Bournemouth And Boscombe Athletic Football Club Ltd v Lloyds TSB Bank Plc

This is an appeal by Bournemouth & Boscombe Athletic Football Club Ltd (“the Club”), the claimant in the action, against an order made by Peter Smith J on 16 April 2003 dismissing the Club’s application for an extension of time in which to serve its Particulars of Claim and striking out the action. Permission to appeal was refused by the judge but was granted by Carnwath LJ at an oral hearing on 26 June 2003.

The defendant in the action, and the respondent to this appeal, is Lloyds TSB Bank plc (“the Bank”).

On this appeal the Club appears by one of its directors, Mr Royston Pack, pursuant to permission which I granted in October 2003. The Bank appears by Mr Michael Lerego QC.

The action forms part of a long-running dispute between the Club and the Bank dating back to about 1991. Central to the Club’s allegations in the action is a re-financing agreement dated 23 September 1994 (“the 1994 Agreement”), whereby the Bank agreed to grant a term loan facility to the Club. Clause 14 of the 1994 Agreement provided that on the occurrence of any one of a number of specified events there listed (defined as ‘Events of Default’) the Bank might terminate its obligations under the 1994 Agreement and demand immediate repayment of the outstanding indebtedness under the facility. One such ‘Event of Default’ (the first in the list in clause 14 of the 1994 Agreement, and identified by the letter (a)) was default by the Club in paying any sum due under the 1994 Agreement. On 2 July 1996 the Bank demanded immediate repayment under clause 14, on the footing that that event (a) had occurred (i.e. that the Club was in default in making repayments under the 1994 Agreement). In the action, the Club contends that it was not in default at that date; and that in making the demand the Bank breached the 1994 Agreement, thereby causing loss and damage to the Club amounting to almost £29M. It accordingly claims damages for breach of contract.

Initially, the Club also claimed damages for breach of an alleged common law duty of care owed by the Bank to the Club in failing to disclose certain matters to the Club, but in the course of the hearing before Carnwath LJ Mr Pack made it clear that the Club did not intend to pursue that claim.

The action is the second action which the Club has brought against the Bank relating to the 1994 Agreement, and it is the second action which has been struck out for failure to serve Particulars of Claim within the time prescribed by the CPR. The claim form in the first action was issued on 22 September 2000. The Club failed to serve Particulars of Claim within four months thereafter, as required by CPR 7.4(2). The Bank accordingly applied to strike out the action. The Club made no application for an extension of time, nor did it attend the hearing of the Bank’s application. By his order dated 21 March 2001 Master Tennant struck out the action.

Although no Particulars of Claim were ever served in the first action, it appears from the brief details of the claim set out in the claim form in that action that there is, to put it no higher, a degree of overlap between the issues in the two actions.

The claim form in the present action was issued on 28 June 2002 and served on 28 October 2002. 28 October 2002 was the last available day for service of the claim form in compliance with the CPR, in that it was the last day of the four-month period beginning with the date of its issue (see CPR 7.5(2)). CPR 7.4(2) provides that Particulars of Claim must be served no later than the latest time for serving a claim form. Hence 28 October 2002 was also the last available day for serving Particulars of Claim in compliance with the CPR. However, the Particulars of Claim were not served until 8 November 2002: that it to say, 11 days late.

The Bank applied to strike out the action under CPR 3.4(a) and (c), that is to say on the ground that the Particulars of Claim disclose no reasonable grounds for bringing the claim; further or alternatively on the ground of the Club’s failure to serve the Particulars of Claim within the time prescibed by CPR 7.4(2). The Club countered with an application under CPR 3.1(2)(a) to extend time for service of the Particulars of Claim.

The two applications were heard together by Peter Smith J. He declined to exercise his discretion to extend time for service of the Particulars of Claim, concluding that the Club’s failure to comply with the CPR was deliberate. He also concluded that in any event the claim was bound to fail. Accordingly, by his order dated 16 April 2003 he dismissed the Club’s application and struck out the action.

The Particulars of Claim plead a number of representations made by Mr Thomas of the Bank, including the following:

“iv)

Mr Brian Thomas a Senior Manager of the defendant represented to the Claimant at the 23 September 1994 meeting that the defendant held a £250,000 personal guarantee in the name of Gardiner, collateralised against a £250,000 cash deposit in Gardiners name lodged with the defendants branch in Jersey. The defendant held security over the Gardiner £250,000 cash deposit in Jersey.

v)

Mr Thomas of the defendants represented that the terms of the loan facility in the context of Gardiners personal guarantee and its collateral security were as follows :

a)

If Club paid £250,000 on 30 June 1996,

b)

then Ken Gardiners £250,000 cash was still in place to guarantee the clubs payment on 30 June 1997.

c)

If Ken Gardiner paid his £250,000 on 30 June 1996, then club had until 30 June 1997 to pay the defendant £250,000.

d)

If Ken Gardiners £250,000 paid clubs £250,000 due on 30 June 1997, then the club was not in default and had until 30 June 1998 to pay 3^rd annual repayment of £250,000.

e)

that Hayward would benefit from the above £250,000 reductions whereby his £650,000 personal guarantee would reduce on a pound for pound basis.

f)

if claimant paid £250,000 annual repayments on 30 June 1996 and 30 June 1997, then the defendant released to Gardiner his £250,000 cash deposit in Jersey.

vi)

The collateral guarantee of Gardiner as set out in (v) and (vi) above guaranteed the claimant a had a three (3) year breathing space or moratorium on default under the new facility up until to 30 June 1997, in that the Mr Thomas of the defendant represented to the claimant and its Directors, that even if the Gardiner guarantee was called on to satisfy the 30 June 1996 payment the club had until 30 June 1997 to find £250,000 to satisfy the second instalment of £250,000.”

Paragraph 3(viii) pleads (at (b)) that the Club benefited from the new loan facility in that (among other things) it had a “3-year breathing space against default until 30 June 1997”. Paragraphs 4 to 6 of the Particulars of Claim plead as follows (so far as material):

“4.

It was a term of the agreement that the Claimant or Gardiner, would repay to the Defendant the sum of £250,000 on or before 30^th June 1996 and that a further £250,000 would be repaid to the Defendant on or before 30 June 1997. It was a term of the agreement that there would be no default on the part of the Claimant unless and until each and either of the said payments of £250,000, aforesaid, were not made to the Defendant by the due date, as described in 3(iv), (v) and (vi) above.

5.

The Defendant received the first payment of £250,000 from Gardiner, those monies being available to it to take at its election prior and up to the 30^th June 1996.

6.

Despite the fact that the Defendant had monies available from Gardiner to discharge the £250,000 prior and up to 30^th June 1996 it treated the Claimant immediately thereafter as in default. The defendant issued a letter of demand on the claimant on the 2 July 1996……. In so doing the Defendant was in breach of its agreement with the Claimant.”

Paragraph 7 pleads non-disclosure by the Bank, but, as indicated earlier, that claim has been abandoned.

Under the general heading “Particulars of Loss and Damage”, paragraphs 9 and 10 read as follows:

“9.

As a result of the Defendant’s breach of contract, as outlined above, the Claimant was unable to continue trading. The defendant on or about 13 August 1996 cancelled the Claimant’s rights to a £500,000 write off, known as Tranch “B”. The defendant failed to support the claimant’s application to appoint an administrator which was fully underwritten by Mr Norman Hayward a director of the Claimant. An Administrative Receiver was allegedly illegally appointed by the defendant and a CVA was set in place. The administrative receiver and or the defendant, refused to allow the claimants financial underwriter to make a Directors CVA application. The defendant made a CVA agreement with Mr Trevor Watkins a solicitor with legal firm Hammond Suddard. Mr Watkins was not a director of the Claimant at the time of the original deal. However, Mr T. Watkins became a Director of the claimant on or about 15 May 1997.

10.

As a direct result, the Club, its directors and its financial underwriter Mr Norman Hayward lost control of the assets of the Club.”

Paragraph 11 lists eighteen heads of loss, totalling an estimated £28.9M. The only relief claimed is damages for breach of contract, and interest.

The Bank served its Defence on 24 January 2003. The Defence expressly contemplates an application to strike out the action. By its Defence, the Bank denies any oral representations by Mr Thomas, save to the extent that the pleaded representations reflect the terms of the 1994 agreement; and it denies that the demand was wrongful. Clause 11.3 of the Defence pleads that in any event the Club was in default by reason of other ‘Events of Default’ as defined in the September agreement. (In argument, Mr Lerego made it clear that the only other ‘Event of Default’ on which he relies in this connection is the insolvency of the Club (event (i) in the list in clause 14 of the 1994 Agreement).

The Bank’s application to strike out the action was issued on 28 January 2003. It is supported by a witness statement by Ms Kathryn Mackie, of Messrs Osborne Clarke, the Bank’s solicitors. On 5 February 2003 the Club issued its application seeking an extension of time. The application is supported by witness statements by Mr Pack.

At the hearing of the applications, Mr Pack told the judge that the reason for the late service of the Particulars of Claim was that he had mistakenly believed that under the CPR the Club had a further 14 days after service of the claim form in which to serve them. At the conclusion of the hearing the judge informed the parties that he intended to accede to the Bank’s application and to dismiss the Club’s application, but would give his reasons later. This he did in a written judgment handed down on 16 April 2003, which led to his order of that date.

In his judgment, the judge rejects Mr Pack’s explanation of the late service of the Particulars of Claim. In paragraph 15 of his judgment he says:

“It is quite clear that the Club would have been well aware of the obligation to serve the Particulars of Claim with the Claim Form because the Bank’s solicitors applied on 12 February 2001 for those first proceedings to be struck out because of a failure to serve the Particulars of Claim with the Claim Form. I therefore reject the suggestion put forward by Mr Pack that it was ignorance that was the reason for non-service.”

In paragraph 17 of his judgment he concludes that:

“[i]t is quite clear that a deliberate decision was made to issue a Claim Form twice.”

In paragraph 19 he says:

“It follows therefore my conclusion is that the Football Club has deliberately delayed in complying with the procedural requirements as set out in the CPR.”

Later in his judgment, the judge concludes (in paragraph 24) that “it would not be right to grant the [Club] a …… second bite at the cherry”. Although he does not say so in as many words, the clear inference from the judgment (and in particular from his citation of a passage from the judgment of Chadwick LJ in Securum Finance Ltd v. Ashton [2001] Ch 291, at para 52) is that he regards the second action as an abuse of the process, on the basis that the issues in the action are substantially the same as the issues sought to be raised in the first action.

The judge then turns to the various factors listed in CPR 3.9 as factors to which the court will have regard in considering whether to relieve a litigant from the consequences of failure to comply with the CPR, saying this:

“I refer to the various factors set out in CPR 3.9. It is not in the interests of the administration of justice (factor (a)). Nor was the application for relief made promptly (factor(b)). The failure seemed to comply [seemed to me to be]intentional (factor (c)). There has been no good explanation for the failure (factor (d)), and the effect of granting relief on the other party will cause further prejudice in the prosecution of this action (factor (i)).”

The judge accordingly dismissed the Club’s application. For completeness, the judge then turned to the Bank’s further contention that in any event the Club’s claims were bound to fail. Since, as noted earlier, the Club has now abandoned its claim based on breach of a common law duty of care, I can confine myself to its claim for damages for breach of the September agreement.

In paragraph 47 of his judgment, the judge records Mr Pack’s contention that the Bank had agreed with the Club that if (as in fact occurred) the Bank had recourse to a cash deposit of £250,000 made by Mr Gardiner as security for his guarantee of the Club’s indebtedness under the facility, the Bank would treat that sum as paid by the Club pursuant to the September agreement; and that in consequence the Club was not in default on 2 July 1996, when the Bank made its demand. Having expressed doubt as to whether that contention raised a genuine issue, the judge continues:

“However, it does seem to me that amongst the thicket of irrelevant documentation there is a possibility of this allegation succeeding. If that were the only factor I would not have acceded to the Bank’s application.”

The judge goes on to conclude (in paragraph 48) that:

“.... the plain fact of the matter is that if the demand was wrongly based the Bank had ample basis for making the demand.”

In paragraphs 49 to 55, under the heading “Insolvency of Football Club”, the judge examines the evidence as to the financial situation of the Club. In paragraph 49 he concludes that it is plain that the Club was hopelessly insolvent before the date of the demand. In paragraph 53 he notes that a Statement of Affairs prepared in or about January 1997 (about six months after the demand) in the context of a CVA showed the Club to be “massively insolvent”. In paragraph 54 of the judgment he says this:

“The reality is that from [for?] a commercial enterprise, the Football Club had been insolvent for some time, but for the Banks support. The Bank ceased to provide support and the Football Club then became insolvent.”

The judge accordingly concludes (in paragraph 55) that other ‘Events of Default’ had occurred prior to demand being made, including the Club’s insolvency (event (i)). In paragraph 57 he concludes that for those reasons “there is absolutely no merit in the claim whatsoever”.

By its grounds of appeal, the Club repeats its explanation for its failure to serve its Particulars of Claim in time. It contends that there were no grounds for finding that the failure was deliberate, repeating Mr Pack’s explanation to the judge that the failure arose from what the Club contends was a reasonable misunderstanding as to the time for service, in that the Club believed that it had a further 14 days from the date of service of the claim form (that is to say, until 12 November 2002). The Club further contends that the Bank has not suffered any significant prejudice by reason of the 11-day delay, and that to strike out the action because of that delay was disproportionate.

As to the judge’s conclusion that the action amounts to a “second bite at the cherry”, the Club asserts that it decided not to proceed with the first action because an action was proceeding by the Bank against a guarantor, a Mr Hayward, in which similar issues were raised. As to the judge’s finding that the Club was “hopelessly insolvent” prior to the date of the demand, the Club accepts that as at 10 June 1996 (when, as it asserts, the 1994 Agreement was carried into effect) it was hopelessly insolvent, but it contends that the Bank was fully aware of that at the time. It also contends that the Bank was fully aware of the disastrous effect which a wrongful demand would have on the Club, and that the wrongful demand of 2 July 1996 made it difficult if not impossible for the Club to raise money to help it out of its difficulties. It further contends that in implementing the 1994 Agreement on 10 June 1996 the Bank effectively waived its right to rely on events of default which had already occurred or which were then occurring (i.e. the Club’s insolvency).

The Appellant’s Notice contains a number of other grounds of appeal to which I need not specifically refer.

In the course of his judgment granting permission to appeal, Carnwath LJ concludes that it is arguable that the judge was in error in concluding that the Club’s non-compliance with CPR 7.4(2) was deliberate. He continues (in paragraph 6 of his judgment):

“I have heard Mr Pack’s explanation as to why his Particulars were late, and it appears genuine. He says that, as a litigant in person, he made a mistake. There does not appear to be any material in the papers which suggests that that explanation is wrong. Indeed, it is difficult to see why Mr Pack would have delayed for 11 days if he had known he would be out of time. In any event, the judge does not seem to have considered the last point which arises under CPR 3.9 [a reference to factor (i)], as to the effect which the failure to comply would have and the granting of relief would have on each party.”

Carnwath LJ goes on to point out that a delay of 11 days was hardly likely to cause significant prejudice to the Bank, whereas to strike out the action would inevitably clause serious prejudice to the Club. He continues (in paragraph 7):

“That balance, if there is anything in the case, would tell against treating the 11 days as fatal, particularly in the absence of a clear motive for a deliberate failure to comply with the rules.”

He accordingly concludes that the point is arguable.

On the issue as to whether the Club’s claim is in any event hopeless, Carnwath LJ says this (in paragraphs 8 and 9 of his judgment):

“8.

That would not, however, get Mr Pack home unless he is able to challenge the judge’s finding that the case was doomed to failure in any event. The judge’s main point was that, regardless of any other grounds of default, under clause 14 of the agreement, which he sets out in paragraph 43, one of the grounds is that the borrower is unable to pay its debts. He says that the club was hopelessly insolvent from the date of the demand. He goes into that in some detail. This is certainly true, but Mr Pack’s point is that, in strict terms, the club was insolvent throughout as the Bank knew. The circumstances in which the Bank entered into this agreement and the extent to which any subsequent insolvency and difficulty were contributed to by the service of the demand in July 1996 should have been considered.

9.

I have had some difficulty in following the detail in Mr Pack’s argument on the significance of the £250,000 to which I have referred. It does seem to me, however, that there is an arguable point which should be investigated further by this court, and cannot be disposed of on the application for permission. I would therefore grant permission to appeal.”

By its Respondent’s Notice, the Bank seeks to uphold the judge’s order on two additional grounds, viz: (1) that the Bank made no representation that it would not rely on relevant ‘Events of Default’ (a reference to the Club’s insolvency); and (2) that even if the Bank was not entitled to make demand on 2 July 1996 based on event (a) (default by the Club), the making of an invalid demand did not amount to a breach of contract.

Mr Pack submits that the judge’s exercise of discretion in refusing to extend time is flawed, in that there was no basis for his conclusion that the Club’s failure to serve the Particulars of Claim in time was deliberate. He further submits that, as Carnwath LJ suggested when granting permission to appeal, the judge failed to balance the prejudice which the Bank would suffer if an extension of time were granted against the prejudice which the Club would suffer if it were not. He submits that had the judge carried out that balancing exercise, he must have concluded that, taking into account all the factors listed in CPR 3.9, time should be extended and the action allowed to proceed.

As to the substance of the Club’s claim, Mr Pack submits firstly that it is not open to the Bank to rely on an ‘Event of Default’ other than that on which the demand in question is expressly based. Hence, he submits, it is not open to the Bank to rely on the Club’s insolvency as an ‘Event of Default’. In the alternative, should that submission not be accepted, he submits that the ‘Drawdown Date’ (as defined in the 1994 Agreement) – that is to say the date on which the agreed facility was actually provided – did not occur until 10 June 1996: only a few days before the disputed demand. Indeed, at one stage he appeared to be submitting that ‘drawdown’ had never occurred at all At all events, he accepts that the Club was indeed hopelessly insolvent as at 10 June 1996 (indeed he asserts that it had been insolvent for some time prior to that date), but he asserts that the Bank knew of the Club’s insolvency when ‘drawdown’ occurred. In those circumstances, he submits, it is at least arguable that in implementing the 1994 Agreement in the knowledge that the Club was at that time insolvent the Bank effectively prevented itself from relying on the continuing state of insolvency as constituting an ‘Event of Default’ under clause 14.

Mr Pack also referred us to a letter from the Bank dated 13 August 1996 to the effect that the Bank regarded the entirety of the facility as at an end, including a provision in clause 8.4 of the 1994 Agreement for the write-off of part of the indebtedness at the end of the term if (among other things) no ‘Event of Default’ had occurred in the meantime.

Mr Pack submits that the Club has a good claim for recovery of the various heads of loss listed in paragraph 11 of the Particulars of Claim on the basis that those losses were the direct result of Bank’s demand dated 2 July 1996.

Mr Lerego submits firstly that, even if the Club was not in default on 2 July 1996 nevertheless it was insolvent at that date, and the Bank was accordingly entitled to demand repayment; and that it is immaterial that the demand was made on the basis of event (a) (default) and not event (i) (insolvency). In support of this submission he relies on Glencore Grain Rotterdam BV v. Lebanese Organisation for International Commerce [1997] 4 All ER 514.

Secondly, and in the alternative, Mr Lerego submits that even if the demand was ineffective, the making of an ineffective demand was not a breach of the 1994 Agreement. In support of this submission he relies on Borealis AB v. Stargas Ltd [2002] 2 AC 205. He points out that the Bank fully complied with its obligations under the 1994 Agreement.

Thirdly, Mr Lerego attacks the Club’s pleaded claim for damages. He submits that, even assuming once again that the demand was ineffective, there is on the face of paragraphs 9 to 11 of the Particulars of Claim no sustainable basis for the allegation that service of an ineffective demand caused loss. He also points to the lack of particularity in the pleading of the various heads of loss in paragraph 11, taking as examples “The ground (land) related to existing usage: say £1.5m” and “Land for future development say £6m”.

Fourthly, turning to the issue of discretion (should that issue become relevant), Mr Lerego submits that, in the particular and unusual circumstances of the instant case, the judge was fully entitled to conclude that the Club’s failure to serve its Particulars of Claim in time was deliberate. Alternatively, should we conclude that the judge’s exercise of his discretion cannot stand and that the discretion should be exercised anew by this court, he submits that, giving due weight to the factors listed in CPR 3.9, we should exercise the discretion in the same way as the judge; that is to say, by refusing to extend time.

In my judgment, there was no satisfactory basis for the judge’s conclusion that the Club’s failure to serve its Particulars of Claim in time was deliberate. As Carnwath LJ pointed out in his judgment when granting permission to appeal, it is hard to see why the Club should have taken a deliberate decision to wait a further 11 days before serving the Particulars of Claim. As against that, Mr Pack’s explanation appears to be entirely genuine. As I see it, the overwhelming probability is that the Club’s failure to serve the Particulars of Claim in time was due to its mistaken understanding of the CPR. No doubt it could be said with some force that the Club should have learnt from its experience in the first action and should have taken pains to find out what the relevant time limit was; in other words, that its mistake was not readily excusable or, it may be, not excusable at all. But that is a very different matter. A finding of an intentional failure to comply with the CPR in the sense of a deliberate decision not to comply is, inevitably, a highly significant finding in the context of CPR 3.9. Depending on the circumstances of the particular case, it may or may not be decisive of the question whether relief should be granted under that rule; but, to put it no higher, in deciding whether to do so the court will be likely to regard it as a factor of very considerable weight. By comparison, a finding that the failure to comply was due to a mistaken understanding of the effect of the CPR (albeit a mistake for which there may have been little or no excuse) is a much less serious finding, which will be likely to carry correspondingly less weight.

I accordingly conclude that the judge’s exercise of his discretion cannot stand, and that it is for this court to exercise the discretion under CPR 3.9 afresh.

I turn first, in this connection, to the Bank’s contention that the Club’s claim for damages for breach of contract is bound to fail, since if that contention is correct no question of extension of time arises.

The judge, rightly if I may say so, regarded it as arguable that the Club was not in default under event (a) as at the date of the demand (2 July 1996). So the question arises whether the Bank is entitled to rely on the Club’s (admitted) insolvency as at that date. For my part, I think it is arguable (and I need go no further than that for present purposes) that if the Club was insolvent at the ‘Drawdown Date’ (whenever that was), and if the Bank knew that at the time, the Bank may have impliedly waived its contractual right to rely on that continuing state of insolvency as an ‘Event of Default’ under clause 14(i). So I would not strike out the claim on that ground.

On the other hand, I accept Mr Lerego’s submission that, assuming that the Club was not in default as at 2 July 1996 and (contrary to his first submission) that the demand accordingly did not trigger an obligation of immediate repayment under the 1994 Agreement, the making of a demand which was contractually ineffective under the 1994 Agreement was not itself a breach of the 1994 Agreement. In the words of Lord Hobhouse in Borealis AB v. Stargas Ltd at p.229H, the demand was “an act devoid of legal significance”. Lord Hobhouse went on to say this (at 230A-B):

“A ‘demand’ made without any basis for making it or insisting upon compliance is not in reality a demand at all. It is not a request made ‘as of right’, which is the primary dictionary meaning of ‘demand’. It is not accompanied by any threat of legal sanction. It is a request which can voluntarily be acceded to or refused as the person to whom it is made may choose.”

In my judgment, those observations apply to the Bank’s demand dated 2 July 1996. On the assumed facts, it did not have the contractual effect which it purported to have and the Club was accordingly entitled to ignore it. It was, in effect, so much waste paper. Of course, if the Bank’s (assumed) mistaken belief that the Club was in default had led it to breach the 1994 Agreement in some other respect, then the Club could recover any loss resulting from that breach. But no such claim is pleaded, nor could it have been.

I also accept Mr Lerego’s submission that, even assuming that the service of an ineffective demand was a breach of the 1994 Agreement, there is no sustainable basis for the allegation that by reason of that breach the Club has suffered some loss. It may be that the Bank’s (assumed) mistaken belief that the Club was in default led it to cease to provide further financial support, but the 1994 Agreement did not oblige it to do so. The Bank’s obligation under the 1994 Agreement was to provide the specified facility. It did so, and it has not been repaid. And that, in my judgment, is the end of the story and the end of the claim.

I therefore conclude, in respectful agreement with the judge, that the claim is bound to fail and should be struck out accordingly. In the circumstances, no issue as to extension of time arises, and I say no more about that issue.

I would dismiss the appeal.

I agree.