Case No: HC-2016-001877
Neutral Citation Number: [2016] EWHC 3186 (Ch)

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

The Rolls Building
7 Rolls Buildings
Fetter Lane
London

Thursday, 17th November 2016

Before:

MASTER MATTHEWS

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B E T W E E N:

BOOKER & Anor
Claimants/Respondents

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RT FINANCIAL SERVICES UK LIMITED	
Defendant/Applicant

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MS MARIA MULLA appeared on behalf of the CLAIMANTS/RESPONDENTS
MR ADAM TEMPLE appeared on behalf of the DEFENDANT/APPLICANT
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JUDGMENT
MASTER MATTHEWS:

1	I would like to begin by thanking both counsel for very helpful, detailed submissions.  In the time available I will not be able in this judgment to deal with every small point made in argument, but I will deal with the main points that were made to me.

2	This is an application, by notice dated 3rd March 2016, on behalf of the defendant, RT Financial Services UK Limited, for, either, summary judgment pursuant to Part 24 of the CPR against the claimants on the whole claim, or alternatively part of it; or an order striking out the claim under rule 3.4 of the Civil Procedure rules, or alternatively striking out part of it; and, to the extent that the claim is allowed to proceed in part, that the claimants should be required to amend their particulars of claim so as to limit them to transactions and losses that postdate 9th March 2009; and then for an order that the claimants pay the defendants costs, or alternatively the costs of the proceedings to date.  Then there is an additional claim for further or other relief.

3	That application is made in the context of a claim that was begun, by a claim form dated 9th March 2015, by Mr and Mrs Booker, the claimants, against the defendant, RT Financial Services, in broad terms for misadvising the claimants, as a result of which they claim to have suffered significant losses.  It was followed, on 7th July 2015, by a substantial document compromising particulars of claim over some 15 pages.  I will come back to the particulars of claim in a moment.

4	The application before me is supported by evidence; that is, the witness statement of Charlotte Lucy Traff of 3rd March 2016, and subsequently a witness statement of Mr Rani Haim Terdiman dated 25th July 2016.  

5	The application is opposed by evidence from Mr Gareth Ward Fatchett dated 8th July 2016, and then further witness statements, one from the first claimant dated 6th July 2016; one from a Mr Jack Markovic dated 23rd June 2016; one from his wife, Elizabeth Markovic dated 23rd June 2016, and finally one from Mr Moshe Kedar Hadari dated 6th July 2016.  I have read all of these witness statements.

6	So far as the witness evidence is concerned, there was no application for cross-examination of any of the witnesses.  Therefore in ordinary circumstances I would not be able to find that anything stated in this witness evidence was untrue.  The only basis upon which the court could normally do so without the benefit of cross-examination would be if the court found that the written evidence was simply incredible.  I record here that no one asked me to treat any of the evidence in this case as incredible and therefore I proceed on the basis that none of it is.

7	However, in so far as this is a claim to strike out the claim under rule 3.4 of the Civil Procedure Rules, in fact I must assume in favour of the claimants that they would be able to prove the allegations of fact which they make, certainly those in the particulars of claim, and (in so far as it matters for the purposes of this application) the allegations which they make in the witness statements as well. However, there are one or two wrinkles in relation to that, and I shall return to them later.

8	I turn to the application, so far as it proceeds under rule 3.4.  Under paragraph 2 of rule 3.4 it is provided that:

“The court may strike out a statement of case if it appears to the court -

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b) that the statement of the case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or

(c) that there has been a failure to comply with a rule, practice direction or court order.”

The remainder of the rule is not relevant for present purposes.

9	So far as the application is brought under Part 24, it will be necessary for me to apply the test set out in rule 24.2 of the Civil Procedure Rules, which reads:  

“The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if – 

(a) it considers that - 

(i) that claimant has no real prospect of succeeding on the claim or issue; or 

(ii) that defendant has no real prospect of successfully defending the claim or issue; and 

(b) there is no other compelling reason why the case or issue should be disposed of at a trial.”

10	In this particular case, that part of the application which is concerned with striking out is based on a limitation defence.  That is referred to in particular in the witness statement of Miss Traff from paragraphs 58 onwards.  For the purposes of my judgment, I am not going to take time to read them out, but those paragraphs, 58 through to 70, should be incorporated, or treated as incorporated, in this judgment.

11	Then there are in the witness statement of Mr Gareth Fatchett passages, from paragraphs 59 through to 67 of his witness statement, which deal with the question of limitation in a general way.  They too should be treated as incorporated in this judgment. I will come back to the particular arguments that are made.  But they are the foundation on each side for the arguments which have been addressed to me today.

12	As I have said, so far as the claim to strike out under rule 3.4, it is essentially on the basis of limitation.  It is common ground that, in so far as the primary period of limitation is concerned - that is to say, the usual six-year rule whether for a claim in negligence under section 2 of the Limitation Act 1980 or a claim in contract under section 5, or a claim for breach of statutory duty under section 9 - the claimants are now out of time because the events with which we are largely concerned here are events dating back to 2007 and the claim form was only issued in March 2015.  Two other provisions of the Limitation Act 1980 are also relevant, because in certain circumstances they extend time or postpone the running of time. They are sections 14A and 32.

13	However, section 14A can only assist the Claimants in relation to the claim in negligence. So far as concerns the contractual aspects of the claim and the statutory duty aspects under section 9, there is no extension of time possible under section 14A in relation to the limitation periods in section 5 or section 9. Section 32 is wider. So I will have to consider whether the case falls within section 32 even in relation to breach of contract and statutory duty claims.

14	Section 14A reads 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.”

15	Section 32 reads as follows:
“32.— Postponement of limitation period in case of fraud, concealment or mistake.

(1) Subject to [subsections (3) and (4A)] below, where in the case of any action for which a period of limitation is prescribed by this Act, either—

(a) the action is based upon the fraud of the defendant; or
(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or
(c) the action is for relief from the consequences of a mistake;

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.

References in this subsection to the defendant include references to the defendant's agent and to any person through whom the defendant claims and his agent.

(2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.

(3) Nothing in this section shall enable any action—

(a) to recover, or recover the value of, any property; or
(b) to enforce any charge against, or set aside any transaction affecting, any property;

to be brought against the purchaser of the property or any person claiming through him in any case where the property has been purchased for valuable consideration by an innocent third party since the fraud or concealment or (as the case may be) the transaction in which the mistake was made took place.

(4) A purchaser is an innocent third party for the purposes of this section—

(a) in the case of fraud or concealment of any fact relevant to the plaintiff's right of action, if he was not a party to the fraud or (as the case may be) to the concealment of that fact and did not at the time of the purchase know or have reason to believe that the fraud or concealment had taken place; and
(b) in the case of mistake, if he did not at the time of the purchase know or have reason to believe that the mistake had been made.

(4A) Subsection (1) above shall not apply in relation to the time limit prescribed by section 11A(3) of this Act or in relation to that time limit as applied by virtue of section 12(1) of this Act.

(5) Sections 14A and 14B of this Act shall not apply to any action to which subsection (1)(b) above applies (and accordingly the period of limitation referred to in that subsection, in any case to which either of those sections would otherwise apply, is the period applicable under section 2 of this Act).”

16	I now must look at the particulars of claim which have been filed in this case.  Of course, because of the stage at which this application has been made, there is no defence yet filed and obviously therefore no reply.  So this is the only document in which the pleading, of one side only, can be seen.  I am not going to go through every paragraph.  But, in substance, in paragraphs 4 to 7, the claimants plead that the defendant gave advice to the claimants regarding a Japanese yen mortgage on their business property in order to raise some £300,000 which could then be invested, via a particular bond fund, in bonds which would produce a healthy return, sufficiently greater than the low rate of interest payable on the Japanese yen loan to leave a margin of, as it were, profit in the hands of the borrowers/investors. The advice, or allegation, is that the Mizrahi Bank would be the mortgage lender for this purpose.  

17	In paragraphs 8 and 9, there is a pleading in relation to a meeting in March 2007 at which paperwork was signed in order for the money to be raised on the mortgage and then invested in the bond’s fund. In paragraphs 10 and 11, there is pleaded a recommendation or advice on about 20th May to borrow further sums of money against the claimants’ home property, again on a Japanese yen mortgage.

18	In paragraph 12, there are allegations regarding the formation of a company, a special purpose vehicle. In paragraph 13, it is alleged that there was a meeting between the claimants, the defendant and the Mizrahi Bank, on 13th June. Then, in paragraph 14, there is a pleading about a bank account being opened in the name of the company. At paragraph 15, it is said that the bank required the claimants to pay some further sums in order to release the mortgage monies.  This was in about July 2007.

19	According to paragraph 16, there was a total of about £961,000 borrowed against the claimants’ home, of which about £950,000 was available to invest. Then there is a general allegation, in paragraph 16, of advice by the defendant throughout the lifetime of these investments.

20	There then follows a pleading, in paragraph 22 or so, of what it calls “the disastrous financial consequences” as the financial crisis of 2008 took hold. The yen value of the mortgage grew in sterling terms, as the yen appreciated against sterling.  So although, for example, the claimants had borrowed £300,000 originally, this was climbing steeply throughout early to mid 2008 to reach a much higher level of sterling liability.  Eventually the commercial property was sold and then subsequently the home property was sold in order to obtain funds with which to pay out the liabilities that had accrued.

21	Then, in paragraph 31, there are allegations against the defendant of breach of contract and breach of duty, in statutory and common law.  They are all, so far as I can see, concerned with the first and second investments which were made, as I say, in 2007. Then, in paragraph 34, there is an allegation of loss and damage. That in very brief terms is the nature of the claim which is brought against the defendant.

22	On behalf of the claimants, Ms Maria Mulla argues that the application to strike out or the summary judgment is entirely premature.  It is made before a defence or any reply has been filed and before any disclosure can be obtained.  The claimants say therefore that they are prejudiced in relation to the operation of section 14A and section 32 of the Limitation Act, both of which may operate to extend the limitation period beyond the crucial dates, which are in effect 9th March 2009 (which is the six-year rule) and, so far as section 14A, 9th March 2012 (which is the three-year rule).

23	The claimants rely in particular on the case of Kays Hotel Limited v Barclays Bank [2014] EWHC 1927 (Comm), to which I was taken.  There Hamblen J was faced with an application for summary judgment or to strike out, again on an allegation of a time-bar.  It was also a case of advice on financial products with, therefore, some similarity to the present case.  What Hamblen J said was this (and I read from paragraph 25, following summaries of documents to which he had been referred):  

“25. That summarises the essence of the complaint being made in these proceedings.  It is not a complaint which focuses simply on advice; still less is it a complaint which focuses on one aspect of that advice, namely interest rate loss.  Furthermore, even if one was focusing on interest rate loss, one would be looking at an interest rate loss over the entire life of the product, which is some ten years, and the mere fact that there may be a period of interest rate loss would not necessarily indicate that there was excessive loss or excessive risk inherent in the product.  

26. The defendant’s approach is far too narrow and does not correctly identify the essence of the complaint being made against it. If the complaint had simply been that the claimant had been advised that he would incur no interest rate loss, then one could understand that as soon as it became apparent that the claimant was having to pay interest rate losses, he would or should have known the facts necessary to investigate into such a claim.  However, that is simply one facet of a much more complex claim; a claim which is not simply based on interest rates but which focuses on questions of suitability.  In my judgment, the mere fact that it was known that some interest payments were being made for a period of about a year does not give rise to an unanswerable case that the claimant knew or ought to have known sufficient facts to make the requisite investigation for the purpose of section 14A.  

27. For all those reasons I am satisfied that the claimant does have a real prospect of establishing that he is entitled to rely on section 14A.  In any event, one has to have regard for the fact this is a summary application and therefore not the type of application that should be determined if there are likely to be facts which need to be investigated at trial and which cannot be dealt with simply on the basis of witness statement evidence.  This is a case where the facts will be important.  It is quite right to point out, as the defendant does, that one is not just concerned with actual knowledge; constructive knowledge is sufficient under section 14A(10). However, that section requires one to enquire into the knowledge which a person: 

‘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.’

28. That is an objective test but it is a test that has to be considered in the context of the circumstances applicable to the person in question.  In the present case that involves looking into the degree of Mr Saeed’s sophistication, what he had been told or not told, what his general state of knowledge was in 2008/2009 and what the more general state of knowledge was at that time, for example in relation to the anticipated future trend of interest rates.  These are all matters that depend on a full factual picture and mean that the issue is not appropriate for summary determination.”  

24	I was also referred to the earlier decision of Mr Kenneth Rokison QC, sitting as a Deputy Judge of the High Court, Queen’s Bench Division, Commercial Court, in the case of Iron Trade Mutual Insurance Co Limited & Ors v JK Buckenham Limited [1990] 1 All ER 808. At page 824J, the judge said:  

“But counsel for the plaintiffs emphasises that this is an application to strike out the plaintiffs' cause of action.  It is well established that one should only do so on the ground that the cause of action is time-barred if it is a clear case.  He submits that the question when the plaintiffs possessed sufficient relevant knowledge is a question of fact which is not appropriate to be decided at this stage.  I agree.  In my view this is a matter which must be investigated at trial.  Whether it is done by way of a preliminary issue is a matter which may be decided hereafter.”

25	But it seems to me clear from both of these cases that the question whether it is appropriate to allow a strike out application to proceed in a case where limitation is in issue is fact-sensitive, and must depend on the particular circumstances of the case.  I note, for example, that in the case that I referred to first, Kays Hotel v Barclays Bank, Hamblen J contrasted what was actually the case there with an alternative case which he put in this way, in paragraph 26.

“If the complaint had simply been that the claimant had been advised that he would incur no interest rate loss, then one could understand that as soon as it became apparent that the claimant was having to pay interest rate losses, he would or should have known the facts necessary to investigate into such a claim.  However, that is simply one facet of a much more complex claim [as he held was that case].”

26	Here, it seems to me, the claim is a much simpler one.  The claim is essentially that this was a risk-free investment; that the claimants did not want to run any risks; and that therefore the position for them was that as soon as they started to suffer losses the whole thing had gone wrong, the balloon had gone up and they were in possession of the sort of facts that one might well think were sufficient for investigation into a possible claim.  

27	So I distinguish those cases from the present case on the grounds of the relative complexity of those cases.  I consider therefore on its own merits whether it is appropriate in this case to continue with an application to strike out or for summary judgment, despite the fact that we have not completed the statements of case and nor have we had disclosure. 

28	The claimants say, in support of their position, that the degree of detail to which we have had to travel in the course of this application today just goes to show that the claim is entirely arguable and therefore it should be allowed to continue.  But, as it seems to me, if the court is considering arguability it may be necessary (and indeed in this case it has been necessary) to look at a number of authorities on matters of law.  That, as it seems to me, does not prevent the court itself from investigating the matter; and that is what I have tried to do during the course of the hearing.

29	So far as the facts are concerned, of course, I have, so far as it is necessary to do so, assumed them to be as alleged on the part of the claimants, on the basis that they will at trial be able to prove those allegations.  At this stage, I have no way of knowing where the truth of the allegations lies and I am making no attempt to indicate any such conclusion.

30	So I come back to the question: is it possible and fair for the court to determine the question of strike out on the basis of the material before me? In my judgment, it is possible to do so.  It seems to me that the actual matters that have to be considered are within a relatively small compass and this is a rather simpler case than many of the other cases which have been shown to me.  So, on those grounds, or for those reasons, I do not consider that the application is premature.

31	I therefore turn to consider the question of how far section 14A may assist the claimants to escape the time-bar in section 2 of the Limitation Act.  I bear in mind that, for this purpose, the critical date that I have to have regard to is 9th March 2012. What I am looking to do, for this purpose, under section 14A, is to consider, under subsection (5), 

“the earliest date on which [the claimant (as it now is)] 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”.  

32	Then subsection (6) tells me that the meaning of the phrase 
“knowledge required for bringing an action for damages in respect of the relevant damage” 
means knowledge both of the material facts about the damage in respect of which damages are claimed; and the other facts mentioned in subsection (8).  The other facts referred to above are “that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence; and the identity of the defendant.” Then there is a further fact which is, I think, not relevant in the present case.

33	The argument here has really revolved around the second of these, that is, the identity of the defendant, rather than any of the other points.  I was referred to the decision of the House of Lords in a case called Haward v Fawcetts [2006] 1 WLR 682 This was a decision on section 14A and how the requirement of knowledge of relevant facts was to be interpreted.  The headnote in the Weekly Law Reports says this in relation to the holding:

“…that knowledge, for the purposes of section 14A of the 1980 Act, meant knowing with sufficient confidence to justify embarking on the preliminaries to the issue of a writ; that knowledge that the damage was attributable, in whole or in part, to the acts or omissions of the defendant alleged to constitute negligence within section 14A(8) meant knowledge in broad terms of the facts on which the claimant’s complaint was based and of the defendant’s acts or omissions of knowing that there was a real possibility that those acts or omissions had been a cause of the damage…”

34	As it seems to me, this can be summarised in something like the formulation which Mr Temple advanced: that once you know you have been advised you have suffered a loss, and you can attribute the loss to the defendant, then that is enough; those are the sufficient facts for this purpose.  What at least three of their Lordships added was a comment that something else was a wrong test. 

35	For example, Lord Nicholls, in paragraph 23, said this:  

“The relevant date was not when Mr Haward first knew he might have a claim for damages. The relevant date was an earlier date, namely, when Mr Haward first knew enough to justify setting about investigating the possibility that Mr Austreng's advice was defective.”

Similar statements appear in the speech of Lord Walker, at paragraph 78, and Lord Mance, at paragraph 129.

36	As it seems to me, what their Lordships are saying is that it is wrong to look at when the claimant first becomes aware that he has a legal claim; that is to say, when he has first drawn the correct legal inference, or a possibly correct legal inference, from the primary facts.  That is the wrong focus.  The correct focus is on the primary facts.

37	I was also referred to the decision of the Court of Appeal in Shore v Sedgwick Financial Services Limited [2009] BLR 42, where the Court of Appeal were also considering section 14A, and they looked at the case of Haward.  On pages 59 and 60, Dyson LJ (who gave the only reasoned judgment, and with whom Keene and Buxton LJJ simply agreed) referred to Beatson J’s summary at first instance of what he considered the House of Lords had decided in Haward v Fawcetts in these terms, at top of page 59: 

“225. It is clear from Haward v Fawcetts…that the key to ‘knowledge’ for the purposes of section 14A is knowing facts with sufficient confidence to justify embarking on the preliminaries to the issue of a writ… Knowledge that the damage was ‘attributable’ in whole or in part to the acts or omissions of the defendant alleged to constitute negligence within section 14A(8)(a) means knowledge in broad terms of the facts on which the claimant's complaint is based and of the defendant's acts or omissions.”

38	In other words, you know what the acts or omissions are of the defendant and you know what the facts are on which your complaint is based.  There is nothing there about having to draw any legal inference or conclusion as a result of those. Dyson LJ went on:

“It must also be known that there is a real possibility that those acts or omissions were a cause of the damage.  The first of these tests concerns the degree of certainty required before knowledge can be said to exist.  The second concerns the degree of detail required before a person can be said to have knowledge of a particular matter in the context of the requirements of section 14A(8)(a), the question of attributability.”

39	I do not think that I need to read any more for present purposes.

40	So the question really is whether this test is satisfied so far as the claimants are concerned at any time before 9th March 2012.  A number of points have been put forward in the evidence and in the written and oral submissions.  It is, so far as I can see, clear that these problems for the claimants arose because of the dealings that took place between the claimants on the one hand and the defendant and Mr Terdiman on the other in 2007, before the bank ever became involved.

41	Secondly, it was clear that losses were being incurred even by March 2008, when the £300,000 foreign exchange loan had increased in value to some £360,000, and by July had reached £432,000.  Larger losses were incurred indeed by October.  So by that stage it must have been crystal clear to the claimants that something had gone wrong, that there were risks that they were incurring, and indeed that those risks had matured.

42	I was also referred to a meeting on 2nd October 2008 where the claimants did in fact blame the defendant.  I also noted a reference to a complaint to the bank after the sale of their home, Stoneycroft, in December 2009 in which they blamed the defendant.  

43	There was the Financial Ombudsman Service complaint made against the bank which is dated in early January 2012.  (I think it is formally dated 4th January but it must have been prepared slightly before that.)  That is a really striking document because when one looks at that document one sees more or less all the same allegations that currently appear in the particulars of claim, showing what had happened back in 2007 on the claimants’ case; and obviously, in the case of the Financial Ombudsman Service complaint, seeking recompense from the bank. This, of course, subsequently fails, but nonetheless it shows an appreciation of the primary facts which were said to have occurred in this case.  

44	Then we also have the letter from Churchills, solicitors then acting for the claimants, in March 2011, to which I was referred, addressed to the solicitors then acting for the Mizrahi Bank, in which again it is clear that the claimants were well aware of the positions of both the bank and of the defendant as a financial adviser.  In particular, it says:

 “Your client suggests that they [the bank] did not and have never acted as financial advisers to our clients.  Our clients’ understanding is that the position is to the contrary and that your client and all and any financial advisors were inexorably linked when the product in question was both offered and sanctioned by your client and its advisors to our clients.” 

45	So, in my judgment, it is clear that, certainly before March 2012, the claimants had all the relevant primary facts that they needed for the purposes of section 14A.  In particular, they were well aware of the identity of the defendant; that is to say, that the person whom they had met in the meetings and had given them advice on their case was the defendant. It is true, I am prepared to accept, that the claimants were either mistaken or perhaps confused as to the legal inference to be drawn from those facts of which they were aware, and in particular as to whether the defendant might not be legally responsible for what had happened.  But, in my judgment, that makes no difference because it is not a question of needing to draw legal conclusions from the facts, but the awareness of the facts that matters.

46	It was urged upon me that this case was different because of the encouragement alleged to have been given by the defendant to the claimants to pursue the bank rather than anyone else.  But, as it seems to me, that in itself does not amount to a case of not having the knowledge of the relevant fact, which is the identity of the potential defendant who has given the advice in question.

47	So for all these reasons I have come to the conclusion that section 14A simply does not assist the claimants in this case.

48	I turn then to section 32.  I have already set out the section, but I will remind myself that section 32(1), subject to certain provisions which do not apply in this case, says this:

“Where in the case of any action for which a period of limitation is prescribed by this Act, either -  

(a) the action is based upon the fraud of the defendant; or 

(b) any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant; or 

(c) the action is for relief from the consequences of a mistake; 

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.”

That is as far as I need to read.  

49	The authorities here are clear (particularly recent cases) that a narrow interpretation is to be given to this provision.  I was referred in particular to the decision in Arcadia Group Brands Limited v Visa Inc [2015] BLR 1362, a decision of the Court of Appeal, there constituted by Sir Terence Etherton C and Richards and Patten LJJ.  I was referred in particular to paragraphs dealing with an earlier decision of the Court of Appeal called Johnson v Chief Constable of Surrey.  In paragraph 34 of the Arcadia case, a passage from Russell LJ’s judgment in Johnson was set out as follows:

“The wording of section 32(1)(b) of the Limitation Act 1980 in my judgment is such that a narrow interpretation is necessary.  In order to give relief to the plaintiff any new fact must be relevant to the plaintiff's ‘right of action’ and is to be contrasted with a fact relevant, for example, to ‘the plaintiff's action’ or ‘his case’ or ‘his right to damages’.  The right of action in this case was complete at the moment of arrest. No other ingredient was necessary to complete the right of action.  Accordingly, whilst I acknowledge that the new facts might make the plaintiff's case stronger or his right to damages more readily capable of proof they do not in my view bite upon the ‘right of action’ itself.  They do not affect the ‘right of action’, which was already complete, and consequently…are not relevant to it.”

50	I was then referred to paragraph 49 of the Arcadia case itself where Sir Terence Etherton C said this (and, as I have already said, Richards and Patten LJJ simply agreed with him):

“Johnson, the Mirror Group Newspaper case and The Kriti Palm are clear authority, binding on this court, for the following principles applicable to section 32(1)(b) of the 1980 Act: (1) a ‘fact relevant to the plaintiff's right of action’ within section 32(1)(b) is a fact without which the cause of action is incomplete; (2) facts which merely improve prospects of success are not facts relevant to the claimant’s right of action; (3) facts bearing on a matter which is not a necessary ingredient of the cause of action but which may provide a defence are not facts relevant to the claimant’s right of action.”

51	Then applying those principles to facts of the case, at paragraph 56 Sir Terence Etherton C says:  

“It is plain that, on a conventional application of the ‘statement of claim’ test, that is to say as formulated in Johnson, the Mirror Group Newspapers case and The Kriti Palm, none of those four points provides a ground for postponing the limitation period under section 32(1)(b).”

52	As it seems to me, therefore, I am bound to interpret section 32(1)(b) in a similarly narrow way, notwithstanding the reliance placed by the claimants on the decision of Holroyd J in the case of Parkin v Alba Proteins Limited [2013] EWHC 2036 (QB).  This was an action for nuisance where the claimant did not know who was in occupation of the land at the relevant time.  Of course, that was a primary fact which it was critical for the claimant to know, because the only person against whom liability in nuisance could be established would be against someone who owned or occupied the land at the relevant time.  So if you were misled as to who that person was, you might sue the wrong person.  Therefore to know the identity of the defendant within the meaning of section 32(1)(b) would be to know who was in occupation, or at any rate ownership, of the land at the time.  In that case, the judge decided that there had been a concealment of the relevant primary fact, and that therefore section 32(1)(b) could apply.

53	In the present case, as it seems to me, there is no similar primary fact which is unknown.  Whilst the claimants may well not (and indeed probably did not) appreciate the legal inference to draw from the primary facts as to who was legally responsible, nevertheless they knew who had given what they now claim was advice.  They knew what they now claim to be advice actually was.  They know or knew that they had relied on it by entering into the transaction which they actually did, and they know and they knew what it was they had lost by so doing.  So, in my judgment, it does not seem to me that the identity of the defendant was in any way unknown to or concealed from the claimants.

54	But I have to deal with two other points.  One is that, in any event, there is an argument being made by the claimants in this case that the defendant or Mr Terdiman on behalf of the defendant encouraged the claimants to believe that the correct person to sue, the person who was legally responsible for what had happened was the bank.  It is said that this urging or encouragement from Mr Terdiman in some way changes the position.

55	To my mind it does not do so. This is first of all because, as appears from the majority of the House of Lords in a case called Sheldon v Outhwaite [1995] 2 All ER 558, that once a party knows some primary facts they cannot unknow them by their being ‘concealed’ within section 32.  That is clear from Lord Browne-Wilkinson’s speech at page 144B, with whom Lord Keith of Kinkel agreed, and at page 152F in the speech of Lord Nicholls.  Those dicta, as it seems to me, were applied by Peter Smith J in the case of Bocardo SA v Star Energy [2008] EWHC 1756 (Ch) at paragraphs 121 to 122. 

56	The second point about the encouragement of the claimants to pursue the bank rather than anybody else is that it is said that either Mr Terdiman or the defendant was in a fiduciary relationship with the claimants and that it was wrong for the defendant or Mr Terdiman to encourage the claimants to pursue the bank instead of, as it were, advising them to seek separate representation or putting up his hands or whatever.  But, as it seems to me, that is not a relevant consideration here because the complaint in this case is not that there was a breach of fiduciary duty. Instead it is a complaint about the actions that took place in 2007.

57	The claimants however rely on the decision of Lewison J in the case of JD Wetherspoon plc v Van Der Berg & Co Limited [2007] EWHC 1044 (Ch). This was a case of the application of section 32 of the Limitation Act. At paragraph 44, Lewison J, referring to a particular letter that had been written by the defendant agent to the principal claimant, says this:

“This letter appears to have been calculated to put Mr Martin off the scent; and it did. Bearing in mind a fiduciary's duty to disclose his own wrongdoing, this letter amounted to deliberate concealment.”

58	It is argued therefore that, by urging the claimants to pursue the bank, Mr Terdiman was similarly committing a breach of his fiduciary duty or his company’s fiduciary duty, and therefore this too amounts to deliberate concealment.

59	But, in my judgment, the facts of the Wetherspoon case are very different from the facts of this case.  In the Wetherspoon case, what had happened was that Wetherspoon, the claimant, had retained Van Der Berg, the defendant, to find properties which could be acquired by Wetherspoon as commercial premises for the purposes of their business.  Employees and directors of the defendant, notwithstanding their company’s fiduciary relationship with Wetherspoon, had procured properties which they, in substance, then sold to the claimant for inflated prices, making a profit on the transaction, and so breached the duty that the fiduciary agent owed to the principal.  Plainly, in those circumstances there was deliberate concealment of a particular important fact, namely the connection between the defendant fiduciary agent and the beneficial owners of the companies which were selling properties to the claimant.

60	Here, once more, the primary facts are all known to the claimants from the outset.  What is not known to them, or what they get wrong, is the legal conclusion which they draw from these primary facts, which is that they should look to the bank for redress rather than to the defendant.  In my judgment, that is a quite different case from the Wetherspoon case.

61	There was also a faint argument on the part of the claimants that this breach of duty in failing to, as it were, point out that there might be a claim against the defendant itself amounted to fraud within the meaning of section 32(1)(a) of the Act.  But, as Mr Temple himself pointed out, section 32(1)(a) only applies in a case where the action itself was based on fraud, and the action in this case is not based on fraud.  So that provision cannot apply.

62	During the course of the argument, we also considered briefly the possibility that there might be an allegation that the defendant, or Mr Terdiman for that matter, was an agent of the bank.  It is plain that there is nothing in the particulars of claim which so alleges, nor is there even an allegation that the defendant or Mr Terdiman held itself or himself out as an agent of the bank.  Indeed the documents to which I was taken in this case from the beginning of the transaction show on their face that the defendant is acting as a principal through Mr Terdiman as the director.  

63	It is fair to say that there is a rather vague allegation in the first claimant Mr Booker’s witness statement, at paragraph 11, that the claimants “came to believe that Mr Terdiman was acting as an agent of the bank”.  But there is no such allegation as that made as from the outset of the transaction; it is something that is said to have happened later.  It seems to me that, in relation to that, the dicta to which I have referred in Sheldon v Outhwaite apply; so that once the position is known to the claimants nothing that happens later can make them lose that knowledge and there cannot be concealment. 

64	It is also fair to say that even that allegation made by Mr Booker, the first claimant, is internally inconsistent, because later on in his witness statement, at paragraph 21, there is a statement that when the bank wrote letters to the claimants they were immediately passed without being dealt with to Mr Terdiman to be dealt with on their behalf.  So they were plainly treating him as their agent and not as the bank’s agent, certainly at that point.  But I do not need to resolve those questions now.  It seems to me, for the reasons I have given, that section 32 does not help the claimants.

65	Counsel made mention of a slight wrinkle in relation to possible losses stemming after March 2009. But I do not think that that has been pursued and, as it seems to me, it makes no difference on the facts of this case.

66	So, in my judgment, this application to strike out on the basis that the claim is barred by reason of limitation should succeed.  In those circumstances, I do not see any particular merit in taking further time to consider whether I ought also to give judgment under Part 24 of the Civil Procedure Rules.  It was suggested that there may be some differences in the consequences as a result, but I cannot see that it is proportionate at this stage of the afternoon to spend further time on that when the substantive result is the same.

L A T E R

67	Ms Mulla applies for permission to appeal both on the grounds that there is a real prospect of success and also that there is some other compelling reason why the appeal should be heard; that is to say, that this is a matter of importance, in particular the question deliberate concealment under section 32(1)(b) of the Limitation Act 1980.

68	I accept that there is an element of public interest in matters concerning limitation and it may even be that there is an interesting point to be had and debated about the degree to which a fiduciary or a person owing fiduciary duties can be said to deliberately conceal a fact by urging someone to do something different.  But, as it seems to me, what I have done today has been simply to apply existing authorities. Therefore, as I see it, there is no real prospect of success.  Although, as I say, there may be a point of interest, it is not, in my view, a compelling reason for allowing the appeal to proceed.

69	That said, there is nothing to stop you asking the Appellate Court for permission to appeal, and if the Appellate Court considers that there is more in this than meets my eye, then you will get your permission.  But I am afraid not from me.