IXIS Corporate & Investment Bank v WestLB Ag & Ors

On 22 June and 13 July 2007, I heard submissions from the parties on an application by the first defendant, WestLB AG (“WestLB”) to consolidate the existing proceedings, i.e. claim number 2004 Folio 134, (“the IXIS proceedings”) with two other sets of proceedings in which WestLB brings claims against Nomura International Plc (“Nomura”). At the end of the parties’ submissions on 13 July 2007, I announced that the application would be dismissed, for reasons that I would hand down later. These are my reasons.

The application first came before me on 22^nd June 2007. At that hearing all the parties in the IXIS proceedings were represented. So also was Nomura. However I decided that I could not deal satisfactorily with the application on that occasion for various reasons. The most significant was that WestLB had not then served any Particulars of Claim in one of the other proceedings which it wished to be consolidated with the IXIS proceedings, so that it was almost impossible to gauge the degree to which common issues of fact and law arose. I therefore made various directions and ordered that the matter be re-listed for further argument on 13 July 2007.

WestLB’s application is opposed by all the other parties in the IXIS proceedings and is also opposed by Nomura.

I will give the briefest outline of the facts giving rise to the three actions and those proceedings, in order to put the application in context.

In June 2000, there was a merger of the consumer rental business of a subsidiary of Granada Group plc and TUK Holdings Limited, previously Thorn UK, which was itself an indirect subsidiary of Nomura. The merger was funded by WestLB. West LB provided funds totalling £860 million. The merged group was called the “Box Clever” Group. It was intended that the funds provided by WestLB, which have been called the “Bridging Loan”, would be replaced by more permanent funding arrangements by way of a Securitisation, or high yield Bond Issue by one or more of the companies in the Box Clever Group.

In December 2005, WestLB started proceedings against Nomura in respect of the £860 million Bridging Loan. These proceedings (2005 Folio 1050) have been called “the First West LB proceedings”. West LB alleges, in short, that it agreed to provide those bridging facilities on financial models and information provided by Nomura. In the first WestLB proceedings, WestLB alleges that Nomura was negligent in its provision of the financial models and information to West LB.

The IXIS proceedings arise out of the Box Clever Securitisation which closed on 20^th June 2002. The Securitisation raised finance from the issue of marketable secured floating rate Loan Notes (“the Notes”) of two classes. The payment of the Notes was secured on the income stream derived from Box Clever’s consumer rental business (run by Home Technology Finance Limited - “HTFL”) including the revenue from the hire of televisions and videos etc to consumers.

West LB was the arranger of the Securitisation. West LB, together with CIBC World Markets plc (“CIBC”), the second defendant in the IXIS proceedings, were the joint lead managers of the Securitisation. West LB and CIBC together subscribed for all the Notes at the close of the Securitisation. In October 2002 IXIS, the claimant in the IXIS proceedings, purchased from CIBC £200 million of the Notes issued in the Securitisation.

In April 2003 IXIS was informed that the Box Clever Group was in financial difficulties and that it would require a major restructuring to avoid insolvency. On 24^th September 2003, three partners of PriceWaterhouseCoopers Plc were appointed Administrative Receivers of eight companies within the Box Clever Group.

On 15^th January 2005 IXIS sold the Notes to a US investment company, Fortress. West LB and CIBC also sold the Notes that they held to the same company.

IXIS started the IXIS proceedings against West LB and CIBC in February 2004. IXIS alleged that West LB and CIBC as arranger and/or joint lead manager owed IXIS duties of care in relation to the content and accuracy of an Offering Circular that was issued at the time of and as part of the Securitisation. The Offering Circular set out details of the security for the Notes that were being offered. This was based on the Net Present Value (“NPV”) of Equity Cashflows of the Box Clever Group, which was the present value of the cashflows to be securitised. IXIS alleges that this NPV was inaccurately stated in the Offering Circular. That much is now accepted by all parties involved. The figure stated in the Offering Circular was £943 million. IXIS has alleged that this overvalued the NPV of the Box Clever Group by around £300 million. IXIS alleges that this overstatement was caused by errors in the Financial Model (“the Securitisation Model”) that produced the NPV of the Securitised assets. IXIS has, in particular, alleged that there was inaccuracy in the treatment of the termination of contracts for the rental of Box Clever products. IXIS asserts that the implementation of a key assumption relating to “Change of Model terminations”, the so – called “40% COM Assumption”, was flawed. I need not go into the details of this, all of which are very complicated.

In March 2006, IXIS was given permission to amend its Claim Form to add the third defendant, Terra Firma Capital Partners Limited (“Terra Firma”). There is alleged that the Securitisation Model had been developed by Terra Firma during the period 27^th March 2002 until the closing of the Securitisation. The two particular employees involved were Mr Quentin Stewart and Mr Paul Spinks. Mr Stewart and Mr Spinks had previously been employed by Nomura. Data for the Securitisation Model had allegedly been developed by Nomura from April 2001. This development work had been done in conjunction with Mr Andrew Gurnham of Box Clever. He had previously been an employee of Thorn Limited, which had itself been under the control of Nomura and subsequently Terra Firma Capital Partners I.

The case of IXIS against Terra Firma is that Mr Stewart and Mr Spinks knew that the Securitisation Model was flawed and that the NPV figure and the implicit loan to value ratio included in the Offering Circular, were false; alternatively that they were reckless as to those matters. IXIS alleges that it was intended that all potential purchasers of the Notes would rely on this work and that IXIS did so to its detriment. Therefore IXIS claims against Terra Firma in deceit.

In March 2006 IXIS also amended its case against West LB. IXIS alleges that two employees of West LB, Mr Andrew Gardner and Mr Ian Justice, knew that the Securitisation Model and the NPV value and implicit load to value ratio were false by the time of the Offering Circular and subsequently. IXIS alleges that this conclusion can be inferred from a large number of matters going back to February 2001.

In the IXIS proceedings WestLB has served an Additional Claim against Terra Firma. This claim (begun on 18^th July 2006) alleges that Terra Firma is responsible for the inaccuracies in the Securitisation Model. The Additional Claim alleges that Terra Firma was told about inaccuracies in the Securitisation Model by Box Clever employees after the close of the Securitisation, but Terra Firma did nothing to stop the marketing of the Notes to IXIS and in fact actively participated in that marketing. The Additional Claim also asserts that Terra Firma was negligent in the period prior to the close of the Securitisation with regard to the accuracy of the Securitisation Model.

West LB makes two claims against Terra Firma in this Additional Claim. First it claims a contribution or an indemnity in respect of the claims that IXIS make against West LB. Secondly, West LB claims further damages from Terra Firma for losses which West LB alleges that it has itself suffered as a result of the inaccuracies in the Securitisation Model. West LB asserts that it relied on the Securitisation Model in order to take up the Notes and relinquish Security Rights which it otherwise had under the terms of the Bridging Loan of June 2000. Therefore, within this second claim is one for loss of Security Rights, totalling about £23 million.

In response to West LB’s Additional Claim against Terra Firma, Terra Firma has alleged that West LB was itself negligent in the way it monitored the Bridging Loan during the period from 1^st July 2000 to the close of the Securitisation. Terra Firm asserts that there is no causative link between any faults on its part (which are denied anyway) and any loss suffered by WestLB.

On 30^th March 2007, WestLB issued further proceedings against Nomura, which is 2007 Folio 413. These proceedings have been called “the Second West LB proceedings”. Nomura is the only defendant in those proceedings. The Particulars of Claim in the Second West LB proceedings had not been served at the time of the CMC on 22^nd June 2007. I ordered that a draft be served by 2^nd July 2007. That has been done. The Particulars of Claim are, if I may say so, a model of conciseness and are far shorter than the pleadings in the IXIS or First West LB actions.

In the Second West LB proceedings, West LB alleges that Mr Spinks and Mr Stewart, as employees of Nomura up until 27^th March 2002, were involved in producing data and a mathematical Model that was eventually used in the Securitisation to predict the cashflows and provide the NPV of Box Clever. It is alleged that Nomura (through Mr Spinks and/or Mr Stewart) gave advice or made representations to West LB about the accuracy of the Model, in particular in respect of the assumptions made about terminations of rental contracts. It is also asserted that Nomura (through Mr Spinks and Mr Agble) negligently utilised the change of Model assumptions in the Model by the time version 118 of the Model was produced in April 2001.

West LB asserts that Nomura owed WestLB a duty of care in tort in various respects. First, to exercise reasonable care and skill to ensure that versions of the Model sent to WestLB were accurate and/or based upon assumptions and mathematical formulae which accurately reflected the nature of Box Clever’s rental business. Secondly, to ensure that advice given to West LB and representations made were accurate and to inform WestLB of any material inaccuracies in the Model.

A Corporate Model was also produced by Nomura on the basis of material from the Model. The Corporate Model was designed to predict the cashflows of the entire Box Clever business until 2010. It is asserted by West LB that Nomura was negligent in the preparation of the Corporate Model and made misrepresentations in respect of it.

West LB’s case against Nomura in the Second West LB proceedings is that if Nomura had exercised reasonable skill and care, not made misrepresentations and had given West LB all the information it should have done, WestLB would have acted differently towards the Securitisation process which closed in June 2002. In particular it would have retained security that it had under the terms of the Bridging Loan arrangements fixed in June 2000. As in the Additional Claim against Terra Firma in the IXIS proceedings, West LB alleges that it lost some £23 million worth of security which it would otherwise have retained had it not been for negligence and/or misrepresentations by Nomura.

WestLB also asserts that it has suffered further loss, in particular potential liability to IXIS and losses suffered on the re-sale of the Notes it owned to Fortress, as a result of the negligence and/or misrepresentations of Nomura.

It will be reasonably apparent from the foregoing description of the three sets of proceedings that they concentrate on three periods of time. The First WestLB proceedings relate to the period up to June 2000. In those proceedings, on 2 July 2007, Nomura served a Defence, which runs to 234 paragraphs and 125 pages. In the Second WestLB proceedings, the allegations concern the activities of Nomura and its employees between April 2001 and 27^th March 2002, although WestLB alleges that its losses were suffered later, after the Securitisation was closed in June 2002. The IXIS proceedings are largely concerned with events between April 2002 and October 2002. However there is a great deal of material that has been pleaded in the IXIS proceedings concerning the background to the Securitisation. This includes much material relating to the development of the Model and the Corporate Model by Nomura and its employees, Mr Spinks and Mr Stewart prior to March 2002. This is because IXIS alleges that the genesis of the flaws in the Model used to calculate the NPV for the purposes of the Offering Circular all occurred before Terra Firma took over the relevant part of Nomura’s business in March 2002.

At the hearing on 22^nd June 2007, I did not have the Defence of Nomura in the First West LB proceedings, nor any Particulars of Claim of West LB in the Second West LB proceedings. It was therefore almost impossible for me to see the degree to which, if at all, there was an overlap in the issues of fact and law between the three sets of proceedings. By that hearing the IXIS proceedings were at an advanced state of preparedness for a trial which is due to start in January 2008 and is, on its own, estimated to last 20-24 weeks. That trial date has already been put back three times. The reputation and honesty of at least four professional men is in dispute and the sums claimed are very large.

Therefore, after some argument from counsel for the various parties, I indicated that I would not be prepared to consider an order consolidating the First and Second West LB proceedings with the IXIS proceedings or that all three be tried together (or that one of the WestLB proceedings be tried with the IXIS proceedings) unless, at the very least, certain matters were demonstrated. I said that, as a starting point, I would have to be satisfied that: (a) there were significant issues of fact in the IXIS proceedings in relation to which the court would have to make findings which would be relevant to Nomura’s alleged liability in either the First or Second West LB proceedings; and (b) it was possible to ensure that Nomura could fairly be ready to take part in any enlarged trial in January 2008 or at any subsequent stage during the proposed trial period. I said that even if I was satisfied as to those matters, there was still a question of trial management and discretion to be considered before I would grant the order that West LB sought.

In order to deal with the first point above, I ordered West LB to prepare a schedule that identified significant Issues of Fact in the IXIS proceedings in relation to which the court would have to make findings which would be relevant to Nomura’s alleged liability in both the First and Second WestLB proceedings. West LB did this and, in accordance with my order, circulated the schedule to the other parties, including Nomura, for their comments. This exercise, although laborious, has been of immense assistance to me and I am very grateful to all those who had to undertake the exercise.

In summary, the position is as follows: first, in relation to the significant Issues of Fact arising in the IXIS proceedings and the First WestLB proceedings, there is no overlap of significant Issues of Fact on the primary cases. Nomura accepts that some of the contributory negligence allegations made by Nomura against West LB in the First West LB proceedings “broadly track” some of the allegations made by Terra Firma against West LB in Terra Firma’s defence of West LB’s Additional Claim against Terra Firma in the IXIS proceedings. However, Nomura accepts also that there can be no conceivable conflict between it and Terra Firma in relation to those allegations. Nomura is prepared to agree to be bound by the factual findings made by the court in relation to these allegations when making findings in the IXIS proceedings.

In the light of that analysis, Mr Brindle QC, on behalf of West LB, accepted, at the outset of the hearing on 13 July 2007 that he did not pursue the application to consolidate the First West LB proceedings with the IXIS proceedings.

Secondly, with regard to the overlap of significant Issues of Fact in the Second West LB proceedings and the IXIS proceedings, Nomura accepts that there is an overlap between the factual allegations made against Nomura in the Second WestLB proceedings and those made against Terra Firma by IXIS and/or West LB in the IXIS proceedings. These allegations relate to the period April 2001 – March 2002.

Nomura and WestLB put the significant factual issues differently in their Outline arguments. However, I think I can summarise them as follows:

In the Second WestLB proceedings, it is alleged that in April 2001 Mr Spinks (then of Nomura, later of Terra Firma) advised or represented to Mr Ian Justice of WestLB that version 118 of the Model was up-to-date and correct and it was pointless trying to identify the changes between version 48 and version 118. This conversation is also pleaded by West LB in its defence to IXIS’ claim in the IXIS proceedings. Mr Spinks denies this conversation in his second witness statement already served in the IXIS proceedings.

In the Second West LB proceedings, West LB pleads that if IXIS succeeds in its allegation in the IXIS proceedings, that a percentage figure of 40% for Company Instigated Termination of rental contracts (“COM”) was not justified in the assumptions made in the Model and Corporate Model, then the origin of that figure and the assumption was the work carried out by Nomura leading to version 118 of the Model, produced in about April 2001. In the IXIS proceedings Terra Firma pleads that the figure of 40% was justified. This is dealt with in Mr Stewart’s witness statement in the IXIS proceedings.

In the Second West LB proceedings, West LB alleges that the way in which the Change of Model assumption was implemented by Nomura in the Model in and after version 118 was negligently inaccurate. That is said to result in a breach of duty of care by Nomura to West LB and to have resulted in losses to West LB. The implementation of the COM assumption is also, obviously, central to IXIS’ claims in the IXIS proceedings, particularly as against Terra Firma. In the IXIS proceedings, Terra Firma has pleaded in detail how the COM assumption was implemented in the Model. This issue regarding the COM assumption arises not only in the main claim of IXIS against Terra Firma, but also in relation to West LB’s claim against Terra Firma in WestLB’s Additional Claim. This issue is dealt with in detail by Mr Spinks in his witness statement in the IXIS proceedings.

In the Second West LB proceedings, specific allegations are made against Nomura with regard to events which took place between Nomura and Credit Agricole Indosuez (“CAI”), in particular its financial modeller, Mr Henrik Kristensen, in February 2002. At that stage CAI was considering a participation in the proposed Securitisation. However it withdrew. The reasons for this were set out in a Note prepared by Mr Kristensen and emailed to Nomura in February 2002. The Note was not sent to West LB. However, WestLB alleges that in telephone conversations on 8^th and 14^th February 2002, oral misrepresentations were made by Mr Spinks and Mr Stewart as to the reasons for CAI’s withdrawal from the Securitisation. These conversations are also relied on by IXIS and West LB in the IXIS proceedings. It is said that the explanations provided by Mr Spinks and Mr Stewart were inaccurate. In the second West LB proceedings, West LB also alleges that Mr Spinks and Mr Stewart should have provided West LB with a copy of Mr Kristensen’s Note sent to Nomura. West LB makes the same allegation in the IXIS proceedings. These conversations and the Note are dealt with at length in Mr Stewart’s and Mr Spinks’ witness statements in the IXIS proceedings.

The issue of the knowledge (or lack of it) of Mr Spinks and/or Mr Stewart as to the alleged flaw in the COM assumption and its significance arises in both the IXIS proceedings and the Second West LB proceedings. So also does the issue of the knowledge of Mr Spinks and/or Mr Stewart as to the consequences for WestLB of its reliance on the Model or assumptions in it as they eventually appeared in the Offering Circular.

The issue of the cause of loss to IXIS or WestLB as a result of alleged negligence or misrepresentations or deceit by WestLB, Terra Firma or Nomura respectively all clearly overlap.

Given this analysis, Mr Iain Milligan QC, who appeared for Nomura at the hearing on 13 July 2007, accepted that there was a considerable overlap between the issues raised in the IXIS proceedings and the Second West LB proceedings. So too did Mr Mark Hapgood QC, who appeared on behalf of Terra Firma. Both also accepted that at the IXIS trial any findings and conclusions on issues of fact and law that arose between West LB and Terra Firma in relation to the events from 2000 to 2002 would be binding on those parties and give rise to Issue Estoppels as between them. Mr Hapgood and Mr Milligan both also accepted that, in the Second West LB proceedings, it was a reasonable possibility that Nomura would join Terra Firma in the action as a Part 20 Defendant and would make Additional Claims against Terra Firma. However, although West LB and Terra Firma would be bound by any findings of fact and conclusions in the IXIS proceedings, Nomura would not be, unless there was consolidation of the Second West LB proceedings with the IXIS proceedings.

Mr Brindle, for West LB, submitted that it was clearly in the interests of justice and practical sense to consolidate the IXIS proceedings and the Second West LB proceedings. He submitted that it would avoid the possibility of inconsistent findings of fact in two proceedings which have much overlap in the facts and also the legal issues. He accepted that if there was to be consolidation then it would mean that Nomura would have to be ready to participate in the trial due to start on 21 January 2008. He accepted that this would mean a great deal of hard work on the part of the Nomura team but it was feasible and the most sensible way to do things.

Mr Milligan, for Nomura, confirmed that Nomura was prepared to take the risk that findings of fact and conclusions of law would be made in the judgment following the IXIS proceedings that could seem adverse to Nomura for the purposes of the Second West LB proceedings. He appreciated that, although not formally binding on Nomura, it might prove difficult to “unpick” such conclusions. However, Nomura was prepared to take that risk. Mr Milligan acknowledged that there was a prospect that Terra Firma would become a party to the Second West LB action. He stated that Nomura was also prepared to take the risk that there would be binding findings of fact as between West LB and Terra Firma in the IXIS proceedings that would bind those parties in the Second West LB action. All those possible disadvantages were preferable to Nomura being put in a position where it was not properly prepared for a trial due to start on 21 January 2008, so that if Nomura had to join in that trial it would result in manifest unfairness to it.

Mr Milligan highlighted the following matters that Nomura would have to deal with in the six months remaining until the start of the trial: (i) whether all proper disclosure has been given by West LB; (ii) whether there are any corroborative witnesses to deal with areas covered by Messrs Stewart and Spinks; (iii) what experts will be needed, particularly in the area of “credit monitoring” by West LB. Mr Milligan pointed out that although the interests of Nomura and Terra Firma were aligned to an extent, they diverged if the court concluded that Mr Spinks and/or Mr Stewart had been negligent or dishonest and it became important to see when that had occurred: either before or after 27 March 2002.

Mr Milligan made two further points which he said militated against a consolidation of the Second West LB action with the IXIS proceedings. First, Nomura might be applying to strike out the Second West LB action, which, he submitted, was bound to fail in fact and law. A “strike out” application could threaten the timetable to a consolidated trial date of 21 January 2008. Secondly, if there was no consolidation, then the chances of there being a trial of the Second West LB action were slim. If West LB lost in the IXIS proceedings, particularly in relation to “credit monitoring”, then it could not possibly mount a case against Nomura. If West LB won against IXIS and/or Terra Firma, there would be no point in pursuing Nomura. Therefore the application should be dismissed.

Mr Hapgood supported the submissions of Mr Milligan and emphasised the lateness of the application by West LB. He identified correspondence between the solicitors acting for West LB and Terra Firma in March 2006 which showed that West LB’s advisors were contemplating proceedings against Nomura at that stage. However, the Second West LB proceedings were not started for another year. Only West LB is to blame for the present position where there is a prospect of the IXIS trial leading to findings of fact and law that might impinge on the Second West LB action. As both Terra Firma and Nomura were prepared to take the risk of that, then any problems or inconvenience to West LB that resulted was its fault and should not be taken into account.

Mr Twigger, for IXIS, emphasised that there must be no risk to the trial date of January 2008.

Mr Brindle, for West LB, accepted that the application for consolidation was “culpably late”, but submitted it was not deliberately late. I accept this characterisation of the application. He submitted that Nomura could be ready to take part in the trial in January 2008. Any difficulties with discovery, witness statements and experts could be accommodated in the trial timetable, bearing in mind that the trial was going to last up to 26 weeks. The risk of irreconcilable findings was too great to permit the two sets of proceedings to go ahead separately .

Under the CPR Part 3.1(g) and (h), the court has power to consolidate proceedings or try two or more claims on the same occasion. The powers are discretionary and will be used in order to give effect to the “overriding” objective of the CPR, viz. to ensure cases are dealt with expeditiously, fairly and proportionately, with a view to saving expense and time. In this case, as I said at the hearing on 22 June 2007, given the history of the IXIS proceedings, in my view it would be unfair and unjust to the present parties and the individuals whose professional judgment and character is in issue to postpone the trial date beyond January 2008. Therefore the first premise for any decision is that this trial date must be kept.

I accept, as I have demonstrated in the analysis above, that there is a significant degree of overlap in issues of fact and law in the IXIS proceedings and the Second West LB action. There will therefore be a significant overlap in the evidence of witnesses of fact, in particular Mr Stewart, Mr Spinks, Mr Gurnham, Mr Gardner and Mr Justice. There is likely to be an overlap of expert evidence, in particular on Modelling and on credit monitoring.

Despite this overlap, I concluded that it would not be fair and just to consolidate the IXIS proceedings and the Second West LB proceedings. This is for reasons of case management and fairness to Nomura. I accept that the only way that the issues that are common to both the proceedings could be dealt with in one trial would be for Nomura to participate fully in the trial that will start on 21 January 2008. But that would give it only 6 months to be ready. Nomura has not pleaded its defence to the Particulars of Claim that were served on 2 July. Pleadings are unlikely to be finished before the end of July. I accept that Nomura will have to investigate the issue of West LB’s discovery. It will need to consider the position of its former employees, Messrs Stewart and Spinks and whether all issues that might concern Nomura are dealt with in their existing statements. Nomura may wish to see if there are other relevant witnesses and take statements from them. They will wish to consider whether the expert reports that have been prepared by Terra Firma are sufficient for their purposes as well and, if not, instruct new experts. Solicitors and counsel will have to familiarise themselves with a vast amount of material. All this simply cannot physically be done by 21 January 2008 and I think that it is futile for Nomura’s team even to try.

As I have said, I am not prepared to put back the trial date yet again. Had West LB’s application been timely, I might have considered this, but Mr Brindle frankly accepted that the application was “culpably late”.

In all these circumstances, despite the fact that there may be a risk of irreconcilable findings as a result of there being two different trials, that risk is outweighed by the other factors I have set out above which are against consolidation or hearing the two matters together. Accordingly, I reached the firm conclusion that the application of West LB must be dismissed.