St Vincent European General Partner Ltd v Bruce Robinson
| Jurisdiction | England & Wales |
| Judge | Mr Justice Males |
| Judgment Date | 24 May 2018 |
| Neutral Citation | [2018] EWHC 1230 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: CL-2015-000679 |
| Date | 24 May 2018 |
[2018] EWHC 1230 (Comm)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
OF ENGLAND AND WALES
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Males
Case No: CL-2015-000679
Paul Downes QC and Joseph Sullivan (instructed by Trowers & Hamlins LLP) for the Claimant
Clare Stanley QC (instructed by Clyde & Co LLP) for the 1 st, 3 rd and 5 th Defendants
Thomas Braithwaite (instructed by ASB Law) for the 4 th, 6 th and 11 th Defendants
Jason Evans-Tovey (instructed by Aaron & Partners) for the Proposed 12 th Defendant
Tom Roscoe (instructed by DWF LLP and Temple Bright LLP) for the Proposed 13 th (DWF) and 14 th (Temple Bright) Defendants
Ben Quiney QC and Carlo Taczalski (instructed by Mills & Reeve LLP) for the Proposed 15 th Defendant
The Proposed 16th Defendant was not represented
Hearing dates: 9 and 10 May 2018
Introduction
There are three applications before the court:
(1) an application by the 1 st, 3 rd and 5 th defendants (“the Robinson defendants”) to strike out the claim against them, alternatively for summary judgment;
(2) an application by the 4 th, 6 th and 11 th defendants (“the Nicholson defendants”) to strike out the claim against them, alternatively for summary judgment;
(3) an application by the claimant (“St Vincent”) to re-amend its Particulars of Claim against the existing defendants and to add five new defendants to the claim.
The procedural background, in brief, is that in a judgment delivered on 15 December 2017 ( [2017] EWHC 3267 (Comm)) Phillips J set aside a worldwide freezing order obtained by St Vincent against the 1 st and 3 rd defendants on the ground that St Vincent did not have a good arguable case. On 9 January 2018 Flaux LJ refused permission to appeal, saying that the proposed appeal was hopeless and misconceived. St Vincent contends nevertheless that its claim should be allowed to continue to trial because (1) the test of “real prospect of success” required to resist an application for summary judgment is less demanding than the standard of “good arguable case” applicable for deciding whether to set aside a freezing order, (2) the conclusions reached by Phillips J and Flaux LJ are wrong and in any event do not deal with all the ways in which St Vincent puts its case, and (3) there is new evidence which was not before the court on the application for the worldwide freezing order.
The trial of the action is currently due to begin on 15 October 2018 with an estimate of four weeks. However, there have been delays on both sides with the consequence that disclosure has not yet taken place and witness statements have not been exchanged. Indeed, if the application to re-amend is allowed, pleadings have not yet closed. Clearly there will be much to do between now and October if this claim survives the present applications. Nevertheless no party is asking for the trial to be adjourned.
St Vincent has obtained a default judgment against the 2 nd defendant (“Winterbourne Pte”) and has settled its claims against the 7 th to 10 th defendants. Winterbourne Pte, a Singaporean company, was dissolved on 8 May 2017. Accordingly the Robinson defendants and the Nicholson defendants are the only remaining existing defendants to the claim.
Legal principles
The court may give summary judgment against a claimant if the claimant has no real prospect of succeeding at trial and there is no other compelling reason why the case should go to trial: CPR 24.2. In Swain v Hillman [2001] 1 All ER 91 Lord Woolf MR observed – optimistically but in my view accurately – that “the words ‘real prospect of succeeding’ do not need any amplification, they speak for themselves”. Despite this, a certain amount of case law has built up. For present purposes it is sufficient to say that the claimant need not show that it will probably succeed; what is required is a realistic as distinct from fanciful prospect, that is to say a prospect which is better than merely arguable and which carries some degree of conviction; this is a relatively low hurdle for a claimant to jump.
The court's approach to late amendments was summarised by Sir Geoffrey Vos C in Nesbit Law Group LLP v Acasta European Insurance Co Ltd [2018] EWCA Civ 268 at [41]:
“In essence, the court must, taking account of the overriding objective, balance the injustice to the party seeking to amend if it is refused permission, against the need for finality in litigation and the injustice to the other parties and other litigants, if the amendment is permitted. There is a heavy burden on the party seeking a late amendment to justify the lateness of the application and to show the strength of the new case and why justice requires him to be able to pursue it.”
The Chancellor referred also to the judgment of Carr J in Quah Su-Ling v Goldman Sachs International [2015] EWHC 759 (Comm). Carr J said at [38]:
“38. Drawing these authorities together, the relevant principles can be stated simply as follows:
a) whether to allow an amendment is a matter for the discretion of the court. In exercising that discretion, the overriding objective is of the greatest importance. Applications always involve the court striking a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general, if the amendment is permitted;
b) where a very late application to amend is made the correct approach is not that the amendments ought, in general, to be allowed so that the real dispute between the parties can be adjudicated upon. Rather, a heavy burden lies on a party seeking a very late amendment to show the strength of the new case and why justice to him, his opponent and other court users requires him to be able to pursue it. The risk to a trial date may mean that the lateness of the application to amend will of itself cause the balance to be loaded heavily against the grant of permission;
c) a very late amendment is one made when the trial date has been fixed and where permitting the amendments would cause the trial date to be lost. Parties and the court have a legitimate expectation that trial fixtures will be kept;
d) lateness is not an absolute, but a relative concept. It depends on a review of the nature of the proposed amendment, the quality of the explanation for its timing, and a fair appreciation of the consequences in terms of work wasted and consequential work to be done;
e) gone are the days when it was sufficient for the amending party to argue that no prejudice had been suffered, save as to costs. In the modern era it is more readily recognised that the payment of costs may not be adequate compensation;
f) it is incumbent on a party seeking the indulgence of the court to be allowed to raise a late claim to provide a good explanation for the delay;
g) a much stricter view is taken nowadays of non-compliance with the Civil Procedure Rules and directions of the Court. The achievement of justice means something different now. Parties can no longer expect indulgence if they fail to comply with their procedural obligations because those obligations not only serve the purpose of ensuring that they conduct the litigation proportionately in order to ensure their own costs are kept within proportionate bounds but also the wider public interest of ensuring that other litigants can obtain justice efficiently and proportionately, and that the courts enable them to do so.”
Background
I can take the background largely from the judgment of Phillips J.
St Vincent is a property investment company incorporated in the Isle of Man. During 2006 and 2007 it acquired the entire issued share capital of Haussmann Holdings Limited (“HHL”), a company incorporated in Cyprus. HHL in turn was the 100% owner of Haussmann Developments Polska sp. z.o.o. (“HDP”), a Polish company. HDP held various leasehold and freehold interests in a commercial development project in Zory, Poland, known as the Cross Point Development. St Vincent was incorporated for the purpose of investing in this development by acquiring what became these wholly-owned subsidiaries.
The 1 st defendant Mr Bruce Robinson and the 4 th to 11 th defendants (together “the Creditors”) had each invested in the Cross Point Development, their investment taking the form of loans to HHL and HDP; Mr Robinson's own investment was about £200,000. In February 2008 St Vincent agreed to assume liability for HHL's and HDP's indebtedness to the Creditors.
However, St Vincent was unable to repay the Creditors pursuant to the obligations it had assumed. The Creditors therefore commenced proceedings against St Vincent and, on 4 February 2010, obtained judgment for sums totalling £880,563.21 and €751,863.40 (“the Judgment Debt”).
On 13 April 2010 the Creditors and St Vincent (among others) executed an agreement (“the Framework Agreement”) pursuant to which St Vincent agreed to provide a charge over the entire issued share capital of HHL. The charge required by the Framework Agreement was provided by way of a deed dated 17 December 2010 (“the Shares Pledge”), by which St Vincent charged and mortgaged its shares in HHL to the Creditors, as security for the...
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