IMRAN RAUF v (1) DHAMA DOUGLAS (A Firm)(2) S P DHAMA (3) H SINGH (4) ASTON ROTHBURY and COMPANY Ltd (5) NICHOLAS ST CLAIR (AKA WERNER SERIEUX) (6) CITY Corporation COMMERCE Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MOSES,Lord Justice Pill,Lord Justice Maurice Kay |
| Judgment Date | 28 February 2007 |
| Neutral Citation | [2006] EWCA Civ 1168,[2007] EWCA Civ 237 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No:A2/2006/2556,A2/2006/0562 |
| Date | 28 February 2007 |
[2006] EWCA Civ 1168
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE SEYMOUR)
(SITTING AS A JUDGE OF THE HIGH COURT)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Moses
A2/2006/0562
MR P PARKER (instructed by Messrs C M Atif & Co) appeared on behalf of the Appellant
MR P IRVIN (instructed by Messrs Needleman Treon) appeared on behalf of the Defendants
Judgement
1. This is a renewed application following refusal in writing by the single judge to grant permission, but originally adjourning the permission application for it to be argued in full, to be followed by the hearing of the appeal.
This tentative view was met by sensible protest from the respondent who said that this application should be disposed of without going to the expense of being prepared for a full hearing. So in my judgment it should.
The facts and background are set out fully in the judgment of HHJ Seymour QC of 1st March 2006. They arose out of a series of share transactions in which the claimant had thought that he had reached a cave of treasures whereby he could obtain large sums of money merely by mouthing the incantation, "Open sesame". In fact he had been promised that by a Mr Serieux. It did not turn out that way. Eventually he was fobbed off with an offer of proceeds of the sale of certain shares in the sum of £300,000 and told that the solicitors, the partner of whom was the second defendant who pursues this appeal, would give an undertaking to pay a sum of £300,000 by a certain date.
What happened was that all these parties were hoping to have this issue litigated in July of last year. The fifth and sixth defendants, who were involved in the companies in respect of whose shares were being traded, had dropped out by that stage. The fourth defendant was still there and, in the light of amendments proposed by the claimant, sought an adjournment in July 2005. That, it appears, the judge was going to grant.
Taking advantage of that, the second defendant then sought to raise the question of whether he too could amend to allege not that the undertaking was not binding, because it was not an undertaking given by a solicitor, but rather that the undertaking was a forgery. This was a difficult row to hoe since he produced a statement saying that the letter had been written by his assistant Jackie Phillips, and was not an undertaking given by a solicitor in the ordinary course of business but was merely a comfort letter.
The letter had read:
"We hereby confirm receiving payment from Aston Rothbury & Co Limited for the amount of £300,000.00 with irrevocable instructions to pay this amount to you on October 31st 2003. This amount being payment for the purchase of 1,000,000 shares of Expectra 840 (PTY) Limited."
That was the defence at that stage. Then counsel, Mr Christensen, had raised the question of saying this was a forgery, it being a letter not written by anybody authorised to do so on behalf of the firm, but some person who had sneaked his way into the premises and apparently stolen the notepaper.
The judge granted a half-hour for counsel of the second defendant to consider the matter. When counsel for the second defendant came back he withdrew the application. There the matter rested. As Mr Parker sensibly advances, the judge apparently had been motivated by the need to have all the parties who were still live parties before the court for the resolution of all the issues which arose.
9. The trial was then listed for 27th February 2006. In the meantime not one thing was done, unfortunately, by the second defendant to pursue the question of whether the undertaking was in effect a forgery.
On 27th February 2006 the fourth defendant sought a further adjournment on the basis that most of the important witnesses or officials had been arrested for fraud and therefore they were not in a position to deal with the matter. But the claimant wanted to go ahead against the second defendant on the issue of whether the letter which I have referred to was in fact an undertaking given by a solicitor.
The judge was prepared to do so, but the second defendant then sought to renew his application for an amendment. There was an adjournment until the following day and on the following day the judge refused it on the ground that it was far too late for the second defendant to seek to amend on that basis, having withdrawn the application the previous year.
Mr Parker, with some force, says the withdrawal the previous year it was unfair to hold against the second defendant because it was in the face of certainly threats by the judge to make the second defendant bear the costs of that adjournment, and indeed to force him to pay money into court. There is a certain force in that.
But the real difficulty of the argument is because of the delay that had taken place between July 2005 and February 2006. The second defendant, as I suspect Mr Parker and his clients appreciate, ought to have done something during that long passage of time to get on foot this amendment and not leave it until the second day of the trial, or perhaps the first day when it was first aired. It should all have happened much earlier. Although Mr Parker says nothing had changed, certainly it had not changed as to the desirability of all issues being tried with all relevant parties before the court, but what had changed was that passage of time.
In those circumstances it was open to the judge in the interests of the overriding objective to say, "It is just too late; you, the second defendant, withdrew the suggestion back in July and never sought to revive it until now".
So far as this court is concerned, whilst I have great sympathy for the second defendant caught up in this murky business of someone trying to make money out of nothing on the one hand, and in the clutches of what appeared to be a whole lot of dishonest share dealers and traders on the other, I cannot approach this matter as if it was a blank sheet. I have to consider whether it was open to the judge to make that ruling. In my judgment it was.
It is unnecessary for this case yet again to reiterate all those authorities for the obvious principle that case management decisions are for the case manager, in other words the trial judge, and not for this court. Unless it can be demonstrated that he really took leave of his senses, this court will not interfere. He did not. He was entitled to do what he did do. There was a basis for refusing this application for an amendment and the consequential adjournment, and the judge, for what it is worth, was right to refuse it.
17. In those circumstances the only live issue now is the question of whether the judge was wrong to find that the undertaking was an undertaking given by a solicitor in the normal course of business and he should be held to his undertaking to pay £300,000. In my judgment the arguments to the contrary are of no force whatever.
What is now raised is what was not raised before, namely whether this was in the ordinary course of business. Mr Parker contends that the letter came out of the blue and was far from being in the ordinary course of business. It was a mere promise and there is ample authority for the proposition that solicitors are not in the business of making promises to pay money when there is no underlying course of business.
That in my judgment is a hopeless contention having regard to Mr Dhama's own evidence in the statement that was before the judge when he made his ruling.
The other argument is that the undertaking can only have been to make good the loss suffered in the relevant share transaction, that there was no loss, and that this was a risk that the claimant himself took in entering into these transactions.
That in my judgment completely misunderstands the function of the court in keeping solicitors to their undertaking. That function is protected by the processes of the court as worked by their officers. It is nothing to the point that he in fact had not suffered that loss of £300,000. The point is that the solicitor had undertaken to make good the extent of the loss up to £300,000. In those circumstances his solicitor must be held to it.
In those circumstances, like the judge in writing, I think there is nothing in that point and this application is refused.
Order: application refused.
[2007] EWCA Civ 237
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE SEYMOUR QC)
Lord Justice Pill and
Lord Justice Maurice Kay
Case No:A2/2006/2556
MR B ANGAMMANA (instructed by Woodcroft Chambers) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
This is an application for permission to appeal against a judgment of HHJ Seymour QC given on 22 November 2006. The hearing this morning commenced with counsel for the applicant, Mr Bertie Angammana, seeking an...
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