Dudding and Another v Royal Bank of Scotland Plc
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Asplin |
| Judgment Date | 21 July 2017 |
| Neutral Citation | [2017] EWHC 2207 (Ch) |
| Court | Chancery Division |
| Date | 21 July 2017 |
| Docket Number | Case No: FL-2016-000001 |
[2017] EWHC 2207 (CH)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
7 Rolls Buildings
Fetter Lane
London
EC4A 1NL
Mrs Justice Asplin DBE
Case No: FL-2016-000001
Stephen Cogley QC (instructed by Fox Williams LLP) appeared on behalf of the Claimant
James MacDonald (instructed by DLA Piper LLP) appeared on behalf of the Defendant
(As Approved)
This is something which has been brought at some length and with some energy before the court this morning. It is an application for permission to rely on expert evidence and in particular expert evidence from Mr Hanif Virji, who is someone with great experience in relation to derivative products. He was already giving expert evidence in a case which was also concerned with the sale of derivatives.
Mr Cogley, on behalf of the claimants, seeks the permission, and Mr MacDonald, on behalf of the bank, the defendant and respondent to this application ("RBS"), opposes that application.
CPR 35.1 is concerned with expert evidence and is headed "Duty to restrict expert evidence". It is as follows: "Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings;" and my attention therefore was being drawn to the fact that first of all the rule says that expert evidence shall be restricted, and then only goes on afterwards to say "to that which is reasonably required to resolve the proceedings".
I have been taken to a number of cases, including St Dominic's Ltd v Royal Bank of Scotland Plc [2015] EWHC 3822, which is a decision of HHJ Havelock-Allan QC sitting as a High Court judge. I was also taken to the decision of Newey J in London Executive Aviation Ltd v Royal Bank of Scotland Plc [2017] EWHC 1037 (Ch); and also to Darby Properties Ltd & Ors v Lloyds Bank Plc [2016] EWHC 249 (Ch); and to the RBS Rights Issue Litigation [2015] EWHC 3433 (Ch); and, last of all, I was taken to the decision in British Airways v Spencer [2015] EWHC 2477 (Ch), a decision of Warren J.
However, it is accepted on both sides that in fact the issue of whether there should be expert evidence is case specific and fact specific and therefore, although there are many principles which are set out in the cases to which I have been referred, in fact each case turns on its own facts.
Mr Cogley, on behalf of the claimant, says that in this case it is quite clear that the tests which are set out in the RBS Rights Issue case, as to whether the evidence is admissible and whether it is reasonably required, are both obviously satisfied. He took me on a short tour of the particulars of claim and, for example, he showed me that it is pleaded that there is a fiduciary duty between the bank and the claimants and that therefore the bank had to act in the best interests of the client; and therefore for that reason alone he says it is necessary to have evidence before the court of what the best derivative product would have been in the circumstances.
He took me to paragraphs in the pleading in relation to a requirement to exercise reasonable care and skill and that representations made were accurate and not misleading. Mr Cogley makes a number of points in relation to that. He says that the bank employees who sold these products and others in their department would be experts in these matters; it is important to have an even playing field; it is also important to know what the standards were at the time in relation to these products; and what the market conduct was at the time? He says, for example, that it is raised on the face of the pleadings that the bank should have acted fairly and professionally at the time; and he says that therefore it is quite clear that the court needs to be assisted as to what the suitable products were and what the range of conduct was at the time which was proper and professional, and what, therefore,...
To continue reading
Request your trial