Idris Ramise-Edwards v Kolawole Babatunde Idowu
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Farbey |
| Judgment Date | 30 April 2020 |
| Neutral Citation | [2020] EWHC 1039 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QA-2019-000170 |
| Date | 30 April 2020 |
[2020] EWHC 1039 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
On appeal from the County Court at Central London
HHJ Saggerson
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Farbey
Case No: QA-2019-000170
Mr Phillip Aliker (instructed by Fitzpatrick & Co) for the Appellant
Mr Sami Rahman (instructed by Dillex Solicitors) for the First Respondent
The Second Respondent neither appeared nor was represented
Hearing date: 4 February 2020
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.
This is an appeal, brought with the permission of Jefford J, against the order of HHJ Saggerson sitting at the County Court at Central London on 21 May 2019. The judge ordered (among other things) that the appellant pay the first respondent (who was the first defendant below) the sum of £45,778.21 representing money owed under a contract. He made no order against the second respondent (Mr Patrick Okonmah) who was the second defendant below and who has not needed to play any part in the appeal. For ease of reference, I shall refer to the appellant as the defendant and to the first respondent as the claimant.
Permission to appeal was granted on two grounds. The first ground concerns the judge's conclusion that the claim was brought within the relevant limitation period as opposed to being time-barred. The second ground concerns a payment made by the defendant to a third party in the sum of £8,303. The defendant submits that this payment was made on behalf of the claimant so that the defendant's liability ought to be reduced by the same amount. At the hearing before me, the claimant conceded this ground. It follows that I do not need to deal with the second ground in detail.
Factual background
The judge described the case as an “unfortunate tale” because it relates to the breakdown of friendships. It is indeed a case of friends trying to help each other in a way which, sadly, went wrong. The claimant and defendant were close friends and also had a solicitor/client relationship. As found by the judge, the claimant paid the defendant £350,000 on 9 May 2008. It was the claimant's case before the judge that this sum represented a loan from the claimant to the defendant for a fixed period of six months.
It was the defendant's case that he had brokered the loan and received the money on behalf of another friend of the parties, Bruce Ighalo. It was at all material times known by the claimant that the money was intended as a loan to Mr Ighalo who had fallen on bad times. The defendant had received the money only as Mr Ighalo's agent and had assumed no liability for its repayment, which fell entirely on Mr Ighalo.
There was no written loan agreement of any sort but it was common ground that the cause of action for the recovery of the loan would have accrued on 10 November 2008. It follows that (absent other factors) the six-year limitation period on a simple contract for the advance of the loan would have expired on 11 November 2014. The claim was issued in the County Court on 10 October 2017 – outside that six-year period.
The trial before the judge took place on 20 and 21 May 2019. He heard evidence from the claimant, the defendant and Mr Okonmah. Mr Ighalo did not give evidence. A witness statement by him had been served late and the judge refused to extend time.
The evidence and counsel's submissions addressed both the limitation period and the substantive claim which the judge considered together in a detailed ex tempore judgment. He introduced the limitation point at paragraph 14 of his judgment as follows:
“Leaving all the other issues, and there are several, for example, who provided the money? Who received the money? On behalf of whom did somebody receive the money? For what purpose was the money received and how much is outstanding? All these are factual issues that I am going to have to grapple with, but for limitation purposes, let us just suppose that this was a personal loan from the claimant to the first defendant.”
In considering the limitation period, the judge took into consideration the parties' correspondence about repayment. On 12 August 2014, the defendant had sent the claimant an email attaching a schedule of payments which the defendant maintained he had made to the claimant. On 13 August 2014, the claimant sent an email to the defendant attaching an annotated version of the schedule. The email said (retaining the original wording):
“The items highlighted in red I am disputing. I need dates and account those funds were paid into my account to cross check, I never got cash from. I know for a fact you have not paid 236,000 pounds out of the 350,000 pounds. Thanks.”
On 20 August 2014, the defendant sent an email to the claimant saying:
“I am aware that things are difficult for most of us now but I never thought there would be any reason for us to wrangle over amounts of money.
I kept a record of monies repaid to you at the time in the hope that Bruce would repay the money and for me to recover whatever I had paid from him. Nobody ever thought that things would turn out the way they have. As I mentioned to you I actually gave Bruce a copy of the breakdown last year for him to be aware of what needed to be repaid.
I am sure you cannot be implying that I can make up almost £90,000 payments that you claim are disputed. I thought in asking for the breakdown it was to check it against your statements/records. For instance it was exactly £90,000 or a bit more that was first repaid?
In asking for dates it would appear that you have not checked the items against your records. How will it look if the evidence confirms the payments.
…
In view of your disputing some of the payments, I am making arrangements to obtain past bank statements so that evidence can be shown of what has been paid.
…
Kola”.
The judge found that the 20 August email was not without ambiguity but held that its objective effect was “quite clear”. The defendant had signed it. As to its subject matter, the email was clearly referring to the defendant's schedule. The judge held:
“21….it is undoubtedly, when looked at objectively, a document signed in email terms by the…defendant acknowledging that these payments as appear on [the schedule], were paid to the claimant in the context of and related to and attributable to the loan that is the centrepiece of this action. There is no other logical objective or reasonable explanation as to what this email is about.
22. I am satisfied that, as of 20 August 2014, the… defendant acknowledged in writing and signed that acknowledgement to the effect that the loan or part of it remained outstanding. There can be no other explanation.
23. It is not necessary for the total amount of the loan to be mentioned in the written acknowledgment. It is sufficient if, objectively speaking as a matter of construction, acknowledgement of the loan itself is made and in my judgment, that is sufficient in this case to amount to a written acknowledgement that the loan was made and has been repaid in tranches as the…defendant maintains from the schedule.”
The judge construed the 20 August email in the context of, in particular, the schedule that had been attached to and the subject of the earlier emails, saying that the schedule demonstrated that the acknowledgment was referable to the loan in question. The claimant had demonstrated that there had been an acknowledgment that the balance of indebtedness remained outstanding. Accordingly, the limitation period was (in the judge's words) “kick-started” under sections 29 and 30 of the Limitation Act 1980. He concluded:
“That makes the issuing of proceedings on 10 October 2017 in time for the purposes of the refreshed limitation period and the defendant's defence insofar as it maintains that the action is statute-barred, is not a valid one and fails.”
Having held that the claim was not statute-barred, he went on to conclude that the defendant had repaid all but £45,778.21 of the loan by the date of the trial and he gave judgment for the claimant in that amount.
Legal framework
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