Booker and Another v RT Financial Services UK Ltd (Defendant/Applicant)
| Jurisdiction | England & Wales |
| Judge | Master Matthews |
| Judgment Date | 17 November 2016 |
| Neutral Citation | [2016] EWHC 3186 (Ch) |
| Date | 17 November 2016 |
| Court | Chancery Division |
| Docket Number | Case No: HC-2016-001877 |
[2016] EWHC 3186 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
The Rolls Building
7 Rolls Buildings
Fetter Lane
London
Master Matthews
Case No: HC-2016-001877
Ms Maria Mulla appeared on behalf of the CLAIMANTS/RESPONDENTS
Mr Adam Temple appeared on behalf of the DEFENDANT/APPLICANT
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.
This is an application, by notice dated 3 rd 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 9 th 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.
That application is made in the context of a claim that was begun, by a claim form dated 9 th 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 7 th 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.
The application before me is supported by evidence; that is, the witness statement of Charlotte Lucy Traff of 3 rd March 2016, and subsequently a witness statement of Mr Rani Haim Terdiman dated 25 th July 2016.
The application is opposed by evidence from Mr Gareth Ward Fatchett dated 8 th July 2016, and then further witness statements, one from the first claimant dated 6 th July 2016; one from a Mr Jack Markovic dated 23 rd June 2016; one from his wife, Elizabeth Markovic dated 23 rd June 2016, and finally one from Mr Moshe Kedar Hadari dated 6 th July 2016. I have read all of these witness statements.
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.
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.
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.
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."
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.
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.
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.
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.
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...
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