Levin (Applicant/Claimant) v Tannenbaum (Respondent/Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nugee |
| Judgment Date | 15 November 2013 |
| Neutral Citation | [2013] EWHC 4457 (Ch) |
| Docket Number | HC13A00990 |
| Court | Chancery Division |
| Date | 15 November 2013 |
[2013] EWHC 4457 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Nugee
HC13A00990
MR HORNET (instructed by LSG) appeared on behalf of the Claimant
MR RICHMOND (instructed by Pinsent Masons LLP) appeared on behalf of the Defendant
(As Approved)
I have before me an application by the defendant, Mr Michael Tannenbaum for summary judgment against the claimant, Mr Meir Levin under CPR Part 24 which is sometimes called, "Reverse summary judgment" and to various other relief in the alternative. The claim is brought by Mr Levin on five guarantees, each expressed to be made between Mr Michael Tannenbaum and Mr Levin between 13 November 2006 and 1 December 2006. Each purports to guarantee the liability of Michael Tannenbaum's brother, Barry Tannenbaum under loan agreements made between him and Mr Levin. These loan agreements are five out of a much longer series of loan agreements made between Mr Levin and Mr Barry Tannenbaum over the period from 2004 to 2008 under which many, many millions of US dollars were advanced by Mr Levin to Mr Barry Tannenbaum. Each loan came to be numbered and the particular loans which are the subject of the guarantees sued on in this action are deals 40 to 44.
The details of each loan are set out in the evidence and can be summarised as follows: Deal 40, date of agreement 13 November 2006, date of advance 26 September 2006, capital sum advanced US$36,600,000. Deal 41, date of loan agreement 13 November, (all these are 2006 dates) date of advance October, capital advanced US$1 million. Deal 42, 13 November, date of advance 25 October, capital advanced US$4.4 million. Deal 43, 24 November, date of advance 10 November, capital advanced US$830,000 and deal 44, 1 December, date advanced 22 December, capital advanced US$3.6 million. The total amount being the same as the total capital advanced, US$47,470,000.
Each guarantee is expressed to be executed as a deed and bears a signature which purports to be that of the defendant, Mr Michael Tannenbaum and a signature which purports to be that of a witness to his signature, Ms Kim Moran with her address given in London. The defendant however denies signing any of these guarantees and says the signatures are not his. Ms Moran denies signing them as well and says the signatures are not hers. Mr Michael Tannenbaum has obtained an expert report from a Mr Kim Hughes, a forensic document examiner, which has been put before me, dated 28 May of this year. He was asked to examine the signatures on the five guarantees and compare them to various sample signatures, both of Mr Michael Tannenbaum and of Mr Kim Moran.
The conclusions in relation to the purported signatures of Mr Michael Tannenbaum were as follows:
"(6.2.1) The specimen signatures of Michael Tannenbaum have been written on a number of occasions over a period from early in 2004 to 2013 showing a large degree of consistency. They are likely to show much of the range of variation that is found in his signature. In addition, they have been written both before and after the questioned signatures and thus will show how he was signing the signature at the time that the questioned signatures were written, therefore they are a good population of signatures for comparison purposes. Each of the questioned documents A to E (those are the five guarantees in question) bear a signature Tannenbaum on their final page and the odd pages were initialled "MT". I have found that these items are clearly written and correspond closely one to another and form a group such that I can accept that they were written by the same person. The signatures and initials on items A to E differ significantly from the specimen signatures of Michael Tannenbaum and in my opinion there is conclusive evidence that he was not the writer."
"In relation to the signatures of Kim Moran he again … (and I will not read it out) considered that the sample signatures were a good population of signatures for comparison purposes. Each of the question documents bears a signature of Kim Moran on their final page along with the name and address and the other pages bear initials 'KM'. The initials on each of the guarantees are similar to the signatures on them and the signatures show a number of similarities to the main entries below them. Overall, in my opinion the initials, signatures and names and addresses form a proof of handwritten which has been written by one person and its conclusion is that the question as to the handwriting, signatures and initials show significant differences to the specimens of Kim Moran and in my opinion, there is conclusive evidence that she was not the writer."
He explains what he means by the phrase, "Conclusive evidence" which is the strongest of the opinions that he expresses in such reports, there being a hierarchy of different opinions. To say that "in my opinion there is conclusive evidence" that someone is not the writer means that the expert is of the definite opinion but the questioned and the specimen handwriting have been written by different persons. There is no forensic evidence from the claimant to the contrary. It appears the claimant has attempted to obtain his own handwriting evidence but without success to date.
Mr Hornet who appears for the claimant for the purposes of this application does not challenge the expert handwriting evidence. He cautioned me against reaching any final and definite conclusion that the defendant, Mr Michael Tannenbaum, did not sign the guarantees in question but he does accept that the evidence suggests that they were not properly witnessed. I will proceed on the basis that as matters stand, the evidence is all one way, namely that Mr Michael Tannenbaum did not sign the guarantees and Ms Moran did not witness them while not purporting to reach any final definite conclusion on those matters.
Two main points are in effect made by Mr Richmond who appears for the defendant. The first is that if these guarantees are not deeds there is an unanswerable limitation defence and that by itself is a reason to grant reverse summary judgment. Secondly, if they are not signed by the defendant, there is no legal basis on which he can be made liable in the light of the evidence before the court. I will deal with the limitation point first; before doing so, I will remind myself of the principles applicable to applications for summary judgment under Part 24. Rule 24.2 provides:
"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."
It has not been suggested by either party that (b) has any application to the present case. The question before me therefore is whether the claimant has no real prospect of succeeding on the claim. The principles, as to which there has been no dispute between counsel are conveniently set out in a recent judgment of Ross J in a case called Leofelis v Lonsdale [2012] EWHC 485 (Ch) at paragraphs [37] and following in which he cited from a summary by Lewison J in Easyair v Opal Telecom [2009] EWHC 339 Ch in a formulation which has been approved by the Court of Appeal in AC Ward v Kaplan IV Limited. They are as follows:
"i) The court must consider whether the claimant has a 'realistic' as opposed to a 'fanciful' prospect of success: Swain v Hillman [2001] 1 All ER 91
"ii) A 'realistic' claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8]
"iii) In reaching its conclusion the court must not conduct a 'mini-trial': Swain v Hillman
"iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10]
"v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550;
"vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case : Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63
"vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that...
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...contract should be held to give a potential or actual creditor complete control over when time starts torun against him”. He considered Levin v Tannenbaum [2013] EWHC 4457, albeit briefly, commenting that the case was an application of the so-called Coburn principle. He then set out the que......
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...of a demand before liability arises: MS Fashions Ltd v BCCI [1993] Ch 425 at 435H–436D and 447H–448A. See also Levin v Tannenbaum [2013] EWHC 4457 (Ch) at paragraphs 23 to 25. 23. Since [Mr Roberts] had accepted liability as principal obligor, the above principal applies. Accordingly, the......