United Trust Bank Ltd v Konstantinos Diamantopoulos
| Jurisdiction | England & Wales |
| Judge | Mr Justice Andrew Baker |
| Judgment Date | 19 March 2020 |
| Neutral Citation | [2020] EWHC 658 (Comm) |
| Date | 19 March 2020 |
| Docket Number | Case No: FL-2019-000002 |
| Court | Queen's Bench Division (Commercial Court) |
[2020] EWHC 658 (Comm)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
FINANCIAL LIST
Royal Courts of Justice
Rolls Building, Fetter Lane, London EC4A 1NL
Mr Justice Andrew Baker
Case No: FL-2019-000002
Nicola Allsop (instructed by Brecher LLP) for the Claimant
Paul Clarke (instructed directly) for the Defendant
Hearing date: 19 February 2020
Approved Judgment
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.
This Claim was issued by mistake in the Financial List, the intention having been to issue it in the general Queen's Bench Division list. An explanation of sorts for the mistake was given, but I confess I remain unclear how it occurred. Ms Allsop, who appeared for the claimant, could not gainsay my assumption that the claimant's solicitors must have exercised an option by checking a box, selecting from a pull-down menu or the like, but I cannot say I got to the bottom of what happened (and indeed further information provided by Ms Allsop after this judgment was circulated in draft indicates that my assumption may not be correct).
If the Claim requires a trial, therefore, the only question would be to which court or list it should be transferred, initially for case management, and whether there should first be a stay for mediation or other ADR effort. Though nominally listed before me for inter alia a first CCMC, little of the preparatory work required for such a hearing in the Financial List had been undertaken before the hearing and the matter was simply not ready for case management. However, and that in turn was because, the claimant says the Claim does not require a trial. The primary application listed for hearing was the claimant's application by Application Notice dated 15 November 2019 seeking summary judgment on the entire claim, alternatively the striking out of certain parts of the Defence that had been served.
I did not decline to hear that primary application on account of the mistake as to venue, since the parties were ready and the preparatory cost had been incurred. This is my judgment on it.
Mr Clarke, who appeared for the defendant on a direct instruction under the Bar's direct access scheme, proffered during the life of the application several revised versions of a draft Amended Defence. Ms Allsop accepted that there was no objection to (any of) the proposed amendments if the claimant was wrong to say there was no triable defence. So the proposed amendment of the Defence gives rise to no separate issue; and the summary judgment / strike-out application falls to be considered by reference to the final iteration of the draft Amended Defence as representing the best articulation that can be offered of any defence(s) that would be asserted at a trial.
In the event, for reasons it is not necessary to set out, that final articulation of the defence for trial struck through all the lines of defence that the claimant sought, in the alternative, to strike out, viz.
i) a plea of economic duress (Defence, para 7);
ii) a plea of breach of the claimant's duties as mortgagee in relation to realising value from its primary security (Defence, para 8); and
iii) a plea purporting to reserve a right to plead a defence or counterclaim by reference to alleged refusals by the claimant to allow the defendant to remortgage properties of his so as to refinance his personal debts (Defence, para 9).
In fairness to the defendant, I should add that in relation to Defence, para 8, Mr Clarke made clear that the plea was struck through as an alleged defence in view of a 'no set-off clause identified and relied on by Ms Allsop after the hearing (at the end of which I asked for further assistance in writing on that aspect and on the legal analysis of the defendant's primary line of defence that remains). Mr Clarke indicated that, subject to the defendant's ability to fund doing so, the defendant reserved the right to apply to add a counterclaim, or to bring a separate claim, seeking damages by reference to the matters that had been pleaded.
That simplifies and shortens this judgment.
The claimant sues to recover the sum due under a personal guarantee executed by the defendant as part of the package of security taken by the claimant to secure repayment by Albert Bridge Properties Ltd (“the Company”) of the loan it took from the claimant to fund the development of a luxury newbuild home known as Havona House at 57 Pembridge Villas in Notting Hill, London (“the Property”). The claim is for £4,118,335.85 as of the date of the Particulars of Claim, plus contractual interest due up to the date of judgment. No issue was raised over the claimant's calculations.
The Company was the defendant's property development vehicle for the Notting Hill project. It borrowed from the claimant, originally, under a facility agreement dated 2 July 2015 for up to £10,967,000, secured by a first legal mortgage over the Property, a debenture and a personal guarantee from the defendant limited to £2,500,000. The defendant was not asked to and did not provide any collateral security in respect of his liability as guarantor. His original guarantee was executed dated 25 July 2015.
Under the loan facility, the Company was obliged to repay in full by the earlier of 18 months after the first drawing on the facility and 3 February 2017. With the latter date in sight, in January 2017, the Company sought and obtained more time to pay and a substantial increase in the facility, to £13,629,000 (an increase of £2,662,000). There were further increases and/or deferments of the repayment date in December 2017, March 2018 and June 2018, such that the final total facility amount was £15,000,000 and the final repayment date was 29 June 2018.
The Company defaulted, leading to a demand under the facility on 8 October 2018 for the total sum then due from the Company, £15,713,084.82. Receivers over the Property were appointed by the claimant later that month....
To continue reading
Request your trial