Sycamore Bidco Ltd v Breslin & Anor

In my two previous judgments in this case I awarded the claimant £5.25m by way of damages for breach of warranty. The next issue that arises in this case is as to interest on that sum. The only thing that is common ground in relation to that interest is the amount of the principal (now that I have decided it) and the fact that such interest should be paid. Beyond that not much else is agreed – there are disputes as to the correct starting date, end date and rate. Unfortunately substantial sums of money turn on the debates that have arisen. If the claimant is right in its highest case then the interest on the judgment sum would be approximately £1.31m; if the defendants are right to the fullest extent of their argument, then the aggregate interest for which they would be liable is about £81,000. It is unnecessary for the purposes of this debate and this hearing to distinguish between the respective positions of the defendants.

So far as the starting date is concerned, the claimant contends for what it says is the normal starting date, that is to say the date the cause of action accrued. That date is the date of completion of the SPA – 9^th November 2007. It disputes that there is any reason for departing from that. So far as the end date is concerned, it says that the relevant “judgment” for the purposes of section 35A Senior Courts Act 1981 and section 17 of the Judgments Act 1838 is the date on which I handed down the second of my two judgments, on the “upper figure” point – 15^th January 2013. On that date the section 35A interest stops and the Judgments Act interest starts.

So far as rates are concerned, the claimant argues for a rate of 3% above base rate as being justifiable on the facts as the rate applicable to companies of the type of Sycamore, alternatively applicable to SMEs (small and medium enterprises). Alternatively, if the presumed rate of 1% would otherwise be applicable, the higher rate of base rate plus 2% (which means in substance 2.5% as an overall rate) should be applied from 5^th February 2009, which is when base rate slumped to 1%, followed by a further fall to 0.5% a month later.

The defendants contend for a variety of later commencement dates and end dates. The various permutations are as follows:

These issues raise questions of law and fact which require consideration in some detail. It might be thought that this exercise, which took the best part of a day in court, justifies the broad brush approach of a standard, presumed rate so as to avoid satellite litigation, as suggested in some of the authorities. However, the issues have been raised, and a lot of money is involved in this point, so it is necessary for me to deal with the issues. In any event, the thrust of the authorities and other material might be thought to be acknowledging that a standard rate, at least in current interest rate conditions, may not be as appropriate as it was and attention will have to be given to detail in appropriate cases.

As both parties before me essentially agreed, the starting point for a consideration of the principles is the judgment of Goff J in BP Exploration Co (Libya) Ltd v Hunt [1979] 1 WLR 783. He said:

“… The fundamental principle is that interest is not awarded as a punishment, but simply because the plaintiff has been deprived of the use of the money which was due to him.”

He then quoted from General Tire & Rubber Co v Firestone Tire & Rubber Co Ltd [1975] 1 WLR 819:

“… [Interest] is awarded because it is only just that the person who has been deprived of the use of the money due to him should be paid interest on that money for the period during which he was deprived of its enjoyment.… [The defendants] enjoyed the use of the money during the whole of this time and in law it is deemed to have been due to them from the beginning of that period.” [Lord Salmon]

Then he cited from the speech of Lord Wilberforce:

“Where a wrongdoer has failed to pay money which he should have paid, justice, in principle, requires that he should pay interest over the period for which he has withheld the money.”

And then Goff J went on:

“It is for this reason that interest will generally run from the date of accrual of the cause of action in respect of money then due or loss which then accrues; and in respect of loss which accrues at a date between accrual of the cause of action and judgment, from such date.…

But the power to award interest is discretionary, and there is certainly no rule that interest will invariably run from the date of loss. It is no part of my task to attempt to define the circumstances in which the court will depart from the fundamental principle; indeed, since the discretion to award interest is unfettered, it would be improper to do so. There appear, however, to be three main groups of cases in which, in the exercise of its discretion, the court may depart from the fundamental principle.

The first group of cases concerns the position of the defendant. The court may consider, in the light of all the circumstances, that his position was such that it would not be just to make the defendant pay interest from the date of loss. It may do so if, for example, the circumstances were such that the defendant neither knew, nor reasonably could have been expected to know, that the plaintiff was likely to make a claim, and so was in no position either to tender payment, or even to make provision for payment if the money should be found due. In such a case, the court may in its discretion only grant interest from the date of the plaintiff’s claim, or even from such a date as will allow reasonable investigation of the claim. Again, to quote from Lord Wilberforce’s speech in the Firestone case, at page 836:

‘In a commercial setting, it would be proper to take account of the manner in which and the time at which persons acting honestly and reasonably would pay.’

On that principle, the majority of the House took account of a normal commercial practice under which royalties in respect of use before grant of a patent are not expected to be paid until grant, and so awarded interest only from the date of the grant. There are no doubt other examples.

The second group of cases concerns the conduct of the plaintiff. If, for example, the plaintiff has been guilty of unreasonable delay in prosecuting his claim, the court may decline to award interest for the full period from the date of loss. This may be to encourage plaintiffs to prosecute their claims with diligence, and also because such conduct may lull a defendant into a false sense of security, leaving him to think that the claim will not be pursued against him.…”

The same general position in relation to these matters appears from the judgment of Forbes J in Tate & Lyle v GLC [1982] 1 WLR 149 at page 154:

“Despite the way in which Lord Herschell LC in London, Chatham and Dover Railway Co v South Eastern Railway Co [1983] AC 429, 437 stated the principle governing the award of interest on damages I do not think the modern law is that interest is awarded against the defendant as a punitive measure for having kept the plaintiff out of his money: I think the principal now recognised is that it is all part of the attempt to achieve restitutio in integrum. One looks, therefore, not at the profit which the defendant wrongfully made out of the money he withheld – this would involve a scrutiny of the defendant’s financial position – but at the cost to the plaintiff of being deprived of the money which he should have had. I feel satisfied that in commercial cases the interest is intended to reflect the rate at which the plaintiff would have had to borrow money to supply the place of that which was withheld. I am also satisfied that one should not look at any special position in which the plaintiff may have been; one should disregard, for instance, the fact that a particular plaintiff, because of his personal situation, could only borrow money at a very high rate or, on the other hand, was able to borrow at specially favourable rates. The correct thing to do is to take the rate at which plaintiffs in general could borrow money. This does not, however, to my mind mean that you exclude entirely all attributes of the plaintiff other than that he is a plaintiff. There is evidence here that large public companies of the size and prestige of these plaintiffs could expect to borrow at 1 per cent over the minimum lending rate, while for smaller and less prestigious concerns the rate might be as high as 3 per cent. over the minimum lending rate. I think it would always be right to look at the rate at which plaintiffs with the general attributes of the actual plaintiff in the case (though not, of course, with any special or peculiar attribute) could borrow money as a guide to the appropriate interest rate. If commercial rates are appropriate I would take 1 per cent over the minimum lending rate as the proper figure for interest in this case.”

In Kuwait Airways v Kuwait Insurance [2000] 1 All ER (Comm) 972 Langley J summarised the position as follows (at page 986g):

“In my judgment the authorities to which I have referred establish the following principles and factors as material to the exercise of the discretion. (1) In principle interest is to be awarded to compensate the claimant for being kept out of the money from the date when it has been established that it was due to him; it is not based on fault or the wrongful withholding of payment by the defendant. (2) The starting date will therefore normally be the date to which the 1981 Act refers, namely the date the cause of action arose and so, in indemnity insurance (subject to any express terms of the cover) the date of loss. (3) It follows from (1) that generally the existence of and need to investigate a genuine dispute as to liability is not a material factor in postponing the running of interest. The position is not so clear where there is a dispute or uncertainty as to the quantum of the claim. It can be said that money is not due until it is at least claimed to be due in a specific amount and, as Mr Hapgood submitted, quantification of a claim is, unlike liability issues, likely to be a matter only within the knowledge of the insured. It can equally be said, however, that there is no real difference in principle from a dispute as to liability: once the answer is known it establishes not only that payment was due but also what was due and when it became due. In my judgment the latter is the better view, more in accord with basic principle and clearly expressed by Robert Goff J in the passage I have quoted from the BP Exploration case … (4) The application of these principles may be tempered by rephrasing the question as one in terms of when the claimant could reasonably and commercially have expected to be paid. But that has never been applied to extend the starting date beyond the date when a reasonable investigation would have been completed, even if it would have resulted in a decision to resist the claim, and even then it has been used substantially in cases in which the claim can properly be viewed as sufficiently unusual to inspire special investigation or where there is evidence of a commercial practice as to a later date of payment without an interest obligation. (5) Where a claimant assured has been guilty of excessive delay, whether in making the original claim or in pursuing it, then the starting point (or on occasion the rate of interest) may be adjusted adversely to him. The rationale for such an approach has sometimes been expressed as a form of sanction for delay but can, I think, equally and more consistently with principle, be expressed in terms that in such a case it is wrong to view the claimant as kept out of or deprived of the use of money payment of which he has delayed in seeking.”

I was taken to various successful and unsuccessful attempts to postpone the start date for the interest payable on a judgment.

McGregor on Damages, 18^th Edition, at paragraph 15-081, cites insurance cases which suggest that those types of cases might be exceptions to the general rule to allow a short time for an insurer to consider claims, or a longer time in complex claims.

In Claymore Services v Nautilus [2007] EWHC 805 (TCC) Jackson J considered a quantum meruit claim made by a building contractor. He was prepared to allow some delay in the start date, bearing in mind the usual sort of facts in such cases, which do not permit an easy and immediate calculation of sums due as soon as the cause of action accrues. At paragraph 39 of his judgment he said:

“I agree with both counsel that in a case of this kind, demand for payment is not an element of the cause of action. The date upon which the builders’ cause of action accrues in a restitutionary quantum meruit claim is not entirely clear. For understandable reasons, there has not been a full citation of the authorities which bear upon this question. Even if, in theory, the cause of action accrues on the date upon which the building is handed over, nevertheless I am quite satisfied that interest should not run from that date. Interest should only run from the date when the sum due is ascertainable. In this regard, most of the relevant information resides with the contractor. In my view, interest should start to run when the contractor has furnished his final account and the building owner has had a reasonable opportunity to assess the final account. This approach accords with the general practice of the construction industry. It is also consistent with the reasoning of Robert Goff J in BP Expiration Co (Libya) Ltd v Hunt…”

This case can be regarded as a case like Firestone, where normal commercial practice would not require payment on any date earlier than the date referred to by Jackson J. It is not a departure from the clearly stated general principle set out in the earlier cases. It is within one of the expressed qualifications.

In Banque Keyser Ullman SA v Skandia (UK) Insurance Co Ltd (unreported) 11^th December 1987 Steyn J had to adjudicate on a claim that interest should not start to run on a claim until it had been formulated. He rejected that claim on the facts:

“The question whether award of interest is appropriate is a matter of discretion, and if interest is awarded the selection of the date from which interest should be awarded is similarly a matter of discretion. Nevertheless the basic principle is that interest will be awarded from the date of loss: BP Exploration v Hunt… The date of loss marks the inception of the period over which the plaintiff has been deprived of his money. The only point of substance advanced in order to displace that prima facie rule is that Skandia could not have been expected to pay on a claim not yet formulated. The argument has a certain superficial attraction. But in all the circumstances I am satisfied that it ought not to succeed.”

His reasoning for its not succeeding was that the inability to formulate a claim was based on the same non-disclosure by an underwriter which led to the claim itself, and it would be illogical to allow it to lead to a claim but at the same time allow it to justify an abatement of interest. Mr Neish relied on the case as justifying a proposition that a failure to formulate a claim was a good ground, by itself, for postponing interest until such time as it was formulated. I do not think that the decision should be read in that way. The proposition put forward in that case was found to be only “superficially” attractive. Mr Neish’s submission was that this was in effect a compliment to the claim. I do not so read it. I think that it demonstrates a weakness in the point, from the judge’s point of view. I think that the judge was doing no more than paying the point a sort of backhanded compliment, and did not deal with it further because it failed on the facts in any event.

Westdeutsche Landesbank v Islington BC was a case in which the financial consequences of ultra vires local authority interest rate swap contracts was determined. Having found liability, the first instance Judge (Hobhouse J) awarded interest from a date later than the date on which the ultimately recovered payment was made (18th June 1997). The Court of Appeal [1994] 1 WLR 938 overturned that decision as being factually and legally flawed. It also addressed the question of whether or not interest should run before it was ultimately known whether the transaction was ultra vires, which took a decision of the House of Lords.

“Mr Philipson urges that the council could not be expected to repay anything more than it had actually paid, before the council knew that the interest swap contract was ultra vires and void, and he urges further that the council did not really know that until the decision of the House of Lords…

I see no merit in the suggestion that the council should be absolved from paying interest to the bank over the period while the correctness of the decision of the Divisional Court in Hazell’s case…was being tested in the higher courts. As to the earlier period from 18 June 1987, the overriding factor is, in my judgment, that from 18 June 1987 the council had the use of the whole of the bank’s £2.5m, the whole of which it spent. Accordingly, I would fix the date from which interest is to run as 18 June 1987.” (Per Dillon LJ at pages 948 – 949).

Leggatt LJ agreed:

“The fact that neither party initially realised that the contract under which the money had been paid was ultra vires is immaterial.” (Page 955G).

This is a compelling indication that ignorance of the existence of a claim on the part of both parties is not, of itself, a reason for departing from the general rule. A fortiori, the ignorance of one or other of them should not be a reason either.

I have set out these authorities at greater length than might normally be thought to be necessary on an argument as to interest because of the content of Mr Neish’s submissions. He accepted that the basic position was to be extracted from Tate & Lyle and BP v Hunt but said that the discretion of the court was unfettered. Robert Goff J had identified only broad classes of cases where interest would be postponed and that those classes were not closed. I consider that he is right in relation to the second and third of his propositions, but care must be taken in relation to his first. The jurisdiction is undoubtedly to be exercised in accordance with the discretion of the court, but it is not unfettered in the sense that the court can do what it likes on a case-by-case basis. The basic position, or starting point, is that set out in those two cases, which is that interest will normally start running when the cause of action accrues (assuming that loss accrues then too). The exceptions are true exceptions, and, in my view, are not to be taken as making significant inroads into that basic proposition. Mr Neish cannot simply appeal to the discretion of the court, and indeed in his submissions he did not do so. He said that he sought to bring the present case within the first of Robert Goff J’s class of exceptions, though actually on analysis I think that he sought to rely on the second one as well. I shall approach this matter on the footing that there is a strong and well-established limit on the exercise of my discretion in that interest should run from the date of accrual of the cause of action unless there is a strong and particularly good reason why it should not.

I therefore turn to consider the basis on which Mr Neish advances his later dates.

Mr Neish’s primary submission was that interest should be abated so that it does not run for the entire period up until the first full formulation of the quantification of the claim, plus a short time for consideration, which takes one to mid-January (say, 16^th January) 2012. The reasoning behind this submission is as follows.

Mr Neish described the position of the defendants (Mr Breslin and Mr Dawson) as being an unusual one. Normally, he said, the warrantors in a company sale case are the same people as were managing, or otherwise actively involved in, the company, who could be expected to be personally responsible for, and to have personal knowledge of, the financial affairs of the company. The present situation was different. Mr Breslin and Mr Dawson had withdrawn from the active day to day management of the company, and, at least so far as the Liberata moneys and AXA moneys were concerned, did not predict, and could not reasonably have predicted, the impact of what was a highly technical issue as to accounting treatment. They gave their warranties on the back of what the auditors had certified. The degree of their personal involvement was not such that they themselves can have known that there was a problem.

Furthermore, they were not the beneficiaries of all the proceeds. Between them they enjoyed less than 50% of the proceeds of sale, the balance going to trusts. Although they were trustees of those trusts, they did not give the relevant warranties in their capacity as trustees.

He also pointed to the fact that Sycamore was not itself exposed to inflated interest liabilities during the whole of this period, because, although the purchase was in part funded by bank borrowing to the tune of some £8m, it appears that in the year ended 30^th September 2009, Dunedin had bought in the bank debt (at a discount) and waived interest.

In those circumstances they gave the warranties in good faith, and in complete ignorance of any problem, and then heard nothing about the matter until the letter before action arrived out of the blue in September 2010. Stopping the clock there for the moment, Mr Neish submitted that that brought Mr Breslin and Mr Dawson within the first category of exceptions in BP v Hunt.

If Mr Neish seeks to bring this case within Robert Goff J’s first category of exceptions, I do not think that his points about the defendants being beneficiaries of less than the whole of the proceeds, and the buying in of the bank debt, assist him. The real question is whether their state of ignorance of the possible claim means that interest should not run.

Mr Adam Smith, who conducted the argument on interest for Sycamore, disputed the state of complete ignorance painted by Mr Neish. He pointed out that on the evidence Mr Breslin, at least, considered that the Liberata sums were, and should be treated as, turnover. However, in the light of my other conclusions on this point I do not have to consider the impact of this.

In my view Mr Neish’s arguments under this head fail. I assume for these purposes that Mr Breslin and Mr Dawson knew that they had given warranties, but knew nothing about the likelihood of a claim until the letter before action as Mr Neish submits. However, that does not bring them within the first category. The first point to make is that if matters were as Mr Neish says they are, the “exception” would apply in so many cases that it would cease to be an exception. There will be a large number of contractual claims where, for a period after breach, the defendant will not know that there has been a breach – for example, many share warranty claims and many claims involving faulty goods. The period of ignorance may be short or it may be long, but it has not been suggested that ignorance in such cases is a reason for postponing the commencement of interest on the resultant damages claim. The present case is no different.

Furthermore, it is not clear why mere ignorance should be a reason for not paying interest. As appears from the above authorities, the reason why interest is paid is because the defendant has had the use of the money (damages) for a time for which he should not have had that use. That is true whether or not the defendant is ignorant. This is perhaps most strikingly illustrated by the Westdeutsche case, where neither side of the swaps transaction knew, definitively, that the transaction was illegal until the House of Lords pronounced upon the point, and even then there were question marks about recovery which were not resolved until some heavy litigation had occurred. It is hard to imagine a more complete case of ignorance than that. At one level the parties in the present case were less ignorant than the council in the authority. Mr Breslin and Mr Dawson did know that they had given warranties, and must be taken to have known that, at least in theory, they were exposed, that the warranty had meaning and was available to the purchaser.

In fact if one reads Robert Goff J’s first category carefully, it is not a category comprised of ignorant defendants. The category is a general one which considers the position of the defendant. The ignorant defendant referred to by the judge is one sub-category of the overall class, and must be taken to be a special sort of ignorant defendant, for the reasons given in the preceding paragraph. The other illustration the judge gives is where, as an ordinary matter of commerce, one would not expect payment to be made on a claim as early as the accrual of the cause of action. In those cases it is clearly understandable that a defendant should be able to resist the notion that he should in any sense have paid before the date when commercially he ought to have done. This explains the decision in Claymore. Nobody would expect a client to pay a builder on a quantum meruit claim before the builder has prepared proper accounts and submitted a proper claim, notwithstanding the fact that the cause of action may have accrued earlier. The same explanation applies to the limited time given in some insurance claims for the insurer to make proper investigations. In both those cases all the facts relevant to the claim are in the hands of the other party (or at least most of them) and it is obvious as a matter of commerce that the proper, commercially justifiable, date for payment does not arise when the cause of action may have arisen.

Since the present case is nothing like the other examples within Robert Goff J’s first category, Mr Neish can get no comfort or support from those cases. So far as timing and the knowledge of the claim is concerned, the case against Mr Breslin and Mr Dawson was a normal one and does not attract exemption from the normal rule.

Mr Neish also prayed in aid the fact that, even at the date the claim was made, Mr Breslin and Mr Dawson did not know, and cannot realistically have known, the amount of the claim made against them, and so, even if they had wanted to, could not have paid up. The letter before action had a section entitled “Quantum”, but it set out a largely unparticularised claim, a claim which failed and a claim which was different from that ultimately advanced. So far as the first is concerned, it set out, in general terms without particulars, a claim based on an assumption that Sycamore would not have entered into the deal in the first place had it known of the true position. That is effectively a rescission-based claim (in terms of calculation) which I ruled against in my judgment. There is an alternative claim based on applying a lower multiple to EBITA than Sycamore paid and subtracting that sum (whatever it was – it was not set out) from the amount paid. This is not how Mr Hine ultimately approached his calculations. There is a further alternative particularised claim (in terms of specifying sums of money) for aggregate losses whose calculation basis is not set out. Accordingly at that stage, Mr Neish submits, the defendants could not have worked out what money claim was being made against them.

The matter did not get any clearer in pleadings. Sycamore’s primary damages case is pleaded in a manner similar to the generalised claims set out in the letter before action, with no particulars. On 22nd February 2011 the defendants sought particulars of the actual EBITA (or EBITDA) relied on, and what an appropriate multiplier would have been. The response was that an appropriate multiplier would have been five or less, but that any further details would be a matter for witness and expert evidence. As a result of that, it was only when Mr Hine’s report was served on 22^nd December 2011 that the defendants could have known exactly how the quantum case was put against them. They were therefore ignorant of quantum until then.

In my view this additional “ignorance” does not add any material amount of strength to Mr Neish’s case on ignorance of the cause of action. Again, in the period leading up to the assertion of a claim, the defendants in this case were in the same position as the defendants in a large number of other cases in not knowing the amount of the claim which has not yet been made. That is not sufficiently exceptional to take the case out of the general rule. So far as the period following on from the letter before action is concerned, the refusal to give some of the particulars sought is, on the face of it, surprising, but it was not challenged in the proceedings themselves, no doubt because at about the same time it was agreed that the losses would be particularised in experts’ reports. Nor is it right to say that the defendants can have had no idea of the sums for which they might be liable. They could have formed some idea themselves, based on the generalised claims that had been made, had they chosen to do so. If they did not have relevant accounting information, doubtless it could have been supplied to them. Furthermore, it is far from unusual for quantum issues to be clarified during the course of the interlocutory stages in an action and the events in this case are not sufficiently unusual to take the case away from the normal rule.

To summarise, therefore, on this area of the case, I find that the period of ignorance of the claim as a whole up to the letter before action, and the obscurity of quantum in the period up until December 2011, are not sufficient to postpone the normal interest start date until January 2012; nor are they sufficient to start interest running only from the date of the letter before action. It follows that there is similarly no warrant for allowing interest up to the letter before action and then disallowing it for the period up to January 2012. That would simply be illogical if the other points failed.

Mr Neish’s fourth alternative is to disallow interest for the period between the refusal to provide particulars of loss in response to the request referred to above until that loss was finally clarified in Mr Hine’s report. I am afraid that the logic of this alternative completely escapes me, but in any event it fails on the facts, and it fails as a matter of principle. So far as the latter is concerned, if the previous periods of ignorance had not been sufficient to take the case out of the norm, then this period cannot be either. Although he did not put it this way, Mr Neish might, I suppose, have tried to squash this period into Robert Goff J’s second category of exceptions (conduct of the plaintiff and unreasonable delay), but it does not really amount to delay, and certainly not conduct which should attract the sanction of disallowing interest for that period. In any event, it seems to fail on the facts. Mr Neish suggested that it was as a result of the failure to give particulars of the quantum that it was agreed that quantum experts’ reports would be passed sequentially, not exchanged, with Sycamore going first. This was, he said, to overcome the difficulties posed by the failure to give proper particulars. In fact, that turns out not to be the case. It seems that the agreement to have sequential reports on quantum was reached before the failure to give the particulars, and indeed before the request was made. So to that extent Mr Neish’s point fails on the facts. In any event, even if he had been right his point would have had no real relevance to the question of interest start dates. If his clients did not like the answer, and felt hampered, their remedy was to seek an order that they be provided. That application was not made, presumably because they thought that getting more detail in an expert’s report was a better idea.

Last, there is Mr Neish’s point (v), which is an abatement of rate in lieu of an abatement of interest as a whole. On the assumption that a proper commercial rate of interest is prima facie appropriate to this case (which it is – a point dealt with below) the only basis for reducing it below what it would otherwise be on the basis of the points made above would be some sort of disciplinary basis. I can see no basis for this whatsoever, and none was articulated by Mr Neish in his argument.

It follows, therefore, that the start date for the running of section 35A interest should be the date the cause of action accrued and on which loss accrued, which is (as is common ground) 9^th November 2007 (the date of the SPA and the completion date). That would be the normal position, and there is no good reason for departing from it.

There is a small debate about this. The parties’ cases are set out above. Two points arise – what is the appropriate “judgment” within the meaning of both relevant acts, and (I suppose) whether I should use my discretion to supplant that date (which it is accepted I have jurisdiction to do).

The wording of section 35A is that interest can be awarded:

“… for all or any part of the period between the date when the cause of action arose and:

… (b) in the case of the sum for which judgment is given, the date of the judgment.”

Section 17 of the judgments act 1838 provides that:

“(1)… Every judgment debt shall carry interest at the rate of [8] percent per annum from such time as shall be prescribed by rules of court… until the same shall be satisfied…”

The date there referred to is dealt with by CPR 40.8:

“(1)

where interest is payable on a judgment pursuant to section 17 of the Judgments Act 1838… the interest shall begin to run from the date that judgment is given unless… (b) the court orders otherwise.”

In order to make sense of that scheme, the word “judgment” should be construed so as to mean the same thing in all three provisions, though I doubt that that is determinative of the issue that arises in this case.

Mr Smith submitted that the relevant “judgment” was the judgment in this case which finalised the amount of liability. Because of the way that matters developed in this case, that means my decision of 15th January 2013. On that date I delivered a judgment on a damages point left over from my main judgment. It was not possible to finalise the damages until I had done so. From that date the amount of damages was rendered certain. Mr Neish accepted that “judgment” means “judgment”, but that does not take the debate that much further. The essence of his submissions was that the appropriate date to take in this case would be the date when a final order is made tying up all outstanding matters – ordering damages to be paid, fixing interest, dealing with costs and (so far as applications are made) dealing with applications for permission to appeal.

In most cases that distinction will not make much difference. There is usually no significant period of time between the handing down of a judgment and the making of an order embodying that judgment in an order of the court. However, two factors combine to make the point of some significance in this case. The first is the extended nature of these proceedings since I handed down my first judgment. That extended period arises from the need to have separate argument on the “upper figure” point which was left open in my first judgment; the intervention of the Christmas holidays; and the need (agreed by both parties) to have a separate hearing on interest before a further hearing on costs (and other matters) could take place. All that means that a period of over 2½ months will have elapsed between first judgment and final order. The second is the amount of the damages in this case and, by extension, the amount of interest. Judgment debt interest would run at 8%. Section 35A interest will be running at a maximum of 3.5% (the highest the claimant puts its rate). The difference between those rates is capable of amounting to several hundred pounds per day, I was told. Hence apparently the point is worth arguing about.

As a matter of construction, I do not think that the point needs to detain me long. My first judgment did not finally arrive at a money judgment in favour of the claimant. It required my second judgment to do that so that the “upper figure” could be fixed and the amount of damages finally determined at £5.25m. That, in my view, was the “judgment” in this case for the purposes of all three provisions. The order which embodies the fruits of that judgment is a different thing, and is an order not a judgment. In my view that is clear. Mr Neish did not strenuously argue to the contrary.

However, Mr Neish did go on to say that I should exercise my discretion under both Acts so as to ensure that section 35A interest should stop, and Judgments Act interest should start, on the date when I finally dispose of these matters and make an order. He did little more than to assert that this was the “just date”, because the delays between my first judgment and the ultimate order date are not anyone’s fault. Interest starts from the date when everything else is dealt with, whenever that is, because that is what would normally happen.

I am not sure that that is what would “normally” happen, but if it is that is doubtless because the interval between the two events is normally insignificant. In this case it is significant. The prima facie position under the rules and the statutes is that the change of interest basis should take place when judgment is delivered. The mere fact of delay is no reason for departing from that prima facie case. In fact it is a good reason for sticking with the original date. Were it otherwise then the change of interest rate would depend on the vagaries of judicial availability, court listing, counsel’s availability and all the other factors which may operate to introduce some delay into the period between the hand-down of a judgment and final disposal of the matter. This is even more so under the modern practice which allows a hand-down of judgment without the attendance of the parties with a view to a subsequent attendance to deal with outstanding matters. It is desirable that the matter should remain clear – interest changes on the date of the judgment. Whether or not this benefits a claimant or a defendant will depend on the interest rate differential between the two Acts. There was a time when it would have suited a claimant to postpone that date because interest under section 35A was greater than under the 1838 Act. Under current economic conditions the position is reversed. But that is a fact of economic life. There has to be a good reason for departing from the provisions of the Acts and rules, and Mr Neish is unable to advance one. In the circumstances the end date for the running of section 35A interest shall be the date of my second judgment.

The claimant accepts that in commercial cases the presumption is (or at least was until recently) that the rate of interest under section 35A was 1% above base rate and this was the general practice in the Commercial Court. However, the latest Commercial Court Guide indicates that in the light of recent developments in interest rates, there is no presumption that that rate “is an appropriate measure of a commercial rate of interest”. Furthermore, there are a number of cases which indicate that the court’s approach can be more flexible than applying one standard rate across the board.

Tate & Lyle at page 154D-F sets out the starting point of the approach. It is said there that, as a matter of principle, the correct approach is to take the rate at which the claimant could borrow money. That makes it look as though the claimant is viewed as a potential borrower rather than a potential saver. However, that position is not, or at least was not until recently, pursued to its logical conclusion. According to Colin Baker v Black Sea and Baltic General Insurance Co Ltd [1996] LRLR 353 the presumed Commercial Court rate was said to be a pragmatic compromise between the position of a notional borrower and a notional saver:

“Although there may be some uncertainty to what extent the personal circumstances of the plaintiff may be relevant, the pragmatic approach of the Courts has certainly been reflected in the practice of the Commercial Court. The practice whereby interest is normally awarded at 1 per cent over base rate amounts to a presumption which can be displaced if its application would be substantially unfair to either party. That rate represents something of a compromise (albeit weighted in favour of the plaintiff) between what a plaintiff kept out of his money might have earned on it and what he might have had to pay by way of interest… It does not preclude evidence as to the rate at which persons with the general attributes of the plaintiff could have borrowed money: see [Tate & Lyle].” (per Otton LJ at page 365)

It should be noted that the exercise envisaged by Otton LJ and by Forbes J in Tate & Lyle, in order to consider whether to depart from what was perceived as the commercial norm, does not involve simply looking at the actual claimant. It involves looking at the class to which the claimant belongs and, if the circumstances require it, awarding that sort of generalised rate to the claimant in view of an assumed or standardised rate. That is how the court approached the matter in Colin Baker – see the description of what the trial judge had done, and the evidence on which it was based at page 364 and the approval of that approach at page 365. What the plaintiff had done was to:

“[Produce] evidence of the rate at which a person with his general attributes (but ignoring his particular position) could have borrowed money over the period.”

This approach has been adopted in a number of cases. However, in some of those cases, and despite the fact that the personal borrowing characteristics of the claimant are per se irrelevant, and that the rates at which the claimant actually borrowed are not per se relied on, it was nonetheless held that those rates can be used as evidence of what borrowers of that class would pay – a sort of self-generated comparable. This approach was apparently adopted in Fiona Trust v Privalov [2011] EWHC 664 (see the general approach described by Andrew Smith J at para 16, and his particular approach in that case at paras 24-5); and Bridge UK.Com Ltd v Abbey Pynford plc [2007] EWHC 728 at para 146. It was probably the approach of HH Judge Toulmin QC in PGF II SA v RSA [2010] EWHC 1459 (TCC) – although he does not articulate the fact that he is taking the claimant’s own borrowing rates as being comparables, he does identify the relevant passage in Tate & Lyle as containing the proper approach (see para 344) and at para 345 he refers to the market rate. In Keyser Ullman (supra) Steyn J adopted the classification approach to the extent of distinguishing between classes of claimants.

All that, in my view, sets out the proper approach of the court in relation to interest rates, which I shall follow. I also note, and follow, the view of Steyn J in Keyser Ullman that:

“In the interests of a cost-effective administration of civil justice, the courts must adopt a fairly broad brush approach to the award of interest. On the other hand, in light of the over-riding criterion of fairness, the courts are vigilant to ensure that the broad brush approach does not become too blunt an instrument.”

Mr Neish sought to play down the effect of the cases in which the court departed from the presumed rate of 1% above base rate as being exceptional cases involving small businesses, and he pointed to Ahmed v Jaura [2002] EWCA Civ 210, Bridge v Abbey Pynford (above), Attrill v Dresdner Kleinwort [2012] EWHC 1468 (QB) and Claymore v Nautilus [2007] EWHC 805 (TCC) as falling into that category. They are indeed (probably) all examples of the smaller business, but they are not to be dismissed on that footing. It is apparent from the judgment of Mummery LJ in Ahmed that the rate that was allowed was one determined by reference to the class of small businesses:

“26 It is right that defendants who have kept small businessmen out of money to which a court ultimately judges them to have been entitled should pay a rate which properly reflects the real cost of borrowing incurred by such a class of businessmen. The law should be prepared to recognise, as I suspect evidence might well reveal, that the borrowing costs generally incurred by them are well removed from the conventional rate of 1% above base (and sometimes even less) available to first class borrowers.”

There is no reason to treat that class differently from other classes that can be identified. It is therefore open to Sycamore to establish that it is a member of a class whose borrowing rates would be more than the conventional (presumed) rate and to argue that fairness requires that it should receive that rate.

One factor which is capable of making it fair to depart from the presumption is the effect on interest rates of the credit crunch. That is doubtless what lies behind the wording of the current Commercial Court guide, though of course that is only a guide and not binding. It was, however, recognised in Persimmon Homes (South Coast) Ltd v Hall Aggregates (South Coast) Ltd [2012] EWHC 2429 (TCC), where Ramsey J recognised that since the credit crunch (marked by the lowering of Bank of England base rate to 1% in February 2009 and 0.5% in March 2009) 1% above base rate was no longer a rate at which borrowing could be obtained. He awarded 1% over base rate until 5^th February 2009 and 2.5% overall (2% above base rate) for the period thereafter. He did not have any evidence of the rate that companies like Persimmon would have paid to borrow money (see paragraph 16 of his judgment) and doubtless that is why he applied 1% above base rate. It is, however, implicit in his remarks that had he had such evidence he might well have ordered a rate in accordance with what it showed if it had been greater than 1% over base rate.

I now turn to apply those considerations to the case before me.

Mr Smith invites me to find that Sycamore was in the class of “newcos” formed to effect the acquisition of a business in a private equity transaction. In 2007 that class could borrow at the sort of rates referred to in the evidential points (i) to (iii) above. There is therefore sufficient evidence to demonstrate that the borrowing by Sycamore (which is the prima facie measure of the interest payable under section 35A) would be at those rates, and that evidence is sufficient to displace the presumption of 1% over base rate. He says it is fair, in this case, to acknowledge that fact and to displace it.

Mr Neish says that this case is not sufficiently different from the norm to justify that. He says:

I prefer Mr Smith’s submissions. I am satisfied that it is appropriate to look at Sycamore’s position, not Dunedin’s, because Sycamore was the borrower and the purchaser of the business. Dunedin was not treated as the borrower. If it had been, then the actual borrowing would have been at lower rates if it in fact borrowed at those lower rates in order to take out the bank loans. It is the damages payable to Sycamore, not Dunedin, which were “withheld” during the period which has elapsed since completion of the purchase, and, on the authorities, that is the sum which is looked to in order to assess interest.

In the circumstances I consider that enough has been done to displace the presumption. It has been demonstrated that persons of the class to which Sycamore belongs would have to borrow at rates greater than 1% above base rate and that that rate should be taken to be 3% above base rate for what I will call the first part of the period. Taking base rate rather than LIBOR works slightly in the defendants’ favour, because for that period LIBOR was slightly greater than base rate.

However, that is only from the first period. In my view it would be appropriate to reflect the fact that interest rates were significantly reduced from February/March 2009, and at the same time to acknowledge that borrowing at 1% above base rate was, from that time, pretty well impossible. In doing so I follow the approach of Ramsey J in Persimmon Homes v Hall. If I differentiate for this period (which I do) Mr Smith says that I should award 2% above base rate, which he says yields a rate of 2.5% across the period. That is right if one takes the period from the date when base rate hit 0.5% in March, rather than February when it went down to 1%. Striking an appropriate balance, I find that it is appropriate to step the interest down from 5^th February 2009 and to allow interest at 2.5% from that date, rather than take 3.5% for the month between the February and March changes.

I therefore find: