Vadim Don Benyatov v Credit Suisse Securities (Europe) Ltd
| Jurisdiction | England & Wales |
| Judge | Roger ter Haar |
| Judgment Date | 25 November 2020 |
| Neutral Citation | [2020] EWHC 3213 (QB) |
| Date | 25 November 2020 |
| Docket Number | Case No: QB-2018-001043 |
| Court | Queen's Bench Division |
[2020] EWHC 3213 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Roger ter Haar Q.C.
(SITTING AS A DEPUTY HIGH COURT JUDGE)
Case No: QB-2018-001043
Charles Ciumei Q.C. and Andrew Legg (instructed by Scott+Scott (UK) LLP) for the Claimant
Paul Goulding Q.C., Paul Skinner and Emma Foubister (instructed by Cahill Gordon & Reindel (UK) LLP) for the Defendant
Hearing dates: 1 and 2 October 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.
Roger ter Haar Q.C. SITTING AS A DEPUTY HIGH COURT JUDGE
Roger ter Haar Q.C.:
This is my fourth judgment in this matter. The first, handed down on 22 January 2020, dealt with the Defendant's applications:
i) to strike out the claim brought by Claimant;
ii) if or insofar as that application did not succeed, for a conditional order requiring the Claimant to pay £1.15 million into court;
iii) alternatively, for an order that the Claimant provide security for costs in the sum of £1.15 million.
In that judgment (my “First Judgment”) I dismissed the applications for a conditional order and for security for costs. As to the first application, that succeeded to a significant degree but also failed to a significant degree.
My second judgment was handed down on 18 February 2020 and dealt with the costs of the applications. I concluded that the Defendant should pay the Claimant one third of his costs of the three applications.
My third judgment was handed down on 20 March 2020, and related to an order as to interim payment as to costs.
The issues to which this judgment relates require me to an extent to go again over territory covered in my First Judgment.
There are two applications before the Court:
i) The Claimant's application dated 11 May 2020 for permission to amend the Particulars of Claim;
ii) The Defendant's application dated 11 June 2020 to strike out certain paragraphs of the Particulars of Claim.
I have been provided with a multi-coloured draft Amended Particulars of Claim. In that draft, the Claimant has put forward proposed amendments in the following colours:
i) Amendments in red are those consequential upon my First Judgment dated 22 January 2020;
ii) Amendments in green incorporate, at my suggestion, matters pleaded in the Claimant's Response to the Defendant's Request for Further Information dated 21 March 2018 and the Claimant's Schedule of Loss;
iii) Amendments in purple are those in respect of which the Claimant requires permission or consent.
(This categorisation is the Claimant's and in significant respects is disputed by the Defendant).
On the same draft are highlighted in yellow the amendments to which no objection is taken by the Defendant.
There are very many amendments to which objection is taken.
Also highlighted, in green, are passages which the Defendant contends, but the Claimant disputes, should be removed to reflect points in my First Judgment. These are the subject of the Defendant's strike out application. In his written and oral submissions, Mr Goulding Q.C., representing the Defendant, sought to add paragraphs 4 and 5 and the second sentence of paragraph 42 to those highlighted in green on the draft before me, and therefore to the list of passages which he sought to have struck out.
The following categories of passages in the draft pleading, as analysed by the Defendant, are in dispute:
i) The Claimant's proposed new claims in contract;
ii) The Claimant's proposed amendment to the tort claim;
iii) The Claimant's continued reliance on his Responses to the Requests for Further Information;
iv) Particular individual proposed amendments; and
v) Consequential changes to the Particulars of Claim to reflect the conclusions in my First Judgment.
For the Claimant, Mr Ciumei Q.C. addressed the issues in a different order. Mr Ciumei addressed the issues in the following order:
i) Red text: amendments consequent upon my First Judgment;
ii) Green text: amendments by way of incorporation of the contents of Replies to Request for Information;
iii) Complaints about insufficient particularisation;
iv) Complaints in respect of the incorporation of the Schedule of Loss;
v) Purple text: “true amendments”. Under this heading there are six sub-headings, as I set out below.
As will be seen below, I have found it convenient to deal with the issues in the order adopted by Mr Ciumei. However, before doing so, there are some preliminary matters raised by each party.
Preliminary Matters
The facts underlying this claim and the procedural history before the matter first came before me are set out in paragraphs 4 to 45 of my First Judgment. I do not repeat here what I set out there.
For the Claimant, there is understandable emphasis upon the disparity in resources between the parties. That is entirely and obviously a genuine point, but in my analysis it carries little weight, given that the Defendant's objections are to be assessed objectively as well founded or not.
However, there is a second point made by the Claimant which is to complain about the extent and nature of the objections taken. As will be seen below, I have found that complaint to be in large measure well founded.
For the Defendant, there are also a number of preliminary points made:
i) The Claimant's delay: the claim relates to events that took place prior to the Claimant's arrest in 2006 (the post-arrest claims having been struck out in my First Judgment). Although the proceedings were issued on 12 January 2018, the Claimant waited until 11 May 2020 to plead the new claims to which I refer below. That is, says the Defendant, a very significant delay;
ii) The Claimant's prolixity: the Defendant submits that despite the current draft being the sixth iteration of the pleading, the draft is still “ anything but the ‘concise statement of the facts on which the claimant relies’ required by CPR 16.4. Rather, this sixth iteration is prolix, lacks coherence and is pleaded in a manner which is antithetical to the fair and efficient management of the case”;
iii) The Claimant's lack of co-operation: the Defendant says that whilst it has sought to engage constructively in correspondence on the issues that arise for determination, the Claimant's approach has been characterised by recalcitrance and unreasonableness.
As to these points:
i) There has undoubtedly been delay, which necessitates consideration of the impact of the Limitation Acts on the new contractual claims, but otherwise it seems to me that a large measure of the delay arises out of the procedural delays caused by the strike out application which I ruled upon in my First Judgment, and the understandable re-evaluation of the case which has taken place. However, I accept that where proposed amendments involve investigation now of new factual matters dating back many years, I should be slow to allow such amendments.
ii) The pleading has certainly grown, not least because of the inclusion into it of material previously contained in Replies to Requests for Further Information. If I felt that the pleading was unreasonably prolix, the remedy would probably be to allow the Claimant to replead. Given the history of the action thus far, I would be reluctant to invite what in all probability would be a further flurry of lengthy letters between the parties. In the event, I do not think that the pleading is so prolix as to justify refusal of permission to amend on that ground: it may be lengthy, but once put into a “clean” format, it will present a perfectly manageable agenda for trial;
iii) As to the third objection, there has been an extraordinary amount of correspondence regarding the amendments. I do not see anything in the Claimant's solicitors' correspondence which I would characterise as recalcitrant or unreasonable.
Relevant CPR and Guidance
The Defendant's counsel's skeleton argument helpfully sets out a summary of the relevant CPR and guidance which I should apply:
i) The court must seek to give effect to the overriding objective of dealing with cases justly and at proportionate cost when it exercises any power given to it by the CPR: CPR 1.1(1) and 1.2(a). It is the duty of the parties to help the court to further the overriding objective: CPR 1.3;
ii) Particulars of Claim must include a concise statement of the facts on which the claimant relies: CPR 16.4(1)(a). This requirement of concision is “ very important in practice”: QB Guide 4.4.2 and 6.7.4(1);
iii) Once a statement of case has been served, a party may amend it only with the written consent of all the other parties or with the permission of the court: CPR 17.1(2).
That summary appears to me to be accurate.
Principles derived from the authorities
The Defendant's skeleton argument helpfully sets out the principles derived from the authorities which it says I should apply:
i) Whether the matter is raised on an application to strike out or for summary judgment or for permission to amend, the court will not allow a party to pursue a case that has no real prospect of success, because to do so is unfair to the other party and leads to nothing but a waste of costs and valuable court time: Habibsons Bank Ltd v Standard Chartered Bank (Hong Kong) Ltd [2010] EWCA Civ 1335; [2011] QB 943 at [12].
ii) For the amendments to be allowed, the applicant must show...
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