“94. … I think that the question is whether the claim has no real prospect of succeeding at trial and that it has to be answered having regard to the overriding objective of dealing with the case justly. But the point which is of crucial importance lies in the answer to the further question that then needs to be asked, which is - what is to be the scope of that inquiry? 95. I would approach that further question in this way. The method by which issues of fact are tried in our courts is well settled. After the normal processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. To that rule there are some well-recognised exceptions. For example, it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lord Woolf said in Swain v Hillman … that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all.”
“8. I regard the distinction between a realistic and fanciful prospect of success as appropriately reflecting the observation … that the defence sought to be argued must carry some degree of conviction. Both approaches require the defendant to have a case which is better than merely arguable, as was formerly the case under R.S.C. Order 14. Furthermore, bothCPR 13.3 (1) and 24.2 have provisions whereby, for the purposes of doing justice between the parties, the court can order that judgment be set aside under 13.3.1(b) if it appears to the court that there is some other good reason to do so, and, under 24.2(b) that summary judgment be withheld on the ground that there is some compelling reason why the case or issue should be disposed of at trial. 9. In my view, the only significant difference between the provisions ofCPR 24.2 and 13.3(1), is that under the former the overall burden of proof rests upon the claimant to establish that there are grounds for his belief that the respondent has no real prospect of success whereas, under the latter, the burden rests upon the defendant to satisfy the court that there is good reason why a judgment regularly obtained should be set aside. That being so, although generally the burden of proof is in practice of only marginal importance in relation to the assessment of evidence, it seems almost inevitable that, in particular cases, a defendant applying underCPR 13.3 (1) may encounter a court less receptive to applying the test in his favour than if he were a defendant advancing a timely ground of resistance to summary judgment underCPR 24.2 .”
“209. … the question was whether the payment of a bribe to an agent of the defendant had come to the attention of a limited company [X] so as to trigger [X’s] obligation as the borrower under a debenture to make disclosure of it to its lender Skillglass. It was proved that one of [X’s] directors, a Mr Webster, knew of the bribe, but the evidence showed that he did not communicate it to his colleagues on [X’s] board. 210. At paragraph 98, Moore-Bick LJ (with whom the other members of the court agreed) said this: “The question in the present case is whether information in the case which comes to the attention of one director, but which he has not shared with the rest of the board, is to be treated as information in the possession of the company. In MAN v Freightliner I expressed the view that where the board of directors is properly to be regarded as the directing mind and will of the company in relation to a particular transaction the knowledge of each is to be attributed to the company. That case, however, was concerned with the liability of the company for a false statement made in a written contract which the board as a whole had resolved that the company should enter into. The present case differs in as much as it is concerned with the acquisition by the company of information, but there are nonetheless certain similarities arising from the fact that the members of the board can generally be regarded as collectively representing the company. In general, therefore, I think that where information relevant to the company's affairs comes into the possession of one director, however that may occur, it can property be regarded as information in the possession of the company itself. In my view that presumption informs the present contract and points to the conclusion that information in the possession of Mr Webster relating to the bribe is to be regarded as information in the possession of PAL itself.” “The question in the present case is whether information in the case which comes to the attention of one director, but which he has not shared with the rest of the board, is to be treated as information in the possession of the company. In MAN v Freightliner I expressed the view that where the board of directors is properly to be regarded as the directing mind and will of the company in relation to a particular transaction the knowledge of each is to be attributed to the company. That case, however, was concerned with the liability of the company for a false statement made in a written contract which the board as a whole had resolved that the company should enter into. The present case differs in as much as it is concerned with the acquisition by the company of information, but there are nonetheless certain similarities arising from the fact that the members of the board can generally be regarded as collectively representing the company. In general, therefore, I think that where information relevant to the company's affairs comes into the possession of one director, however that may occur, it can property be regarded as information in the possession of the company itself. In my view that presumption informs the present contract and points to the conclusion that information in the possession of Mr Webster relating to the bribe is to be regarded as information in the possession of PAL itself.”
“212. The application of that purposive principle to the question whether a payment to the agent of a limited company has been sufficiently disclosed to deprive it of the character of a bribe is confirmed by the following passage in the judgment of Tuckey LJ in Wilson v Hurstanger …: “What amounts to sufficient disclosure for these purposes? Bowstead says: Consent of the principal is not uncommon. But it must be positively shown. The burden of proving full disclosure lies on the agent and it is not sufficient for him merely to disclose that he has an interest or to make such statements as to what could put the principal on enquiry: nor is it a defence to prove that had he asked for permission it would have been given. I think this is an accurate statement of the law. Whether there has been sufficient disclosure must depend upon the facts of each case given that the requirement is for the principal's informed consent to his agent acting with a potential conflict of interest.” 213. Tuckey LJ's analysis was concerned not with the question whether disclosure to one director rather than to the whole board was sufficient, but with the quantity or quality of the information communicated. Accordingly, Wilson v Hurstanger Ltd does not in terms answer the question in issue in this case. But in my judgment it points the way to the answer. A payment to the agent of a company is by the law relating to bribery required to be disclosed to the company so as to enable it to make an informed decision whether to permit the agent to do something giving rise to a potential conflict of interest. Such an informed decision can in general be made only by the company's board. Contrary therefore to the general rule propounded by Moore Bick LJ in Jafari-Fini … I conclude therefore that a payment by a person dealing with a company to a managing director of the company charged with the negotiation on the company's behalf is only disclosed to the company by the director if that disclosure is made to all its directors or to a properly convened board meeting attended by a sufficient quorum. 214. In the present case the question is as to the disclosure required to be made by the director himself, where the payer took no steps to make the disclosure, leaving it to the payee director. It may be that a less stringent rule is to be applied where the payer makes the disclosure. For example, Mr Davidson conceded that disclosure by Ross River to the company's solicitors would have sufficed. But where (as here) the only disclosure made by the payee director was to one of his colleagues on the board, that was in my judgment insufficient to bring the existence of the payment to the knowledge of the company. 215. It may also be that where the payee is not the managing director or (as here) the chief executive, the payee may make sufficient disclosure by telling the MD or CEO. As Mr Davidson put it in closing: “If you disclose to someone who is the leader, that is good enough. But if you are the leader, merely disclosing in a vague way to a follower is not good enough”.” “What amounts to sufficient disclosure for these purposes? Bowstead says: Consent of the principal is not uncommon. But it must be positively shown. The burden of proving full disclosure lies on the agent and it is not sufficient for him merely to disclose that he has an interest or to make such statements as to what could put the principal on enquiry: nor is it a defence to prove that had he asked for permission it would have been given. I think this is an accurate statement of the law. Whether there has been sufficient disclosure must depend upon the facts of each case given that the requirement is for the principal's informed consent to his agent acting with a potential conflict of interest.”
“The allegation in respect of the PCL transaction … that “Mr Foley was instructed to convince Mr Ricotta to take an early buy out which was agreed in early 2015 on the instruction of Mr Bernard Berson Chief Executive Food service Bidvest Group” is denied. Paragraph 19.5 above is repeated.”
“[D15] is my husband and business partner, and ACL (D13) and AHR (D14) are companies of which he and I are directors and shareholders. ACL’s business is the design, project management and construction of custom cold store solutions. AHR hires cold store refrigeration equipment. We are a small, family business and AHR has been operating over 23 years.”
“From the very beginning of our working relationship with [C], it became normal practice for us to invoice other suppliers in lieu of [C], and likewise for us to pay other suppliers on their behalf. Sometimes we were also paid by companies that were financing the work via a third party lease or similar. It was therefore completely normal for payments to be made to and by other entities in respect of work done for [C].”
“… there were occasions when ACL would invoice [C] directly and other occasions when it would invoice a different entity. If the latter, it was always at the instruction of [D1] and, at least on some occasions, with the agreement or knowledge of [C1’s] finance director, Colin Jones. Likewise ACL sometimes received payments directly from [C], sometimes from other entities; often where a third party lease was being used to finance the project. On all occasions to the best of my recollection, there was a prior discussion via telephone or email with [D1]; it was on [his] instructions that payments were arranged. [He] often asked ACL to pay [C’s] contractors on [C’s] behalf. Sometimes we were asked to invoice [C] for the money using a different narrative. We understood [D1] to be acting with the full authority of [C]. We always knew our relationship to be with [C], and we expected to be paid by [C]; but payments were sometimes arranged from or to other entities on [C’s] behalf and for its convenience.”
“At no point did we make a payment on [C’s] behalf in the belief or with the knowledge that it was to benefit [D1] personally.”
“I do not accept that making a payment on the instructions of [D1] meant that that payment was made for his benefit as Stephen Bender seems to say in … his statement. I made very many payments on [D1’s] instructions during the course of our business relationship and always believed that they were for the benefit of and in the course of [C’s] business. Over a 3½ year period we carried out something like£6m of business on [C’s] behalf. At no time did we believe or suspect that [D1] was acting contrary to [C’s] interests if indeed this ever was the case.”
“We understood from [D1] that ZZT was an employment agency or HR function, responsible for personnel on a number of Bidvest’s projects. We did not at any point believe that ZZT was a company controlled by [D1] or in which he had any shareholding, nor do I now believe that to be the case. I do not understand Stephen Bender’s assertion that payments to ZZT pursuant to genuine transactions were in any way for [D1’s] benefit.”
“… the invoices … were raised in accordance with [D1’s] specific instructions. [He] provided us with the narrative for each invoice. The narratives that he provided did not actually reflect the work that ACL had done and was seeking payment for. All four invoices related to genuine work that was done by ACL for [C] across a number of projects. [D1] knew precisely what work each invoice related to and there was no intention to mislead [C]. Quite the contrary, we only did what we were told in order to get paid.”
“3. I was shocked when I discovered that [C] wished to sue me and PIL. I will go into detail regarding my and PIL’s dealings with [C] below, however in summary, PIL’s involvement with [C] has been limited to providing financing to it in entirely above-board transactions that were mutually beneficial to both companies. I have met several [C] executives (including at a golf day) who have discussed the deals PIL did with it and never gave any hint that there were any concerns regarding the probity of the deals. 4. It is surprising, to say the least, that now that [C] have taken the benefit of the financing PIL has provided to it, it seeks not only to resile from those transactions but also to extract substantial additional sums from PIL in circumstances in which, insofar as I can see, PIL has done nothing wrong. 5. I am aware that [C’s] case rests largely upon allegations that PIL (and I) paid bribes to [D1], one of its former directors. I reject this allegation in the strongest possible terms. 6. Neither I nor PIL have ever paid any bribes to [D1] or any of his companies. Indeed I, personally, have not made any payments whatsoever. All of the payments [C] complains of were made by PIL and so I cannot understand the basis upon which it seeks summary judgment against me personally. 7. The payments PIL made were legitimate payments which fell into two categories. First, there were payments PIL made to a company called Tolcarne, which [D1] owned, for vehicle storage in the UK. Secondly, there were payments PIL made to PAL and PAF, companies [D1] owned or had an interest in, on behalf of PCL Transport Ltd (‘PCL’), as payment for a fridge unit in Ireland PCL Transport had purchased from [D1].”
“I would also be extremely surprised if other senior executives at [C] were unaware of the payments PIL was making to Tolcarne. They must have known that the Mothball Fleet, or part of it, was being stored at a site not owned by [C] (or else, where did they think the fleet was?). They must also have known that [C] was not paying for the parking/storage of the fleet. I simply cannot believe that the parking/storage of such valuable assets would not have been the subject of some monitoring or control by [C] and, assuming it was, [C] must have known that parking/storage was being provided by Tolcarne, paid for by PIL. This is an issue I would certainly wish my legal team to explore with [C’s] witnesses at trial, as well as their knowledge of [D1’s] link with Tolcarne.”
“… Mr Neville's assumption is wrong. The Mothball Fleet represents a tiny fraction of [C’s] overall fleet, and a large number of vehicles are stored at Skelmersdale. Payment for this storage is made (by [C], not the companies from which it hires vehicles) to a Mr Richard Tapper who owns the site. No one at [C] knew [PIL], was making payments, purportedly in respect of the cost of storing the Mothball Fleet at Skelmersdale, but even if it had, there is no reason that anyone at [C] would have thought that such payments would benefit [D1].”
“106. The essential character of a bribe is … that it is a secret payment or inducement that gives rise to a realistic prospect of a conflict between the agent's personal interest and that of his principal. The bribe may have been offered by the payer or sought by the agent. There is no need to establish dishonesty or corrupt motives. This is irrebuttably presumed …. A bribe encompasses not just a payment of money but the conferring of any advantage or benefit, and may be an actual benefit or merely the promise of a benefit held out by the payer or an expectation of one. The motive for the payment or inducement (be it a gift, payment for services or otherwise) is irrelevant. In Fiona Trust v Privalov [2010] EWHC (Comm) at para 73 Andrew Smith J contemplated that moonlighting for a person engaged in transactions with the principal might well give rise to a conflict between the agent's interest and duty and that the reward for his services might count as a bribe. 107. The payments (or other benefits) do not have to be made directly to the fiduciary. Bribes may be paid to third parties close to the agent, such as family members or discretionary trusts, or simply to those whom the agent wishes to benefit. The test is whether the payment (or other benefit) puts the fiduciary in a real (as opposed to a fanciful) position of potential conflict between interest and duty.”