Marchmont Investments Ltd. v BFO SA

SIR ANDREW MORRITT, C: Lord Justice May will give the first judgment.

LORD JUSTICE MAY: This appeal turns entirely on an application to admit fresh evidence. Once the stage is set by summarising the background, the appeal raises really quite a short point only.

The claimant company is one of a group of companies, referred to as the Breezevale Group, controlled by Mr Habib. The defendant is a bank with offices, among other places, in Paris, which is part of but not I think the same as the Crédit Agricole Indosuez group ("CAI"), which has one of its offices in Geneva. In short, the defendant bank lent the claimant a substantial sum of money (£600,000) in 1991, secured by a mortgage over property owned by the claimant in Buckinghamshire, that property being where Mr Habib resides or at least resided.

The claimant defaulted on the payment of interest. From September 1999 to October 2000 it made no interest payments at all, and did not thereafter repay interest or capital as demanded. The claimant's account had been in default for a number of months before a meeting in November 2000, which was the subject matter of the present proceedings. The failure to repay the indebtedness resulted in December 2003 in a series of demands for repayment of outstanding capital and interest, which included interest at a default rate. None of those demands was met and the defendant started possession proceedings to enforce the security in October 2004.

The claimant redeemed the mortgage under protest in November 2004, asserting that it had not been provided with a proper account. The claimant then started proceedings in March 2005 for an account, alleging that it was entitled to repayment of some sum or some amount in damages.

Master Moncaster directed an account and ultimately found, following the accounting procedure, that the defendant was entitled to all but a very small fraction of the sums that had been paid under protest, the deficit being because of an error in one monthly default rate. The claimant was ordered to pay the defendant's costs of the account, and in the result the amount found due from the claimant to the defendant was £732,588.08 and the claimant was entitled to repayment of £614.28.

At a rather late stage in these proceedings the claimant for the first time alleged that the defendant was not entitled to charge interest at the default rate because the relevant clause in the facility agreement was a penalty. A further hearing was required to determine that issue, and the Master found that the relevant clause was not a penalty on 17th November 2005. The claimant was ordered to pay the defendant's costs of the hearing and of another hearing on 18th November 2005.

Having lost that argument, the claimant then sought to advance a new case as regard default interest. This new case was asserted for the first time at a hearing in November 2005, when it was said that the claimant wished to amend its case to plead an oral agreement made at a meeting on 21st November 2000. The question of whether there was such an oral agreement affecting the obligation to repay, and the rate of interest if repayment is not made, was ordered to be tried by Master Moncaster by an order dated 3rd January 2006. In those proceedings witness statements were due to be exchanged by 10th March 2006, but that time was extended by agreement to 21st March 2006. At that stage the trial was fixed to be heard on the first available date after 24th March 2006. It was in fact heard in the second week of July 2006.

In addition to the matter of the loan on the Buckinghamshire property, there were other matters of contention between other companies in Mr Habib's Breezevale Group and the defendant or CAI. First, Mr Habib contended that CAI had mismanaged the account of a company in his group called Kirin. There is apparently separate litigation about that. Second, another company called Beltana Properties was in dispute with the defendant about property matters in Spain. Third, in July 1999 Mr Habib withdrew US$500,000 from the defendant's Breezevale Ltd account. The defendant regarded this as in breach of an agreement, or at least the spirit of an agreement, with that company. In response the bank froze Breezevale's accounts in August 1999 and the group stopped paying interest on its loans.

The amended particulars of claim alleged in paragraph 5 as follows:

The amendment was made on 16th December 2005 and the agreement was first asserted in a witness statement of Mr Habib dated 15th November 2005. A subsequent witness statement of his of 10th July 2006 elaborated his evidence about this in its paragraphs 11 to 18. The defendant admitted that there had been a meeting on 21st November 2000, but denied that there had been any such agreement.

In July 2006 Master Moncaster tried the issue whether the oral agreement contended for by Mr Habib had indeed been made. He heard oral evidence over two days. He found that there had been no such agreement. This is the claimant's appeal against that decision, with permission given by Waller LJ.

There were three people present at the meeting on 21st November 2000: Mr Habib, Mr Unger and Mr Fargialla. Mr Habib and Mr Unger gave evidence before the Master, Mr Fargialla did not. The Master's judgment contains the following summary:

The Master considered internal documents of the defendant which preceded the November 2000 meeting in detail. These supported the defendant's case that the cause of the dispute was seen as the unauthorised withdrawn of US$500,000. There was no reference to a dispute between Kirin and CAI in Geneva. The bank were requiring repayment of outstanding interest and a detailed statement of Mr Habib's financial position.

The Master considered Mr Habib's written and oral evidence and that of Mr Unger, whose evidence was consistent with the internal documents. He said of this evidence:

After 20th November 2005 there was a visit to London by representatives of the bank, Monsieur Flecheux and Claude, both from the defendant's distressed assets department, that is they dealt with accounts that were in default. They met Mr Mehta, Breezevale's auditor, and an employee of Mr Habib called Mr Mehanna. There was an issue whether Mr Habib had lost his temper and threatened to throw Mr Flecheux out of the window. There was a body of evidence about this visit, of which the Master said that the defendant's written 'call report' was entirely consistent with the defendant's version of the purpose of the visit and inconsistent with Mr Habib's version. After that visit, the position appeared to be stalemate.

I would join with the Master in continuing to question Mr Sutcliffe's continued assertion that Mr Habib's case about the meeting of 21st November 2000 is consistent with contemporary documents. There were two letters written by Mr Habib of 23rd November 2000 and 30th July 2001, in the first of which he asserted that he was waiting for the defendant's written proposal apparently about the Spanish matter, and in the second to a proposal to finalise all matters, but in neither of which is there any mention of an oral agreement, such as was relied upon in these proceedings. There is also a bank statement of 30th June 2002 in which the bank did not claim interest at the default rate, but the bank said that this was an inadvertent error. There is no mention in the contemporary documents of the oral agreement relied on in Mr Habib's witness statement of 15th November 2005.

As I have said, the appeal turns entirely on an application to admit fresh evidence. This is mainly in a witness statement of Mr Fargialla dated 8th November 2006, shortly after the date of the Master's judgment. Mr Fargialla there states that he left the defendant in May 2005. He had read Master Moncaster's judgment. He then states shortly that he had read Mr Habib's second witness statement, and in particular paragraphs 11 to 18 of it, and he confirms that Mr Habib accurately describes the events in November 2000. He recalls receiving Mr Habib's letters of 23rd November and 6th December 2000 addressed to him. It was agreed that the bank would send representatives to London to reconcile accounting issues, and that all accounts would be put on standstill until those matters were settled, that is they would not be treated as in default while negotiations continued.

There are two other additional proposed witness statements of Mr Nouhad Debs and Mr Touffic Kawar, employees of the bank at the time who did not attend the meeting and who do no more than give a general hearsay account of what was being said by Mr Unger and others afterwards. Although this is generally consistent with Mr Habib's case, they would not alone begin to carry an appeal.

It is submitted that this evidence, and in particular that of Mr Fargialla, should be admitted and suggested, optimistically, that with it it is difficult to see how the Master could not have decided the issue in favour of the claimant. It should be received in the interests of justice, and a new hearing ordered. It is said that the three limbs of the Ladd v Marshall test in relation to fresh evidence on appeal, as applied under the rather more flexible approach under the Civil Procedure Rules (see Rule 52.11(2)(b)) and authorities including Hertfordshire Investments Ltd v Bubb [2000] 1 WLR 2318, are fulfilled.

The respondent accepts that the second and third limits of Ladd v Marshall after fulfilled, that is that the evidence would have had an important influence on the result of the case and that it is apparently credible. But the respondents say that the important first limb of Ladd v Marshall is not fulfilled, that is that the evidence could not have been obtained with reasonable diligence for use at the trial. It is to that point that I now turn.

Mr Fargialla left the defendant in 2005 and was in dispute with them about matters between them and him. As I have said, witness statements were due to be exchanged in these proceedings in March 2006. On 31st March 2006 the claimant's solicitors wrote a four-page letter, aggressively expressed, asking a whole series of peremptory questions, the first four of which were:

By their reply of 5th May 2006, the defendant's solicitors said that they did not intend to answer those particular questions and the claimant's solicitors apparently did not pursue the matter. The hearing proceeded without Mr Fargialla's evidence and some play of the fact that he was not called by the defendant and the possible inference that he would not have supported their case was made during the trial.

The second statement of Mr Charles Awit on behalf of the claimant tells us that the importance of Mr Fargialla's possible evidence was appreciated by the claimant in March 2006. When the defendant's solicitors declined to answer the questions in the letter of 31st March 2006, Mr Awit says that he had no means of knowing where Mr Fargialla was and could not think of any way of doing so. His statement then continues as follows:

18th October 2006 was in between the date on which Master Moncaster signed his written judgment, which was 13th October 2006, and the date on which it was delivered, 20th October 2006. It is not clear whether Mr Awit was able to obtain details from his unnamed Parisian lawyer friend of Mr Fargialla's telephone number within a short time of knowing the result of the hearing or whether that is not correct. The fact is that once Mr Awit really tried, he located Mr Fargialla quickly.

I should add that in his fourth witness statement Mr Awit tells us that the unnamed Parisian friend is an ex-employee of BFO.

It is suggested that the claimant's efforts to obtain evidence from Mr Fargialla was obstructed by the bank. That at best in my view is an overstatement. All that happened was that the claimant asked about Mr Fargialla and the defendant's solicitors declined to answer. Mr Awit's third statement protests that other possible ways of finding Mr Fargialla — an Internet search, telephone directories, the French equivalent of Yellow Pages, asking their English lawyers, asking their French lawyers — were not reasonable or practicable and would not, it is suggested, have located Mr Fargialla. Mr Awit is not personally adept with the Internet. It is further suggested that the claimant now knows that the defendant did interview Mr Fargialla, and the insinuation is made is that they knew that he would not support the defendant's case.

This on the evidence is incorrect and has elicited protest from the defendant, justifiable in my view. The evidence is that the defendant did contact Mr Fargialla in January 2006, but he declined to give a witness statement except on conditions connected with his personal dispute with them and unconnected with this case, which the defendant regarded as unacceptable. They did not know what he would say.

As to responding to the requests in the letter of 31st March 2006, the defendant says that there were questions of confidentiality in relation to a former employee. There was no question of obstruction. I agree.

Mr Sutcliffe on behalf of the claimant makes the following additional points. He says that the appeal is concerned (as apparently it is) with £65,000 plus interest plus costs, and that that is a significant amount to the claimant. He says that the same issue in relation to this oral agreement arises in other proceedings relating to Beltana, which are at the moment adjourned pending the determination of this appeal. But he emphasises in particular the overriding objective in the Civil Procedure Rules that cases should be dealt with justly and says that, where the second and third limbs of Ladd v Marshall are satisfied and in the particular circumstances of this case, justice demands a flexible approach to the satisfaction of the first limb of Ladd v Marshall, so as to enable Mr Fargialla's evidence to be heard, together with the rest, in a retrial. A main submission is that what Mr Awit did in the circumstances was reasonable, in the context of justice and the overriding objective.

The respondent in writing in summary submits as follows. It is suggested that after 31st March 2006, and in particular after 5th May 2006, the claimant did precisely nothing about obtaining Mr Fargialla's evidence. Apparently the only effort made was to contact an unnamed friend of a director of the claimant in the run-up to the trial in July 2006. The evidence did not indicate when that contact was made, nor has the unidentified friend given any evidence. This same friend was apparently able to find Mr Fargialla after the trial in very short order indeed. The claimant it is suggested made considerable play at the hearing in relation to the lack of evidence from Mr Fargialla at trial, and in particular counsel for the claimant cross-examined Mr Unger in relation to Mr Fargialla, why he was not giving evidence and his whereabouts. Despite the fact that Mr Unger said that he knew of Mr Fargialla's whereabouts, counsel did not, it is said, ask the obvious question as to his address.

It is suggested that it was only after the claimant had lost at trial that it was apparently able to find Mr Fargialla, and the evidence is that the same friend who had been unable to find him before the trial was now able to find and provide his telephone number almost immediately.

It is suggested that the evidence relied on by the claimant does not begin to surmount the hurdle of proving that the evidence could not with reasonable diligence have been found for the trial, and the following basic steps, it is said, could have been undertaken: an Internet search. It is said that surely somebody with the most basic Internet skills could have used reasonable diligence in this respect, and we are told that a Google search for Mr Fargialla by name produces a link to his web site and the evidence shows that this would have been available from at least June 2006 (a search on one of the other witnesses produces 329 results). No enquiries were made of directory enquiries in France. No search was made of the equivalent of the Yellow Pages in France. No attempt was made to press the defendant about Mr Fargialla. No application was made for an order that the defendant provide his address. The claimant's solicitors were not asked to find him, or if they were they did not try, nor were the claimant's French lawyers asked to find Mr Fargialla. It is suggested that none of these were difficult or unusual steps, that they were the most basic steps that any competent solicitor who actually wanted to find a witness would carry out or have carried out. It is further suggested that the evidence is wholly incomplete, in that there is no evidence at all from the claimant's solicitors as to what, if anything, they did to find Mr Fargialla. The claimant has been represented throughout by well-known London commercial solicitors, and it is suggested to be inconceivable that some or all of these simple steps did not occur to them. The only possible inference, it is said, is that they did nothing, having decided not to do so. There is no evidence that the claimant's French lawyers did anything or were asked to do anything, and there is no direct evidence as to who the friend is, precisely when he was contacted, or how and when he obtained the telephone number which he was able to provide in October 2006. Mr Awit himself may not be very computer literate, but that cannot be suggested of his solicitors or plenty of other people who might have helped.

The defendant further says that it would be disproportionate to allow the appeal and order a rehearing. The amount in issue they say is only £65,000 and the defendant has already been exposed to six hearings to get thus far. This last point seems to me to be at best peripheral, but I find the remainder of the respondent's submissions and the respondent's main case persuasive.

The court has a discretion under the rules to admit fresh evidence on an appeal, the discretion to be exercised in accordance with and in the light of established guidelines. The first Ladd v Marshall principle derives from the clear public policy that litigation should achieve finality, and that normally disappointed litigants should not have a second bite of the litigation cherry by relying on evidence which they ought, if they wanted to rely on it, to have brought forward on the first occasion.

In my view, in the present case the proposition that evidence from Mr Fargialla could not have been obtained with reasonable diligence for use at the hearing simply does not, on the evidence before this court, bear scrutiny. The claimant did not on the evidence really try to make contact with Mr Fargialla before the July hearing. They certainly, in my view, did not exercise reasonable diligence in that respect for the reasons indicated in the respondent's submissions. There was a number of easy means of doing so, and the ease with which they in fact found Mr Fargialla when they knew they had lost shows that this is so. He was not in hiding and he was there to be found easily, if any real effort had been made. There may or may not have been a positive decision not to try, but the significance of his possible evidence cannot have been overlooked in the light of the solicitors' letter of 31st March 2006.

In my view, justice would not be assisted by allowing the claimant a second opportunity which they did not take and must have thought about before the first hearing. I would therefore dismiss the appeal. I would not be deterred from doing so by Mr Sutcliffe's overblown submission that that would cause injustice, overblown because the mere fact that in all the circumstances of this case Mr Fargialla makes a witness statement in which in a single short paragraph he supports Mr Habib's account of the meeting of 21st November 2000 and rebuts Mr Unger's does not support the uncritical submission that therefore with this evidence Mr Habib's case is bound to succeed.

This court is not called on to make any judgment or decision about the effect which Mr Fargialla's evidence, if it were admitted, might have on the result and I do not do so. But one cannot help noticing that the very considerable weight of almost all the rest of the evidence, carefully analysed by the Master, goes the other way. That evidence would I suppose remain, and Mr Fargialla's evidence would be subjected no doubt to searching cross-examination. Who knows what the outcome of a rehearing might be? What we do know is that if the claimant wanted to rely on Mr Fargialla's evidence they should have done so at the original hearing.

For these reasons I would dismiss this appeal, and I record my understanding that the respondent's notice has been withdrawn.

LORD JUSTICE LLOYD: I agree that the appeal should be dismissed.

The claimant's solicitors took an entirely appropriate step on 31st March, having discovered that Mr Fargialla was not to be called by the bank as a witness and had left the bank's employment. The letter which they wrote on 31st March asking the bank's solicitors questions about Mr Fargialla was replied to (as my Lord has said) on 5th May with a refusal to provide the information sought. I would question, myself, whether, in the situation in which the trial was due to take place on the first available date after the exchange of witness statements, it was reasonable to allow five weeks to go by without pressing for an answer to the questions about Mr Fargialla. I wish to make it clear that I do not criticise Watson, Farley & Williams for taking time to respond to the long series of enquiries in the 31st March letter, but if Mr Fargialla's evidence is to be seen as of such importance to the claimant's case as Mr Sutcliffe would have us believe, greater importance should have been attached, and greater urgency should have been assigned, to the question of finding him after 31st March. I am therefore surprised that Manches, for the claimant, did not press for an earlier answer to at least questions 1 to 4 in their letter.

Be that as it may, with the answer of 5th May Manches knew that they were not going to get anything from the bank's solicitors, and that it was up to them and their client to do what they wanted, and that they were able, to find Mr Fargialla in time for the trial, which I suppose by then had already been fixed for mid-July.

As my Lord has said, the evidence is entirely silent as to whether anything further was done by Manches, so it would be right to assume that nothing further was done by them. That may well have been a deliberate choice on the part of the client, as Mr Awit says in his fourth witness statement. Similarly as regards the claimant's French lawyers.

The evidence shows that Mr Awit took responsibility for the task and took one step only towards finding Mr Fargialla. In agreement with my Lord, I am satisfied that that does not demonstrate the use of all reasonable diligence. What it does show is that nothing like the importance that is retrospectively attached to this man's witness evidence was attached at the time, and that reasonable diligence was not devoted to finding him at the time.

SIR ANDREW MORRITT, C: I agree that the appeal should be dismissed for the reasons given by each of my Lords.

SIR ANDREW MORRITT, C: We have dismissed the appeal. We dismiss it with costs and we are asked to make a summary assessment of the costs in accordance with a schedule which comes out at as drafted £19,700.

It is agreed that the time allowed, that is to say six hours, for attendance at the appeal hearing should be halved, which reduces the bill to £18,575. Counsel for the unsuccessful appellant suggests that 14 hours on the documents, with a total in respect of the partner of £5,250, is excessive and that we should deduct something like £2,600 from that figure to reflect what he says would be a reasonable period of time.

We do not think it is appropriate to do so. It was necessary for the partner himself to deal with the serious allegations made against him and his firm, and the amount of time in fact spent by him is almost exactly the same as the amount of time spent by the partner in the opposite firm of solicitors.

For those brief reasons, we see no reason for making any further deduction and will therefore summarily assess the costs in the sum of £18,575.