Playboy Club London Ltd v Banca Nazionale Del Lavoro SpA

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLady Justice Gloster,Lord Justice Sales
Judgment Date12 September 2018
Neutral Citation[2018] EWCA Civ 2025
Docket NumberCase No: A3/2017/0148
Date12 September 2018

[2018] EWCA Civ 2025

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

HIS HONOUR JUDGE BIRD

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lady Justice Gloster

and

Lord Justice Sales

Case No: A3/2017/0148

Between:
Playboy Club London Limited
Appellant
and
Banca Nazionale Del Lavoro SpA
Respondent

Simon Salzedo QC and Fred Hobson (instructed by Simkins LLP) for the Appellant

Jeff Chapman QC and Andrew de Mestre (instructed by Bird & Bird LLP) for the Respondent

Hearing date: 22 May 2018

Lord Justice Sales
1

This is an appeal from the decision of HHJ Bird, sitting in the High Court, by which he struck out a claim by the appellant (“the Club”) against the respondent (“BNL”) for damages for the tort of deceit (“the deceit claim”) in relation to a credit reference in relation to a customer of BNL which was provided to a company associated with the Club (“Burlington”). The Club had previously brought a claim against BNL for damages for negligent misstatement in relation to the same credit reference (“the negligence claim”). The Club won that claim at first instance before HHJ Mackie QC sitting in the High Court ( [2014] EWHC 2613 (QB)), but then lost on appeal on the ground that BNL did not owe the Club a duty of care in relation to the credit reference provided to Burlington ( [2016] EWCA Civ 457). That result was recently confirmed by the Supreme Court in Banca Nazionale del Lavoro SpA v Playboy Club London Ltd [2018] UKSC 43. The issue in the present proceedings is whether it is an abuse of process for the Club to bring the deceit claim in a separate action commenced after it brought the negligence claim.

2

BNL contends that the Club could and should have brought the deceit claim at the same time as the negligence claim. Both claims could then have proceeded to a single trial at which all the issues between the parties would be determined. BNL says it is an abuse of process for the Club to have held back its claim in deceit as it did, and now to seek to have it determined after it has lost the negligence claim.

3

The Club accepts that a claim in deceit in relation to the credit reference could properly have been included in the action by which the negligence claim was brought. However, it submits that on the material available in advance of the trial in that action it would have been a speculative and weak claim in deceit (albeit one which could properly have been advanced) and, given the particular responsibility on counsel and a party in relation to pleading fraud, it cannot be said that it was incumbent on the Club to include a deceit claim in that action. After trial commenced in that action, significant new evidence has become available to the Club which has materially strengthened its case in deceit. The Club maintains that it is, therefore, no abuse of process for it to have commenced a separate action against BNL in relation to the deceit claim.

Factual background

4

In September 2010, a business development manager of BNL, Ms Paola Guidetti, arranged for an account to be opened with BNL in the name of Mr Hassan Barakat. No monies were deposited in the account and there was no significant movement of funds across it.

5

The Club operates a casino. It offers a cheque cashing facility to its customers, subject to a satisfactory bank reference being obtained.

6

Mr Barakat wished to gamble at the Club's casino. On 11 October 2010 he authorised the Club's associated company, Burlington, to contact his bank, BNL, to obtain a credit reference to allow him to cash cheques at the casino. He nominated Ms Guidetti as his contact at BNL. On 12 October 2010 Burlington's bank sent a fax to BNL, for the attention of Ms Guidetti, asking for a credit reference for Mr Barakat.

7

In reply, on 13 October 2010 a credit reference for Mr Barakat, purporting to be signed by Ms Guidetti, was sent to Burlington's bank (“the reference”). The reference stated:

“[Mr Barakat] of Via Tanara, 35, Parma 43100, maintains an account number 301 with us to our satisfaction and he is financially healthy and capable to meet his business commitments and all his obligations. Mr Barakat is trustworthy up to the extent of £1,600,000 in any one week.”

8

Upon receipt of the reference, the Club granted Mr Barakat a cheque cashing facility. Between 15 and 18 October 2010 Mr Barakat played at the casino. On 17 October he drew a cheque under the facility for the equivalent of £1 million in Euros, using the proceeds to buy gaming chips. On 18 October he drew a further cheque for the equivalent of £250,000 in Euros, again using the proceeds to buy gaming chips. In his gambling he made some losses and some limited gains. On 18 October he cashed in gaming chips to the value of £427,400 and left the casino. When the cheques were presented for payment they were said by BNL to be forgeries and were returned unpaid in November 2010. Mr Barakat was not seen again and it has not been possible to trace him.

9

On 12 March 2013, the Club commenced its action against BNL in respect of the negligence claim. In its Defence, dated 25 July 2013, BNL set out a number of defences. It did not admit that it had received the request for a credit reference for Mr Barakat. It did not admit that the reference was sent to Burlington's bank. At para. 13 of the Defence it was denied that the reference was properly provided by or on behalf of BNL, and in that regard it was stated that the reference contained a number of errors and anomalies as to its form and substance, including at paras. 13.3 and 13.4:

“13.3 The signature on [the reference] is said to be that of an employee of [BNL], Ms Paola Guidetti. However, she has stated to [BNL] that this signature is not genuine.

13.4 Without prejudice to paragraph 13.3 above Ms Guidetti, who worked for [BNL] in business development, was not authorised or entitled to provide a bank reference on behalf of [BNL].”

10

It appeared from para. 13.3 that BNL proposed as part of its positive case to rely upon an account given by Ms Guidetti that the signature on the reference which purported to be hers was in fact a forgery. The Club sought confirmation of this in a request for further information made under CPR Part 18. In its response dated 6 September 2013, BNL stated at response 8 that it “does not, at present, advance such a positive case but reserves the right to do so in the future”. I have some difficulty in following the relationship between that statement and what had been pleaded in para. 13.3 of the Defence. So did the Club: in its Reply, at para. 6.1, it stated that in light of that response “the relevance of paragraph 13.3 [of the Defence] is not understood.” It seems that BNL was seeking to keep its options open, in a rather questionable way in pleading terms, to advance a positive case at trial that the signature on the reference was a forgery.

11

The trial date was set for early July 2014. Disclosure in relation to the negligence claim was largely completed by mid-February 2014. The disclosure given by BNL included a complaint dated 12 July 2013 made by BNL to the Italian police, with two informal translations, in respect of the cheques given to the Club by Mr Barakat. Neither party put a formal translation of the complaint before the court, nor was it suggested that a formal translation would have had any bearing on what we have to decide.

12

The first translation of the complaint referred to the negligence claim brought by the Club in respect of what was described as “an asserted bank reference” and to the cheques cashed by Mr Barakat. A footnote (not, it seems, part of the text of the complaint to the police) stated that Ms Guidetti had been responsible for arranging the opening of the account of Mr Barakat with BNL, and described her as a “BNL employee who was later dismissed for justified cause on June 2012 after some internal verifications” (i.e. before the Club commenced proceedings on the negligence claim; the dismissal was not stated to be related to the incident with the Club). The translation of the complaint said that Ms Guidetti's signature on the reference “has been declared as ‘apocryphal’” (meaning, forged) and noted that “This circumstance should be verified during [the proceedings brought by the Club]”. At the end of the translation, this text appeared:

“It is necessary to declare, moreover, that Mrs Guidetti – ex employee – may be implied [ sic] in other anomalous cases concerning subscription on warranties related to [BNL] which have later been rejected by [BNL] itself and denounced.”

13

The second translation of the complaint was fuller and more precise. The reference was described as “an alleged ‘bank reference’”. It was said to be “questionable from many procedural and substantive aspects”, which were then set out. They broadly corresponded to those set out in para. 13 of BNL's Defence. As in the Defence, according to the second translation BNL referred to the signature on the reference, “ascribable to the former employee Mrs Paola Guidetti” and noted that it “was described by [her] to be ‘forged’, which would have to be specifically investigated as part of [the proceedings brought by the Club]”. In similar manner to the first translation, the second translation included this text:

“With regard to the name of the former employee, Mrs Paola Guidetti, the alleged signatory of the ‘bank reference’ in question who … identified and acquired the documentation for the subsequent opening of the current account on behalf of … Hassan Barakat at the time the cheques which subsequently proved to be forged were drawn, it is stated that said name [sc. that of Ms Guidetti] was implicated in other anomalous events relating to signatures on guarantees/sureties ascribable to [BNL] which, however, the latter disclaimed and reported.”

14

It appeared from the two...

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