Assetco Plc v Grant Thornton UK LLP
| Jurisdiction | England & Wales |
| Judge | Mr Justice Bryan |
| Judgment Date | 06 February 2019 |
| Neutral Citation | [2019] EWHC 191 (Comm) |
| Docket Number | Claim No CL-2015-000884 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 06 February 2019 |
[2019] EWHC 191 (Comm)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF
ENGLAND AND WALES
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Rolls Building, Fetter Lane
London, EC4A 1NL
THE HONOURABLE Mr Justice Bryan
Claim No CL-2015-000884
Mark Templeman QC, Richard Blakeley and Tom Pascoe (instructed by Mishcon de Reya LLP for the Claimant
David Wolfson QC, Simon Colton QC and Stephanie Wood (instructed by Clyde & Co LLP) for the Defendant
Approved Quantum Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Written Submissions on Quantum: 1 February 2019
In my judgment handed down on 31 January 2019 ( [2019] EWHC 150 (Comm)) (the “Judgment”) I found that AssetCo's claim against GT succeeded in the respects found in that judgment and indicated that if quantum could not be agreed I would hear further argument on any issues that remained at or following the handing-down of my judgment. On 30 January 2019 I was informed that the parties had been unable to agree certain issues in relation to quantum, but that the parties were in agreement that they were content for those issues to be determined on the basis of written submissions to be provided on 1 February 2019, in anticipation of a quantum judgment in advance of a further oral hearing that is scheduled to tale place later in February to address, amongst other matters, interest and costs.
This judgment accordingly addresses the outstanding issues of quantum based on the written submissions that were duly lodged by the parties on 1 February 2019.
AssetCo's calculation of the total amount of damages (exclusive of interest and costs) to which it claims it is entitled under the judgment is as follows:
| Head of loss | Amount | Deduction for contributory negligence | Net amount awarded |
| Jaras | £1,500,000 ([1225]) | 25% ([1190(2)]) | £1,125,000.00 |
| Dividends | - | 100% ([1190(4)]) | - |
| Wasted expenditure on subsidiaries | £23,348,675 ([1244]) | 25% ([1190(1)]) | £17,511,506.25 |
| Plc-Level Expenditure | £3,533,206 ([1252]) | 25% ([1190(1)]) | £2,649,904.50 |
| AS Fire and Todd wasted profits | £1,435,817 ([1258]) | 25% ([1190(1)]) | £1,076,862.75 |
| TOTAL | £22,363,273.50 |
I do not understand there to be any dispute as to the composition of the sums themselves or the arithmetic as to the calculation of AssetCo's damages. However, in the event, two disputes have emerged from the parties' written submissions on quantum each of which relates to AssetCo's contributory fault:-
(1) GT submits that the appropriate level of deduction for contributory fault from that part of the wasted expenditure claim which overlaps with the PSA claim should be 35% and not 25% (as submitted by AssetCo) (the “First Quantum Issue”), and
(2) GT submits that the appropriate level of deduction for contributory fault from the Jaras claim, which overlaps entirely with the PSA claim, should be at least 35% and not 25% (as submitted by AssetCo) (the “Second Quantum Issue).
GT submits that on the basis of its submissions the amount of damages recoverable should be as follows:-
The Applicable Legal Principles in relation to Contributory Fault
| Head of loss | Amount | Deduction for contributory negligence | Net amount awarded |
| Jaras | £1,500,000 | 35% | £975.000 or less |
| Dividends | - | 100% | - |
| Wasted expenditure (Plc-leveland subsidiaries) from PSA monies | £10,141,339 | 35% | £6,591,870.35 |
| Wasted expenditure (Plc-leveland subsidiaries) not from PSA monies | £16,740,542 | 25% | £12,555,406.50 |
| AS Fire and Todd wasted profits | £1,435,817 | 25% | £1,076,862.75 |
| TOTAL | £21,199,139.60 or less |
I have already set out the applicable principles in relation to contributory fault, so far as they are relevant to the issues arising, at [1095]–[1097] of the Judgment, which are either common ground, or supported by existing authority. I will repeat them here for ease of reference:-
“1095 Firstly, the contribution is to the “damage” suffered, and not to the occurrence inflicting the damage – see Clerk and Lindsell on Torts (22 nd edn). at 3–58 – the classic illustration often given is a failure to wear a seatbelt – this in no way contributes to the accident occurring but it can contribute to the extent of the damage (see also what Lord Reed JSC said in Jackson v Murray [2015] UKSC 5, [2015] 2 All ER 808 at [20] which is quoted below).
1096 Secondly, any contributory negligence on the part of the claimant, however imprudent the behaviour, must be shown to be a cause of the relevant damage – see Clerk and Lindsell at 3–58 and 3–59 Lord Atkin in Caswell v Powell Duffryn Associated Collieries Ltd [1940] A.C. 152 at 165: “If the [claimant] were negligent but his negligence was not a cause operating to produce the damage there would be no defence. I find it impossible to divorce any theory of contributory negligence from the concept of causation.”
1097 Thirdly, a key point (which is common ground) is that it is necessary when applying section 1(1) of the 1945 Act, to take account “both of the blameworthiness of the parties and the causative potency of their acts” ( Jackson v Murray, supra at [40]). The consequence of this is that “[f]ault not causally contributing to the damage cannot be taken into account in the first place” for the purposes of assessing apportionment (see McGregor on Damages (20 th edn.) at 7–009).”
Thus, in relation to any particular head of loss the question is whether AssetCo's own fault contributed to the damage suffered ([1095]), in the sense of being a cause of that damage [1096], and in determining the appropriate deduction the key point is that it is necessary to take into account “the blameworthiness of the parties” and “the causative potency of their acts” [1097].
The First Quantum Issue
I have, in fact, already determined the first issue in favour of AssetCo, and AssetCo's position is in any event correct as a matter of principle applying the...
To continue reading
Request your trial
-
Natixis S.A. v Marex Financial
...detected, which maintains confidence in the global trade in endorseable warehouse receipts. 33 In my judgment of 21 January 2019 ( [2019] EWHC 191 (Comm)), and for the reasons set out therein, I put in place those measures which I considered were the absolute minimum in order to protect co......
-
Assetco Plc v Grant Thornton UK LLP
...of AssetCo's accounts in 2009 and 2010 in the respects identified therein, and my subsequent quantum judgment, on 7 February 2019 [2019] EWHC 191 (Comm), in which I found that AssetCo was entitled to recover damages of £22 million-odd from Grant Thornton before questions of interest and co......