National Westminster Bank Plc v Nederland

On 24^th October 2006 the Court granted Rabobank Nederland (“Nederland”), the defendant to this action, permission to appeal, and allowed its appeal, against the order of Colman J on 16^th October refusing its application for permission to re-re-amend its defence and counterclaim. The application was made some seven working days into a hearing – likely to take several months -of a claim by National Westminster Bank PLC (“NatWest”) against Rabobank. NatWest’s claim is for an indemnity in respect of costs and expenses incurred in proceedings brought by Rabobank against it in the United States and for damages for breach of contract not to institute proceedings against it. The claim arises out of a credit facility agreement by NatWest & Rabobank in March 1996 in favour of Yorkshire Food Group Plc. (“Yorkshire Food”).

These are the Court’s reserved reasons for allowing Rabobank’s appeal.

By the credit facility agreement, the two Banks committed themselves to lend Yorkshire Food up to US$50m, and NatWest assumed various duties as the “Agent” for the two Banks in the administration of the loans.

In outline, the circumstances giving rise to Rabobank’s application to amend its pleading are as follows.

Yorkshire Food was a UK company listed on the London Stock Exchange. It processed dried fruit and nuts and had various subsidiaries in California with similar businesses. In mid 1996, only some 3-4 months after the making of the credit facility agreement, Yorkshire Food, began to default on its terms. The two Banks put their respective loans under the facility into “work-out” mode, and began to investigate Yorkshire Food’s financial position with a view to sale of certain of its businesses to a third party. For that purpose, by a letter of instruction of 6^th September 1996 written by Yorkshire Food, at the request of the Banks, to Price Waterhouse, Yorkshire Food instructed Price Waterhouse as investigating accountants to “… to carry out an independent business review of its affairs”, and to report to it and the Banks. This was, as Colman J observed in his ruling, effectively a joint letter of instruction from the Banks and Yorkshire Food, and Price Waterhouse accepted their instructions by a letter of the same date.

The instructions in the letter of 6^th September were to report “on … [Yorkshire Food’s] present financial situation and viability”, including whether its plans were “realistic” having regard inter alia to “outside influences”, and to give an “[a]ssessment of the Group’s management” and “[a]ny other matters which … [came] to [Price Waterhouse’s] attention during the course of [its] review which [it might] consider to be important to the considerations of …[Yorkshire Food] or the Banks”. The letter also contained the following important provision as to Price Waterhouse’s duty of care

In October 1996 Price Waterhouse submitted to Yorkshire Food an “Interim Report of the current financial position of the Group”, and, in November 1996 submitted further reports.

Over the ensuing year Yorkshire Food and the Banks were unable to arrange for the disposal of any of its businesses. In the result, in October 1997, the Banks agreed and entered into a deed of transfer of NatWest’s interests and rights under the credit facility agreement to a subsidiary of Rabobank, Utrecht-America Financial Co. (“Utrecht”), in return for a payment to NatWest of US$39.5 m. In addition Rabobank advanced a further US$15m. to Yorkshire Food to enable it to fund its growers for the Autumn 1997 crop. Thus, in addition to its existing commitments to Yorkshire Food under the credit facility agreement, Rabobank relieved NatWest of its obligation to continue supporting Yorkshire Food and undertook an outlay of some US$55m. to try to keep it afloat.

However, it was all to no avail. Almost immediately after Rabobank had committed itself to that further outlay, Yorkshire Food published bad results – bad enough to prompt Rabobank to investigate, among other things, the conduct of its directors and of NatWest. On Rabobank’s case, that investigation revealed the following:

Unknown to it, in the Spring of 1996 at about the time NatWest and Rabobank had committed themselves under the credit facility agreement to support Yorkshire Food, its United States subsidiaries were struggling financially and a number of its directors and of the subsidiaries had set up their own Californian almond businesses.

Very shortly after that, NatWest, unknown to Rabobank, had loaned US$1.2m to a Trust for the benefit of the Chairman of Yorkshire Food, the loan secured on its shares. To the knowledge of NatWest, the Trust had then loaned the borrowed funds to entities established by the Yorkshire Food directors to finance the purchase of their new Californian farms and businesses. The result of those transactions, it was alleged, was to enable the directors personally to undertake almond farming and to trade with Yorkshire Food and its competitors for their own profit.

Four months later, in August 1996, just after Yorkshire Food had begun to default on the credit facility agreement, the Trust also went into default on its loan of US$1.2m from NatWest.

And, at the same time and still unknown to Rabobank, the directors of Yorkshire Food had caused it to take leases of their new almond farms and to pay rent and all development costs for them.

In the light of those discoveries by Rabobank shortly after it had taken over NatWest’s obligations under the credit facility to Yorkshire Food, it formed the view that the directors of the Yorkshire Group had acted fraudulently and in breach of their fiduciary duty. It also formed the view that the directors had done so to the knowledge of NatWest, and that NatWest had fraudulently deceived it in relation to these and certain other matters that had taken place during the “work-out” process and Price Waterhouse’s investigation.

One of the matters troubling Rabobank, and which figured in its re-amended pleading at the start of the present hearing as a particular of breach of fiduciary duty and/or fraudulent misrepresentation by NatWest in failing to disclose material information, was an alleged “secret meeting” on 29^th August 1996, shortly before the instruction to Price Waterhouse to investigate the financial affairs of Yorkshire Food and to assess its management. This meeting was said to have been attended by Mr Hamilton, an executive of NatWest and Messrs Hargrave and Barrett, of Price Waterhouse. On Rabobank’s pleaded case, Mr Hamilton had told them of the loans by NatWest to the Chairman of Yorkshire Foods secured on its shares, and had asked them not to tell Rabobank about them. Rabobank also alleged that Price Waterhouse complied with that request and restricted the scope of its investigation and report accordingly.

Returning to the narrative, Yorkshire Food’s financial position then deteriorated so rapidly and to such an extent that, in December 1997, it was placed in administrative receivership.

There followed two sets of proceedings by Rabobank in the United States: the first against NatWest and certain directors of Yorkshire Food, the claim against NatWest - as yet unresolved and subject to a stay - and those against the directors, settled; and, secondly, a claim against Price Waterhouse and Yorkshire Food’s former auditors, Coopers & Lybrand, which was ultimately settled in June 2004.

These proceedings, brought by NatWest against Rabobank, arise out of the first of those transatlantic suits. NatWest, in 2004, claimed un-recovered costs of the proceedings to which it asserts entitlement as a matter of contract following the deed of transfer from it to Rabobank and Utrecht in October 1997. By its defence and counterclaim, Rabobank alleged, and continues to allege, against NatWest among other complaints, fraudulent misrepresentation and breach of fiduciary duty, and seeks rescission of the deed of transfer and damages.

The “secret meeting” of 29th August 1996 - already part of Rabobank’s case against NatWest as a particular of breach of fiduciary duty and fraudulent misrepresentation in failing to disclose the loans to Yorkshire Food’s directors, has now given rise to this application to re-re-amend its case to allege, in the alternative, claims of procurement by NatWest of Price Waterhouse to breach its professional duty of care to Rabobank and, thereby, of acting as a joint tortfeasor with Price Waterhouse (Footnote: ¹) in a breach of that duty. In the result, Rabobank maintains that both NatWest and Price Waterhouse, through the former’s procurement of the latter not to investigate and report to Rabobank on the loans by NatWest to the Yorkshire Food Chairman, caused Rabobank loss in inducing it to continue and to undertake additional responsibility for the financial support of Yorkshire Food that it would or could otherwise have avoided.

The proposed amendment, therefore, arose out of one, but an important, incident in the already pleaded story, namely as to: 1) what Mr Hamilton of NatWest said to Mr Hargrave and Mr Barrett of Price Waterhouse at “the secret meeting” on 29^th August 1996; 2) what Price Waterhouse did or did not do in the light of what was said at that meeting and of its written instructions a few days later in the letter of 6^th September; and 3) what it should have done in the circumstances in the proper discharge of its professional duty of care to Rabobank. Three questions, but, contended Mr Philip Marshall QC for Rabobank, collectively amounting to a comparatively short point.

We should now turn to the timing of the application by Rabobank to re-re-amend its pleading to add those claims as an alternative to its primary case already pleaded against NatWest of breach of fiduciary duty and fraudulent misrepesentation. It served notice on 17^th August 2006 – that is, in the long vacation - of its intention to do so. Given the imminence of the start of the trial, that is, on 3^rd October, the parties agreed that the earliest and most convenient date for Rabobank to make the application would be immediately after counsel’s opening speeches. Thus, both parties had some opportunity before the start of the trial to consider and to prepare contingently for any impact that the outcome of the application might have on disclosure and on the evidence to be adduced at the trial and, as a result, on the programme and duration of the trial.

By the start of the trial on 3^rd October, there was an agreed programme for and scheduling of the evidence, four days a week, up to the end of term on 19^th December, with Fridays left free. If that programme could be adhered to, it had about a day and half’s slack in it, plus the spare day each week. There was then a further two to three months set aside in the Winter term of 2007 for the preparation of closing submissions, to start after Christmas, and for the making of those submissions at some unspecified time before Easter.

On 16^th October, at the end of the opening speeches and pursuant to the parties’ agreement, Rabobank made its application to re-re-amend. Colman J dismissed it in a short, extempore judgment the same day.

The trial has proceeded notwithstanding Colman J’s dismissal of the application and Rabobank’s steps to challenge it in this Court.

Rabobank’s case in support of the sought amendments is that all, or substantially all, of the facts relevant to their key elements are already pleaded, have been the subject of extensive disclosure, are and/or are to be in evidence and have been referred to in Rabobank’s written opening before Colman J. In particular, the details of the “secret meeting” of 29^th August 2006 had been covered in all those forensic ways, and all those present at the meeting are available and are scheduled to give evidence about it.

In short, Rabobank’s case is that the proposed amendments arise out of the same facts as the existing claims, including those involving allegations of fraud, thereby satisfying ss 35(4) & (5) of the Limitation Act 1980 and CPR 17.4.

NatWest’s case is that the amendments should not be permitted because: 1) they are too late – sought some two years after Rabobank first pleaded its defence and counterclaim; 2) they follow numerous opportunities of and applications by Rabobank during that period to reformulate its case; and 3) if allowed, they would introduce for the first time what amounts to an allegation in these proceedings of a breach by Price Waterhouse of a duty of care, also involving NatWest in that breach as a joint tortfeasor.

Colman J’s approach to the matter, as revealed by his judgment; was to focus primarily on its lateness, the lack of any adequate explanation for the delay and the impact he perceived it would have on the trial programme.

As to lateness and the lack of explanation for it, he took as his starting point that the application had to be “investigated with some care to see whether its effect, if allowed, would be to any substantial extent prejudicial to [NatWest] on the conduct of a fair trial”. He went on to find prejudice to NatWest in the nature of the new causes of action, particularly in the introduction for the first time in this action of a complaint against Price Waterhouse of breach of a professional duty of care to Yorkshire Food. Such an allegation, he reasoned, could only be adjudicated upon with the assistance of expert evidence, in particular, as to whether in the light of the instructions given to Price Waterhouse, its duty of care extended to reporting on the loans to Yorkshire Food’s directors to support their private business activities in California. For this purpose, he distinguished between what, on the facts, was material as between NatWest and Rabobank, in the light of the instructions given by NatWest to Price Waterhouse at “the secret meeting”, a matter quite different from what was required of Price Waterhouse, notwithstanding those instructions, in the performance of its professional duty of care to Rabobank. Although the former would not require expert evidence, the latter, he considered, would, because it called for an examination of the “normal” practice to be expected from a firm of accountants, instructed as Price Waterhouse was in this case.

The proposed amendment would or could, for the same reason, Colman J suggested, call for further disclosure, although he acknowledged, as is the case, that there had been disclosure touching upon the facts of and surrounding the “secret meeting” and as to what Price Waterhouse had and had not done.

Finally, Colman J in his judgment, returned to the impact, as he saw it, on the trial programme, if he were to permit the application. He considered that it would inevitably lengthen the trial, first because of the need for the parties to obtain expert witnesses he envisaged as necessary, and to arrange for the early presence at trial of such experts to assist in the cross-examination of the two witnesses from Price Waterhouse who could speak to the matter, Mr Hargraves and Mr Barratt. Because they were then programmed to give evidence within about ten days, he saw prejudice to the trial programme in having to postpone their evidence as well as in the extra time that would be necessary for arranging and calling expert evidence on the matter. He saw the possibility of the hearing of the evidence going beyond Christmas, indicating that he was not prepared to take that risk, given that preparation of speeches “need[ed] to be pursued immediately after Christmas for the purposes of final submissions at the beginning of next term”. Such extension of the evidence-taking part of the trial, he considered would be “completely unsatisfactory”. He summarised his reasons for refusing the application in this way:

Mr Marshall submitted on behalf of Rabobank that Colman J’s concerns about the likely prejudicial impact on NatWest and on the trial process of allowing the amendments were misconceived insofar as they turned on his perception that they would engender expert and factual evidence not otherwise required and also as to delay to the trial programme. He made the following points in support of that submission:

the proposed amendments are based on the same or substantially the same facts as those already pleaded and in evidence as part of the basis of the claims of breach of fiduciary duty and/or fraudulent misrepresentation;

whether Price Waterhouse would have investigated NatWest’s loans to the Yorkshire Food Chairman was already in issue on Rabobank’s existing pleading, and whether it should have investigated them was already effectively in issue, as illustrated by NatWest, in its counsel’s opening speech and in its proposed evidence, that those loans were outside the ambit of Price Waterhouse’s retainer and would not have been considered by Price Waterhouse to be material.

there has been full inter partes disclosure as to the factual basis for the new claim;

Price Waterhouse, in response to an order for disclosure made by Rabobank, had stated that it had no documents material to loans to the Trust for the benefit of Yorkshire Food’s Chairman or to its directors for the purpose of their Californian ventures;

all the potential witnesses in respect of the “secret meeting” of 29^th August 1996 were scheduled to give evidence at the trial, including Mr Hamilton, the only representative of NatWest with first-hand knowledge of it, and also in respect of what Price Waterhouse did and did not do as part of its review of Yorkshire Food’s affairs;

even if any additional evidence, expert or otherwise, would be required as a result of permitting the new claim, it would take very little extra time, directed, as it would have to be. to the question what Price Waterhouse should have done in fulfilment of their professional duty to Rabobank in the light of their instructions in the letter of 6^th September 1996 and what had been said to them at “the secret meeting” of 29^th August 1996;

the parties were already committed to calling witnesses to give expert accountancy evidence on other issues in the case, and such witnesses could readily be deployed within the existing programme to deal with the new issue;

even if the extra time required to deal with the new claims would extend the taking of evidence into the new year, it would only be for a few days at the most, and would not prejudice justice by any undue delay of the trial, especially as a further three months had been set aside until Easter to allow for the preparation and making of closing speeches; and

despite the somewhat unusual form of the new claims, NatWest did not suggest that they were unarguable, and the Judge clearly accepted that they were.

Mr Ben Valentin, for NatWest, emphasised the delay of Rabobank in seeking to advance the new claims - some two years since it had first pleaded its case in these proceedings - and its lack of explanation for the delay. He stressed also the novelty of the claims in the context of the issues already identified in the pleadings, namely the introduction for the first time of what amounts to an accountants’ negligence claim founded on a deliberate breach of duty of care on the part of Price Waterhouse. He defended Colman J’s decision and the reasons that he gave for it, contending that:

in his expressions of concern about the likely disruption and delay that would be engendered by the new claims, the Judge had not taken delay as his starting point, but was considering it in the context of the justness or otherwise of allowing the amendments, including the presence or absence of prejudice to each of the parties depending on his decision;

Rabobank’s contention that all or substantially all the facts relevant to its proposed new claim are already pleaded and in evidence is incorrect in two respects, first because “the secret meeting” of 29^th August 1996 had not been pleaded as an occasion on which NatWest made an actionable fraudulent misrepresentation to Rabobank, and, secondly, because the new claims had introduced for the first time an allegation of breach of professional duty by Price Waterhouse;

the Judge correctly concluded that the proposed new claims would engender the calling of expert evidence, because they would raise an issue, not previously raised, as to the content of Price Waterhouse’s duty of care; and NatWest would, if permitted by the Judge, adduce expert evidence as to whether a reporting accountant, instructed to carry out an “assessment of … [Yorkshire Food’s] management” would ordinarily investigate the personal financial situation of its directors, and would seek expert advice on the cross-examination of any factual or expert witnesses called by Rabobank on the matter;

such an issue and such evidence would call for disclosure of Price Waterhouse’s internal working papers, not so far disclosed;

as a result of the new allegations against Price Waterhouse, the ambit of the expert evidence would be considerably wider and the further disclosure required more extensive and time-consuming, and both would, therefore, intrude more prejudicially on the trial, than suggested by Rabobank;

the Judge was entitled, in the exercise of his case management powers to have the regard he did to the programme that, with the assistance of the parties, he had set for the trial; and

decisions of this sort, especially in relation to late amendments, are often highly fact-sensitive; see for instances of cases going either way authorities mentioned in paragraph 17.3.7 of the current White Book; the Court of Appeal should on that account be cautious before intruding on a trial judge’s exercise of discretion in dealing with them, especially of a Commercial Judge of Colman J’s seniority and great experience, and with his familiarity with the issues and complexities of this litigation.

The overriding objective that courts should deal with matters justly has, as a consistently strong imperative, that a party should be permitted to make even a late amendment where it is necessary to enable a court to resolve a real issue between the parties and where it can be permitted without significant prejudice – or if there is such prejudice with adequate compensation - to the other party, and to the administration of justice. Not to permit an amendment in those circumstances is capable of causing serious prejudice to a party in preventing him from putting forward his full case; see e.g. Cobbold v London Borough of Greenwich [1999] EWCA Civ 2074, per Peter Gibson LJ, at 5-7.

After careful consideration of the circumstances and of the submissions of counsel, and with great respect to Colman J’s great experience and to his familiarity with the facts of and issues in the case, the Court has concluded that, in denying Rabobank permission to rely on these new claims, he went outside the considerable ambit of judgement allowed to him on a case management matter such as this.

To permit Rabobank to advance this alternative case would cause NatWest no significant prejudice in any forensic sense other than having to meet an arguable claim possibly going to a critical issue in the case that could go against it. True, the sought amendment was very late, and followed a long period of twisting and turning by those pleading Rabobank’s case producing, even before the sought re-re-amendment a prolix, repetitive and unwieldy pleading. But the fact that the pleading is not a thing of beauty, and would become even less so if the new alternative claim is allowed, does not mean that its potential for success if the new claims are allowed, should be disregarded by denying Rabobank the opportunity to argue them – unless to do so would cause significant prejudice to NatWest in the presentation of its case or to the administration of justice. The Court can discern neither prejudice here.

As to the lateness of the application, the potential for prejudicial delay, if any, bears no comparison with that leading this Court in Borealis AB v Stargas Ltd & M/V Berge Sisar [2002] EWCA Civ 757, to uphold a case management decision of a Judge of the Commercial not to allow joinder of a new party a few months before trial, to which Mr Valentin drew attention. There, the lateness of the application had the potential to delay the start of the trial for an uncertain period of one or two years or more.

Although the new claims raised for the first time in these proceedings consideration of accountants’ negligence as distinct from the already pleaded case against NatWest of fraud, the facts giving rise to them are already pleaded, as distinct from the additional legal significance now attached to them in the sought amendments. The material facts common to the existing and proposed claims are: 1) at “the secret meeting” of 29^th August 1996, Mr Hamilton of NatWest instructed Mr Hargrave and Mr Barrett of Price Waterhouse not to investigate Yorkshire Food’s Chairman’s private borrowings and not to tell Rabobank of that instruction; and 2) as a result, Price Waterhouse did not investigate those matters or inform Rabobank about the instructions.

Not surprisingly, those matters have been the subject of much attention by both sides in the preparation of their respective evidence about that part of the story. The Court can foresee no or little other evidence of any significance going to the facts of the “secret meeting”, given the inter partes disclosure already made, and the “nil return” from Price Waterhouse in relation to these allegations, which would be likely significantly to delay the progress of the trial.

If Mr Hamilton did not tell Mr Hargrave and Mr Barrett of the loans to the Chairman of Yorkshire Food secured on its shares and did not instruct them not to tell Rabobank about them, then maybe Rabobank would not have much of a case under the new claim, with or without further disclosure or expert evidence. But if Mr Hamilton did say those things to them, possibly thereby at the same time exciting and cautioning them against satisfaction of their curiosity, it is strongly questionable what light such further discovery, if any, from Price Waterhouse could throw on the extent of any breach by Price Waterhouse of its professional duty of care in the circumstances. In particular, a trawl through Price Waterhouse’s papers with a view to discovering its “normal” practice in a case such as this, as suggested by Mr Valentin, could only be productive in the highly unlikely event of it showing that its banking clients normally, when instructing it to investigate the financial affairs of a company and to assess its management, also instructed it to ignore any loans made by them to directors of the company secured on the company’s assets.

Similarly, as to Colman J’s perception of the need for expert witnesses to address the question what a firm of accountants, such as Price Waterhouse, would “normally” do in the unusual circumstances pleaded, the Court doubts whether “expert” evidence would assist him in his task. He is likely to be in as good a position as a reporting accountant expert to form a view of Price Waterhouse’s professional duty of care to Yorkshire Food and Rabobank arising from the pleaded instructions, if they were given, and whether they were in breach of them. In short, given Rabobank’s pleaded factual case, the Court is highly sceptical of the need for expert evidence on the new issue raised by the sought amendments.

But even if it expert evidence is required on the point, the only prejudice to NatWest or to the administration of justice, if any, would be in the form of some readily manageable re-arrangement of the trial programme and/or and an extension of a few days at most in an already long trial, a programme that provided not only for some slack at the evidence-taking stage, but also in the generous time given for the preparation and making of closing submissions.

Looking at Colman J’s ruling as a whole, it was the disturbance of the carefully prepared trial programme that appears to have concerned him most. Whilst he was rightly concerned, if at all possible, to keep to that programme for the convenience of the parties and the expeditious conduct of the case, some small delay, for the reasons the Court has given would be minimal compared to the serious prejudice to Rabobank in denying it the opportunity to put its alternative case.

In any event, if allowance of the amendments produces any complexities that bear more heavily on NatWest by way of delay or otherwise than they would have done if they had been made much earlier, the Court would expect the Judge and the parties to try to overcome such prejudice within the existing trial process or, if necessary and appropriate, by the Judge in the exercise of his discretion on the issue of costs.