Su-Ling v Goldman Sachs International

This is an application by the Claimant, Ms Quah Su-Ling (“Ms Quah”), for permission to amend her Particulars of Claim. The application was issued on 10^th February 2015, some three weeks before the trial was due to commence (on 4^th March 2015). The application has led to the vacation of the trial dates in circumstances set out in more detail below. Ms Quah accepts that, were her application to succeed, she must pay the costs of the amendment and the costs of the action thrown away by the amendment and the adjournment (contractually on an indemnity basis) and that any permission should be conditional on a payment of 40% on account of any such reasonable costs.

There is a counter-application issued on 27^th February 2015 by the Defendant, Goldman Sachs International (“GS”). In the event that the application to amend were to fail, GS asks for the claim to be dismissed or struck out pursuant to CPR 3.4(2), and that it be granted summary judgment on its Counterclaim pursuant to CPR 24.2, all with costs.

Ms Quah is a sophisticated private investor permanently resident in Singapore. She is presently the Chief Executive Officer and an Executive Director of IPCO International Ltd (“IPCO”), an investment holdings company listed on the Singapore Exchange Ltd (“SGX”). As at 15^th February 2013 she declared to GS that :

GS is regulated by the Financial Conduct Authority.

On 15^th February 2013, following an introduction by her investment consultant, Mr William Chan of Stamford Management Pte Ltd (“Mr Chan”), Ms Quah opened a private wealth management account with GS (“the account”) for the purpose of increasing her shareholding in LionGold Corp Ltd (“Liongold”) through a margin loan facility dated 15^th February 2013 (“the facility”). GS did not advise her on this course of action. It was a decision taken by Ms Quah independently and/or on the advice of Mr Chan.

The express terms of the facility permitted GS to call the loan in at any time and for any reason. Clause 15 of GS’ applicable General Terms and Conditions (“Clause 15”) provided materially as follows :

“..15.2 On Demand Loan; Increased Costs

Each Loan will be outstanding from day to day and repayable in the currency or currencies in which it is denominated on demand (such demand to be effective immediately) provided that [GS] shall give you reasonable time in all the circumstances to effect the mechanics of repayment prior to issuing a Close-Out Notice. For the avoidance of doubt, the Close-Out Notice may, in certain circumstances, be given on the same day on which the demand was made…

15.6.1

A Loan is an “on demand” facility, so [GS] can demand immediate repayment of any amount outstanding at any time and for any reason.”

Ms Quah duly drew down monies under the facility. By 1^st October 2013 the sums drawn down were as follows :

At 8.45am (Singapore time) on 2^nd October 2013 Mr Tan Bong Loo (“Mr Tan”), GS’ investment professional responsible for Ms Quah’s account, orally informed Ms Quah (through Mr Chan) by telephone that GS required repayment of sums outstanding under the facility and that it was no longer comfortable lending margin against the Shares. At about 9.20am (Singapore time) Mr Chan telephoned Mr Tan asking for more time to pay, which request was refused.

At 11.47 am (Singapore time) GS made a written demand for repayment of the entire sums outstanding under the facility, namely SG$36,614,280.32 and S$19,263,830.27 (“the demand”). Payment was demanded by 1.30pm (Singapore time), failing which the account would be closed out and the facility terminated. Ms Quah did not repay the loan following the demand.

At 1.37pm (Singapore time) GS accordingly issued notice of default. Over the course of the following three weeks (between 2^nd and 23^rd October 2013) GS took steps to sell the Custody Assets pursuant to its contractual power of sale. The sales of the Shares were carried out on the SGX. Some, but not all shares in Asiasons were sold between 2^nd and 4^th October 2013. The sale of shares in Liongold commenced on 4^th October 2013. The sale of shares in Blumont commenced on 7^th October 2013.

The proceeds of sale were insufficient to meet Ms Quah’s debt to GS.

It is said for Ms Quah that the share prices held up well on 2^nd and 3^rd October 2013. But by the time that trading in the Shares was suspended at 10am on 4^th October 2013 their value had fallen dramatically. When trading re-opened on 7^th October 2013 their value fell yet further.

As will later become apparent, at the heart of Ms Quah’s proposed new case relating to liquidation of the Shares by GS are events said to have taken place shortly prior to the demand within GS, as allegedly revealed by GS’ disclosure and the witness statements served for GS.

As to that, in the very early hours of 2^nd October 2013 (Singapore time) GS’ head of private wealth management for the Asia Pacific region, a Mr Ronald Lee (“Mr Lee”), telephoned GS’ managing director of the private wealth management group in Singapore, Mr Jason Moo (“Mr Moo”). Mr Lee patched in GS’ global co-head of investment management in New York, Mr Eric Lane (“Mr Lane”). Mr Lane told Mr Moo that he was uncomfortable with the risks in Ms Quah’s account, that GS should not be lending against the Shares, and that GS “needed to move the risk off our books” and to start selling first thing the next morning if Ms Quah was not able to find alternative financing to repay the loans. He wanted GS to “have eliminated its risk in relation to these accounts” by 4^th October 2013. Mr Moo then (at 3am Singapore time) called Mr Tan and instructed him to be in a position to start selling the Shares the next morning.

Ms Quah now says that it is to be inferred from these events that GS was in possession of critical information about Asiasons, Blumont and LionGold which would show or suggest (a) not only that the market value of the companies was too high but that it was so over-valued that if a market correction were to occur it would leave GS seriously exposed to losses, and (b) that such a market correction was or was likely to be imminent, such that there was an urgent need to sell the shares in the companies immediately (“GS’ alleged knowledge”).

Ms Quah has been represented throughout by leading counsel (although there was a change of leading counsel in or about late December 2014) and commercial London solicitors (namely Wiggin LLP until 21^st July 2014 when her current solicitors, Devonshires, came on the record for her and who have remained on the record for her ever since). In late December 2014 she appears also to have instructed solicitors in Singapore to advise her on these proceedings.

Ms Quah issued proceedings in the Queen’s Bench Division on 5^th November 2013. This was the same day as she was informed that GS was considering bringing bankruptcy proceedings against her. Particulars of Claim were served on 20^th November 2013. The proceedings were commenced without Ms Quah first having obtained any expert advice. According to her third witness statement, they were issued simply on the basis of her “own experience and opinions”. By March 2014 at the latest, however, she was aware that the obtaining of expert advice was “crucial” to her case, having been so advised by her lawyers (as set out in her second witness statement).

A Defence and Counterclaim were served on 16^th December 2013. The Counterclaim was for SG$15,148,930.77 and US$287,914.08, being the amounts outstanding under the facility. Ms Quah served a Reply and Defence to Counterclaim on 13^th January 2014. Ms Quah served Further Information pursuant to a request dated 16^th December 2013 on 15^th January 2014. On 30^th January 2014 the proceedings were transferred by consent to the Commercial Court. GS served Further Information pursuant to a request dated 21^st January 2014 on 14^th February 2014. All statements of case have been verified in the normal way.

A case management conference was held before Popplewell J on 6^th March 2014. He directed that the case should be case managed and heard together with a related action brought by another private wealth client of GS, a Mr James Hong (“Mr Hong”). Mr Hong discontinued his claim on 4^th July 2014, and GS was subsequently granted summary judgment on its counterclaim against him.

Popplewell J gave full directions to trial, which was fixed between the parties on 28^th March 2014 to commence on 24^th February 2015. Amongst other things, Ms Quah was given permission to serve expert evidence by 17^th October 2014 with provision for GS to serve expert evidence in reply by 21^st November 2014.

The parties gave standard disclosure on 23^rd May 2014. On 8^th August 2014, following a short extension agreed at Ms Quah’s request following her change of solicitor, witness statements were exchanged. Ms Quah served a witness statement from herself and a Mr Patrick Lim (“Mr Lim”). GS served five witness statements : from Mr Tan, Ms Jannie Kek, Mr Josh Wang, Mr Chang Lee Liow and Mr Moo.

On 26^th September 2014 GS gave supplemental disclosure of some 185 documents relating to GS’ decision-making process in the build up to the demand. These documents had come to light in the context of another customer claim, namely a claim by a Ms Ng Su Ling against GS also arising out of a demand on 2^nd October 2013 (“the Ng proceedings”). The Ng proceedings are fixed for trial in the Commercial Court in October 2015.

Between September and December 2014, GS’ solicitors corresponded with Ms Quah’s solicitors in relation to trial preparation matters. Amongst other things, they took on responsibility for the preparation of trial bundles.

Ms Quah did not serve any expert evidence on or by 17^th October 2014. On 6^th November 2014 her solicitors wrote to confirm that she did not intend to adduce any “based on the current scope of the evidence available”. There followed correspondence between the parties on the question of whether Ms Quah intended to pursue those parts of her case dependent upon expert evidence. In the absence of a definitive answer, GS served its expert evidence from Dr Desmond Fitzgerald on 5^th December 2014 (an extended date for which GS obtained permission).

Dr Fitzgerald’s report addresses each of the issues on which permission to adduce expert evidence had been granted. He concludes that GS achieved best execution for Ms Quah and that there was no evidence whatsoever to support the allegation that GS’ actions had caused or contributed to the collapse in price of the Shares.

On 8^th January 2015, days before the pre-trial review fixed for 16^th January 2015, Ms Quah’s solicitors indicated that Ms Quah :

The application for an adjournment was made on the basis that Ms Quah could not attend the trial dates as then fixed because of a clash with the hearing of arbitral proceedings to which she was a defendant in Singapore. It was also indicated that she could not travel to London in March 2015 because her passport had been impounded by the Singapore authorities. No hint was given that Ms Quah and her solicitors had not reviewed GS’ evidence in detail with the result that, even ignoring questions of expert evidence, her case might be very far from ready for trial. The pre-trial review proceeded on the basis that neither the Court nor GS had any reason to doubt that her case as then pleaded was not the one being taken to trial.

At the pre-trial review Eder J refused the application for adjournment (with costs), but delayed commencement of the trial to 4^th March 2015 to avoid any overlap with arbitration proceedings in which Ms Quah was involved in Singapore. He granted permission for Ms Quah to give her evidence by video-link. Ms Quah’s application to serve expert evidence out of time was adjourned pending production of a draft expert report.

Accordingly GS’ solicitors corresponded thereafter in relation to preparation for trial commencing on 4^th March 2015.

However, on 6^th February 2015 Ms Quah’s solicitors wrote to GS’ solicitors as follows :

“Pursuant to instructions we have very recently received, we are currently preparing an application for permission to amend the Particulars of Claim very substantially (“the Amendment Application”). The amendments will abandon large parts of our client’s case as it presently stands, and will seek substantially to re-plead the claim (and defence to counterclaim). …The Amendment Application will also seek further disclosure of documents from your client.

…we would anticipate that if permission for the amendments is granted, your client would wish to serve further factual and expert evidence.

…we will be proposing that the trial slot be used to determine the Amendment Application.…In the event the Amendment Application is refused, our client has instructed us that she will not proceed further with the action. …”

The trial dates thus fell to be vacated on the basis that a) were the amendment to be allowed, vacation was inevitable b) were the amendment to be disallowed, the claim would not proceed.

Ms Quah’s application to amend (together with an application to vacate the trial date and for expedited re-fixing) was issued on 10^th February 2015 and served on GS’ solicitors on 11^th February 2015. In Ms Quah’s solicitors’ letter to the Court, sent before service of the application on GS and without its knowledge or consent, it was said :

“The amendments are very substantial and they wholly change the nature of the case. Should the application succeed, it is plain that the trial will have to be adjourned from its current slot, in order to give the Defendant an opportunity to address the new case and to serve further evidence in support. Should the application fail, our client has instructed us that she will withdraw her claims. Accordingly, either way, the full current trial slot will not be required.”

Against this background, the matter came before the Court on Ms Quah’s application to amend on 11^th and 12^th March 2015.

The claim which Ms Quah has pursued at all times up to and indeed beyond the pre-trial review (“the original case”) is, in summary, as follows :

By the proposed new case (“the new case”) Ms Quah seeks to allege that :

In more detail, the proposed amendments allege :

An application to amend will be refused if it is clear that the proposed amendment has no real prospect of success. The test to be applied is the same as that for summary judgment under CPR Part 24. Thus the applicant has to have a case which is better than merely arguable. The court may reject an amendment seeking to raise a version of the facts of the case which is inherently implausible, self-contradictory or is not supported by contemporaneous documentation.

Beyond that, the relevant principles applying to very late applications to amend are well known. I have been referred to a number of authorities : Swain-Mason v Mills & Reeve [2011] 1 WLR 2735 (at paras. 69 to 72, 85 and 106); Worldwide Corporation Ltd v GPT Ltd [CA Transcript No 1835] 2 December 1988; Hague Plant Limited v Hague [2014] EWCA Civ 1609 (at paras. 27 to 33); Dany Lions Ltd v Bristol Cars Ltd [2014] EWHC 928 (QB) (at paras. 4 to 7 and 29); Durley House Ltd v Firmdale Hotels plc [2014] EWHC 2608 (Ch) (at paras. 31 and 32); Mitchell v News Group Newspapers [2013] EWCA Civ 1537.

Drawing these authorities together, the relevant principles can be stated simply as follows :

The Commercial Court has a long tradition of pro-actively managing litigation brought before it for the benefit of all users (as recognised, for example, in Worldwide Corp Ltd (supra)). The timetables laid out in and the requirements of the Admiralty and Commercial Court Guide, such as the requirement in D12.2 for provision of a progress monitoring information sheet, are designed precisely to avoid last minute problems which delay the start of trials or cause adjournment.

First, the application arises in unusual circumstances. The combination of Ms Quah’s concessions that a) her current claim, the original case, is unsustainable and b) permission to replace it with the new case would inevitably lead to a substantive adjournment means that the trial dates have already been vacated. But for the first concession, however, this would be an application being made effectively on the first day of trial.

Secondly, Ms Quah accepts that at least material parts of the original case which she has maintained from November 2013 to February 2015 have never been sustainable. The original case appears never to have had the support of an expert despite the fact that, as indicated above, Ms Quah knew from at least March 2014 onwards that such support was “crucial”. In her third witness statement Ms Quah states that she was not, however, aware that the original case was unsustainable until she was so advised by Mr Ruiz “sometime in late January 2015”. She refers to correspondence from GS’ solicitors tending to suggest that the absence of expert evidence was not fatal to the entirety of her case.

Whatever the precise position, Ms Quah was aware from a very early stage that expert evidence was required to support central parts of her claim. This is the only fair conclusion to be drawn from her own evidence as to the advice she received in March 2014, from the content of her responses to Requests for Information, from her Case Management Information Sheet dated 27^th February 2014, from the detailed directions of Popplewell J in relation to expert evidence on 6^th March 2014 and from her belated attempt to secure expert evidence.

For reasons which are not wholly clear, she nevertheless took the decision not to seek such expert advice at that very early stage (when there is no suggestion of any obstacle in doing so) or at any stage before early January 2015, just before the pre-trial review. Even then she did not do so in a manner which led to her being advised fully before the pre-trial review, which should have been a priority. In proceeding in this manner, she ignored the directions of Popplewell J as to expert evidence, just as she ignored the requirement for filing of a progress monitoring sheet.

The question is whether or not, against this general background and in all the circumstances of the case, she should nevertheless be granted an indulgence at trial wholly to abandon her existing case and to run a new one based on facts and matters of which she either was and/or should have been aware many months, if not a year or so, earlier.

Ms Quah fairly accepts that her application to amend is made very late in the day. She advances the following explanations :

At the outset, I am troubled by a number of deficiencies in the explanations given by Ms Quah, of which there are the following obvious examples :

Putting these matters aside and in any event, the proposed amendments relating to the express terms of the contract, the proper construction of Clause 15 and breach thereof could and should have been pleaded from the very outset if they were to be raised at all. There is no good reason for their lateness. At most they would appear to arise out of a fresh examination of possible arguments by fresh counsel. This is precisely the sort of reason that does not find favour with the courts (see Worldwide Corp Ltd (supra)). The one potential exception relates to Ms Quah’s reliance in part on an email sent by GS to Mr Chan on 25^th June 2013 (at paragraph 19A(a) of the draft Amended Particulars of Claim). But Mr Chan was at all material times Ms Quah’s agent and in any event the document was disclosed as part of standard disclosure in May 2014.

As to the remaining proposed amendments which are said to arise out of GS’ disclosure and witness statements, disclosure took place in May 2014 and witness statements were exchanged on 8^th August 2014. On the most generous view to Ms Quah, the delay spans from 8^th August 2014 to 10^th February 2015 when the application to amend was issued. This was of course a critical period in the life of the litigation. Expert evidence was to be served. The matter was to be prepared for trial. A pre-trial review was fixed for 16^th January 2015 with trial in February 2015.

The fact that the delay occurred in the context of an expeditious timetable is nothing to the point. The timetable was a reasonable one and was there to be complied with. If anything, the Court’s directions made it clear that inertia on the part of the parties in the conduct of the action at any stage was not an option.

That leaves the question of whether Ms Quah’s frame of mind over the relevant period or a lack of funding can explain away the delay.

It is right that Ms Quah has been under investigation by the CAD since about April 2014, her passport having been impounded on 2^nd April 2014. She has been interviewed in that context on twelve occasions. It is also right that she has been the subject of margin calls and various legal proceedings following the drop in value of the Shares. She states that IPCO was also affected.

Having conceded that it cannot be said that any actions on the part of GS caused the fall, Ms Quah can no longer seek to blame GS for these matters. Moreover, it is hard to see why they would have prevented her from monitoring progress of the litigation or from complying with the Court’s directions. The timetable was set in March 2014 and the trial date fixed later in the same month. She served witness statements directly by reference to the timetable. She knew that she was not complying with the directions for expert evidence, not least because of the contents of her solicitors’ letter of 6^th November 2014. She was working full-time at IPCO, even if fighting fires. She was capable of engaging with the litigation had she chosen to. On her own case, she chose to prioritise other matters. Her capability to engage is demonstrated well by her re-engagement with the litigation once trial became imminent.

Thus, the matters prayed in aid by reference to other events in Ms Quah’s life do not in my judgment materially assist Ms Quah in excusing her failure to progress her claim against GS properly.

As to lack of funding, Ms Quah’s explanation is inadequate. In her second witness statement she states :

“27.

…This was compounded by the state of my financial resources which had been drained significantly as a result of the multitude of margin calls and legal proceedings. In the light of these issues I was unable to instruct my solicitors to conduct a detailed review of the documents disclosed by the Defendant.

28.

I was however able to at least work with my lawyers to file the witness statements…However, thereafter I realised that I no longer had sufficient funds to engage an expert to give evidence in support of my claim and properly pursue this claim to the end. At that stage I was prepared to just give up….

29….Due to the lack of funds I was also not in a position to discuss the Defendant’s expert report with my own expert since I could not appoint one and had not done so.

30.

Fortunately, sometime late December 2014, I managed to secure funding to pursue my claims against the Defendant…”

Ms Quah has had solicitors on the record for her without interruption. They were positively acting on the case on, for example, 6^th November 2014. She gives no particulars of precisely when funding first became necessary, what attempts she made to secure it and when and why it took until “sometime late December 2014” to obtain it. Ms Quah appears to be someone with substantial contacts and a variety of possible financing options. The lack of full explanation is all the more notable given that Ms Quah’s funder has been identified as Mr Lim who, as indicated above, had provided a witness statement for Ms Quah in support of her claim on 8^th August 2014. Mr Lim states that he is a “business associate”of Ms Quah and the managing partner of Yangtze Investments Partners Limited. There is no evidence as to when he was first approached or explanation as to why he was not approached earlier for funding (if he was not approached earlier).

In summary, there has been no proper explanation of the reasons for delay, nor has any good reason for the delay been identified.

I turn to consider the strength of the new case. GS does not contend outright that it has no real prospect of success, rather that it is not sufficiently strong to justify permission for a very late amendment.

Both in her original and new case, Ms Quah makes very serious allegations against GS. Such allegations require strong and cogent evidence to support them. It is said that GS behaved in a manner which was capricious, arbitrary, perverse, irrational and otherwise than in good faith. For the purpose of the claim for breach of statutory duty it is said that GS acted unfairly and unprofessionally and not in Ms Quah’s best interests.

GS makes it clear that a large number of defences would be raised were permission to amend to be granted, including whether or not COBS applies in circumstances where an individual is in default. But the challenge on the merits by GS for present purposes focussed on :

So far as the new case based on an alleged breach of Clause 15 is concerned, this is not at odds with the original case, but rather an addition to it. By the new case Ms Quah seeks to allege that under Clause 15 she was contractually entitled to have 48 hours’ notice before being put into default. Thus the default notice was unlawful.

There can be no doubt but that Ms Quah was fully aware that the loan was repayable immediately on demand which could be served at any time for any reason, as she expressly confirmed at the time of opening her account. The well established case law is that the time required to effect the mechanics of repayment before default can be declared is, in modern conditions, exceptionally short. Thus, in Bank of Baroda v Panessar [1987] 1 Ch 335 (at 346 E to 348 F) Walton J stated :

“The next question which arises is whether sufficient time for compliance with that demand had been allowed before the receiver was appointed? I take as my starting point that well known dictum of Black J in Brighty v Norton (1862) 3 B & S 305, 312:

“I agree that a debtor who is required to pay money on demand, or at a stated time, must have it ready, and is not entitled to further time in order to look for it.”

This extremely strict view of the matter was refined by Lord Cockburn C.J in Toms v Wilson (1862) 4 B & S 442, 453, where he said:

“We are all of opinion that the rule should be made absolute. By the terms of the bill of sale, the plaintiff was under an obligation to pay this money immediately upon demand in writing, and if he did not then the defendants were entitled to take possession of and sell the goods. Here such a demand was made. The deed must receive a reasonable construction, and it could not have meant that the plaintiff was bound to pay the money in the very next instant of time after the demand, but he must have a reasonable time to get it from some convenient place. For instance, he might require time to get it from his desk, or to go across the street, or to his bankers for it.”

That quotation was endorsed by Sir Barnes Peacock in the Privy Council in Moore v Shelley (1883) 8 App. Cas. 285, 293. These passages were cited, approved and applied by Goff J. in R.A Cripps & Son Ltd v Wickenden [1973] 1 W.L.R. 944. The interval of time in that case was approximately one hour, and the judge said that the plaintiffs could not object on the ground that they were not given time to find the money, or that the interval was too short…

English law, therefore, in my judgment, has definitely adopted the mechanics of payment test.”

Blackburne J equally, when considering what time must elapse where money is payable on demand in Sheppard & Cooper v TSB Bank plc and others [1996] 2 All ER 654, stated (at 659f-j) :

“What that time is must, in my view, depend on the circumstances of the case. If the sum demanded is of an amount which the debtor, if he has it, will be likely to have in a bank account – which will be the position in 99 cases out of 100 – the time permitted must be reasonable in all the circumstances to enable the debtor to contact his bank and make the necessary arrangements for the sum in question to be transferred from his bank to the creditor. If the demand is made out of banking hours, the period of time is likely to be longer – involving waiting until banks reopen – than if the demand is made during banking hours. In so stating I do not consider that I am abandoning the mechanics of payment test in favour of some wider and less precise approach. In his unreported decision in Hawtin, referred to in Panessar’s case, Walton J himself said that the debtor is not in default in making payment ‘unless and until he has had a reasonable opportunity of implementing whatever reasonable mechanics of payment he may need to employ to discharge the debt’. This, I venture to suggest, is no more than the application of practical common sense…

The requirement that sufficient time be permitted to elapse to enable the debtor to effect the mechanics of payment assumes that that is the period needed if the debtor has the necessary moneys available. If, however, he has made it clear to the creditor that the necessary moneys are not available, then, provided a proper demand has been made, I cannot see that the creditor need allow any time to elapse before being at liberty to treat the debtor as in default…”

As already indicated, in support of her contention that she was entitled to 48 hours’ notice, Ms Quah relies on an email of 25^th June 2013 from GS to Mr Chan which states :

“Subject : GS Margin Call Policy

Hi William,

As requested, please find below additional information of our firm’s current policy with regards to margin call issuance : (Note : these are subject to changes in accordance with market conditions)

…

Time to meet calls : 48 hours (T + 2) or unless negative equity, due within 24 hours (T + 1)…”

However, the email is expressly dealing only with GS’ margin call policy, not the repayment of on-demand loans, which is something quite different. Even then it states that such policy is all subject to changes in market conditions. Ms Quah is driven to argue that, by some equivalence, the same period should apply on a demand for repayment.

The other matters relied on to support an entitlement to more time are inconsistent with the case law referred to above and the nature of an on demand loan - for example, the suggestion that the last sentence of clause 15.2 indicates that a same day default notice was the exception rather than the rule. And it is difficult to see why, as Ms Quah alleges, “certain circumstances”should be read so as to mean “exceptional circumstances”. That is not the ordinary or natural meaning of the words.

In my judgment the new case by reference to Clause 15 on any view faces significant hurdles. It is to be noted that original leading and junior counsel chose not to plead it, as would clearly have been possible even without the email of 25^th June 2013.

As for the new case on liquidation of the Shares, there can be no escaping the fact that the proposed amendments represent a wholesale change of case on the part of Ms Quah. Moreover, it is one diametrically at odds with the original case. In fairness, it was not suggested otherwise for Ms Quah.

What is rightly said for Ms Quah is that the fact that there has been a “volte face” is, without more, not determinative of the merits of the new case. Ms Quah has not said anything for the purpose of the original case from which she is forced directly to resile in order to maintain the new case.

But:

As already indicated, at the heart of the new case lies the contention that GS (in New York) must have discovered that there was, or was likely to be, an imminent market correction and that Mr Lane accordingly gave an instruction to Mr Moo on 2^nd October 2013 to sell the Shares aggressively on the SGX by the weekend.

Mr Millett QC for Ms Quah carries out a detailed analysis of emails and transcripts of telephone recordings over the period in the days and hours before and shortly after Mr Lane’s conversation with Mr Moo and Mr Lee at 0230 hours (Singapore time) on 2^nd October 2013. He refers in particular to an email from Mr Tan to Mr Moo, Mr Lee and Mr Sondhi (also of GS) at 0556 hours (Singapore time) headed “Re : Action Plan for Selling”. This shows an aggressive selling plan for the Shares (with a day’s volume for Blumont at 27%, Asisasons at 55% and Liongold at 72%).

From the analysis Mr Millett seeks to derive the following propositions :

In short, Ms Quah suggests that “something”must have happened shortly before Mr Lane’s call at 0230 hours on 2^nd October 2013 for the matter to have been escalated to GS New York. Mr Lane must have made the important decision to call in the facility on some sort of data or analysis that GS did not have in Singapore. The inference is that GS must have learned of matters indicating that a market correction was or was likely to be imminent. This is information which it should have shared with Ms Quah and which should have led to it selling the Shares immediately and aggressively. Additionally, this selling strategy was the instruction given by Mr Lane to Mr Moo.

Ms Quah says that GS “must” have documents showing the analysis leading up to Mr Lane’s instructions to Mr Moo which would be critical to her claim.

Ms Quah also relies on the expert report of Mr Sam Ruiz dated 10^th February 2015. Mr Ruiz states, amongst other things, that it would not have been fair, professional or reasonable for GS not to have informed Ms Quah of its concerns and reasons for calling in the loan, nor was GS’ selling strategy reasonable in all the circumstances. He says that GS’ execution strategy should have been at a 25% participation rate (which is in fact significantly lower to that pleaded by Ms Quah in the new case).

GS submits that little or no reliance can be placed on Mr Ruiz’s views because of his first preliminary report which was held out at the pre-trial review as tending to support the original case, and because he has been closely involved in the identification and construction of the new case. These criticisms do not seem to me to be entirely fair. The more important point is that Mr Ruiz’s views depend on Ms Quah’s assumption as to GS’ state of knowledge being correct. His views do not materially assist if the necessary facts are not made out. Further, Mr Ruiz assumes that important documents to support that case are missing but must exist. In fact, they do not, as set out below.

More widely, GS contends that the allegation as to GS’ knowledge (including that of Mr Lane) is both entirely speculative and misconceived.

Firstly as to documents, GS has carried out a search which included searches for all relevant senior management in New York (and Asia), including Mr Lane and Mr Lee, for relevant documents between 25^th September 2013 and 2^nd October 2013. According to the evidence of GS’ solicitors, “there is no evidence that [GS] had any knowledge or belief of an imminent collapse in share price… For the avoidance of doubt, there were simply no documents identified…showing or suggesting that a market correction was likely to occur imminently or that GS…had any knowledge or belief (or information relating to) an imminent correction.”Such relevant documents as were found were disclosed in September 2014.

If there are no documents, then the basis for Mr Lane’s decision and instruction would be an issue on which only oral evidence could assist. A plain denial by Mr Lane of GS’ alleged knowledge would be difficult to impugn. Whilst Mr Lane has not provided a witness statement setting out his explanation of events, GS’ position has been made clear. The documents that are available show, say GS that the reason for recall of the loan was because there was believed to be a fundamental mismatch between the share price and the core financial statistics for Liongold, Asiasons and Blumont.

GS states that there was a clear decision taken in New York overnight on 1^st/2^nd October 2013 to call in the facility. GS says that this was not the result of any sudden discovery of imminent catastrophe, but rather an analysis of the mismatch referred to above. Nor was there any urgent instruction by Mr Lane effectively to “dump” the Shares on the SGX immediately, or by 4^th October 2013. Rather the removal of risk was to be achieved by means of a transaction that involved transferring the Shares out to a third party and funds coming in.

In my judgment, whilst there may have been cause for suspicion on the part of Ms Quah by reference to the analysis explored by Mr Millett, the documents and transcripts alone are at the very least as consistent with GS’ version of events as Ms Quah’s speculation. There is certainly no evidence of any discovery of an imminent crisis. There is evidence of GS (in Singapore) growing concerned about the company financials for Liongold, Asiasons and Blumont, which is consistent with GS’ position. A transcript of a call between Mr Moo and Ms Kek and Mr Tan at 2006 hours (Singapore time) on 2^nd October 2013 reporting on Mr Moo’s latest call with Mr Lane is flatly inconsistent with any suggestion that Mr Lane had given an instruction to “dump” the Shares.

Moreover, the actions of GS after Mr Lane’s call with Mr Moo in the early hours of 2^nd October 2013 do not support Ms Quah’s theory as to Mr Lane’s alleged instruction to “dump” the Shares. Mr Tan may have produced a selling plan at 0556 hours (Singapore time). But it clearly was not implemented. On Ms Quah’s case, Mr Moo must have deliberately ignored Mr Lane’s instructions. This is an inherently unlikely course of events. There is no evidence of Mr Lane expressing any complaint that his instructions were being ignored during the period between 2^nd and 4^th October 2013.

For all these reasons, the new case is at best a difficult one on the merits. It is speculative. The documents which Ms Quah has said in the past would be critical to success on the new case do not exist. The new case is inherently implausible, involving as it does not only defiance of instructions from GS in New York but also GS acting against its own interests which, in terms of realising the best value from the Shares in the face of an imminent crash, would have coincided with those of Ms Quah. There are hurdles on causation (in terms of credibility) and quantum (in terms of the claimed rates of participation).

Finally, Ms Quah points to the fact that there has been no application to strike out or for summary judgment by GS in the Ng proceedings. This would be at best a forensic point only, not least since the defence in the Ng proceedings indicates that the Defence and Counterclaim were served expressly without prejudice to GS’s contention that the claim stands no prospect of success and should be struck out (in whole or in part). It does not enhance the prospects of success in the proposed amendments sought by Ms Quah.

As already indicated, it is common ground that to allow the new case to be introduced would lead to the loss of the trial date fixed a year ago in March 2014 and which Eder J at the pre-trial review refused to adjourn (beyond a week). Indeed, the trial dates have already been lost. The indication is that any new trial would not take place before 2016. (At one stage it was posited for Ms Quah that, even had she acted timeously on sight of GS’ witness statements in August 2014, the trial date of February 2015 would have been at risk. I disagree. Even assuming that any application to amend would have been opposed, the case could have been re-pleaded and further or supplemental witness statements and expert reports served so as to meet the trial date in place.)

For Ms Quah, it is said nevertheless that GS can be compensated by way of costs and would suffer no real prejudice. She is not insolvent and in any event GS can be protected by any order granting permission being made conditional on payment of GS’ costs. Any prejudice to GS is financial only. By contrast, the prejudice to Ms Quah is distinctly personal. If judgment is granted against her on the counterclaim, the inevitable consequence of refusal of permission, she says that she will declare herself bankrupt.

There has been a debate as to whether, in the event that permission to amend were declined, fresh proceedings by Ms Quah (or her trustee in bankruptcy) raising the new case would be an abuse of process (see Henderson v Henderson [1843] 3 Hare 100). The decision of the Court of Appeal in Virgin Management Limited and another v De Morgan Group plc and another [1996] E.G. 16 (C.S.) suggests that they would. But this is speculation, both as to whether or not fresh proceedings would ever be brought but also as to the outcome of any abuse application.

The submission that GS would suffer no prejudice that cannot be compensated for by way of costs is unsustainable. Even ignoring the fact that an opposing party is never fully compensated for the costs which it incurs (or for business disruption and loss of management time) and even ignoring the doubts as to Ms Quah’s ability to pay GS’ costs (beyond any interim payment), the submission ignores the fact that GS’ fully legitimate expectation of trial and disposal of this matter this month will be (and indeed has been) thwarted. But for Ms Quah’s claim, Ms Quah’s default on the demand would have been disposed of summarily in Singapore. It has always been GS’ case that Ms Quah’s claim was no more than an attempt to delay or avoid repayment of her debt to GS, albeit that this is something that Ms Quah denies.

The complaint by GS of delay is consistent with its approach to the litigation. It has acted throughout with the clear intention of prosecuting the action as quickly and pro-actively as possible. The interparty correspondence, amongst other things, demonstrates the efficiency with which its solicitors sought to have the action fully and properly prepared for trial in February/March 2015. I do not accept that GS’ failure earlier to apply for strike-out or summary judgment undermines its complaint of delay. There was a swift timetable to full trial which may in any event have been seen as the best and most cost-effective method of determination of the action.

In those circumstances, GS would suffer real and meaningful prejudice through loss of the trial date on the ground of delay alone. Additionally, there has been, or would be, disruption to the Court and to other court users, with the last-minute loss of a longstanding trial date and the need for a new trial date to be accommodated in 2016.

But there is more than prejudice through simple delay to take account of, as a result of the fact that Ms Quah states that she will petition for her own bankruptcy if judgment on the Counterclaim is entered against her.

As is already apparent, Ms Quah is facing a number of other claims. She has recently settled a claim by Malayan Banking Berhad. She still faces execution proceedings brought by Bank of East Asia Limited and arbitration proceedings brought by Interactive Brokers LLC. The effect of delay in this litigation is thus potentially to delay her bankruptcy to a point in time after settlement with other creditors so depleting the assets potentially available to GS. GS would therefore be at risk of incurring further irrecoverable costs on the new case and of obtaining a judgment on the Counterclaim that would be effectively worthless. This is an assessment of prejudice that does not rest on an assumption that GS would win overall, but rather an assessment for present purposes that there is (as a minimum) a real prospect that it will.

Nor is it an answer for Ms Quah to point to the fact that GS faces a trial based on similar facts and issues in the Ng proceedings in October 2015. This action is about the financial dispute and recovery between Ms Quah and GS, and no-one else.

Against these findings, I consider how the balance should ultimately be struck or, as it was put in submission, how the “moving parts”should be put together.

In the light of the scope and nature of the proposed amendments, the weakness of the new case, the poor quality of the explanations for the delay in advancing it and in any event the lack of any good reason for such delay, and the prejudice resulting to GS, I am not persuaded that it is a just and proportionate outcome, nor consistent with the overriding objective, that amendment should be permitted. The prejudice to Ms Quah in losing the opportunity to raise a difficult new case is not sufficient to overcome the prejudice to GS as set out above in circumstances where there is no good reason properly explained to justify her failure to bring the new case forward in proper time and where that failure is the result of her own decision not to investigate the merits of her case timeously.

For all these reasons, I dismiss the application for permission to amend. This may be seen as a harsh decision given its consequence for Ms Quah. But this is modern-day commercial litigation. Very late applications for permission to amend in circumstances where a) there is no good reason for the delay and b) amendment would result in real disruption or prejudice to the parties and/or the Court are unlikely to be allowed, irrespective of the merits of the proposed amendment. This is such an application. But additionally and in any event, on the facts here the merits of the proposed amendment are not sufficiently compelling as to justify granting permission in all the circumstances.

It follows from Ms Quah’s concessions that I strike out the claim pursuant to CPR 3.4(2) and also grant judgment in favour of GS on the Counterclaim pursuant to CPR 24.2 in the amounts certified by GS on 5^th March 2015 together with interest as appropriate.

I invite the parties to agree the terms of an order and all consequential matters, including interest and costs, so far as possible. Finally, I record my gratitude to counsel on both sides for their able submissions and assistance in this matter.