoming from them. A payment of over £485,000 was due to Costain on 20 May 2003 but there was a shortfall of nearly £99,000 in the facilities available to the company. Failure to pay Costain was likely to lead to a cessation of work on site. The company requested further funding from the bank to enable the payment to be made to Costain. The bank agreed to do so on terms that Mr and Mrs Chandra gave a further guarantee, increased from £700,000 to £1.15m and secured by the second charge on their home. The guarantee was signed by them on 20 May 2003 and the funds were provided by the bank to enable payment to be made to Costain. 13. The further funding provided in May 2003 was in effect emergency funding to deal with an immediate shortfall but further funds were required to complete the project. Discussions with a view to a further finance agreement were not successful, principally as the bank says, and as I accept, because it was impossible to reach a reasonable degree of certainty as to future costs. Efforts to do so were hampered by Mr Chandra's refusal to allow the bank to discuss these issues, and particularly Costain's claims, directly with Costain. The bank had lost confidence in Mr Chandra's ability to manage the project and Mr Chandra refused the proposal for the introduction of a new manager. On 28 August 2003 demands for payment were made by the bank. On the same day, the bank appointed administrative receivers over the business and assets of the company. The total indebtedness of the company to the bank was then a little under £12.3m. 14. It appeared to be commercially desirable to complete the development of the property and to retain Costain as the contractors. Under the terms of the deed of warranty Costain could require the bank, or a person nominated and guaranteed by the bank, to become the employer under the building contracts. A structure was put in place whereby on 12 September 2003 the bank nominated a clean company owned by the receivers' firm (the special purpose vehicle or SPV) and guaranteed its liabilities to Costain. 15. By a letter dated 18 September 2003, the company and SPV agreed that SPV was carrying on its business, which meant the contract with Costain, as agent for the company, and the company agreed to indemnify it against all liabilities. The funding to complete the development, including the sum required to settle Costain's claims against the company, was advanced by the bank to the company in receivership. This comprised £1,655,800 to complete the development and to pay other receivership expenses and £3,207,333 to settle Costain's claims at a figure reached after negotiations. The property was sold in March 2004 for £13.5m, leaving a shortfall of £4.118m on the amount due to the bank. (2) BN’s engagement[42]It is an essential feature of these claims that Mr Lopeman was no ordinary solicitor who was only providing conventional solicitor’s services. He had been the solicitor and legal adviser to the Chandras and their various companies and business vehicles for many years. Amongst the many services he had performed for them and their corporate vehicles in that time was to provide extensive legal services to them in the construction of no fewer than nine different nursing homes. He provided extensive legal advice about all aspects of each project including the content of all the documentation, an analysis of the risks inherent in that documentation and legal advice during each project to facilitate its successful completion. He was, therefore, retained on a project by project basis by both the Chandras and by the relevant companies involved in a particular project and, from the clients’ standpoint, Mr Lopeman acted as “standing counsel” for each project so that, for each project, his engagement was an entire contractual engagement and his instructions were to provide continuous services with the ultimate objective of assisting in its successful completion.[43]Mr Chandra summed up Mr Lopeman’s role in the hotel development project this passage in his first witness statement: “Mr Lopeman’s duty included a specific obligation to consider fully the effects on the position of all three claimants of any material proposed steps to be taken by the Chandras and BPC, the Bank and Costain in respect of the development including the funding therefor and in particular the mandatory step-in rights and provisions of the Deed of Warranty. He was to advise all three claimants as to that effect, identifying and explaining the risks and benefits of the proposed steps as compared with the risks and benefits of not agreeing to any such steps.” (3) The relevant financial structure[44]The claimants’ claims against BN cannot be understood or properly analysed without a clear understanding of the relevant financial structure. This structure was explained by David Richards J in his judgment in this way:29. The first finance agreement, executed on 20 September 2000, required a number of conditions to be satisfied before the company was to entitled to draw down under the facility. In particular, security had to be provided in the form of a debenture creating fixed and floating charges over the company's undertaking and assets, a fixed charge over the property and "Collateral Warranties" defined as "collateral warranties in favour of the Bank to be executed by each member of the Professional Team in a form and substance satisfactory to the Bank." Importantly, the "Professional Team" included the contractor, Costain.30. Collateral warranties provided by contractors to lenders are a standard feature of construction financing. They give the lenders a direct right of action against the contractor in respect of its performance of the construction agreement, without which the lender's security over the building and property might well be significantly less valuable. Typically, they also confer on the lender a right, but not an obligation, to step-in and take over the building contract as employer, either itself or through a person nominated by it. In this way, the lender can ensure the continuation of the construction works by the original contractor, and so avoid either a costly re-negotiation of the contract or the time and probably even greater cost involved in the engagement of a replacement contractor.31. The unusual, and in the experience of witnesses in this case unique, feature of the deed of warranty provided by Costain is that, instead of the step-in provision conferring a right exercisable only at the option of the bank, it is a mandatory provision, requiring the bank to step-in. This was not a mistake. The evidence establishes that Costain was concerned as to the ability of the company to meet its obligations under the building contract. In the company's letter of intent dated 7 September 2000 to Costain, it undertook "to provide your company [Costain] with suitable financial surety for the Contract". In the course of negotiations in the autumn of 2000, Costain insisted on the provision of some security for its benefit. The bank was not prepared to agree an escrow account, but it was prepared to agree to a step-in obligation as a means of providing security for Costain. Mr Chandra maintained in his evidence that these terms were negotiated between the bank and Costain, without any involvement by the company. I reject this evidence. It is clear from the contemporary documents that the company and its solicitors were closely involved in the negotiations. They were not terms in any way imposed on the company Emphasis added to highlight the apparent role of Mr Lopeman in the negotiations leading to the finalisation of the step-in provisions and of the detailed advice he might be expected to have provided the claimants about its meaning and effect and the risks that it posed to the redevelopment and to the claimants and as to any steps that they should have considered taking by way of side agreements or amendments and as to whether the risks were so great that they should not embark on the development at all with the step-in provisions in the form that had been negotiated. . It is, however, the case that without this or some other form of security Costain would not have committed itself as contractor for the development. The deed of warranty was negotiated in 2000 but, as with the other security, not executed until shortly before the first drawdown in July 2001.32. The terms of the deed of warranty containing the step-in provisions are as follows:
"8. 8.1 The Main Contractor covenants with the Beneficiary that it will not exercise nor seek to exercise any right of determination of its employment under the Main Contract or to discontinue the performance of any of its obligations in relation to the Project by reason of breach on the part of the Employer without giving to the Beneficiary not less than 21 days' notice of its intention to terminate its employment under the Main Contract and specifying the grounds for the proposed termination. 8.2 Compliance by the Main Contractor with the provisions of Clause 8.1 hereof shall not be treated as a waiver of any breach on the part of the Main Contractor giving rise to the right of determination nor otherwise prevent the Main Contractor from exercising its right after the expiration of the notice unless a notice shall have been served under the provisions of Clause 9. 8.3 In the event that the Main Contractor's employment under the Main Contract is not determined for whatever reason, the provisions of Clause 9 shall not apply notwithstanding that a notice may have been served under Clause 8.1 and the notice served under Clause 8.1 shall be deemed to have lapsed and be of no effect. 9. 9.1 subject to Clause 8.3, the Beneficiary shall give notice to the Main Contractor within the period of not less than 21 days specified in the notice under Clause 8.1: 9.1.1 requiring it to continue its obligations under the Main Contract in relation to the Project; and 9.1.2 acknowledging that the Beneficiary is assuming all the existing and future obligations of the Employer under the Main Contract; then upon determination of the Main Contractor's employment under the Main Contract the provisions of Clause 9.2 shall apply. 9.2 Subject to Clause 8.3, and in the event that a notice is served in accordance with Clause 9.1, notwithstanding determination of the Main Contractor's employment as specified in Clause 9.1 the Main Contract shall be deemed (as between the Main Contractor and the Beneficiary or the Beneficiary's nominee) to continue in full force and effect as if the right of determination on the part of the Main Contractor had not arisen and in all respects as if the Main Contract had been made between the Main Contractor and the Beneficiary to the exclusion of the Employer whereby: (a) the Beneficiary assumes all the existing and future obligations of the Employer under the Main Contract; and (b) the Main Contractor acknowledges all of its obligations under the Main Contract in favour of the Beneficiary. 10. Notwithstanding the provisions of Clauses 8 and 9 hereof, if at any time the Beneficiary gives notice to the Main Contractor that the Finance Agreement has been determined or that the Employer is in breach or default of the Finance Agreement and that the Beneficiary proposes itself or through others to proceed with the development upon the Beneficiary agreeing to be responsible for unpaid sums properly due to the Main Contractor under the Main Contract then the Main Contract shall be deemed (as between the Main Contractor and the Beneficiary) to continue in full force and effect as if in all respects the Main Contract had been made between the Main Contractor and the Beneficiary or such other person as the Beneficiary may nominate in writing to the exclusion of the Employer whereby: (a) the Beneficiary or such other person as is herein referred to assumes all the existing and future obligations of the Employer under the Main Contract; (b) the Main Contractor acknowledges all of its obligations under the Main Contract in favour of the Beneficiary or such other person as is herein referred to; and (c) otherwise with the intent that the Beneficiary or such other person as is herein referred to and the Main Contractor had been the original parties to the Main Contract. 11.1 The Main Contractor shall not be concerned to enquire whether and shall be bound to assume that as between the Employer and the Beneficiary the circumstances have occurred permitting the Beneficiary to give notice under Clause 9.1 or Clause 10. 11.2 The Main Contractor acting in accordance with the provisions of Clause 9 or 10 shall not by so doing incur any liability to the Employer. 11.3 Should the Beneficiary appoint such a nominee as is herein referred to the Beneficiary shall guarantee the obligations of such nominee, provided always that the Beneficiary shall not by virtue of this guarantee acquire or assume any liability which is greater in nature or degree or of longer duration than it would have owed had no such nominee been so appointed and had the Beneficiary been a party to the Main Contract in substitution for the Employer." 33. At the time of negotiating and executing the deed of warranty, the bank clearly understood that the step-in provisions were mandatory, not optional, and were enforceable against it by Costain. Jeremy Bell, who led a corporate lending team at the bank, was closely involved in these arrangements and in dealing with the company until the difficulties in 2002 led to the transfer of the account to the bank's specialised leading services group (SLS) in December 2002. Mr Bell understood the provisions to be mandatory, as did Mr Logan who was the officer in SLS with day-to-day responsibility for the account from April 2003 until the decision was taken in August 2003 to appoint receivers. Mr Logan's understanding came from what he was told by representatives of Costain at a meeting on 17 July 2003 and from advice received from the bank's solicitors a few days later. As appears from an internal document dated 19 October 2000, the bank was prepared to assume this obligation because it did not envisage circumstances in which the company would default, as it would be funded by the bank, and in any event the bank thought it more than likely that it would wish to exercise step-in rights, even if optional, so as to complete the development. I mention this only because another of the bank's witnesses, Mark Hughes, who became responsible for the account once it was decided to appoint receivers, insisted in his evidence that in the period up to and immediately following the appointment of the receivers, the bank never received definitive advice that the step-in provisions were mandatory. I accept that evidence in the sense that there was no formal opinion letter to that effect, but as early as 21 July 2003 Mr Logan was reporting in an internal email, which Mr Hughes accepts that he would have seen, that "
Addleshaw Goddard, the solicitors advising us on the bank's potential step-in rights/obligations and having worked throughout the weekend, have come back to me to confirm that the step-in rights are mandatory". From then at the latest it was clear to the bank's officers involved with the company that the provisions were mandatory, or that it was a near certainty that they were mandatory. 34. The debenture required by the first finance agreement was executed by the company on 23 July 2001. By cl.1 it covenanted to discharge on demand the "Company's Obligations" and granted the fixed and floating charges as a continuing security for the covenant. The Company's Obligations are defined as:
"All the Company's liabilities to the Bank of any kind and in any currency (whether present or future actual or contingent and whether incurred alone or jointly with another) together with the Bank's charges and commission Interest and Expenses." "
Expenses" are defined as:
"All expenses (on a full indemnity basis) incurred by the Bank or any Receiver at any time in connection with the Property or the Company's Obligations or in taking or perfecting this Deed or in preserving defending or enforcing the security created by this Deed or in exercising any power under this Deed or otherwise with Interest from the date they are incurred." 35. The covenant in cl.1 and the definitions are significant because it is part of the bank's case that the costs which it would have incurred in completing the development if it had been substituted as employer under the building contract would have been recoverable from the company and secured by the debenture as "
Expenses" as defined. I shall return to this issue. 36. Clause 8 conferred a right on the bank to appoint administrative receivers of the business and assets of the company, and provided as is usual that such receivers were deemed to be agent of the company and that the company was to be solely responsible for the Receiver's acts, defaults and remuneration. 37. Clause 9.1 conferred on the receivers, in addition to all powers conferred on them by law, a number of express powers, including "9.1.2 To carry out on any freehold or leasehold property of the Company any new works or complete any unfinished works of building reconstruction maintenance furnishing or equipment 9.1.5 To carry into effect and complete any transaction by executing deeds or documents in the name of or on behalf of the Company 9.1.11 To borrow any money and secure the payment of any money in priority to the Company's Obligations for the purpose of the exercise of any of his powers 9.1.12 To do any other acts which the Receiver may consider to be incidental or conducive to any of his powers or to the realisation of the Property" Clause 9.2 provided:
"A Receiver shall apply all money received first in repayment of all money borrowed by him and his expenses and liabilities and in payment of his fees and secondly towards satisfaction of the Company's Obligations in such order as the Bank decides."
Events leading to the structure established in September 2003 38. I have referred briefly to the existence of difficulties in 2002. It is not necessary to go into any detail but it is the background to the problems in 2003. Disputes developed between Costain and the company, particularly as regards cost overruns and EOT (extension of time) claims, on which the first adjudication took place in June 2002. In late 2002 Costain threatened to leave site. Relations continued to be very difficult. In July 2003 the bank engaged David Evans of Manley Property Services Limited to review the development and its completion. He reported on 8 August 2003 that there was no meaningful working relationship between Mr Chandra and Costain, and an air of total distrust existed, with acrimony and adversity between them. Having seen Mr Chandra give evidence, I am in little doubt that he would have been a very difficult client, compounded as at least one witness thought by inexperience in a project of this sort. 39. The bank was concerned to know whether and how the company would be able to complete the development. The failure of Mr Chandra to produce in 2003 the funds which he had said would be available created a funding crisis for the development. I am satisfied by the bank's evidence that it was anxious that the development should be completed and would probably have advanced the funds necessary to do so if it could have obtained assurance as to the likely overall cost. It was, however, impossible to achieve this assurance because Mr Chandra would not permit the bank or its surveyors to discuss costs or Costain's claims directly with Costain. The bank did make further funds available, in excess of facility limits, of nearly £99,000 on 20 May 2003 and over £221,000 in late July 2003, but it could not obtain the assurance it needed to be able to offer a facility to take the project to completion. 40. Following receipt of Mr Evans' report dated 8 August 2003, the bank concluded that it could not continue to support the company while Mr Chandra remained in control. He refused the bank's suggestion to appoint Mr Evans to take control of the project. On 28 August 2003 the bank appointed the administrative receivers. 41. Meetings within the constraints set by Mr Chandra took place between the bank and Costain in June and July 2003. At the third meeting on 17 July 2003, Costain advised the banks that the step-in provisions in the deed of warranty were mandatory on the bank, not optional. This took Mr Logan and others at the bank dealing with the company by surprise but they took legal advice and, while never formally definitive, it was accepted that Costain's interpretation was correct. 42. I am satisfied on the evidence that the bank's strong view was that it was in everyone's interest that the development should be completed. This too was the view of the receivers before and following their appointment. The evidence of William Dawson, one of the receivers, on this issue, as on others, was impressive. It was important in this respect that the development was not far from practical completion, with the majority of the original scope of work having been completed. It was important to retain Costain, as the appointment of an alternative contractor to complete the development would have led to significant additional cost. 43. It was important too that work should resume quickly, because delay would lead to further claims even if Costain continued as the contractor. This was the unchallenged evidence of Mr Shilton, a quantity surveyor and partner at Deloittes who assisted the receivers. 44. In response to the appointment of the receivers, Costain as expected, suspended the works on 29 August 2003 and gave notice of its intention to determine its employment under the building contract. The notice was expressed also to be a notice under cl.8.1 of the deed of warranty. The immediate strategy, adopted on legal advice, was for the receivers on behalf of the company to negotiate with Costain with a view to a continuation of the contract without step-in. Costain made clear that this was unacceptable. The alternative of a nomination by the bank of the company under the step-in provisions with a guarantee provided by the bank was also rejected, as the consent of Costain was required and it made clear that it would not be given. 45. The bank decided that in order to minimise delay and maximise potential return it would nominate the SPV (an off-the-shelf company called Inhoco 2859 Limited owned by Deloittes) under cl.10 of the deed of warranty. It did so by notice dated 12 September 2003. As provided by cl.11.3 of the deed, the bank became guarantor of SPV's liabilities under the construction contract to Costain. The receivers had arranged for the company to be the sole owner of SPV's share capital and on 15 September 2003 it was appointed as SPV's sole director. 46. The agency relationship between the company and SPV is set out in a letter dated 18 September 2003 from the company to SPV. The letter was signed on behalf of Mr Dawson for the company and signed as agreed and accepted by SPV. The receivers had arranged for SPV, previously a shelf company owned by Deloittes, to become a wholly-owned subsidiary of the company. The company was made a corporate director of SPV and the letter was signed on behalf of SPV by Mr Dawson acting for the company as corporate director. 47. The letter dated 18 September 2003 (the agency agreement) states: "This is to confirm that the business carried on by you in your name is and has been since 12 September 2003 carried on by you as agents for us and on terms that you manage the same to the best of your ability (but subject to any instructions we may from time to time give) that we shall be entitled to all profits and bear all losses and that we will at all times indemnify you against all liabilities (including taxation) costs and expenses which you howsoever incur in carrying on the business as our agents." (3). The Chandras’ defences in the possession proceedings and the claims the claimants now wish to bring against BN and BN LLP[45]As can be seen from this summary of the background to these claims and the decline and fall of the project from the claimants’ standpoint, its breakdown was dramatic, rapid, hugely stressful and very costly. The Bank had concluded in March 2003 that it wished the hotel to be completed and was considering providing further finance for this purpose and it wanted to be repaid after completion of the hotel either through refinancing or a sale of the hotel. On 20 May 2003, when the Bank provided a modest extension of BPC’s borrowing facility of £99,000 and the Chandras’ provided a relatively modest extension of their guarantees, it would have seemed to the claimants that practical completion of the redevelopment would soon be achieved, that there would be a rapid finalisation of the real cost of construction at a figure very much less than that projected by Costain and its threatened claims, that the project would be refinanced or the completed hotel sold in the near future with a consequent discharge of BPC’s indebtedness and their exposure to the Bank and that an overall profit from the project would result for the claimants. Moreover, it would have seemed to the Chandras that what for them must have been the horrors of working with Costain and managing the development were nearly over.[46]However, hugely protracted and unsuccessful discussions with the Bank took place in June and July which culminated in the provision of a further extension of the facility of £221,000 in late July. However, the Bank had decided internally that Mr Chandra could not be allowed to continue to manage the project and that it should procure his removal from the project and then provide the necessary finance to enable practical completion to be achieved by Costain before it exited the project by selling the hotel and recovering any shortfall from the claimants. The Bank was clearly heavily influenced in its decision to adopt this strategy by the report of a review of the project that it had commissioned from the independent Project Manager, Mr David Evans of Manley Property Services Ltd, in July which it received on 8 August 2003. The report concluded that there was no meaningful working relationship between Mr Chandra and Costain and that an air of total distrust existed with acrimony and adversity between them.[47]The Bank therefore called in BPC’s indebtedness and called on the Chandras’ guarantees. BPC inevitably defaulted and BPC appointed receivers on 28 August 2003. These measures immediately entitled Costain to suspend work and to activate the step-in provisions of the Deed of Warranty, both of which occurred on 29 August 2003. This culminated in the Bank stepping in under clauses 10 and 11 of the Deed of Warranty and nominating as the new employer a SPV provided by the receivers which became a wholly-owned subsidiary of BPC. The SPV completed the building contract as BPC’s agent. The Bank provided the necessary additional finance to BPC whilst remaining, through the Deed of Warranty, the guarantors of SPV’s liabilities under the building contract. Costain then resumed work, achieved practical completion and the hotel was sold in March 2004. Costain then reached an overall lump sum settlement of the cost of the works and all of its claims in May 2004 which crystallised the remaining unrecovered indebtedness to the Bank at £4.118m.[48]As David Richards J found, the Bank was entitled to activate its debenture, put BPC into default of its loans, place BPC into receivership, procure the take over of the building contract through the step-in provisions of the Deed of Warranty and recover the full costs of doing so from the claimants through the debenture, the proceeds of sale of the hotel and the calls on the Chandras’ guarantees and the second charge on their matrimonial home. These costs included payments to Costain of a further £1.65m to complete the work and £3.2m to settle its claims.[49]The Chandras were immediately faced with possession proceedings initiated by the Bank in the County Court in November 2004. For reasons that were not explained in the evidence filed for these applications, these proceedings were remarkably drawn out and became extremely complex. They were transferred to the Chancery Division and were only concluded by the handing down of the detailed judgment of David Richards J on 28 January 2010, over 5 years after they had been started. It is not clear when Mr Lopeman ceased to be involved with the claimants and the project. BN was not involved in the possession proceedings and Mr and Mrs Chandra were represented in these by different firms of solicitors, neither of whom was BN. BPC, through the receivers, appointed different solicitors in August 2003.[50]Mr Lopeman did not give evidence in the possession proceedings. He was involved in advising BPC and the Chandras prior to and on 20 May 2003 when the extension of the Bank’s financing of the project and its security were finalised and he attended an important meeting between Mr Macklin of the Bank and Mr Chandra on 25 June 2003 at which the Bank informed Mr Chandra that it wanted to agree with Costain a fixed price and time for completion of the building contract and, pending that agreement, that it would not provide any further funding for the development. He then wrote to Mr Chandra on 26 June 2003 and summarised what had been said at the meeting. He advised Mr Chandra to take insolvency advice from his insolvency partner and asked to be informed of the date of the proposed meeting between the Bank and Costain which Mr Chandra had asked for in order, forlornly as it transpired, to persuade the Bank that Costain was maintaining hugely inflated and unrealistic claims and that it was not sensible to try and agree a fixed price for completion with Costain. However, there is no evidence of any subsequent involvement by Mr Lopeman in the fevered discussions and investigations culminating in the collapse of the project on 28 August 2003. Moreover, Mr Chandra does not give evidence about what took place between him and Mr Lopeman, if anything, following his receipt of Mr Lopeman’s letter dated 26 June 2003.[51]What is clear is that the claimants did not consider that the collapse of the project could be attributed to the negligent advice or other negligently performed services of Mr Lopeman or BN during or in the immediate aftermath of the collapse of the project. Indeed, Mr Chandra appears to have decided, possibly through the tunnel vision created by his stressful over-involvement in managing the project, that the cause of the collapse was the Bank’s wrongheadedness in deciding that it should exit the project. The Bank’s exit strategy was that it would persuade Costain to settle on what Mr Chandra considered to be a wholly unrealistic and excessive lump sum to complete the work, irrespective of the huge additional cost that that would entail which it would fund and then recoup from the project and the claimants. It would then force a sale of the hotel and look to the claimants for the shortfall. The Bank considered that this strategy could and should be undertaken with Mr Chandra’s agreement and without the activation of the step-in provisions, the debenture or the receivership of BPC but with his replacement as the manager of the project by a Bank-nominated quantity surveyor why should become the sole director of BPC. Mr Chandra, on the basis of the advice that he had received from BN about the meaning and effect of the contractual suite of documents that the claimants were parties to, considered in August 2003, and still considers, that he was reasonable in refusing to adopt this strategy, a refusal which triggered the various steps taken in late August 2003 which I have already summarised.[52]It is therefore clear that, in 2003 and 2004, the claimants did not consider that BN and Mr Lopeman were responsible for the collapse of the project. Their overall view, which I have already summarised, was that that Costain and the Bank were responsible. This is why they contested the possession proceedings with such tenacity and it explains their defences to those proceedings that they mounted up to and throughout the trial and which are summarised by David Richards J in these paragraphs of his judgment: The defences : an overview16. Both Mr and Mrs Chandra defend the bank's claim by reference to the effect of the arrangements made for the continuation of the development after the appointment of the receivers. Their basic point is that, by reason of the terms of the deed of warranty, the company was released from any obligation to Costain and the bank was itself, or through a nominee guaranteed by it, obliged to replace the company under the contract with Costain. While the property remained in the ownership of the company and any increase in its value resulting from the completion of building works would accrue to the benefit of the company, it was the bank not the company which was obliged to complete the development. It was not therefore legitimate to create a structure which re-imposed on the company a continuing liability in respect of the construction contract.17. It is submitted for Mr and Mrs Chandra that this imposition of liability on the company was a sham so that in truth and in law the company was under no liability either as the SPV's principal or to the bank under the purported borrowing after the appointment of the receivers. Alternatively, it was a breach of equitable duty by the bank and that on these and other grounds its effect was to discharge Mr and Mrs Chandra from liability under the guarantees either totally or in respect of any borrowing following the appointment of the receivers.18. It is further and separately submitted for Mr and Mrs Chandra that the settlement of Costain's claims was negligently agreed and that, using reasonable skill and care, the company should have avoided any liability to Costain. In order for this to provide a defence to the bank's claim under the guarantee, as opposed to founding a claim in damages by the company against the receivers and their advisers, it is essential to establish that the bank itself is liable. As the receivers were, as is usual, the agents of the company under the terms of the debenture, this cannot be achieved by any reliance on agency principles or vicarious liability in the absence of special facts. The defendants' case is that the settlement was procured by the bank which instructed the receivers to settle on the terms agreed, so that the bank is liable to the company as a joint tortfeasor or on the basis that in this respect the bank was the receivers' principal. On either basis, if the alleged negligence and interference or instructions can be established, the guarantors can themselves rely on it as a defence to the bank's claim, so as to reduce their liability on the guarantee or perhaps extinguish it after the proceeds of sale of the hotel are taken into account.19. At the start of the trial I directed that, in respect of this defence, the trial would be confined to determining the issue of whether the bank controlled the receivers in respect of agreeing the settlement. If the defendants succeeded on this issue, the separate issue of negligence could be determined at a later hearing. If the defendants failed, the defence also failed and an investigation of their case of negligence would be unnecessary. There had already been excluded from this trial any issue relating to the settlement agreement which required expert evidence.20. There have been numerous amendments to the defences. Defences of economic duress and allegations of a sale of the property at an undervalue, introduced by amendment in September 2006 nearly two years after service of the original defence and with the latter defence being the subject of further amendments after substantial argument in July 2008, were abandoned in June 2009. A defence based on a challenge to an adjudication of a disputed claim by Costain against the company was introduced in September 2006 but was abandoned in September 2009. In his skeleton argument for the trial, Mr Kent QC set out a submission that, by reference to the terms of the agreements and other instruments between the bank and the company, no valid demand had been made on the company and hence there was no enforceable liability under the guarantees. This was addressed by Mr Cawson QC for the bank in his opening, who submitted that Mr Chandra had not pleaded this case and stated that the bank would wish to rely on notices served in March 2004 as constituting in any event valid demands. I indicated that I did not think that the point had been pleaded by Mr Chandra and, on the following day, Mr Kent informed me that it would not be further pursued.21. In July 2008 a separate defence was served in draft by Mrs Chandra which, in addition to adopting Mr Chandra's defence, raised a defence of undue influence in respect of both guarantees.22. Mrs Chandra's defence of undue influence raises for the most part issues of fact and law which do not arise in relation to the other defences. I shall deal with those defences before turning to the question of undue influence. … Defences based on the structure established in September 2003 48. As previously mentioned, both defendants rely on defences arising from this structure. It is the defendants' contention that this structure was put in place for the sole or principal purpose of imposing on the company liability for the completion of the development under the contract with Costain and for ensuring its liability for the further funding required to complete the development, in circumstances where the company would otherwise have had no liability for either. The defences are pleaded in Mr Chandra's defence and adopted by Mrs Chandra. By a very late amendment, a further defence based on the structure was raised by Mrs Chandra, but on essentially the same facts. The submissions were made principally by Mr Kent, and adopted by Mr Knox for Mrs Chandra. 49. The defences were summarised by Mr Kent in his opening skeleton as follows:
"i) the post step-in lending was, in truth, not lending to the company and cannot be relied upon as creating a liability to the bank over and above such liabilities as were fully cleared by the net proceeds of the hotel sale; ii) alternatively, if post step-in lending can be treated as in fact and in law made to the company, this lending amounted to a breach of the equitable duty owed by the bank to the Defendants as sureties because it was effected for the sole purpose of relying upon the security made available by the company, including the guarantee, with the consequence that the Defendants have suffered loss equalling the demand which the bank by such manoeuvres enabled themselves to make; iii) (allied to the previous point) the post Receivership lending (at a time when the Defendants were kept in ignorance of the fact, purpose or amount of such lending) , constituted a prejudicial change in the arrangements provided for by the underlying principal contracts not contemplated by the Defendants when the guarantee was executed. Without notice of these changes to the defendants they were discharged from liability under the guarantee in respect of such further lending."
The third defence is that raised by Mrs Chandra and was developed by Mr Knox. He submitted that the effect of the structure was to re-impose on the company "the very liability from which it was relieved by the deed of warranty – i.e. the liability to continue to pay Costain, with a corresponding need to borrow from the Bank". In this way, the bank fundamentally altered to the detriment of Mr and Mrs Chandra the nature of the underlying principal agreements guaranteed by them. Mr and Mrs Chandra are therefore discharged from liability under the guarantees either altogether or for any lending by the bank to the company after 12 September 2003. 50. There are issues common to each of these defences which are largely determinative of them and which it is convenient to consider before addressing each of the defences in turn. The issues are: i) Following step-in, did the company have any direct or indirect liability for the costs of completing the hotel and settling Costain's claims? ii) What were the purposes of the bank and the receivers in establishing the structure? Did the company have any liability for the costs of completing the hotel after step-in? 51. It is the defendants' case that following step-in by the bank or its nominee, the company was free of liability for the costs which would be incurred in completing the hotel but, by virtue of its continuing ownership of the property, the resulting benefits and increase in value would nonetheless accrue to it. Some concession is made that there might be some restitution remedy available to the bank, but it would depend on establishing that the costs were reasonable and in any event would be a charge against the equity of redemption in the hotel, rather than a personal liability of the company. The borrowings from the company to which the defendants' guarantees related, and which were secured by a first fixed charge, would be fully met out of the proceeds of sale. 52. The bank maintains on a number of different grounds that, without the structure established in September 2003, it would have had a right of recourse against the company or the property, such that the guaranteed liabilities would have remained unpaid at least to the full amount of the guarantees. The grounds relied on are as follows. 53. First, the company was not discharged from the contract with Costain by step-in but remained liable on it. The bank's pleaded case is that upon step-in, a new contract would come into existence between Costain and the bank or its nominee on identical terms to the contract with the company, while the contract between Costain and the company would remain in full force and effect subject to its terms. This was developed by Mr Cawson in opening, but in closing he recognised that there were difficulties with this submission. Although it was pleaded in Mr Chandra's defence, and remains without amendment, that the bank owed to the defendants a duty "to preserve and realise the asset of the company's rights in the building contract", Mr Kent is in my judgment correct in his submissions that following step-in the company had no further rights or obligations under the building contract, certainly as regards any future events. It was not therefore liable in respect of the completion of the development. 54. This in my judgment results from the terms of the deed of warranty, to which the bank, Costain and the company are all parties. The effect of the notice given by the bank pursuant to cl.10 was that "the Main Contract shall be deemed (as between the Main Contractor and the Beneficiary) to continue in full force and effect as if in all respects the Main Contract had been made between the Main Contractor and the Beneficiary or such other person as the Beneficiary may nominate to the exclusion of the Employer". As a matter of law, a thing is deemed where it is not otherwise the case. The building contract is deemed to continue in full force and effect, as between Costain and the bank and its nominee, because as against the company it is terminated, as the words "to the exclusion of the Employer" make clear. This is underlined by the following three sub-paragraphs which provide (i) that all existing and future obligations of the company are assumed by the bank or its nominee, (ii) that Costain acknowledges all of its obligations under the building contract in favour of the bank or its nominee and (iii) that the contract continues "otherwise with the intent that the [bank or its nominee and Costain] had been the original parties to the Main Contract". As Mr Kent submitted, this reflects a clear commercial requirement that there should be only one employer under the contract. The building contract confers many rights and powers on the employer, and neither Costain nor the bank could sensibly tolerate a situation in which they might be exercised both by the company and by the bank or its nominee. 55. In his closing submissions, Mr Cawson put forward an alternative argument that cl.10, whilst taking effect as between the bank and Costain, had no effect between the bank and the company "so that as between them the company is still properly to be regarded as primarily liable under the Building Contract". It would be a curious position where the company ceased to be a party to the contract and ceased to be liable to Costain, at least for the future, but nonetheless as between the company and the bank it was to be regarded as still primarily liable to Costain. In my view, it cannot be spelt out of the deed of warranty. 56. The second ground on which the bank submitted that it would in any event be entitled to recover the costs of completing the development from the company and out of the proceeds of sale of the property is that such costs were "expenses" under the terms of the debenture. This was introduced by an amendment to the reply to the defence of the first defendant made shortly before the trial. 57. I have earlier set out the relevant provisions of the debenture. By cl.1 the company covenanted to discharge on demand "the Company's Obligations" and granted the fixed and floating charges as security for the covenant. The "Company's Obligations" are defined to include "Expenses" which are defined as "all expenses (on a full indemnity basis) incurred by the Bank or the Receiver at any time in connection with the Property….or in preserving, defending or enforcing the security created by this Deed or in exercising any power under this Deed or otherwise". 58. The Bank submits that the costs which it would have incurred in completing the development, if it had directly stepped in as employer under the contract with Costain, would have been expenses falling within the words cited above from the definition of "expenses" in the debenture. 59. The defendants submit that the word "expenses" as used in the definition connotes something incidental or ancillary. Expenditure of several million pounds on completing the development cannot be characterised as "expenses". Further, expenses could not, it was submitted, extend to liabilities incurred pursuant to an obligation previously undertaken, in this case the step-in obligation of the bank. 60. In my judgment, the bank would have been entitled to recover the costs incurred in completing the development as "Expenses". I do not consider that "expenses" are confined, either as a matter of ordinary language or more importantly in the context of this definition in this debenture, to costs which are ancillary or incidental. The qualification is that the expenses must be "in connection with the Property" or the other matters set out in the definition. The words "in connection with the Property" seem to me very wide and certainly wide enough to include the costs incurred in completing the development of the Property. The word "expenses" cannot have different meanings depending on whether they were incurred by the Bank or the receivers. It cannot be doubted that if receivers incurred costs in completing the development, the costs would be expenses incurred in connection with the property and in exercising the power under cl.9.1.2 ("to carry out on any freehold or leasehold property of the Company any new works or complete any unfinished works of building reconstruction maintenance furnishing or equipment"). 61. The fact that the Bank was under an obligation to Costain to step-in and assume the obligations of employer does not, in my view, mean that the costs of completion would not be "expenses incurred…at any time in connection with the Property". If there were doubt about this, I would regard the fact that the step-in obligations were an integral part of the arrangements between the Bank, the company and Costain, which included also the debenture, as indicating that the costs of completion were within the definition of "Expenses". 62. The third ground on which the Bank relied for its submission that if the Bank had stepped in directly it would have been entitled to recover the resulting costs from the company was a right to a restitutionary remedy. It is submitted that the company would have been liable to give restitution equal to the amount by which the value of the property was enhanced as a result of the works after 12 September 2003. The defendants did not seriously argue that there would not be a restitutionary remedy, but they submitted that it would depend on proof of the enhanced value. While that has not been an issue for decision in this case, it cannot be argued that completion of the development did not result in a significantly enhanced price, an increase of something in the region of £3m. 63. A fourth basis, canvassed in submissions, was that if the Bank had taken possession of the hotel as mortgagee, it could have recovered the sums expended by it out of the proceeds of sale. They would not on this basis be recoverable as a debt from the company, but there would be a right of recoupment out of the sale proceeds – Ex p Fewings, In re Sneyd (1884) 25 Ch D 338, Sinfield v Sweet [1967] 1 WLR 1482. 64. A fifth basis advanced by the Bank was that as the purpose and effect of the deed of warranty was to provide security for the company's obligations to Costain under the building contract, it would be entitled to rights of subrogation or reimbursement against the company. To the extent that by stepping in the bank relieved the company of liabilities enforceable against it either immediately or contingently on, for example, an architect's certificate, this ground is in my view well-founded. It is more difficult in respect of liabilities arising in respect of works carried out after 12 September 2003, for which as a result of step-in no claim lay against the company. In view of my conclusions on the other grounds, it is not necessary to reach a concluded view on this ground. I should add also that Mr Kent objected that this submission was not open to the bank on its pleadings, because its appearance in paragraph 46.3.3(d) of the Reply was dependent on the submission that the contract between Costain and the company continued in being, notwithstanding step-in. Mr Kent is, I think, right on a close analysis of the Reply, but it was fully opened by Mr Cawson for the bank and it is a point of law which does not require further evidence. The bank should, in my view, be entitled to make the submission. 65. My overall conclusion is therefore that on more than one ground, the company would have been liable to the bank in respect of the liabilities it incurred and paid to Costain following step-in.[53]It can be seen that the Chandras were advancing the following defences to the claims against them to enforce the charge over their matrimonial home and the guarantees up to a limit of £1.15M:(1) BPC had been released from liability to Costain and had been replaced as the employer under the building contract by the operation of the step-in provisions of the Deed of Warranty. The Bank was obliged to fund the completion of the development However, the building remained the property of the company and any resulting increase in value would accrue to the benefit of the company. It was not therefore permissible to re-impose on BPC a continuing liability to fund or reimburse the cost of funding the building contract.(2) The Bank operated the step-in provisions for its own purposes of creating a means of recovering its costs from the sale of the hotel even though it was no longer able to recover those costs through the operation of the Deed of Warranty or by any other lawful means.(3) The Bank, through its agents, negligently incurred costs in both completing the building contract and in settling Costain’s claims which it could not in consequence recover from the claimants.(4) The guarantees (particularly the second guarantee provided by Mrs Chandra) were procured by undue influence and by her not being advised by a solicitor who was independent of that undue influence before entering into that guarantee.[54]It can also be seen that none of those defences, save to the limited extent applicable to the second guarantee provided by Mrs Chandra, succeeded. In particular, the Bank was found to have been entitled to operate the Deed of Warranty, the debenture, its power to appoint receivers over the business of BPC, its calls to repay the loans and on the guarantees and to impose the structure that it did following the operation of clause 10 and 11 of the Deed of Warranty, to require a sale of the hotel, to repay itself out of the proceeds of sale and to recover any shortfall by a number of means including recourse to the reimbursement provisions of the debenture.[55]Those findings highlighted the significant risk that the claimants had run in signing up to the various documents at the beginning of, and during, the project, the lack of protection that they had from any opportunistic or harsh recourse to their provisions by Costain or the Bank and of the considerable additional financial liability that they would face if the provisions for step-in, receivership and call for repayment of the loans were operated. Furthermore, there was little that they could do to prevent any hasty, unnecessary, ill-advised or capricious recourse to these provisions by Costain or the Bank and little protection was available to them to prevent or ameliorate the consequences of any such recourse.[56]In short, the claimants now attribute their having been subject to these onerous and unduly risky obligations and contractual consequences due to the failure of Mr Lopeman to advise them in detail of the unduly harsh and extensive risks that they were running in signing each relevant component part of that suite of documents, in not securing appropriate amendments to the relevant provisions so as to reduce or remove the unduly harsh provisions that Costain and the Bank were seeking, in not advising on the need for and securing additional agreements with the Bank that would restrict the Bank’s ability to appoint receivers over BPC’s business and otherwise protect or ameliorate the full rigours of these agreements, in failing to explain to the Bank at various stages the errors and pitfalls inherent in its intended courses of action so as to prevent or ameliorate the effects of what the Bank was proposing to do and in providing negligent advice and in negligently failing to provide advice as to the effects of various significant component parts of the relevant provisions.[57]These failings are alleged to have occurred at many different and successive stages of BN’s engagement and they individually and collectively caused the claimants actionable damage being the collapse and failure of the development project, the receivership of BPC, the loss of the hotel, the loss of the building contract through the operation of the step-in provisions, the calls on the guarantees, the loss of the Chandras’ matrimonial home and a huge financial loss in real terms, being the shortfall they have had to fund once the hotel had been sold, and in prospective terms, being the failure to be able to sell the completed hotel or to profit from its significant increase in value following a successful completion of the project. (5). The claimants’ growing realisation that they were entitled to bring the amended claims against BN[58]The claimants did not even contemplate making claims against Mr Lopeman and BN in 2003 when or before the project collapsed. It seems that Mr Chandra ceased to consult Mr Lopeman following the disastrous meeting they had with the Bank on 24 June 2003 but if that is so, the reason appears to be that Mr Chandra did not welcome his encouragement to accept the Bank’s insistence that an agreement should be reached with Costain for a fixed price to complete the works and for him to agree that an independent manager should replace him for the remainder of the contract work. Since it was clear that the Bank would not be prepared to continue to provide finance if these proposals were not accepted, Mr Chandra’s disagreement with Mr Lopeman at that stage related to their different views as to strategy and not as to any legal advice that he had given him. On the basis of Mr Chandra’s evidence, it is neither surprising nor unreasonable that he did not consider, and was not aware, that the claimants had the basis of a claim against BN at that stage. The claimants had no reason to question or doubt the advice that they had received about the Deed of Warranty and they had not received, as they now claim that they should have received, detailed advice as to the protective measures that they should have agreed with the Bank in order to ameliorate the potential consequences of its mandatory step-in provisions.[59]The realisation that the claimants had potential claims against Mr Lopeman was a slow and painful one. It has these essential steps along the journey:(1) In 2004, when the Chandras were preparing their defences in the possession proceedings, Mr Chandra contacted Mr Lopeman because he remembered that Mr Lopeman had advised him on 30 April 2001that if and when BPC ran out funds to complete the development, RBS would be obliged to step-in under clause 10 of the Deed of Warrany and take-over and complete it so that that clause provided added protection to the claimants who would sill own the hotel. He could not find anything in writing that confirmed that advice and he contacted him and asked him to confirm that he had given him that advice on that occasion. Mr Lopeman replied that had no papers that he could consult to refresh his memory(2) Mr Chandra received papers on discovery in the possession proceedings on various dates which included a copy of specialist leading counsel’s advice that had been given to Costain in early August 2003 to the effect that the step-in provisions were mandatory and a second opinion from different specialist leading counsel in March 2004 to the effect that Costain could recover £1.735m that had been deducted by way of liquidated damages because the act of prevention that had occurred when BPC went into receivership had put time at large. It also included correspondence involving Mr Lopeman and the Bank’s solicitor in which Mr Lopeman was informed that the step-in provisions of the then draft Deed of warranty were mandatory.(3) On 20 November 2008, Mr Chandra found amongst the documents disclosed by the Bank in the possession proceedings copies of two letters written to the Bank by its solicitor at a time when the Deed of Warranty wording was being negotiated and finalised in October 2000. The letters advised that the wording insisted upon by Costain imposed mandatory requirements triggering Costain’s reliance on the step-in provisions if BPC defaulted. In the first letter, the solicitor advised that Costain’s wording would:
“… mean that they would determine and control the development in the way that should be exercised by a developer and/or the funder and not by a contractor. Given the number of occasions that I have argued on behalf of main contractors, consultants or sub-contractors against one sided imposition of step-in rights to which no objection can be taken the approach taken by Costain is ironic to say the least.” 70. A few days later, the same solicitor wrote to another representative of the Bank that the ability of Costain to require the Bank to step-in in the event of BPC’s default one that: “… in ten years of handling and negotiating collateral warranty deeds (including seven years spent in-house with legal departments of … the largest UK based construction and engineering group) I have never seen a proposal of this nature previously even made – let alone agreed to by any bank or funder.” (4) 19 October 2009. Mr Chandra became aware by way of disclosure in the possession proceedings that the Bank’s solicitor had advised the Bank at some stage prior to June 2003 that the step-in provisions were mandatory and that the bank should not allow itself to be put into a position that when they were operated, the result would be to separate “the asset from the debt”
. This advice is shorthand for advising that the step-in provisions should take effect in a way that enabled the Bank to retain control of the hotel development and the power to realise its proceeds of sale to recover its lending to BPC. In other words, if the Bank had to step-into BPC’s shoes in the building contract, it should be in a position to place BPC into receivership at the same time. (5) 28 January 2010. The judgment of David Richards J was handed down. This particularly highlighted that the step-in provisions were mandatory, that the course of action taken by the Bank was both legal and enabled the Bank to recover in full its total expenditure including the settlement figure reached with Costain and the nature and extent of the huge and unacceptable risk that the claimants had run in entering into the Deed of Warranty without any ameliorating provisions being agreed with and put into effect by the Bank. (6) The development of the pleadings[60]The pleadings have been developed over six successive stages. These may be summarised as follows.[61]Stage 1: The generally endorsed claim forms. The claim forms were issued on 18 May 2009. Evidently, in July 2008, Mrs Chandra’s possession action solicitors, Keoghs, contacted BN LLP and asked them to send BPC’s files relevant to her personal guarantees and further guarantees which they wanted in order to prepare for her defence of undue influence. These had been sent by BN LLP to Addleshaw Goddard who had been appointed in August 2003 to act for BPC by its receivers in replacement of BN LLP. These files had, as it turned out, subsequently been passed back by those solicitors to BN LLP and who passed them onto Wright Hassell LLP who had been appointed as BPC’s solicitors when it had exited receivership in about 2006. Mr Chandra eventually obtained these files from Wright Hassell during June 2009 and, no doubt, passed them onto Mrs Chandra and she passed them onto her solicitors.[62]No doubt whilst these files were being obtained, Mrs Chandra gave instructions to her solicitors as to her evidence of the circumstances in which she came to sign extended guarantees on 20 May 2003 which would have involved her in describing the role that Mr Lopeman had played in advising her about the risks she would be undertaking if she signed the extended guarantee forms. Mrs Chandra did not give evidence about the advice she had received from her solicitors in this period, it was of course privileged and there was no need for her to waive privilege, but it is a reasonable inference that the advice that she received coupled with advice that Mr Chandra received from his solicitor acting for him in the possession proceedings and from Wright Hassall who were acting for BPC at that time led to the realisation that the claimants each had a potential claim against BN arising out of Mr Lopeman’s involvement in, advice given in connection with and inadequate or lack of advice given to each in relation to the further finance and related security being sought in order to enable BPC to meet the payment then due to Costain.[63]Mr Lopeman’s professional involvement had been immediately prior to and on 20 May 2003 so that it would have been realised in about May 2009 that the claimants had potential claims against BN that might potentially be barred by limitation on 20 May 2009. In consequence, Wright Hassall was instructed to, and did, issue generally endorsed claim forms on 18 May 2009 endorsed as follows:(i) BPC’s Claim against BN and BN LLP “The Claimants' claim is for damages for breach of a contract whereby [BN] and/or [BN LLP] acted as solicitor to the claimant and/or negligence ... The said breaches and/or negligence arose: (i) Out of or in connection with the First and/or Second Defendant acting as solicitor for the Claimant in relation to various agreements entered into by the Claimant between 1999 and 2004 and in particular in relation to an agreement dated 18 July 2001 entered into by the Claimant with [the Bank] and [Costain] and referred to as the ‘Main Contractor’s Deed of Warranty’.(ii) Out of or in connection with the First and/or Second Defendant acting as solicitor for the Claimant in relation to finance arrangements and/or agreements between the Claimant and [the Bank] between 1999 and 2004 and, in particular, in relation to the funds loaned to the Claimant by [the Bank] by way of increased overdraft on or about 20 May 2003 and thereafter.” (ii) The Chandras’ claims against BN and BN LLP “(i) … in relation to a personal guarantee in favour of [the Bank] with the First Claimant signed on or about 20 May 2003. (ii) … in relation to a personal guarantee in favour of [the Bank] which the Second Claimant signed on or about 20 May 2003.”[64]It can be seen that the endorsement in relation to BPC’s action is sufficiently wide in its scope to cover the entirety of the claims now being brought whereas the endorsement in relation to the Chandras’ action is arguably, albeit not certainly, limited to specific breaches and negligence occurring on or about 20 May 2003. It would clearly be open to argument that the full claim that is now pleaded on behalf of the Chandras arises out of the same cause of action arising out of BN’s all-encompassing general retainer for the project or comprised further particulars of an existing claim or arose out of substantially the same facts as were already in issue and was therefore permitted by way of an amendment to the general endorsement.[65]It must be remembered that “claim” in the context of a general endorsement on a claim form means “cause of action” and a cause of action comprises “a duty, a breach and actionable damage”. In that context, a claim based on the events of 20 May 2003 is part of, or closely related to, a claim based on the pleaded events throughout the period from 1999 to 2003. This is confirmed by the draft amended general endorsement of the claim form which pleads the claim brought by BPC in identical terms as was pleaded in the original claim form save that a new cause of action based on concealment has been added as an additional claim.[66]There is no obvious reason why these claims were pleaded in separate actions rather than being pleaded in a consolidated action. From the moment these claim forms were issued and served, they have been treated as being a consolidated action and if they ever get to trial are bound to be tried together. They were served within time on 11 September 2009. There was no evidence of any letter before claim being served.[67]Stage 2: The original particulars of claim. The particulars of claim were settled by counsel and were served with the claim forms on 11 September 2009. Both particulars of claim were in similar form. Those served on behalf of BPC, in summary, pleaded:(1) The heading only referred to BN and described that firm as “Defendant”. However, it stated that the defendant became a limited partnership in or about March 2006.(2) BPC retained BN to act in all matters concerning the development.(3) The events of May 2003 are set out in detail.(4) The breach alleged was the failure to advise BPC as to the consequences of making the required payment to Costain on 20 May 2003 by way of an increase in its overdraft facility rather than through the mechanism of an anticipated further (third) finance agreement (referred to in the pleading as “an exit agreement”). These consequences included the possible and unacceptable risk of the Bank calling in the overdraft at any time and appointing receivers in the event of default and removing control of the development from BPC.(5) The damage alleged was the Bank’s demand for repayment of the outstanding loans totalling £11.9m arising out of the first and second finance agreements and the overdraft, its exercise of the step-in provisions of the Deed of Warranty, the sale of the hotel by the receivers and the settlement agreement.(6) The damages claimed were the additional losses flowing from the breach and the loss of the chance of selling the hotel itself and recovering the net profit that would have resulted.[68]The particulars of claim served on behalf of the Chandras in summary pleaded the same matters as were set out in the BPC particulars of claim save that they contained the additional allegations that BN was under a further duty to advise that the absence of a third finance agreement could result in the loss of the matrimonial home, on the risks of increasing the size of the personal guarantees, the effect of any default under the building contract if the guarantees were not extended and the meaning and consequences of the provision in the personal guarantees that they could be discontinued on the Chandras’ giving one month’s notice of discontinuance. The pleading also alleged that BN failed to given Mrs Chandra independent legal advice or to advise her that she should obtain independent legal advice.[69]Stage 3: The stay agreement. The parties agreed to a stay of both actions on 1 October 2009. This was for the three-fold purpose of awaiting the outcome of the possession proceedings and for further investigations in the light of that outcome and to allow for pre-action protocol investigations to take place.[70]Stage 4:The amended particulars of claim. No amendment was sought in relation to the general endorsements on the claim forms and no pre-action letters were served. The amendments were very extensive, diffusely drafted and included detailed submissions as to why they were not barred by limitation. They were described in the application notices seeking permission to amend as seeking to fulfil five purposes and that the original claims were filed to preserve the claims within the limitation period. The principal purposes were to take account of factual findings by the judge in the possession proceedings, to include the new claim in relation to the Deed of Warranty and to amend the originally pleaded claim to align it with the amended claims. It is noteworthy that the retainers that BN was subject to, the nature of the advice that should have been given, the damage and the damages are similar save for textual amendments and updating of figures. The differences are principally that the duty required of BN and the alleged breaches have been extensively amended by addition. Further, the causal link between the alleged breaches and the damages suffered is pleaded in new and considerable detail so as to show that it was BN’s breaches that led to the loss that the project suffered.[71]In order to particularise the alleged failure to advise on the measures that should have been taken to mitigate the risk of substantial losses flowing from the activation of the step-in provisions and to procure side contracts to achieve such mitigating measures, the claimants refer extensively to a second deed of warranty that it is alleged that they should have been advised to enter into with the Bank at the time of signing the Deed of Warranty and to an exit agreement under which the additional financing would be supplied. These suggested further agreements were not pleaded to be agreements that were being discussed but as examples of the only acceptable and practicable means whereby claimants could achieve appropriate and reasonable protection from the excessive risks that they were running from the step-in provisions that they had entered into.[72]Stage 5: Proposed amended general endorsements of the claim forms. These were served on 2 July 2012 and added nothing of substance to the original endorsements save: (1) In the Chandras’ action, the addition of the words:
“… in relation to the personal guarantee … signed on or about 30 October 2001 …” to the description breaches allegedly committed by BN. (2) In both actions, the addition of the words: “Further breaches arose out of or in connection with the concealment of evidence in relation to this Action by the First and Second Defendant as from 25 June 2003 and the said concealment continues to date.”
[73]Stage 6: Proposed re-amended particulars of claim in both actions. These were also served on 2 July 2012 and apart from textual and inconsequential amendments, they added passages in which the claimants’ contentions as to why the amendments should be allowed because they fell within sections 2, 14A and 32 of the Limitation Act were set out. They also added claims against BN LLP based on allegations that BN had deliberately destroyed documents and withheld advice in order to cover up its shortcomings in the advice that they had either given or failed to give previously. It is not clear whether a particular head of damages is claimed for this claim and whether a claim for the loss of the chance of succeeding at the trial in the claims that are pleaded is being advanced or whether these allegations are put forward solely so as to be able to rely on section 32 of the Limitation Act. (7) Section 14A of the Limitation Act[74]The claimants principally rely on section 14A of the Limitation Act for showing that their causes of action in negligence were not statute barred on 15 November 2011. This complex provision is as follows: 14A Special time limit for negligence actions where facts relevant to cause of action are not known at date of accrual.(1) This section applies to any action for damages for negligence, other than one to which section 11 of this Act applies, where the starting date for reckoning the period of limitation under subsection (4)(b) below falls after the date on which the cause of action accrued.(2) Section 2 of this Act shall not apply to an action to which this section applies.(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) below.(4) That period is either— (a) six years from the date on which the cause of action accrued; or (b) three years from the starting date as defined by subsection (5) below, if that period expires later than the period mentioned in paragraph (a) above.(5) For the purposes of this section, the starting date for reckoning the period of limitation under subsection (4)(b) above is the earliest date on which the plaintiff or any person in whom the cause of action was vested before him first had both the knowledge required for bringing an action for damages in respect of the relevant damage and a right to bring such an action.(6) In subsection (5) above “the knowledge required for bringing an action for damages in respect of the relevant damage” means knowledge both— (a) of the material facts about the damage in respect of which damages are claimed; and (b) of the other facts relevant to the current action mentioned in subsection (8) below.(7) For the purposes of subsection (6)(a) above, the material facts about the damage are such facts about the damage as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.(8) The other facts referred to in subsection (6)(b) above are— (a) that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence; and (b) the identity of the defendant; and (c) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant.(9) Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of subsection (5) above.(10) For the purposes of this section a person’s knowledge includes knowledge which he might reasonably have been expected to acquire— (a) from facts observable or ascertainable by him; or (b) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek; but a person shall not be taken by virtue of this subsection to have knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.[75]The claimants have three years from the “starting date” within which to bring their negligence claims. In this case, that date was triggered when the claimants acquired three essential sources of knowledge that they required to enable them to know of, formulate and bring their amended claims against BN. These were:(1) Section 14A(6)(a): Knowledge of the material facts about the damage in respect of which damages are claimed;(2) Section 14A(8)(a): Knowledge that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence; and(3) Section 14A(10)(b): Facts ascertainable by the claimants with the help of appropriate expert advice which it was reasonable for the claimants to seek.[76]Knowledge of material facts about the damage. It is obviously necessary to identify what the “damage” was that the claimants are now seeking damages for. Damage in the tort of negligence is not the same thing as damages. It is the harm that results from a negligent act or omission for which damages may be claimed as a remedy. When the negligent act in question has caused physical damage, it is not difficult to identify the damage since it is physical in nature and will be the subject of ocular proof. Where, however, the damage is economic in nature, it is less easy to distinguish it from the damages claimed for that damage. In this case, the claimants’ complaints are, in essence that they entered into a suite of contracts without being advised that those contracts exposed them to huge and unquantifiable financial liabilities and without being advised that they should take steps by way of side agreements with the Bank which would ameliorate those liabilities or renegotiate the step-in provisions with Costain or consider not embarking on the project at all.[77]The claimants’ position was similar to the claimants’ position in The Merrett Litigation Hallam-Eames v Merrett Syndicates [1995] Med LR 122, CA at page 126. . In that case, the Court of Appeal considered what degree of knowledge the Lloyd’s names on a long tail syndicate must have in order to trigger section 14A in respect of their claims against the managing agents and the auditors. The judgment of the court stated that the act or omission of which the claimant must have knowledge “must be that which is causally relevant for the purposes of an allegation of negligence.” The court therefore applied section 14A to the facts of the Merrett Litigation as follows:
“What on these principles are the facts which constitute the negligence of which the Names complain? It would in our view be incomplete to say that it was the writing of the run off reinsurance policies or the RITCs or the certification of the syndicate accounts. These facts in themselves do not amount to acts of which the Names would even prima facie be entitled to complain. It is necessary to add the allegation that the run off policies and the RITCs exposed the Names to potentially huge liabilities and that the certified accounts attributed values to IBNRs, none of which were in fact capable of reasonable quantification.”
[78]That case is remarkably similar to these two actions. Here, the claimants are complaining about their entering into contracts which were intended to earn them a profit but which have resulted in their incurring huge liabilities which were not capable of being quantified at the time of contracting. It was not therefore the signing of the Deed of Warranty or the failure to enter into side agreements with the Bank which is complained about. The complaint is that BN allowed the claimants to contract without warning them of the potentially huge and unquantifiable liabilities that all three claimants would run and without advising them to take steps that were open to them and which would ensure that the risks that they would otherwise run were substantially ameliorated.[79]The question is, therefore, when did the claimants first know that BN’s negligence had exposed them to huge and unquantifiable liabilities? The answer is that the claimants did not know that this was so until they had read and digested the judgment of David Richards J.[80]It is possible to argue that that first date of knowledge was two months earlier on 20 November 2009 when Mr Chandra first read the two letters that had been disclosed in the possession proceedings that had been written by the Bank’s solicitor to the Bank in October 2000 which spelt out the ready way that the step-in provisions in the Deed of Warranty could be manipulated by a contractor and the huge and unquantifiable financial risk that a lender or borrower affected by those provisions would run in signing up to them.[81]However, it is unrealistic to suggest that that first reading of the two letters was sufficient to open Mr Chandra’s eyes to the possibility of a negligence claim against his solicitor in excess of £4m arising out of a failure by that solicitor to provide adequate advice on a complex series of contracts over a three-year period.[82]The reality is that the claimants did not have the required knowledge until David Richards J had made a series of critical findings in his judgement. These included the findings about the meaning, scope and financial consequences of the step-in provisions; about how easy it was for step-in to be triggered by Costain without BCP being able to prevent it; about the ease with which the Bank could create a situation where it was entitled to appoint receivers and trigger the step-in provisions without BCP being able to prevent it; about the drastic financial consequences of the stepping in of a new employer that included the suspension of work, the consequent loss of £1.8m in liquidated damages and the settling of the final account at a figure at least £3m more than appeared justifiable and about the entitlement of the Bank to recover its entire loss from the claimants even though BCP had lost control of the project and the hotel and had ceased to be the employer under the building contract. It follows therefore that the three-year period only started when the judgment became available on 28 January 2010.[83]Knowledge that the damage was attributable to the negligence complained of. Until the judgment of David Richards J was handed down, the claimants believed that their losses and liabilities were attributable to the Bank’s stubbornly blind behaviour in triggering the losses. That had been the basis of the Chandras’ defences over the five years of the possession proceedings and it was why the parties agreed to enter into the stay agreement in October 2009 to await the result of the possession action since the judgment would provide a valuable guide to the existence, nature and extent of any claims against BN. Thus, it was only when the judgment was available that it was clear that the damage was not attributable to the Bank but to BN’s negligence in not advising properly about the operation of the step-in provisions of the Deed of Warranty taken in conjunction with the debenture, the guarantees, the appointment of receivers following the Bank calling in its loans, the settlement agreement with Costain and the recoverability of the entirety of the Bank’s losses from the claimants.[84]Expert advice. The parties, in the stay agreement, agreed to stay the original actions until the judgment in the possession proceedings was available so as to be able to await the outcome of the possession proceedings, to undertake further investigations in the light of that outcome and to allow for pre-action protocol investigations to take place. The parties, and in particular the claimants, wanted to draw on the findings of fact and law of the judge in order to determine whether the claimants had a claim at all against BN and, if so, whether that claim could be based on failings by BN in relation to the terms of the step-in provisions of the Deed of Warranty, the absence of ameliorating provisions and the liabilities that they could incur if the step-in provisions took effect.[85]This gave rise to an unusual application of section 14A(10): (10) For the purposes of this section a person’s knowledge includes knowledge which he might reasonably have been expected to acquire—(a) from facts observable or ascertainable by him; or(b) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek; but a person shall not be taken by virtue of this subsection to have knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.[86]The claimants’ amended claims were critically dependent upon knowledge of, amongst other matters, whether their losses had been caused by the operation of the step-in provisions or by the unreasonable actions of the Bank in calling in their loans in breach of fiduciary duty and whether the liabilities that the Bank had incurred following their activation could be recovered from the claimants or had to be borne by the Bank. These matters were factual in content which the claimants could only reasonably discover with the help of appropriate expert legal advice which they had taken all reasonable steps to obtain. It is, of course, unusual for claimants to acquire knowledge of latent damage that has been caused by the negligence of another from a judgment in a related case that does not involve that other person. However, the knowledge needed by the claimants in order to bring the amended claim was vitally dependent on legal expertise that was able to identify the true meaning and effect of complex step-in and related contractual provisions and on the fact-finding expertise of a kind that can be provided by a judge. The claimants undoubtedly acquired knowledge that was essential for them to bring their amended claim against BN from the judge’s judgment and which could only be obtained with appropriate expert legal and fact-finding advice which it was reasonable for them to seek. Moreover, in entering into the stay agreement, the parties were agreeing to give themselves the opportunity of considering, and if necessary relying on, the expert views of a judge about relevant contract terms and surrounding factual circumstances. The parties were, therefore, agreeing that they would stay the actions brought against BN to enable each of them to ascertain relevant facts with the help of the findings of the judge in the possession proceedings that it was reasonable for them to seek and, on receiving those views in the judgment, would if necessary to rely upon them.[87]It follows that section 14A(10) provides a further reason why the relevant starting date in this case was no earlier than 28 January 2010.[88]Starting date. In order to be able to rely on section 14A, the claimants must be brought within the time period defined in that section, namely within three years from:
“(5) … the earliest date on which the plaintiff first had both the knowledge required for bringing an action for damages in respect of the relevant damage and a right to bring such an action.”
[89]The submissions on behalf of the defendants suggest that that date must be a date prior to 18 May 2009 when the claim forms were issued since there must have been sufficient knowledge to have enabled the actions to be started. However, the original claims were fundamentally amended by the first set of amendments, particularly in their reliance, for the first time and as a central core of the amended claims, on the alleged negligence in connection with the Deed of Warranty. The original claims on the other hand, were based on alleged negligence that was confined to the further lending agreement and the further guarantees that were put in place on May 2003. Thus, the knowledge needed for bringing the original claims was fundamentally different to the knowledge needed to bring the amended claims.[90]Thus, the earliest date when the claimants had sufficient knowledge to bring the amended claims was not when highly significant documents were discovered by Mr Chandra on 20 November 2008 but was the date of the judgment in the possession proceedings on 28 January 2010. However, another unusual feature of these actions is that they were subject to the stay agreement between 1 October 2009 and the Master’s endorsements on 15 November 2011 See paragraphs 17 – 21 above. . The parties had agreed that, in that period, the actions, and by necessary implication any other actions, could not be proceeded with against BN and BN LLP so that the claimants were not entitled to proceed with the amended claims until the court had made an order whose effect was to permit the claimants to disregard the terms of the stay agreement. Until 15 November 2011, therefore, the claimants “had no right to bring” the amended claim which they had to have to trigger the starting date. This is because section 14A(5) requires the claimants both to have acquired the relevant knowledge and to have the right to bring the action. They acquired the first on 28 January 2010 but the second only on 15 November 2011 and, surprising as it seems, the starting date of the three year period allowed to the claimants to bring their amended claim under section 14A was also the date on which the new claims were brought. (8) Conclusion – Section 14A[91]The claimants are entitled to rely on a combination of sections 14A(5), (6)(a), (8)(a) and (10)(a) to show that their amended claims are not barred by limitation. (9) The original claims and limitation[92]The primary period of limitation requires the actions in negligence to be brought within six years from the date on which the cause of action in negligence arose. These claims arose when the claimants first suffered damage, namely the incurring of losses and liabilities flowing from the additional financing agreements entered into on 20 May 2003. The earliest date on which that occurred was the date in May 2004 when the manager of the project appointed by the SPV to run it following the step-in by the Bank and the receivership of BPC reached an overall settlement of Costain’s Final Contract Sum under the building contract. This event crystallised the claimants’ overall liability and their losses. The critical date was in fact a little earlier, namely when the hotel was sold in March 2004 or even when the receivership occurred and Costain agreed to restart and complete the building contract pursuant to the Bank’s guarantee to fund the entirety of the costs of completion. This would crystallise the accrual date as being within the time frame of late August to mid-September 2003.[93]On this basis, given that the claim forms in both actions were issued on 18 May 2009 less than six years after any of the potentially critical dates that I have referred to, the initial claims in negligence are not statute-barred but were brought within the primary period of limitation.[94]However, the amended claims did not arise out of the same or similar facts since the nature and scope of the breach or breaches is so radically different that the claims arose out of different causes of action. These claims, therefore, are only capable of being brought if they can be brought within the scope of section 14A. That is why the thrust of the defendants’ submissions was devoted to an attempt to show that the claimants could not rely on section 14A. Issue 4: Should the endorsements be revisited or set aside and, if so, on what terms? (1) Introduction[95]The test for determining whether the endorsements on the application notices granting permission to amend the particulars of claim should be revoked or set aside has already been set out See paragraphs 30 - 32 above. . I must consider whether it would be just to set aside or revoke that order or to vary it and in considering the justice of the situation, I should apply so far as is possible the overriding objective set out in CPR1. That, in summary, provides for the desirability of ensuring that parties are on an equal footing, of saving expense, of ensuring the expeditious disposal of cases, of the need to allot an appropriate share of the court’s resources to these cases and of dealing with the cases in a proportionate manner taking account of the size of the claims, the importance of the case, the complexity of the issues and the financial positions of each party.[96]The test is, therefore one of complexity whose touchstone is the structured exercise of discretion in a just manner. In this particular case, I must take full account of the unusual procedural situation in which a full-blown procedural attack has been launched on a sizeable claim at such an early stage in its procedural history that there have yet to be any pleadings or structured responses from the defendants or any meaningful disclosure of their cases. Further significant considerations are the age of the facts giving rise to the disputes which arose between ten and thirteen years ago; the claimants, including a limited company, are representing themselves and are lacking in financial resources; the claimants have not yet instructed legal and other experts to advise on the claim and to provide expert evidence at the trial; the disclosable documentation is potentially vast; parts of the defendants’ relevant documentation appears to be deficient and unobtainable; the claims are very large and not obviously deficient or speculative and the claims are presently pleaded in a diffuse, prolix and argumentative fashion. A further significant matter to take into account is that the parties agreed to stay the proceedings for what turned out to be a period of nearly 30 months in order to enable them to take account of the findings of David Richards J in what turned out to be a highly significant judgment in the possession proceedings.[97]In fairness to the defendants, they have taken their stand on their allegation that the amendments should not be allowed given the statutory prohibition on permitting new causes of action to be added by amendment when there are good grounds for considering that those causes of action are statute-barred. The principle reason for this statutory provision is that once the amendment has been permitted, the doctrine of relation back applies so that the relevant date for determining whether the new cause of action is statute-barred is the date of the issue of the original claim and not the date of the amendment order. Nonetheless, the date for testing whether the amendment should be allowed is the date that the order is made. In this case, therefore, I must determine whether the new causes of action were statute-barred on 15 November 2011 and, if I decide that they are not, the claim will be added and, from that date, will only be statute-barred if that was the position on 18 May 2009. This is the effect of my having to decide whether there is sufficient evidence to show, at this early stage, that the claims are within time but, if I decide that they are, the limitation issue may still be raised and tried out but by reference to a less favourable date for a defendant than is the case when the amendment was permitted.[98]I propose to address certain matters relating to the pleadings which must be resolved at an early stage, then consider briefly the remaining grounds put forward by the defendants in support of their setting aside or revisiting applications and then decide whether to accede to the claimants’ applications. (2) One defendant or two defendants[99]The defendants were insistent at the hearing that the only defendant that remains in the actions is BN even though BN LLP was joined and served as a second defendant from the outset. The basis of this contention appeared to be that when the particulars of claim were drafted and served, they only pleaded claims against BN so that, by the application of the conventional rules of pleading, the claims against BN LLP had been abandoned. This was a somewhat confused contention given that, as has already been observed, DACB in the stay agreement described their client (in the singular) as being BN LLP See paragraph 21 above where it is decided that, nonetheless, the agreement binds both BN and BN LLP and that both were treated as being and remaining defendants following the stay. . However, as has also been observed, the particulars of claim in their original form do not on analysis abandon the claims against BN LLP even though their name is dropped from the title to the particulars of claim. In the body of the pleading, it is pleaded that “the defendant” [i.e. BN] “became a limited liability partnership formed in or about March 2006”.[100]BN LLP was originally joined as a second defendant because the firm had become a limited partnership and there was uncertainty as to whether or not BN would contend that it no longer existed or was no longer covered by insurance or whether BN LLP would accept liability for, and was covered by insurance for, the acts and defaults of BN that had occurred prior to the partnership incorporation. It is clear to me that BN LLP remained as a second defendant following the service of the particulars of claim, particularly as no attempt was made to amend the claim form to delete BN LLP as a second defendant. I was informed that BN LLP has been dissolved in about 2011 which adds a further dimension to this procedural conundrum and, moreover, the claimants added a new cause of action against BN LLP based on its alleged cover up of material facts and its destruction or mislaying of various relevant documents in the years after is incorporation.[101]I therefore conclude that both BN and BN LLP have always been, and remain, defendants to these actions, both were parties to the stay agreement and both were applying to set aside the amendment orders which were made in relation to both defendants about amended particulars of claim that were pleaded against both. It will be for the case managing judge after defences have been served to determine whether both defendants should remain in the actions. (3) Amended endorsements[102]The claimants have applied for permission to amend the claim forms by adding new causes of action as already detailed above. These new causes of action are not barred by limitation and I will permit the amendments to be made and for the claim forms to be reserved in their amended form. I stress that this decision is taken solely on the basis of the new claims not being statute-barred. If the new claims should be struck out on abuse of process grounds or on any other grounds, it will be for the case manager following an appropriate application to deal with a strike out application and, if necessary, give effect to a decision to strike out on those grounds. (4) Re-amendments[103]The green re-amendments for which permission is sought will be permitted on the same grounds as the amended endorsements have been dealt with. They will be permitted because they do not introduce new claims barred by limitation. Any other deficiencies, if any, in the pleading or in the case being advanced based on fraudulent or deliberate concealment or cover up or destruction of documents must be dealt with as a case management matter at a later stage. (5) Other grounds for setting aside or revoking[104]Introduction. I will briefly deal with the remaining grounds for setting aside or revoking the Deputy Master’s endorsements that were touched on at the hearing See paragraph 33 above. .[105]Ground 1: Amendments statute-barred by limitation. I have rejected this ground since the original claims and the amended claims were not, at the date respectively of the original claim form and the 15 November 2013 for the amended particulars of claim, statute-barred.[106]Ground 2: Inconsistencies with the judgment of David Richards J. My analysis of the judgment of David Richard J and of the existing particulars of claim shows that there are no material inconsistencies between the two and certainly no departure which would give rise to a refusal to allow the amended particulars of claim to stand.[107]Ground 3: Abuse of process. I consider that this ground, to the effect that the claimants’ section 32 arguments are an abuse of process in making unwarranted and unsupported allegations including allegations of dishonesty and fraudulent behaviour, if they are maintained, are a matter for case management by the judicial case manager when the budgeting and initial case management decisions are being taken.

Conclusion – Issue 4

[108]The overall conclusion, in the light of this surprisingly complex procedural consideration of amendment applications, is that the defendants’ applications to strike out the orders permitting amendment and to revisit and revoke those orders are dismissed, and that the claimants’ applications for orders that the court should draw up, seal and serve Master Eyre’s orders of 15 November 2011, to amend and reserve the claim forms and to re-amend the particulars of claims in both actions are allowed with the costs of the amendments and re-amendments to be reserved to the case manager and that it is declared that both BN and BN LLP have always been and remain as defendants to both actions.[109]I add this postscript to this decision. Had I been persuaded that the new claims and causes of action added by the amendments were statute-barred on 15 November 2011 and that the three-year period for service permitted by section 14A of the Limitation Act had expired prior to that date, I would still have exercised a residual discretion that I have to dismiss the applications in the light of In the matter of L and B (Children).[110]The justice of the case is overwhelmingly in favour of the orders that were made by Master Eyre. Had Mr Chandra and the other claimants issued fresh claim forms (or even one claim form with three claimants) with the amended particulars of claim on 15 November 2011, they would have been entitled to maintain these fresh claims in fresh claim forms and for any limitation issue to be argued at trial on the basis that time stopped running on 15 November 2011.[111]However, the claimants could not have done that since the existing actions were still stayed and the terms of the stay agreement would have precluded them from issuing fresh claim forms covering the same subject-matter that was the subject of the stayed actions until the stays had been lifted. The defendant’s solicitors had been given the opportunity to agree to the lifting of the stays but declined that request. Having declined, albeit on what it contended were good grounds, it would not be fair to deprive the claimants of the benefits of their amendment permission orders.[112]It is true, of course, that by permitting the amendments, the claimants would obtain the benefits of the relation back doctrine since the date on which time is deemed to have stopped running for limitation purposes would be 18 May 2009 and not 15 November 2011. However, no injustice would arise in the circumstances that I have assumed since BN and BN LLP had agreed to the stay agreements and, by inference, had agreed that the limitation clock should not run, or start to run, in the period when the agreed stays were in force.[113]Overall, therefore, it follows that even if the claimants had failed in their limitation arguments, I should still have dismissed the defendants’ applications and directed that the Master’s orders should be drawn up, sealed and served.[114]I propose, unless persuaded otherwise at the handing down, to direct that the claimants’ costs of the applications, save those consequential on the amendments and re-amendments, are to be paid by the defendants forthwith, such costs to be the subject of summary assessment at the handing down hearing or on paper following the service of a schedule of costs and written submissions after the handing down of this judgment. I will revisit this proposed order if a different order is sought by any of the parties. Issue 5: Future of the actions[115]These actions cry out for transfer to the Technology and Construction Court sitting in the Rolls Building, Fetter Lane, London at the earliest possible moment. They have all the hallmarks of actions that are suitable for trial in that court and for such a transfer to be directed. From the moment of transfer, they will be case managed by the trial judge being a High Court judge of that Court. I propose to order that transfer and to direct that the papers should be placed before a nominated judge of the Technology and Construction Court on transfer for that judge to give initial case management directions as to how the actions should proceed. This will, however, be a matter for discussion at the handing down. Overall Conclusion[116]I conclude:(1) The Master made valid orders which he was entitled to make on 15 November 2011 that the claimants each have permission to amend the relevant particulars of claim in the form attached to the relevant application notice.(2) The Master did not revoke these orders in issuing directions on 16 January 2012 that these orders should not be made without a hearing.(3) The defendants’ applications to revisit and revoke and to set aside the Master’s orders dated 15 November 2011 be dismissed.(4) The claimants’ applications that the orders of the Master dated 15 November 2011 should be drawn up, sealed and served on the parties by the court are granted.(5) It is declared that the claims and causes of action set out in the amended and re-amended claim forms and particulars of claim were brought within 3 years of the starting date as defined in section 14A of the Limitation Act 1980.(6) It is declared that both the first and second defendants were joined into the actions issued on 18 May 2009 and that both defendants have been parties ever since and remain parties to the date of this order.(7) These actions are to be transferred to the Technology and Construction Court forthwith. That transfer is to be effected by the transfer of the Court files from the Queen’s Bench Registry with a copy of the judgment of HH Judge Anthony Thornton QC and this order to the Technology and Construction Court Registry within 7 days of the sealing of this order. All further case management directions, including initial directions issued on transfer, are to be left to the Technology and Construction Court.(8) The costs of and occasioned by the amendment of the claim forms and the amendment and re-amendment of the particulars of claim are to be reserved to the case managing judge.(9) The claimants’ costs of these applications are to be paid by the defendants and are to be the subject of summary assessment if not agreed, such assessment to be undertaken on paper pursuant to directions to be issued at the handing down by HH Judge Anthony Thornton QC.(10) Liberty to apply to the case manager on notice. HH Judge Anthony Thornton QC.

Cited in 1 later judgment