Bank of Scotland Plc v Peter Lisney Hoskins
| Jurisdiction | England & Wales |
| Judge | Paul Matthews |
| Judgment Date | 26 November 2021 |
| Neutral Citation | [2021] EWHC 3190 (Ch) |
| Docket Number | Case No: F4PP0192 |
| Court | Chancery Division |
[2021] EWHC 3190 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BRISTOL
BUSINESS LIST (ChD)
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case No: F4PP0192
Tim Calland (instructed by TLT LLP) for the Claimant
Gerard McMeel QC (instructed by GL Law) for the Defendant
Application dealt with on paper
Approved 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.
Introduction
On 17 November 2021 I handed down my reserved judgment in this matter, under neutral citation [2021] EWHC 3038 (Ch), without attendance, and adjourned consideration of consequential matters to be dealt with on paper. On 19 November 2021 I received a Note from leading counsel for the defendant, seeking permission to appeal to the Court of Appeal, as well as a stay of the claim pending appeal, together with a copy of draft Grounds of Appeal, containing two grounds. On 21 November 2021 I received a brief written response from counsel for the claimant.
Under the Civil Procedure Rules, rule 52.6, the court (whether the lower or the appellate) may not grant permission to appeal unless either there is a real prospect of a successful appeal or there is some other compelling reason why an appeal should be heard. The phrase ‘real prospect’ does not require a probability of success, but merely means ‘not unreal’: Tanfern v Cameron-MacDonald [2001] 1 WLR 1311, [21], CA. If the application passes that threshold test, however, the court is not obliged to give permission to appeal; instead it has a discretion to exercise.
Decision sought to be appealed
The decision against which the defendant seeks to appeal was one striking out his counterclaim in what would otherwise be a straightforward mortgagee possession action based on arrears of interest. An earlier mortgagee possession action between the same parties was compromised in 2013 in terms being “in full and final settlement of the claim and counterclaim” in that earlier proceeding, and also releasing “all claims, past present and future,” that the defendant might have against the claimant “arising out of or in any way relating to the Proceedings or the subject matter thereof, whether or not such claims are presently known”.
I decided first that, as a matter of construction, the counterclaim made in the present proceedings was barred by the settlement and release in the earlier proceedings. In so doing, I considered the decision of the House of Lords in BCCI v Ali [2002] 1 AC 251, but decided that it did not govern the present case. Secondly, I decided that the defendant could not demonstrate any real prospect of showing that the settlement agreement should be set aside, (as it was suggested) on the grounds of fraud.
That was enough to determine the application to strike out. But I went on, in case I were wrong, to consider aspects of the counterclaim. I decided that I would have struck out the fraud allegations in any event for failure to plead elements of the tort of deceit, but also for lack of particularity as to the alleged fraud. I further decided that I would have struck out the claim for damages based on breaches of implied duties of good faith on the basis that they would be time-barred, and also because the pleading of loss and damage was in my judgment inadequate and an abuse of process.
Grounds of appeal
The first ground of appeal challenges my construction of the earlier settlement agreement. It says that I did not apply the relevant principles of construction from the BCCI case, or alternatively went wrong in determining the application raised a “short point of law and construction”, suitable for summary determination. The second ground of appeal says that I went wrong in striking out the claim for damages based on breaches of implied duties of good faith because they were time-barred and also in striking out the pleading of loss is an abuse of process, apparently on the basis that I did not refer to “the detailed evidence particularising the loss of the Defendant which was contained in the Claimant's own evidence”.
In relation to the first ground, the defendant says that my decision rather applies the dissenting speech of Lord Hoffmann in BCCI, rather than the majority reasoning, which he says “either...
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