Christopher Nigel Roberts v The Royal Bank of Scotland Plc

JurisdictionEngland & Wales
CourtQueen's Bench Division (Commercial Court)
JudgeMrs Justice Cockerill
Judgment Date23 November 2020
Neutral Citation[2020] EWHC 3141 (Comm)
Docket NumberCase No: CL-2019-000599
Date23 November 2020

[2020] EWHC 3141 (Comm)

IN THE HIGH COURT OF JUSTICE

OF ENGLAND AND WALES

COMMERCIAL COURT

QUEEN'S BENCH DIVISION

Royal Courts of Justice,

Rolls Building

Fetter Lane, London,

EC4A 1NL

Before:

Mrs Justice Cockerill DBE

Case No: CL-2019-000599

Between:
Christopher Nigel Roberts
Claimant
and
The Royal Bank of Scotland Plc
Defendant

The Claimant is unrepresented

Christopher Langley (instructed by DMH Stallard) for the Defendant

Scheduled hearing date: 21 October 2020

Application determined on paper

Approved Judgment

I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Mrs Justice Cockerill

Introduction

1

In June 2006 a company called Vision TV Limited (“VTV”), whose business was in advertising via multiple screens to a captive audience, hired a temporary accounts clerk, Ms Fox, to assist during the maternity leave of its finance director Ms Turner.

2

Shortly after her arrival, a form which appeared to authorise her to be a full signatory of VTV's accounts was sent to the Defendant (“the Bank”). In the months which followed between 13 October 2006 and 4 May 2007 the Bank paid cheques presented to it in the total amount of £265,000. Those cheques bore Ms Fox's signature and were in favour of VTV's majority shareholder Mr Graeme Ross.

3

VTV was placed into administration on 15 February 2008, and subsequently into compulsory liquidation on 12 February 2009. In these proceedings the Claimant, Mr Roberts, says that the administration and compulsory liquidation were caused by the honouring of these cheques, though it is fair to say that he contends that the cheques were part of a much larger sum appropriated by Mr Ross.

4

Mr Roberts is the assignee of VTV's rights. In this action he makes two claims. The first is that the Bank lacked care and attention regarding the supervision of payments made out of the company bank accounts and that the size, the timeframe in which the payments were paid and the fact that all cheque payments were to the majority shareholder of VTV exceeded the reasonable and honest banker test in Lipkin Gorman (“the First Claim”). Mr Roberts says that if the Bank had followed normal banking procedure it would have inquired of VTV's CEO and been told that the cheques were not authorised. Mr Roberts says that this claim has evolved into a claim of Dishonest Assistance. That evolved claim (“the Fourth Claim”) is not pleaded and I shall deal with it separately.

5

Secondly it is said that the payments were made in breach of mandate, in that the cheques were co-signed by Ms Fox when she was not an authorised signatory on VTV's account and/or in that the Bank breached its duty of care in failing to verify the mandate form and the signature was therefore not a valid authority (“the Second Claim”). This argument has changed somewhat in reply, where Mr Roberts contends that the gist of the claim is that the Bank did not comply with its own procedures when adding an individual to the list, that consequently Ms Fox was not a properly authorised signatory and as a result all of the cheques she co-signed were only signed by one authorised signatory and not two, and were breaches of the bank mandate.

6

Mr Roberts seeks significant damages on the basis that VTV's insolvency was caused by these breaches, and that the value of VTV at the time it went into administration was £19,040,000.

7

The Bank seeks summary judgment and/or strike out of the claims made against it by Mr Roberts. It contends that the claims are time-barred and that Mr Roberts has no realistic prospect of establishing that the limitation period has been extended under section 32 of the Limitation Act.

8

This application has rather unusually been determined on the papers with the consent of the parties. That situation arises out of the Covid pandemic. In summary Mr Roberts and his McKenzie friend are not in a position to attend court physically for health reasons while the pandemic subsists (as it is still likely to do for some time). Nor however are they in a position to attend a remote hearing; essentially the requisite technology is not available to them. Mr Roberts was not content with a telephone hearing, because of the difficulties of communicating during it with his litigation friend. Both he and the Bank were however content for me to receive written submissions and decide the matter on that basis.

9

Since Mr Roberts is a litigant in person, I am producing two versions of this judgment. The first, designed essentially for Mr Roberts' consumption, makes use of cross references, so that he can understand clearly to what I am referring. The second will lack such cross references and be for general release.

10

I should also make clear the materials with which I have been provided. Those are:

i) Bundle A: this contains the conventional materials for the summary judgment application – the pleadings, the Application Notice, the witness statement of Mr Woolf in support and the first and second statements of Mr Roberts responding to the application, as well as the reply statement of Mr Woolf.

ii) Bundle B: This contains notes from what is known as “the RMP File” (either Relationship Management Plan or Risk Management Plan), and Mr Roberts later witness statements (third to eleventh, plus addenda) and correspondence wherein Mr Roberts sought to amend his claim;

iii) Bundle C: Inter partes correspondence and other documents whose inclusion was requested by Mr Roberts, including witness statements of Ms Turner and Mr Hanka;

iv) Skeleton arguments from both sides, plus a paragraph by paragraph rebuttal of the Bank's skeleton produced by Mr Roberts, which interpolates his comments on the Bank's case, and thus approximates to the oral submissions he would have given.

v) Two letters of complaint from Mr Roberts to the Bank's solicitors.

Limitation – the backdrop

11

Given that the payments were made more than 12 years prior to the date of the Claim Form (which was issued on 26 September 2019), the obvious problem – anticipated by Mr Roberts in his Particulars of Claim — is limitation. It is common ground that the claims are time-barred, unless Mr Roberts can demonstrate a sufficiently arguable case that the limitation period has been extended.

12

Mr Roberts meets this problem with the argument that the limitation period should not commence to run until November or December 2017 because it was only then that “the Relevant Facts” were discovered, having been deliberately concealed by the Bank until then. The Relevant Facts relied on are:

i) In respect of the First Claim “ the knowledge whether the Defendant conducted an inquiry on any of the cheque payments and if it did not why”.

ii) In respect of the Second Claim: “ the combination of the signed and complete Mandate; the contents of the Form and the RH 10th of January 2006 email plus attachments.”

13

The Bank contends that the argument is devoid of any substance and has no real prospect of success in that:

i) None of the facts in question are relevant to Mr Roberts' rights of action within the meaning of section 32(1)(b). Both claims could be pleaded without them. Indeed, before the Bank had provided any of the allegedly concealed material, VTV was able to make detailed allegations and threaten to issue proceedings against the Bank.

ii) Mr Roberts' argument on “deliberate concealment” rests on a wild conspiracy theory that the Bank deliberately failed to respond to letters from VTV's liquidators in 2013 and, further, that the Bank and its lawyers deliberately withheld documents from the Claimant until the limitation period had expired. Those serious allegations are not sufficiently pleaded and there is no arguable basis to make them.

Background

14

VTV was a customer of the Bank between 5 April 2006 and around 31 May 2011, when the last of VTV's accounts were closed. One of those accounts was a business current account with account number 10230194 (“the Account”).

15

As part of the account opening process, various documents were submitted to the Bank, including a document headed “Company Mandate”, which took the form of a certified excerpt from a meeting of the directors of VTV on 24 March 2006 (“the Original Mandate”). The Original Mandate authorised the Bank to accept instructions from “any two signatories” as set out on the “Authorised Signatories Sheet” attached to the Original Mandate. When the Account was opened, there were three authorised signatories: Ms Turner (VTV's Finance Director), Mr Corcoran (a director of VTV), and Mr Ross.

16

On or around 25 July 2006, the Bank received a document headed Change in constitution of Board or terms of signing authority for a Company Account (“the Additional Signatory Form”). Section 2 stated that Ms Fox had been appointed to the position of Finance Manager and that she was to be added to the existing authorised signatories. The Additional Signatory Form contained the (apparent) signature of Ms Turner and was certified as a true excerpt from the minutes of the meeting of directors of VTV. Ms Fox was thereafter added as an authorised signatory on the Account. The point which Mr Roberts makes is that this document did not have two signatures of VTV Directors, and that this decision, made on the basis of the single signature, enabled what happened next.

17

I have referred to Ms Turner's “apparent” signature. Mr Roberts alleges that Ms Turner's signature was forged and that the Board of VTV had never authorised Ms Fox to be added as a signatory to the Account. The Bank was not aware that the signature was forged (and nor is...

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    ...and that was the catalyst for it appointing an administrator. 64 The second case to which she refers me is Roberts v RBS [2020] EWHC 3141 (Comm). At paragraph 34 Cockerill J observes that “It is not every broadly relevant fact which qualifies (as a relevant concealed fact). The only facts ......

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