D – Dishonesty
27/7/20
THE FEDERAL DEPOSIT INSURANCE CORPORATION v BARCLAYS BANK PLC [2020] EWHC 2001 (Ch)
The claimant brought claims against a number of defendant banks alleging that USD LIBOR manipulation amounted to an agreement or concerted practice giving rise to breaches of Article 101 of the Treaty on the Functioning of the European Union and s 2 of the Competition Act 1998. An application for summary judgment disposing of the claim as time-barred failed. The court reviewed principles of deliberate concealment under s 32(1)(b) Limitation Act 1980 [25] and for pleading dishonesty [36]. The issue was whether facts in the public domain which the claimant could with reasonable diligence have discovered more than 6 years before it started the claim, provided a sufficiently solid foundation for the claim to be properly pleaded. On the evidence it was arguable that this test was not satisfied until regulatory findings were published in 2012 and that as a result the claim was not time-barred.
5/6/20
SOFER v SWISSINDEPENDENT TRUSTEES SA [2020] EWCA Civ 699
Considers principles for pleading dishonesty [23]. In pleading dishonesty against a corporate body, a failure to identify at the outset the directors, officers or employees who had the relevant knowledge, is not a reason to strike out an allegation of dishonesty on the part of the company [32].
27/5/20
BOYSE (INTERNATIONAL) LTD v NATWEST MARKETS PLC [2020] EWHC 1264 (Ch)
Considers the law relating to pleading deceit and fraud in a claim relating to LIBOR manipulation [35] and when the claimant could with reasonable diligence have discovered the fraud for the purpose of s 32(1) Limitation Act 1980 [38]. For that purpose there must have been something to put the claimant on notice [47]. Considers whether proceedings can be struck out where this is in issue, or whether summary judgment is appropriate [48]. It will normally be appropriate for summary judgment to be pursued on a limitation point and preferably after the claimant has had an opportunity to plead its case [53]. On the facts the claim was time barred and an application for permission to amend was dismissed.
14/5/20
BARROWFEN PROPERTIES LTD v PATEL [2020] EWHC 1145 (Ch)
Summarises requirements for pleading fraud/dishonesty [7], dishonest assistance [8], deceit [9] and unlawful means conspiracy [10].
1/5/20
BROOMHEAD v NATIONAL WESTMINSTER BANK PLC [2020] EWHC 1005 (Ch)
Considers the test for pleading dishonesty [18] and the circumstances in which a judgment will be set aside on grounds that it was obtained by fraud [19]. Stresses the need to identify sources of information and belief in statements making serious allegations of dishonesty [32]. On the facts the claim was inadequately pleaded, bound to fail and the particulars of claim would be struck out but the claimant would be given an opportunity to re-plead its case and seek permission to amend.
1/5/20
HRH THE DUCHESS OF SUSSEX v ASSOCIATED NEWSPAPERS LTD [2020] EWHC 1058 (CH)
Allegations of dishonesty are irrelevant in claims for misuse of private information [45]. Explains the need to provide full particulars when pleading a claim of dishonesty [48] and for a party alleging misconduct to give particulars before obtaining disclosure [59]. Also holds that aggravated damages cannot be recovered for distress caused by conduct which is separate and distinct from that which is alleged to constitute the tort [77].
18/3/20
BANK ST PETERSBURG PJSC v ARKANGELSKY [2020] EWCA Civ 408
Reviews principles on which an appellate court can interfere with findings of fact made by a trial judge [30] and the standard of proof required in respect of allegations of dishonesty [44]. In an unusual case in which both parties had behaved dishonestly, the trial judge had applied too high a standard of proof. He ought to have asked what explanation was more probable than not, having taken account of the nature and gravity of the allegation [51] [117]. He should also have stood back and considered the effects and implications of the facts he had found taken in the round [59]. A 22 month delay in writing the judgment had been inexcusable. The unwritten rule is that judgments should be delivered within 3 months [78] but the delay was not of itself a reason to allow the appeal. Also considers principles on which a claim can be barred by illegality [87], and the impact of ‘inequality of arms’ at trial [94].
10/3/20
BILTA (UK) LTD v NATWEST MARKETS PLC [2020] EWHC 546 (Ch)
Contains useful summaries of the principles of dishonest assistance [159], fraudulent trading [175], vicarious liability for the acts of employees [193], attribution of knowledge to companies [217], and the test of dishonesty [225]. In the context of claims that traders participated in the commission of missing trader intra-community VAT fraud, in order to prove dishonesty the claimants had to show that the traders had a suspicion, based upon some identifiable matters, that the trading that they were doing was part of, or connected in some way, with VAT fraud [235]. On the facts, the test was satisfied and the defendants were liable for dishonest assistance and knowingly being a party to fraudulent trading by the claimant companies.
7/9/18
AUTOGAS (EUROPE) LTD v OCHOCKI [2018] EWHC 2345
Summarises principles for liability for dishonest assistance [11], including the test for a finding of dishonesty [13]. It is not necessary to plead dishonesty expressly; however, if it is not expressly pleaded, the court is not entitled to make a finding of fraud unless the primary facts pleaded are inconsistent with anything other than dishonesty [15]. Also considers the nature of a so-called VAT acquisition fraud [17].
25/10/17
IVEY v GENTING CASINOS (UK) LTD [2017] UKSC 67
Summarises the correct approach to issues of dishonesty [74]. The fact-finding tribunal must first ascertain (subjectively) the actual state of the individual's knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.
22/2/13
ALTERNATIVE INVESTMENT SOLUTIONS (GENERAL) LTD v VALLE DE UCO RESORT & SPA SA [2013] EWHC 333 (QB)
The court dismissed an application to discharge a worldwide freezing injunction against a borrower and its director shareholders. The company was in default of a loan agreement provided by the claimant for a property development abroad, and the claimant had a good arguable case that it has been induced to enter into the loan agreement as a result of fraudulent misrepresentations contained in a business plan as to planning matters and security which was to be provided. Without the security there was a real risk of dissipation. Failure by the claimant to disclose that the security was only expected after the loan agreement was signed was not sufficient to set aside the order.
2/8/2012
LEGAL SERVICES COMMISSION v LONSDALES SOLICITORS [2012] EWHC 3311 (QB)
Need for solid evidence satisfied.