Richard Dixon v Santander Asset Finance Plc
| Jurisdiction | England & Wales |
| Judge | Saffman |
| Judgment Date | 26 April 2021 |
| Neutral Citation | [2021] EWHC 1044 (Ch) |
| Docket Number | Case No: BL-2019-LDS-000041 |
| Date | 26 April 2021 |
| Court | Chancery Division |
[2021] EWHC 1044 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
LEEDS DISTRICT REGISTRY
The Court House
Oxford Row
Leeds LS1 3BG
His Honour Judge Saffman sitting as a Judge of the High Court
Case No: BL-2019-LDS-000041
Mr Simon Myerson QC for the Claimant
Miss Tamara Oppenheimer QC for the First Defendant
Miss Eleanor Temple for the Second Defendant
Hearing date: 3 and 4 March 2021
Date draft circulated to the Parties: 19 March 2021
Date handed down: 26 April 2021
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.
Introduction
By a Claim Form issued on 1 October 2019, Mr Richard Dixon and Just Vans Self Drive Ltd (Just Vans), a company of which Mr Dixon was the sole director and shareholder, brought proceedings against Santander Asset Finance PLC and Handelsbanken PLC, the first and second defendants respectively. The claim by Just Vans is no longer proceeding.
Just Vans was initially set up with a view to conducting business in the buying and selling of motor vehicles but subsequently, from 2003, it was engaged in supplying vehicles for hire. Its activities were financed by Santander 1 and by Handelsbanken.
Santander provided the finance for a large number of vehicles which were let to Just Vans pursuant to the terms of certain hire purchase agreements and which were backed up by personal guarantees given by Mr Dixon. Handelsbanken provided more general finance facilities including an overdraft facility.
The finance agreements between Just Vans and Santander included provisions entitling Santander to treat as a repudiatory breach and terminate the agreements if sums due from Just Vans were not paid within 7 days or 14 days 2 of a demand for repayment.
Handelsbanken's exposure to Just Vans was secured by various forms of security including a debenture, guarantees and legal mortgages given by Mr Dixon. The overdraft facility letter governing the terms of Just Vans' overdraft with Handelsbanken provided, amongst other things, that sums outstanding under the overdraft were at all times repayable on demand and could be cancelled at any time upon notice.
In 2008 both Santander and Handelsbanken demanded repayment of their respective credit facilities and Santander called upon Mr Dixon to make good pursuant to the personal obligations into which he had entered.
Neither Just Vans nor Mr Dixon discharged the liabilities in respect of which demands had been made and, as a result, Just Vans was placed into administration by Handelsbanken on 25
The claim by Mr Dixon against Santander as it is currently proposed is first, for breach of contract on the basis that Santander had agreed a moratorium subject to conditions which Just Vans had met. The demand for repayment was made during the moratorium and was accordingly made in breach of contract.
There is a second basis of claim against Santander revolving around allegations of negligent misstatement. The essence of this claim is that shortly before Handelsbanken called in its overdraft and took steps for the appointment of an administrator Santander provided Handelsbanken with a spreadsheet containing negligently inaccurate information about the location and ownership of certain vehicles which were the subject of the hire purchase agreements between Santander and Mr Dixon. It is contended by Mr Dixon that this spreadsheet will have given rise to suspicions of bad faith/dishonesty on the part of Just Vans. Mr Dixon asserts that a significant and operative cause of Handelsbanken resolving to place Just Vans into administration was the provision by Santander of this inaccurate spreadsheet which is referred to in the pleadings as “The Altered Spreadsheet”.
The claim against Handelsbanken is confined to an allegation of breach of contract. It is centred first on the allegation that it was an implied term of the overdraft facility letter that Handelsbanken would not act irrationally, capriciously or otherwise than in good faith in exercising its right to demand repayment of the overdraft and that in making such a demand Handelsbanken has acted contrary to those implied terms.
It is also asserted that there was a second implied term to the effect that no demand would be made for repayment for as long as Just Vans acted in compliance with the terms of a debenture formula and the requirements of clause 8 of the overdraft facility letter 3.
Finally it is asserted that Handelsbanken represented to Just Vans that it would not reduce the overdraft facility at all or would reduce it only by £100,000 when the company had received monies arising from the re-mortgaging by Mr Dixon of a property known as The Boathouse and would not take steps that would put Just Vans into administration until it had received a report from an accountant instructed to consider the company's viability.
Santander deny that, in terminating the agreements and requiring repayment of outstanding amounts, it acted in breach of contract. It further denies any negligent misstatement in the Altered Spreadsheet and/or that any action taken by Handelsbanken was materially dependent upon receipt by it of this Altered Spreadsheet.
Handelsbanken denies that its arrangement with Just Vans was subject to any of the implied terms which are alleged but, even if they were, the action that it took in calling in its loans and appointing an administrator under the terms of its debenture were not a breach of those implied terms.
I am concerned with 3 applications:
• Santander's application dated 2 April 2020 that the claim against it be struck out pursuant to CPR 3.4(2). Alternatively that summary judgment be entered for Santander pursuant to CPR 24.2 (The Santander Application). The application is supported by the first and second statements of Ms Sally Emerton dated 2 April 2020 and 20 November 2020 respectively. Mr Dixon has filed and served a witness statement in response dated 25 September 2020.
• Handelsbanken's application dated 6 February 2020 that the claim be struck out and/or that summary judgment be entered for Handelsbanken (The Handelsbanken Application). That application is supported by the first and second witness statements of Mr Robert Payne dated 6 February 2020 and 19 November 2020. Mr Dixon has filed a separate witness statement in response to this application
• An application by Mr Dixon dated 19 June 2020 to re-amend the Particulars of Claim (The Amendment Application) 4. A further witness statement dated 25 September 2020 has been filed in support of this application.
The Santander Application does not seek to descend however into a consideration of the merits of Mr Dixon's claim or indeed the merits of Santander's defence to it. It is based upon the contention that the whole claim is time barred and that in those circumstances it has no prospect of success and should be struck out accordingly.
The Handelsbanken Application asserts with no less vigour that Mr Dixon's claim against it is time barred and should accordingly suffer the same fate as his claim against Santander. However, Handelsbanken pursues its application to strike out on the additional basis that, even if the claim is not time barred, it lacks any real prospect of success.
Both defendants' applications assert that in any event, the claims are an abuse of process.
As regards the Amendment Application, it is agreed that it stands or falls on the outcome of the defendants' applications. If the claims are struck out then the application becomes otiose 5. If they are not, then it was not suggested that permission to amend ought not to be granted.
There is no dispute that the primary limitation period for the making of any claim based on the conduct of Santander and Handelsbanken in their dealings with Just Vans and/or Mr Dixon expired in September 2014, well before these proceedings were brought. Mr Dixon argues however that, by virtue of s32 Limitation Act 1980, the claims are not time barred because the limitation period was postponed by the operation of that section and that, in any event, there has been a waiver, at least by Santander, of its right to rely on a limitation defence.
Further, it is argued that the claim does not lend itself to an application for summary judgment and that the claimants' limitation point ought to be properly determined as a preliminary issue
Santander is represented by leading counsel, Miss Tamara Oppenheimer QC, Handelsbanken by Miss Eleanor Temple of counsel and Mr Dixon by leading counsel, Mr Simon Myerson QC. I am grateful to all three for their very helpful skeleton arguments and oral submissions. I should add that Miss Temple made clear in the course of her oral...
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