 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |
England and Wales High Court (Chancery Division) Decisions |
||
|
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Clutterbuck v Brook Martin & Co (a firm) & Anor [2019] EWHC 1040 (Ch) (26 April 2019) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2019/1040.html Cite as: [2019] EWHC 1040 (Ch) |
||
[New search] [Printable PDF version] [Help]
BUSINESS AND PROPERTY COURTS
BUSINESS LIST
London. EC4A 1NL |
||
B e f o r e :
____________________
| AMANDA STEPHANIE CLUTTERBUCK |
Claimant |
|
| - and - |
||
| (1) BROOK MARTIN & Co (A Firm) (2) STEPHEN OLIVER BROOK |
Defendants |
____________________
David Halpern QC and Amanda Savage (instructed by Mills Reeve LLP) for the Defendants
Hearing dates:
11, 12 and 25 June 2018
____________________
Crown Copyright ©
MASTER SHUMAN :
i) The first is the defendants' application dated 7 August 2017 to strike out the claim pursuant to CPR 3.4.2 or for reverse summary judgment pursuant to CPR part 24 on the grounds that: (1) the Particulars of Claim ("the POC") which run to 58 pages with 2 appendices are impossible to understand and plead to; (2) for the same reason there has been a failure to comply with CPR 16 and practice direction 16; (3) the claim is an abuse of process because it seeks to impugn previous decisions and makes contentions which are inconsistent with the decisions made previously; (4) limitation, the relevant periods under the Limitation Act 1980 (the 1980 Act) having expired before the claim form was issued.
a. This is supported by the witness statement of David Gooding, a partner at Mills and Reeve LLP, dated 7 August 2017.
b. The application was listed for hearing on 29 and 30 November 2017 but on 22 November the defendants solicitors were notified that the claimant had instructed counsel on a direct access basis. On 23 November 2017 the defendants' then counsel, Simon Monty QC and Amanda Savage, filed a skeleton argument attaching a 26 page schedule providing a detailed critique of the POC. The defendants agreed to adjourn the hearing to enable the claimant to re-plead her case.
c. The claimant filed a 16 page witness statement in response dated 6 June 2018, with exhibits running to 443 pages. No explanation was given for the late service of this statement, some 7 months after the hearing was adjourned, and it follows a pattern by the claimant of serving documents either just before the hearing or sometimes after the hearing informing the court that it must take those documents into account. As Mr Halpern QC observed in his supplemental skeleton argument if the claimant "has only just prepared this statement, it does not sit easily with her claim that she is too ill to be able to deal with the strike-out application".
ii) The claimant's application notice dated 13 February 2018 seeks the following orders: to "grant the claimant permission to: (1) amend particulars of claim; (2) rely on expert witness evidence to support her claim; (3) rely on documents in other proceedings which have been concealed from the claimant for over 11 years".
a) The claimant relies on her witness statement dated 13 February 2018 which exhibited a 24 page draft amended particulars of claim ("APOC") and an appendix comprising an 81 page chronology which is an integral document.
iii) The claimant's application notice dated 7 June 2018 seeks an order staying the proceedings until the outcome of the ongoing Solicitors Regulation Authority investigation and an adjournment of the defendants' application and the claimant's application.
a) The claimant relies on her witness statement dated 7 June 2018 in which she stated that the grounds for seeking an adjournment or stay was that her health was being adversely effected by the pressures that she was dealing with, the 5 day trial window had resulted in an unforeseen timetable clash and the claim should be stayed until the conclusion of the on-going SRA investigation.
b) At the hearing on 11 June 2018 Mr Owen-Thomas submitted that there should be an adjournment of the hearing on the ground that the claimant was preparing for a 13 day trial, she had a medical appointment and was ill-prepared for the application. He accepted that the POC and draft APOC were susceptible to being struck out as non-compliant with CPR 16 and confirmed he held instructions to settle a compliant particulars of claim.
c) Mr Martin, solicitor, filed a witness statement dated 7 June 2018 in opposition to the claimant's letter to the court dated 1 June 2018.
d) I asked Mr Owen-Thomas at the hearing on 12 June 2018 to effectively pin his colours to the mast and say whether he was still seeking permission to rely on the APOC. At the hearing on 25 June 2018 Mr Owen-Thomas proposed that a further APOC would be drafted, they would be drafted by counsel and these could be filed and served within 21 days. This submission could only have been made on instructions. He did not seek to pursue the claimant's applications but rather sought an "indulgence from the court" to permit further time for the claimant to plead her claim. He had used the APOC as a foundation to tease out the facts in support of a claim that he submitted existed, albeit not pleaded in compliance with the CPR. At my direction he went on to address his submissions in the context of the POC as well, which he based on a further skeleton arguments filed minutes before the hearing on 25 June 2018 commenced.
e) No further APOC have been filed, even in draft form. No explanation has ever been proffered by the claimant as to this failure.
THE PROCEDURAL LABYRINTH
"18. … Their lack of representation will often justify making allowances in making case management decisions and in conducting hearings. But it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court. The overriding objective requires the courts so far as practicable to enforce compliance with the rules: CPR r 1.1(1)(f) . The rules do not in any relevant respect distinguish between represented and unrepresented parties. … The rules provide a framework within which to balance the interest of both sides. That balance is inevitably disturbed if an unrepresented litigant is entitled to greater indulgence in complying with them than his represented opponent. Any advantage enjoyed by a litigant in person imposes a corresponding disadvantage on the other side, which may be significant if it affects the latter's legal rights, under the Limitation Acts for example. Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step which he is about to take. "
i) Adding further allegations of concealment and fraud at the trial which had not been pleaded; [paragraphs 23 and 116]
ii) Making allegations of fraud against EN which were held to be unfounded; [paragraph 27]
iii) Making serious allegations against various professionals without joining them as parties to the proceedings; [paragraphs 27, 47 and 144]
iv) Failing to adduce the necessary evidence to establish quantum, should the claimant have succeeded on liability, and therefore putting the defendant to the expense of a trial; [paragraphs 28 and 29]
v) Repeating allegations that had been made (and failed) in previous proceedings; [paragraph 34]
vi) Failing to provide proper particularisation, despite court orders to this effect over a significant period of time. [paragraphs 151, 189 and 199]
These show an all too familiar pattern of conduct by the claimant, conduct that also infects how the claim before me is being litigated.
THE APPLICATIONS
The Law
Statements of Claim
"Particulars of claim must include—
(a) a concise statement of the facts on which the claimant relies"
"18. The purpose of a pleading or statement of case is to inform the other party what the case is that is being brought against him. It is necessary that the other party understands the case which is being brought against him so that he may plead to it in response, disclose those of his documents which are relevant to that case and prepare witness statements which support his defence. If the case which is brought against him is vague or incoherent he will not, or may not, be able to do any of those things. Time and costs will, or may, be wasted if the defendant seeks to respond to a vague and incoherent case. It is also necessary for the Court to understand the case which is brought so that it may fairly and expeditiously decide the case and in a manner which saves unnecessary expense. For these reasons it is necessary that a party's pleaded case is a concise and clear statement of the facts on which he relies; …
19. It is not fair and just that the Defendant cannot be sure of the case he has to meet. It may well be that, with appropriate legal advice, the Claimant could have pleaded a concise, clear and particularised case against the Defendant but that has not been done. If the Amended Particulars of Claim are not struck out there is a very real risk that unnecessary expense will be incurred by the Defendant in preparing to defend allegations which are not pursued, that he will be impeded in his defence of allegations which are pursued and that the Court will not be sure of the case which it must decide."
" …. it is the Claimants' obligation to put the case forward in a manner which does not involve the Defendants having to chase back through multiple cross-references to other paragraphs in the pleading which may then say something different leading to a lack of clarity about what the allegation actually is. I agree with the Defendants that the proposed amended Particulars of Claim are properly described as unnecessarily prolix and embarrassing. They fail fairly to identify the claims being pursued in a way which can be reasonably understood or responded to by the Defendants."
"… A party is not entitled to a finding of fraud if the pleader does not allege fraud directly and the facts on which he relies are equivocal. So too with dishonesty. If there is no specific allegation of dishonesty, it is not open to the court to make a finding to that effect if the facts pleaded are consistent with conduct which is not dishonest such as negligence. As Millett LJ said in Armitage v Nurse [1998] Ch 241, 256G , it is not necessary to use the word "fraud" or "dishonesty" if the facts which make the conduct fraudulent are pleaded. But this will not do if language used is equivocal: Belmont Finance Corporation Ltd v Williams Furniture Ltd [1979] Ch 250, 268 per Buckley LJ. In that case it was unclear from the pleadings whether dishonesty was being alleged. As the facts referred to might have inferred dishonesty but were consistent with innocence, it was not to be presumed that the defendant had been dishonest. Of course, the allegation of fraud, dishonesty or bad faith must be supported by particulars. The other party is entitled to notice of the particulars on which the allegation is based. If they are not capable of supporting the allegation, the allegation itself may be struck out. But it is not a proper ground for striking out the allegation that the particulars may be found, after trial, to amount not to fraud, dishonesty or bad faith but to negligence."
"…Where an allegation of dishonesty is being made as part of the cause of action of the plaintiff, there is no reason why the rule should not apply that the plaintiff must have a proper basis for making an allegation of dishonesty in his pleading. The hope that something may turn up during the cross-examination of a witness at the trial does not suffice. It is of course different if the admissible material available discloses a reasonable prima facie case which the other party will have to answer at the trial."
"184. … This means that a plaintiff who alleges dishonesty must plead the facts, matters and circumstances relied on to show that the defendant was dishonest and not merely negligent, and that facts, matters and circumstances which are consistent with negligence do not do so.
185. It is important to appreciate that there are two principles in play. The first is a matter of pleading. The function of pleadings is to give the party opposite sufficient notice of the case which is being made against him. If the pleader means "dishonestly" or "fraudulently", it may not be enough to say "wilfully" or "recklessly". Such language is equivocal. A similar requirement applies, in my opinion, in a case like the present, but the requirement is satisfied by the present pleadings. It is perfectly clear that the depositors are alleging an intentional tort.
186. The second principle, which is quite distinct, is that an allegation of fraud or dishonesty must be sufficiently particularised, and that particulars of facts which are consistent with honesty are not sufficient. This is only partly a matter of pleading. It is also a matter of substance. As I have said, the defendant is entitled to know the case he has to meet. But since dishonesty is usually a matter of inference from primary facts, this involves knowing not only that he is alleged to have acted dishonestly, but also the primary facts which will be relied upon at trial to justify the inference. At trial the court will not normally allow proof of primary facts which have not been pleaded, and will not do so in a case of fraud. It is not open to the court to infer dishonesty from facts which have not been pleaded, or from facts which have been pleaded but are consistent with honesty. There must be some fact which tilts the balance and justifies an inference of dishonesty, and this fact must be both pleaded and proved."
Strike Out
"3.4(2) The court may strike out a statement of case if it appears to the court—
….
(b) that the statement of 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."
"But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not."
Summary Judgment
"(a) it considers that—
(i) the claimant has no real prospect of succeeding on the claim or issue; … and
(b) there is no other compelling reason why the case or issue should be disposed of at a trial."
"15. … The correct approach on applications by defendants is, in my judgment, as follows:
i) The court must consider whether the claimant has a "realistic" as opposed to a "fanciful" prospect of success: Swain v Hillman [2001] 2 All ER 91 ;
ii) A "realistic" claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8]
iii) In reaching its conclusion the court must not conduct a "mini-trial": Swain v Hillman
iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10]
v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550 ;
vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63 ;
vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725."
The Applications
"The said breaches of trust by Brook Martin were dishonest on the basis that Mr Brook was recklessly careless as to the Claimant's interest in effecting the Cash Transfers. The reckless carelessness of Mr Brook as regards the Claimant's interest is evident inter alia from the from the oral evidence given by Mr Brook under cross-examination at the SAA trial in July 2013, as set out in the schedule attached."
This involves allegations of fraud without any particulars, an unintelligible assertion of "reckless carelessness" and a generic reference to the schedule. In answer to my question about whether he was advancing a claim based on fraud Mr Owen-Thomas frankly stated that he had not seen evidence to support this and could not "sit here and say fraud". He submitted that if the SRA corroborated what the claimant said then she would be entitled to bring such a claim. That is not how fraud is to be pleaded. The claimant must have a proper basis for making an allegation of dishonesty against the defendants and she cannot simply see if something emerges perhaps in disclosure, during cross-examination or, in previous claims, after the trial.
i) transferring valuable properties to SAA without informing or consulting the claimant;
ii) failing (negligently and/or owing to conflict-of-interest) to keep the claimant and/or her partner Mr Paton properly informed as to the activities of EN with regard to 9 Cliveden Place;
iii) negligently or fraudulently misrepresenting to Mr Paton that 9 Cliveden Place was about to be sold with the intention of inducing him to charge his interest therein to Sator at high rates of interest;
iv) wrongfully applying sale proceeds from other properties, 7 Sloane Gate Mansions and 86 Marsham Court, to reduce Mr Paton's liabilities to Sator;
v) telling the claimant that she was party to JVAs with SAA while, unbeknown to the claimant, telling associates of SAA that this was not the case and therefore undermining the SAA claim.
i) damages for losses arising out of breach of fiduciary duty, breach of contract, breach of tortious duties to the claimant and breach of trust in relation to acts and omissions by the defendants in and after 2006 while retained by the claimant and Mr Paton to act in connection with the project in respect of 9 Cliveden Place, additionally damages for fraudulent misrepresentation by the second defendant as to the valuation placed upon 9 Cliveden Place by the bank which was providing finance to EN;
ii) damages for losses arising out of breach of fiduciary duty and/or negligence in failing to disclose to the claimant during 2007 and 2009 information of which the defendants became aware as to EN and his financial affairs and failing to take proper steps to protect the claimant's interests;
iii) damages for losses arising out of breach of trust for transferring away, during January to October 2007, from the claimant's monies held in the first defendant's client account, the sum of £2.32 million, without any authority from the claimant to a woman going by the name of SAA;
iv) damages for losses for breach of trust and/or negligence for transferring without any authority from the claimant, during October 2008 and January 2009, 5 properties which the defendants knew to be beneficially owned by the claimant to SAA;
v) damages for breach of fiduciary duty, breach of contract and/or breach of tortious duties of care for losses arising out of the advancing, during 2010 and 2014, by the defendants to the claimant of monies said by the second defendant to be by way of loans to the claimant from Sator, which the claimant now believes were actually her own monies.
"14. … [they] are prolix, yet lacking in important particulars, confusing and difficult to follow.
15. One general respect in which the Particulars of Claim in this matter are flawed is the prevalence of long and discursive paragraphs dealing with factual matters, often including statements made by, or dealing with the conduct of persons other than, the defendants, which do not set out why or how such matters are alleged to be relevant to any claim against the defendants. Paragraphs which do contain allegations against the defendants seek to refer back to matters "above", without specific cross-references or other explanation as to which parts of the preceding narrative are relied on. This may seem like an unduly technical 'pleading point', but it is not. A defendant, and particularly a professional accused of serious and improper behaviour, is entitled to know exactly what is alleged against him, and a claimant making such allegations is obliged to set out the allegations out clearly and properly. In accordance with the rules and practice directions. The absence of specific, directed or easy to follow cross references does not 'work' where the pleading is unduly prolix (as this one is). The claim becomes impossible to properly plead to."
"26. For example, on 7 February 2008, Elliott Nichol withdrew a further £1,000,000 from 9 Cliveden Place and refinanced his Scottish care home, as a consequence of the Bank of Ireland being falsely led to believe by Peter McCormick, acting on behalf of Elliott Nichol, that he had £6,400,000 of equity in 9 Cliveden Place. (Peter McCormick was forced to admit in cross-examination in July 2013, in the SAA proceedings, that Elliott Nichol had no other assets against which to borrow at the time; which was at the height of the credit crunch and the Irish banks, in particular, were foreclosing on their less solvent clients)
27. If the second defendant had not concealed these facts from the claimant, she would have dis-instructed the defendants, and had no further dealings with Elliott Nichol. As set out in the schedule, the second defendant has deliberately concealed the matters set out herein to the present day, the claimant believes, in collusion with Elliott Nichol, Peter McCormick, the directors of Westbrooke (after they became aware in 2009 that Elliott Nichol had introduced no monies into Westbrooke in October 2006 apart from bank finance in breach of the terms of the facility) and latterly Elliott Nichol's estate."
"38. As set out above and in the schedule attached, the 2nd defendant concealed from the claimant the following facts:
(a) that the contract for the sale of the property at 9 Cliveden Place to Westbrooke had not been exchanged in 2006;
(b) the Bank of Ireland facility which was drawn down on 4 October 2006, was drawn down as a consequence of fraudulent misrepresentations made by the second defendant to DWF (acting for Bank of Ireland) on 4 October 2006;
(c) that false representations had been made to the claimant from August 2006-October 2006 in relation to the Cliveden JVA;
(d) that the £50,000 loan the claimant and Mr Paton made to Westbrooke was induced by false representations made to them by the second defendant;
39. These facts been concealed by the second defendant from the claimant for over 11 ¼ years. (Indeed the second defendant is still concealing the true situation from the claimant despite her own and her solicitors repeated requests for transparency and disclosure). The second defendant's concealment and strategies to "contain" the claimant and to deny the claimant's repeated requests for information are set out in the schedule."
Here there is a failure to properly cross-reference what "as set out above" refers to, references to the attached schedule without any specificity and numerous allegations of fraud without the necessary particulars.
The Cliveden Place Claim
Non-disclosure Claim
The Funding Claim
Cash Transfers Claim
Transfer of Properties Claim
The defendants' application in respect of the claims generally
"I accept that I cannot circumvent the findings in the Al Amoudi claim by a collateral attack. This is not, however, what I am doing. The business arrangements to which I plead form the factual background to my claim. They may well not have had any legal effect but that does not mean they did not happen or that they have no relevance to the present claim."
"38. The only documentary evidence upon which Mr Paton was able to rely before the judge, as providing some support for this allegation, was an email dated 20 June 2014 from Mr Brook to Mr Paton and Ms Clutterbuck, in which Mr Brook said:
"My strategy, as you know, has been to try and so agree things with Martin [ i.e. Mr Forrester ] that we wait for the outcome of the Nicholl case before he completes the contract to buy in the hope that you will be able to repay your debt to him (for which, as you know, I am now 50% responsible) and the contract can be mutually rescinded."
39. Since it was Sator which had made the extensive loans to Mr Paton and Ms Clutterbuck, which they apparently hoped to be able to repay from the proceeds of the litigation involving Mr Nichol's estate, Mr Brook's statement that he was now 50% responsible for the debt could perhaps be read as suggesting that he had some kind of interest in the creditor, Sator. Without elucidation, however – and none was provided in the evidence of Ms Clutterbuck – the meaning of the statement is obscure. If anything, it appears to suggest that Mr Brook had undertaken personal responsibility for repayment of 50% of the debt, possibly by incurring some form of secondary liability for it. Moreover, the statement cannot provide support for the proposition that Mr Brook was "50% responsible" for the Sator loans at the time of the 2011 Contract, more than three years earlier. On the contrary, the word "now" implies that Mr Brook's personal involvement was a recent development. Finally, the words "as you know" imply that Mr Paton and Ms Clutterbuck already knew of Mr Brook's 50% responsibility, which would be inconsistent with any suggestion of an undisclosed personal interest. This email therefore provides no intelligible support for the allegation of an undisclosed personal interest in Sator, and the judge was fully entitled to say (in [43]) that:
"The material for supposing that Mr Brook had an undisclosed interest in the transaction is no more than a passing supposition.""
i) There was no agreement or understanding between EN and the claimant and Mr Paton concerning the undeveloped value of Cliveden Place or their interest therein prior to the Cliveden Place JVA on 3 August 2006, whether £3.45 million as opposed to £3 million or otherwise. The contemporaneous documents and the conduct of the claimant and Mr Paton on 3 August 2006 were inconsistent with or contradicted such an agreement or understanding. [paragraphs 54 to 61]
ii) The claimant and Mr Paton saw the BOI facility letter before signing the Cliveden Place JVA. It was highly likely that the second defendant showed them this letter before they signed. [paragraph 69]
i) The Citibank loan reduced, but did not eliminate, Westbrooke's equity in the properties, and the sum paid out following the drawdown of the BOI loan simply substituted the Bank as lender for the amount initially lent by Citibank. To suggest that EN received in effect two payments, the sums received from Citibank and the BOI loan and that these sums exceeded £832,500 was unarguable and disingenuous. [paragraph 111]
ii) The claimant and Mr Paton expressly agreed to take the risk that more money might need to be borrowed from the Bank in order to fund the amount payable to Westbrooke. [paragraph 117]
iii) The Citibank loan was known to all parties prior to the making of the Cliveden Place JVA. [paragraph 122]
iv) No allegation had been made in the EN claim that the Citibank loan was in any respect wrongful and an attempt to introduce that by further amendment had been dismissed at a hearing before the trial. [Paragraph 122]
i) The extra borrowing by Westbrooke was not a breach of the Cliveden Place JVA. [Paragraph 117]
ii) No loss was caused because Westbrooke and EN put more into the Cliveden Place JVA than they took out of it. [Paragraph 121 and 142 to 146]
"… It is a claim against Elliot Nichol's estate, partly based upon his involvement as a guarantor of Westbrooke Properties Limited, the company carrying out the JVA, and partly against him for fraudulent representation he made in relation to the value put upon the principal claim against the guarantor for breach of contract by Westbrooke Properties Limited in failing to carry out its obligations under the JVA. This claim is mentioned extensively in the particulars of claim in this action. It is important to note, however, that (as set out above) following documentation obtained since the Elliot Nichol action was pleaded, there is now a claim, supported by documentation that Stephen Brook was a party as a joint tortfeasor in the fraudulent misrepresentation and other matters as set out above."
"For my part, I do not think that parties should keep future claims secret merely because a second claim might involve other issues. The proper course is for parties to put their cards on the table so that no one is taken by surprise and the appropriate course in case management terms can be considered by the judge. In particular parties should not keep quiet in the hope of improving their position in respect of a claim arising out of similar facts or evidence in the future. Nor should they do so simply because a second claim may involve other complex issues. On the contrary they should come clean so that the court can decide whether one or more trials is required and when. The time for such a decision to be taken is before there is a trial of any of the issues. In this way the underlying approach of the CPR , namely that of co-operation between the parties, robust case management and disposing of cases, including particular issues, justly can be forwarded and not frustrated. "
"(i) where A has brought an action against B, a later action against B or C may be struck out where the second action is an abuse of process;
(ii) a later action against B is much more likely to be held to be an abuse of process than a later action against C;
(iii) the burden of establishing abuse of process is on B or C or as the case may be;
(iv) it is wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive;
(v) the question in every case is whether, applying a broad merits based approach, A's conduct is in all the circumstances an abuse of process; and
(vi) the court will rarely find that the later action is an abuse of process unless the later action involves unjust harassment or oppression of B or C."
Limitation
"(3) The addition or substitution of a party is necessary only if the court is satisfied that—
(a) the new party is to be substituted for a party who was named in the claim form in mistake for the new party;
(b) the claim cannot properly be carried on by or against the original party unless the new party is added or substituted as claimant or defendant; or
(c) the original party has died or had a bankruptcy order made against him and his interest or liability has passed to the new party."
SUMMARY
Note 1 From the evidence before me on the disclosure application I am not satisfied that the investigation, which has been on-going since 2015, has concluded. [Back]
Note 2 There is an error in the claimant’s table and one of the figures transferred on 19.1.07 should be £120,000 not £150,000. [Back]
Note 3 Clutterbuck v Cleghorn [2017] EWCA Civ 137, paragraph 68. [Back]
Note 4 The claimant’s witness statement dated 6.6.18, paragraph 32. [Back]