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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Edgeworth Capital (Luxembourg) SARL v Cuatrecasas Goncalves Pereira LLP [2025] EWHC 1014 (Ch) (02 May 2025) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2025/1014.html Cite as: [2025] EWHC 1014 (Ch) |
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CHANCERY DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
Fetter Lane, London, EC4A 1NL |
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B e f o r e :
____________________
| EDGEWORTH CAPITAL (LUXEMBOURG) S.A.R.L. |
Claimant |
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| - and - |
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| CUATRECASAS GONÇALVES PEREIRA LLP |
Defendant |
____________________
Graeme McPherson KC and Samuel Cuthbert (instructed by Kennedys Law LLP) for the Defendant
Hearing date: 4 February 2025
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Crown Copyright ©
The Retainer
Procedural History
(i) A "Letter Before Action" in English marked for the attention of Mr Sanz and Mr Bull to Cuatrecasas Gonçalves Pereira at its London office address. On its face it records it was sent physically by "certified post" and to the cuatrecasas.com email addresses of Mr Sanz and Mr Bull; and
(ii) A "Reclamation Extrajudicial" in Spanish marked for the attention of Mr Sanz and Mr Bull to Cuatrecasas Gonçalves Pereira at its Barcelona office address. On its face it records it was sent physically by "correo postal" and to the cuatrecasas.com email addresses of Mr Sanz and Mr Bull.
"governed by the fee proposal sent by Marco Antonio Sanz (Mr Sanz) on 27 March 2018, returned signed by Nicole Martin, Legal Counsel and director of R20 (Mrs Martin) in her capacity as legal representative of Edgeworth on 11 April 2018 (the Fee Proposal)."
The Letters Before Action referred to the claimant having lost an opportunity to obtain a greater profit from the Transaction had it been advised properly and to a belief that the claimant should be compensated for the loss it suffered. Each letter was signed by Ms Martin describing herself as "Legal Counsel" on behalf of R20.
(i) the Claim Form names the defendant as "Cuatrecasas Gonçalves Pereira" with no LLP (or SLP) suffix;
(ii) the relief sought by the "Brief details of Claim" as set out in the sealed claim form is as follows:
"1 – This is a claim for a declaration that:
a. Claim in tort. The Defendant owed the Claimant a duty of care to act with reasonable care and skill which was breached by a failure from the Defendant to advice the Claimant about the implications of two Spanish Supreme Court Judgements and that such failure caused Edgeworth loss in that it could have otherwise obtained a grater profit from the from the Santander Transaction.
b. Claim in contract: the Defendant breached specifics terms of the engagement with the Claimant by failing to advice the Claimant about the implications of two Spanish Supreme Court Judgements and that failure caused Edgeworth loss in that it could have otherwise obtained a grater profit from the from the Santander Transaction.
2 – Further or other relief
3 – Costs.
Value
To be assessed"
Together with the statement "to be assessed" against the "Amount claimed" heading.
(iii) the statement of truth was signed by Ms Martin describing herself, by ticking the corresponding box, as signing on behalf of "Claimant" and recording that the position or office she held with the claimant company was "Legal Counsel".
(i) no entity with the name used by the claimant as the defendant in the Claim Form exists;
(ii) the relief sought by the claimant is inappropriate and does not match the relief sought in the Particulars of Claim which, by its prayer, seeks:
"(1) Damages as aforesaid.
(2) An account of all profits earned by Cuatrecasas at the time it was retained jointly by ING and Edgeworth and an order for payment of such profits to Edgeworth.
(3) Interest as aforesaid."; and
(iii) Ms Martin's signature to the statement of truth does not comply with the requirements of CPR PD 22 para 3.1.
(i) the addition of "LLP" to the name of the defendant;
(ii) the striking through of the original brief details of claim and their replacement with the following:
"The Claimant claims damages of Euros213m for professional negligence as follows:
1. The Claimant claims damages for breach of contractual and/or common law duty by the Defendant.
2. The Defendant was at all material times the Claimant's appointed law firm. The Claimant had retained the Defendant to advise and represent it in conjunction with the proposed acquisition and (subsequently) disposal of a company directly or indirectly holding Banco Santander's "Ciudad Financiera" ('the Property').
3. The breach of duty comprised the failure by the Defendant to advise the Claimant of the implications of two judgments of the Spanish Supreme Court in cases 3000334/14 and N11/2015 handed down in February 2019 and April 2019 respectively ('The Spanish Judgments'). Those decisions had a significant impact on the value of a company called Sorlinda Investments SLU ('Sorlinda') in which the Claimant (via a Joint Venture) held an interest and which had acquired the rights to own the Property.
4. As a result of the Defendant's breach of duty:
(a) in June 2019 Sorlinda was sold to Banco Santander at a price that was €426m lower than would have been achieved had the Defendant advised the Claimant of the Spanish Judgments: and
(b) the Claimant lost the opportunity to earn from the said sale 50% of said sum.
5. The Claimant claims the sum of €213m being the increased revenue it would have received upon the sale of Sorlinda but for the Defendant's breach of duty.
(iii) the striking through of "To be assessed" in the "Amount Claimed" box and its replacement with "Euros 213m"; and
(iv) that Mr Wass would sign the statement of truth.
Relevant Parts of the CPR
"(a) means a claim form, particulars of claim where these are not included in a claim form, defence, counterclaim or other additional claim, or reply to defence; and
(b) includes any further information given in relation to them voluntarily or by court order under rule 18.1."
"2.4 The claim form must be headed with the title of the proceedings, including the full name of each party, where it is known – …
(4) for a company or limited liability partnership registered in England and Wales, the full registered name, including suffix (plc, Limited, LLP, etc), if any;"
"(1) The claim form must - …
(b) specify the remedy which the claimant seeks;
(c) contain a statement of value in accordance with rule 16.3."
"(2) The claimant must, in the claim form state –
(a) the amount of money claimed;
(b) that the claimant expects to recover—
(i) not more than £10,000; or
(ii) more than £10,000 but not more than £25,000; or
(iii) more than £25,000 but not more than £100,000; or
(iv) more than £100,000; or
(c) that the claimant cannot say how much is likely to be recovered."
"3.1 Where a document is to be verified on behalf of a company or other corporation, subject to paragraph 3.4 to 3.6 below, the statement of truth must be signed by a person holding a senior position in the company or corporation. That person must state the office or position held.
3.2 Each of the following persons is a person holding a senior position
(1) in respect of a registered company or corporation, a director, the treasurer, secretary, chief executive, manager or other officer of the company or corporation; and
(2) in respect of a corporation which is not a registered company, in addition to any of the persons set out in sub-paragraph (1), the mayor, the chair, president or town clerk or other similar officer of the corporation.
….
3.6 Where a party is legally represented, the legal representative may sign the statement of truth on their behalf. The statement signed by the legal representative will refer to the client's belief, not their own. They must state the capacity in which they sign and the name of their firm where appropriate.
…
3.9 A legal representative who signs a statement of truth must sign in their own name and not that of their firm or employer."
"(a) barrister;
(b) solicitor;
(c) solicitor's employee;
(d) manager of a body recognised under section 9 of the Administration of Justice Act 1985; or
(e) person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the conduct of litigation (within the meaning of that Act),
who has been instructed to act for a party in relation to proceedings;"
"In many cases there will be alternatives which enable a case to be dealt with justly without taking the draconian step of striking the case out."
"(1) The court's permission is required to remove, add or substitute a party, unless the claim form has not been served."
"(2) If his statement of case has been served, a party may amend it only—
(a) with the written consent of all the other parties; or
(b) with the permission of the court.
(3) If a statement of case has been served, an application to amend it by removing, adding or substituting a party must be made in accordance with rule 19.4."
The Identity Issue
(i) the interests of justice are best served by allowing the amendment;
(ii) no prejudice would be caused;
(iii) there can have been no confusion as to the identity of the intended defendant;
(iv) the claimant points to the note in the White Book at 17.4.5:
"Where an action is mistakenly commenced in the name of a claimant company which had ceased to exist as a result of a merger, the Court has power, to correct the name of the claimant company, since the mistake had gone to the name rather than the identity of the claimant, and such amendment would relate back to the date of commencement of proceedings so that there never was a non-existent claimant."
(v) the reported cases concerning the correction of names arise under CPR 17.4(3) where the statutory limitation period has expired and the applicant must demonstrate a "mistake" which was "genuine" and not such as to "cause reasonable doubt as to the identity of the party in question" if they are to be permitted to amend. Examples include: The Sardinia Sulcis [1991] 1 Lloyd's Rep 201 – where the proceedings were brought in the name of the ship owner which had ceased to exist by reason of a company merger by the time the issue of the claim; and Rosgosstrakh Limited v (1) Yapi Kredi Finansal Kiralama A.O. (2) Mehtap Denizcilik San. Ve Tic. Ltd. Sti [2017] EWHC 3377 (Comm) – where the named claimant had changed its name and corporate structuring and so ceased to exist before the issue of the claim form;
(vi) the claimant says that its application to amend is not made under the stricter regime of CPR17.4(3) and the misnomer by the omission of "LLP" is akin to a spelling mistake rendering the party sued non-existent, but obviously identifiable, such that it could not seriously be suggested that the claim should be struck out;
(vii) Ms Martin's evidence is that neither the lawyer who drafted the Claim Form nor she noticed the omission of "LLP" and that that was an honest mistake. She points out that the Engagement Letter uses only the name Cuatrecasas without any suffix, but includes the defendant's London office address and points out that the defendant invoiced the claimant nearly £850,000 pursuant to the Engagement Letter.
(i) Mr Castellani's evidence is that the claimant "engaged with" lawyers from Cuatrecasas Gonçalves Pereira based in both London and Barcelona in the relevant period some of whom are not members or employees of the defendant;
(ii) the minute of the claimant's board meeting on 19 February 2024 records that the claimant was intending to file a claim in England and Wales and/or in the Spanish courts against its former Spanish lawyers;
(iii) letters of claim were sent to both the LLP and the SLP;
(iv) the Brief Details of Claim do not identify the intended defendant;
(v) this is not a case where the claimant intended to sue and has sued an entity providing the wrong name, the Claim Form names a non-existent entity;
(vi) Mr Castellani's witness statement includes a brief digest of correspondence concerning the Identity Issue and exhibits copy documents including the hand-addressed envelopes in which the Claim Form and Particulars of Claim were delivered to the defendant's London Office, both of which include the suffix LLP and he relies upon them to conclude that the claimant was aware of the correct name of the legal entity it intended to sue;
(vii) permitting an amendment would prejudice the defendant by depriving it of the ability to argue that the contractual five year limitation period in the GHC applied to the claim. On well-established principles the effect of an amendment would be back dated to the date of issue. The better course is to strike out the claim and allow limitation to be tested in fresh proceedings.
The Relief Issue.
(i) says that claiming declaratory relief does not mean that the Claim Form is defective or that it was wrong to claim such relief. It accepts that claiming declarations as the only relief in a professional negligence claim would be unusual but says that the trial judge would as a matter of discretion be able to grant a declaration and points to the commentary in the White Book at 40.20.2:
"When considering whether to grant a declaration or not, the court should take into account justice to the claimant, justice to the defendant, whether the declaration would serve a useful purpose, and whether there are any other special reasons why or why not the court should grant the declaration";
(ii) points out that the relief sought included "further or other relief", and even if the claim for a declaration should be struck out that would not mean the whole claim should be struck out;
(iii) says no authority or rule has been identified which mandates the striking out of the claim of a claimant with a sustainable cause of action where the claimant includes a claim for an inappropriate remedy;
(iv) relies upon the decision of the Court of Appeal in Evans v CIG Mon Cymru [2008] 1 WLR 2675 where the claimant wrongly referred to "abuse at work" in his claim form while the Particular of Claim claimed remedies for an "accident at work". There the defendant successfully applied to strike out the Particulars of Claim as inconsistent with the claim form and resisted the claimant's application to amend to align the claim form with the particulars of claim, which was made after the expiry of the statutory limitation period and so governed by CPR 17.4. The Court of Appeal allowed the claimant's appeal. Toulson LJ referred to the various relevant parts of the CPR including CPR Part 17 dealing with amendments to statements of case and the definition of statement of case to which I have referred. He concluded "that the term refers compendiously to a party's case as set out in its pleadings." In circumstances where the claim form and particulars of claim were all served together he concluded at [26] of his judgment that the proper approach is to look at the totality of the documents served, which together set out the claimant's case and in that case included an obvious mismatch. Once that approach was taken the conclusion was that no new claim was being raised by the amendment application. In her concurring judgment Arden LJ discussed the proper interpretation of the claim form and the particulars of claim, which were served together, and were to be construed objectively but within the factual matrix which included a pre-action protocol letter and a telephone communication and concluded that the claim form ought to have been amended to properly reflect its true meaning. She described the result as a "blow in favour of the more cooperative approach to matters of procedure which was, surely, one of the purposes of the … Civil Procedure Rules." In his concurring judgment Laws LJ criticised the decisions below as representing "a stark surrender of substance to form. We should not allow such a thing unless irresistibly driven to do so."
The Statement of Truth Issue
(i) it has no employees and its sole director is Elton. On 19 February 2024 the claimant by valid resolution authorised Ms Martin to sign the Claim Form. Ms Martin is a lawyer holding a valid practising certificate at both State (Queensland) and Federal Bar in Australia. She is a registered foreign lawyer with the SRA and is therefore allowed to practise law in England and Wales as a Registered Foreign Lawyer. She has been Edgeworth's General Counsel, since around 2016. In her evidence Ms Martin explains that she has on multiple occasions been authorised to execute legal documents for Edgeworth, including in proceedings in which the defendant was involved. Further, it was she, on behalf of the claimant, who signed the retainer with which the current claim is concerned;
(ii) relies upon Protea Leasing v Royal Air Cambodge Co Ltd [2000] 3 WLUK 162 a case where the claimant was a shell company and the signatory was its General Counsel. Timothy Walker J ruled that the fact that there was not a perfect synchronicity with CPR 22 did not matter 'one iota'. The important thing was that the pleading "disclosed a respectable case". The strike out application was dismissed. The claimant says that that case is entirely consistent with the mischief to which CPR 22 is directed as explained by the editors of the White Book at CPR 22.1.2:
"the primary purpose of requiring statements of case (or amendments thereof) to be verified by statements of truth is to eliminate claims in which a party has no honest belief and discourage the pleading of cases unsupported by evidence which were put forward in the hope that something might turn up on disclosure or at trial (Clarke v Marlborough Fine Art (London) Ltd [2002] 1 WLR 1731, Ch D)."
(iii) relies also on the following passage in Zuckerman Civil Procedure: Principles of Practice, 4th Edition:
"…an order to strike out a statement of case would be made only if the failure is substantial in the sense that it is indicative of a reluctance on the part of a litigant to stand behind their allegations. Purely technical failures would not justify a striking out application, as where a claimant has failed to verify the claim form but has verified the particulars of claim, or where the statement of truth on behalf of a company was signed by the wrong company officer. Where a striking out application is well founded, the court would normally give the defaulting party a chance to verify the statement of case and would therefore order that the statement of case should be struck out only if it is not verified by a certain date (PD 22 para.4.2)."
(iv) Ms Martin's evidence also referred to her representing and giving evidence on behalf of the claimant in previous proceedings without any challenge to her ability to do so;
(v) the claimant points out that there is potentially a lacuna in the list at PD22 para 3 in the case of shell companies with corporate directors which will be unable to produce a natural person occupying the identified positions. The proper course is to read the list as permitting natural persons with appropriately delegated authority to sign on behalf of shell companies. If that is not done such companies could only participate in court proceedings by instructing English solicitors;
(vi) to strike out would again be a triumph of form over substance. The rules do not mandate the strike out of an improperly signed statement of case;
(i) points to the mandatory nature of the requirement for a statement of case, which includes the Claim Form, to be verified by a statement of truth in CPR 22.1(a) and points to the clear list of those occupying senior positions in registered companies or corporations who may sign and the alternative that a legal representative may sign in their own name and state the capacity in which they sign;
(ii) relies upon [47] of the judgment of Simler LJ in Clarkson v Future Resources FZE [2022] EWCA Civ 230 CPR 22 where it was said:
"The signing of a statement of truth is no empty formality. Its importance is emphasised by the potential liability for contempt of court if signed without an honest belief in its truth. At interlocutory stages a statement of case, verified by a statement of truth is itself evidence of the truth of the facts alleged in it: CPR Part 36(2)(a)."
(iii) points out that the claimant does not assert that Ms Martin was the claimant's legal representative; rather, its position, according to the evidence of Mr Wass and Ms Martin herself, is that Ms Martin held a senior position in the claimant as "in-house counsel carrying out the role of General Counsel since around 2016." There is no evidence that she has been appointed to such a role in the claimant, rather than for the claimant;
(iv) says that in any event the signature page of the Claim Form makes plain that Ms Martin did not sign it as a person holding a "senior capacity at the claimant." The address and email address make clear her signature was appended as a director of R20. Similarly the board minute authorising Ms Martin to sign referred to authorising Ms Martin "Head of Legal at R20 Advisory" to sign the Letters Before Action and Claim Form;
(v) points out that even if Ms Martin had a genuine belief that she was an appropriate person to sign the claim form there is no evidence that she gave any consideration to the issue before she signed and she plainly should have done so. The fact that her authority was not previously challenged in other circumstances is neither here nor there;
(vi) identifies ways in which the Claim Form could have been signed by the claimant. Elton could have signed, as it signed the Minutes of the Meeting giving authority to Ms Martin to sign, by two directors. The claimant's constitution provides that the claimant is managed by one or more managers; Ms Martin's evidence is that Elton is now the only manager of the claimant, but a former manager was Jean Marc Faber;
(vii) says that so far as the case of Protea is concerned in that case the company was a true shell company, which the claimant is not, and the person who signed held a power of attorney, putting it in the shoes of the claimant;
(viii) so far as the passage in Zuckerman is concerned, says that the present case is closer to the situation referred to earlier in the same paragraph where a claimant repeatedly refuses to sign a statement of truth.
Discussion
The Identity Issue
The Relief Issue
The Statement of Truth Issue
Conclusions