J - July 2020
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.
15/7/20
The court authorised administrators to consent to a proposal by the company’s directors that the company should distribute surplus funds to its shareholder (also a company in administration). It was sufficient that the court was satisfied that the administrators were performing their functions with the overall objective of rescuing the company as a going concern. It was not necessary that making the distributions would of itself cause, or specifically promote, the company’s rescue.
15/7/20
SEVILLEJA v MAREX FINANCIAL LTD [2020] UKSC 31
A person who is a creditor and not shareholder of a company is not subject to any rule of law which prevents a claim against the company to recover loss which the company itself has a claim to recover. The majority of the court confirmed that the rule of law applies only to claims by shareholders to recover loss in value of their shares because only the company suffers that loss, not the shareholder. The minority of the court doubted that there is any such rule of law and would instead limit such claims by applying rules against double recovery, including subrogation.
14/7/20
HANCOCK v PROMONTORIA (CHESTNUT) LTD [2020] EWCA Civ 907
The fact that an assignee relied on a heavily redacted copy of an assignment did not establish a substantial dispute sufficient to enable the borrower to set aside a statutory demand. The court was entitled to rely on a witness statement from a solicitor exhibiting the redacted copy assignment and confirming that the loans made to the borrower had been assigned to the assignee [52]. A party relying on a contract should provide an explanation of the nature and extent of any redactions and the reasons for making them. In general, irrelevance is insufficient. There must be some additional feature such as privacy or confidentiality [74]. On the facts of the case, any failure to do so had not caused injustice to the borrower [78]. In a different case a court might conclude that it could not safely construe a redacted document [91].
7/7/20
HOLT v HOLLEY & STEER SOLICITORS [2020]EWCA Civ 851
Considers when damage was first suffered as a result of the failure of solicitors to obtain expert property valuation evidence for the purpose of matrimonial proceedings. The court rejected a submission that damage was purely contingent until the court had given judgment in May 2012. The damage was suffered when the claimant lost the ability to adduce the relevant evidence in March 2012. That had been more than 6 years before proceedings were started against the solicitors in April 2018, so the claim was time-barred.
3/7/20
DAVIS v LLOYDS BANK PLC [2020] EWHC 1758 (Ch)
The claimant sought damages for breach by the bank of statutory duty under the FCA rules by its conduct of a review of the mis-selling of an interest rate hedging product to the claimant. The court held that by participating in the review the claimant had not made a complaint to the bank within the DISP rules of the FCA Handbook. In addition, any failure to comply which the review agreement would not have been a breach of the DISP rules as the DISP rules did not incorporate the review rules.
2/7/20
TFS STORES LTD v THE DESIGNER RETAIL OUTLET CENTRES (MANSFIELD) PARTNER LTD [2020] EWCA Civ 833
The automatic stay imposed by PD 51Z and CPR Part 55.29 operated to stay two appeals in possession proceedings. Although the proceedings had been started for declaratory relief under CPR Part 7 (rather than CPR Part 55) and had not been possession proceedings, the landlords had made counterclaims for possession and as a result the whole proceedings became proceedings for possession under CPR Part 55 [26]. Similarly, the inclusion of orders for possession by consent into orders made by the court, meant the proceedings were possession proceedings.
1/7/20
FATIMA v FAMILY CHANNEL LTD [2020] EWCA] Civ 824
Considers the test under CPR r 39.3(3) for setting aside an order made at a trial which the defendant did not attend on medical grounds associated with severe anxiety [35]. Confirms that the approach under r 39.3(3) is less draconian than the approach to an application to adjourn a trial. The judge hearing the set aside application is, therefore, entitled to reach a different decision on the same facts to the trial judge who refused an adjournment.